THE NEW COLONIAL POLICY

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nized and accepted. South America could wait. The advantage of proximity to the Northern and Western coasts of South America would serve, at the fitting time, to give American trade the preponderance in South American ports. The Philippines, moreover, supplied a commercial base close to the Chinese Empire, whose future development was of importance to all the aggressive Powers. The Pacific was to be the ocean of the future. The United States must build up strong prestige on the Pacific, if she would hold her own as a great commercial nation.

Critics of the colonial policy of the United States have found an incongruity between the moral ideals that were expressed so strongly as a reason for intervention in Cuba and the acquisition of the Philippines, with the ensuing experiments in administration. It is doubtful, however, if the incongruity was in this instance more marked than it usually is between ideal and practice. The moral ideals were not the expression of hypocrisy. President McKinley, in the address delivered at his second inauguration, March 4, 1901, concentrated in a few words the combined ethical and practical aims of the new colonial policy. In the more sweeping sense his statement reconciled the conflicting elements. Of necessity the actual policy of administration was still tentative. Colonial rule was an experiment. Only the most marvelous intuition could prevent mistakes. It was essential that the early mistakes should not be regarded as proof of ultimate failure. The astonishing fact is not that mistakes were made, but that they were so few.

Clearly and unmistakably, President McKinley, at his inauguration, defined the duty and purpose of the United States in Cuba. “The peace which we are pledged to leave to the Cuban people must," he said, “carry with it the guarantees of permanence. We became sponsors for the pacification of the island, and we remain accountable to the Cubans, no less than to our own country and people, for the reconstruction of Cuba as a free commonwealth on abiding foundations of right, justice, liberty, and assured order. Our enfranchisement of the people will not be completed until free Cuba shall be a reality, not a name; a perfect entity, not a hasty experiment bearing within itself the elements. of failure."

Of the Philippines he said: "The settled purpose, long ago proclaimed, to afford the inhabitants of the Philippines self-government as

fast as they were ready for it, will be pursued with earnestness and fidelity." And going straight to the heart of the nation's position in regard to the dependencies, he said: "The American people, intrenched in freedom at home, take their love for it with them wherever they go, and they reject as mistaken and unworthy the doctrine that we lose our own liberties by securing the enduring foundations of liberty to others. Our institutions will not deteriorate by extension and our sense of justice will not abate under tropic suns in distant seas. As heretofore, so hereafter will the nation demonstrate its fitness to administer any new estate which events devolve upon it, and in the fear of God will take occasion by the hand and make the bounds of freedom wider yet.""

Difficulties of Administration

The difficulties of administering the new possessions were complicated not only by the insurrection in the Philippines, but also by uncertainty as to the exact status of the islands in their relation to the Government of the United States. A number of scholarly men, who based their estimates of the situation on the strict construction of the Constitution, opposed the acquisition of dependencies as contrary to the principles of the nation's founders. Washington's warning against entangling alliances with foreign Powers was frequently invoked. These critics sought to continue the policy of exclusiveness that had served so well during the period when the nation was finding itself. They earned the title of "Anti-Imperialists."

But beyond this attack upon the fundamental principle of expansion, there was a grave doubt as to whether the Constitution "followed the flag" in the new territories. In other words, did or did not Porto Rico and the Philippines become integral parts of the United States by the simple fact of acquisition? Were the people of the islands entitled to the same rights and privileges as the citizens of the States? Could tariff duties be collected legally on goods passing between the United States and the Philippines or Porto Rico? Had the Filipinos and Porto Ricans a right to the suffrage and to representation in the national Congress at Washington?

It is easy to see that as long as these questions remained unanswered the administration of the islands had to be tentative, unsatisfactory.

THE DE LIMA CASE

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True, there was some advantage in the open problem at first, since it gave the needed excuse for temporary experiments, which afterward afforded data for more permanent legislation. But the desirability of settling once for all the status of the islands was clear. It was evident that if the Constitution followed the flag in the Philippines, for instance, the control of the Archipelago would be not only difficult, but virtually impracticable. To extend citizenship to several million Tagals and Moros would be to introduce into the body politic a lagging and perhaps antagonistic element.

I

The question came up in the courts in several cases which were appealed to the Supreme Court of the United States. The final decision in certain of these cases was handed down by the Supreme Court on May 27, 1901. The De Lima case was a suit brought against the Collector of the Port of New York for the recovery of duties on imports brought from Porto Rico in the summer of 1899, after the ratification of the Treaty of Peace with Spain, but before the passage of the Porto Rican tariff law. The Government claimed that for tariff purposes Porto Rico was a foreign country. The Downes case was a suit brought against the Collector of the port of New York to recover duty paid under protest on a consignment of oranges brought from Porto Rico to New York in November, 1900, after the Porto Rican tariff law had gone into effect.

In the De Lima case the Supreme Court laid down the important. principle that "by the ratification of the treaty of Paris the Island became territory of the United States-though not an organized Territory in the technical sense of the word. . . . It is scarcely too much to say that there has not been a session of Congress since the Territory of Louisiana was purchased that that body has not enacted legislation based upon the assumed authority to govern and control Territories.

The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the Customs Union presupposes that a country may be domestic for one purpose and foreign for another. It may undoubtedly become necessary for the adequate administration of a domestic Territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it him

self; but no act is necessary to make it domestic territory if once it has been ceded to the United States. . . . We are unable to acquiesce in this assumption that a territory may be at the same time both foreign and domestic. We are therefore of opinion that at the time these duties were levied Porto Rico was not a foreign country within the meaning of the tariff laws, but a Territory of the United States."

This decision was rendered by Justice Brown, and was concurred in by Justices Harlan, Brewer, and Peckham, and Chief-Justice Fuller. Justices Gray, Shiras, White, and McKenna dissented. The effect was simply this, that land ceded to the United States by the fact of cession became territory of the United States, and must be granted the usual territorial rights in the absence of special legislation by Congress to limit those rights.

The decision in the De Lima case obliged the Government to return the duties collected on imports from Porto Rico during the period between the cession of the island and the first operation of the Porto Rican tariff law, known as the Foraker Act. It did not, however, affirm or deny the right of the Government to administer the affairs of the island without extending to it all the provisions of the Constitution. But the Downes case brought into question the legality of the Porto Rican tariff law. This was the vital point to be determined.

II

The opinion in the Downes case was rendered by Justice Brown, and it was concurred in by Justices Gray, Shiras, White, and McKenna. Justices Harlan, Brewer, and Peckham, and Chief-Justice Fuller dissented. In supporting the Government's position, the concurring Justices reached their conclusion from very different grounds, and along very different lines of reasoning. It will be observed that in both cases Justice Brown decided the issue, four Justices steadfastly supporting and four steadfastly opposing the contentions of the Government.

The essential and highly important feature of the decision in the Downes case was that it affirmed the right of Congress to govern a Territory of the United States as seemed fit, "without being required to treat it as an incorporate part of the United States."

"We are of the opinion," said Justice Brown, "that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clause of

THE DOWNES CASE

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the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from such Island. We are also of the opinion that power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be.

"Whatever may be finally decided by the American people as to the status of these islands and their inhabitants-whether they shall be introduced into the sisterhood of States or be permitted to form independent governments-it does not follow that, in the meantime, awaiting that decision, the people are in the matter of personal rights unprotected by the provisions of our Constitution and subject to the merely arbitrary control of Congress. Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty, and property."

The right of Congress to acquire new territory was then made clear, Justice Brown showing that this power of Congress was not hampered by the Constitutional provisions. "Patriotic and intelligent men may," he continued, “differ widely as to the desirableness of this or that acquisition, but this is solely a political question."

"Expansion," then, was constitutional, in the light of the Supreme Court's interpretation. Porto Rico and the Philippines were territory. “appurtenant and belonging to" the United States. They were of the United States, but not in it.

III

The Porto Rican cases settled the general constitutional status of the new dependencies. It was reasonable to infer that the same principles that were applied to Porto Rico would be applied to the Philippines. Accordingly, the decision of the Supreme Court in the Philippine insular test cases was virtually discounted. On December 2, 1901, the Court gave its opinion in the Pepke or "Fourteen Diamond Rings " case and in "the second Dooley case."

The first of these two involved the right of the Government to collect duty on fourteen diamond rings brought to the United States from the Philippines by Emil Pepke. The Court held that the duty was unconstitutional. This conclusion was in line with the one that had been reached in the De Lima case. Its practical effect, however, was more