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Downes v. Bidwell.80 This is really the most important judgment in all the Insular Cases so far as a determination of the present status of Porto Rico is concerned. It is interesting because in it the now famous doctrine of non-incorporation is developed. It will be well, however, to state at the outset that in this case there was no majority opinion of the court and that the decision was reached merely by the concurrence of a majority of the judges in what is styled in the syllabus of the case as the conclusion and judgment of the court.

In view of the great diversity of opinion evinced by the judges in this case, as will later appear, it was regarded at the time by very able lawyers and commentators of note as a very doubtful precedent which the court might not feel in the future bound to accept as the settled law of the land. So far, however, it has stood the test of time, and although the recent passage of the so-called Jones-Shafroth Act, extending to Porto Ricans a large measure of self-government and the privilege of American citizenship,81 seemed to reopen the question of the juridical status of Porto Rico and require the rejection or modification of the doctrines laid down or relied upon in this important decision, its conclusions have been affirmed and ratified and are largely * Continued from previous numbers of this JOURNAL, Vol. IX; pp. 883 et seq.; Vol. X, pp. 65, 312.

80 182 U. S. 244.

81 Public No. 368, 64th Cong. The text of this law will also be found in the Supplement to this JOURNAL, Vol. XI, pp. 66-93; see "Some Historical and Political Aspects of the Government of Porto Rico," in The Hispanic-American Historical Review, Vol. II, No. 4.

accepted at the present time as a correct expression of the national sense. It is at any rate the only authoritative declaration of the present status of Porto Rico so far made by any competent branch of the government.82 It is therefore important to examine this decision somewhat at length in order to ascertain and determine the present status of the Island and the particular doctrines upon which that status is supposed to be founded.

The ostensible purpose of the case under consideration was to test the constitutionality of the Foraker Act,83 and to recover back certain duties exacted and paid under protest upon merchandise brought into the port of New York from Porto Rico after the passage of that Act. The duties in question were exacted under Section 3 of the Act, which provided, "that on and after the passage of this Act all merchandise coming into the United States from Porto Rico and coming into Porto Rico from the United States shall be entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected and paid upon like articles of merchandise imported from foreign countries," 84 and the question briefly stated, was whether Article I, Section 8, of the Constitution of the United States, providing that "all duties, imposts and excises shall be uniform throughout the United States" was applicable to this case; that is to say, whether this particular provision of the Constitution must be considered as controlling the action of Congress when legislating on the subject for a territory situated as Porto Rico was.

This case differs from the other two already considered in that here the test is not, as there, whether Porto Rico was or was not a foreign country, either in the international or in the constitutional sense, but rather whether the Island had become an integral part of the United States, so as to be included within the purview of the con

82 The latest confirmation of this status is to be found in the People of Porto Rico et al. v. José Muratti, and the People of Porto Rico v. Tapia, recently decided per curiam by the Supreme Court on the authority of the case under consideration and other cases mentioned in the docket. (245 U. S. 639.) 83 U. S. Stat. at Large, Vol. 31, p. 77.

84 See "Some Historical and Political Aspects of the Government of Porto Rico," supra, note 81.

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stitutional provision aforementioned, and the question therefore involved, in substance, a determination of the juridical status of the Island from the point of view of constitutional law.

Internationally, there could hardly be any question that Porto Rico was, and is, by virtue of the treaty of cession, an integral part of the United States. Upon the formal exchange of the ratifications of that treaty Porto Rico ceased to be a Spanish province; it ceased to be Spanish territory subject to the Crown of Spain. In contemplation of law, the treaty of cession operated to sever all political connections between Porto Rico and the mother country; so that, in respect to Spain, Porto Rico became a foreign country, its Spanish nationality being entirely destroyed by the transfer. It is clear that the same act which divested the Island of its Spanish nationality gave to it, as a sort of international compensation, the nationality of the United States. That such result was equally contemplated by the high contracting parties is apparent in the treaty itself, where they repeatedly speak of the future "nationality of the territory" over which Spain relinquished or ceded her sovereignty.86 If this was not the result contemplated by them, what then was the nationality referred to in this expression? In the case of Cuba it might be assumed that the contracting parties contemplated Cuban nationality, because as to that island Spain was only relinquishing her claim of sovereignty over and title to the island.87 But as to Porto Rico, could it be said that the contracting parties had in mind a Porto Rican nationality? Evidently not, because the words of the treaty in respect to this Island leave no room for doubt as to the fact that an absolute transfer of sovereignty was intended. The words of the treaty are: "Spain cedes to the United States the Island of Porto Rico.''88 This provision, accord

86 See specially Article IX.

87 Article I of the Treaty of Paris contains the following provisions: "Spain relinquishes all claim of sovereignty over and title to Cuba. And as the Isiand is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property."

88 Article II of the Treaty of Paris is in full as follows: "Spain cedes to the United States the Island of Porto Rico and other Islands now under Spanish

ing to well established principles of international law, necessarily implies an absolute transfer of sovereignty over the ceded territory and a complete change in the nationality thereof in favor of the acquiring state. Thus in respect to Porto Rico, the nationality mentioned in the treaty can be no other than the nationality of the United States. The Supreme Court itself, in spite of the great division of opinion among its learned members upon other aspects of the whole question, has expressly and unanimously declared in Gonzales v. Williams,89 which is another of the Insular Cases, that by the act of cession the nationality of Porto Rico became American instead of Spanish. It follows therefore that Porto Rico must be internationally considered as incorporated into and forming an integral part of the United States.

But while there cannot be much doubt upon these simple propositions affecting the status of Porto Rico in an international way, it is a matter of much perplexity, in view of the great diversity of opinion expressed in the case under consideration, to determine the more complicated question of the present status of Porto Rico in the constitutional sense. It may be observed that in determining, as in this case, whether a specific provision of the Constitution is applicable to a given territory, it may not be absolutely necessary to fix the status of such territory in an affirmative manner; it may be enough, perhaps, to negative the existence of the particular status required by the provision in question.

Thus, the views of Mr. Justice Brown and Mr. Justice White, while conflicting as to the reasons upon which they base their conclusions, reach the same decision as to the inapplicability of the clause. Mr. Justice Brown makes his decision depend on the proposition that the clause in question is only applicable to the States as such; that Porto Rico is not a State, and that, in consequence, the said clause is not applicable to that Island. Mr. Justice White, and with him Mr. Justice Shiras and Mr. Justice McKenna, on the other hand, declares, that the said clause is applicable not only to the States, but also to a terri

sovereignty in the West Indies, and the Island of Guam in the Marianas of Ladrones." See in this connection this JOURNAL, Vol. IX, pp. 896-897; Vol. X, pp. 67-69, 72-74.

89 192 U. S. 1.

tory which has been incorporated into and forms a part of the United States; but they hold that Porto Rico has not been incorporated and therefore the clause in question has no application to it. Mr. Justice Gray, by a somewhat different line of reasoning, follows the conclusion of Mr. Justice White and his associates, while Mr. Chief Justice Fuller, Mr. Justice Harlan, Mr. Justice Brewer and Mr. Justice Peckham dissent upon the ground that the revenue clause in question was applicable throughout the United States, that Porto Rico was a part of the United States, and therefore, that the said clause was applicable to Porto Rico, at any rate after the passage of the Foraker Act. Mr. Justice Harlan expressly declared in a separate opinion that Porto Rico became, after the ratification of the treaty with Spain, a part of the United States in respect to all its territory and people, and that Congress could not thereafter impose any duty, impost or excise with respect to that Island or its inhabitants which departed. from the rule of uniformity established by the Constitution.

It is important to notice that in these Insular Cases, the Supreme Court was divided into two equal groups of judges, with Mr. Justice Brown holding the balance of power between them." In the case under consideration the court divided in opinion generally upon the status of Porto Rico and specially upon the applicability of the revenue clauses of the Constitution. In the first instance, Mr. Justice Brown reasserts his former position as to the status of the Island, in accord with the opinion of the group made up by his former assenting colleagues [Chief Justice Fuller and Justices Harlan, Brewer and Peckham]; seeking, however, to find a plausible and rational solution of the problem which is uppermost in his mind, he ventures to set up a new doctrine which finds no support among his brethren, but compels him to join in the conclusion of the other group, composed of Justices White, Shiras, McKenna and Gray.

The results sought to be avoided by Mr. Justice Brown and Mr. Justice White and his followers in this case were difficulties inherent in the problem connected with a legitimate application of the provisions of the Constitution in the management of the Philippine Islands. Mr. Chief Justice Fuller, Mr. Justice Harlan, Mr. Justice 90 See this JOURNAL, Vol. X, pp. 318, 321.

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