"are different from, if not in conflict with those expressed "in that opinion, if its meaning is by me not misconceived, "it becomes my duty to state the convictions which control "me." And Justice Gray says: "Concurring in the judg"ment of affirmance in this case, and in substance agreeing "with the opinion of Mr. Justice White, I will sum up the "reasons for my concurrence in a few propositions, which may also indicate my position in other cases now standing "for judgment."

The several opinions plainly expose the reasons for these cautionary statements. Justice Brown bases the judgment on the proposition that the Constitution cannot be effective in territory within our sovereignty, but beyond the States, without some action by Congress; but this is emphatically denied by Justice White and his associates, and also by the four judges who dissent from the judgment. Justice White and his associates base the judgment on the proposition that the territory acquired from Spain will not become domestic until it shall be definitely "incorporated" through the consent of Congress; but this is denied by Justice Brown, and also by the four judges who dissent from the judgment. Could Justice Brown be convinced that the Constitution is effective beyond the States, he would not hesitate, it seems, to apply its provisions to Porto Rico as a part of our domestic territory. Could Justice White and his associates be convinced that Porto Rico is domestic territory, they would not hesitate, it seems, to apply the Constitution to the full extent. To complete the disparagement of Downes v. Bidwell, a scrutiny of all the opinions in the Insular Cases shows that each of the two propositions separately advanced to sustain the judg ment is actually condemned by a majority of the judges.

Justice McKenna thus admonishes his brethren of the majority in the De Lima case: "If other departments of the Government must look to the judicial for light, that light should burn steadily. It should not, like the exhalations of a marsh, shine to mislead." This reproach cannot be turned against the opinions approving the judgment in the Downes case. These do not "shine to mislead"; they emit no guiding light. When we have read them, we know that

1182 U. S., 205.

this particular taxpayer has lost his suit; we do not receive a principle of the law of taxation.

its favor.

The judgment in Downes v. Bidwell binds the plaintiff. It may be accepted by Congress as a left-handed endorsement of a temporary fiscal policy. More cannot be said in Because it establishes no principle of law, it does not encourage Congress to duplicate for the Philippines the customs régime instituted temporarily for Porto Rico. For this reason it has not the usual effect of a judgment for the Government in a "test case "-it does not forbid other persons to press similar claims. Whether Porto Rico is a part of the United States within the meaning of the constitutional provision in regard to uniformity of customs duties is still a debatable question; and if it shall be presented to the Court again there will be no opinion of the Court to be followed, or reversed, or explained. There will be several opinions of the judges to be examined. The opinion of the Chief Justice, and of Justices Harlan, Brewer and Peckham, will certainly be entitled to equal consideration with the others. It deserves the approbation of the Court.

II.

Having considered these particular judgments of the Court in the Insular Cases, let us examine the several opinions for information concerning the power of the United States to enlarge their dominions, the relation of acquired territory to the republic and the relation of the Constitution to acquired territory.

All the judges affirm the power of the United States to acquire territory: All agree that Porto Rico was duly acquired: Then unity disappears.

The judgment in the De Lima case was approved by a bare majority of the judges, but it carries the opinion of the Court because each judge concurred in the essential and sufficient proposition that territory in the condition of Porto Rico is not 'foreign' within the meaning of our Tariff Act. By parity of reasoning it appears that it is

not "foreign" within the meaning of other important statutes, notably the immigration laws.

A narrow view of the De Lima case might disclose merely a declaration of a rule of statutory construction, but viewing it broadly, and reading with it the opinion of the same judges in the Dooley case we understand that the Court announces a very important rule of public law. The Court says in the Dooley case, that upon "the conclusion of the Treaty of Peace and the cession of the island to the United States * * * Porto Rico ceased to be a foreign country and the right to collect duties on imports from that island ceased. We think the correlative right to exact duties on imports from New York to Porto Rico also ceased." Here is no rule of statutory construction, but a statement of the principle, already suggested in the De Lima case, that land occupied in virtue of a treaty of cession is no longer foreign; and if not foreign, then domestic for as the Court says in the De Lima case: "No act [of Congress] is necessary to make it domestic territory, if once it has been ceded to the United States."2

The Administration, though signally defeated in its contention that after the ratification of the Treaty of Paris Porto Rico remained foreign territory for purposes of taxation, still persists in taxing commerce between the Philippines and our mainland. The excuse for this course is that the Supreme Court has not yet decided the Pepke case, one of the first of the Insular Cases to be argued, and involving the right to collect duties on merchandise brought here from Manila. The motive for this course is not, I am sure, the "protection" of our industries against Philippine competition. Nor is it merely the continued enjoyment of a particular kind of insular revenue. Recalling that the Administration has assumed to be the sufficient government of the Philippines, and has appointed agents at pleasure with powers of its own devising, it would seem that the Administration continues its tariff policy in order to justify to itself the hope that the Court will sustain this policy in 1182 U. S., 234.

2 182 U. S., 198.

the Pepke case upon grounds sufficiently broad to confirm its fundamental position that the Philippines are a province where the executive department rightfully makes, expounds and executes the laws unchecked, save by the limitations imposed by Congress1 on grants of franchises, and on sales and leases of public lands and mining and timber rights.

Upon what principle of law can the Philippines be thus radically distinguished from Porto Rico? Our rights to possess each country were secured by one treaty and in substantially similar terms; but let it be admitted that, in point of public law, these may be in themselves naked rights, to be perfected by some act of possession before the new status of the territory shall be fixed. If, then, the Philippines shall be adjudged foreign, while Porto Rico is domestic territory their differentiation must be based upon the assumption that the United States have not there perfected their treaty right. And, if they have not, their failure is not attributable to lack of will, nor to any opposition from Spain; it must be attributed to the armed resistance of islanders. This position seems to be maintained by the Administration in a communication from Secretary Root to Governor Taft in the Philippines where we read: "the most obvious distinction between the status of Porto Rico and the Philippines, after the cession, indicated in the opinions of the Court, is in the fact that Porto Rico was at the time of the cession in full peaceable possession, while a state of war has continued in the Philippines. As the question of the President's power to impose duties in the Philippine Islands under existing conditions of military occupation has not been decided by the Court, the President has determined to continue to impose duties as heretofore."2

The asserted distinction between Porto Rico and the Philippines has been pressed since, and because of the decision in the De Lima case. The Pepke case, which it is hoped will establish the distinction, was argued for the Government in connection with one of the Porto Rico cases, and 131 U. S. Statutes at Large, p. 910.

2 Cited in a letter of Henry L. Nelson, Esq., in N. Y. Evening Post, August 20, 1901.

the argument proceeded on the theory that each country was equally, and for substantially the same reasons "foreign" to the United States.

In one respect the Administration would doubtless be gratified by an adjudication that the Philippines are not in our possession in the legal sense. All critics who condemn its policy in the archipelago on constitutional grounds would be disarmed. Even the returning of escaped slaves to their masters, which we are told has been done when ownership was clearly proved,1 might not offend against the Thirteenth Amendment; for are the islands even within the "jurisdiction" of the United States, if not in their possession? And if not within their jurisdiction in this, then not in any constitutional sense, and the President in the Philippines is simply the commander-in-chief of our forces abroad.

While a decision that the Philippines are not in our possession might legitimate a temporary policy, it would remove the only theory which gives any moral support to our subjugation of the islands-that since the ratification of the treaty we have been maintaining our sovereign rights against the attacks of insurgents. Are Filipinos "insurgents" if the islands have never been in our possession? Can the definition of rebellion be stretched to cover resistance to a sovereign who has never, by gaining possession, established that visible government in a country which rightfully demands the obedience of its inhabitants? Yet, if the Filipinos in arms were not in insurrection they must have been an independent people, and the charge must be true that in point of law Spain went through the form of ceding rights in the Philippines already irretrievably lost, and that we gained simply her permission to wrangle for possession with the inhabitants. Whilst I have always been opposed to the acquisition of the Philippines, I have ever believed that the United States, being present effectively in the Philippines at the ratification of the Treaty of Paris, did acquire immediately legal possession of the entire archipelago. To maintain this possession in a broad sense it is

1 See extract from the appendix to Gen. McArthur's late report, printed in N. Y. Evening Post, August 16, 1901.