THE INSULAR CASES.

ANNUAL ADDRESS BY JOHN K. RICHARDS, SOLICITOR GENERAL of THE UNITED STATES, BEFORE THE OHIO STATE BAR ASSOCIATION AT PUT-IN-BAY, JULY 9, 1902.

Before taking up the subject of my paper, permit me, Mr. President, to express my grateful appreciation of the honor of being invited to address the State Bar Association of Ohio. The invitation came to me unsought and unexpected and appealed to me in a sense as a call to duty which I could not decline. Occupied though I was with exacting work, I could not forget I was born in an Ohio town, read law in an Ohio office, and owe whatever I have been and am to the teaching and example of members of the Ohio Bar and the Ohio bench.

I am to talk to you about the Insular Cases. The subject is not of my own selection. Others suggested it because I took part in the argument of the cases and presumably know something about them. Although the subject is an old story with me and to some extent has grown stale, I consented because the cases are neither unimportant nor uninteresting-indeed they may be said to mark an epoch in the constitutional development of the government-and because they are not understood as they ought to be, even by members of the legal profession. This is partly due to the division of the court as reported in the press and partly to the mass of comment and criticism which has served rather to confuse than to clarify.

The Insular Cases were all tariff cases.

With two excep

tions, they grew out of the collection of duties on goods either brought into the United States from Porto Rico or sent into Porto Rico from the United States. The DeLima, the Downes,

the first and second Dooley, the Armstrong and the Goetze cases were all in this sense Porto Rican cases. The exceptions were the Fourteen Diamond Rings and the Crossman cases. The first grew out of the seizure and forfeiture of fourteen diamond rings brought into the United States, without the payment of duty, by a soldier returning from the Philippines; and the second out of the collection of duties on goods brought into the United States from the Hawaiian Islands, during "the transition period," that is, after the adoption of the Resolution of Annexation and before the organization of a territorial government by Congress.

Two of the cases, the Goetze, a Porto Rican case, involving the question decided in the DeLima case, and the Crossman, the Hawaiian case, were disposed of on jurisdictional grounds, while the Armstrong case, a Porto Rican case, was covered by the decision in the first Dooley case. I shall not refer to these cases again.

cases.

There remain for consideration the DeLima, the Downes, the first and second Dooley and the Fourteen Diamond Rings All these were class cases, the decision in each settling many similar claims, so that the amounts really involved ran into the millions, but it was not because of this they were so important. Their supreme importance grew out of the fact that they involved the status under the constitution of the islands ceded us by Spain, and the power of the President and of Congress, under the Constitution and subject only to those limitations preservative of fundamental rights, to govern acquired territory as conditions might demand, pending its incorporation into the United States by action of Congress.

The cases arose as follows: After the glorious victories of Manila and Santiago had virtually ended the war with Spain, we occupied Porto Rico and a part of the Philippines in the

summer of 1898, and instituted in each of the islands a provisional military government, designed to protect life and property, preserve peace and order, and supply needed revenue, until the treaty of peace should determine the disposition of the conquered territory. Necessarily, each of these military governments put into operation, by order of the President, new customs laws framed to raise revenue and promote the interests of both the islands and the United States under the new conditions. These customs regulations, along with the military government which put them in operation, were continued in force after the Treaty of Paris was proclaimed on April 11, 1899, awaiting the action of Congress.

By the terms of this treaty, which, under the Constitution (Article sixth) became a part of "the supreme law of the land,” Spain ceded to the United States Porto Rico, Guam (Article second) and the Philippines (Article third). Spanish subjects, natives of the peninsula, residing in such territories, were given one year from the exchange of ratifications, that is, until April 11, 1900, to preserve their allegiance to Spain by making a declaration in a court of record. In default of this, they were to be held to have renounced it, and to have adopted, not the nationality of the acquiring power, but "the nationality of the territory in which they may reside" (Article ninth). Then came this striking provision:

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress."

Spaniards residing in the territories were to be "subject to the jurisdiction of the courts of the country"-not the courts of the United States—“pursuant to the ordinary laws governing the same"-presumably the Spanish or Civil law, and were to have the right to appear and pursue the same course therein "as

citizens of the country to which the courts belong"-not as citizens of the United States.

For ten years Spanish ships and merchandise were to be admitted to the ports of the Philippines on the same terms as ships and merchandise of the United States (Article fourth), and for ten years Spanish scientific, literary and artistic works were to be admitted free of duty to all the ceded territories (Article thirteen).

The purpose of these provisions was plain. Although under the power and protection of the United States, the territories were taken sub modo; and, until Congress should determine to incorporate them within the United States, were to have their own citizenship, their own laws, their own courts, their own commerce, their own customs, their own system of revenue. A separate and distinct existence for a time, under but without the United States, was contemplated. The parties to the treaty both knew that the location and condition of the islands and their inhabitants, would not permit their immediate incorporation into the United States and the application to them of those laws of commerce, of customs, of citizenship and of civil and criminal procedure, which the Constitution requires to be uniform throughout the United States.

Accordingly, the President, in enforcing the customs and internal revenue laws of the United States, treated Porto Rico and the Philippines as "foreign country," within the meaning of our tariff law, pending the action of Congress. Duties were collected in the ports of the United States, under the Dingley law, on goods coming from the islands. Duties were collected in the islands on goods coming from the United States under the tariff put in force there by the military governments.

The Foraker act, which took effect May 1, 1900, put an end to this condition for Porto Rico. Thereafter, until Porto Rico

could provide a revenue of its own-which happily it now does— fifteen per cent of the duties levied by the Dingley law were to be collected on goods coming into the United States from Porto Rico or coming into Porto Rico from the United States, to be applied for the benefit of rorto Rico.

The situation then in brief was this: From the time we occupied Porto Rico in the summer of 1898, until the Foraker act took effect May 1, 1900, duties were collected in the United States on goods coming from Porto Rico, under the Dingley law, the island being regarded as a foreign country within the meaning of the language of that act. After that time, fifteen per cent of the duties of the Dingley tariff were collected on such goods under the Foraker act. The duties collected under the Dingley law went into the general revenue; those under the Foraker act were applied for the benefit of Porto Rico. During the first period, duties were collected in Porto Rico on goods coming from the United States under the so-called military tariff; during the second period, duties on such goods were collected under the Foraker act.

It will be observed, that duties were collected here under the Dingley law on Porto Rican goods both before and after the ratification of the treaty of Paris; and the same thing is true of duties collected in Porto Rico under the military tariff on goods coming from the United States; they were exacted both before and after the ratification of the treaty.

In the Philippines, duties are still being collected on goods coming from the United States under the tariff established by order of the President; and duties under the Dingley law were collected on goods coming into the United States from the Philippines, until the decision in the Fourteen Diamond Rings case was announced last December.