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Porto Rico and the Philippines, therefore, were not foreign territory. But were they domestic territory in the sense that they came within the commercial union? Congress, assuming that Porto Rico was foreign territory within the meaning of the revenue laws, had by the Foraker Act established a schedule of duties which should be paid on goods coming therefrom to the United States. In order to sustain this statute the court held that within the meaning of the revenue clauses of the Constitution requiring all duties, imposts and excises to be uniform throughout the United States, Porto Rico while not foreign territory was not for all purposes to be regarded as domestic territory. It was territory appurtenant to and belonging to the United States, and the Foraker Act was therefore constitutional.13 This conclusion was reached by various processes of reasoning and was much criticized by students of constitutional law and political science, and the general public. It was claimed that as four justices believed that the Constitution was extended by its own force to the new territory and four other justices believed that an Act of Congress was necessary so to extend it and the reasoning of the justice who wrote the prevailing opinion was not concurred in by any of his associates, no constitutional doctrine was declared by a majority of the court.14 But the reasoning by which a court reaches its conclusion is no part of a judicial decision. Many a correct decision is reached by an erroneous course of reasoning. So far as the binding effect of the decision is concerned it is from a legal point of view entirely immaterial that a majority of the members of the court were unable to agree on a single reason for the decision. The conclusion embodied in the judgment was that of the majority, and the decision itself was that of the court. The various conflicting reasons given for the insular decisions are therefore of interest only to students of the development of constitutional law.15

13 Downes v. Bidwell, 182 U. S. 244 (1901). 14 Latané, America as a World Power, Chap. VIII. 15 In O'Campo v. Cabiañis, 15 Phil. Rept. 625, the court said: “There can be but one decision by a court, and it must be the result of the concurrent judgment of a majority of the justices constituting that court. The legislature can not compel the minds of men. The law has no mandamus to the logical faculties.”

The questions involved in these cases were not determined by the court until the work of organizing the temporary government in the Philippines was well under way and until after the people at the presidential election of 1900 had placed the seal of their approval upon the policy which was being pursued by the administration. There was, therefore, some truth in the assertion that the constitutional questions connected with the acquisition of the Philippines were settled on commercial and political grounds before they came before the court, just as similar great questions of public policy have been and doubtless in the future will be settled.18 Congress was, therefore, left free to provide a government for the Philippines subject only to the restrictions of the Constitution which go to the very root of its power to act at all irrespective of time and place.17

In April, 1900, the president appointed the United States Philippine Commission, which was designed to supplement the work of the army and establish a civil government which should exist until Congress assumed charge. The members of the new commission were not so well known to the public as those of the Schurman Commission had been. The president, Mr. William H. Taft, of Ohio, had been solicitorgeneral of the United States and was well and favorably known to the legal profession as a United States circuit judge. Neither of the other members had more than a local reputation. They were, however, all men of high standing in the states from which they came. Mr. Luke L. Wright had been attorney-general of Tennessee, but had held no other public office. Mr. Henry C. Ide, of Vermont, was a lawyer and had served creditably as chief justice of Samoa during the period of the joint American, English and German protectorate. Mr. Dean C. Worcester was assistant professor of zoology at the University of Michigan and was the only member who had the advantage of any personal knowledge of the islands, having visited them on two previous occasions on scientific expeditions and recently as a member of the Schurman Commission. Mr. Bernard Moses was professor of history at the University of California and had written several books on Spanish-American history. All these men served their country and the Philippines faithfully and well. Mr. Taft became civil governor, secretary of war and president of the United States. Mr. Wright became the first governor-general of the Philippines, the first American ambassador to Japan, and secretary of war during the last days of President Roosevelt's administration. Mr. Ide became governor-general and minister to Spain. Mr. Worcester remained a member of the commission and secretary of the interior until 1913. Mr. Moses, after serving as commissioner and secretary of public instruction, resigned and returned to the University of California.

16 The impression made on many people was that expressed by Mr. Dooley:

“But there is one thing that I'm sure about." "What's that?" asked Mr. Hennessey.

“That is," said Mr. Dooley, "no matter whether th' Constitution follows the flag or not th' Supreme Court follows th' illiction returns." The wit justifies the irreverence.

17 De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United States, 195 U. S. 138; Rasmussen v. United States, 197 U. S. 516.

The Instructions which were prepared by Secretary Root for the guidance of this commission constitute a very noble state paper. The general principles therein announced were such as would naturally control in any government for which America, with her traditions, was responsible. They were prepared in the full light of modern colonial history and with ample knowledge of the most advanced theory and practise of colonial government. There was at that time little to be learned from the Dutch, French or German systems which could be made applicable in the Philippines. Obviously the German military and bureaucratic methods were inapplicable, being equally unadapted to the American or Filipino character. The French system of assimilation to the metropolitan country was equally impossible. The much advertised

work of the Dutch in Netherlands India did not stand the acid test of modern principles of conduct. Their reputation as governors of tropical countries rested on the fact that for a number of years by brute force and medieval methods they had “made a colony pay.” They stood "for no nonsense" about the rights of the natives.

The policy outlined in the Instructions embodied the principle which in recent years had controlled British colonial policy and the language of some of the paragraphs reads like a paraphrase of sections of Queen Victoria's proclamation when in 1858 Great Britain assumed the government of India.18 The government actually organized for the Philippines resembled somewhat that of a British Crown colony, with the principle of native representation which had been tried with indifferent success in some of the English tropical colonies, such as Jamaica and Mauritius. 19

The United States had determined to govern the Philippines on lines designed to lead to complete self-government and ultimately to independence, should the people of the territory when that time came so desire. In the meantime the problem was to take a community, which in some respects resembled India, in some Egypt, and in others Ceylon and Jamaica, and devise a government therefor which would secure the peace, order and justice of a British Crown colony, give the natives a practical part in the work of the government, as in India, and inculcate political, social and economic doctrines which, as in Egypt, were designed to train the people for the future control of their affairs. 20

The exploitation of the natives of tropical colonies for the benefit of foreigners was no longer in theory permitted by any colonizing power. The controlling principle, there

18 See supra, pp. 56, 57.

19 Parl. Blue Book, p. 9412, July, 1899. Reinsch, Colonial Government, p. 219; Bruce, The Broad Stone of Empire, I, Chap. VIII.

20 The original plan of government devised by Secretary Root did not include a bicameral legislative body such as was provided for by the Act of Congress of July 1, 1902. The Filipinos were represented on the commission by natives appointed by the president.

fore, must be that the new government should have for its primary object the well-being of the native people. It must be a government of service. Therefore the commission was solemnly enjoined to remember that the government which they were establishing was designed not for the satisfaction of the Americans nor for the expression of their theoretical views, but for the happiness and prosperity of the people of the Philippine Islands. The measures adopted must be made to conform to their customs, their habits, and even their prejudices, to the fullest extent consistent with the indispensable requisites of just and efficient government. This particular instruction, which has been faithfully observed to the present day, was the cause of considerable hard feeling on the part of members of the rough and ready American element which was obsessed with the idea that the conquerors should have first consideration.

The work of organization was to begin at the bottom by establishing village or municipal governments in which the natives should be given the opportunity to manage their own local affairs to the fullest extent of which they were capable and subject only to such supervision and control as might be necessary to maintain law, order and loyalty. Next in order should come the organization of governments in the larger administrative divisions, corresponding to counties, departments, or provinces, which should, as far as practicable, be composed of municipalities21 having natural geographical limits and inhabited by people speaking the same language.2 In distributing power among these local governments, the presumption was to be in favor of the smaller subdivisions. All power which could be exercised properly by these local governments should be conferred upon them, and only powers of a more general character should be granted to the provincial governments. The idea was to create a system in which the central government should have

21 A Philippine municipality is a territorial district in which there may be several villages.

22 It was upon this principle that the Spaniards had fixed the boundaries of the existing provinces, and few changes were found necessary.

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