No CrossRef data available.
Article contents
The Relations between the United States and Porto Rico*
Published online by Cambridge University Press: 04 May 2017
Extract
Dowries v. Bidwell. 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, 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 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. 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.
- Type
- Research Article
- Information
- Copyright
- Copyright © American Society of International Law 1919
Footnotes
*
Continued from previous numbers of this Journal, Vol. IX, pp. 883 et seq.; Vol. X, pp. 05, 312.
References
* Continued from previous numbers of this Journal, Vol. IX, pp. 883 et seq.; Vol. X, pp. 65, 312.
80 182 U. o. 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.
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.
85 This Journal, Vol. X, p. 317 et seq.
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 Island 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 sovereignty in the West Indies, and the Island of Guam in the Marianas of Ladrones.” See in this connection this Journal, Vol. IX, pp. 890–897; Vol. X, pp. 67–69, 72–74.
89 192 U. S. 1.
90 See this Journal, Vol. X, pp. 318, 321
91 Hawaii v. Mankichi, 190 U. S. 197; Dorr v. U. S., 195 U. S. 138; Rassmussen v. U. S., 197 U. S. 510; Kopel v. Bingham, 211 U. S., 468; Dowdell v. U. S., 221 U. S. 91; The People of Porto Rieo v. Rosaly, 227 U. S. 270; Ocampo v. U. S., 234 U. S. 91; and the recent cases decided per curiam: The People of Porto Rico et al. v. Carlos Tapia, 245 U. S. 639; and The People of Porto Rico et al. v. José Muratti, 245 U. S. 639.
92 182 U. S. 222.
93 182 U. S. 1.
94 This Journal, Vol. X, pp. 318 and 321.
95 Supra, p. 490.
96 Supra, note 90.
97 See a very illuminating article relating to this question, although upon a different subject, by George A. Malcolm in Am. Law. Rev., Vol. LI, No. 4, p. 543.
98 Organization refers to the government; incorporation to the status of the territory in question. A territory is said to be organized when Congress has legislated for it, establishing a formal civil government therein. See Re Lane, 135 U. S. 443. It is said to be incorporated when it has been allowed to become an integral part of the United States. See Mr. Justice White’s opinion, supra, p. 490. Thus a territory may be organized and yet not incorporated, or, conversely, it may be incorporated and yet not organized. That Porto Rico is a completely organized territory was justly asserted in Kopel v. Bingham, 211 U. S. 460; but see opinion of Mr. Justice Brown in Rassmussen v. U. S., 197 U. S., 531. See also The People of Porto Rico v. Manuel Rosaly y Castillo, 227 U. S. 270, where it was decided that the government created by the Organic Act has all the attributes of sovereignty as understood under the American system of government.
99 The People of Porto Rico ct al. v. Carlos Tapia, 245 U. S. 639, which was an appeal from the District Court of the United States- for the District of Porto Rico; and The People of Porto Rico et al. v. Jose Muratti, 245 U. S. 639, which came up in error to and on a writ of certiorari to the Supreme Court of Porto Rico.
100 192 U. S. 1.
101 26 Stat. 1084, c. 551.
102 “Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise as may be provided.” Boyd v. Thayer, 143 U. S. 162. By Article IX of the Treaty of Paris, the right to retain Spanish nationality was specifically reserved to the natives of Spain residing in the Island, when complying with certain conditions stipulated therein. As to the Porto Ricans, no such right was reserved to them, but their civil rights and political status was to be determined by Congress. See also, in this connection, Coudert, Certainty and Justice, pp. 136 et seq., and Dudley P. McGovney in Columbia Law Rev., Vol. XI, p. 231.
103 30 Stat. 151, 203, c. 11.
104 Frederic K. Coudert, op. cit., p. 148–149.
105 “American Citizenship,” by Dudley 0. McGovney, of Tulane University, in Columbia Law Rev., Vol. XI, p. 231.
106 See dissenting opinion of Mr. Justice White in Dooley v. United States, 182 U. S. 222.
107 A. J. Lien, Privileges and Immunities of Citizens of the United States, pp. 26–27.
108 Supra, note 81.
109 The same could be said as to the practice of other professions, such as that of medicine, pharmacy, etc.
110 Section 7 of the so-called Foraker Act, supra, specifically provided that Porto Ricans were entitled to the protection of the United States.
111 Nuevas Campañas, 207–213.
112 See, however, The People of Porto Rico v. Rosaly, supra.
113 Supra, p. 485–486.
114 Keily v. Lamar, 2 Cranch 357; The Dos Hermanos, 2 Wheat. 98.
There must be an actual, not pretended, change of domicil; in other words, the removal must be “a real one, animo manendi, and not merely ostensible.” Case v. Clarke, 5 Mason, 70. The intention and the act must concur in order to effect such a change of domicil as constitutes a change of citizenship. In Ennis v. Smith, 14 How. 400, 423, it was said, that “a removal which does not contemplate an absence from the former domicil for an indefinite and uncertain time is not a change of it,” and that while it was difficult to lay down any rule under which every instance of residence could be brought which may make a domicil of choice, “there must be, to constitute it, actual residence in the place, with the intention that it is to be a principal and permanent residence.” Morris v. Gilner, 129 U. S. 328.
114 In the case of Am. Ins. Co. v. Canter (1 Pet. 511), referring to the admission of the inhabitants of Florida to the enjoyment of the privileges, rights and immunities of citizens of the United States, Chief Justice Marshall said: “They do not, however, participate in political power; they do not share in the government, till Florida shall become a State.”
“The right of suffrage is a right which emanates from the State alone, irrespective of Federal interference.” Minor v. Happersett, 21 Wall. 162.
115 Porto Rico contributed more soldiers during the late war than the District of Columbia and all the Territories combined.
116 “Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns.” By Justice Grier, in Moore v. Illinois, 14 How. 19. See also Boyds v. Thayer, 143 U. S. 161.
117 2 Cranch 64, 120.
118 See Edwin M. Borchard, “Basic Elements of Diplomatic Protection of Citizens Abroad,” in this Journal, Vol. VII, pp. 497–520. See also in this connection a very interesting article by Alpheus Henry Snow in this Journal, Vol. VIII, pp. 191–212.
119 Gassies v. Ballon, 6 Pet. 761.
120 16 Wall. 79.
121 Fourteenth Amendment to the Constitution, Sec. 1.
122 For a comprehensive and yet brief study of the privileges and immunities of the citizens of the United States, see A. J. Lien, op. cit., supra, note 107.
123 “The right of suffrage is not one of the necessary privileges of citizens of a State or of the United States.” Minor v. Happersett, 21 Wall. 162.
124 Ex parte Yarbrough, 110 U. S. 651, 662.
125 Meore v. Illinois, 14 How. 10; Boyd v. Thayer, 143 U. S. 161.
126 “Congress may legislate for territories as a State does for its municipal organizations.” First National Bank v. Yankton County, 101 U. S. 129.
127 “Congress has as full legislative power over the territories as a State has over its municipal corporations.” Utter v. Franklin, 172 U. S. 416. Furthermore, “in legislating for the territories Congress exercises the combined powers of the General and State Governments. Am. Ins. Co. v. Canter, 1 Pet. 511.
128 Infra, p. 522–3. See also, in this connection, Am. Ins. Co. v. Canter, supra.
129 Supra, p. 488.
130 190 U. S. 197.
131 To the same effect are Dorr v. U. S., 195 U. S. 138, which is a Philippine case, and The People of Porto Rico et al. v. Tapia, and The People of Porto Rico v. Muratti, supra.
132 Rassmussen v. U. S., 197 U. S. 516.
133 Supra, p. 499.
134 See Murphy v. Ramsey, 114 U. S. 15, cited in Dowries v. Bidwell, supra.
135 Owing to the restrictive nature of this JOURNAL, we must leave for consideration elsewhere the Government of Porto Rico under Spain and the two Organic Acts so far enacted by Congress for the Island, as well as the Porto Rican problem which is now confronting the American people, and its possible solution in the near future. See “Some Historical and Political Aspects of the Government of Porto Rico,” in The Hispanic-American Historical Review, Vol. II, No. 4.