COLONIAL REPRESENTATION IN THE AMERICAN EMPIRE*

(WITH SPECIAL REFERENCE TO PORTO RICO)

BY PEDRO CAPÓ RODRÍGUEZ

Member of the Porto Rico Bar and the Bar of the Supreme Court of the United States.

Ordinarily we speak of an empire as a state governed by an emperor, as for instance, the two Napoleonic Empires in France. But in a broader and more modern sense, an empire is a powerful state which has wide and supreme dominion over extensive and outlying territories and countries inhabited by peoples usually of a different race, historical background and civilization. In this manner, we speak of an imperialistic nation when the policy of that nation, whatever its form of government, aims to create for itself a position of dominance and control over backward, weaker or helpless nations, territories or peoples.

The expression American Empire may be perhaps a trifle shocking. It was, however, used long ago by Chief Justice Marshall, and repeated by other eminent jurists, statesmen and writers both of this country and abroad. While no one will claim, I think, that the United States has ever deliberately or consciously pursued an imperialistic policy, yet there is indeed sufficient evidence in the history of this country to convince any one that we have very noticeable imperialistic tendencies among certain classes of our citizens. As a matter of fact, there is now at the present time, and there has always been in this country in the past, a powerful group of men who have at different times fostered and encouraged the notion of establishing an American Empire. Franklin, we are told by a careful American writer, had already planned in 1775 an American Empire. He says:

When it is recalled that it was Franklin who made the first draft of Articles of Confederation which was considered by Congress, it is not surprising to find that it contained provisions establishing an American Empire in which the American Confederation was to be the Imperial State. It was Franklin who made the original draft of the Plan of Union which, as has been already noticed, provided for the establishment of an American Empire much more completely and distinctly than it did for the

*This article is based, mainly, on a lecture delivered by the writer before the School of Diplomacy, Jurisprudence and Citizenship of the American University, Washington, D. C., May 23, 1921.

establishment of an American State. He was the foremost expansionist of his times.

1

That the doctrine of national expansion, which is perhaps a less aggressive and a more pleasing term than imperialism, has had very numerous and powerful partisans among the people of this country is shown by the fact that since the creation of the Union of the thirteen original colonies, the United States has developed steadily in amazing proportions to its original size, adding more and more territory, until today the American people can truly boast, as did Charles I of Spain, the richest monarch in the Christian world, nearly four centuries ago: "The sun in my dominions never sets.'

3

Originally the United States was merely a confederation of States. The Union of these States began among the colonies and grew out of a common origin of mutual sympathies, kindred principles, similar interests and geographical relations. This union was confirmed and strengthened by the necessities of war and received definite form and character and sanction from the Articles of Confederation." As originally established, the United States had no territory whatsoever. As is well known, the territory belonged to or was claimed by the individual States. Soon, however, after the confirmation by the treaty of 1783 with Great Britain of the claims of the original thirteen states to the territory stretching to the west as far as the Mississippi River, the so-called "Territory Northwest of the River Ohio" came under the control of the Continental Congress through the cessions made by New York in 1781, Virginia in 1784, Massachusetts in 1785 and Connecticut in 1786. Thus, when the present Constitution was adopted for the purpose of establishing "a more perfect Union," we find the United States already the possessor of that wonderful tract of territory so famous in the history of this country, consisting of the area west of Pennsylvania, north of the Ohio River and east of the Mississippi, which now constitutes the richest center of population and wealth in the United States. The "Territory Southwest of the River Ohio" was then acquired by the United States by virtue of the cessions made by South Carolina in 1787, North Carolina in 1790, and Georgia in 1802.5

1 A. H. Snow, The Administration of Dependencies, Chap. XIX, entitled "The American Empire Planned, 1776."

2 Texas v. White, 7 Wall. 700.

3 "The conclusion of the peace treaty with Great Britain in 1783 gave to the Americans an area bounded on the west by the Mississippi, on the south by Florida, and on the north by the Great Lakes and the ridge between the St. Lawrence and the Atlantic. Their neighbors were the Spanish on the south and the west and the English on the north." O. P. Austin, Steps in the Expansion of Our Territory, pp. 79-80.

4 Gannett, Boundaries of the United States, House Doc. No. 679, 58th Cong., 2nd Sess., pp. 30-35.

5 Ibid.

6

After that the territorial expanison of this country was enormous. In rapid succession the United States acquired the Province of Louisiana in 1803, the Floridas in 1819, Texas in 1845, Oregon in 1846, California and the other western territory acquired from Mexico in 1848 and 1853. In addition to these acquisitions of contiguous territory, the United States has acquired complete sovereignty over Alaska, Hawaii, the Philippine Islands, Porto Rico, the Virgin Islands and some other minor islands in the Pacific and elsewhere. The United States has also acquired the Panama Canal Zone, and exercises virtual protectorates over Cuba, Panama, San Domingo, Haiti and Nicaragua. We see, therefore, that while the United States was at first merely a Confederation of States, with no territory outside that belonging to the individual States, it is now a very powerful nation, developing rapidly into a magnificent empire; an empire which embraces within its jurisdiction, first, the States which compose the Union as the metropolitan nucleus, and second, the overseas possessions and dependencies and non-contiguous territories and protectorates as the subservient parts of that empire.'

When the present Constitution was adopted, its framers were intent on the creation of a union of States. Provision, therefore, was made in that instrument for representation in Congress by the States only. The territory which was already in the possession of the United States was mentioned only in the clause giving Congress the power to make rules and regulations for the management and disposition of the territory and other property belonging to the United States." In regard to colonial repre

sentation the Constitution is silent.

Previous to the war with Spain in 1898, it cannot be said that the United States had ever embarked upon the business of a colonizing empire. The memory of colonial days was still too fresh in the minds of the people to permit of any such delusions as an American Empire; and yet we find already before and during the War of Independence the notion that the United States ought to include at least all the English and French-speaking communities of North America, and for years afterwards the view was often expressed that no durable peace with England could exist so long as she retained possessions in the North American Continent. "And when by degrees," says Lord Bryce in his masterly work entitled The American Commonwealth, "that belief died away, the eyes of ambitious statesmen turned to the south." The slave-holding party tried to acquire Cuba and Porto Rico in the expectation of turning them into slave-holding States; and after the abolition of slavery, attempts were made by Seward in 1867 to acquire St. Thomas and St. John from Denmark. President Grant also

6 Gannett, op. cit.

7 "The Union is the Imperial State as respects the dependencies." Snow, op. cit. 8 U. S. Const., Art. I, secs. 1, 2 and 3.

9 Ibid., Art. IV, sec. 3, par. 2.

tried in 1869-73 to acquire San Domingo, which was an independent republic, but the Senate frustrated both these designs. Apart from these incidents, and the purchase of Alaska, the United States showed no desire to extend its territories from the Mexican War until the war with Spain in 1898.10 The annexation of the Hawaiian Islands took place in the same year.11

11

It is of the first importance to be observed here that the wonderful growth of the United States until that time had been upon the basis of territorial acquisition with a view to ultimate statehood. This had been so since the acceptance by the Continental Congress of the cession made by Virginia in 1784 of all her right, title and claim to the Northwestern Territory, "upon condition that the territory so ceded shall be laid out and formed into states . . . and that the states so formed shall be distinct republican states, and admitted members of the Federal Union, having the same rights as the other States." And in order that the United States might carry out and fulfill these undertakings, power was given to Congress in the present Constitution to admit new States to the Union." In the meantime the newly acquired territories were held under direct control of and right of disposition by Congress until they had become sufficiently populated and prepared to be admitted into the Union upon an equal footing with the other States. This practice had been strictly followed ever since the first acquisition of territory by the United States until the cessions made to this country by Spain as a result of the Spanish-American War in 1898. That war, as aptly remarked by Judge Elliott in his remarkable work on the Philippines, may be graphically described as the "coming out party" of the United States as a colonizing nation. It really marked a new epoch in the development of the American Empire, and indeed a new stage in the development of colonial government.

As is well known, the new acquisitions presented a new series of problems which called for very extraordinary solutions. Under the famous Northwest Ordinance of 1787, enacted in accordance with the conditions of the cession made by Virginia three years before, the principle was proclaimed by which American expansion was to be regulated.18 By that ordinance the wide expanse of territory ceded by Virginia to the Continental Congress was declared a national domain, a reserve tract out of which, as

10 W. F. Willoughby, Territories and dependencies of the United States: Austin,

op. cit.

11 Ibid.

12 Art. IV, sec. 3; see Watson on the Constitution, Vol. 2, p. 1245 et seq.

13 The authorship of this ordinance rightly belongs to Mr. Jefferson, and next to the Declaration of Independence (if indeed standing second to that), this document ranks first in historical importance of all those drawn by him. According to Mr. Willoughby, "Next to the Constitution itself, it is the most important organic act of the Federal Government." Willoughby, op. cit., p. 27 et seq.; see also Watson, op. cit., p. 1245 et seq.

the population increased, new States should be created, as already suggested, with rights in every way equal to those of the old ones. And even before such States should come into existence, the settlers in this region were to be granted the right of habeas corpus, of trial by jury and other essentials of Anglo-Saxon liberties. There was to be a local legislature or General Assembly composed of the governor, a legislative council and a house of representatives with authority to make laws in all cases for the good government of the district not repugnant to the provisions of the Ordinance. And as soon as a legislature should be formed in the territory, the council and house of representatives assembled had authority to elect, by joint ballot, a delegate to Congress, with a seat in Congress and a right of debating, but not of voting during this temporary territorial government.

Archibald Cary Coolidge, an American writer of note, has this to say:

The principle of the Northwest Ordinance was a new one in the history of democratic national expansion. Up to this time, colonies-unless, like the Greek ones, they separated themselves at the start-had been regarded as mere appendages or outposts of the mother country. They might have privileges and liberties of their own, but these privileges were personal; the territory did not form an equal part of the parent state, except in countries with an autocratic form of government, where all lands were at the disposal of the sovereign. Thus, though the emigrant to Eastern Siberia might feel that his position was exactly the same as that of his brother in Moscow, since both were subjects of a despotic ruler, the Englishman in the colonies was not the equal of the one at home, for he could vote for no member of parliament. No one of the English settlements had enjoyed complete self-government from the beginning; and the American Colonies had not contested the right of the mother country to legislate for them. They had merely resisted, as a violation of their inalienable rights as Englishmen, her attempt to impose taxes upon them without their consent; and this resistance had led to the war for independence. Now that they had triumphed and had possessions of their own about which they must legislate, they wisely determined to treat the new colonies as the equals of the old, and to impose upon them only such temporary restrictions as were necessary during the period of first development, when they were too weak to walk without guidance. Not only is the Northwest Ordinance thus of fundamental importance in the history of the United States, but it is a landmark in the story of government.1

14

This principle of the Northwest Ordinance that the government by Congress of the territory belonging to the United States was to be merely temporary until its admission to the Union as a State or States thereof, upon an equal footing with the other States, was successively extended to all other territories subsequently acquired by the United States. In carrying out this principle Congress had full power and authority to fix the time and conditions for the proper admission of the new States under the 14 The United States as a World Power, pp. 28, 29.