296 BURR— THE TREATY-MAKING POWER [April 20, 



a whole, the difference is seen to be verbal rather than substantial. 

 Indeed, Mr. Justice McKenna and those who concurred with him, 

 might, without departure from the principles enunciated by him, 

 have agreed in the reversal in DeLima z's. Bidwell, basing their 

 action on the fact that the status of Porto Rico was not that of 

 foreign territory within the meaning of the existing tariff act. An 

 analysis shows that the decisions in Fleming vs. Page '"'' and in 

 Cross Z'S. Harriso.n "*' were the influential determining cases. ^Ir. 

 Justice Brown concludes his prevailing opinion in Downes z'S. Bid- 

 well with this paragraph : 



" Patriotic and intelligent men may differ as to the desirableness of this 

 or that acquisition, l)Ut this is solely a political question. We can only con- 

 sider this aspect of the case so far as to say that no construction of the Con- 

 stitution should be adopted which would prevent Congress from considering 

 each case upon its merits, unless the language of the instrument imperatively 

 demands it. A false step at this time might be fatal to the development of 

 what Chief-Justice Marshall called the American Empire. Choice in some 

 cases, the natural gravitation of small bodies toward large ones in others, 

 the result of a successful war in still others, may bring about conditions 

 which would render the annexation of distant possessions desirable. If those 

 possessions are inhabited by alien races, differing from us in religion, cus- 

 toms, laws, methods of taxation and modes of thought, the administration 

 of government and justice, according to Anglo-Saxon principles may for a 

 time be impossible; and the question at once arises whether large concessions 

 ought not to be made, that, ultimately, our own theories may be carried out, 

 and the blessings of a free government under the Constitution extended to 

 them. We decline to hold that there is any thing in the Constitution to for- 

 bid such action."" 



Nothing could illustrate better than the above quotation the essen- 

 tially political and economic nature of the problems presented. 

 Reading the lengthy opinions in these cases (the reports of which 

 cover 391 pages), one appreciates the broad character of the out- 

 look of the Justices who decided them. But it is as statesmen 

 truly learned in the law that they write, handling with high sin- 

 cerity and high seriousness the history of constitutional law to illus- 

 trate, support, and make to prevail, their political and economic 

 convictions. It could not be, should not be, otherwise. But the fact 



°'9 How., 603 (1850). 

 *'i6 How., 164 (1853). 

 " 182 U. S., pp. 286^7. 



