CORNELL uNrvERsrry 
 
 LIBRARY 
 
 XTHACA^N.Y. 14853 
 
 ■ ^ f ^"P'rv M 
 
 
 John M. Ed IjConertion 
 
 on Southeast i^sia 
 KROCH IJBRARY 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924073466546 
 

 IliS ilit ""IVERSITV LIBBARY 
 
 3 1924 073 466 546 
 
 NOTES ON THE 
 LAW OF TERRITORIAL EXPANSION 
 
 WITH ESPECIAL REFERENCE TO 
 THE PHILIPPINES 
 
 SUBMITTED TO 
 
 < 
 
 THE COMMITTEE ON THE JUDICIARY 
 
 OF THE 
 
 SENATE OF THE UNITED STATES, 
 
 MARCH 16, 1900 
 
 BY 
 
 CARMAN F. RANDOLPH 
 
 OF THE NEW YORK BAR 
 
A5W 
 
 ^f\lo CONTENTS 
 
 THE STATUS OF THE PHILIPPINES: >-*« 
 
 The Transfer of the Spanish Title 3 
 
 The Effect of Cession 5 
 
 THE CONSTITUTION AND THE PHILIPPINES: 
 Arguments Against the Rule of the Constitution 
 Examined 7 
 
 Some Important Questions Affected by the Exten- 
 sion OF the Constitution 15 
 
 Slavery. 
 
 Citizenship and Civil Eights . 
 The Tariff. 
 Alleged Impossibility of Constitutional Government. 26 
 Value of the Constitution in New Territory ... 29 
 Effect of Denying the Constitution to the Philip- 
 pines 31 
 
 The Constitution and a Colonial Policy 33 
 
 THE GOVERNING OF THE PHILIPPINES: 
 
 Effect of Annexation upon the Old Order • ... 35 
 
 The Powers of the President 37 
 
 The Powers of Congress 43 
 
 THE DISPOSITION OF THE PHILIPPINES: 
 
 The Right of Disposition 47 
 
 The Protectorate 48 
 
NOTES ON THE LAW OF TERRITORIAL 
 EXPANSION, WITH ESPECIAL REFERENCE 
 TO THE PHILIPPINES. 
 
 Before the Treaty of Paris became effective, the disposition of the 
 Philippines was an open question. Then the islands were foreign 
 territory. The United States controlled their disposition, but stood 
 in the broad ways of war and diplomacy uncommitted and uncom- 
 pelled to a particular course. Now the islands are part of the 
 United States, and our relation to them is defined by the law of the 
 Constitution, complemented by treaty provisions and principles of 
 public law conformable to its supreme authority. This statement is 
 challenged, and the foremost challenger is the Administration, which 
 would hold the islands in firm possession, yet aloof from the United 
 States and beyond the segis of the Constitution. 
 
 THE STATUS OF THE PHILIPPINES. 
 
 THE TRANSFER OF THE SPANISH TITLE. 
 
 According to the principles recognized by civilized nations as de- 
 termining national title to land, Spain possessed the Philippines in 
 exclusive sovereignty. That she had not reclaimed all parts of the 
 archipelago nor bent all its savage tribes to her will, no more affected 
 her title than did like shortcomings affect our right to the Far West 
 in the early days. Nor was her title divested by insurrection, for 
 the principles of public law affirm the right of a state to territory 
 as against insurgents who do not maintain a recognized government. 
 Besides, the insurrection must be viewed in connection with our cam- 
 paign. Our hostile preparations revived it, our fleet brought back 
 its leader, our aid made it so formidable that, when Manila fell, 
 Spain was mistress only of the few towns in which her troops were 
 huddled. Finally, the United States have put all question of Spain's 
 title beyond discussion. They have determined its sufficiency by 
 accepting the islands from her hands. 
 Being thus entitled to the Philippines Spain had the legal right to 
 
 3 
 
cede them. The United States had the legal right to accept them. 
 The Treaty of Paris expressed the lawful intentions of the signatory 
 powers and brought the islands under the sovereignty of the United 
 States. And it must be insisted that our title to all the land acquired 
 as a result of the war with Spain is derived from Spain exclusively. 
 The President says in his message: "The authorities of the Sulu 
 Islands have accepted the succession of the United States to the 
 rights of Spain, and our flag floats over that territory." i This state- 
 ment may convey the wrong impression that our interest in the Sulus 
 differs in derivation and quality from our interest in the rest of the 
 Philippines — in derivation, because it is strengthened by the consent 
 of the Sultan ; in quality, because the statement may imply, what 
 has indeed been asserted, that " the rights of Spain " in the Sulus 
 were those of a protector rather than a sovereign proprietor. The 
 article of cession in the Treaty of Paris was submitted by the 
 American Commission in what proved to be its accepted form, and 
 its precise delimitation of the " Philippine Archipelago " embraced 
 the unmentioned Sulu group. The assertion of the Spanish Commis- 
 sioners that the "Philippines" did not include the Sulus and the 
 great island of Mindanao was a play for better terms. They said in 
 effect : "You are willing to pay $20,000,000 for the ' Philippines.' Here 
 are the ' Philippines ; ' if you want Mindanao and the Sulus as well you 
 must pay more." The American Commissioners replied in effect : 
 " The ' Philippines ' we demand, and which you will cede without 
 change in terms, include Mindanao and the Sulus." Of course the vic- 
 tors proved to be better geographers than the vanquished. Throughout 
 the negotiations Spain's ability to transfer the complete sovereignty of 
 all the land demanded by the United States was never questioned, and, 
 whatever may have been her actual relation to this or that island, she 
 assumed to cede and the United States accepted sovereignty over all. 
 We cannot afford to esteem that sovereignty as less than perfect and 
 all-embracing. We cannot go behind the Treaty of Paris for confirm- 
 ation of our title to any part of the Philippines. As we have not 
 sought " the consent of the governed " from the people of Luzon, we 
 cannot even appear to recognize its necessity in dealing with slave- 
 holding and polygamous barbarians who are only restrained from 
 piracy by gunboats and blackmail. 
 
 This brief certificate of title sufficiently demonstrates our legal 
 right to possess the Philippines, and with legal rights only are we at 
 present concerned. 
 
 4 
 
THE EFFECT OF CESSION. 
 
 Despite our acquisition of the Philippines there is a disposition to 
 balk at its real effect. The islands are called a " colony," a "depend- 
 ency," a " province " or other name suggestive of detachment from 
 the United States, but it will appear that by virtue of the character 
 of our occupation they are United States territory. 
 
 The United States may happen to control land actually or con- 
 structively without making it domestic territory. An occupation of 
 new-found or abandoned or hostile territory involves a certain assump- 
 tion of sovereignty in respect of the land itself, and also in an inter- 
 national sense, for among the nations the state in visible control of 
 a country is accounted its sovereign for important purposes.^ Land 
 occupied through enterprise or conquest does not thereby become 
 United States territory in a domestic sense, even though the act be 
 prompted or approved by the President. The President cannot en- 
 large the boundaries of the Republic.^ These boundaries mark the 
 territorial jurisdiction of Congress, and Congress cannot be forced to 
 extend its jurisdiction at the pleasure of the President. Land is an- 
 nexed to the United States when and only when its occupation has been 
 authorized or confirmed by some act of legislation, a statute or 
 treaty, asserting territorial sovereignty. Such an act is the Treaty of 
 Paris by which " Spain cedes to the United States the archipelago 
 known as the PhOippine. Islands," and "cedes" her "sovereignty" 
 thereof. If the assent of the House of Representatives is necessary to 
 a perfect acceptance it is given by the appropriation of $20,000,000 
 to carry out the Treaty. 
 
 At this point we meet the suggestion that, if the treaty-making body 
 has full power to determine the status of ceded territory, the omission 
 from the Treaty of Paris of a specific designation of the Philippines 
 as United States territory differentiates them from land heretofore ac- 
 quired by a treaty or an act of Congress recognizing it in more or less 
 definite phrase as incorporated in the United States. I think this sug- 
 gestion is rebuked by the Treaty itself The Ninth Article declares that 
 the Spanish-born residents of the ceded islands who shall not elect to 
 retain their old allegiance within a given time shall be deemed to have 
 adopted " the nationality of the territory in which they may reside." 
 Must not " the nationality " of Philippine territory be that of the 
 United States since we do not recognize the existence of a Philippine 
 
 1 Thirty Hogsheads of Sugar, v. U. S., 9 Cranch, 191, 195; Fleming v. Page, 9 
 Howard, 603, 615. 
 
 2 See Fleming v. Page, 9 Howard, 603, 614. 
 
 5 
 
nation ? And what is land impressed with United States nationaUty 
 but United States territory ? But apart from this Article the suggestion 
 is discredited by a conclusive presumption of law. The treaty-making 
 body has, without doubt, a large discretion as to the interest it may 
 acquire in land on behalf of the Republic, or the relation it may 
 cause the Republic to assume toward another country. For ex- 
 ample, our rights over Pearl River, in Hawaii, and Pago Pago, in 
 Samoa, were not the rights of unlimited sovereignty; and by this 
 very Treaty of Paris we assume a peculiar relation toward Cuba 
 wholly distinguishable from sovereign proprietorship. Assuredly we 
 may gain an interest in a country or assume a certain control over it 
 without making it United States territory. But when land is brought 
 within the complete and exclusive sovereignty of the Republic I find 
 no argument of inconvenience strong enough to overcome the pre- 
 sumption that it is United States territory by force of the supreme ten- 
 ure by which it is held. 
 
 The Philippines are not only within the United States in a general 
 sense; they are not distinguished organically from the rest of our 
 territory. Prior to the Treaty of Paris the common property of the 
 States of the Union, called the territory of the United States, com- 
 prised New Mexico, Arizona, Oklahoma, Indian Territory, Alaska, 
 Hawaii, and a number of islets. To these are now added the Philip- 
 pines, Porto Rico and Guam. These districts present different 
 characteristics. All are not governed in the same way. Some will 
 become States or parts of States. Others will not. Some, indeed, 
 have been acquired under what has been called a promise of ultimate 
 statehood,! 5^ these are not distinguishable in law from the others, 
 for the admission of new States is an act of policy within the un- 
 limited discretion of Congress. Hawaii, annexed without promise, 
 may enter the Union before Indian Territory, carved out of that 
 Louisiana purchase in regard to which the so-called promise was 
 made nearly a century ago. All are held by the United States in 
 sovereign proprietorship, and although we unite now in protesting the 
 everlasting unfitness of the Philippines for admission to the Union, 
 our prejudice does not prevent their being, in point of law, as eligible 
 as New Mexico, nor would their admission by the next generation 
 involve a more radical and surprising reversal of prejudice than the 
 admission of millions of negroes to political equality by the last gen- 
 eration. All the districts I have named are organically alike, because 
 1 See New Orleans v. De Armas, 9 Peters, 224, 235. 
 6 
 
each is owned by the United States in sovereign proprietorship, and 
 when this likeness is determined all differences in condition, location 
 and probable destiny must be purely circumstantial. 
 
 THE CONSTITUTION AND THE PHILIPPINES. 
 
 An anxiety to rule the Philippines free from constitutional restric- 
 tions is even more marked than the unwillingness to consider them 
 United States territory. Indeed this unwillingness is due to the 
 apprehension that throughout all this territory the Constitution must 
 be the supreme law. And so keen is the fear that we shall be obliged 
 to administer the Philippines by constitutional rules that ingenious 
 arguments are advanced to prove that the Constitution is really quite 
 as foreign to these islands, unquestionably ours, as though they be- 
 longed to another nation. 
 
 Furthermore, the gravity of the issues at stake has created an im- 
 pression that the question of the Philippines is not properly a ques- 
 tion of law, but lies within that domain of policy into which the 
 Supreme Court will not intrude ; or, as some having greater respect 
 for the powers than for the integrity of the Court say, its judgment 
 will reflect what they assume is the popular desire to exploit the 
 islands with a free hand. The Philippine question is political, and 
 until it be adjudicated the Administration will probably persist in mis- 
 construing the Constitution to suit its policy. But whenever a person 
 having access to the federal courts alleges that one of his constitu- 
 tional rights is invaded, what may have been a political question 
 becomes an issue in a suit at law — the suitor must pay a tax, or he 
 need not ; his property has, or has not been wrongfully taken. The 
 decision may displease a faction ; it may thwart a novel policy, or 
 even forbid a practice of long standing ; yet the court will see only 
 the parties to the suit, and judge the cause according to the law of 
 the Constitution. 
 
 ARGUMENTS AGAINST CONSTITUTIONAL RULE EXAMINED. 
 
 It is contended that the Constitution is not in the Philippines be- 
 cause it has not been carried there by an act of Congress. This argu- 
 ment attributes unlawfiil powers to the federal legislature. Congress 
 is the creature of the Constitution, not its master ; bound to obey it 
 wherever it is supreme, not privileged to decide where, within the 
 
 7 
 
jurisdiction of the United States, it shall be supreme. Probably the 
 argument is suggested by an improper estimate of legislative practice. 
 Certain acts of Congress organizing territories purport to extend the 
 Constitution to the new district. The Supreme Court has recognized 
 such legislation, but has never treated it as carrying the Constitution 
 to a new field. In fact, the Court in a recent case practically ignored 
 an act of Congress purporting to establish the right to trial by jury 
 in Utah Territory, declaring that the right was established by the 
 Constitution, i The acts in question are not of constitutional dignity : 
 If the Constitution is in the territory by its own force they affirm an 
 actual condition in a spirit of abundant caution ; if it is not, they are 
 merely repealable laws couched in the phrase of the Constitution, and 
 an act of Congress dispensing with trial by jury, for example, would 
 abrogate the privilege granted by the so-called extension of the Con- 
 stitution. Of all the heresies that embarrass the fair discussion of the 
 Philippine question few are more mischievous than the notion that 
 Congress is competent to grant and, if to grant, to take away or with- 
 hold the Constitution at pleasure. 
 
 It is suggested that the Constitution will not affect the Philip- 
 pines until Congress shall establish civil government there. Mr. Web- 
 ster expressed perhaps somewhat the same idea when he said in 
 the Senate on February 24, 1849, " ^ d° "o*^ ^^7 ^^^^ while we sit 
 here to make laws for these territories, we are not bound by every one 
 of the great principles which are intended as general securities for 
 public liberty. But they do not exist in territories till introduced by 
 the authority of Congress." 2 Even Webster's name cannot sustain 
 the proposition that constitutional guarantees demand respect only 
 when the establishment of civil order under the auspices of Congress 
 renders them less likely to be needed. A monstrous doctrine indeed 
 that the President may rule United States territory during the inaction 
 of Congress free from the restraints which, it is conceded, affect both 
 himself and Congress after the territory shall have been duly or- 
 ganized ! Even a King of England cannot do so much, for as Lord 
 Mansfield said : " If the King (and when I say the King, I always 
 mean the King without the concurrence of Parliament) has a power 
 to alter the old and introduce new laws in a conquered country, this 
 legislation being subordinate, that is, subordinate to his own authority 
 in Parliament, he cannot make any new change contrary to funda- 
 mental principles." ^ 
 
 1 Thompson v. Utah, 170 U. S., 343, 346. 2 Curtis's " Life of Webster," ii., 366. 
 5 Campbell v. Hall, Cowper 204, 209. 
 
 8 
 
The annual report of the Secretary of War for 1899 contains the 
 following passage : " The Treaty of Paris provides : ' The civil rights 
 and political status of the native inhabitants of the territories hereby 
 ceded to the United States shall be determined by the Congress.' I 
 assume, for I do not think that it can be successfully disputed, that 
 all acquisition of territory under this treaty was the exercise of a 
 power which belonged to the United States, because it was a nation, 
 and for that reason was endowed with the powers essential to national 
 life, and that the United States has all the powers in respect of the 
 territory which it has thus acquired, and the inhabitants of that terri- 
 tory, which any nation in the world has in respect of territory which 
 it has acquired ; that as between the people of the ceded islands and 
 the United States the former are subject to the complete sovereignty 
 of the latter, controlled by no legal limitations except those which 
 may be found in the treaty of cession ; that the people of the islands 
 have no right to have them treated as States, or to have them treated 
 as the territories previously held by the United States have been 
 treated, or to assert a legal right under the provisions of the Constitu- 
 tion which was established for the people of the United States them- 
 selves and to meet the conditions existing upon this continent, or to 
 assert against the United States any legal right whatever not found 
 in the treaty." ^ If I read this passage aright, it suggests two argu- 
 ments against the rule of the Constitution. One is predicated on a 
 provision of the Treaty of Paris, which will be considered presently : 
 The other is suggested by the words : " The people of the islands have 
 no right to have them treated as the territories previously held by the 
 United States have been treated, or to assert a legal right under the pro- 
 visions of the Constitution, which was established for the people of the 
 United States themselves, and to meet the conditions existing upon this 
 continent" and we read later that the Puerto Ricans cannot demand 
 uniform tariff duties as between Puerto Rico and the United States, 
 because the constitutional provision of uniformity was " solely adapted 
 to the conditions existing in the United States upon the continent of 
 North America." In other words, the Constitution is supposed to 
 have been ordained for the present and future dominions of the 
 United States upon the continent of North America and nowhere 
 else. The Preamble, it is true, entitles our Repubhc " The United 
 States of America," but I understand the suffix to be merely a de- 
 scriptive term aptly chosen at the time, and not a legal restriction ; 
 otherwise we could not have lawfully annexed the Philippines. The 
 
 I Page 26. 
 2 9 
 
" continental " theory is not even derived from the Preamble, for it re- 
 stricts the Constitution to North America. Upon what basis of fact 
 is a Constitution conceded to be adapted to the diverse physical, 
 social, and economic conditions of our continental domain, deemed 
 to be essentially unfit for Puerto Rico? Upon what principle of law 
 can there be read into the Constitution this or any other geograph- 
 ical limitation on its authority ? 
 
 The last clause of Article XI. of the Treaty of Paris reads: " The 
 civil rights and political status of the native inhabitants of the territory 
 hereby ceded to the United States shall be determined by the Con- 
 gress," This clause is cited to show that the Constitution is not in 
 the ceded territory, for, it is argued, were the Constitution supreme 
 the rights and status of the islanders would not be left to the will of 
 Congress. This argument is based on the premise that the President 
 and Senate may determine whether or not the Constitution shall pre- 
 vail in territory annexed by their treaty. It has been shown that 
 Congress is incompetent to grant or withhold the Constitution, and 
 if the power denied to the Federal legislature be vested in the special 
 legislative body designated for the making of treaties, it must be upon 
 the theory that this body differs from Congress in being free from 
 constitutional restraints. 
 
 The theory that treaty provisions are a law unto themselves has a 
 certain attraction because engagements with foreign states are pre- 
 sumably sacred, but this ethical principle does not necessarily bind our 
 courts, and if Congress passes an act inconsistent with a treaty pledge, 
 they will enforce the act and not the treaty, holding simply that an old 
 law has been repealed by a new one.i And in this relation it should 
 be noted that the clause we are considering is not an engagement with 
 Spain, but is merely a reservation of a matter of domestic interest. 
 
 Another argument for attributing arbitrary powers to the treaty- 
 making body is that it must be competent to act quickly and de- 
 cisively in the most serious emergencies. What agreements and con- 
 cessions the President and Senate might be forced to make and the 
 Republic be forced to accept by a conqueror, suggests a circumstance 
 too humiUating and too remote to afifect the interpretation of their 
 powers in normal cases. And the Treaty of Paris is on our part a 
 normal act, requiring no sacrifice of constitutional principle to the 
 law of necessity. The theory of the independence of the treaty- 
 
 1 Head Money Cases, iiz U. S. 580 ; Fung Yue Ting v. U. S. 149 U. S. 698 • 
 U. S. V. Old Settlers, 148 U. S. 427. ' 
 
 10 
 
making power finds no place in our jurisprudence. Though the 
 Supreme Court has never been obliged to declare a treaty provision 
 unconstitutional, and would do so with peculiar reluctance,i it holds, 
 as a matter of course, that treaties are subordinate to the Constitu- 
 tion.2 " It need hardly be said," says the Court, " that a treaty can- 
 not change the Constitution or be held valid if it be in violation of 
 that instrument. This results from the nature and fundamental prin- 
 ciples of our government."^ Even in Great Britian it is doubtful 
 whether the courts would respect a treaty provision repugnant to 
 "the law of the land."* 
 
 In view of the subordination of treaties to the Constitution it must 
 be assumed that the clause in question was drafted with due respect 
 to the higher law, and that the President and Senate did not pretend 
 to set bounds to a Constitution not at their disposition, but simply 
 declared the powers of Congress in regard to status and rights of less 
 than constitutional rank. 
 
 A most objectionable yet the only plausible argument against the 
 rule of the Constitution in the Philippines is that the Constitution was 
 ordained for the States of the Union alone. This proposition was 
 advanced in the Senate debates on the acquisition of Louisiana in 
 1803, and on the question of slavery in California in 1849. On Au- 
 gust 12, 1848, Mr. Webster said in the Senate that Congress in gov- 
 erning territory " is subject of course to the rules of justice and pro- 
 priety, but it is under no constitutional restraints ; " but in the debate 
 of 1849, Mr. Calhoun forced him to abandon this position and con- 
 cede, as we have seen, that Congress is bound by the constitutional 
 guarantees in legislating for the Territories. 
 
 The theory that the Constitution is operative in the States only 
 appears to have consciously affected the past government of outlying 
 territory so slightly, if at all, that there is no warrant for the boast that 
 in denying the Constitution to our new territory the Administration 
 emulates its predecessors. 
 
 The present policy of definitely excluding new territory from the 
 great customs district of the Republic is contrary to precedent.^ 
 
 1 See Ware v. Hylton, 3 Dallas 199, 237. 
 
 2 See U. S. V. The Peggy, i Cranch 103, no. New Orleans v. U. S., 10 Peters, 
 662, 736; Lattimer v. Poteet, 14 Peters, 414; Doe v. Braden, 16 Howard, 635, 657; 
 Geofroy ». Riggs, 133 U. S. 267; Thomas v. Gay, 169 U. S. 264, 271. 
 
 3 The Cherokee Tobacco, 11 Wallace, 616, 620. 
 
 4 See The Parlement Beige, 4 P. D. 129: 5 P. D. (C. A.) 197; Walker v. Baird, 
 [1892] A. C. 491 ; Dicey, Law of the Constitution, ist Ed. 391. 5/»/nz, pp. 23-26. 
 
 11 
 
As to the estimation of the general guarantees of the Constitution ; 
 we find that in the case of Louisiana the inhabitants complained 
 that self-government was not accorded at once, and that American 
 rulers did not understand the local laws they were expected to 
 administer. But it does not appear that our government ever denied 
 the efficacy of the guarantees in Louisiana, and the Supreme Court 
 practically recognized their existence in Bollman's case. ^ 
 
 Whatever we did in Florida before we took possession under the 
 completed treaty of cession was done in a foreign land, and so is 
 immaterial to this inquiry. Upon the cession General Jackson was 
 commissioned, by the authority of Congress, " with all the powers 
 and authorities " theretofore enjoyed by the Spanish rulers.^ Jack- 
 son was not affected, however, with a Spanish officer's irresponsibility 
 in regard to our Constitution,^ though he is said to have declared 
 that his powers were those " that no one under a republic ought to 
 possess " ; * and if during his brief term he was justly chargeable with 
 arbitrary actions, they are not evidence of a general poHcy. 
 
 The obligatory force of the Constitution in California was main- 
 tained by President Polk's Administration, whose position was at- 
 tacked by Webster and Benton because Calhoun assumed that it 
 permitted the carrying of slaves into the new territory. If Calhoun 
 argued for the Constitution in California with an unworthy motive 
 he at least contemplated the enjoyment of its rights by white men 
 while these rights are now denied to all people in the islands in 
 order to facilitate administration and above all to check industrial 
 rivalry. 
 
 I am not aware of any act of the government which can be con- 
 strued as denying the authority of the Constitution in Alaska. 
 
 A keen search for arbitrary acts in unorganized territory may 
 not be wholly unsuccessful; but the search is a discreditable waste 
 of time when its purpose is to parade such acts for our com- 
 mendation. 
 
 In reply to the assertion that the theory of the restriction of the 
 Constitution to the States has the sanction of judicial opinion I am 
 justified in stating that it is unsupported by a single dictum of the 
 Supreme Court, hardly countenanced, indeed, by a questioning phrase, 
 and has been repeatedly discredited in that seat of authority. 
 
 1 See infra, p 13. 
 
 221 Niles Weekly Reg., 135. 
 
 3 See the citation from Pollard vs. Hagan, infra, p 35. 
 
 * 21 Niles Weekly Reg., 136. 
 
 12 
 
In its opinion in Callan v. Wilson, the Supreme Court maintained 
 the law of the Constitution beyond the States in the only case 
 where an act of Congress disregarding it was forced upon the Court's 
 attention. The suggestion that the principle of this decision is lim- 
 ited to the District of Columbia, to which the act applied, is refuted 
 in the following paragraph of the opinion : " In Reynolds v. United 
 States, 98 U. S. 145, 154, it was taken for granted that the Sixth 
 Amendment of the Constitution secured to the people of the Terri- 
 tories the right of trial by jury in criminal prosecutions ; and it had 
 been previously held in Webster v. Reid, 11 Howard, 437, 460, that 
 the Seventh Amendment secured to them a like right in civil actions 
 at common law.^ We cannot think that the people of this District 
 have, in that regard, less rights than those accorded to the people of 
 the Territories of the United States."^ The notion that, because the 
 District once belonged to States which ceded it for a Federal capital, 
 its people enjoy constitutional rights denied to the people of the Terri- 
 tories is quite as fanciful as the conceit of the early days of the Civil 
 War, that if Maryland should secede she would carry the federal capital 
 with her by operation of law ! If the district is held by the United 
 States subject to a possibility of reverter for condition broken it is too 
 remote to affect the status of the inhabitants. There is no reason of 
 law or policy why they should be preferred to the people of Okla- 
 homa. 
 
 When General Wilkinson arrested Bollman and Swartwout in Or- 
 leans Territory (Louisiana) upon a charge of treason, and sent them 
 to Washington for trial, all without civil warrant, the Supreme Court 
 discharged them,^ and Judge Story termed the arrest " a very gross 
 violation of the Fourth Amendment."* 
 
 Among the Justices who have recognized the Constitution as 
 having a broader dominion than the States are Chief Justices Mar- 
 shall,5 Taney,6 Waite,^ and Fuller,^ and Justices Curtis,^ Miller,!** 
 
 1 See also American Publishing Co. v. Fisher, 166 U. S. 464; Springville z/. 
 Thomas, 166 U. S. 707; Thompson v. Utah, 170 U. S. 343. 
 
 2 Callan v. Wilson, 127 U. S., 540, 55°- 
 
 3 BoUman's Case, 4 Cranch, 75. 
 
 4 Commentaries, Sect. 1902, Note. 
 
 5 Loughborough v. Blake, S Wheaton, 317, 324. 
 « Scott V. Sandford, 19 Howard, 393, 450. 
 
 7 Bank v. County of Yankton, loi U. S., 129, 133. 
 
 8 Mormon Church v. U. S., 136 U. S., 1,67. 
 
 » Scott V. Sandford ; 19 Howard, 393, 614, 624. 
 10 Slaughter-house Cases, 16 Wallace, 36, 72. 
 
 13 
 
Bradley,! Harlan,^ Matthews,^ and Gray.* This consensus of 
 opinion represents every theory of constitutional interpretation that 
 has been expounded in the Supreme Court. Several decisions cited 
 in opposition are readily distinguished. In Benner v. Porter, 
 the Court held that territorial courts are not courts of the United 
 States within the meaning of the judiciary clauses of the Consti- 
 tution. This decision simply affirms the absolute discretion of 
 Congress in creating the machinery of territorial government. The 
 Mormon Church case * involved an act of Congress applying to edu- 
 cational uses certain property of the dissolved Corporation of Latter 
 Day Saints in Utah Territory. Three Justices declared the act to be 
 invalid because spoliative, thus affirming their conviction of the author- 
 ity of the Constitution in the territory. The Court conceded that 
 the constitutional guarantees were effective in Utah, but held that the 
 disposition of the property was justified by the law of charitable uses. 
 In Ross's case,^ the petitioner had been convicted of murder before 
 our Consular Court in Japan. The conviction was affirmed, though 
 the act of Congress authorizing the Court under a treaty with Japan 
 did not provide for presentment and trial by jury. The judge of 
 the Court was an American, yet it was not, from the constitutional 
 standpoint, essentially different from a tribunal of mixed nationality 
 like the one in Egypt, and in either case there is no question of carry- 
 ing our Constitution to a foreign land where, as the Supreme Court 
 said, " it can have no operation." Such tribunals are created for the 
 protection of foreigners in uncivilized countries. As they exist, in 
 theory of law, by the permission of the local sovereign, albeit the 
 permission is commonly extorted, their jurisdiction is entirely a matter 
 of arrangement. As they dispense justice in a strange environment, 
 their procedure is largely a matter of discretion. Our former privilege 
 in Japan does not interpret our present duty in the Philippines. For 
 we claim territorial sovereignty over the islands, not extra-territorial 
 privilege ; the whole authority of the United States, not a fragment of 
 authority wrung from a foreign government. 
 
 The textual criticism by which territory beyond the States is read 
 out of the Constitution upon the theory that the " United States " 
 covered by the Constitution comprises the States of the Union only, 
 is as harsh and artificial as that of the most strict constructionists of 
 
 1 Mormon Church v. U. P., 136 U. S., i, 44. 5 g Howard, 242. 
 
 2 McAllister v. U. S., 141 U. S., 174, 188. 6 136 U. S., i. 
 
 3 Murphy v. Ramsey, 114 U. S., 15, 44. 7 i^o U. S., 453. 
 * Capital Traction Co. v. Hof, 174 U. S., i. 
 
 14 
 
the old school, whom the new school resembles in denying the national 
 and commercial unity of all who owe allegiance to the Republic. And 
 the new school is subject to a reproach not imputable to the old. It 
 reverses the great rule of the common law by making every presump- 
 tion against the individual and in favor of the state, by attributing to 
 the Federal Government absolute dominion over all persons and 
 property lying beyond what it is pleased to call the " United States " 
 of the Constitution. Unquestionably, the " United States " whose 
 people framed the Constitution and retained for themselves and the 
 States all powers not delegated to the Federal Government, are the 
 States of the Union only. These States and their people wield the 
 whole political power of the Republic. In the words of Chief Justice 
 Marshall, " the members of the American Confederacy only are the 
 States contemplated in the Constitution." ^ Unquestionably, the Con- 
 stitution contains clauses relating exclusively to States either in terms 
 or by necessary implication. Other clauses embody principles of 
 universal value and unrestricted range, and these are operative 
 throughout the larger " United States " described by Marshall as 
 " our great republic, which is composed of States and territories. The 
 District of Columbia, or the territory west of the Missouri, is not less 
 within the United States, than Maryland or Pennsylvania."^ 
 
 SOME IMPORTANT QUESTIONS AFFECTED BY THE EXTENSION 
 OF THE CONSTITUTION. 
 
 Slavery. 
 
 The first section of the Thirteenth Amendment of the Constitution 
 reads : " Neither slavery nor involuntary servitude, except as a pun- 
 ishment for crime whereof the party shall have been duly convicted, 
 shall exist within the United States, or any place subject to their juris- 
 diction." Slavery exists in the Philippines, especially, perhaps ex- 
 clusively, among the Mohammedan tribes, and although we shall see 
 that these tribes may be classified as " Indians " and left with a large 
 discretion in the management of their domestic affairs, they are within 
 the purview of this amendment which, in fact, has been held to forbid 
 a system of serfdom found among the Indians of Alaska.^ 
 
 1 Hepburn v. EUzey, 2 Cranch, 445, 452. 
 
 2 Loughborough v. Blake, 5 Wheaton, 317, 319, 
 
 3 Sah Quah's Case, 31 Federal Reporter, 727. 
 
 15 
 
Concerning an agreement negotiated with the Sultan of Sulu, the 
 President says in his message : " Article X. provides that any slave 
 in the archipelago of Jolo shall have the right to purchase freedom 
 by paying to the master the usual market value. The agreement by 
 General Bates was made subject to confirmation by the President 
 and to future modifications by the consent of the parties in interest. 
 I have confirmed said agreement, subject to the action of the Con- 
 gress, and with the reservation, which I have directed shall be com- 
 municated to the Sultan of Jolo, that this agreement is not to be 
 deemed in any way to authorize or give the consent of the United 
 States to the existence of slavery in the Sulu archipelago. I com- 
 municate these facts to the Congress for its information and action."^ 
 As the article in question purports to accord a qualified recognition 
 of slavery it is outlawed by the Constitution. We may not handle 
 slavery with gloves. The gradual emancipation tolerated by England 
 in Zanzibar is not permitted to us. There is not even a lawful process 
 of emancipation. The amendment declares sharply that slavery shall 
 not " exist," and the Supreme Court has pronounced it to be " un- 
 doubtedly self-executing without any ancillary legislation, so far as its 
 terms are applicable to any existing state of circumstances. By its own 
 unaided force and effect it abohshed slavery, and established universal 
 freedom." ^ 
 
 The full effect of the prohibition of " involuntary servitude " has 
 not been determined by the Supreme Court, which has decided, how- 
 ever, that it does not abrogate the ancient rule of the sea whereby 
 a sailor shipping for a voyage may be compelled to perform his con- 
 tract under pain of imprisonment, nor is intended to introduce " any 
 novel doctrine with respect to certain descriptions of service which 
 have always been treated as exceptional; such as military and naval 
 enlistments, or to disturb the right of parents and guardians to the 
 custody of their minor children or wards . . . services which from 
 time immemorial have been treated as exceptional shall not be re- 
 garded as within its purview."^ Nor is it necessary to insist that a 
 person can in no case be compelled to complete a particular under- 
 taking—an engineer who should be prevented from wilfully abandon- 
 ing a pump forcing air into a mine would not be held in "involuntary 
 servitude." But after making all exceptions warranted by inveterate 
 usage or emergency, the Thirteenth Amendment appears to declare 
 
 1 Page 43. 2 Civil Rights Cases, 109 U. S., 3, 20. 
 
 3 Robertson v. Baldwin, 165 U. S., 275, 282. 
 
 16 
 
that an employer cannot of his own motion, or by the assistance 
 of the state, force an unwilling workman to perform his contract. 
 As Judge Cooley says : « Contracts for personal services cannot, 
 as a general rule, be enforced, and application to be discharged from 
 service under them on habeas corpus is evidence that the service 
 is involuntary." i And the Supreme Court has said : " If Mexican 
 peonage or the Chinese coolie labor system shall develop slavery of 
 the Mexican or Chinese race within our territory this amendment may 
 be safely trusted to make it void. 2 What effect the enforcement of 
 the Thirteenth Amendment against the coolie system would have 
 upon agriculture in some of our new possessions cannot be known 
 until the labor conditions are thoroughly understood. It is note- 
 worthy, however, that Great Britain finds it expedient to maintain the 
 coolie system in several of her colonies, shorn of many abuses it is 
 true, yet retaining the essential feature of compulsory service during 
 an agreed period. And in the report on British New Guinea for 
 1897-8 we read ^ that Ordinance No. II., of 1897, "rendered it com- 
 pulsory on a native to perform the work for which he may be duly 
 engaged;" and Ordinance No. VIII., of 1897, "provides that a de- 
 serting laborer may be returned to his employer." However, in view 
 of the state of labor in Hawaii we are not free, at present, to criticize 
 British policy. In June, 1899, the Supreme Court of Hawaii confirmed 
 the order of a district magistrate, who, under the Masters and Servants 
 Act, had sentenced a man to imprisonment at hard labor "until he 
 should consent to return to his master and consent to serve according 
 to law."* The prisoner was an Austrian who had been " imported " by 
 the company under contract to work for three years. The court did 
 not attempt to distinguish the imprisonment from the " involuntary 
 servitude" forbidden by the Thirteenth Amendment, but dismissed 
 the Amendment with a curt reference to earlier opinions in which it 
 had pronounced the Constitution of the United States to be of no 
 force during " the transition period." 
 
 If it shall be finally determined that in the United States territory 
 of Hawaii a plantation hand may be imprisoned until he is ready to 
 perform his contract to labor, perhaps a like system will be some day 
 
 1 Constitutional Limitations, 6th Ed., 363, note. 
 
 2 Slaughter-house cases, 16 Wallace, 36, 72; cited in U. S. v. Wong Kim Ark, 
 169 U. S., 649, 677. For a description of peonage see Jaremillo v. Romero, i 
 New Mexico, 190. 
 
 ' Pp. 10, II. *Honomu Sugar Co. v. Zeluch, 60 Albany Law Journal, 213. 
 
 3 17 
 
established in the Cotton States that have aheady practically disfran- 
 chised the negro. 
 
 Citizenship and Civil Rights. 
 
 All persons born in the Philippines after annexation and subject to 
 our jurisdiction are citizens of the United States, though, as we shall 
 see, they are not members of the voting body of the Republic. 
 
 This proposition is denied not only on the ground already noted 
 that the Constitution is wholly ineffective beyond the States, but 
 upon a peculiar interpretation of the first sentence of the Fourteenth 
 Amendment, which reads : " All persons bom or naturalized in the 
 United States, and subject to the jurisdiction thereof, are citizens of 
 the United States and of the State wherein they reside." The last 
 clause, " and of the State wherein they reside " is said to restrict the 
 words " United States " to the several States. We are told that had 
 the framers of the Amendment contemplated a broader field than 
 the States they would have written, " and of the State and Territory 
 where they reside." This, certainly, they would not have done. 
 Citizenship involves allegiance. Allegiance is due only to a sov- 
 ereign. The territorial governments have no attribute of sov- 
 ereignty, because they are created by Congress and exist during its 
 pleasure. The clause is to be understood as a distinct command 
 rather than as part of a general description. Its sole purpose is to 
 compel each State to recognize as its citizens all persons residing 
 therein whom the United States recognize as their citizens. 
 
 The narrow construction of the Amendment that would restrict 
 United States citizenship to persons bom or naturalized within a State 
 is disapproved by the Supreme Court, which has said that a man 
 " must reside within the State to make him a citizen of it, but it is only 
 necessary that he should be born or naturalized in the United States to 
 be a citizen of the^Union." i And Justice Bradley said in the same case : 
 " The question is now settled by the Fourteenth Amendment itself, 
 that citizenship of the United States is the primary citizenship in this 
 country, and that state citizenship is secondary and derivative, depend- 
 ing upon citizenship of the United States and the citizen's place of resi- 
 dence." ^ In a late opinion the Court says : " The words ' in the United 
 States, and subject to the jurisdiction thereof in the first sentence of 
 the Fourteenth Amendment of the Constitution, must be presumed to 
 have been understood and intended by the Congress which proposed 
 the Amendment and by the Legislatures which adopted it, in the 
 1 Slaughter-house Cases, 16 Wallace, 36, 72. 2 Page 112. 
 
 18 
 
same sense in which the like words had been used by Chief Justice 
 Marshall in the well-known case of The Exchange; and as the 
 equivalent of the words 'within the limits and under the jurisdiction 
 of the United States,' and the converse of the words ' out of the limits 
 and jurisdiction of the United States' as habitually used in the 
 Naturalization Acts." ^ A scrutiny of the Naturalization Acts, begin- 
 ning with the Act of 1795, will show that " the United States " wherein 
 an applicant for citizenship must have resided for a prescribed period, 
 and in which he may be naturalized, includes the Territories. 
 
 The terms " citizen," " citizen of the United States," and " citizens 
 of the United States " are employed elsewhere in the Constitution to 
 describe a larger body than the people of the States. The Constitu- 
 tion prescribes that a Congressman must have been seven years a 
 " citizen of the United States " and a Senator nine years. Is the 
 State of Utah unlawfully represented in the Senate on the theory 
 that her Senators have only been citizens of the United States since 
 Utah was admitted to statehood in 1896 ? Only a natural bom citizen 
 who has reached the age of thirty-five years and resided fourteen 
 years "within the United States" is eligible to the presidency. Will 
 it be contended that a man born in Colorado Territory in 1864 was 
 not bom in the United States ? Or that a man born in Ohio the same 
 year and taken in infancy to what is, since 1889, the State of Wash- 
 ington has not resided fourteen years in the United States? The 
 XVth Amendment reads : " The right of citizens of the United States 
 to vote shall not be denied or abridged by the United States or by any 
 State on account of race, color, or previous condition of servitude." 
 This Amendment plainly contemplates a power in Congress to con- 
 fer the suffrage. Now Congress can neither confer, deny nor abridge 
 the suffrage in any State, for each State has the exclusive power to 
 designate its voting body subject only to the limitation of this 
 Amendment.2 The field of federal action in the matter of suffrage 
 is then beyond the States, and the amendment declares in effect that 
 if Congress shall create a voting body in a Territory it cannot deny 
 the suffrage to any citizen of the United States therein, that is to 
 say to any person owing allegiance to the United States, because of 
 " race, color, or previous condition of servitude." 
 
 We need not rely upon an inspection of constitutional texts alone 
 to sustain our broad definition of a natural born citizen of the United 
 States. The Supreme Court declares that recourse must be had to 
 
 1 U. S. V. Wong Kim Ark, 169 U. S., 649, 687. 
 2 See U. S. V. Cruikshank, 92 U. S., 542, 555. 
 
 19 
 
the common law to determine who are native bom citizens,' and the 
 common law, ignorant of our State boundaries, makes all persons born 
 within the dominion and jurisdiction of the sovereign natural bom 
 subjects, or, in our republican phrase, " citizens." The Court says 
 in the case cited : " Passing by questions once earnestly controverted 
 but finally put at rest by the Fourteenth Amendment of the Constitu- 
 tion, it is beyond doubt that before the enactment of the Civil Rights 
 Act of 1866 or the adoption of the Constitutional Amendment, all 
 white persons, at least, bom within the sovereignty of the United 
 States, whether children of citizens or of foreigners, excepting only 
 children of ambassadors or public ministers of a foreign government, 
 were native born citizens of the United States." 2 This statement 
 presents the opening words of the Fourteenth Amendment in their 
 true light. They do not create citizenship of the United States, but 
 affirm the pre-existing common law rule of citizenship by birth, and 
 assure to " all persons " the benefit of this rule, which as applied by 
 the federal courts of this country in the past appears to have ignored 
 the dark races. 
 
 Persons who, though bom in the United States, are not citizens, 
 because not subject to the jurisdiction, are the children of foreign 
 ministers, of Indians, and of alien enemies in occupation of our soil.' 
 
 Tribal Indians within the domain of the original States were set 
 apart by the Constitution as a peculiar people, and with each exten- 
 sion of territory other tribes have been surrounded. Congress cannot 
 make a man an " Indian " by calling him one, because, though the 
 status of the Indian is in some respects indeterminate, and in all re- 
 spects anomalous, it is settled at least that he is a person bom in the 
 allegiance of a tribe of barbarous or savage origin, having its seat in 
 United States territory, yet being, in the language of the Supreme 
 Court, " a distinct political community." * There are natives in the 
 Philippines who appear to have maintained their political organiza- 
 tion during the overlordship of Spain, as had the Seminoles in Florida, 
 and who, like the Seminoles, will be segregated as Indians. 
 
 " Alien enemies " is not a legal description of the Filipinos in arms. 
 Without suggesting a general likeness between them and the Con- 
 federates of 1 86 r, in one respect their positions are not altogether 
 
 1 U. S. V. Wong Kim Ark, 169 U. S., 649. 
 
 2 U. S. V. Wong Kim Ark, 169 U. S., 649, 674. 
 
 3 See U. S. ■<,. Wong Kim Ark, 169 U. S., 649, 693. 
 *Elk V. Wilkins, 112 U. S., 94, 99. 
 
 20 
 
dissimilar. Said the Supreme Court of the insurgent State of Texas 
 and its people : " The State did not cease to be a State nor her citi- 
 zens to be citizens of the Union. If this were otherwise, the State 
 must have become foreign, and her citizens foreigners. The war must 
 have ceased to be a war for the suppression of rebeUion, and^ must 
 have become a war of conquest and subjugation." ^ In point of fact, 
 the war in Luzon is waged for conquest and subjugation, yet it is 
 not a foreign war. Like the Civil War, it is an insurrection against 
 the United States, and the status of the insurgents is determined, like 
 that of the Confederates, by our assertion of sovereignty, and not by 
 their assertion of independence. 
 
 The Chinese and other foreigners in the Philippines are within the 
 protection of the rule that while an alien " lawfully remains here he is 
 entitled to the benefit of the guarantees of life, liberty and property 
 secured by the Constitution to all persons of whatever race within the 
 jurisdiction of the United States. His personal rights when he is in 
 this country and such of his property as is here "during his absence, 
 are as fully protected by the supreme law of the land as if he were a 
 native or naturalized citizen of the United States." ^ 
 
 What is the status of the natives living in the islands at the time of 
 annexation, and who are not within the constitutional definition of 
 Indians ? Like the Mexicans of New Mexico these have come under 
 the sovereignty of the United States as former subjects or citizens of 
 a state which has ceded the land of their residence. They have a 
 right to reside in their native land, and they must possess in perma- 
 nence at least the primary rights affirmed by the Supreme Court to 
 aliens during their sojourn. 
 
 Having ascribed to the Filipinos the rights confirmed by the Con- 
 stitution to all human beings within the jurisdiction of the United 
 States we come to the question of their political status. Treaties of 
 annexation frequently provide that the subjects or citizens of the 
 ceding state may elect to retain their old allegiance, either uncondi- 
 tionally or upon condition that they emigrate within a certain time. 
 This election is sometimes called and usually treated as a right,^ 
 and it is, I think, the nearest approach to a recognition in interna- 
 tional law of the ethical principle that government should exist with 
 
 1 Texas v. White, 7 Wallace, 700, 726. 
 
 2 Lem Moon Sing v. U. S., 158 U. S., 538, S47- 
 
 3 See Cogordan, La Nationalite, 321. 
 
 21 
 
the consent of the governed in its relation to the cession of territory. 
 This principle is not recognized to the extent of entitling the inhabi- 
 tants of the territory to determine its destiny by their vote. Though 
 the plebiscite is not unknown in such cases, it is uncommon and is 
 not always a free expression of the people's will.^ 
 
 Nor is the so-called right of election anything more than a privilege, 
 either granted by a conqueror, who thereby waives his right to forbid 
 the emigration of persons whom he may hold as new subjects or 
 citizens,^ or arranged by parties negotiating on an equal basis, and in 
 each case often depending for its real value upon the ability of the 
 people to find homes elsewhere. This privilege we properly accorded 
 to the Spanish-bom residents in the Philippines, for these have a 
 fatherland to receive them should they choose to return and a govern- 
 ment to protect them should they choose to remain. It was properly 
 withheld from the Filipinos, as its allowance would have greatly 
 embarrassed the United States without holding out any substantial 
 advantage to the islanders. 
 
 The Filipinos, then, remain in the islands absolutely divested of 
 their allegiance to Spain, and by the rules of public law they owe alle- 
 giance to the United States. Said Chief Justice Marshall of the in- 
 habitants of Florida after its cession to the United States, " The same 
 act which transfers their country, transfers the allegiance of those who 
 remain in it." ^ And the Supreme Court said in a later case, " Mani- 
 festly the nationality of the inhabitants of territory acquired by con- 
 quest or cession becomes that of the government under whose do- 
 minion they pass, subject to the right of election on their part to retain 
 their former nationality by removal or otherwise as maybe provided."* 
 The Supreme Court has recognized a power to create citizens en masse 
 by process of collective naturalization " as by the force of a treaty by 
 which foreign territory is acquired." ^ Now the treaties of annexation 
 considered by the Court purport to confer citizenship expressly, 
 and so Chief Justice Marshall significantly said of the citizenship of 
 the people of Florida who remained there after cession, " It is un- 
 necessary to inquire, whether this is not their condition, independent 
 of stipulation." ^ The Treaty of Paris contains no such stipulation, but 
 
 1 See Phillimore, International Law, I., 585, 604. 
 
 2 See U. S. V. Repentigny, 5 Wallace, 211, 260. 
 
 3 American Insurance Co. ». Canter, I Peters, 511, 542. 
 * Boyd V. Thayer, 143 U. S., 135, 162. 
 
 5 Elk V. Willkins, 112 U. S., 94, 102. 
 'American Ins. Co. v. Canter, i Peters, 511, 542. 
 
 22 
 
because it operates to transfer the allegiance of the Filipinos from 
 Spain to the United States it appears to naturalize them collectively 
 by implication. We have no word other than " citizens " to describe 
 persons whose relation to the United States involves the reciprocal 
 obligations of loyalty and protection.i 
 
 The Tariff. 
 
 The authority of the Constitution in the Philippines has an impor- 
 tant bearing upon the question of the taxation of commerce.^ 
 
 First, of commerce between the islands and foreign countries. 
 After our occupation of California had been confirmed by the ratifica- 
 tion of the treaty of cession the Administration abandoned the mili- 
 tary tariff imposed during the belligerent occupation, and proceeded 
 to collect upon foreign imports the duties of the general Tariflf 
 Act.^ A different practice prevails in our new territory where the 
 Administration imposes duties at discretion. Now even if Con- 
 gress were authorized to levy peculiar taxes upon foreign goods 
 brought into annexed territory the President would have no right to 
 do so. His ability to collect duties at all rests upon a presumed in- 
 tention of Congress evidenced by a tariff act, though it is not clearly 
 decided that even such collections are valid unless they are ratified 
 by Congress."* To admit his right to levy taxes at discretion because 
 of a latent power in Congress to do this would imply the existence 
 of an executive power to originate revenue legislation in territory 
 belonging to the United States, in derogation of the fundamental 
 principle that taxes shall not be imposed by executive proclamation, 
 and of the particular provision of the Constitution that " All bills for 
 raising revenue shall originate in the House of Representatives." 
 
 We come now to the question whether Congress itself may impose 
 special duties upon foreign goods brought into the Philippines. As a 
 matter of fact Congress has never exacted peculiar duties in new dis- 
 tricts, but has always extended the existing tariff laws either about the 
 time of annexation or shortly thereafter. As a matter of law, the Ad- 
 ministration insists that the constitutional provision that " all duties, 
 imposts and excises shall be uniform throughout the United States," 
 does not apply to the new islands. The Secretary of War says in his 
 report for 1899: 5 "The provision of the Constitution prescribing 
 uniformity of duties throughout the United States was not meant for 
 
 1 See Chis'nolm v. Georgia, 2 Dallas, 419, 456. ^ See infra, pages 39-40. 
 
 3 Cross V. Harrison, 16 Howard, 164. * See infra, page 40. 5 Page 27. 
 
 23 
 
them [the Puerto Ricans] but was a provision of expediency solely 
 adapted to the conditions existing in the United States upon the con- 
 tinent of North America." I should call a law assuring equal taxa- 
 tion and freedom of trade throughout the Republic a provision of 
 justice, not of expediency, and I fail to understand upon what prin- 
 ciple a court must hold this provision to be operative in Maine, Louisi- 
 ana, Alaska and Ohio, and in Mexico and Labrador, should we one day 
 annex them, yet inoperative in Puerto Rico. From this makeshift 
 interpretation of the Constitution we turn with confidence to Chief 
 Justice Marshall's impregnable definition of the " United States " con- 
 templated by this very clause — " our great Republic, which is com- 
 posed of States and Territories. The District of Columbia, or the 
 territory west of the Missouri, is not less within the United States than 
 Maryland or Pennsylvania ; and it is not less necessary, on the prin- 
 ciples of our Constitution, that imiformity in the imposition of im- 
 posts, duties and excises should be observed in the one, than in the 
 other." 1 Here is the law of the commercial unity of the Republic 
 expounded by its foremost interpreter, and the Philippines being 
 within the Republic are within the law. 
 
 We have next to consider the question of duties upon commerce 
 between the islands and our mainland. A statement of the Court in 
 Fleming v. Page^ is often cited in this relation: "... under our 
 revenue laws every port is regarded as a foreign one, unless the cus- 
 tom house from which the vessel clears is within a collection district 
 established by act of Congress, and the officers granting the clear- 
 ance exercise their functions under the authority and control of the 
 laws of the United States." This statement misleads in so far as it 
 lends color to the assertion that precedent sanctions the taxation of 
 this commerce. It is conceded that a port is foreign in a fiscal sense, 
 though the United States claim title to it, if they have not gained 
 possession, as in the case of Baton Rouge in the Louisiana territory 
 ceded by Spain to France and by France to us, but actually held by 
 Spain for some time after we had taken possession of New Orleans; 
 or have lost possession, as in the case of Castine in Maine, seized 
 by the British forces in 1814 : » and a port is foreign, too, though the 
 United States have possession, if they await the ratification of a treaty 
 to perfect their title, as in the case of San Juan in Puerto Rico, or if they 
 hold it by mere force of arms, as in the case of Tampico in the Mexican 
 
 1 Loughborough w. Blake, 5 Wheaton, 317, 319. 2g Howard, 603,617. 
 
 3 U. S. V. Rice, 4 Wheaton, 246. 
 24 
 
War, which was the matter before the Court in Fleming v. Page. But 
 a scrutiny of administrative practice down to the end of the Mexican 
 War shows that with perhaps trifling and pecuhar exceptions, as in the 
 case of New Orleans,^ duties were not collected upon goods carried 
 between old and new possessions after our right to the latter had 
 been confirmed by the ratification of a treaty of cession. The notable 
 illustration of the rule of free intercourse, however, is the case of Cali- 
 fornia after the Mexican War. Upon the ratification of the treaty 
 ceding California to the United States the Administration promptly 
 recognized the trade between the new territory and the rest of the 
 country as domestic, as appears by the following passage from a letter 
 of the Secretary of State quoted by the Supreme Court in Cross v. 
 Harrison : 2 " This government de facto [the temporary government 
 of California] will, of course, exercise no power inconsistent with the 
 provisions of the Constitution of the United States, which is the 
 supreme law of the land. For this reason no import duties can be 
 levied in California on articles the growth, produce or manufacture of 
 the United States, as no such duties can be imposed in any other 
 part of our Union on the productions of California. Nor can new 
 duties be charged in California upon such foreign productions as have 
 already paid duties in any of our ports of entry, for the obvious rea- 
 son that California is within the territory of the United States." And 
 the Court also refers to a dispatch from the Secretary of the Treasury 
 "providing for the reciprocal admission of goods which were the 
 growth, etc., of California and the United States, free of duty, into 
 the ports of each." The California precedent was followed upon the 
 annexation of Alaska, the Secretary of the Treasury deciding that furs 
 and oils brought in from the new territory were not subject to duty.^ 
 The present Administration disregards these precedents. It treats 
 the commerce between our islands and our mainland as foreign, and 
 collects duties in each upon the imported products of the other, ex 
 acting in the former place a tax determined by itself, and in the latter 
 the duties of the Tariff Act. It is ungenerous and unlawful to treat our 
 new citizens as foreigners in their commercial relations and hamper an 
 intercourse whose promotion should be our first concern. So disas- 
 trous has this practice proved to Puerto Rico that the President has 
 said to Congress, " Our plain duty is to abohsh all customs tariffs be- 
 tween the United States and Puerto Rico and give her products free 
 access to our markets."* But as the distress is caused by his refusal to 
 
 1 See Cross v. Harrison, 16 Howard, 164, 199. 2 16 Howard, 164, 185. 
 3 Synopsis Treasury Decisions, 1868, pp. 10 and 20. * Message 1899, p. 50. 
 4 25 
 
follow the constitutional practice of his predecessors he may relieve 
 it at once. The President is not authorized to hamper internal com- 
 merce by laws of his own making, and this he has done in levying 
 duties on merchandise carried from our mainland to our islands. 
 Nor is he authorized to enforce a tariff act against merchandise 
 brought in from islands which since its enactment have become 
 United States territory. The Tariff Act of 1897 is entitled " An 
 Act to provide revenue for the Government and to encourage the 
 industries of the United States," and by the enacting clause its opera- 
 tion is limited to " articles imported from foreign countries." As the 
 islands have been made domestic territory by the Treaty of Paris, 
 they are not within the purview of an act intended to impose burdens 
 upon foreign products exclusively. And this construction of the act 
 is required by the Constitution, for the rule of uniformity which, as we 
 have seen, forbids Congress to impose different duties upon foreign 
 imports in different sections of the United States, forbids it to impose 
 any duties whatever on commerce between them. 
 
 Our inquiry into the subject of the tariff leads to these conclu- 
 sions : Under no circumstances can duties be lawfully collected in 
 the annexed islands or the mainland upon the imported products of 
 either; duties collected upon foreign goods brought to the islands 
 must be the same as imposed in the rest of the United States. 
 
 ALLEGED IMPOSSIBILITY OF CONSTITUTIONAL GOVERNMENT. 
 
 The considered arguments against the Constitution for the Philippines 
 affect the sanction of law, but they are really arguments of inconveni- 
 ence, for they rest upon the assumed impossibility or, at least, the 
 impropriety of constitutional government rather than upon approved 
 legal principles. The assumption cannot be disproved by reciting opin- 
 ions of the Supreme Court, for it suggests a question of fact determin- 
 able only by experience, but it will be shown that our constitutional 
 powers are not presumptively insufficient and our constitutional obli- 
 gations not presumptively unendurable. 
 
 The Constitution permits the pacification of the Philippines by any 
 method which public opinion should tolerate. Surely a government 
 that suppressed the revolt of eleven States is competent to deal 
 with an insurrection in federal territory. And when reconstruction 
 shall follow pacification a government that "reconstructed" the 
 South cannot decently complain of lack of power in the Philippines. 
 
 26 
 
It will be shown that the Constitution permits the President to 
 govern the islands after a fashion until Congress shall exert its powers, 
 and does not hamper Congress in providing a government for them. 
 And the local affairs of the Phihppines may be administered with as 
 single a regard to their peculiar interests as are the affairs of a State, 
 for the Constitution does not prescribe that all territories shall be 
 administered from a common standpoint, but permits the peculiar 
 needs of each to be considered. 
 
 There is bitter opposition to applying to the Philippines the con- 
 stitutional rule of uniform tariff taxes. It is asserted that Congress 
 cannot impose uniform duties on foreign imports that will be equally 
 fair to the islands and to the mainland ;_ but this suggests merely a 
 phase of the persistent tariff controversy. Doubtless the new phase 
 presents new difficulties, yet recalling that one tariff act drove South 
 Carolina to the edge of rebellion, and that another led Louisiana to 
 the Treasury for sugar bounties, we need not apprehend more extreme 
 results from extending our revenue system to the Philippines. More- 
 over, the Philippines will have no voice in making a United States 
 tariff, and this exclusion of an interested section from the work of bar- 
 gain and compromise that usually accompanies tariff legislation will 
 make the task somewhat easier. Exclusion is not so great a hardship 
 as it seems for in any event an insular tariff would be dictated in 
 Washington, and not in Manila, and the islanders will be quite as 
 well off with an assurance of equal taxation as with a possibility of 
 lighter taxation. Federal taxation without representation may be 
 inevitable under the territorial system, but it is shorn of its worst 
 possibilities where the taxpayer cannot be singled out for special 
 burdens. 
 
 The rule of imiformity that forbids Congress to impose different 
 duties on foreign goods imported into the Philippines and into the main- 
 land of course forbids it to impose any duties whatever on commerce 
 between them, and here we find the chief motive for resisting its appli- 
 cation to our new territory. Free trade between the Philippines and 
 Puerto Rico and the mainland may affect important agricultural in- 
 terests here. Should Cuba be annexed, notwithstanding our promise, 
 serious disturbance would be inevitable. If manufactures can be 
 established in the islands the wave of disturbance will cover a wider 
 area. But these results, however unwelcome, cannot influence the in- 
 terpretation of the Constitution. They must be accepted as practical 
 consequences of annexation. 
 
 27 
 
There is no evident absurdity in attributing the civil rights of 
 the Constitution to the Filipinos when the nature and limitations of 
 these rights are understood. Surely the Republic must regard life, 
 liberty and property everywhere as rights, not as privileges. Even 
 these primary rights are not absolute. Each one may be forfeited 
 for crime. Each is held subject to the legitimate claims of the 
 state. 
 
 Of course the right to liberty confers the freedom of the Republic, 
 and no law can check the orderly migration of Filipinos to any part 
 of the country. " We are all citizens of the United States," says the 
 Supreme Court, " and as members of the same community must have 
 the right to pass and repass through every part of it without interrup- 
 tion, as freely as in our own State." i A man's right to work in any 
 part of the Republic, and his right to send the lawful product of his 
 labor to any part, rest upon precisely the same foundation of personal 
 liberty. As for liberty of speech and of the press, expressly guar- 
 anteed by the Constitution, why should not a Filipino speak and 
 write his mind when he may be punished for abusing his rights, and 
 hung if, like the Chicago anarchists, his utterances are linked to the 
 crimes they are intended to provoke ? 
 
 The Filipinos are entitled to bear arms, but the Constitution affirms 
 this right for "the security of a free state,'' not for the benefit of in- 
 surgents ; they may assemble and petition for redress of grievances 
 but the Constitution requires them to do so " peaceably." 
 
 Citizens of the United States not residing in States have no voice in, 
 federal affairs, nor have they a constitutional right to regulate their 
 own. The whole political power of the republic, whether directed to 
 federal, state or territorial affairs, is vested exclusively in the voting 
 citizens of the several states, and each State may prescribe such quali- 
 fications for suffrage as it pleases, so long as it bars no one because 
 of " race, color, or previous condition of servitude." The entire sov- 
 ereignty over territory beyond the States is vested in the federal leg- 
 islature. This proposition was questioned in the Dred Scott case ^ 
 and Senator Douglas and other statesmen declared that the people of 
 the territories possessed sufficient " popular sovereignty " to decide 
 for themselves whether slavery should be allowed within their borders. 
 The doctrine of " popular sovereignty " in the territories was a polit- 
 ical device for taking the question of slavery out of Federal politics. 
 It was wholly incompatible with the fundamental conception of the 
 
 1 Crandall v. Nevada, 6 Wallace, 35, 49. 
 2 19 Howard, 293, 501. 
 
 28 
 
union of States, and is now thoroughly discredited.! The definition of 
 Fihpinos as " citizens " carries no right to participate in governing the 
 Republic, nor any State, nor even the Philippines. They can become 
 members of the voting body of the United States only by coming into 
 a State, and satisfying the requirements of the local law of sufirage. 
 They can exercise in the islands only such political franchises as Con- 
 gress may grant. In the language of the Supreme Court : " The per- 
 sonal and civil rights of the inhabitants of the territories are secured 
 to them, as to other citizens, by the principles of constitutional liberty 
 which restrain all the agencies of government, state and national ; 
 their political rights are franchises which they hold as privileges in 
 the legislative discretion of the Congress of the United States."^ 
 
 VALUE OF THE CONSTITUTION IN NEW TERRITORY. 
 
 In affirming the authority of the Constitution in the Philippines, 
 I am far from anticipating the transformation of an Asiatic depen- 
 dency of Spain into a well-ordered section of the United States by 
 any magical power of written law. Constitutional rule will not pre- 
 vail throughout the islands until the authority of the United States 
 shall be as supreme in fact as it is in theory. 
 
 The gap between fact and theory, so marked in the Philippines, is not 
 a novel circumstance in our history. A Southern Confederacy once 
 denied the Constitution, and temporarily suspended its active authority 
 throughout a wide area ; yet the Supreme Court said of the insurrec- 
 tionary State of Tennessee : " She never escaped her obligations to 
 that Constitution, though for a while she may have evaded their en- 
 forcement."* Again, the influence of the Constitution spread slowly 
 throughout the vast domains we have annexed from time to time ; iso- 
 lated communities made their own laws, sparsely-peopled regions 
 had none. 
 
 These conditions, after all, illustrate merely the general proposition 
 that constitutional guarantees are not thoroughly efficient unless per- 
 sons injured by their violation have recourse to competent tribunals 
 for redress. How far such courts as may now sit in the islands are 
 thus competent, I do not discuss, for it may be admitted that until Con- 
 gress shall institute federal tribunals constitutional rights will receive 
 
 1 See National Bank v. County of Yankton, loi U. S., 129, 133; Murphy v. Ram- 
 sey, 114 U. S., IS, 44; Mormon Church v. U. S., 136 U. S., I,44. 
 
 2 Murphy -v. Ramsey, 114 U. S., 15, 44- ' Keith v. Clark, 97 U. S., 454, 461. 
 
 29 
 
imperfect protection. But this admission must be made in regard to 
 the whole Republic. The only court named in the Constitution is 
 the Supreme Court, whose original jurisdiction is strictly confined to 
 « all cases affecting ambassadors, other pubhc ministers and consuls, 
 and those in which a State shall be a party." >■ Whether Congress may 
 destroy the Supreme Court should forever be an academic ques- 
 tion, but certainly this tribunal of limited original jurisdiction is the 
 only one specifically contemplated by the Constitution. What inferior 
 courts there shall be, what their jurisdiction, when and how their 
 judgments involving the questions mentioned in the Constitution as 
 reviewable by the Supreme Court shall be carried up, are determin- 
 able by Congress, which cannot be coerced into creating a court or 
 directed in defining its jurisdiction, or prevented from abolishing it. 
 Broadly speaking, the American people depend upon the facilities 
 afforded by the Judiciary Acts for the orderly enforcement of their 
 constitutional rights. And the Judiciary Acts are but one of many 
 examples of legislative aid to the Constitution, for, although its pres- 
 ence in a particular territory does not depend on the pleasure of Con- 
 gress, as I have shown, many of its provisions are partially or wholly 
 ineffective anywhere until Congress shall have effectuated them by 
 legislation. 
 
 Before leaving the subject of the jurisdiction of courts it will be 
 profitable to note a marked difference between the American and 
 English systems. The Judicial Committee of the Privy Council 
 affirmed an ancient rule when they said in Bishop Colenso's Case : 
 " It is the settled prerogative of the British Crown to receive appeals 
 in all colonial causes." 2 The royal prerogative, however, has long 
 been required to be exercised in accordance with the judgment of 
 the Judicial Committee, a court selected from the Council according 
 to rules established by Parliament. 
 
 This court of appeal has a broad and varied jurisdiction. For 
 example, it will entertain an appeal from the act of a colonial gov- 
 ernor in imprisoning an African chief,^ from the order of a colonial 
 court denying certain powers and privileges to a colonial legislature,* 
 from the judgment of a police magistrate in a petty colony ^ ; and it 
 will receive appeals in criminal cases generally whenever it appears 
 
 1 See Marbury v. Madison, I Cranch, 137. 
 
 2 The Lord Bishop of Natal, 3 Moore P. C, N. S. 1 15. 
 
 3 Sprigg V. Sigcan [1897] A. C, 238. 
 
 * Speaker, etc., v. Glass, L. R. 3, P. C. 560. 
 5 Falkland Islands Co. v. The Queen, i Moore P. C, N. S. 299, 
 
 30 
 
that " by a disregard of the forms of legal process, or by some viola- 
 tion of natural justice or otherwise, substantial and grave injustice has 
 been done." i Under the British system, then, the subjects of the 
 Queen in all parts of her dominion may appeal for redress of injuries 
 to a permanent tribunal whose territorial jurisdiction expands with 
 the expansion of the Empire. There is no such tribunal in the United 
 States. Citizens in an annexed district have no recourse to the 
 federal courts until Congress shall so provide. In these circum- 
 stances it behooves Congress to extend promptly the federal judicial 
 system to the annexed territories. 
 
 After the authority of the United States shall have been established 
 in the Philippines, Federal courts opened, and necessary laws enacted, 
 after the government shall have done its part toward confirming the 
 rule of the Constitution, the islanders must learn to live up to it before 
 it can mean to them what it means to us. We do not hand down the 
 Constitution to the Filipinos in the anticipation of an early acceptance 
 of its principles. Indeed, the unanimous protest that the islands shall 
 never be admitted to statehood affirms our conviction that the island- 
 ers can never be trusted with a share of the political power of the 
 Republic. We do not believe, we do not wish to believe the enthu- 
 siastic prophecy with which the Philippine Commissioners close their 
 preliminary report : " When peace and prosperity shall have been 
 established throughout the archipelago, when education shall have 
 become general, then, in the language of a leading Filipino, his people 
 will, under our guidance, 'become more American than the Americans 
 themselves.' " 
 
 A hostile environment does not annul the Constitution, although it 
 may impair its efficiency. In the Philippine Archipelago, as in all 
 United States territory, the Constitution confers rights upon the ig- 
 norant and the unwilling as well as upon those who value them ; 
 enjoins our pubUc servants to respect it in all their dealings ; justifies 
 resistance to acts forbidden by it; and, in theory of law, renders 
 void every command, and illegal every act disregarding its pro- 
 hibitions. 
 
 EFFECT OF DENYING THE CONSTITUTION TO THE PHILIPPINES. 
 
 I do not belittle the inconvenience of governing the Philippines 
 under the Constitution, but, having acquired the islands, we had better 
 
 1 Dillet's Case, 12 Appeal Cases, 459. 
 31 
 
accept constitutional responsibilities in their regard than face the con- 
 sequences of rejecting them. Rejection would mean to the Filipinos 
 the rule of a new master of higher purpose, of greater ability, of kind- 
 lier disposition than the old one, yet equally free from the restraints of 
 law. Defining the so-called rights of the islands under such a regime, 
 the Secretary of War proffers " moral right," and " the nature of our 
 government," and " implied contract " as efficient substitutes for legal 
 guarantees,! in disregard of the fact that the Constitiltion demonstrates 
 our conviction oftheir inefficiency, our determination that neither prej- 
 udice of race, or class, or religion, nor the power of one or of many 
 shall overcome the rights of man so far as the written law, enforced 
 by the courts, can maintain them. And who shall say that the con- 
 stitutional restraints so necessary in the self-governing sections of the 
 Republic are superfluous in the Philippines ? Who shall say that 
 abuse of power decreases Tvith the increase of opportunity in the face 
 of the unprincipled bill, now pending in Congress, discriminating 
 against our fellow-citizens in Puerto Rico? 
 
 Were the Filipinos alone concerned we might perhaps be seduced 
 to try our hand at absolutism, but the evil course would have far- 
 reaching consequences. 
 
 Should the Constitution be denied to the Philippines on the ground 
 that it is only effective in the States the people of the Territories and 
 the District of Columbia would be deprived of its protection, and they 
 would suffer this wrong, not because of their deserts, but by the opera- 
 tion of a rule fabricated for the handling of a host of Malays, over 
 whom we have hastily asserted dominion. If to live beyond the 
 States is' to live beyond the Constitution, New Mexico, Arizona, 
 Oklahoma, Alaska, and Hawaii and Puerto Rico as well, will instantly 
 present a moral claim to statehood that we may find it difficult to 
 disregard. 
 
 Should the Constitution be denied to the Philippines upon any pre- 
 text a drawback from indiscriminate expansion will be removed. 
 While acquisition of territory means the enlargement of the United 
 States and the reception of new citizens, while Congress must gov- 
 ern all country within its jurisdiction as a commercial and social unit, 
 the American people will not covet outlying land if its acquisition 
 means fellowship with uncongenial multitudes. 
 
 1 See Report for 1899, pp. 26-27. 
 32 
 
THE CONSTITUTION AND A COLONIAL POLICY. 
 
 We are told that the United States are a nation and are therefore 
 competent to deal with the Filipinos as any other nation, especially 
 Great Britain, might deal with them under the circumstances. This is 
 true in the sense that there is an ultimate authority in the Republic sub- 
 stantially similar to the authority of the British nation. It is not true 
 in the intended sense that this authority is lodged in the Federal Gov- 
 ernment. The British Parliament is the British nation for every purpose. 
 The Federal Government is the American nation only for the purpose 
 of exercising the powers delegated in the Constitution by the people 
 of the several States, who have reserved to themselves or to the States 
 all powers not delegated, and the right to amend the Constitution. 
 
 The immeasurable diiference between the limited powers of 
 Congress and the omnipotence of ParUament is recognized by our 
 courts,! and it cannot be too strongly emphasized at this moment, 
 when a sudden admiration for Enghsh colonial policy has begotten 
 the desire to imitate it. 
 
 The will of Parliament is the fundamental law of the British Em- 
 pire whose parts are united by their common subjection to it, and 
 ParUament governs the scattered lands and the polyglot people with 
 equal and unfettered power. England and the Gold Coast, the citi- 
 zen of London and the native of India are on an equal footing before 
 an authority that knows no legal restraint. The Constitution is the 
 fundamental law of the United States. So long as its broad guaran- 
 tees run throughout their territory all the people are equal before the 
 law in respect of their civil rights. But if these guarantees are not 
 general all are not equal before the law. There is the law of the 
 Constitution for some, the pleasure of Congress for others. The dif- 
 ference between British and American legislative systems shows how 
 repugnant the British colonial policy would be to the spirit of our 
 institutions even were it agreeable to their letter. An opportunist 
 colonial pohcy, so harmonious with the British scheme of government, 
 would be a strange graft on American institutions which are distin- 
 guished, and, as I think, admirably distinguished, from all others by 
 their imposition of real restraints upon governmental power. 
 
 By the law of the Constitution all land within the sovereignty of the 
 United States is one country; all people within their jurisdiction are 
 one people, who enjoy life, liberty and property of constitutional right 
 
 1 See Van Home's Lessee v. Dorrance, 2 Dallas, 304, 307; Justice Harlan's 
 opinion in Robertson v. Baldwin, 165 U. S. 275, 296. 
 5 33 
 
without regard to which side of a boundary line between State and 
 Territory or of lines of latitude or longitude they happen to live ; these 
 lines cannot be made a hindrance to the course of legitimate com- 
 merce. A few months ago this statement was generally accepted as 
 good law and policy, and it might not be so seriously questioned to- 
 day had the Treaty of Paris limited our acquisitions to American terri- 
 tory. It is the circumstance of conquest in Asia with its suppressed 
 but inevitable suggestion of further aggrandizement in the East, for 
 while we talk of the Philippines we are thinking of China, that 
 provokes the assertion that at last we have gone beyond the proper 
 sphere of the Constitution. 
 
 Assuming, for the sake of argument, that the assertion is true or, at 
 all events, expresses the deliberate wish of the American people, how 
 shall we deal with the question it presents ? Certainly not by accept- 
 ing an injurious rule as a perpetual obligation, or by refusing to admit 
 that the Constitution must come at last to reflect a matured public 
 opinion. If the supremacy of the Constitution in the Philippines 
 will cause serious embarrassment, the approbation of law will not 
 make it endurable. Or, if the American people are unwilling to treat 
 the islands as United States territory in any circumstances no rule of 
 law will long compel them. I am convinced that either event should 
 move us to relinquish sovereignty over the country we cannot or will 
 not govern according to our Constitution. Any abandonment of 
 constitutional for arbitrary rule must weaken the moral supremacy 
 of the Republic, and the taking over of millions of Asiatics who are 
 deemed unfit for fellowship must increase its burdens without bringing 
 new strength to bear them. 
 
 But should these considerations be overborne by a determination 
 to hold the Philippines as a subject province at all cost, let the Con- 
 stitution as it stands remain unspoiled by interpretations restricting 
 it to the States, or conditioning its efiicacy in federal territory upon 
 the pleasure of Congress or the treaty-making body. Let us frankly 
 admit that in ruling without the restraint of organic law the government 
 would assume an office requiring the approval of imperial standards 
 for its acceptance, the delegation of imperial powers for its adminis- 
 tration, and then approve these standards and delegate these powers 
 in a special amendment of the Constitution. I have seen no consid- 
 ered suggestion that the Constitution be amended, yet it must come 
 to Jliis if the United States are to eipbark upon a colonial policy, with 
 lawful, adequate and unquestioned powers. A short amendment 
 would serve to distinguish the Republic, governed under the old 
 organic law, from outlying provinces ruled as policy shall dictate. 
 
 H 
 
THE GOVERNING OF THE PHILIPPINES. 
 
 The incorporation of the Philippines into the United States, and 
 their subordination to the Constitution, are legal results of our acquisi- 
 tion of territorial sovereignty through the operation of the Treaty of 
 Paris. Whether sovereignty should have been acquired is strenuously 
 disputed. That it has been acquired is the controlling factor in the 
 situation, and while it is maintained we must address ourselves to 
 practical questions of government and policy involved in the adminis- 
 tration of United States territory, some of which have been already 
 considered. 
 
 EFFECT OF ANNEXATION UPON THE OLD ORDER. 
 
 One of the first questions suggested by the coming of a new sove- 
 reign to a country has regard to the fate of that old order which is 
 evidenced by the local law. Chief Justice Marshall says, " the law 
 which may be denominated political is necessarily changed." i This 
 statement is true in the broad sense that the peculiar attributes and 
 powers of the old sovereign are not transmitted to the new one, nor do 
 the laws through which such powers have been exercised become its 
 laws. As the Supreme Court said in a later case, ^ " It cannot be ad- 
 mitted that the King of Spain could, by treaty or otherwise, impart to 
 the United States any of his royal prerogatives ; and much less can it 
 be admitted that they have capacity to receive or power to exercise 
 them. Every nation acquiring territory, by treaty or otherwise, must 
 hold it subject to the constitution and laws of its own government, 
 and not according to those of the government ceding it." And other 
 parts of the law termed " political " may, for one reason or another, 
 lapse upon a transfer of sovereignty. 
 
 Although the new sovereign has a right to change all the political 
 institutions of the annexed district Chief Justice Marshall did not 
 mean that the act of annexation necessarily effects this sweeping re- 
 sult, and governmental agencies consistent with the new order may be 
 utilized without confirmatory legislation. The vitality of municipal 
 agencies, for example, is illustrated in the case of California, where 
 the state courts have even sustained grants oi pueblo (town) land 
 made during the existence of the military government by ayuntami- 
 
 1 American Ins. Co., v. Canter, l Peters, 511, 542. 
 
 2 Pollard V. Hagan, 3 Howard, 212, 225. See also New Orleans v. U. S., 10 
 Peters, 662, 736. 
 
 35 
 
entos acting under the old Mexican law.^ So, the courts of a coun- 
 try are not necessarily closed by its cession. The Treaty of Paris 
 recognizes this in the provision that civil suits undetermined at the 
 time of the exchange of ratifications may be prosecuted to judgment 
 in the court in which they are pending, or in such court as may be 
 substituted therefor. And the courts of California have affirmed the 
 validity of proceedings in tribunals of Mexican origin acting under 
 the military government.''* In regard to civil as distinguished from 
 political law it is well settled that a system of jurisprudence already 
 established in annexed territory is not supplanted by the system of 
 the acquiring state by the mere act of transfer, but subsists until the 
 new sovereign shall see fit to change it;' and the United States ob- 
 serve both the rule of public law and the obligations of the Constitu- 
 tion in respecting private property and rights in annexed territory 
 which have become duly vested under the old laws.* 
 
 Except as they are the foundation of private rights already vested 
 and compatible with the Constitution the laws of annexed territory 
 impose no permanent obligation upon the United States, yet all may 
 not be in one category. 
 
 Laws conflicting with the Constitution impose no obUgation what- 
 ever. 
 
 If an act of Congress extends of its own force to the ceded terri- 
 tory it displaces all laws inconsistent with its provisions. This state- 
 ment is made rather for the sake of precaution than with a definite 
 suggestion as to its practical bearing, for, while certain acts may be, 
 perhaps, in some sense self-extending,^ there has not been established 
 a general rule according to which this quality shall be attributed. Cer- 
 tainly self-extending acts must be exceptional, for it is pfesumed that 
 a legislature enacts a law with regard to the known requirements of 
 the country then within its jurisdiction, and not to the unknown re- 
 quirements of after-acquired territory. This presumption is sustained 
 by the common practice of our government, and by our observance of 
 the rule, just mentioned, that the laws of annexed territory generally 
 
 1 Hart V. Burnet, 15 California, 530, 559. See also Townsend v. Greeley, 5 
 Wallace, 326. 
 
 2 Mena v. Le Roy, i California, 216; Ryder v. Cohn, 37 California, 69. 
 
 3 Campbell v. Hall, Cowper 204; U. S. v. Percheman, 7 Peters, 51, 80; 
 Strother v. Lucas, 12 Peters, 410, 436. 
 
 « U. S. V. Percheman, 7 Peters, 51, 86; U. S. v. Moreno, i Wallace, 400. 
 5 See Cross v. Harrison, 16 Howard, 164, 197. 
 
 36 
 
subsist until they are definitely superseded; a rule of litde value did 
 the general statutes of the United States extend to the territory of 
 their own force. 
 
 All other laws stand until changed by the authority of Congress. 
 
 THE POWERS OF THE PRESIDENT. 
 
 The President is in possession of the Philippines and governs them 
 by mihtary agents. This government originated in a belligerent oc- 
 cupation of foreign territory, and, agreeably to the precedent approved 
 by the Supreme Court in the case of California, it was not dissolved 
 by the transfer of the islands at the end of the war, but continues until 
 superseded by Congress.^ 
 
 The rightful existence of this government being conceded, we 
 must determine its powers. The President's message states that the 
 government of Puerto Rico is maintained by the Executive Depart- 
 ment, " under the law of belligerent right," ^ and of course this state- 
 ment includes the Philippines since both districts are in like case. 
 It is not perceived how the President can act under this law in any 
 territory acquired from Spain. Belligerent right is predicated upon a 
 state of war. Puerto Rico is at peace. Chief Justice Chase declared 
 the invariable rule when he said in MiUigan's case,* " where peace 
 exists the laws of peace must prevail." Belligerent right is predicated 
 upon a state of formal war. There is an insurrection in the Philip- 
 pines, but there is not a formal war. We have carefully refrained 
 from treating the insurgents as belligerents. What powers the Presi- 
 dent might enjoy under the law of beUigerent right I do not discuss, 
 for it is as inapplicable in the ceded territory as it was in the like case 
 of California, of which President Polk said : " Upon the exchange of 
 ratifications of the treaty of peace with Mexico . . . the tempo- 
 rary governments which had been established over New Mexico and 
 California by our mihtary and naval commanders by virtue of the 
 rights of war ceased to derive any obligatory force from that source 
 of authority. . . . " * The President's governments in Puerto Rico 
 and the Philippines are precisely alike in origin and powers. They are, 
 indeed, military as distinguished from civil governments estabKshed by 
 Congress, but they are not to be administered according to the laws of 
 war. In the disturbed Philippines, as in quiet Puerto Rico, the Presi- 
 dent is the steward of territory belonging to the United States, in 
 
 1 Cross v. Harrison, l6 Howard, 164, 193. 2 Page 50. 
 
 3 4 Wallace, 2, 140. * Messages of the Presidents, IV., 638. 
 
 37 
 
virtue of his office, and the fact that this territory is under the jurisdic- 
 tion of Congress, though not yet organized under its laws, goes far 
 towards indicating the duties, the powers and the limitations of his 
 stewardship. 
 
 The President is bound to uphold the sovereignty of the United 
 States, and they magnify his office who urge him to recognize a Fili- 
 pino republic or declare a protectorate or acknowledge in any way 
 the existence of a local sovereign. The islands are in his charge, not 
 at his disposition. They have been annexed by treaty and, unless 
 wrested from us, cannot be dissevered except by legislation of equal 
 solemnity. 
 
 Of the strictly military powers of the President it need only be said 
 that in the face of insurrection he enjoys precisely the same authority 
 in the Philippines as elsewhere in the territory of the United States. 
 And these powers extend of course to the maintenance of peace gen- 
 erally. 
 
 Although the authority of the President is called " military " it has 
 a civil side. We have seen that the annexation of a country does not 
 necessarily abolish all its old laws and governmental agencies, and 
 perhaps some laws of Congress may extend to it by their own force. 
 Unquestionably the President is competent to enforce these laws and 
 utilize these agencies, as far as circumstances permit. Thus far the 
 President's powers are normal, being wholly of an executive nature. 
 
 There remains the question whether the President may exercise 
 legislative powers in the ceded territory pending action by Congress, 
 and I mean by legislative powers the enactment of new laws and the 
 repeal, alteration or suspension of old ones, the extension of acts of 
 Congress, the creation of offices, the imposition of new taxes and the 
 appropriation of their revenue — in fine, the powers of Congress. Sir 
 William Anson says of English practice: "Colonies acquired by 
 conquest or cession fall at once under the legislative powers of the 
 Crown in Council, subject always to these limitations that Parhament 
 might intervene and make provision for the government of the colony, 
 and that the Crown could not make laws ' contrary to the funda- 
 mental principles' of English law, nor presumably enforce such 
 laws if found among the colonists at the time of cession." i The 
 power to legislate for ceded territory thus vested in the Crown in 
 
 1 The Law and Custom of the Constitution, The Crown, 2d Ed., 274. 
 
 38 
 
Council is not enjoyed by the President when the United States ac- 
 quire territory; it vests in Congress, whose jurisdiction attaches at 
 once, and within this jurisdiction there is no room for an executive 
 prerogative of legislation even by the permission of Congress. In the 
 words of the Supreme Court, « That Congress cannot delegate legis- 
 lative power to the President, is a principle universally recognized as 
 vital to the integrity and maintenance of the system of government 
 ordained by the Constitution." i 
 
 The prohibition against executive legislation in United States terri- 
 tory is not affected by the judgment of the Supreme Court upon the 
 Kearny Code of New Mexico. This code was promulgated by Gen- 
 eral Stephen M. Kearny in 1846, while in command of our forces in 
 hostile occupation of New Mexico. It was argued that the code lapsed 
 upon the termination of the belligerent status of the territory by its 
 formal cession to the United States, leaving the old Mexican law as 
 the law of the land. But the Court held that the Kearny Code was 
 entitled to respect as the law in force at the date of cession. 2 Here 
 was a code of purely executive, indeed of belligerent, origin recog- 
 nized by the Court, yet the decision is not an authority for the 
 exercise of general legislative powers in annexed territory, for this is 
 a part of the United States, while the Kearny Code was proclaimed 
 in a foreign land. In other words the powers of legislation which, ac- 
 cording to Leitensdorfer v. Webb, may be exercised by the President 
 as commander-in-chief of our forces in belligerent occupation of for- 
 eign territory, where Congress has no jurisdiction, are not enjoyed in 
 the United States, where Congress is supreme. Nor is the prohibition 
 affected by the decision in Cross v. Harrison : ^ After the ratification 
 of the treaty ceding California to the United States had been com- 
 municated to our military governor in occupation of the territory he 
 ordered that the duties of the Tariff Act should be collected upon 
 foreign imports, created the office of collector, and appointed a civilian 
 thereto with a salary. In dismissing a suit for the recovery of duties 
 paid under protest the Court sustained these acts of a legislative 
 nature, saying, " It has been sufficiently shown that the plaintiffs had 
 no right to land their foreign goods in California at the times when 
 their ships arrived with them, except by a compliance with the regu- 
 lations which the civil government were authorized to enforce — first, 
 under a war tariff, and afterward under the existing Tariff Act of the 
 United States. By the last, foreign goods, as they are enumerated, 
 
 1 Field V. Clark, 143 Vi S-. 649, 692. 2 Leitensdorfer v. Webb, 20 Howard, 176. 
 3 16 Howard, 164. 
 
 39 
 
are made dutiable — they are not so because they are brought into a 
 collection district, but because they are imported into the United States. 
 The Tariff Act of 1846 prescribes what that duty shall be. Can any 
 reasonbe given for the exemption of foreign goods from duty because 
 they have not been entered and collected at a port of delivery ? . . . 
 The right claimed to land foreign goods within the United States at 
 any place out of a collection district, if allowed, would be a violation 
 of the provision in the Constitution which enjoins that all duties, im- 
 posts, and excises shall be uniform throughout the United States. 
 Indeed, it must be very clear that no such right exists, and that there 
 was nothing in the condition of California to exempt importers of for- 
 eign goods into it from the payment of the same duties which were 
 chargeable in the other ports of the United States." ^ The gist of 
 this paragraph is that a tariff act is so far binding upon territory ac- 
 quired after its passage that the President, in possession, is expected 
 to collect the duties, but the Court did not appear to be thoroughly 
 satisfied with this position, for at the close of the opinion we read : 
 " We do not hesitate to say, if the reasons given for our conclusions 
 in this case were not sound, that other considerations would bring 
 us to the same results ; " and the last of these considerations, which 
 are generally of a practical nature, is " that the Congress has by two 
 acts adopted and ratified all the acts of the government established 
 in California upon the conquest of that territory, relative to the col- 
 lection of imposts and tonnage from the commencement of the late 
 war with Mexico to the 12th November, 1849, expressly including 
 in such adoption the moneys raised and expended during that period 
 for the support of the actual government of California after the ratifi- 
 cation of the treaty of peace with Mexico. This adoption sanctions 
 what the defendant did. It does more — it affirms that he had legal 
 authority for his acts." From the opinion in Cross v. Harrison we 
 gain the impression that the acts of the President in California were 
 made good by Congress rather than warranted by his own powers. 
 In applying the rule that the President is without legislative power 
 in United States territory to the present case I do not suggest an in- 
 variable test by which administrative decrees issued from Washing- 
 ton directly, or through the military government in the islands, are to 
 be approved as executive regulations or condemned as acts of legisla- 
 tion. It is sufficient for our purpose, however, to note that decrees 
 plainly of the forbidden sort are promulgated in the annexed territory .2 
 
 1 P. 198. The italics are mine. 
 2See General Davis's Report on Puerto Rico, Oct. 13, 1899, pp. 107-156. 
 
 40 
 
Perhaps some examples of executive usurpation of the powers of 
 Congress may be unearthed, but the present Administration appears to 
 be the first that has ever made laws for United States territory under 
 claim of right. The incapacity of the Executive Department to legislate 
 for unorganized territory was recognized by President Jefferson in the 
 case of Louisiana! and by President Polk in the case of Cahfomia^ 
 and the wretched plight of Alaska, a territory neglected by Congress 
 for more than thirty years, has been laid before Congress by every 
 President, none of whom has supposed, however, that the inactivity 
 of the legislature has given him the right to act in its stead. Yet, 
 while President McKinley's last message recites that, "there is prac- 
 tically no organized form of government in the Territory [Alaska]. 
 There is no authority except in Congress to pass any law no matter 
 how local or trivial. . . ."' , we find no expression of doubt as to his 
 powers to legislate for the unorganized Philippine territory, and that 
 these powers are not really assumed upon the plausible though mis- 
 taken ground of the existence of insurrection is shown by the fact that 
 the same powers are exercised in the peaceful territory of Puerto Rico. 
 
 As the Administration declares that its government of the islands 
 " is maintained by the law of belligerent right," * it may harbor the 
 idea that it enjoys the broad powers of a conqueror. Or, as it seems 
 to be committed to the doctrine that the Constitution is inoperative 
 in the ceded territory it may arrogate to itself all governmental powers 
 upon the theory that the constitutional separation of powers does not 
 affect the President as the custodian of the Philippines. Neither of 
 these positions is tenable, as I have shown. Whenever the Adminis- 
 tration has legislated for Puerto Rico and the Philippines since their 
 annexation it has invaded the province of Congress, and all arguments 
 of extenuation must come at last to the plea of necessity. 
 
 In considering this plea we must dismiss at the outset the notion 
 that the assembling of Congress in stated session worked a change in 
 the President's powers as administrator of the annexed territory, by 
 depriving him of legislative functions enjoyed of necessity during the 
 recess. These powers are the same in recess as in session, as, in the- 
 ory of law the President never lacks the co-operation of the legisla- 
 ture except, perhaps, during the brief time needed to convene it in 
 special session. If then the President possessed legislative powers of 
 necessity when he might have called Congress but did not, his right 
 must be based upon the mere inaction of Congress, and not upon the 
 
 1 Messages of the Presidents, I., 363. 2 Messages, etc., 589, 638. 
 
 3 Page 48. * See supra, page 37. 
 
 6 41 
 
physical impossibility of its acting, for this was due to his failure to 
 convene it, and on this theory he would possess legislative power now 
 while Congress sits but does not act. And this appears to be the 
 opinion of the Administration, for the Secretary of War has lately 
 decreed an order forbidding the foreclosure of mortgages in Puerto Rico 
 for six months, unless Congress shall otherwise provide. In opposi- 
 tion to this theory I submit the proposition that no legislative pow- 
 ers accrue to the President because of the inaction of Congress. If, 
 in his judgment, legislation for annexed territory is necessary he may 
 commend it to Congress in regular or special session ; if Congress 
 shall not legislate on his motion, or its own, it is presumed to be satis- 
 fied with the existing body of law comprising the Constitution, the 
 old law of the territory and such United States statutes as may ex- 
 tend of their own force. 
 
 Whatever moral weight a plea of necessity may have when in a 
 recess of Congress instant action is required to avert a threatened 
 peril, it has none in this case. The governing of the islands is not an 
 emergency in itself. Congress had provided for their acquisition be- 
 fore it adjourned in March, 1899, and must be presumed to have 
 anticipated that the President would probably take charge of them 
 during the usual recess. If, before the next regular session, there had 
 arisen a need for legislation the President should have convened 
 Congress. He cannot plead the emergency of a. condition caused by 
 his failure to call the legislaturei 
 
 Breaches of the rule against executive legislation are not condoned 
 by the good intentions of a chief magistrate or by the excellence of 
 his decrees. 
 
 When the people commenced the Constitution with the law: "All 
 legislative powers herein granted shall be vested in a Congress of the 
 United States," they laid a prohibition upon all presidents at all times. 
 Yet breaches are not always beyond repair. 
 
 The redeemable legislative acts of a President are those which Con- 
 gress could have passed and can ratify. For these President McKin- 
 ley should seek legislative approval, as President Taylor sought it for 
 some acts of the military government of California,^ and as the British 
 Government sought it in the case of " the forty days' tyranny " in 
 1766, during which it suspended the laws permitting the export of com. 
 Irredeemable acts are those which Congress is constitutionally incom- 
 petent to ratify. 
 
 I Messages of the Presidents, V,, 19- 
 
 42 
 
THE POWERS OF CONGRESS. 
 
 Congress is supreme in the Philippines, and it acquired jurisdic- 
 tion the moment the islands became United States territory. The 
 impression that Congress will not be supreme until it actually legis- 
 lates for the islands is erroneous. Congress is paramount over all 
 United States territory, and in legislating for the Philippines it will 
 not newly take jurisdiction, but will exercise jurisdictional rights al- 
 ready vested in it by the operation of the Treaty of Paris. 
 
 Whether the power of Congress to govern territory be derived from 
 the provision of the Constitution which reads : " The Congress shall 
 have power to dispose of and make all needful rules and regulations 
 respecting the territory or other property belonging to the United 
 States; and nothing in this Constitution shall be so construed as to 
 prejudice any claims of the United States or of any particular State," i 
 — a provision plainly relating to the management of property, es- 
 pecially in public land, and not to the governing of people — or 
 whether the power be derived, logically, from the " right to hold terri- 
 tory," 2 all will agree with Chief Justice Marshall that " whichever may 
 be the source whence the power is derived, the possession of it is 
 unquestioned."* And the scope of the power must be the same 
 whichever its source. 
 
 The scope of federal power over territory beyond the States is thus 
 defined by the Supreme Court : " By the Constitution, as is now well 
 settled, the United States having rightfully acquired the territories and 
 being the only government which can impose laws upon them, have 
 the entire dominion and sovereignty, national and municipal, federal 
 and state, over all the territories so long as they remain in a territo- 
 rial condition." * In virtue of these powers Congress enjoys a wide 
 discretion in prescribing a government for the Philippines. Any form 
 is permissible, from an organization chosen by the islanders to a gov- 
 ernor or commission appointed by the President. But a territorial 
 government is essentially subordinate and precarious. Congress 
 remains the sovereign body, and may alter or abolish it at will and 
 exert superior legislative powers during the term of its existence. The 
 
 1 American Ins. Co., -u. Canter, i Peters, 511, 542. 
 
 sSfere V. Pitot, 6 Cranch, 332, 336; Scott v. Sandford, 19 Howard, 393, 443; 
 U. S. V. Kagama, 116 U. S., 375, 38°- 
 3 American Ins. Co., v. Canter, i Peters, 511, 543. 
 
 *Shivelyz'. Bowlby, 152 U. S., I, 48. See also National Bank v. County of 
 Yankton, loi U. S., 129, 133. 
 
 43 
 
unquestioned power of Congress to establish a territorial government 
 without enlisting the cooperation of the people, or even consulting 
 them, results from the necessary denial of popular sovereignty in the 
 territories ; but this government, however arbitrarily imposed, cannot 
 be arbitrary in conduct for it must obey the law of the Constitution. 
 
 The current session affords Congress the first opportunity to exert 
 its constitutional powers in the Philippines, and though it should not 
 legislate freely in respect of the islands in advance of reliable informa- 
 tion of their requirements a general policy of deliberation will not 
 excuse neglect of prompt efforts to ameliorate some of the worst 
 conditions. 
 
 Each day of unrest in the Philippines makes our presence more 
 hateful and postpones our opportunity for helpfulness ; indeed, if re- 
 sistance be greatly prolonged we may learn one day that we have 
 demoralized a people we promised to benefit. The Republic itself 
 may be menaced by persistent disaffection, for if it shall be involved 
 presently in a new and greater war the enemy will find allies in the 
 Philippine territory. The Administration is blameworthy for having 
 belittled the strength of the insurrection. If the President shall now 
 call for troops to garrison the islands thoroughly he will not be 
 blamed for exaggerating it. But whatever may be the state of the 
 insurrection, the peace we want is contentment — not merely the end of 
 strife ; and we cannot hope that one will follow the other while we 
 treat disaffection as wanton opposition to a benign sovereign, and 
 armed resistance to its authority as unnatural rebellion. 
 
 The attitude of regretful surprise that Filipinos should resist our 
 benevolence is a dishonest pose. When we recall that a few months 
 ago we knew nothing of the Philippines, know little now in fact, we 
 may comprehend how ignorant must be the islanders of the institu- 
 tions and spirit of our Republic, how possible it is that with their ex- 
 perience of white rulers they should view the United States as more 
 dreadful than Spain because more powerful. In these circumstances 
 conciliation is not an improper overture to rebels. It is a generous 
 effort to allay the mistrust of a strange people, and to assure mutual 
 comprehension between parties brought unexpectedly into a difficult 
 relation. In pursuance of these ends let Congress cause proclama- 
 tion to be made that the Philippines are not a dependency, but are 
 part of the Republic and within the protection of the Constitution ; and 
 especially that citizenship and civil rights are bestowed in the Philip- 
 pines as in all other United States territory, and that trade between 
 
 44 
 
all parts of the Republic is free. This proclamation should not be 
 withheld because proclamations of the President and his representa- 
 tives have failed, for as a message from Congress declaring the law of 
 the Constitution it will be of higher dignity and promise. Nor should 
 it be issued with an exaggerated hope of its influence, since the sending 
 of a message is after all but a one-sided dealing at arm's length with a 
 situation that requires intimate discussion. Representative Filipinos 
 should be invited to attend a conference to be held at Washington, and 
 they should be received neither as traitors nor as heroes, but as people 
 of a new territory come to discuss the vital question of its government. 
 If it be objected that any intercourse with insurgents is beneath our 
 dignity let us remember that President Lincoln left his capital to talk 
 with Confederate leaders at Hampton Roads, set in his own opinions, 
 with no expectation of changing theirs, but determined that no chance 
 for peace should be lost through lack of consideration on his part. 
 
 The President's government in the Philippines is so incompetent 
 that Congress should supersede it at once. A bill has been introduced 
 providing " That when all insurrection against the sovereignty and 
 authority of the United States in the Philippine Islands, acquired from 
 Spain by the treaty concluded at Paris on the tenth day of December, 
 1898, shall have been completely suppressed by the military and 
 naval forces of the United States, all military, civil and judicial powers 
 necessary to govern the said islands shall, until otherwise provided by 
 Congress, be vested in such person and persons and shall be exercised 
 in such manner as the President of the United States shall direct for 
 maintaining and protecting the inhabitants of said islands in the free 
 enjoyment of their liberty, property and religion." A precedent for 
 this bill is said to be found in the action of Congress after the annex- 
 ation of Louisiana. On October 31, 1803, ten days after the exchange 
 of the ratifications of the treaty of cession, Congress passed an act 
 authorizing the President to take possession of Louisiana and pro- 
 viding " that until the expiration of the present session of Congress, 
 unless provision for the temporary government of the said territories 
 be sooner made by Congress, all the military, civil and judicial powers, 
 exercised by the oflScers of the existing government of the same, shall 
 be vested in such person and persons, and shall be exercised in such 
 manner, as the President of the United States shall direct for main- 
 taining and protecting the inhabitants of Louisiana in the free enjoy- 
 ment of their liberty, property and religion." ' The Louisiana Act was 
 1 2 Statutes at Large, p. 246. 
 45 
 
followed substantially in the case of Florida ^ and may have inspired 
 a part of the Act annexing Hawaii,^ but it will be shown that it is not 
 a precedent for the Philippine bill. 
 
 The government of Louisiana, such as it was, was established defi- 
 nitely. The Philippine government is to be called into being by the 
 President upon the happening of an event of which he is to be the 
 sole judge — the suppression of insurrection. And in this relation 
 the bill is open to the serious objection that it recognizes, inferen- 
 tially, the law of belligerent right as the present foundation of execu- 
 tive jurisdiction in the islands. 
 
 The Louisiana Act continued the old government of Louisiana 
 and merely authorized the President to fill its oflSces. The Philippine 
 bill enables the President to erect a government at will, manned by 
 " such person and persons . . . as he may direct." 
 
 The Louisiana Act did not purport to confer legislative powers 
 upon the President, and Governor Claiborne's first proclamation ex- 
 pressly recognized the obligation of the old laws and municipal regu- 
 lations. The Philippine bill seems to concede to the President full 
 legislative powers. 
 
 The Louisiana government was to last no longer than the then 
 session of Congress, though the new government ordained by Congress 
 on March 24, 1804, was not actually installed until October i, 1804. 
 The Philippine government is without term. 
 
 Viewing the bill as an Administration measure and recalling the 
 opinion of the Administration that the Constitution is not law in the 
 Philippines, it seems that it purposes to invest the President with 
 the right, or perhaps I should say to recognize that he has the right 
 to hold all legislative powers in the island and exercise them at his 
 pleasure. If this be the purpose of the bill it approves the powers of 
 the British Crown over dependencies not regulated by Parliament 
 without imposing the checks upon their abuse which obtain in the 
 British system where the Crown can do nothing "contrary to the 
 fundamental law," ^ and where relief from injustice may be had through 
 an appeal to the Judicial Committee of the Privy Council.* 
 
 The Philippine bill is a halting measure of doubtful legality. It 
 merely conveys an impression that some day, in some way something 
 ought to be done for the Philippines, whereas it is the duty of Con- 
 gress, and well within its power, to act at once. Probably Congress is 
 not now in a position to prescribe an elaborate system of government* 
 
 I3 Statutes at Large, 523- ^30 Statutes at Large, 750. 
 
 3 See supra, p. 38. * See sup-a, p. 30. 
 
 46 
 
but it is able to substitute for the present makeshift an organization 
 that will be in all respects at least lawful and' competent. Congress 
 could ordain a government modeled, broadly, upon the Act of 
 March 24, 1804, creating a temporary government for Orleans Terri- 
 tory composed of a governor, a legislative council and a court, all 
 appointed by the President and vested with sufficient powers. Such 
 a government would serve until Congress shall perfect a scheme for a 
 permanent government. 
 
 THE DISPOSITION OF THE PHILIPPINES. 
 
 I have defined the status of the Philippines, and partially outlined 
 the law governing our relation to them in order to determine the 
 responsibilities of the Federal government in their regard. I have 
 written as though there were no question of renouncing sovereignty 
 over these islands because the opportunity for renunciation in nowise 
 lightens the obligations now cast upon us, yet my conviction of the 
 impolicy of annexation, expressed before the ratification of the Treaty 
 of Paris,^ has been so strengthened by later events that I would have 
 the voting citizens of the Republic view the disposition of the Philip- 
 pines, not as settled by destiny, but as an open question. 
 
 As it is the purpose of these notes to deal chiefly with legal ques- 
 tions I shall pass over the moral and political principles that enjoin 
 us to relinquish sovereignty over the Philippines, and simply point 
 out the undoubted right and the probable method of relinquishment. 
 
 THE RIGHT OF DISPOSITION. 
 
 Although the law requires us to treat the Philippines as part of the 
 United States it does not compel us to hold them forever. The im- 
 plied right of acquisition under which we annexed the islands has its 
 opposite in an impUed right of disposition, at all events in the case of 
 territory beyond a State. 
 
 Voluntary relinquishment of territory is not unexampled : Witness 
 the cession of Louisiana by France to the United States, of Alaska 
 by Russia to the United States, of Java and Hehgoland by Great 
 
 1 See Notes on the Foreign Policy of the United States, June, 1898; A Note on 
 the Question of the Philippines, Oct., 1898; Constitutional Aspects of Annexation, 
 Dec, 189S, Harvard Law Review, Jan., 1899, reprinted in the Congressional 
 Record, Jan., II, 1899. 
 
 47 
 
Britain to Holland and Germany, respectively, of St. Bartholomew by 
 Sweden to France. The right of disposition is conceded by the Ad- 
 ministration in the agreement with the Sultan of Sulu which provides 
 that the United States will not sell the Sulu Islands without his con- 
 sent. The concession is important as showing that, in the opinion of 
 the Administration, the annexation of the Philippines has not closed 
 discussion as to their future disposition, but the provision itself is de- 
 rogatory to our sovereignty. We acquired the Sulus from Spain with- 
 out the consent of the Sultan, and we shall not require his permission 
 to sell them. 
 
 There is, however, a presumption against the ability and willingness 
 of a state to give up a section of its territory, and this is strengthened 
 where the section has been deliberately acquired, or long occupied, or, 
 above all, is identified with the rest of the country through national 
 unity or community of interest. At the outbreak of the war the 
 American people neither wished nor expected to annex the Philip- 
 pines, and, whatever individual hope of aggrandizement lurked be- 
 hind the plan of campaign in the East, the Administration maintains 
 that aggrandizement was not the purpose, though it was well advised 
 of the probable opportunity.^ Indeed, the prevailing argument for 
 annexation is apologetic : The law of war forced us to the islands ; 
 the law of necessity has chained us there. Our occupation of the Philip- 
 pines is not only of yesterday, but will probably be, during an indefi- 
 nite period, merely an armed occupation. Not only is national unity 
 beyond prophecy, but race hatred confronts us ; and we are so far from 
 even desiring community of interests that we actually tax the trade 
 between the islands and the mainland, and would view an immigra- 
 tion of Filipinos as an Asiatic plague. When we add that the Philip- 
 pines are not even an outer line of defense but rather a vulnerable 
 outpost, and are neither the home of American colonists nor the seat 
 of American investments it is perceived that we are not embarrassed 
 by considerations that usually place rehnquishment of territory be- 
 yond the pale of discussion. 
 
 THE PROTECTORATE. 
 
 The United States relinquishing sovereignty over the Philippines may 
 have a choice of courses, but as at present advised they will be per- 
 suaded to a protectoral relation. The President says in his message: 2 
 
 iSee Admiral Dewey's letter from Hongkong, Mar. 31, 1898, Senate Doc. 73, 
 56tli Cong., 1st Sess. 2 p. 44. 
 
 48 
 
" The suggestion has been made that we could renounce our authority 
 over the islands and, giving them independence, could retain a pro- 
 tectorate over them. This proposition will not be found, I am sure, 
 worthy of your serious attention. Such an arrangement would involve 
 at the outset a cruel breach of faith. It would place the peaceable 
 and loyal majority, who ask nothing better than to accept our author- 
 ity, at the mercy of the minority of armed insurgents. It would make 
 us responsible for the acts of the insurgent leaders and give us no 
 power to control them. It would charge us with the task of protect- 
 ing them against each other and defending them against any foreign 
 power with which they choose to quarrel. In short, it would take 
 from the Congress of the United States the power of declaring war 
 and vest that tremendous prerogative in the Tagal leader of the hour."i 
 The humiliating relation here depicted is a travesty of a real protec- 
 torate. A brief examination of the law and custom of protectorates 
 will show that the United States may assume the office of protector 
 without allowing a minority of armed insurgents to terrorize the 
 peaceable islanders, or permitting an Aguinaldo to call the American 
 people to arms at his whistle. 
 
 A protectoral relation always suggests the comparative weakness of 
 the protected country, but not, in its broadest sense, supervision by a 
 guardian. In this sense, perhaps, the United States may be called the 
 protector of Central and South American states, because in the Mon- 
 roe Doctrine they declare their intention to resist foreign aggrandize- 
 ment upon this continent. An extension of the Monroe Doctrine to 
 the Philippines would not enable us to fulfil our present responsi- 
 bilities in their regard. We should estabhsh a closer relation — a 
 protectorate. 
 
 " Protectorate " is a name for so great a variety of political relation- 
 ships that of itself it defines none accurately, but a few general obser- 
 vations will suggest the relation I have in view. The protectorate 
 will be founded upon a treaty or agreement with a Philippine state 
 whose organization and fundamental law shall be satisfactory to the 
 United States : I do not mean that we should draft an ideal constitu- 
 tion for the islands as did Locke for the Carolinas, nor commend, as 
 of course, our own as the perfect model, but we must condition our 
 protection upon the adoption of a practicable scheme of government 
 as enhghtened as we have a right to expect. 
 
 The Philippine state will not be an exception to the rule that a pro- 
 
 1 Page 44. 
 7 49 
 
tected state is never sovereign in all respects. It will not be officially 
 known in the family of nations, for it will hold no relations with for- 
 eign states, neither making treaties nor exchanging ministers, nor will 
 it fly a national flag upon the high seas. At every point of contact 
 between the state and the world at large the United States must 
 stand; the promoter of its interests, the defender of its rights, the 
 surety for its good behavior. This denial of official foreign inter- 
 course is necessary if only for the reason that as the protector must 
 defend the protected, it must deprive the latter of opportunity to em- 
 broil itself with a foreign state, and in anticipation of the possibility 
 of payment of damages by the United States on Philippine account 
 the treaty should provide a method of recoupment. 
 
 As the responsibility for the defense of the island requires that the 
 means be within our control the establishment of a protectorate will 
 not be followed by the withdrawal of all oiu: forces nor by the main- 
 tenance of a Philippine army at the discretion of the local govern- 
 ment. The disposition of our troops will depend upon our own 
 judgment, and so will the size and composition of a native force. 
 
 If it shall be advisable that foreigners be employed for a time in 
 certain offices in the military and civil services in an advisory or re- 
 sponsible capacity the employment must be open to Americans alone, 
 for the admission of other foreigners might lead to bickering and 
 intrigue. 
 
 A protector may commend, and in fact often dictates a foreign com- 
 mercial policy to the protected state, and any action of the United 
 States in this direction should tend to open the door to the Philip- 
 pines as wide as the exigencies of revenue will allow. 
 
 Should it appear that native courts ought not to administer civil or 
 criminal justice where Americans or other foreigners are concerned, 
 the treaty may provide and Congress maintain tribunals competent to 
 try these cases. 
 
 To suggest in a general way the protectoral attitude of the United 
 States towards the Philippines, it may be said that in matters of foreign 
 concern our interest will be very broad, but in domestic affairs it will 
 be limited to the maintenance of the Philippine state and the security 
 of the protectorate. While it is to be hoped that the people of the 
 northern islands will range themselves under a single government if 
 not of a national, at least of a confederate character, race antagonisms 
 may necessitate the recognition of more than one, and it is quite likely 
 that the southern or Mohammedan islands will require a separate pro- 
 tectorate. 
 
 50 
 
The study of the protectoral relations of other governments will be 
 profitable, but it is not likely to suggest a model. Apart from the 
 Mohammedan districts, which appear to be much like the Protected 
 States of the Malay Peninsula, the Philippines are quite dissimilar from 
 any country now under protection, for we find there a population 
 largely of Malay origin whose dominant portion has been Christian- 
 ized and civilized to a degree by Spanish influence. More importantly, 
 our action must be inspired by uncommon purposes. A protectorate 
 frequently precedes annexation ; ours would be the sign of dissever- 
 ance. A protectorate is often a cloak for substantial ownership, but 
 if ownership be our real purpose we must continue to govern the 
 islands constitutionally as part of the United States, and not set up a 
 mock state through which our government may give arbitrary orders 
 to a subject people. A protectorate is usually established without 
 period though its end may be conditioned upon the happening of an 
 unexpected event; thus it is written that Great Britain shall hold 
 Cyprus until Russia shall surrender Kars. Our protection should be 
 accorded in the expectation of its withdrawal. The battle of Manila 
 Bay has opened up interests and opportunities in the East that will 
 broaden with years, but our shortcomings at Washington have not 
 necessarily saddled us with interminable responsibilities in the Philip- 
 pines. Assuming that a protectorate will be declared with a reason- 
 able anticipation that a Philippine state will one day be able to 
 maintain a place among the smaller states of the world, the treaty 
 of protection should fix its own duration, though some provisions 
 might be accorded a longer or shorter term. 
 
 The exigencies of the protectorate may require the presence of a 
 considerable force in the Philippines, which would thus be a practi- 
 cable base of hostihties in the event of war, and for this reason would 
 be open to attack.' Yet it is hard that a country should be the theatre 
 of a war in which its people have no national interest, and to avoid 
 this hardship the establishment of a protectorate over the Philippines 
 should be accompanied by negotiations with the Maritime Powers 
 looking to their neutralization. Moreover, an earnest attempt to 
 neutralise the islands would prove that we are not in the East as 
 the foe or the ally of any nation, and its success would give us sub- 
 stantial advantages. While the Philippines are open to assault they 
 are a remote and vulnerable outpost requiring the presence of a large 
 
 1 See Despagnet, Essai sur les Protectorats, 343. 
 51 
 
force, and subject to the danger of a native uprising in aid of foreign 
 invasion. Neutralized, they will require only a force commensurate 
 with local necessities. 
 
 A protectorate is not necessarily unconstitutional So long as it is 
 an honest relation and not a subterfuge for complete control, it is one 
 of those foreign relations maintainable by the United States as well 
 because they are one of the family of nations as by the express con- 
 templation of the Constitution. While the United States have never 
 entered into a relation with another state like that commended in 
 the case of the Philippines, they have occasionally assumed a protec- 
 toral office ; notably in respect of the possible routes of interoceanic 
 canals. And our relation to Samoa, now in process of alteration, is 
 not only distinctly protectoral, but is complicated by partnership with 
 Great Britain and Germany. It is open to criticism only for reasons 
 of policy, and such reasons alone were given by President Cleveland 
 for withholding the United States from participating in the Congo 
 Protectorate.! 
 
 Our courts have never been required to define the position of the 
 United States in respect of protected territory, but it may be indi- 
 cated. Bearing in mind that the establishment of a protectorate will 
 mark our relinquishment of territorial sovereignty it is perceived that 
 the Philippines will pass straightway from the territorial jurisdiction 
 of Congress to that of the protected state, for as Justice Story states 
 the rule, " The laws of no nation can justly extend beyond its own 
 territories, except so far as regards its own citizens. They can have 
 no force to control the sovereignty or rights of any other nation, 
 within its own jurisdiction. And, however general and comprehen- 
 sive the phrases used in our municipal laws may be, they must always 
 be restricted in construction, to places and persons, upon whom the 
 legislature have authority and jurisdiction." '^ 
 
 Another statement of the Supreme Court will suggest our manner of 
 dealing with the protected state. " By the Constitution a government 
 is ordained and established ' for the United States of America,' and 
 not for countries outside of their limits. . . . The Constitution 
 can have no operation in another country. When, therefore, the rep- 
 resentatives or officers of our government are permitted to exercise 
 authority of any kind in another country, it must be on such condi- 
 
 1 Messages of the Presidents, VIII., 330. 
 
 2 The Apollon, 9 Wheaton, 362, 370. 
 
 52 
 
tions as the two countries may agree, the laws of neither one being 
 obligatory upon the other." i This was written of our consular juris- 
 diction in Japan, now ended by limitation, but it applies to any pro- 
 tectoral relation we may assume towards the Philippines. Upon the 
 establishment of a protectorate, the Federal Government will be no 
 longer the government of the islands. Any authority it may have 
 therein will be exerted in a foreign land by agreement with its sov- 
 ereign. Our rights under this agreement will be maintained by the 
 President like other treaty rights. Any legislation that Congress may 
 enact in regard to the Philippines will be of an ancillary nature, based 
 upon a general power to provide the means for maintaining the lawful 
 rights and obligations of the United States without regard to locality. 
 This jurisdiction of Congress is not territorial jurisdiction in a foreign 
 country, but is a power to be exercised in furtherance of rights law- 
 fully acquired by the United States in that country. That is to say, 
 Congress cannot impose its will on a Philippine state because it is the 
 legislature of the United States only, but it may aid in effectuating 
 the rights defined by the treaty of protection. Its aid may take the 
 form of new legislation ; for example, an act creating an international 
 court and defining its jurisdiction. More often it will be given by an 
 appropriation of money. For some years the Act making appropria- 
 tions for the diplomatic and consular service has contained this item : 
 " For the execution of the obligations of the United States and the 
 protection of the interests and property of the United States in the 
 Samoan Islands, under any existing treaty with the Government of 
 said islands, and with the Governments of Germany and Great Britain, 
 six thousand dollars, or so much thereof as may be necessary, to 
 be expended under the direction of the President." 
 
 I shall not sift the mass of conflicting opinion as to whether the 
 Filipinos are able to administer a protected state, because the Report 
 of the Philippine Commission seems to bear sufficient testimony in 
 their favor. The Commissioners describe the Filipinos as being " of 
 unusually promising material ; " 2 " strongly desirous of better educa- 
 tional advantages;"* and say that, after the insurrection has been 
 suppressed, the majority will be found to be " good, law-abiding citi- 
 zens." * They testify to the marked ability of the educated class who, 
 " though constituting a minority, are far more numerous than is gen- 
 erally supposed, and are scattered all over the archipelago." ^ In the 
 matter of government the Commissioners remark a striking likeness 
 
 1 Ross's Case, 140 U. S., 453, 464. 2 1, p. 120. 3 P. 41. ^P. 120. sp. 120. 
 
 53 
 
between the Filipino ideal and American achievement, going so far 
 as to say that the leading Filipinos have selected " almost precisely 
 the political institutions and arrangements which have been worked 
 out in practice by the American people ; and these are also, though 
 less definitely apprehended, the political ideas of the masses of the 
 Philippine people themselves." ^ Finally, the Commissioners cap 
 their appreciation by earnestly recommending for the islands a terri- 
 torial government substantially of the first class.^ It is true that in 
 spite of >these tributes to Philippine competency the Commissioners 
 are at some pains to discredit the possibility of establishing a pro- 
 tectorate;^ but, like the President, whose views they reflect, they 
 narrow their consideration of protectorates to the obviously impracti- 
 cable. And their disapproval must be weighed with due regard to the 
 fact that a recommendation of a method of relinquishing sovereignty, 
 or even an open-minded inquiry for practicable methods, would have 
 been altogether foreign to their ofiicial instructions. 
 
 The American people, relinquishing sovereignty over the Philippines, 
 still may fulfil every duty they can be truthfully said to owe to the 
 islanders, and promote every legitimate interest in the commerce of 
 the East. Best of all, in the face of a great temptation they will 
 hold by the cardinal truth that a remote country teeming with people 
 who, however competent to develop a nationality of their own under 
 our protection, can never safely be admitted to statehood, is an un- 
 desirable possession for a republic whose strength is the " indestruc- 
 tible Union of indestructible States." 
 March 8, 1900. 
 
 iPp. 91, 119. 2 Pp. Iiij 112. 3 Pp. gg^ 103. 
 
 THE DBVINNE PRESS, NEW YORK CITY. 
 
 54 
 
Page II, eighth lme,/or Britian read Britain. 
 Page 41, Note 2, a/ier etc. insert TV. 
 Page 48, de/e(e Note 2.