SOME CONSTITUTIONAL 
 ASPECTS OF 
 TERRITORIAL EXPANSION 
 
 BY 
 
 HOWARD LESLE SMITH 
 
 A PAPER READ BEFORE THE LAW 
 CLUB, CHICAGO, NOVEMBER 26, 1898. 
 
 PUBLISHED BY THE CLUB FOR ITS 
 MEMBERS 
 
£'713 
 
COMPLIMENTS OF THE LAW CLUB OF CHICAGO 
 
 SOME CONSTITUTIONAL ASPECTS OF 
 TERRITORIAL EXPANSION. 
 
 It is sometimes said that the problem of National expan- 
 sion which now confronts the American people is not a new- 
 one; but I insist that in its present aspect it is absolutely 
 new. There have been before, to be sure, propositions for 
 expansion, some of which have materialized in increased 
 territory; but such propositions have always related to ter- 
 ritory contiguous to the United States, or at least not so 
 widely separated from it, nor so vastly different from it in 
 character, but that its admission into the Union as a State 
 or States might be fairly said to have been in contemplation 
 at the time of its annexation. All of the treaties of ces- 
 sion have provided in general terms, for such admission 
 of adjacent territory into the Union so soon as the same 
 should be fit for such admission.' 
 
 The pending treaty with Spain will be the first from 
 which such a provision will be omitted. 
 
 The present proposition is for the admission of territory 
 that no man in his senses, with any sort of information as 
 to the situation, condition and population of the territory, 
 can imagine will ever become a State or States of the Ameri- 
 can Union. If the Philippine Islands are added to the ter- 
 ritory of the United States, it can not be with any expecta- 
 tion that they will ever be held by thi.s government in any 
 other relation than that of subject colonies, to be ruled, 
 
 ' These treaties may be found iu 8 Stat, at Large, 200, 25'2; 9 Id. 922; 10 
 Id. 1031; 15 Id. 539. 
 
beneficently, it is to be hoped, but nevertheless to be ruled 
 from Washington. 
 
 This is a proposition of vast importance to the people of 
 the United States and absolutely novel. The problem does 
 not present itself in this light, perhaps, to a majority of 
 those who advocate annexation; but it is because they be- 
 long to tluil optimistic class, governed by sentiment rather 
 than reason, who refuse to burden their minds with investi- 
 gations of fact, but who trust that somehow and in some 
 way, in the Lord's good time, everything will, by virtue of 
 the good luck which has heretofore attended the American 
 Nation in its various experiments, eventually turn out 
 all right. These men read that the Philippine Islands are 
 eight thousand miles from our shores; but they do not 
 stop to reflect that this means that they are more distant 
 from us than atiy portion of the Continent of Europe; 
 that the}' are as far from us as Persia and Arabia and 
 the sources of the Nile; that Manila is as distant from 
 San Francisco as Mecca and Khartcnini are from New York, 
 anil that their capital city of 250,000 inhabitants contained 
 four American residents duritig 189G-7. They do not con- 
 sider that these islands lie wholly within the tropics, reach- 
 ing to within less than five degrees of the ecjuator, and that, 
 in climate' and general characteristics, they are all that is 
 implied by the term tropical and equatorial. And I say 
 this without any disposition to speak disrespectfully of the 
 e(iuator. They lie within a zone in which no white race, 
 let alone Anglo-Saxon race, has ever been able to establish 
 itself successfully in the history of the world. Benjamin 
 k'idd places the practical limits of the tropics under ordi- 
 nary circumstances at thirty degrees on either side of the 
 
 ' A'< to climate, see " The Pliilippinf Islamic and Their People."' pp. 63 
 et seq. and 617. by Dean C. Worcester. MacMilhin Co., 1898. 
 
equator, and says of this belt, " Tlie attempt to acclimatize 
 tlie vvliite man in the tropics must be recognized to be a 
 bhmder of the first magnitude. All experiments based on 
 the idea are mere idle and empty enterprises foredoomed to 
 failure. Excepting only the deportation of the African 
 races under the institution of slavery, probably no other 
 idea whicli has held the mind of our civilization during the 
 last three hundred years, has led to so much physical and 
 moral suffering and degradation, or has strewn the world 
 with the wrecks of so many gigantic enterprises." ' Tlie 
 northernmost point of the northernmost island of any con- 
 sequence in this group, lies less than nineteen degrees from 
 the equator. They are thickly inhabited by savage races of 
 the Malay family, a large proportion of whom are Mussul- 
 mans in the South, and Chinese in the North, who have no 
 more desire to be elevated by Anglo-Saxons than the 
 benighted blacks of Wilmington, N. C, who have recently 
 fled from their homes to escape that elevation, which, never- 
 theless, some score or more of their number underwent 
 because of their inability to get away quick enough. 
 
 Of labor there is an endless amount and fabulously cheap." 
 No American workingman will ever think of seeking em- 
 ployment in the Philippine Islands, where a few cents per 
 day would be all that he could expect to receive until fever 
 claimed him for its own. Tlie only class of Americans who 
 could ever be expected to emigrate to the Philippines and 
 engage in business there are capitalists, who might reason- 
 ably be expected to undergo the dangers and inconveti- 
 iencesof a pestilential tropical climate for a season, in order 
 
 ' The Control of the Tropics, p. 48, by Benjamin Kidd. MacMillan Co., 
 1898. 
 
 - See " Yesterdays in the Philippines," by Joseph Earle Stevens. Charles 
 Scribner's Sons, 1898; " The Philippine Islands and Their People," p. 617. 
 
to reap rich harvests in the markets of the United Slates by- 
 exploiting the great natural resources with the wonderfully 
 cheap labor of the Philippines. 
 
 But if this were not so, if they lay in a temperate zone, 
 and were of a character to tolerate or invite Anglo-Saxon 
 colonization, their mere distance from us would make it 
 wholly impracticable that they should ever become States 
 of the American Union. When even (Ireat Britain finds it 
 impossible to admit to participate in her government the 
 enlightened people of Canada aii<l .Vustralia by reason of 
 their distance from the seat of government and consequent 
 differences in interests, we may rest well assured that no 
 barefooted, breech-clouted senator from Luzon will ever 
 require the aid of an interpreter at Washington to explain 
 his meaning to his fellow-senators from Massachusetts or to 
 swap funny stories with his fellow-senator from Illinois. 
 
 Unless all history and all precedent are worthless the atl- 
 mission now, or at any future time, of the Philippine Islands 
 into the Union of American States as States is as wildly 
 fantastical and impracticable as the dream of an opium 
 eater. 
 
 The question then becomes, is there any place under the 
 American Constitution for permanent colonies, and, if so, 
 what incidents will the Constitution attach to such relation? 
 
 It may be asserted with reasonable positiveness that the 
 framers of the American Constitution did not contemplate 
 the possibility of the territorial growth, in any njanner or 
 to any extent, of the government they estabhshed under the 
 forms of that Constitution. The Constitution contains no 
 provision for annexations, and this omission is itself very 
 signilicant. It seems exceedingly pnUjahle that if the 
 Constitutional (^)nvention had intended or desircii that 
 foreign nations, or largo jtortions of them, might he en- 
 
grafted into the American Union by any ordinary govern- 
 mental agency or procedure, it would have specifically 
 provided therefor in the fundamental charter, and especially 
 have thrown limitations around the exercise of such right. 
 A power of such importance would scarcely have been left 
 to be inferred from the power to make treaties and declare 
 war. For it will not be forgotten that one of the most not- 
 able characteristics of the members of the Convention was 
 a jealous}' and distrust of each other which led them to 
 provide with extraordinary care and caution against the 
 anticipated encroachments of one State, section or interest 
 upon another. It is hardly conceivable, therefore, that if the 
 New England States had foreseen a possibility of Louisiana 
 or Florida being admitted into the Union without their con- 
 sent, or if the Southern States had foreseen a like possibility 
 as to Canada, they would not have agreed in demanding and 
 insisting on such constitutional provisions, with reference 
 to their admission and participation in the Government, as 
 might have been deemed sufficient to protect them from the 
 imagined danger, on the one hand of southern, on the 
 other of northern preponderance and domination. But tiie 
 Constitution says not a word upon the subject, nor was the 
 question ever raised or mentioned in the Convention, so far 
 as the debates have been reported. 
 
 We shall have the less difficulty in believing that no such 
 thing as territorial expansion by legislative or executive act 
 was contemplated by them, if we try to put ourselves in 
 their place and recall that they regarded themselves as, and 
 in fact were, ambassadors of independent powers, met to- 
 gether for the purpose of forming an offensive and defensive 
 alliance, but without an}' intention of surrendering to the 
 central authority one single iota of sovereignty not abso- 
 lutely necessary to accomplish the purposes of the alliance. 
 
6 
 
 Tliis was the unmistakable attitude of practically all of tiie 
 members, though they diliered somewhat widely as to the 
 extent to which the purposes of the alliance required the 
 separate sovereignties to surrender the attributes of their 
 sovereignty. The Constitution is substantially the com- 
 promise of their differences on this question. 
 
 Hut, while the instrument they signed is called a Tlonsti- 
 tution, they regarded it rather in the light of a treaty, to 
 which their several States were the signatory powers, or as^ 
 the j)artnership agreement of a firm of thirteen. The idea of 
 a national entity — of national existence, power and dignity, 
 quite separate and apart from, and superior to the several 
 States of the Union — is a concept of a later age, apprehended, 
 if at all, but very dimly, and by very few of the framers of 
 the Constitution. 
 
 Now, no State can become a party to an existing treaty 
 between other States, or entitled to any of the benefits «-f 
 such treaty, without the consent of all the signatory States. 
 No partnership of thirteen can become one of fourteen with- 
 out tiie consent of all the thirteen. It is not a question of 
 majorities. There must be unanimous consent. And if the 
 framers of the Constitution contemplated the possibility (as 
 they may very well have done) that perhaps some day 
 Canada or Florida or Loui.siana or Mexico might wish to 
 join them in a like defensive or ollensive arrangement, tliey 
 considered it quite unnecessary to provide for any such 
 contingency in the Constitution, because that instrument 
 was intended only for the uses of the then created partner- 
 ship, and might or might not be made the basis of some 
 other and future partnership between other partners. That 
 could take care of itself when tiie time came. 
 
 That the acquisition of colonies, to be held in subjection 
 as such, and not erected into ."^Into?. was within tiieir pur- 
 
view we can not for a moment imagine. Such a proposi- 
 tion would have been received with as much surprise as a 
 present claim of such powers, on behalf of the Board of 
 Eilucation of the city of Chicago. If any proposition for 
 colonial empire had been presented to them, there can be 
 no reasonable doubt that it would have been scornfully re- 
 jected, as inconsistent with the principles on which they 
 justified their own independent national existence. They 
 would have supposed that a "decent respect to tlie opinions 
 of mankind '" required that they should not so soon stultify 
 themselves. Nor would they, 1 fear, have been able to 
 share the opinion of a recent distinguished essa3'ist before 
 the Chicago Literary Club,' who expresses the opinion that 
 we " can be trusted to promote self-government in whatever 
 part of the world and with whatever subject ^copulations." 
 We are not especially surprised to learn that those, to whom 
 such words as" self-government" and "subject populations '^ 
 suggest nothing incongruous, are enthusiastically in favor 
 of subjecting millions of people on the other side of the 
 globe, to the yoke of freedom. But our ancestors, we may 
 be sure, were not of that number. Indeed, until the present 
 summer, there has never been any doubt, so far as I know, 
 thrown upon this proposition. Certainly those charged by 
 the Constitution with the ultimate interpretation of the 
 instrument have never sanctioned any other view, but have, 
 on more than one occasion, given it solemn emphasis. 
 Thus in the Drcd Scott case, 19 How. 393, in 1856, Chief 
 Justice Taney said, in speaking of this subject: 
 
 " There is certainly no power given by the Constitution 
 to the Federal Covernment to establish or maintain colonies 
 bordering on the United States or at a distance, to be ruled 
 and governed at its own pleasure; nor to enlarge its terri- 
 
 ' Mr. Franklin MacVeagh. Chicago Times-Herald, Nov. 2. 1898. 
 
torial limits in any way except by the admission of new 
 States. That power is plainly given; * * * but no 
 power is given to acquire a territory to be hel<l and governe(l 
 permanently in that character." 
 
 Speaking further of such territory, he says: " It is 
 acquired to become a State and not to be held as a colony, 
 and governed by Congress with absolute authority. * * * 
 It may be safely assumed that citizens of the United States 
 who migrate to a territory belonging to the people of the 
 United States can not be ruled as mere colonists, dependent 
 upon the will of the general government, and to be governed 
 by any laws it may think proper to impose. The principles 
 upon which our governments rest, and upon which alone 
 tliey continue to exist is the union of States, sovereign 
 and independent within their own limits in their internal 
 and domestic concerns, and bound together as one people 
 by a general government, possessing certain enumerated 
 and restricted powers, delegated to it by the people of the 
 several States, and exercising supreme authority within the 
 scope of the powers granted to it, throughout the dominion 
 of the United States. A power, therefore, in the general 
 government to obtain and hold colonies and dependent ter- 
 ritories over which they might legislate without restriction, 
 would be inconsistent with its own existence in its present 
 form." 
 
 While tiiero were dissenting opinions in the Dred Scott 
 case, and while some of the conclusions of that o|)inion 
 were afterward overruled in a trial b}' battle, no criticism 
 was made by either dissenting justice of this statement of 
 the relation of the government to its Territories, nor was 
 there any thing in the war or its results, nor has there been 
 any judicial opinion since expressed by that court, which 
 tends to weaken at all the force of Tanov's statement. Oik 
 
the contrary, so late as the 141st U. S., in McAllister v. 
 United &tatcs (p. 174), the court, commenting on the fact 
 that the Constitution does not provide for territorial judges 
 that permanency of tenure which is guaranteed to all other 
 judges of United States courts, says : 
 
 "The absence from the Constitution of such guaranties 
 for territorial judges was, no doubt, due to the fact that the 
 organization of governments for the territories ivas but tem- 
 iwrari/ and would be superseded when the Territories became 
 States of the Union." 
 
 But if, notwithstanding all these considerations, any 
 d(»ubt remains as to the correctness of the preceding views, 
 it will be removed by a consideration of the circumstances 
 attending the annexation of Louisiana in 1803. The Con- 
 stitution w^as then sixteen years old; Jefferson was Presi- 
 dent, Madison was Secretary of State, and Monroe was one 
 of the two commissioners who negotiated the treaty. No 
 American treaty ever had a more distinguished set of spon- 
 sors. By it the District of Louisiana, lately acquired by 
 Napoleon from Spain, and not yet reduced to possession by 
 the French, was transferred to the United States for fifteen 
 millions of dollars. 
 
 That this treaty exceeded the constitutional powers of the 
 executive was at first conceded by nearly every one, both 
 Federalists and Republicans. 
 
 Jefferson himself expressed the opinion that the treaty 
 made blank paper of the Constitution, and that if the treaty- 
 making power were boundless, " then we have no Constitu- 
 tion." But he, nevertheless, made the treaty and relied for 
 validating it upon an amendment to the Constitution. 
 Two such amendments were drawn by Jefferson, and after- 
 ward a shorter one was in fact proposed in the Senate, at 
 the suggestion of Madison, by the Federalist Senator from 
 
10 
 
 Massachusetts, John Quiucy Adams, and would probably 
 have been almost unanimously carried but for an unexpected 
 complication having nothing to do with the merits of the 
 question, but in consequence of which it was almost unani- 
 mously buried. 
 
 Napoleon, in acquiring Louisiana from Spain, had given a 
 solemn pledge " that it should at no time, under no pretext, 
 and in no manner, be alienated or ceded to any other 
 
 ) ; I 
 
 power. 
 
 Of course, Napoleon's act in ceding it to the United States 
 was an absolute breach of faith with Spain. Nor had the 
 stipulation been an empty formalitv with Spain. It had 
 been her intention, thereby "to interpose a strong dyke 
 between the Spanish colonies and the American posses- 
 sions," her xMini-ster for Foreign Affairs declaring, with pro- 
 phetic tongue, " The United States, having a much firmer 
 hold on the American continent, should tiiey take a new 
 enlargement would end by becoming formidable, and would 
 one day disturb the Spanish possessions.'" Spain did not, 
 therefore, take kindly to the First Consul's act, but on the 
 contrary protested vigorously; and as the cession by Spain 
 had never been consummated by delivering possession ta 
 the French, but the Spanish Intendant was still in command 
 at New Orleans, it seemed likely that Spain might assert 
 that Napoleon's breach of his agreement gave Spain the 
 right to rescind her cession and reclaim the province. 
 Under these circumstances it was thought that any discus- 
 sion of the constitutionality of the treaty would be" inop- 
 portune," as tending to call in question the legality of our 
 
 ' D'Azura to Talleyrand, June 6. 1803. Adam's Hist, of Jefferson's First 
 Administration, II. 58. Chas. Scribner's Sons. 1891. 
 
 H'ovallos toT.illeyrand, Aelam's Hist, of Jeff.-rson's Fir<t Administra- 
 tion. II. 00. 
 
11 
 
 title and encourage Spain to persist in her pretensions. 
 Accordingly Jefferson wrote to bis premier, " 1 infer that th& 
 less we say about the constitutional difficulties tbe better; 
 and that what is necessary for surmounting them niust be 
 done sub silentio." ' In the face of this threatened foreign 
 complication all parties concluded, as they have since done 
 on some occasions, to " stand behind the President '' and 
 let the Constitution take care of itself. 
 
 It thus appears that practically we were committed to the 
 doctrine of annexation by treaty against the real opinion of 
 nearly everyone, b}' reason of the Spanish grievance against 
 Napoleon, and that if Spaih had at that time been less insist- 
 ent we should not improbably have adopted a theory of the 
 Constitution which would make it impossible for us to now 
 take from Spain her colonies — by treaty, at least. 
 
 I assert, then, with considerable confidence, that the 
 framers of the Constitution did not intend to provide, and 
 did not at the time dream that they had provided, for the 
 addition to the thirteen original States and their Territories 
 of foreign territory by any of the governmental agencies or 
 processes provided in the Constitution. 
 
 But it long since ceased to be a question of any practical 
 importance what the framers of the Constitution intended. 
 It is still the theoretical rule, no doubt, applicable as well to 
 the Constitution as to all other laws and charters, that in 
 construing them it is not necessary to go further than to 
 ascertain the intention of the law-makers. 
 
 So late as the Dred Scott decision, Chief Justice Taney, 
 speaking of the Constitution, said; " While it remains 
 unaltered it must be construed now as it was understood at 
 the time of its adoi)tion. It is not only the same in words 
 
 'Id. II. 86. 
 
12 
 
 but the same in meaning, and delegates the same powers to 
 the government and reserves and secures the same rights 
 and privileges to the citizens, and as long as it continues to 
 exist in its present form it speaks not onlv in the same 
 words but with the same meaning and intent with which it 
 spoke when it came from the hands of its framers and was 
 voted on and adopted by the people of the United States. 
 Any other rule of construction would abrogate the judicial 
 character of this court and make it the mere reflex of the 
 popular opinion or passion of the day." 
 
 These are brave words; but since the Civil War, at least, 
 the rule has been substantially a dead letter. Even as early 
 as the Louisiana debates, John Randolph spoke in ill-con- 
 cealed impatience of what he called the " parchment bar- 
 riers " of the Constitution, and the country has never per- 
 mitted itself to be more than delayed, in nnytliing that it 
 really desired to do, by deference to the opinions of the 
 Fathers. It has always acted on the principle, not ina[)tly 
 expressed by the same essayist already quoted, when he 
 says, "and once more let us not be over impressed in this 
 crisis by constitutional technicalities. Any country with 
 a written Constitution will alwavs be hampered in a new 
 departure." 
 
 In construing the Constitution, the rule, though perhaps 
 not openly admitted, has practically become to test its 
 meaning by ascertaining the extent to which the language 
 used can be stretched in the light of modern opinions and 
 modern necessities, real or imagined, with very little regard 
 indeed for what was actually in the minds of the men who 
 used the language. 1 mention this merely as an historical 
 fact and without any intention of here criticising the tond- 
 enov. It may perhaps very well be that the Constitution, 
 interpreted according to the intentions of its makers, would 
 
13 
 
 be unsuited to changed modern conditions, and that it was 
 necessary that it should either be perverted from its original 
 meaning or else abandoned altogether; that it should either 
 bend or break. However that may be, the policy of bend- 
 ing was long since adopted. The annexation of Louisiana 
 furnishes one of the most notable instances thereof. It was 
 justified under the power of the President to make treaties 
 by the practically unanimous vote of politicians, who, no 
 doubt, did not want to be accused of "voting for Spain." 
 But the question remained — and the debate was principally 
 over it — whether the acquired territory became by the ces- 
 sion for all purposes a part of the United States, and thus 
 subject to its Constitution and laws, or whether it was sim- 
 ply the property of the United States, to be dealt with as it 
 pleased without regard to tlie Constitution, the benefits of 
 which, on this latter theory, were reserved for the original 
 contracting States. While the debates on Louisiana can not 
 be said to have settled this question, the legislation in which 
 they resulted proceeded rather on the latter theory — that 
 is, that the conquered territor}' was not subject to the Con- 
 stitution, but might be governed arbitrarily by Congress 
 and the Executive without regard to the limitations of the 
 Constitution. 
 
 These views received apparent judicial approval in the 
 case of American Ins. Co. v. Canter, 1 Peters, 511, decided in 
 1828. This case arose out of and concerned tlie Florida 
 cession of 1819. 
 
 In it the court held that certain territorial courts estab- 
 lished in Florida by Congress were non-constitutional 
 courts; that is, that they were valid courts and exercised a 
 valid jurisdiction, although if Florida had been a State the 
 law creating such courts would have been invalid. 
 
 This decision, while containing some inconsistent state- 
 
14 
 
 inents, seems at first blush to go a long way toward declar- 
 ing the uncontrolled power of Congress over an annexed 
 territory, irrespective of constitutional restrictions; but as 
 thereafter linnted and defined in McAllister v. United States, 
 141 U. S. 174, this apparent tendency of the decision in the 
 Canter case disappears. It is there explained, upon reason- 
 ing which seems irrefutable that the judicial power of the 
 United States over Territories is of two sorts; first, that 
 which the United States exercises over all of its territory, 
 whether State or territorial ; and, second, that which it exer- 
 cises over the Territories alone, by reason of the fact that in 
 the Territories Congress is the supreme legislative body, 
 exercising there, in addition to its general rights over the 
 United States, all the powers which might be exercised by 
 a Territorial Legislature. 
 
 The next notable judicial contribution to the question 
 under discussion was rendered, twenty-eight years after the 
 Canter case, in the Dred Scott decision. So far as it relates 
 to the question now before us, the opinion of the court, ren- 
 dered by Chief Justice Taney, is very able and has not been 
 altered or reversed by either the catastrophe of domestic 
 revolution, or by any subsequent pronouncement of the 
 court which rendered it. A few quotations from this 
 opinion can not well be avoided, even if it were possible to 
 improve upon them. 
 
 •• The power of Congress over the person or property of a citiz.'n." says 
 the Chief Justice, "cin never he mere tUscretionary power under our Con- 
 stitution and form of government. The powers of the government and 
 the rights and privileges of the citizen.s are regulated and phiinly defined 
 by the Constitution itself. And when the territory becomes a part of the 
 United States the Federal Government enters into possession in the charac- 
 ter inipres.«ed upon it by those who created it. It enters upon it witli its 
 powers over the citizen strictly defined and limited by the lonstif ution. 
 from which it derived its own existence and by virtue of which alone it 
 
15 
 
 continues to exist and iict as a government and sovereignty. It has no 
 power of any kind beyond it; and it can not when it enters a Territory of 
 the United States put off its character and assume discretionary or despotic 
 powers which the Constitution has denied to it. It can not create for itself 
 a new character, separated from the citizens of the United States and the 
 duties it owes them under the provisions of the Constitution. The Terri- 
 tory beiner a part of the United States, the government and the citizen both 
 enter it under the authority of the Constitution, with their respective riglit3 
 defined and mari\ed out, and the Federal Government can exercise no power 
 over his person or property beyond what that instrument confers, nor law- 
 fully deny any right which it has reserved." 
 
 This has been many times reiterated since the war. Thus 
 in Murphy v. Ramsey, 114 U. S. 15, the court, while affirm- 
 ing in the broadest terms the political power of the general 
 government over the Territories, say: "It may well be ad- 
 mitted in respect to this, as to every power of society over 
 its members, that it is not absolute and unlimited. * * * 
 The l^ersonal ami civil rights of the iniiabitants of the Terri- 
 tories are secured to them, as to other citizens, by the prin- 
 ciples of constitutional liberty, which restrain all tlie agencies 
 of government, State and National; their political rigfds are 
 franchises which they hold as privileges in the legislative 
 discretion of the Congress of the United States. * * * 
 If we concede that this discretion in Congress is limited by 
 the obvious purposes for which it was conferred, and that 
 those purposes are satisfied by measures which prepare the 
 people of the Territories to become States in the Union, still the 
 conclusion can not be avoided that the action of Congress 
 here in question is clearly within that justification." 
 
 In the great Mormon Church forfeiture case, 136 U. S. 1, 
 
 the court said: 
 
 " Doubtless Congress, in legislating for the Territories would be subject to 
 those fundamental limitations in favor of personal rights which are formu- 
 lated in the Constitution and its amendments; but these limitations would 
 exist rather by inference and the general -spirit of the Constitution, from 
 
16 
 
 which Congress derives its powers, than by any express or direct applica- 
 tion of its provisions." 
 
 This language was quoted with approval in McAUiMcr v. 
 U. S., heretofore cited, and in Anicrican Pab. Oompanrj v. 
 Fisher, 166 U. S. 464, wherein it was held that the Constitu- 
 tion guaranteed to the citizens of the Territories of the 
 United States the right of trial by jury. It must now be 
 accepted as the settled and unalterable rule of construction 
 with reference to the power of the general government over 
 the Territories. 
 
 What then are those fundamental limitations in favor of 
 personal rights which were '* formulated in the Constitu- 
 tion and its amendments, and with which the government 
 can not interfere within the Territories of the United States?'' 
 A catalogue of them would require a recital of the entire 
 l)ill of Rights and of the 14th Amendment, as well as of 
 some other portions of the Constitution; but there are cer- 
 taii» clauses which are of especial importance with reference 
 to the proposition now under discussion. Such are the pro- 
 visions that all taxes and excises shall be uniform through- 
 out the United States; that the right of jury trial as at com- 
 mon law shall not be denied, nor the writ of habeas corpus 
 suspended. No person can be held to answer for crime ex- 
 cept upon the {)resentment or indictment of a grand jury; 
 and the right to become citizens of the United States, and, as 
 such citizens.to go freely, without hindrance or obstruction on 
 the part of Congress or of any State, from any |)orlion of (he 
 country to every other portion, will be inviolable. In view of 
 the i)articular |)roposition now mooted, this last right, 
 affirmed by the Supreme Court in the case of (^randall v. T/ic 
 /^(atc of Nevada, 6 Wall. 35, to be derived, not so much from 
 anv particular jtiovision of the C-onstitution as frc^n its gen- 
 oral nature and purpose, is one of the most important. 
 
17 
 
 Tlie right to become a citizen of the United States has 
 been affirmed very recently by the Supreme Court in the 
 case of the United States v. Wong Kim Ark, 169 U. S. 649, 
 decided on the 28th day of March, 1898, in which it is 
 affirmed that the children of Chinese unnaturalized and 
 unnaturalizable parents, born within the United States, are 
 by virtue of the l-lth Amendment to the Constitution, citi- 
 zens thereof, and entitled to all the rights, personal and 
 political, of other citizens of the United States. 
 
 It results, from the foregoing considerations, first, that it 
 is wholly without the power of the government to acquire 
 colonies not so fitted or located as to be prospective States of 
 the American Union. This limitation upon the powers of 
 the government, however, can probably not be enforced, be- 
 cause the Supreme Court will be bound to assume that any 
 territory taken is acquired with the intention of ultimately 
 erecting it into States of the American Union, however notori- 
 ous it may be that such a consummation will be impossible. 
 It will feel bound to impute to Congress and the Executive 
 sincerity of motives, just as it felt bound to impute to Con- 
 gress and the Executive such sincerity of motive in the law 
 subjecting the circulation of State banks to a tax often per 
 cent for the sake of revenue,' when to every one, except the 
 court in its judicial capacity, it was perfectly evident that 
 such tax could never result in a penny of revenue, but that 
 the sole purpose and effect of it was and must be the extin- 
 guishing of such circulation — an end not attainable under 
 the Constitution except by such indirection. There appears 
 to be no method known to the Constitution by which the 
 motives and beliefs of the other departments of the govern- 
 ment can be put upon trial, and if Congress and the Exec- 
 
 iVeazie Bank vs. Fenno, 8 Wall. 533. 
 
18 
 
 utive affirm their belief tliat the moon is made of green 
 cheese, or may by irrigation and the introduction of heating 
 plants be rendered suitable for colonization, the Supreme 
 Court will assume that they so believe. This is one of those 
 constitutional provisions, then, which depends for its en- 
 forcement ui)on the zeal of those who love their country 
 and its institutions, and would not willingly see them per- 
 verted from their fundamental purposes. 
 
 Second: Such Territories, once annexed, it follows from 
 the foregoing considerations that they can not be held in 
 military subjection; that they can not be ruled arbitrarily, 
 either by the President or by Congress, or by both combined ; 
 that the Philippino will have the same personal rights un- 
 der the Constitution as the citizen of Illinois; that the writ 
 o{ hahcas corpus must always be available to him; that trial 
 bv jury can not be abridged; that no separate scheme of 
 imposts or excises can be enforced in such colonies different 
 from that in the mother country, and that all the inhabit- 
 ants of such annexed territory, or at the very latest, their 
 children born subsequent to the annexation, nmsthave free 
 access to all portions of the United States and the same 
 political rights as other citizens in like situation. In view 
 of this last proposition it is scarcely to be wondered at that 
 the most strenuous opposition thus far developed to this 
 scheme of annexation comes from the laborers of the country 
 and their leaders. 
 
 Perhaps, in point of fact, we need anticiiiato no particular 
 deluge of immigration from these islands, as the natives of 
 the tropics seldom care to incur the rigors of more northern 
 climates, or flourish if they do; but with tiio removal of all 
 custom liouses between the Philippines ;ind tht.' markets of 
 the United States it will be iuimutt'rial whether the cheap 
 labor of the.se millions of savage and semi-savage peof)le 
 
19 
 
 competes with our labor in our own workshops, or indirectly 
 by throwing its products into our markets. 
 
 The talk of maintaining in the Philippines the fjolicy of 
 an "open door'' is idle talk unless either the Constitution 
 is to be abrogated or the whole country is to be thrown open 
 in like manner to the trade of the world. And how will the 
 tropical and exclusively agricultural Philippinos enjoy pay- 
 ing tariff taxes of fifty to sixty per cent for the exclusi vebenefit 
 of manufacturers on the other side of the globe, and of their 
 workmen, many of wliom receive for a day's labor as much 
 as a Philippino earns in a month? Or will thebeneficiariesof 
 protection consent to relieve us nil of the taxes levied upon 
 us because it will be manifestly unjust to exact ihem from the 
 Philippinos? Shall we maintain our anti-Chinese legislation 
 while perforce admitting to all portions of our territory, and 
 to all the rights of citizenship those who in the Philippines 
 are the servants of the Chinese? How will juries, grand and 
 petit, and the legal machinery appertaining thereto, work 
 among the hordes of illiterate and degraded wretches who 
 compose so large a proportion of the population of these 
 islands? And if we apply our navigation laws to them, as we 
 must, unless we repeal them altogether, can we send our sol- 
 diers to put down rebellion against a policy which so short a 
 time ago was an efficient cause in inducing rebellion on our 
 part against our mother country? If we attempt to extend 
 to them even that portion of our anti-Chinese laws which 
 would forbid the further immigration into those islands of 
 the most thrift}' and prosperous people now inhabiting 
 them (as we must, unless we are prepared to abandon our 
 present anti-Chinese policy at home), what answer shall we 
 have for them when they quote that specification of the 
 Declaration of Independence wherein our fathers indicted 
 the King of Great Britain, because " He has endeavored to 
 
20 
 
 prevent the population of these States; for that purpose 
 obstructing the laws for naturalization of foreigners; re- 
 fusing to pass others to encourage their immigration hither, 
 an J raising the conditions of new appropriations of lands." 
 
 It is sometimes said that we can manage or misujanage 
 the Philippinos as we have the Indians {absit omen), and 
 that no greater constitutional difficulties will be found in 
 one case than the other. But even if our dealings with the 
 Indians were not a frightful warning to all people who go 
 forth lightly to impose their rule on inferior races, the con. 
 elusion is not a just one. We have managed to deal with 
 the Indians as we have, possibly without violating the Con- 
 stitution, because of their separate and independent tribal 
 organization pertinaciously maintained by them. They 
 have been in contemplation of law, independent, co-ordinate 
 nations, with whom our relations were those of treaty or 
 agreement. Our relations to the Indians have been thus 
 defined by the Supreme Court: 
 
 "These Indian Governments were regarded and treated 
 as foreign governments, as much so as if an ocean had 
 separated the red man from the white; and their freedom 
 has constantly been acknowledged from the time of the first 
 imnjigration to the English colonies to the present day, by 
 the different governments which succeeded each other. 
 Treaties have been negotiated with them, and their alliance 
 sought for in war; and the people who compose these Indian 
 political communities have always been treated as foreigners 
 not living under our government." ' 
 
 The territory occupied by them from time to time was 
 not subject to the Constitution of the United States, because 
 it was not part of tiie territory ui the United States, but of 
 
 Dred Scoti v. Saiiforil, 19 How. 393. 
 
21 
 
 the Indian nation or tribe inhabitins; it; surrounded, to be 
 sure, by the territory of the United States, and ultimately to 
 revert to that nation if the Indian title should ever be 
 extinguished. Down to 1871 all our relations to these 
 tribes or nations were governed by treaty, as fully and form- 
 ally as our relations with Great Britain or Spain. Since 
 that time legislative enactments assented to by the Indians, 
 and compacts and agreements not amounting in dignity to 
 treaties, but substantially the same in fact, have taken the 
 place of formal treaties. But so soon as the Indians have 
 abandoned their tribal organizations, as many of them have^ 
 and entered among the body of the people of the United 
 States, they and their children have become citizens of the 
 United States. There exists no evidence that such condi- 
 tions exist or could be brought to exist in the Philippine 
 Islands. Nor are we proposing to make a treaty of annexa- 
 tion with native tribes, but with Spain. Spain has never 
 recognized any independent sovereignties in the islands, 
 and it appears clear that the legal status of the entire popu- 
 lation (except unnaturalized foreigners), so far as it has 
 been brought under Spanish dominion, is that of subjects 
 and citizens of Spain. In acquiring the islands we shall 
 acquire them as subjects, and, if not them, their children, 
 as our fellow-citizens under the fourteenth amendment to 
 the Constitution, as construed in the case of Wong Kim 
 Ark. 
 
 Shall we not pause before we incur the responsibility for 
 them and for ourselves of such action? Is it not clear ti)at 
 our Constitution was intended for a homogeneous self- 
 governing people — that under its provisions no place exists 
 for foreign colonies and subject races? And if we were not 
 "hampered by a written Constitution," can we now avow 
 and i)ut in practice the right of the strong to take, and of him 
 
0'~> 
 
 who can to govern the weak, without being false to our his- 
 tory and to those traditions which have been our proudest 
 heritage for a hundred years? 
 
 Sliall we not rather leave it to nations not thus hampered 
 by either constitutional or moral scruples, to go forth to con- 
 quer and be conquered, to spoil and to be spoiled, in the old 
 familiar way that has filled the world with woe since time 
 began — remembering for ourselves that it is just as true now 
 as it was in the days of George the Third, that governments 
 derive" their just powers from theconsent of the governed"? 
 
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