E 713 .G221 Copy 1 Tlie Constitution and Our New Possessions; An Answer to Ex-President Harrison. AN ADDRESS DELIVERED BEFORE THE New York State Bar Association AT ITS ANNUAL MEETING HELD AT ALBANY, N. Y. JANUARY 16, 1901, AND REPRINTED FROM THE PROCEEDINGS OF THE ASSOCIATION. Bv CHARLES A. GARDINER, OF THE NKW YORK CITY BAR. With the Compliments of CHARLES A. GARDINER, Of New York City. Tlie Constitution and Our New Possessions; An Answer to Ex-President Harrison. AN ADDRESS DELIVERED BEFORE THE New York State Bar Association AT ITS ANNUAL MEETING HELD AT ALBANY, N. Y. JANUARY 16, 1901, AND REPRINTED FROM THE PROCEEDINGS OF THE ASSOCIATION. By CHARLES A. GARDINER, OF THE NEW VOKK CITY BAR. "^ 2. THE CONSTITUTION AND OUR NEW POSSESSIONS -AN ANSWER TO EX-PRESIDENT HARRISON. Our rig-ht to ac(|uire and g-overn foreig-n territory was advocated 1)efore this Association two years ago. The problem then so momentous has passed from the stage of controversy into final judgment. The right to acquire and govern is now conceded ; for two }ears Congress and the President have exercised it; and in the last election the action of the people's representatives was sustained by the overwhelming vote of the people themselves. The problems now before the nation arise from the government of our new possessions. In his recent Ann Arbor address, General Harrison discussed them with such profound learning and fervor of conviction that his opinions demand the serious consideration of every American. He 1)ases his entire argunient on the self- expansion of the Constitution. Annexation i/^so facto, he says, extends the document over annexed territory. It becomes operative therein [^roprio ■I'ii^orc, and confers on the inhabitants our bill of rights and the civil and political franchises of American citizens. Congress, there- fore, cannot govern the islands with plenary power, but is subject to all constitutional limitations. History of Proprio ViCxOre Doctrine. I. \\\mt is the history of this doctrine? Prior to the adoption of the thirteenth amendment, the Constitution 4 authorized slavery ; in States only, said the North ; in States and Territories also, said the South. The issue was political, and after long debate Congress enacted first the Missouri compromise act and then other statutes excluding slavery from the Territories. But with each annexation of new territory, the struggles in Congress broke out afresh, and in the crisis of 1847, during the debates on the Wilmot proviso and Oregon bill. "Calhoun came out with his new and supreme dogma of the trans- migratory function of the Constitution and the instan- taneous transportation of itself in its slavery attributes into all acquired territories." (2 Benton. 713.) Finally, in 1849, ""^ ^1''^ I'^^-^t hours of the Thirtieth Congress, Cal- houn caused a rider to be introduced to the general appropriation bill, which again precipitated the entire pro-slavery agitation in its most \'iolent form. In the dis- cussion that followed, \A'ebster maintained that the Con- stitution did not " extend to the Territories." Calhoun replied : " I am very happy, sir. to hear this proposition thus asserted, for it will ha\-e the effect of narrowing very greatly the controversy between the North and South. as regards the slavery ([uestion in connection with the Territories. The simple cpiestion is. does the Constitu- tion extend to the Territories cu- does it not? It is the supreme law not within the limits of the States of this Union merely, but wherever our flag waves. * * '•' Is not Congress the creature of the Constitution? And shall we, the creature of the Constitution, pretend that we have any authority beyond the reach of the Con- stitution ? " And this, as Benton says, " was the last slavery creed of the Calhoun school and the one on which his disciples stand." (2 Benton, /SS-) Calhoun constructed his creed with his most inexorable logic. The Constitution authorized slavery; annexation 5 ipso facto extended the Constitution; the Constitution proprio vigorc operated wlicrcver extended and overruled all laws inconsistent therewith. Hence the Missouri com- promise and all other federal, and all territorial, statutes prohibiting- slavery in the Territories, he argued, were unconstitutional and void ; hence, also, any future similar legislation would be unconstitutional and void; and hence, finally, slavery would follow the Constitution, and the Constitution would follow the flag wherever Ameri- can sovereignty extended. Calhoun died, but his dogma survived and finally became the great issue in the momentous election of i860. The Breckinridge convention was for it; the Lincoln convention was against it : and so far as the Douglas and Bell conventions expressed any opinion, they opposed it. Section 7 of the Lincoln platform reads: "The new dogma that the Constitution of its own force carries slavery into any or all of the Territories of the United States is a dangerous political heresy, at variance with the explicit provisi®-ns of that instrument itself '•= ''• * is revolutionary in its tendency and subversive of the' peace and harmony of the country." The issue thus joined was submitted to the people, and Lincoln was elected, Breckinridge receiving only 845,763 votes out of 4,677,353. This was a decision upon the political aspects of the question by the highest authority, the sovereign people. From this election the South appealed to the arbitrament of arms, and was again defeated. If any political question, any rule of interpretation, any view of the Constitution, can be settled by the people who made it, then this doctrine originated by Calhoun, and now^ resurrected and advocated by General Harrison, may be claimed to be forever settled and laid at rest. Our Practice for 114 Years. II. Orig-inally the Constitution was operative in the thirteen States, whicli ratified the document. (Article VII. sec. I.) Those States were a mere fringe along the Atlantic, hut Ave have since expanded and annexed over 3,250.000 scjuare miles of new territory. ^^ hat rule of practice has Congress ohserved in extending the Con- stitution over this vast domain? The ordinance of 1787 was enacted by the Confederation before the federal Con- stitution was adopted. Every Territory organized out of the northwestern lands had a vested right to it, guar- anteed by Article Vl of the Constitution. (14 Pet., 417.) It was to be expected, therefore, that Congress would extend the ordinance, as each new Territory was suc- cessivelv organized out of the vast northwestern grant. A\'hat more logical procedure, too. than that Congress should harmonize its entire practice and extend the same ordinance not only to the northwestern d'erritories, but to all new Territories? This in fact it did, and by suc- cessive acts extended the ordinance of 1787 to every Territory organized prior to 1850 except Louisiana, Florida, ^^lissouri and Arkansas. During sixty-three years Congress thus ccjutinued to make laws for the successive Territories, irrespective of the Constittition, and often even in conflict therewith. ]\Iany provisions were com- mon to both documents; many in the ordinance were not in the Constitutif)n ; but no less than sixteen of the civil rights of the Constitution were not in the ordinance at all, including some of the most essential guaranties of personal liberty. Even the treason clauses, to which General Harrison refers, were never specifically extended to a single Territory prior to 1850. 7 In Orleans Territory, which existed from 1804 to 1812, there was an estabhshed church, a clergy paid out of the public treasury, a son could not sue without consent of his father, certain criminals were not only denied jury trial, but could be executed by the head of the family without trial a separate port law existed for New Orleans, and lower duties were charged at that port on French and Spanish imports by twenty-live per cent than else- where in the United States. Of this government Rodney, of Delaware, said: " It shows that Congress have a power in the Territories which they cannot exercise in the States, and that the limitations of power found in the Consti- tution are applicable to the States, not to the Terri- tories." Yet its validity has been sustained repeatedly by the Supreme Court. In 1850 Congress organized the Territory of New Mexico and enacted that the federal Constitution should extend thereto so far as applicable. Since 1850 as each new Territory was organized, Congress inserted in the organization act a sul)stantially similar provision. Such has been our practice for 114 years. From 17S7 to the present day, every President, every Congress, all parties — Republicans and Democrats, Federalists and Whigs — believed, and acted on the belief, that the ordinance of 1787 and not the federal Constitution was the fundamental law of the Territories, with few exceptions, prior to 1850. and that since 1850 the Constitution has been made operative merely as statutory law over new Territories, when and to such extent as Congress determined l)y special enactment. Xever in our historv has any one in authority assumed that annexation ipso facto extended the Constitution nor that it existed in the Territories propria zigorc. pROPRio ViGORE Analyzed. HI. But how can the Constitution extend anywliere propria I'igorc? What does propria vigarc here mean? Absohitely nothing. A Constitution is only an organic law ; it has no inherent vitality, no life, no innate power of migration or expansion. It is nut a soul, that General Harrison, or Virgil, or some other Pythagorean might claim transmigrates propria rigorc. from one political body to another, animating each with its own vitality. It is a creature, not a creator. It does not act, it regu- lates action. It cannot create rights, or extend itself or do anything but regulate. It is itself inert; the life is in the people who institute it. The separate clauses of the Constitution are equally incapable of automatic action. They may all be extended by external force, l)ut none by innate power; and, as we have seen, in every instance the extending power is an act of Congress, the agent of the living people. There is no provision in the Constitution for self-extension of any part of it. Corporate mortgages often provide for extension propria I'igarc over after-acquired property. But the Constitution has no such provision. Laws are necessary in the United States and in all the States, not only to put it into operation, but to keep it going. Let us examine these clauses in detail. Bill of Rights Inoperative. (i.) Guaranties of civil rights are inoperative. The onl}- al)Solutel}- essential portions of the Constitution are those organizing the government and distributing the sovereign powers. But they all relate to the nation and the States, and cannot be made operative in Terri- tories by annexation, act of Congress or otherwise. (9 Blow., 244; 141 U. S., 180.) 9 The Constitution also contains a bill of rights, and General Harrison's princij^al argument is that this bill of rights, at least, or the civil rights guaranteed by the Constitution, extend propria rigorc to annexed territory. A distinction must be made between natural and civil rights. Natural rights are given by the Creator to all people; they are the inalienable rights of the Declaration of Independence. Civil rights are guaranties by which natural rights are protected; they are statutory and constituticnal and l)clong solely to the nation or race that institutes them. The federal Constitution deals solely with civil rights, and our courts have held that when any people has acquired l)y birthright or political action, the civil rights of our Constitution. Congress will not interfere therewith. In a late case the court said: "The bill of rights was not intended to lay down any novel principles of government. l)ut simply to embody certain guaranties and immunities which we had inherited from our English ancestors." (165 U. S., 281.) "The right of the people to assemble," said Chief Justice W'aite in the Cruikshank case, "was not created by the amendment; neither was its continuance guaranteed, except as against congressional inter- ference. * * * The right to bear arms is not a right granted l)v the Constitution; neither is it in any manner dependent upon that instrument for its exist- ence." (92 U. S., 553.) This is true of freedom of speech, the right of petition, due process of law, or any other of our civil rights which belong to a people sul)ject to the government of Congress. Congress can pass no law interfering wUh their enjoyment. But inability to act is not extensicm of power. Can a mere restriction ui)on the power of Congress to pass certain laws as rules and regulations lO for the government of new territory be held to extend, not the restrictions. l)nt the affirmative rights them- seh-es? In no sense of the word, 1 repeat, can this negative operation of the prohi1)iti(Mis in the bill of rights be said to extend the Constitntion over Porto Rico or the Philippines. Bill of Rights for Citizens Only. The bill of rights, moreover, applies only to federal citizens. It is a social compact between the United States and its citizens. (()4 V. S.. 124.) Referring to it. \h-. Jnstice Field said : " The rights thns recognized and declared are rights of citizens of the United States, nnder their Constitntion. which conld not be violated by federal anthority." (144 U. S.. 362.) And it was long since decided that the bill of rights operates only to protect federal citizens as distingnished from citizens of the States. (7 Pet., 247; 123 U. S., 166; 175 U. S., 172.) Bnt Porto Ricans and Filipinos are not federal citi- zens. There is no citizenship of a Territory, and the only citizenship Congress can confer is national. (92 U. S.. 542.) Its sonrces are two, said the Snpreme Court, " and two only, birth and naturalization."' (112 U. S., loi ; 169 U. S., 702.) Persons may be naturalized, either individually under the naturalization acts, or " collectivelv." as the court explained, " by the force of a treaty by which foreign territory is acquired." rrT2 U. S., 102.) Porto Ricans and Filipinos have not been naturalized in either manner. 'The only other source of American citizenship is birth, and that nuist l^e where the Constitution is operative. No Constitution, no fourteenth amendment; hence no citizenship by birth. (169 U. S., 693.) Until Porto n Rico and the Philippines become States, or until Con- o-ress naturalizes their inhabitants, thev will not i)e federal citizens, and hence will not be entitled to the civil rights of the Constitution. Anglo-Saxon Ric.iits Our Btrttirtgiit. Again, two things nmst unite to entitle a people to the protection of our constitutional guaranties — they must own the rights of their own title, and the rights must be the identical ones spccilied in our Constitution. But the civil rights of our C\)nstitution. belong l)y inherit- ance to the .\nglo-Sa.\on race alone. Other races may have civil rights, but not tluxse we possess. They are our l)irthright; they were the rights of our ancestors during the Saxon era of I^nglish history; they were lost in the Norman conquest: they were only partly regained bv the Magna Charta and acts of confirmation: they were brought 1)V the American colonists to this conti- nent: they were claimed by the Continental Congress as the " rights of Englishmen "' in the petition of 1774 to George IH; they were secured to our patriot fathers bv the Rev(dution and the Constitution : and. as our fathers and their descendants migrated from the older States, they carried them westward, all over the coim- try, "as their birthright." said the Su])reme Court, as a part of the conuuon law of the land, said Mr. Justice Gray (152 U. S., 52). but always as the same historic rights inherited from our Saxon ancestors. (136 U. S., 448.) Porto Ricans and Filipinos did not possess these rights before annexation : they do not now. They have their own. which they cherish and. doul)tless. prefer. Unless Congress expressly enacts the bill of rights, as a law. it will not exist in our new possessions, nor will the inhabitants be entitled to any of its guaranties. 12 No Uniform Tariff. (2.) The iinifoniiity clauses are inoperative. Article I, section 8, requires that all tariff, bankruptcy and naturalization laws shall be " uniform throughout the United States." If Porto Rico and the Philippines are integral parts of the United States, the uniformity clauses must apply ; if they are not, but are only " out- lying dominions" (loi U. S., 133) or "dependencies" (3 Wash., 3 C. C. R., 286), then the uniformity clauses do not apply. Geographical inclusion or exclusion is the test, not constitutional extension ; and the ([uestion is unqualifiedly political, belonging to Congress and the President, and not to the courts. Political questions dilTer from judicial in that none l)ut the sovereign can determine them. A sovereign decides by his own will, sic volo, sic jiihco. A court decides according to the law prescribed by the sovereign. The " maintenance and extension of our national dominion " is a political, not a judicial problem. The reasons are thus stated : " The President and Congress are vested with all the responsiljility and ])owers of the g()\'ernment for the determination of ([uestions as to the maintenance and extension of our national dominion. Jt is not the |)ro^'ince of the courts to participate in the discussion or decision of these questions, for they are of a ])olitical nature and not judicial. Congress and the President, having assumed jurisdiction and sovereignty, and, having made the declarations and assertions as to the extent of our national authority and dominion, * '•' '^ all the people and courts of the country are bound 1:)\- such governmental acts." (50 Fed. Rep., no.) A. question like this, as Chief Justice Marshall said, is " more a 13 political than a le^-al ciuestiDii; and in its discnssion the courts of every country nnist res])ect the pronounced will of the Lei^islature." (J I'et., 30S. ) The wisdom, also, of the action of the ])ohtical departments, in manner and de^-ree of annexing- new- territory, is not o])en to (|uestion. As the court said in the Williams case (13 Pet., 420), it is not material to incjuire. nor is it the i^iroxince of the court to deter- mine, whether ihe political departments are ri^iit or wrong. It is enoui^h to know that they have decided the question. Having" done this, their decision is con- clusive ui)on " the judg-es, as well as all other ohicers, citizens and suhjects of the government."" ( J 37 U. S., 212.) Annexation Issues, Political Not Judicial. Hence all (piestions incident to the ac(|uisition and government of I'orto Rico and the Philippines, whether we should annex them permanently or siih uiodo; whether thev should he a part of our " outlying dominion,,"' or integral .])ortions of the L'nited States; whether the\- should have local governments or he ruled from Washington; whether the inhal)itants should he citizens or subjects; whether the Dingley Act should api)lv or there should he separate tariffs; these and all similar jjrohlems of government are ])olitical, belonging exclusivelv to the legislative and executive dei)artments, and "not within the i)rovince c^f the judiciar_\- to con- travene or (luestion.'" (9 How., 1540 AIcEnerv I^esolutiox. \Miat have Congress and the President done to define the geograi)hical and legal status of the islands.-' On the same day on which the Senate ratified the treaty, ' 14 it resolved: "By the ratification of the treaty of ])eace witli S])ain, it is not intended to incorporate tlie inlia])it- ants of the PhiHppine Islands into citizenship of the United States; nor is it intended to permanently annex said islands as an integral part of the territory of the United States."' (McEnery resolution.) In the pro- visional act for Porto Rico Congress delined the political status of the inhabitants as " citizens of Porto Rico, entitled to the protection of the I'nited States," and imposed tarift and tax laws differing from those imposed upon its own territor}', and le\'ied duties on commerce between the two countries. It thus appears by afftrmative action of Congress that the islands are not " permanently annexed." but only siih niodo, that thev are not '■' an integral part " of the United States, and that their inhabitants are not citizens. No clearer definition and interpretation of the geographical status of the islands and the political status of their inhal»itants could be given: and this congressional action constitutes the law of the case, binding on the President, the Secretary of War and all other executive ofiicers, and conclusive up(Mi " the judges, as well as all other officers, citizens and sub- jects of the government." ( [37 U. S., 212.) The same reasoning applies to naturalization and bank- ruptcy. Hence none of these causes operates propria vigorc in Porto Rico or the Philippines. Treason Arguments Fallacious. (3.) Miscellaneous Clauses. — General Harrison's argument on treason is utterly fallacious. Treason is a crime of citizens, he argues: Porto Ricans and Filipinos, unless the Constitution operates, are not 15 citizens; citizens alone cm 1)e protected by the consti- tntional inhil)iti()ns rclatini^- to treason; hence Con- stress, l)eini;- nnrestrictcch can enact ah the l)loo(ly laws of the niicldle aq-es, and no I'orto Kican or lMlii)in() can "know hoW' to beluu-e himself; to do, speak, or say, for doubt of the pains of treason." (N. A. Rev., p. 14.) His error is patent. Treason is not a crime against citizenship, but against allegiance. An}- person w'ho violates his allegiance to the Ignited States conmiits treason, whether he be a citizen or not. i'orto Ricans and Filipinos are not citizens, but subjects. In 1817 Mr. Justice Storv thus defined a subject : " A jierson domiciled in a country and enjoying the protection of its sox'er- eign is deemed a subject of that country." (2 Wheat., 227.) Again, in 1874, the Supreme Court said: " h^ach member of the nation * '■' '•'' owes it allegiance. * * '■' Allegiance and protectit:>n are recipro- cal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance." (21 Wall., 162.) Hence, every person entitled to protection is the nation's subject ; and hence, also, everv person, in States or Territories, who violates that allegiance conunits treason against the United States. How absurd, however, to claim that annexation extends the treason clauses. From the adoi)tion of the Constitution they have extended over the whole world wherever the relation of American so\ereign and American subject existed — in States, Territories, American consulates, and even on the high seas aboard our men-of-war; it is imi)ossil)le to extend them far- ther. In their essential nature they do not apply to territory, as the uniformity clauses do, and have nothing to do with territorial expansion per sc. They i6 are made for i)ersons. Avitlioiit regard to residence. They govern the relations of the United States with their snbjects, wherexcr they exist, conchtioned on ahegiance alone, and this renders their territorial expansion nnnecessary and impossible. Ambassadors and Titles of Nobility. Finally, there are a nnmber of powers which the sovereign peoi)le denied to the federal government. Some of these, like the prohilntion against con- ferring titles of nobilitv. are mere restrictions on the power to act anywhere. It is eqnally absnrd to speak of these clanses as extending to onr new territories by annexation. Article i, section 9, ])rovides : " Xo title of nobility shall be granted by the United States." That is, it cannot be granted to a Porto Rican or a Filipino, nor yet to an Englishman or German ; bnt that does not mean that the Constitution extends oxer Porto Rico or the Philippines an}- more than over England or Germany. Under article i, section 6, congressmen cannot be appointed ambassadors to a foreign court — France or Russia, for instance; but that does not mean that such prohil)ition thereby extends the Constitution over France and Russia. Power of Congress Unlimited. IV. General Harrison argues that the Constitu- tution extends to new territor)' only " so far as appli- cable." But what is ai)plicable? This Constitution is silent. Wdio shall determine? The admission l)egs the whole question. General Harrison argues him- self con:])lctely out of court. If the Constitution extends only " so far as applicable," then Congress may and nuist, as the S(^le depositary of the political 17 discretion of the nation, determine whether the annexation shall be temporary or permanent, whether the territor}- shall be an integral part of the I'nitcd States or an ontlNing dependenc)-, whether the inhabitants shall l)e citizens or snbjects, and all the other qnestions invoh'cd in deciding what provisions are applicable and \\hat arc not, lo the new posses- sions. This is ecjiiivalent to sa}'ing" that ncj part of the Constitution extends proj^rio z'ii^orc, bnt only as decided in the absolnte discretion and plenary power of Congress. And this is the trne theory ui the law, snpported by every decision the Snpreme Conrt luis made on the snbject. Sixty years ago it laid down this broad rnle: "The term 'territory,' as here nsed (article 4, section 3) is merely descriptive of one kind of property and is eqni\alent to the word ' lands.' Congress has the same ])ower ()\'er it as any other property belonging to the United States, and this power is vested in Congress withont limitation and has been considered the foundation upon which the terri- torial governments rest." (14 Pet.. SS?-'' Ten years later the conrt announced the com|)re- hensive principle that Territories "are not organized under the Constitution, noi" subject to its coni])Ic\ distribution of tlic powers of go\-ernmcnt as tlie organic law; but arc the creations exclusively of tb.c legislative department, and subject to its super\ision and control." (9 How., 242.) Chief. Justice W'aite. sustaining this power, said: " .\11 Territories within the jurisdiction of the Ignited States not included in any State nnist necessarily be governed b}- or under the authority of Congress. The Territories are but political subdivisions of the (nitlying donunions of the United States. * '•' '•' It has full and complete legislative authority over the people of the Territories and all the departments of the territorial govern- ments." (loi U. S., 1 33-) '-\i^(^' summarizing- the whole matter, the court announced this opinion through Mr. justice Brewer: "A Territory is a political community, organized by Congress, all whose powers are created by Congress, and all whose acts are subject to congressional supervision." (139 U. S., 446.) The power of Congress is, therefore, plenary and abst)lute, and can be exercised without constitu- tional restrictions in our new possessions. Harrison Offers No Solution. V. What sc)lution does General Harrison offer for these momentous problems? None whatever. lie criticises and denounces, but has no remedy. If Congress can rule with plenary power, he says, it will be an " un-American " government, a " state of vas- salage " will exist, "tyranny" will prevail, and it will be altogether "shocking;" Porto Kicans and Filipinos will be "slaves;" the principles of the Declaration will 1>e abandoned, and our Revolutionary fathers, who fought "for rights, not privileges — for a Constitution, not a letter of instructions," will 1)e disgraced in their descendants. But such fer\-i(l rhetoric adds nothing to a consti- tutional argument. Indian Territory' for ninety-eight years, and Alaska for thirty-four have been unor- ganized Territories. The Constitution has not been opcrati^'e therein, they had no local government and few federal statutes. For four years President Harrison's administration ruled them directlv from Washington — more absolutely than the present administration is ruling Porto Rico, with its local 19 government, and the Philippines, with the Taft Com- mission. \\'ere the inhabitants of Alaska and Indian Territory "slaves?" \\'crc they in a "state of vas- salage?" Was their o-overnincnt' "un-American?" Did General Harrison tlagrantly \-i()late the Declara- tion and merit the maledictions of our Kevohmtionary fathers? Let us go a step farther. Who was it that inaugurated our present insular and extra-territorial policy? That policy received its first practical and definite expression in the transmission to Congress by President Harrison on February 15, 1893, of a treaty providing for the immediate annexation of Hawaii. He then said : " The treaty does not attempt to deal in detail with tlic (|uestions that grow out of the annexation. * -•= * The commissioners repre- senting the Plawaiian government have consented to leave to the future and to the just and benevolent purposes of the United States the adjustment of all such cjuestions. If it meets the approval of the Senate, peace and good order will l)e secured in the islands under existing law until such time as Congress can provide 1)y legislation a permanent form of government for the islands." Harrison Originated Present Insular Policv. General Harrison is here confronted with a ' dis- tressing dilemma. A\'as he right in icSc)^ or is he right now? He urged Congress to annex innnediately. but onlv sub iiiodo, as we have annexed Porto Rico and the Philippines, and then the operation of the Constitution and federal statutes \\as to 1)e sus|)cnded " until such time as Congress can jn'oxide by legis- lation a permanent form of government." For a year 20 after ratification, and pending congressional action, Hawaii was also to retain its separate tariff laws, and its Chinese inhabitants were forever excluded from American soil " as if entering from a foreign conn- try." The policy of the present administration is identical with that initiated by General Harrison. Again, he urged that all questions arising out of annexation should be left " to the future and to the just and benevolent purposes of the United States. When Tresident McKinley issued his instructions for the government of the Philippines, he not only followed the Hawaiian precedent, but adopted General I-Iarrison's language — he guaranteed the Filipinos a " just and benevolent government " according to the principles and "purposes of the United States." And yet General Harrison now — seven years later — bitterly attacks his own policy. Referring to Porto Ricans and Filipinos, he says: "We otTer them only this highly consolatory thought: Seventy-six millions of free Americans can l)e trusted to deal benevolently with you." " The man whose protection from wrong- rests wholly upon the benevolence of another man or of a Congress is a slave." Our fathers " accounted that to hold these things (rights) upon the tenure of another man's benevolence was not to hold them at all." (N. A. Rev., pp. 8, lo. 12.) General Harrison makes his plea to the ec|uity l)ar of the American people. He has arraigned the admin- istration, its policy and practice. He must conform to equity rules. He who would seek equity must do equitv. Fie must show clean hands. But he is disbarred from court, condemned out of his own mouth. He initiated the present insular polic}-; he N 21 invented its phraseolog_v, and of all men in pnblic life he alone cannot now rise np to call it accnrscd ! Supreme Court Cannot Decide Pending Issues. Bnt " these cpiestions will soon be decided by the Supreme Court," says General Harrison. That is impossible. The Supreme Court cannot and will not decide them, and, even if it attemi)te(l to do so, its action would be revolutionary and void. Can it mandamus the President? Can it enjoin the Con- gress? Can it prohibit this sovereign nation from exercising its sovereignty over conquered territory? Unless it overrules the precedents of a century and repudiates a practice that has ]M-evailed since its foundation, the court will decide only problems of 'a strictly judicial character, refuse to pass on those of a political nature and relegate their further con- sideration to the political departments of the govern- ment. It will thus settle few, if any, of the great problems discussed by General Harrison and now agitating the American public. Undoubtedly the court will follow the construction of national power, first laid do\\ n by Chief Justice Marshall and uniformly adhered to since, that this is a sovereign nation and can annex territor\' abso- lutely or sub inodo, and upon any terms and conditions it pleases. Having decided this much, it will logically follow that it must dismiss from further consideration the propriety of the particular terms of annexation, as matters within the exclusive jurisdiction of the Presi- dent and Congress. If annexation be constitutional, all appropriate means of effecting it are constitutional, and to incpiire into the necessity or wisdom of the means would be, 22 as Chief Justice Marshall said, "to pass the line which circnmscribes the judicial department and to tread on legislative ground. This court disclaims all pre- tensions to such power." (4 Wheat.. 423.) Other- wise, as Mr. Justice ]\Iiller explained, the court could " annul declarations of war, suspend the levy of armies and become a great international arbiter, instead of a court of justice for the administration of the laws of the United States." (i AA'oolw., 156.) These views were not presented to the court on behalf of the gov- ernment in the pending cases. I submit, with defer- ence, that they should have been. They present tlie onlv solution of the situation and the one I believe the court will ultimately adopt, a solution that provides a method for determining pending issues, and yet confines the judicial and political departments within the functions assigned them by the Constitution. Problems for Congress. Hence, these cpiestions must be left to the sover- eign people and their dtdy constituted agents. Con- gress and the President. Is there, then, no restraint on their action? All there ever has been in our his- tory. Uuring 114 years we have annexed and gov- erned 3,250,000 square miles of new territory. The power of Congress therein has been plenary, but its exercise has been just; its authority has been absolute, but its use has been for the greatest good of humanitv. During all that time the rights of territorial inhabit- ants, though not guaranteed by the Constitution, have been amply ])rotected by the fundamental, unwritten laws of our civilization. " AA'e must l)e content to limit ])ower where we can," said that sturdy patriot, Mr. Justice Iredell, " and where we cannot con- 23 sistently with its use, wc must be content to repose a salutary confidence. Tt is our consolation that there never existed a government, in ancient or modern times, more free from danger in this respect than the government of America." (3 l):dl., 398.) Like ]\Ir. Justice Iredell, we should repose con- fidence in our nation. Its policies are not chimerical ; they are supported b}- law : they are wise and con- servative. We have the right to annex Porto Rico and the Philippines; the right to hold and govern them : the right to give or refuse the Constitution ; the right to organize them into Territories; the right even to make them into States — why should we not continue in the future, as in the past, to exercise these lawful, plenary and sovereign powers? \\'e hold the islands by a perfect title; no other nation does. ^^'e are in possession ; no other nation is. \\ hy should we give away, or sell, or lease, or abandon a single foot of the territory? Why should we not restore order, open courts and found schools? A\diy should we not give the inhabitants a government of liberty, regulated by law, and honestly administered — taxation, without tyranny; justice, without l)ribc ; freedom of religious \\c)rship and protection to life, liberty and property? Behold the new centur}-, and at its vcr_\' ])ortals behold Milton's prophecy fulfilled, "a noble and puissant nation arousing herself like a strong man after sleep and shaking her in\incible locks" — our Republic rousing herself to the vast opportunities and tremendous responsilMlities of the future; every artery of her national life throbbing and pulsating with new vigor; her Constitution revered, implicitlv obeved, and protecting all the rights of her citizens; her reserved 24 powers unrestrained by constitutional limitations and equal to every demand of the most potential sover- eignty — our Republic, with her sublime and infinite possibilities, destined to become not only a world power, but the puissant and dominating power of the new century, a noble, beneficent and peaceful primacy among the nations of the earth. ( LibKHKY Uh CUNOKtbb 010 457 088 4 % '^Qtem^