THE LAW AND POLICY OF ANNEXATION THE LAW AND POLICY OF ANNEXATION WITH SPECIAL REFERENCE TO THE PHILIPPINES TOGETHER WITH OBSERVATIONS ON THE STATUS OF CUBA BY CARMAN F.RANDOLPH OF THE NEW YORK BAR AUTHOR OF "THE LAW OF EMINENT DOMAIN" LONGMANS, GREEN, AND CO. 91 AND 93 FIFTH AVENUE, NEW YORK LONDON AND BOMBAY 1901 Copyright, 1901, by Carman F. Randolph The DeVinne Press. ^ ■s -to ss ^)5 -^ To My Mother 4;<;:b37y PREFACE The annexation of the Philippines is the imme- diate reason for this book, which, in dealing with the event itself, advocates withdrawal of our sovereignty from the islands, and suggests a method for its accomplishment. In the larger and permanent pur- pose of the book the event is but the text for a general discussion of annexation, with regard to the policies proper for the guidance of the United States in the matter of enlarging their territory, and to the obligations that go with their sovereignty. These obligations are partly of a moral nature, and partly are determined by the Constitution. Some of the questions of constitutional law involving the taxation of commerce have been argued before the Supreme Court in causes now under advisement, and may be adjudicated before this book is published : Yet I have written positively on the whole question of constitutional obligation because I believe that in theory of law the Constitution is supreme through- out the jurisdiction of Congress, and because its su- premacy is a principle generally held by our people, vu viii PREFACE commonly respected by our Government, and recog- nized by our courts. -— *~» The true policies of the republic discourage any assumption of sovereignty over land and people that tends to weaken our institutions, or lower the quality of our civic body, or dull our sense of justice. MoRRiSTOWN, New Jersey, January, 1901. Note. — I have incorporated in this book parts of two pamphlets: " Con- •-^stitutional Aspects of Annexation," December, 1898, Harvard Law Review, January, 1899; reprinted in the Congressional Record, January II, 1899; and ,-^' Notes on the Law of Territorial Expansion," March, 1900, reprinted in the Record, March 31, 1900. CONTENTS CHAPTER I THE ANNEXATION OF THE PHILIPPINES THE SPANISH TITLE i ACQUISITION BY THE UNITED STATES 4 The Right and the Method 4 The Purpose of Acquisition 8 Our Title under the Treaty of Paris lo THE EFFECT OF ACQUISITION 12 CHAPTER II THE CONSTITUTION AND THE PHILIPPINES ARGUMENTS AGAINST THE RULE OF THE CON- STITUTION EXAMINED 29 That the Constitution is not Self-extending ... 29 That the Constitution is not Effective beyond the North American Continent 34 That the Constitution was Ordained for the States Alone 35 That the Power of the United States over An- nexed Territory is the Same as that Possessed BY Other Nations 43 ix X CONTENTS CHAPTER III THE APPLICATION OF THE CONSTITUTION IN THE PHILIPPINES STATUS OF PERSONS 52 Natural-Born Citizens 52 Indians and Foreigners 57 The Privilege of Election — The Plebiscite .... 59 Change of Nationality 61 Naturalized Citizens d^ Slavery 65 RIGHTS OF PERSONS 70 Political Franchises 70 Civil Rights 71 TAXATION— COMMERCE 76 Foreign Commerce 76 Domestic Commerce 78 The Porto Rico Act 82 The Commercial Unity of the United States ... 91 VALUE OF THE CONSTITUTION IN NEW TER- RITORY 98 CONCLUSIONS IN REGARD TO THE CONSTITU- TION 102 CHAPTER IV THE GOVERNING OF THE PHILIPPINES THE POWERS OF THE PRESIDENT 106 Executive Powers 106 Usurpation of Legislative Power 109 THE POWERS OF CONGRESS 121 Source and Extent of Congressional Powers ... 122 The Exercise of Congressional Powers 125 CONTENTS xi OUR RELATION TO THE OED ORDER .... 130 The Old Laws 130 Language 138 Religious Institutions 140 CHAPTER V THE ALIENATION OF THE PHILIPPINES THE RIGHT OF ALIENATION 146 THE TERMS OF ALIENATION — THE PROTEC- TORATE 148 THE EXPEDIENCY OF ALIENATION 158 Commercial Considerations 158 Moral and Political Considerations 161 OBSERVATIONS ON THE STATUS OF CUBA . . 173 APPENDIX OF DOCUMENTS {A) Joint Resolution in Regard to Cuba 193 Declaration of War 194 Protocol of August 12, 1898 194 Proclamation of the Protocoi 196 Treaty of Paris 197 Act of March 21, 1899 204 (^) Lease of Kiao-chau 205 Charter German Colonization Society 208 French Protectorate over Madagascar 209 Transfer of Mysore to a Native Ruler 212 Lagos Protectorate Order in Council 217 * INDEX OF CASES 221 GENERAL INDEX 223 CHAPTER I THE ANNEXATION OF THE PHILIPPINES THE SPANISH TITLE 10NG ago, Spain became entitled to the Philippine J Islands in accordance with the public law of the period respecting the discovery and occupation of land. The application of this law in America has been described by Chief Justice Marshall in terms pertinent in regard to the Indies: "On the dis- ** covery of this immense continent, the great nations " of Europe were eager to appropriate to themselves " so much of it as they could respectively acquire. " Its vast extent offered an ample field to the ambi- "tion and enterprise of all; and the character and "religion of its inhabitants afforded an apology for " considering them as a people over whom the superior "genius of Europe might claim an ascendancy. The "potentates of the old world found no difficulty in "convincing themselves that they made ample com- "pensation to the inhabitants of the new by be- " stowing on them civilization and Christianity in " exchange for unlimited independence. But, as they "were all in pursuit of nearly the same object, it was "necessary, in order to avoid conflicting settlements "and consequent war with each other, to establish a "principle which all should acknowledge as the law " by which the right of acquisition, which they all 2 LAW AND POLICY OF ANNEXATION " asserted, should be reg^ulated as between them- " selves. This principle /f\vas that d is cove ry g|"av e ., "title to_the^o.vernmen^ by whose subjects, or by ** wKose authority, it was made, against all other "European governments, which title might be'/ " consummated by possession. "The exclusion of all other Europeans necessarily " gave to the nation making the discovery the sole "right of acquiring the soil from the natives and "establishing settlements upon it. It was a right "with which no Europeans could interfere. It was " a right which all asserted for themselves, and to the "assertion of which, by others, all assented."^ The circumstances of Spain's tenure of the Phil- ippines are of historical rather than legal interest, for the law in respect of national title to land takes no account of its ori^n, noroiaiiysubsequent trans- ' lers which in private transactions would form what is ^l6 Cff\ • called a chain of title. JjfThe state having possession ^p .^fv/'v under claim of title is regarded as the sovereign pro- prietor without reference to the manner of acquiring it. Often this rule secures the fruits of oppression and fraud, yet none other is practicable. As the alternative of disorder, the status quo demands respect from the generality of states untiT," tlirough some convulsion of war, or some compact a new order comes into being-, thenceforth leo^itimated until it in turn shall be changed. And through just war px compact lands held wrongfully are sometimes regained by their proper sovereigns. According to these principles Spain, at the out- ^ Johnson V, Mcintosh, 8 Wheaton 543, 572. THE ANNEXATION OE THE PHILIPPINES 3 break of the war, possessed the Philippines in ex- ckisive sovereignty. That she had not reclaimed all parts of the Archipelago, nor bent all its savage tribes to her will no more affected her possession than did like shortcomings affect our possession of the western wilderness in earlier days. But some contend that the title enjoyed by Spain at the beginning of the war was, at the making of the Trea ty of Pari s, so shattered by insurgent Filipinos that Spain had really nothing to convey to the United States. This declaration is based on a ques- tionable fact and a serious misapprehension of law. From the battle of Manila Bay to the capture of Manila the insurrection is not separable from our campaign. Our hostile preparations revived it ; our ships 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. During this period the insurgents were, practically, our allies, and it is contemptible to belittle, now, their service in arraying the native population against Spain. Yet the relation was not that equal alliance between states which creates reciprocal obligations under in- ternational law,^ but rather an unequal alliance be- tween a state and a rebellious people who make common cause against the latter's sovereign. Even if a just estimation of the facts had approved the claim of the insurgents to an independent con- quest of the greater part of the islands, they would not have made good a legal title to the land against Spain: For a state does not lose title tjbrough in- surrection unless an insurgent government holds 1 See The Resolution, 2 Dallas i. i 4 ZA W AND POLICY OF ANNEXA TION territory beyond the likelihood of reconquest ; and recognition of this government by neutral states is, generally, the sign of a new order. The United States have respected this rule abroad, notably in insurrections of Spanish- American colonies. Thev succeeded in securing- its benefit for themselves in the Civil War, when, during four years, an insurgent government governed a large territory from a fixed capital, and kept great armies in the field : And, though the proper application of the rule is always a matter of delicacy, technically, the, United States have acted within their rights in ac- cepting it in the case of the Philippines. Finally, the United States have put all question of Spain's title beyond discussion. By accepting the islands from her hands, they have determined its sufficiency for themselves, and no other nation is concerned to question it. Being entitled to the Philippines, Spain had the legal right to cede them, as well by the particular law of her Constitution as by the principles of public law. ACQUISITION BY THE UNITED STATES The Right a7id the Method r The United States have the right to enlarge their territory, and the field of its exercise is not restricted by any legal limitation. "The Constitution confers ."absolutely on the government of the Union the THE ANNEXATION OF THE PHILIPPINES 5 " powe rs of making' war and of ni aking treati es ;" says Chief Justice Marshall, "consequently that govern- "ment possesses ihe .pQwef of acq uirin g territory "either bj^ conquest or by treaty."^ While the moral purpose of the war power is-^ figured in Taney's declaration: "The genius and "character of our institutions are peaceful, and the " power jD._declare war was not conferred upon Con- "gress for the purpose of aggression or aggrandize- " ment, but to enable the general government to vindi- "cate by arms, if it should become necessary, its own " rignts and the rights of its citizens " ; ^ yet, if aggran- dizement shall follow a war declared for whatever reason, we must hold with Marshall, that "conquest ... . -, 1 • 1 1 r 1 iia«»5»8»«' "p'lves a title which the courts 01 the conqueror can- " not deny, whatever the private and speculative "opinions of individuals may be respecting the ori- " ginal justice of the claim which has been successfully "asserted."^ A state may also add to its domain by discovery and settlement, and the Supreme Court has recog- nized this method of acquisition as being approved by the law of nations;* though it may be approved more satisfactorily as being inferred from the more apposite constitutional powers of contract and con- quest: {{{ a nation can buy or seize land, surely it can find and keep land.) / Reliance upon national, rather than international 1 American Ins. Co. v. Canter, i Peters 511, 541. 2 Fleming v. Page, 9 Howard 603, 614. 3 Johnson v. Mcintosh, 8 Wheaton 543, 588. * Johnson v. Mcintosh, 8 Wheaton 543; Jones v, U. S., 137 U. S. 202, 212 ; Shively v. Bowlby, 152 U. S. i, 50. ■^ 6 LAW AND POLICY OF ANNEXATION law as the basis of our national powers is usually enjoined by the superior value of the domestic law in this relation. When Lord Mansfield said that an act of Parliament "did not intend to alter, nor can " alter, the law of.nadons," ^ he stated merely the self- evident fact that the 'legislature of a single country cannot change a body oF^principles which derives its repute from the assent of all countries. He did not mean that a legislature is dominated by the law of nations.^ This law ought to be respected wherever it is clearly ascertained, even at great cost to national pride, if for no higher reason than this, that deference accorded to-day strengthens a demand for deference to-morrow. Our Constitution enjoys the unique dis- tinction, I believe, of commending this law to its courts, and American jurists have done much to broaden and strengthen its influence. But in all matters of domestic interest the United States should find their sufficient powers in the domestic law which they ordain and control. This caution is timely, be- cause there is a perverse disposition to determine our relations with Porto Rico and the Philippines by in- ternational law, in contempt of the truth that by as- suming complete sovereignty over these islands we have eliminated this law from our reckoning. Texas and Hawaii were annexed by joint resolu- tion of the Senate and Housc,^ because treaties of cession could not command the necessary two-thirds ^ Heathfield v. Chilton, 4 Burr. 2016. 2 See also Savigny, Conflict of Laws, Guthrie's translation, 2d ed., p. 75, note. 3 U. S. Statutes at Large, ix, 108; xxx, 750. THE ANNEXATION OF THE PHILIPPINES 7 vote in the Senate. This method is as effective as a treaty, though the reasons for its actual employment have subjected it to political criticism. Indeed, the case is conceivable where a resolution or act of Con- . gress may be the only formal method of annexation; if, for example, we sHrbnld now annex 'Cuba, in despite of our promise ; an act or resolution would be the most orderly means to the end, because there is no state in Cuba, at present, with whom we can make a treaty. Annexation should be accomplished through for- mal procedure, yet, after all, it is so far a matter of Tact that a case may arise where it would be inferred from an actual subjection of territory to our legisla- tive and executive jurisdiction, without preliminary formalities. Whenever the President and Congress join in extending the sovereignty of the United States over a particular territory their action must be respected by the courts, without regard to its location. "Who \ "is the sovereign de jure and de facto of a territory," ' says the Supreme Court, " is not a judicial but a "political question, the determination of which, by " tlTe legislajdve and executive departments of any ; " government conclusively binds the judges, as well "as all other officers, citizens, and subjects of that : "government. This princip le has always been up- " held by this court, and has been affirmed under a " great variety of circumstances." ^ ^ — 1 Jones V. U. S., 137 U. S. 202, 212; citing among American cases Gelston v. Hoyt, 3 Wheaton 296, 324; Foster v. Neilson, 2 Peters 253, 307, 309; and, among English cases. Emperor of Aus- tria V. Day, 3 De G. F. & J. 217, 221, 233. LAW AND POLICY OF ANNEXATION \^'' The Purpose'- of Acquisition Is the power to annex conditioned upon the for- maJdgin of States out of the new territory ? This question is not suggested by the acquisition of small tracts for specific governmental uses, such as coaling- stations, or of vacant guano islands under the Act of 1856.^ Nor can it be urged as a legal objection to an annexation that the country has not been annexed as a State, or in express contemplation of future statehood, for the admission of a State is, like the selection of territory, a political matter beyond the competency of the courts. But, according to the spirit of the Constitution, the subjection of annexed territory to exclusive federal control is, generally, an abnormal and temporary stage preceding a nor- mal and permanent condition of statehood. Chief Justice Marshall described the Territories as being ** in a state of infancy advancing to manhood, look- " ing forward to complete equality so soon as that "state of manhood shall be attained."^ Chief Justice Taney declared that the power to admit new States authorizes " the acquisition of territory not fit for "admission at the time, but to be admitted as soon " as its population and situation would entitle it to ad- " mission."^ And Mr. Justice Gray has said: "Upon "the acquisition of a Territory by the United States, " whether by cession from one of the States, or by "treaty with a foreign country, or by discovery and "settlement, the same title and dominion passed to 1 U. S. Revised Statutes, § 5570. 2 Loughborough v. Blake, 5 Wheaton 317, 324. •^ Scott V. Sandford, 19 Howard 393, 447. THE ANNEXATION OF THE PHILIPPINES 9 "the United States, for the benefit of the whole "people and in trust for the several States to be "ultimately created out of the Territory."^ All the land ceded to the United States by the States was transferred upon the understanding that it should be formed, eventually, into States. The Third Article of the Treaty of 1803, by which F"rance ceded Louisiana, reads: "The inhabitants of the "ceded territory shall be incorporated into the Union "of the United States, and admitted as soon as " possible, according- to the principles of the Federal " Constitution, to the enjoyment of all the rights, " advantages, and immunities of citizens of the United " States. . . ." This article was construed by Chief Justice Marshall to mean "that Louisiana shall be "admitted into the Union, as soon as possible, upon " an equal footing with the other States "; ^ and a like meaning is to be placed upon the Treaty of 18 19, by which Spain ceded Florida, and the Treaties of 1848 and 1853, by which Mexico ceded California and New Mexico. With the single exception of Texas, which was annexed by force of a joint resolution admitting it as a State, the vast domain gained by the United States down to 1867 was acquired in trust for States to be subsequently admitted. The promise of statehood was not expressed in annexing Alaska, Hawaii, and the lately acquired Spanish islands. These omissions are without legal significance, but, excepting the peculiar case of Alaska, an Arctic desert bought to at once oblige a friendly iShively v. Bowlby, 152 U. S. i, 57. 2 New Orleans v. De Armas, 9 Peters 224, 235. lo LAW AND POLICY OF ANNEXATION autocrat and bow him out of this hemisphere, they are of deep political import. They mark the first sig- nificant refusal to contemplate statehood as the des- tiny of annexed territory. This refusal is enough of itself to discredit the attempt to connect our acquisi- tions from Louisiana to the Philippines by a chain of common purpose. In annexing the Philippines we have broken with tradition. Our Title under the Treaty of Paris However the Treaty of Paris should be considered in the light of justice and policy, it expressed the lawful intentions of the signatory powers, and brought the islands under the sovereignty of the United States. And it must be understood that our title to all [ the land acquired as a result of the war with Spain is j derived from Spain exclusively. The President says in ' his annual message of 1899 : "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."^ This statement may convey the wrong impression that our interest in the Sulus differs in derivation and quality from our inter- est 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 of a sovereign proprietor. Now it is true that in 1878 Spain made an agree- ment with the sultan which perhaps recognizes him 1 Page 43. THE ANNEXATION OF THE PHILIPPINES ii as the head of a vassal state, and, some months after the ratification of the Treaty of Paris, General Bates was instructed to take this agreement into account in dealing with him.^ Then in 1885 Great Britain, Germany, and Spain signed a protocol in which Spanish sovereignty over Sulu was recognized, and Spain agreed to relinquish any claim to territory in Borneo based on the pretensions of the sultan.^ But any suggestions of a debased sovereignty in the sultan, perhaps not unlike that attributed to the Indian chiefs, with whom the United States have made treaties, do not qualify the cessionary clauses of the Treaty of Paris ; and this is fortunate, because it would be most embarrassing for the United States to claim Sulu by consent of the sultan, when that con- sent was given in an agreement which Congress has been compelled to treat with contempt because of its qualified recognition of slavery. 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 de- limitation of the "Philippine Archipelago " embraced the unmentioned Sulu group. The assertion of the Spanish Commissioners that the " Philippines " did not include the Sulus and the great island of Min- danao 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 1 See General Otis's Report for 1899, pp. 153-156. 2 See Westlake, Chapters on the Principles of International Law, P- 173- 12 LAW AND POLICY OF ANNEXATION effect: "The 'Philippines' we demand, and which "you will cede without change in terms, include Min- " danao and the Sulus." Of course the victors proved to be better geographers than the vanquished. Throughout the negotiations Spain's ability to trans- fer the complete sovereignty of all the land demanded by the United States was never questioned, and in the treaty 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 will not go behind the Treaty of Paris for confirmation of our title to any part of the Philippines. As we have not sought " the con- " sent of the governed " from the people of Luzon, we cannot even appear to recognize its necessity in deal- ing with slaveholding and polygamous barbarians , who are only restrained from piracy by gunboats and blackmail. This certificate of title sufficiently demonstrates I! our legal right to possess the Philippines, and with ■ legal rights only are we at present concerned. THE EFFECT OF ACQUISITION The first question suggested by the cession of the Philippines is whether it has incorporated the islands into the United States. In some international sense "the United States" defines all the territory in which the Federal Govern- ment is responsible before foreign nations. An ex- ecutive occupation of new-found, or abandoned, or hostile territory will bring it within the international THE ANNEXATION OF THE PHILIPPINES 13 \ boundaries of the United States, because among the 1 I nations the state in visible control of a country is accounted its sovereign for important purposes.^ But land occupied through enterprise or conquest, uncon- firmed by the legislature, does not become part of the United States in a domestic sense, though the act be prompted or approved by the President. The power to enlarge the republic is vested in the treaty- making body and also in Congress, but not in the executive alone." English law is different. The Crown, having the powers of making war and treaties, is competent to gain territory through their employment, but the land acquired does not become the exclusive dominion of the Crown. In the words of Lord Mansfield, " A "country conquered by the British arms becomes a "dominion of the King in right of his Crown, and "therefore necessarily subject to the legislature, the "Parliament of Great Britain."^ Whether the new dorpinion be actually subjected to laws imposed by the Crown, by a local government, or, rarely, by Parliament itself, depends on the will of the latter. Unquestionably the Philippines are part of the United States in an international sense. As the seat of a governing community "the "United States" are the States of the Union only. ^See Thirty Hogsheads of Sugar v. U. S., 9 Cranch 191, 195; U. S. V. Rice, 4 Wheaton 246 ; Fleming v. Page, 9 Howard 603, 615- '^ See Fleming v. Page, 9 Howard 603, 614. 2 Hall V. Campbell, Cowper 204, 218. See also The Foltina, I Dodson's Admiralty 450. 14 LAW AND POLICY OF ANNEXATION The whole pohtical power of the repubHc is vested in these forty-five States and their people. The Philippines are no part of this " United States," so there is no reason for the cry of alarm that their in- corporation into the territorial body of the republic would mean the admission of millions of Asiatics to the body politic. There is a third definition of "the United States." As the dominion of a sovereign nation "the United " States " describes a territory larger than the area of the States, but, at present, smaller by the area of Cuba than our "international" territory. This "United States" comprises all the land within the territorial jurisdiction of Congress, and makes one national territory. This definition is repudiated by the Administration, whose attitude toward our new possessions is based on the theory that while the treaty-making body intended to bring, and did bring the islands under the complete sovereignty of the United States, it intended to hold, and did hold them aloof from the United States, except in that interna- tional sense which conveys no idea whatever of do- mestic unity. This theory has been lately approved in one of the circuit courts of the United States. In the court's opinion we read: "The different States "are usually held to be foreign to each other except "as concerns international relations. Sister State "judgments are, for most purposes, foreign judg- "ments, and generally for all purposes other than " those specifically mentioned in the Constitution "our States are foreign to each other. On the same "principle Porto Rico remains foreign to the United THE ANNEXATION OF THE PHILIPPINES 15 "States except as provided in the Treaty."^ Here is a false analogy. The real relation of our States to each other, and the supposed relation of our new pos- sessions to the United States are not referable to **the same principle." The dominion of the repub- lic is platted into political divisions, including Terri- tories, the District of Columbia, and Indian reserva- tions as well as States, and in some respects these are foreign to each other. A corporation, ajudgment, a will originating in one of these divisions is foreign in the others : A person charged with crime in one division can be brought back from another only by process of extradition. In this sense the Philippines and Porto Rico are foreign to each other, and to all the remaining divisions. But none of these divisions is foreign before the Federal Government. Even the States which enjoy a measure of sovereignty are not " foreign states" ; and a clash of federal and State sovereignties is impossible, theoretically, so accurately is the sphere of each supposed to be defined. Not- withstanding the singular relation of the Indian tribes to our Government, the territory they occupy "is ad- "mitted," says Chief Justice Marshall, "to compose a "part of the United States."^ Since the political divisions whose people possess some real or shadowy sovereignty are not " foreign " to the United States, how can territory within their exclusive jurisdiction be other than domestic ? The real rationale of the opinion in Goetze v. The United States is found in its affirmative answer to what the court says is the sole constitutional ques- 1 Goetze v. U. S., 103 Federal Rep. 72, Zt^. 2 Cherokee Nation v. Georgia, 5 Peters i, 17. i6 LAW AND POLICY OF ANNEXATION tion : "May our Government accept the title of and "sovereignty over territory and at the same time "preserve its status as foreign territory so far as in- "ternal relations are concerned?"' The theory that the treaty-making body, or Con- gress itself for that matter, can extend the com- plete and exclusive sovereignty of the republic over territory without incorporating it within the national boundaries of the United States lies at the root of | the great legal questions of domestic interest sug- gested by the Treaty of Paris, and it seems to be fostered by the notion that this body has a free hand in the making of territorial arrangements in behalf of the republic. The theory that treaty pro-: visions are a law unto themselves has a certain at-' traction because engagements with foreign states are presumably sacred ; but this ethical principle does not necessarily bind our courts. Should Congress pass an act inconsistent with a treaty pledge a court would enforce the act, and not the treaty, holding simply that an old law had been repealed by a new one.^ Another argument for attributing unlimited powers to the treaty-making body is that it must be compe- tent to act quickly and decisively in the most serious emergencies. What agreements and concessions the President and Senate might be forced to make, and the republic be forced to accept by a conqueror, suggests a circumstance too humiliating and too re- mote to affect the interpretation of their powers in normal cases. And the Treaty of Paris is on our 1 103 Federal Rep. 72, 79. 2 Head-money Cases, 112 U. S. 580; Fong Yue Ting v. U. S., 149 U. S. 698; U. S. V. Old Settlers, 148 U. S. 427. THE ANNEXATION OF THE PHILIPPINES 17 part a normal act, requiring no sacrifice of constitu- tional principle to the law of necessity. The theory of the independence of the treaty-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 pe- culiar reluctance,^ it holds, as a matter of course, that treaties are subordinate to the Constitution.^ " It " need hardly be said," says the Court, " that a treaty "cannot change the Constitution or be held valid if it "be in violation of that instrument. This results from "the nature and fundamental principles of our Gov- "ernment."^ Even in Great Britain it is doubtful whether the courts would respect a treaty provision repugnant to "the law of the land,"* With the assurance that the treaty-making body, like Congress, is bound to respect the organic law which created it, we proceed to examine the particu- lar assertion that while the Treaty of Paris effects a complete transfer of the sovereignty of the Philip- pines from Spain to the United States, the presence of certain clauses and the absence of others forbid the conclusion that the Archipelago is incorporated 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 v. Riggs, 133 U. S. 267 ; Thomas v. Gay, 169 U. S. 264, 271 ; License Cases, 5 Howard 504, 613. ^The Cherokee Tobacco, 11 Wallace 616, 620. ■'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 Constitu- tion, ist Ed. 391. 2 i8 LAW AND POLICY OF ANNEXATION in the United States, and leave it a foreign country in respect of the internal administration and policy of the republic. The Fourth Article of the Treaty reads: "The " United States will, for the term of ten years from " the date of the exchange of the ratifications of the "present treaty, admit Spanish ships and merchan- " dise to the ports of the Philippine Islands on the "same terms as ships and merchandise of the United " States." It is argued that this trade privilege could not be accorded in a part of the United States, because of the prescription of uniformity of duties "throughout the United States," and therefore that its appearance in a treaty is proof that the islands have not been incorporated. This argument puts the cart before the horse. Whether the Philippines are in- corporated depends altogether upon the legal effect of the cession of sovereignty — a principal part of the treaty wholly unaffected by this subsidiary clause, which, if incompatible with the consequence of ces- sion, may be declared invalid by our courts in a proper suit. Treaties, like statutes, are to be construed so that, if possible, all their parts shall stand ; but if this subsidiary provision be declared unconstitutional by the courts it will be excised without damage to the remainder. If this trading privilege be illegal, its excision would not operate to retrocede the islands to Spain, nor to alter the title by which we hold them. The agreement is a condition subsequent to cession, and non-performance, whether through perversity or constitutional inability, would only give Spain a grievance. The Ninth Article declares that " the political \ \ THE ANNEXATION OF THE PHILIPPINES 19 " status and civil rights of the native inhabitants of " the territories hereby ceded to the United States "shall be determined by the Congress," This sin- gular declaration is supposed to negative the idea of an incorporation of territory. Says the Court in the Goetze case : ^ " If this treaty must be so construed "that the territory is incorporated into the United "States, while the inhabitants are denied the polit- " ical status and civil rights of citizens, the treaty "must be declared unconstitutional, and in that case "Porto Rico [and of course the Philippines] remains "a foreign country." This cannot be true. It is incredible that a judicial annulment of this clause, as being inconsistent with an incorporation inferred from an accepted cession, should invalidate the cession itself, and leave the United States in wrongful pos- session of a foreign land on the theory that, by this reservation, they had disabled themselves from accept- ing the inevitable consequences of a rightful posses- sion. The truth is that the real position of a subsidiary clause is again exaggerated, and with less excuse, if possible, than in the case of the commercial privilege just mentioned. For this privilege, being a contract with Spain and, presumably, part consideration for cession, has so peculiar a claim upon our national honor that its rescission, even on the score of uncon- stitutionality, would place us in a disadvantageous light. But the declaration is not a contract with any one — not even a promise. It is merely a reservation of a matter of domestic interest for the determination of Congress, and its qualification or annulment by the Supreme Court would simply illustrate the rule 1 103 Federal Rep. 72, 83. 20 LAW AND POLICY OF ANNEXATION that treaties must first conform to the Constitution, and then, if possible, to the expectations of their makers — a rule kept in mind by our Peace Commis- sion, whose president has said in explanation of this reservation : " It was thus undertaken to give Con- " gress, as far as the same could be co7istitutionally "■done, a free hand in dealing with these new "territories and their inhabitants."^ The Ninth Article of the treaty declares also that the Spanish-born residents of the ceded and relin- quished territories, who shall not have elected to re- tain their old allegiance within a given time, shall be deemed to have adopted "the nationality of the ter- "ritory in which they may reside." Does this im- press the Philippines and Porto Rico with nationalities distinguished from the nationality of the United States? The " nationality " attributed to the "relin- "quished" island of Cuba has no bearing on this question. It is anomalous, like everything relating to the status of this oddly situated island. Quite differ- ent is the "nationality" of the ceded territories, for these being duly transferred from one sovereign to another, their character is determinable by simple principles ; and in applying them we are not embar- rassed by the variant conceptions of "nationality" in its relation to people.^ The national territory prefigured by the Article 1 Address of Hon. William R. Day before the Michigan Bar Association, May 23, 1900, p. 9. (The itahcs are mine.) 2 See Boyd's Wheaton, International Law, 3d Ed. 30 ; Maine, Early History of Institutions, 74 ; Savigny, Conflict of Laws, Guthrie's translation, 2d Ed. 58; Tupper, Our Indian Protector- ate, 393; Cogordon, Za: Nationalite, 2d Ya\. 3-6. THE ANNEXATION OF THE PHILIPPINES 21 can be nothing else than land belonging to a state, and when I assert that we have only to name the state which is the sovereign proprietor of the soil in order to name its nationality, I rely upon a rule of public law never questioned in our courts, and generally accepted in other countries. " Her Majesty's dominions," is the legal descrip- tion of that empire which comprises the British Islands, British India, and the colonies of every description, and every part of these dominions is British territory. Commenting on an act of Par- liament referrino;- to "foreiorn dominions" of the Crown, Chief Justice Cockburn said: "I understand " the term ' foreign dominion ' to mean a country " which at some time formed part of the dominions of "a foreign state or potentate, but which by conquest "or cession has become part of the dominions of the "Crown of England"; and Justice Blackburn con- curred in this opinion,^ An Englishman would ridicule the notion that any part of the Queen's do- minions could be other than British territory. Even Australia and Canada, so nearly independent in fact, have no nationality of their own. When France formally extends her sovereignty over new terri- tory she does not amuse herself by pretending that it has a nationality other than French. After the acquisition of Madagascar, M. Hanotaux said in the Chamber of Deputies, " Madagascar is French " territory."^ To give the clause in question a constitutional, even an every-day meaning, it must be under- 1 Brown's Case, 5 Best and Smith 280, 290. - D Annee Politique (1897), 96. 22 LAW AND POLICY OF ANNEXATION Stood to attribute the nationality of the United States to PhiHppine and Porto Rican territory : And how can land be " foreign " to that country to which it is linked by the tie of nationality ? The Treaty of Paris contains no express declara- tion that the ceded islands are incorporated into the United States. Nor do we find any of those clauses recognizing citizenship, promising statehood, or de- limiting new national boundaries which appear in some earlier treaties of annexation. But these omissions are, like certain subordinate clauses, in- competent to qualify the legal effect of these master- words of the treaty: "Spain cedes to the United "States the archipelago known as the Philippine "Islands," and "cedes" her "sovereignty" thereof; and Porto Rico is transferred in similar terms. By ratifying this treaty the United States have accepted completely the sovereignty of the islands, as I under- stand the law of the matter ; but if the assent of the House of Representatives be really essential to a perfect acceptance, as some members asserted in a debate on the Alaska purchase, it has been given by the appropriation of $20,000,000 to carry out the treaty, or if this payment bound the House in re- gard to the Philippines only, the House has cer- tainly accepted Porto Rico by legislating for it. Add that the United States are in possession, and it is plain that the combination of law and fact impresses upon the islands the nationality of our republic. None other would be compatible with our sovereignty. Commenting on an earlier annexation like unto this one in its legal aspects, Chief Justice Marshall said : THE ANNEXATION OF THE PHILIPPINES 23 "The usage of the world is, if a nation be not en- " tirely subdued, to consider the holding of conquered "territory as a mere military occupation until its "fate shall be determined at the treaty of peace. If "it be ceded by the treaty, the acquisition is con- " firmed, and the ceded territory becomes a part of the " natioji to which it is annexed; either on the terms "stipulated in the treaty of cession, or on such as its "new master shall impose."^ The important phrase of this statement is, "the " ceded territory becomes a part of the nation to which "it is annexed." The additional words, " either on "the terms stipulated in the treaty, or on such as its " new master shall impose," do not, as some suppose, suggest the uncertainty of incorporation, for the fact of incorporation is established by the accepted ces- sion ; they merely note circumstances that may accompany or follow incorporation. The " new mas- " ter " may impose upon its possessions any terms, that is to say, any laws permitted by its own institutions. Articles of cession may contain stipulations, but after the cession is executed non-performance of the stipu- lations will not affect the title of the acquiring state in its own courts. For example, when we acquired California we agreed to pay Mexico $3,000,000 on the ratification of the treaty, and $12,000,000 in an- nual instalments of $3,000,000, but a default in the payments would not have affected the incorporation of California into the United States ; indeed, Cali- fornia became a State of the Union before all the instalments were due. 1 American Insurance Co. v. Canter, i Peters 511, 542. (The italics are mine.) 24 LAW AND POLICY OF ANNEXATION The rule that ceded land is incorporated into the domestic territory of the acquiring state is a con- sequence of the fact that it falls at once within the territorial jurisdiction of the legislature, and all land coming under this jurisdiction through agree- ment or conquest or occupation, through fair means or foul, becomes an integral part of the acquir- ing state because of its subjection to the sovereign body that makes the laws. "What, then, is the "extent of jurisdiction which a State possesses?" says Chief Justice Marshall. "We answer, without " hesitation, the jurisdiction of a State is coextensive "with its territory; coextensive with its legislative " power " : ^ And Mr. Justice Story said : " The laws "of no nation can justly extend beyond its own " territories, except so far as regards its own citi- "zens."^ In the Goetze case Porto Rico is called a " foreign country," ^ yet is recognized as being within the full jurisdiction of the Federal Government. But because it is within this jurisdiction it cannot be "foreign." There are, indeed, instances of the subjection of two countries to one sovereign, but these are not in point. Leopold II is King of the Belgians; he is also sover- eign of the Congo State. William IV was King of Hanover as well as of Great Britain, and it is note- worthy that, while there was no fusion of states,* Han- overians in England appear to have been British sub- jects by virtue of their allegiance to the person who 1 U. S. V. Bevans, 3 Wheaton 336, 386. -The Apollon, 9 Wheaton 362, 370. ^ 103 Federal Rep. 72, 77. ^ See Lewis, Government of Dependencies, Lucas's Ed. 90. THE ANNEXATION OF THE FJIILIPJTNES 25 happened to be King of Great Britain.^ The union in these and similar cases is wholly personal, in no wise resulting from any connection between the states themselves. William was King of Hanover by descent from that Elector of Liineburgr who was called to the English throne as George I (the electorate having been made a kingdom in 18 14), not because he was King of Great Britain ; and the reason why Queen Victoria did not reign in Hanover was because there females are barred from the succession. Leopold is sovereign of the Congo State by special arrange- ment, not because he is King of the Belgians ; and it appears that he may devise his African estate by will.^ No one will pretend that the United States and the Philippines are two countries linked in a personal union by virtue of one man being the chief magis- trate of each. Such a pretense would ignore the fact that our President governs the islands solely as the chief magistrate of the United States. Besides, the President would seem to be constitutionally in- capable of exercising a personal and detached sov- ereignty in another country, whether opportunity should come through invitation, inheritance, or con- quest: And this principle is not violated in Cuba, where the President oroverns as the commander-in- chief of our forces in military occupation of a foreign land. The theory that Congress and the President may together govern our new possessions as foreign countries is also erroneous. The powers granted to Congress, and it has no others, are conferred for ^ Stepney Election Case, L. R. 1 7 Q. B. D. 54. See Calvin's Case, Coke's Rep. vii, i, on the Union between England and Scotland. ^^\di.nQ]\a.xd, EJ^tat Indepcndeni du Congo, 232. 26 LAW AND POLICY OF ANNEXATION the governing of the United States, and not of any- foreign land. It is "a Congress of the United " States," not of the United States, and of Porto Rico, and of the PhiHppines, and of any other country we may wish to exploit without troubling ourselves about national unity and equal rights. "By the "Constitution," says the Supreme Court, "a gov- " ernment is ordained and established for the United " States of America, and not for countries outside "of their limits." ^ In the Goetze case the Court seeks to discredit an incorporation of Porto Rico into the United States by asserting that it would disable us from according to that island (and of course to the Philippines) the practical independence which, in the latter country at least, is desired so ardently by the inhabitants. " If "we cannot hold ceded territory without bringing it "under the Constitution, as an integral part of the "United States," says the Court, "then we cannot " give to Porto Rico practical independence, — a con- "stitution and laws of her own, taxes of her own, and "hold merely the sovereignty, confined, perhaps, to "control of foreign relations. If Porto Rico is still a "foreign country, we might adopt that course."^ This statement seems to contemplate a protectorate, and the embarrassments it suggests are purely ima- ginary. If the Court means that territory once incor- porated can never be handed over to its inhabitants, it ignores the cessionary powers of the United States. If the Court means that Congress may maintain a protected state within the limits of its jurisdiction, it 1 Ross's Case, 140 U. S. 453, 464. - 103 Federal Rep. 72, 82. / THE ANNEXATION OF THE PHILIPPINES 27 mistakes the nature of the true protectoral relation, for it appears that in theory of law a protected state is usually deemed to lie beyond the jurisdiction of the legislature of the protecting- state, whose inter- ests are managed by its executive department acting in the domain of foreign relations.^ What the United States might have done in the Philippines by way of a protectorate is now a be- lated question. What they may do yet, we shall con- sider later.^ At present we are concerned to know only that they have brought the islands within the jurisdiction of Congress: And no argument of in- | convenience is strong enough to overcome the con- clusion that land thus brought within the complete j and exclusive sovereignty of our legislature cannot ) be a foreign country, but must be part of the United States by force of the supreme tenure 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, comprised New Mexico, Arizona, Oklahoma, Indian Territory, Alaska, Hawaii, and a number of islets. To these are now added the Phil- ippines, Porto Rico, and Guam. These several districts present different character- iSee Lee-Warner, The Protected Princes of India, 181, 249, 263, 333. Compare Ilbert, The Government of India, 440, note 3, on the West African protectorates. 2 See Chapter V. 28 LAW AND POLICY OF ANNEXATION istics. 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 state- hood,^ but these are not distinguishable in law from the others, for the admission of a new State is an act of policy within the unlimited 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 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 generation. All the districts I have named are organically alike, because each is owned by the United States in sovereign proprietor- ship, and when this likeness is determined all differ- ences in condition, location, and probable destiny must be purely circumstantial. 1 See New Orleans v. De Armas, 9 Peters 224, 235. CHAPTER II THE CONSTITUTION AND THE PHILIPPINES ARGUMENTS AGAINST THE RULE OF THE CONSTITUTION EXAMINED An anxiety to rule the Philippines free from con- stitutional restrictions is even more marked than the unwillingness to consider them as part of the United States. Indeed, this unwillingness is due to the ap- prehension that throughout all this territory the Con- stitution must be the supreme law ; and there is so keen a fear that we shall be obliored to administer the o Philippines by constitutional rules that ingenious argu- ments are advanced to prove that the Constitution is really quite as foreign to these islands, unquestion- ably ours, as though they belonged to another nation. Prominent among the arguments are these: that the Constitution is not self-extending; that it is in- effective beyond the North American continent ; that it was ordained for the States alone ; that the power of the United States over annexed territory is the same as that possessed by other nations. That the Constitution is Not Self-exte7iding It has been contended that the Constitution is not in the Philippines because it has not been carried there 29 30 LAW AND POLICY OF ANNEXATION by an act of Congress, This argument attributes unlawful powers to the federal legislature. Congress is the creature of the Constitution, not its master ; and is bound to obey it wherever it is supreme, not privi- leged to decide where, within the 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 organ- izinof Territories enact the law of the Constitution for the new district. The Supreme Court has recog- nized such legislation, but has never treated it as carrying the Constitution to a new field. When Congress authorizes a territorial legislature to make laws "not inconsistent with the Constitution and "laws of the United States," it affirms "a condition "necessarily existing in the absence of express dec- " laration to that "effect." ^ 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 Congress could withdraw any privilege granted by the so-called extension of the Constitution. Of all the heresies that em- barrass the fair discussion of the Philippine ques- tion few are more mischievous than the notion that Congress is competent to grant and, if to grant, to take away or withhold the Constitution at pleasure. And the President and Senate, acting as a treaty- making body, are quite as incompetent to play with the organic law from which their existence and their powers are derived. 1 Maynard v. Hill, 125 U. S. 190, 204. THE CONSTITUTION AND THE PHILIPPINES zx Mr. Webster said in the Senate on February 24, 1849 : " 1 do not say that while we sit here to make " laws for these Territories we are not bound by "every one of the great principles which are in- " tended as general securities for public liberty. But "they do not exist in Territories till introduced by "the authority of Congress."^ — Hence the sugges- tion that the Constitution will not be effective in the Philippines until Congress shall legislate for them. This suggestion is wholly impracticable, whether it be predicated upon casual enactments, or upon a statute establishing a civil government. Even Webster's name cannot dignify the proposition that constitutional guaranties 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 lawfully rule United States territory during the inac- tion of Congress free from the restraints which, it is conceded, affect both himself and Congress after the territory shall have been duly organized ! Even a Kine of Enofland 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 concur- " rence of Parliament) has a power to alter the old "and to introduce new laws in a conquered country, "this legislation being subordinate, that is, subor- "dinate to his own authority in Parliament, he "cannot make any new change contrary to funda- " mental principles."^ It is noteworthy that they who deny, consistently, 1 Curtis's Life of Webster, ii, 366. - Campbell v. Hall, Cowper 204, 209. 32 LAW AND POLICY OF ANNEXATION the efficiency of the Constitution in our new posses- sions still maintain this opinion in regard to Porto Rico, although Congress has prescribed a govern- ment for it. Indeed, parts of the Porto Rico Govern- ment Act itself contemplate the exclusion of the Constitution from the island. The foregoing arguments proceed upon the theory that the Constitution can have no expansive force of its own, but, like the generality of statute law, must gain efficiency in annexed territory through some act supplementary to the act of annexation. This theory is unsound. The rano-e of the Constitution is not a political question, determinable by the President or Congress. These servants of the Constitution can- not decide in what circumstances or places its rules shall bind them. The range of the Constitution is a judicial question, determinable by construction of the instrument, and, did it not broaden with the expansion of the United States, nothing but an amendment could extend it beyond their original boundaries, ex- cept, perhaps, the admission of a new State. The theory that the Constitution has a force of its own is, of course, subordinate to the primary consid- eration that a living constitution presupposes a living government. The Constitution framed by our Fed- eral Convention could not vitalize itself It was an abstraction until the States launched the orovernment it contemplated, but then it became the inspiration and the guide of this government. The theory of the self-extending force of certain provisions of the Constitution must be distinguished from a question of constitutional construction which, IHE CONSJITUTION AND THE PHILIPPINES ^t, sometimes, has been supposed to discredit it ; ^ namely, whether a provision be so phrased as to require legislative action to make it efficient anywhere. To illustrate the distinction between this question and the theory of self-extension, and also a divergence of opin- ion in answering the question, I cite a once famous disagreement between federal and State courts. The Constitution of the State of Mississippi, adopted in 1832, contained this provision: "The introduction " of slaves into this State as merchandise, or for sale, "shall be prohibited from and after the first day of "May, 1833." The Supreme Court of the United States decided that the provision did not execute it- self, but required action by the legislature, especially the imposition of penalties for violation, before it should become effective.^ The State court, however, refused to follow the Supreme Court. It declared the provision to be self-executing, upon the following theory of constitutional obligation : The Constitu- tion, said the Court, " is but the frame or skeleton " of a government, containing the general outline, " leaving the detail to be filled up in subordination "and auxiliary to the essential and fundamental prin- "ciples thereby established. But it is not on that "account the less binding. It is from its very nature "and object the supreme law of the land, fixed and " unalterable, except by the power that made it. It "contains only certain great principles which are to " control in all legislation, and extend through the "whole body politic. These principles are of them- " selves laws. Constitutions do not usually profess iSee Benton, Thirty Years' View, II, p. 714. 2 Groves v. Slaughter, 1 5 Peters 449. 34 LAW AND POLICY OF ANNEXATION "to insure obedience by prescribing penalties; they " merely declare the rule or establish the principle, "which, being paramount, makes void whatever is " repugnant to it. Its mandates or principles bind " by a moral power. , . . General principles, thought " to be essential to a free government, are declared ; "and (emanating from the sovereign authority) that "mere declaration imparts to them all the force of a " supreme law."^ We are not concerned with the merits of this dis- agreement, though I think the State court was in the right. At all events, its masterly exposition of the obligatory force of constitutional principles generally is especially applicable to the Federal Constitution, whose principles, with few exceptions, do not belong in the second-rate class of recommendations depend- ing for obligation upon the pleasure of the legislature, but are themselves laws enforcible by the courts. That the Constitution is not Effective Beyorid the North America7i Co7iti7ient In the annual report of the Secretary of War for 1899 we read : "The people of the islands have no "right ... 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 conditio7is existing upon this co7itinent " ; Ij and, further, that the Porto Ricans cannot demand that tariff duties shall be uniform throughout Porto Rico and our mainland, because the constitutional provision of uniformity was "solely adapted to the ' JJrien v. Williamson, 8 Mississijjpi 14, 17. THE CONSTITUTION AND THE FIJILIPFINES 35 '^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 no- where else. The Preamble, it is true, entitles our republic "The United States of America," but I understand the suffix to be merely a descriptive term aptly chosen at the time, and not a legal restriction ; y \, otherwise we could not have lawfully annexed the Philippines. This "continental" theory is not even derived from the Preamble, for it restricts the Consti- tution to North America. Upon what basis of fact is a Constitution conceded to be adapted to the di- verse physical, social, and economic conditions of our continental domain deemed to be essentially unfit for Porto Rico ? Upon what principle of law can there be read into the Constitution this, or any other purely geographical limitation on its authority ? That the Constitution was Ordained for the States Alone The most specious argument against the rule of / / the Constitution in the Philippines is that it was ordained for the States of the Union alone. This proposition was advanced in the debates in Congress on the acquisition of Louisiana in 1803, and on the question of slavery in California in 1849 ^ it has been resurrected in recent discussions ; but it has never grained even the consideration that the common assent of statesmen might give it betore the courts. 1 The italics are mine. 2,6 LAW AND POLICY OF ANNEXATION The proposition lacks the support of precedent. If the theory that the Constitution is operative in the States only has been consciously applied in adminis- tering outlying territory its applications have been infrequent and, presumably, inexcusable. There is no warrant for the boast that in denying the Con- stitution to our new possessions the Administration adds weight to a practical construction of the organic law which the courts should respect. The present policy of definitely excluding new ter- ritory from the great customs district of the republic violates precedent.-^ Regarding the general guaranties of the Constitu- tion in annexed territory, we find that in the case of Louisiana while 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, our government did not deny the efficacy of the guaranties, and the Supreme Court practically recognized their obligation in Bollman's case.^ General Wilkinson arrested Bollman in Orleans Territory (Louisiana) upon a charge of treason, and sent him to Washington for trial, all without civil warrant : The Supreme Court discharged him ; and Judge Story termed the arrest "a very gross viola- tion of the Fourth Amendment."^ Whatever we did in Florida before we took pos- session under the completed treaty of cession was done in a foreign land, and so is immaterial to this in- quiry. After the cession General Jackson was com- ' See infra, p. 79. ^ Commentaries, Sec. 1902, Note. '^ 4 Cranch 75. THE CONSTITUTION AND THE PHILIPPINES 37 missioned, by the authority of Congress, " with all "the powers and authorities " theretofore enjoyed by the Spanish rulers.^ Jackson was not affected, how- ever, with a Spanish officer's irresponsibility in regard to our Constitution,^ though he is said to have de- clared 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 policy. The obligatory force of the Constitution in Califor- nia was maintained by Polk's Administration, whose position was attacked by Webster and Benton be- cause Calhoun assumed that it secured the right to take slaves into the new Territory. If Calhoun argued for the Constitution in California with the expecta- tion of extending the area of slavery, he at least con- templated the attribution of its rights to white men, while these rights are now withheld from all people in the islands. I am not aware of any act of the Government denying the authority of the Constitution in Alaska. A keen search for arbitrary acts of the Federal Gov- ernment in unorganized territory, or, for that matter, in the States, may not be wholly unsuccessful ; but the search is a discreditable waste of time when its pur- pose is to parade them for our commendation. Such acts are transgressions against the republic, and their approbation as standards of conduct is a repulsive feature of the attack now being made upon constitu- tional government. 1 21 Niles Weekly Register 135. -See the citation from Pollard v. Hagan, ififra, p. 131. 3 21 Niles Weekly Register 136. '^ 56279 28 LAW AND POLICY OF ANNEXATION Replying" 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 not encouraged by a single dictum of the Supreme Court, hardly countenanced, indeed, by a questioning phrase, and has been repeatedly dis- credited in that seat of authority.^ In Callan v. Wilson, the Supreme Court main- tained the law of the Constitution beyond the States in the only case where an act of Congress disregard- ing it was forced upon the Court's attention. The suggestion that the principleof this decision is limited 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 Territories the right of trial by jury " in criminal prosecutions ; and it had been previ- "ously 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 of Columbia once belonged to States which ceded it for a Federal 1 See also the opinion of Lochren, District Judge, in Ex parte Ortiz, 100 Federal Rep. 955. ^See also American Publishing Co. v. Fisher, 166 U. S. 464; Springville v, Thomas, 166 (J. S. 707; Thompson v. Utah, 170 U. S. 343; National Bank v. Guthrie, 173 U. S. 528, 537; Black V. Jackson, 177 U. S. 349, 363. •' Callan v. Wilson, 127 U. S. 540, 550. THE CONSTITUTION AND THE PHILIPPINES 39 capital, its people enjoy constitutional rights denied to the people of the Territories 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 policy why they should be preferred to the people of Oklahoma, nor any of constitutional law, for, as Chief Justice Marshall says, the District and a Territory " may differ in many respects, but neither "of them is a State, in the sense in which that term " is used in the Constitution."^ Each has been called a state, however, in the primitive sense of being an organized community,^ and each has been ranked amone the States of the Union in order to effectuate a treaty pledge.^ Territories have been also described as "depen- "dencies,"* perhaps not an inaccurate description of districts whose communities lack all attributes of sovereignty. With better reason they are likened to the counties of a State,^ and to " organized munici- " palities," ^ and it is quite as impossible for the repub- lic, as for a State, to withhold from the subordinate districts within its domain the protection of its Constitution. 1 New Orleans v. Winter, i Wheaton 91, 94. • 2Talbott V. Silver Bow County, 139 U. S. 438, 448. ^ Geofroy v. Riggs, 133 U. S. 258. * Snow V. U. S., 18 Wallace 317, 320. ^National Bank v. County of Yankton, loi U. S. 129, 133. « Geofroy v. Riggs, 133 U. S. 258, 268 ; see also Utter r. Frank- lin, 172 U. S. 416, 423. 40 LAW AND POLICY OF ANNEXATION Among the Justices who have recognized the Con- stitution as having a broader dominion than the States are Chief Justices Marshall/ Taney,^ Waite,^ and Fuller,* and Justices Curtis,^ Miller,^ Bradley/ Har- lan/ Matthews/ Gray/" Brewer/^ Field/^ and Clifford.^^ This consensus of opinion represents every theory of constitutional interpretation that has been ex- pounded 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 Constitution. This decision simply affirms the absolute discretion of Congress in creating the ma- chinery of territorial government. The Mormon Church case ^' involved an act of Congress applying to educational uses certain property of the dissolved Corporation of Latter-day Saints in Utah Territory. ' Loughborough v. Blake, 5 Wheaton 317, 324. - Strader v. Graham, 10 Howard 82, 96; Scott v. Sandford, 19 Howard 393, 449. 3 National Bank v. County of Yankton, loi U. S. 129, 133. 4 Mormon Church v. U. S., 136 U. S. i, 67. ^ Scott V. Sandford, 19 Howard 393, 614, 624. 6 Slaughter-house Cases, 16 Wallace 36, 72. "' Mormon Church v. U. S., 136 U. S. i, 44. 8 McAllister v. U. S., 141 U. S. 174, 188. ^ Murphy v. Ramsey, 114 U. S. 15, 44. 1" Capital Traction Co. v. Hof., 174 U. S. i. 11 Fong Yue Ting v. U. S., 149 U. S. 628. '- Maynard v. Hill, 125 U. S. 190, 204. '•' "The City of Panama," 10 1 U. S. 453, 460. ^•^ 9 Howard, 242. 15 136 U. S. I. THE CONSTITUTION AND THE PHIIIPPINES a,\ Three Justices declared the act to be invalid because spoliative, thus affirming their conviction of the authority of the Constitution in the Territory. The Court recognized the obligation of the constitutional guaranties 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 con- victed of murder before our consular court in Japan. The conviction was affirmed, though the act of Con- gress 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 carrying our Constitution to a foreign land, where, as the Supreme Court said, "it can have no opera- "tion." Usually, such tribunals are created for the protection of Christians in non-Christian 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 extraterritorial 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 1 140 U. S. 453. 42 LAW AND POLICY OF ANNEXATION 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 alone, is as harsh and artificial as that of the most strict constructionists of the old school, whom the new- school resembles in denying the national and com- mercial unity of all who owe allegiance to the republic. And the new school is subject to a re- proach not imputable to the old : It reverses the great rule of the common law by making every pre- sumption against the individual and in favor of the state, for it attributes 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. The "United States," whose people framed the Constitution, and retained for themselves and the States all powers not dele- gated to the Federal Government are, unquestionably, the States of the Union only. These States and their people wield the whole political power of the republic.^ Unquestionably the Constitution con- tains clauses relating exclusively to the States either in terms or by necessary implication. Other clauses embody principles of universal value and unre- stricted 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 Terri- " tory west of the Missouri, is not less within the "United States, than Maryland or Pennsylvania."^ ^ See infra, \). 70. 2 Loughborough v. Blake, 5 Wheaton 317, 319. THE CONSTITUTION AND THE PIIIIII>PINES az That the Power of the United States over Annexed Territory is the Same as that Possessed by Other Nations The most popular arg-ument for withholding the , Constitution from the Philippines is that the United { States are equal to any other nation in power and I resource, and, therefore, are competent to deal with the islands as another nation might under the cir- cumstances. Deferring to this opinion for the mo- ment, let us inquire whether nations whose rank and experience invite, apparently, our profitable study of their expansion policies are accustomed to do what we are urged to do ; namely, to divide national terri- tory into sections distinguished organically by the presence of effective constitutional restraints on gov- ernmental power in the one, and the absence of such restraints in the other. The colonial policies of Germany, Italy, and Japan are in the experimental stage ; and we shall not find a model in the exploitation of Java by Holland. Constitutional questions, in the Western sense, are practically unknown in Russia, whose inhabitants are classified as the Czar — and the others. Each acquisi- tion of territory means simply the enlargement of the Czar's dominions and the increase of his subjects. The first French republic professed to carry the French ideals of liberty, equality, and fraternity to its neighbors in Europe, and the present republic affects the same office in its colonies. It is not material to determine the value of these ideals, or how nearly they are realized. It is sufficient for our 44 LAW AND POLICY OF ANNEXATION purpose to know that the French Constitution is not restricted, in theory, to France in Europe. And Algeria, French India, Mauritius, Reunion, and Guadeloupe, in sending senators and deputies to the national legislature, enjoy political rights denied to the colonies of Great Britain and the territories of the United States. The colonial policy of Great Britain is especially commended for our imitation, but it will appear that organic equality is the constitutional theory in the British Empire, and not discrimination. For the will of Parliament is the oreanic law of the British Em- pire, whose parts are united by their common subjec- tion to it, and Parliament presides over the scattered lands and the polyglot people with equal and unfet- tered power. England and the Gold Coast are in- tegral parts of this empire : ^ The citizen of London and the native of India are on an equal footing before an authority that acknowledges no legal constraint. The opportunist colonial policy so cleverly displayed in the administration of the Queen's dominions be- yond the sea is but a manifestation of a force quite as supreme in the British Islands. The organic law of the United States is the written Constitution, and so long as its broad guaranties run throughout the national territories all the people are equal before the law — an equality in harmony with the British theory. But were these guaranties circumscribed, all would not be equal ; there would be the law of the Constitution for some, the pleasure of Congress for others — an inequality in marked contrast to the British theory. ' See supra, p. 21. THE CONSTITUTION AND THE TIJIUJ'FINES a,t^ Our survey of foreign policy is of some practical interest inasmuch as it shows that the subjection of our new possessions to the organic law is not in line with the best precedents, but, more importantly, it should remind us how radically our government differs from the governments of Europe, including that of Great Britain. The assertion that the American people are a nation like the people of the Piritish Empire is true in the sense that there is an ultimate authority in the republic substantially similar to that of the British nation. It is false in the suggested sense that this authority is lodged in Congress. Parlia- ment is the British nation for every purpose. Con- gress is the American nation only for the purpose of exercising the powers delegated in the Constitution, and a brief consideration of the meaning and office of this Constitution will demonstrate the incom- petency of Congress to rule territory in disregard of its provisions. The Constitution is the foundation of the United States. Destroy it, and the United States would dis- appear, — the name and the thing alike, — leaving forty-five sovereign States, each entitled to a share in outlying territory. " The United States of America " is, in short, an artificial name given by the written law which created the thinor it describes. This iden- tification of our Constitution with our country is strikingly illustrated in the phrasing of the con- stitutional oath of office. It is customary in all countries to require of officials a formal profession of fidelity to the state they serve, and this is made to the person or thing that in local usage most closely represents the state. In accordance with this custom, 46 LAW AND POLICY OF ANNEXATION every official in the United States, from the President down, is bound by oath or affirmation to support the Constitution, and only the Constitution. And it is noteworthy that while some provisions of the Porto Rico Government Act are drawn, seemingly, as though the Constitution were not effective in the island, every official mentioned in the act is required to take the constitutional oath. This requirement is essential, but its presence discredits the theory of the inefficiency of the Constitution in Porto Rico, be- cause he who swears to support it is entitled to its protection. The Constitution is the ultimate source of author- ity for every lawful act of the Federal Government. The power behind the act may be expressed ; it may be plainly implied ; it may be claimed by implication so refined as to provoke conflicts of opinion : but it must be derived from the organic law. This conclu- sion has been constantly affirmed by the Supreme Court. It is the very corner-stone of our law of con- stitutional interpretation. And, as the Government must rely on the enabling provisions of the Constitu- tion for authority to act at all, it must rule its conduct according to the restraining provisions. Comment- ing on government in general, and our own in par- ticular. Chief Justice Marshall said: "This original and supreme will [of the people] organizes the gov- " ernment, and assigns to different departments their " respective powers. It may either stop here, or es- " ta1)lish certain limits not to be transcended by those " departments. " The government of the United States is of the THE CONSTITUTION AND THE PHILIPPINES 47 "latter description. The powers of the legislature "are defined and limited; and that those limits may "not be mistaken, or forgotten, the Constitution is " written."^ The immeasurable difference between the limited powers of Congress and the omnipotence of Parlia- ment is recognized by our courts,^ and it cannot be too strongly emphasized at this moment when a sud- den admiration for English colonial policy has begot- ten a desire to imitate it. "The powers of the British Parliament," says Mr. Justice Harlan, "furnish no test for the powers that may be exercised by the Congress of the United States. Referring to the difficulties confronting the Convention of 1787 which framed the present Constitution of the United States, and to the pro- found differences between the instrument framed by it and what is called the British Constitution, Mr. Bryce, an English writer of high authority, says in his admirable work on the American Common- wealth : ' The British Parliament had always been, 'was then, and remains now, a sovereign and con- ' stituent assembly. It can make and unmake any 'and every law, change the form of government or ' the succession to the crown, interfere with the ' course of justice, extinguish the most sacred pri- ' vate rights of the citizen. Between it and the ' people at large there is no legal distinction, because ' the whole plenitude of the people's rights and ' powers resides in it. just as if the whole nation 'were present within the chamber where it sits. 1 Marbury v. Madison, i Cranch 137, 176. 2 See Van Home's Lessee v. Dorrance, 2 Dallas 304, 307. 48 LAW AND POLICY OF ANNEXATION ' In point of legal theory it is the nation, being the 'historical successor of the Folkmoot of our Teu- ' tonic forefathers. Both practically and legally, it is ' to-day the only and the sufficient depository of the ' authority of the nation ; and is, therefore, within 'the sphere of law, irresponsible and omnipotent.'^ No such powers have been given to or can be ex- ercised by any legislative body organized under the American system. Absolute, arbitrary power ex- ists nowhere in this free land. The authority for the exercise of power by the Congress of the United States must be found in the Constitution. What- ever it does in excess of the powers granted to it, or in violation of the injunctions of the supreme law of the land, is a nullity, and may be so treated by every person. ... If the Parliament of Great Britain, her Britannic Majesty assenting, should establish slavery or involuntary servitude in Eng- land, the courts there would not question its author- ity to do so and would have no alternative except to sustain legislation of that character. A very short act of Parliament would suffice to destroy all the guaranties of life, liberty and property now enjoyed by Englishmen. 'What,' Mr. Bryce says, 'are called in Enegislation, contributed to the Political Science Quarterly of December, 1897. THE APPLICA TION OF THE CONSTITUTION 93 The specific question is now of historic interest only, and I think it will be agreed that principles of law which might have been urged against maintain- ing a constitutional right of free trade in human beings are not applicable to a commerce from which the slave has disappeared — if, indeed, he ever actu- ally figured in federal jurisprudence as an article of commerce.^ In considering Judge Story's general question it is not necessary to determine whether Congress may forbid domestic traffic in articles deemed to be essen- tially prejudicial to public health or morals, though it may be noted that, perhaps, in this regard Congress has more power over commerce between the Terri- tories and the States, than over that between the States, since in the Territories it possesses, unques- tionably, that power of police which in the States ap- pears to be vested solely in the local governments. Nor is it material to this discussion to consider spe- cially the power of interdiction asserted by Congress in the so-called Anti-Trust Act of 1890, authorizing the seizure of trust-made articles in course of inter- state transit. Our precise question is whether Con- gress is competent to divide the United States into sections by drawing a line through any part, and for- bidding commerce between them, either generally or in specific articles. In 1807 Congress laid an em- bargo upon foreign trade, and described the measure " as neither hostile in its character nor as justifying or "inciting or leading to hostility to any nation what- "ever."^ The constitutionality of the Embargo Act 1 See Groves v. Slaughter, 15 Peters 449, 506. -U. S. V. The Brig WiUiam, 2 Hall's Law Journal 255. 94 LAW AND POLICY OF ANNEXATION was attacked, but was sustained in a District Court ; and some years later Justice Marshall referred to " the universally acknowledged power of the Govern- "ment to impose embargos," described them as "sometimes resorted to, without a view to war, and "with a single view to commerce," and said of the act of 1807: "By its friends and its enemies it was "treated as a commercial, not as a war, measure."^ And Judge Story said : " If it could be classed at all as "flowing from or incident to any of the enumerated " powers, it was that of regulating commerce." ^ Now the power conferred in respect of foreign, Indian, and interstate or domestic commerce is in each case "to regulate," and from this identity in the terms of the grants it has been assumed that the three powers are coextensive. But it will not be difficult to show that the power over domestic commerce is not identi- cal with the power over commerce with foreign nations,^ and with the Indians. The assertion of identity between the powers over domestic and In- dian commerce may be dismissed almost summarily. The Indian tribes are, in the language of Chief Justice Marshall " in a state of pupilage. Their relation to "the United States resembles that of a ward to its guardian. They look to our Government for pro- tection ; rely upon its kindness and power; appeal "to it for relief to their wants; and address the "President as their great father."* Whatever re- 1 Gibbons v. Ogden, 9 Wheaton i, 192. See also Legal Tender Cases, 12 Wallace 457, 550. - Commentaries, Sec. 1289. See also The Federalist, No. 11. ■' See Madison's Works, IV, 15; Groves v. Slaughter, 15 Peters 449' 505- 'Cherokee Nation v. Georgia, 5 Peters i, 17. THE APPLICATION OF THE CONSTITCTIOA^ 95 lation the people of the United States may bear to the Federal Government, it is not this. The dependent position of the Indians justified the Supreme Court in saying: "As long as these Indians remain a dis- " tinct people, with an existing tribal organization, "recognized by the political department of the gov- " ernment. Congress has the power to say with whom " and on what terms they shall deal, and what articles "shall be contraband."^ Whatever power Congress may have over domestic commerce, it is not this. It is a fair rule of interpretation that, when powers in respect of several subjects are assumed to be coex- tensive merely because of identity in the terms of the grants, the differentiation of one subject discredits the assumption as to the rest. But we need not stop here ; for, in point of fact, the assumed parallel be- tween domestic and foreign commerce is quite as illusory as in the case of Indian trade, and for the same reason — a radical difference in the status of the parties. The United States deal with a foreign nation as one sovereign with another. They have no connec- tion, and, apart from the obligation of treaties, no conventional relation with the foreign state. Their attitude toward other nations is dictated by policy, tempered in some directions by treaty and inter- national law ; and they may discriminate between them — inclining toward one and away from another — as their interests require. If Congress may interdict foreign commerce, it is by way of carrying out the policy of a sovereign — the United States — in opposition to, or disregard of 1 U. S. V. 43 Gallons of Whisky, 93 U. S. 188, 195. 96 LAW AND POLICY OF ANNEXATION the policies of other sovereigns to whom it owes no legal duty in the premises. Obviously a right to interdict, which may inhere in the power to regulate commerce with foreign or dependent nations cannot be attributed by analogy to the power to regulate our own. Because we may forbid intercourse with a foreign nation, essentially an unfriendly act despite any protestation to the contrary, and forbid private dealings with Indians in order to protect childish wards from the rapacity of traders, it does not follow that we may turn the weapon of embargo against our own countrymen, or treat them as children of a "great father." Federal power over domestic commerce is distin- guished from the neighbor subjects of foreign and Indian trade, and from that war power which justified non-intercourse legislation during our Civil War,^ because it relates to traffic among the, presumably, loyal people of a common country. It must be consid- ered on its own merits. "The Constitution," says the Supreme Court, " does not provide that inter- " state commerce shall be free, but, by the grant of "this exclusive power to regulate it, it was left free, "except as Congress might impose restraints."^ This means that domestic commerce is not free in the sense of being private enterprise wholly beyond federal supervision. Federal power to regulate com- merce is not limited to annulling State laws, and enjoining private acts that would hinder it. This, the passive side of the power, is maintained in the courts. The active side is expressed in legislation, ' See The Reform, 3 Wallace 617. 2 U. S. V. E. C. Knight Co., 156 U. S. i, 1 1. THE APPLICATION OF THE CONSTITUTION 97 and, while its range has not been definitely estab- lished, the nature of the subject must preclude its being extended to the point of interdiction. " It has "been said," says Chief Justice Marshall, "that the " Constitution does not confer the right of inter- " course between State and State. That ricrht " derives its source from those laws whose authority " is acknowledged by civilized man throughout the " world. This is true. The Constitution found it "an existing right, and gave to Congress the power "to regulate it."^ The last sentence would mean something very different were it altered to read : "The Constitution found it an existing right, and "gave to Congress the power to interdict it"; and this confused proposition would so pervert the law as to defeat its true and most admirable purpose. The right of intercourse mentioned by Marshall obtained among communities practically indepen- dent, for the Articles of Confederation were but " a rope of sand," and it was because intercourse was seriously hampered by States exercising their sov- ereign powers of restriction that this clause was inserted in the Constitution. In fact, the need of commercial unity was the greatest incentive to the establishment of " the more perfect Union " assured by the Constitution, The States did not transfer to Congress the sovereign power of restriction which each possessed. They renounced these powers, left them in the air, and authorized Con- gress to maintain the freedom of trade established by their renunciation. To regulate domestic commerce, then, is to facilitate an intercourse placed beyond 1 Gibbons v. Ogden, 9 Wheaton i, 211. 7 98 LAW AND POLICY OF ANNEXATION reach of prohibition, and, while regulations may in fact involve some restraint upon the conduct of particular intercourse, they have their warrant and purpose in the facilitation of all intercourse. VALUE OF THE CONSTITUTION IN NEW TERRITORY In affirming the authority of the Constitution in the Philippines, I am far from anticipating the trans- formation of an Asiatic dependency of Spain into a well-ordered section of the United States by any magical power of written law. Constitutional rule will not prevail 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. The influence of the Constitution spread slowly throughout the vast domains we have annexed from time to time ; isolated communities made their own laws ; sparsely peopled regions had none. A Southern Confederacy once defied the Constitution, and, temporarily, suspended its active authority throughout a wide area ; yet the Supreme Court said of an insurrectionary State : " She never escaped "her obligations to that Constitution, though for a "while she may have evaded their enforcement."^ These untoward conditions illustrate the general proposition that constitutional guaranties are not thoroughly efficient unless persons injured by their violation have recourse to competent tribunals for J Keith V. Clark, 97 U. S. 454, 461. THE APPLICATION OF THE CONSTITUTION c^c^ redress. How far such courts as may now sit in the islands are competent I do not discuss, for it may be admitted that until Congress shall authorize suitable tribunals constitutional rights will receive 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 public minis- " ters and consuls, and those in which a State shall "be a party." ^ 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 to this tribunal, are determinable by Congress, which cannot be forced to create a court, or directed in defining its jurisdiction, or prevented from abolishing it. Generally speaking, the people of the United States depend upon the facilities af- forded by the Judiciary Acts for the orderly enforce- ment of their rights, and in saying this we suggest the high office of courts wherever justice is truly respected. Before leaving the subject of the jurisdiction of courts it will be profitable to note a marked differ- ence 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."^ The royal prerogative, however, has 1 See Marbury v. Madison, i Cranch 137. '- The Lord Bishop of Natal, 3 Moore P. C. C, N. S. 115. loo LAW AND POLICY OF ANNEXATION long been exercised in accordance with the judgment of the Judicial Committee, a court selected from the Council according to rules established by Parlia- ment. This court of appeal has a broad and varied jurisdiction. For example, it will entertain an appeal from the act of a colonial governor in impris- oning 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 that "by a disregard of the forms of legal "process, or by some violation of natural justice or "otherwise, substantial and grave injustice has been "done,"* Under the British system, then, the sub- jects of the Queen in all parts of her dominions may, in certain cases, appeal for redress of injuries to a tribunal whose territorial jurisdiction expands with the expansion of the empire. Furthermore, the courts at Westminster have a common law right to grant the writ of habeas corpus : "which writ," said Chief Justice Cockburn, " in the absence of any pro- " hibitive enactment, goes to all parts of the Queen's " dominions."^ Our Supreme Court has, as we have seen, an original jurisdiction so restricted as to exclude all citizens of the repubHc from invoking its protection as a constitutional right. Especially noticeable, in 1 Sprigg V. Sigcau [1897], A. C. 238. 2 Speaker, etc.,z^. Glass, L. R. 3 P. C. C, 560. 3 Falkland Islands Co. v. The Queen, i Moore P. C. C, N. S. 299. 4 Dillet's Case, 12 App. Cas. 459. ^Anderson's Case, 3 Ellis v. Ellis 487, 494. THE APPLICATION OF THE CONSTITUIION loi contrast with English practice, is its inabiHty to grant the writ of habeas corpus in virtue of organic power ; ^ except, of course, in cases affecting ambassa- dors, other public ministers, and consuls.^ The appellate jurisdiction of the Supreme Court, includ- ing the matter oi habeas corpus, is conferred by Con- gress, and it can hear appeals from such courts only as Congress shall designate. The designation of these courts in annexed territory is, therefore, a con- dition precedent to the opening of the Supreme Court to the inhabitants, to their enjoyment of the means of redress accorded to the rest of the community. After the authority of the United States shall have been established in the Philippines, federal courts opened, and necessary laws enacted, after the gov- ernment 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 Constitu- tion to the Filipinos in the anticipation of an early acceptance of its principles. Indeed, the unanimous opinion that the islands should never be admitted to statehood affirms our conviction that the islanders ought never be trusted with a share of the political power of the republic. We do not believe the enthusiastic prophecy with which the First Philip- pine Commission closes its preliminary report: "When peace and prosperity shall have been estab- ^ BoUman's Case, 4 Cranch 75, 94; Yerger's Case, 8 Wallace 85, 87. - See Siebold's Case, 100 U. S. 371, 374. I02 LAW AND POLICY OF ANNEXATION " lished 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 Ameri- " ' cans themselves.' " CONCLUSIONS IN REGARD TO THE CONSTITUTION A hostile environment does not annul, though it may impair, the efficiency of the Constitution. In the Philippine Archipelago, as in all United States territory, the Constitution confers rights upon the ignorant and the unwilling as well as upon those who value them ; enjoins our public servants to respect it always ; justifies resistance to forbidden acts ; and, in theory of law, renders void every com- mand and illegal every act disregarding its prohibi- tions. For by the law of this Constitution all land under the sovereignty of Congress is one country ; all people within its jurisdiction are one people, who enjoy life, liberty, and property of constitutional right without regard to which side of a boundary line between State and Territory or of lines of lati- tude or longitude they happen to live ; and these lines cannot be made a hindrance to the course of legitimate commerce. A few months ago this statement was generally accepted, and it would not be attacked to-day had the Treaty of Paris limited our acquisitions to American territory. It is the circumstance of conquest in Asia, with its suppressed but inevitable suggestion of further aggrandizement in the East, that provokes THE APPLICATION OF THE CONSTITUTION 103 the assertion that at last we have gone beyond the proper sphere of the Constitution. Assuming, for the sake of argument, that this asser- tion is true, or at all events that it expresses the deliber- ate wish of the American people, how shall we deal with the question it presents ? Certainly not by ac- cepting 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 application 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. The taking over of millions of Asiatics who are deemed unfit for fellowship must increase our burdens without bringing new strength to bear them; and we may yet need the strength that inheres only in a people united by the bonds of sym- pathy, and of equality before the law. '| Withholding the Constitution from the Philippines must tend to lessen respect for it here. It is impos- sible that we, who have maintained the necessity of constitutional restraints for the ordering of our in- telligent and self-governing community, should disre- gard them anywhere without weakening our faith in their virtue. Should the Constitution be denied to the Philip- pines upon any pretext a drawback from indiscrim- inate expansion will be removed. While acquisition I04 LAW AND POLICY OF ANNEXATION of territory means the enlargement of the United States and the reception of new citizens, while Con- gress must govern all country within its jurisdiction as a social and commercial unit, the American people will not covet outlying land if its acquisition means fellowship with uncongenial multitudes. It is ob- jected that any restraint upon appropriating territory as spoil of war will embarrass our military arm. Must we survey land before invading it, lest we stumble upon an unwelcome addition to the United States? Shall we sacrifice the right to indemnify ourselves for the cost of successful war? Surely these questions are not serious. A wise policy of expansion is promoted by a determination to gain desirable territory, not by a weakness for seizing anything within reach. The theory that conquest entails perpetual responsibilities is, too often, merely the conqueror's excuse for keeping coveted land. As for indemnity, it is gained directly by exactions of money, or, indirectly, by retaining desirable land. It is a contradiction in terms to say that it may be gained by keeping undesirable land. Recognition of the Constitution in the Philippines will not check the expansion of our republic : It will tend to guide the course of expansion aright. Should the above considerations be overborne by a determination to hold the Philippines as a subject province at all cost, let the Constitution as it stands remain unspoiled by interpretations restricting it to the States, or conditioning its efficacy in national ter- ritory upon the pleasure of Congress, or the treaty- making body. Let us frankly admit that in ruling THE APPLICATION OF THE CONSTITUTION 105 without the restraint of organic law the g-overnment would assume an office requiring the approval of im- perial standards for its acceptance, the delegation of imperial powers for its administration, and then ap- prove these standards and delegate these powers in a special amendment of the Constitution. I have seen no considered suggestion that the Constitution be amended, yet it must come to this if the United States are to govern subject provinces with lawful and adequate powers. A short amendment would serve to distinguish the republic, governed under the old organic law, from outlying provinces ruled as policy shall dictate. \ Meanwhile, the present Constitution is the law. And to the objection that the treatment of our new possessions is one of those purely political matters in which the judiciary must follow its coordinate depart- ments, and not presume to check them, I reply that the immensity of the issues does not affect the judi- ciary in determining whether in fact there is a law of the land applicable to a case at bar. Shall this suitor pay a tax ? Shall that one be deprived of liberty ? These may be momentous political questions, without the precincts of the Court ; within, they are judicial questions. CHAPTER IV THE GOVERNING OF THE PHILIPPINES The inclusion of the Philippines within the boun- daries of the United States, and the aegis of the Constitution, are results of acquiring territorial sov- ereignty, and while this sovereignty is maintained we must address ourselves to practical questions of gov- ernment and policy involved in the administration of United States territory. Some of these have been already considered ; of the rest I shall consider only the primary questions concerning the powers of our President and Congress, and our attitude toward some of the principal institutions of the old order. THE POWERS OF THE PRESIDENT Executive Powers The President is in possession of the Philippines, and his governing of them, provisionally, by mili- tary agents is a lawful exercise of executive power. This government originated in a belligerent occupa- ' tion of foreign territory, and, agreeably to the precedent approved by the Supreme Court in the 1 case of California, it was not dissolved by the trans- io6 THE GOVERNING OF THE PIflLIPPINES 107 fer 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 Presi- dent's annual message of 1899 stated that the gov- ernment of Porto Rico was maintained by the Ex- ecutive Department " under the law of belligerent " rio;ht,"^ and of course this statement included the Philippines, since both districts were in like case. The "law of belligerent right" appears to be, in this case, the will of the commander-in-chief of the forces imposed upon any matter whatever. Now by what right can the President act under this "law" in any territory vested in the United States by the Treaty of Paris ? Belligerent right is predicated upon a state of war. Porto Rico was then, and has remained at peace, and, in Milligan's case,^ Chief justice Chase declared the invariable rule: "Where "peace exists the laws of peace must prevail." M Belligerent right is predicated upon a state of formal war, the termination of which has been declared by the Supreme Court to be a fact determinable by the political department, whose decision will be respected by the judiciary.* Without discussing whether the formal war inaugurated by Congress in the spring of 1898 was terminated, in point of law, before the exchange of ratifications of the treaty of peace on April II, 1899, it certainly cannot be prolonged 1 Cross V. Harrison, 16 Howard 164, 193. 2 Page 50. 3 4 Wallace 2, 140. ^The Protector, 12 Wallace 700. See also U. S. v. Yorba, i Wallace 412, 423. \\ io8 LAW AND POLICY OF ANNEXATION beyond this date. This exchange, at least, was the final act of peace. As our courts have no knowledge of a state of war since, they have no reason for recognizing the law of belligerent right r in the islands. There is an insurrection in the ; Philippines, but there is not a formal war. We have '; carefully refrained from treating the insurgents as | belligerents. In fine, the law of belligerent right is as ; inapplicable in our new possessions 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 temporary govern- "ments which had been established over New Mex- "ico and California by our military and naval com- "manders, by virtue of the rights of war, ceased to "derive any obligatory force from that source of "authority. . . ."^ The President's governments in Porto Rico and the Philippines are precisely alike in origin and powers. Though military, as distin- guished from civil governments established by Congress, they are not to be administered according to the laws of war. As in quiet Porto Rico, before the passage of the Government Act, so now in the disturbed Philippines the President is the steward of United States territory, and the fact that this territory is under the jurisdiction of Congress, though not yet organized under its laws, goes far toward indicating the real duties, powers, and limitations of his stewardship. The President is pledged to uphold the sovereignty of the United States throughout their dominions ; and ' Messages of the Presidents, IV, 638. THE GOVERNING OF THE TUILIPPINES 109 they mag-nify his office who urge him to recognize a FiHpino repubhc, 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. Of the strictly military powers of the President it must be understood that in the face of insurrection he enjoys precisely the same authority in the Philippines as elsewhere in the territory of the United States, in- cluding" the ri^ht to call on the States for militia to serve in the islands if, in his judgment, it be necessary.^ Although the authority of the President is called "military," it has a civil side. We shall see, pres- ently, that the annexation of a country does not abol- ish all its old laws and governmental agencies, and that perhaps some laws of Congress may extend to it by their own force. 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. Usurpation of Legislative Power There remains the question whether the President may lawfully exercise legislative powers in the ceded territory pending action by Congress, and I mean by legislative powers the enactment of new laws and the 1 See Constitution, Art. I, § 8; Military Laws of the U. S., §§ 1256, 1505; Martin v. Mott, 12 Wheaton 19. no LAW AND POLICY OF ANNEXATION repeal, alteration, or suspension of old ones, the ex- tension 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, sub- "ject always to these limitations, that Parliament "might intervene and make provision for the govern- " ment of the colony, and that the Crown could not "make laws 'contrary to the fundamental principles' " of English law, nor presumably enforce such laws " if found among the colonists at the time of ces- "sion."^ The power to legislate for annexed terri- tory thus vested in the Crown in Council is not enjoyed by the President when the United States acquire ter- ritory ; it vests in Congress, whose jurisdiction at- taches at once,^ and within this jurisdiction there is no room for an executive prerogative of legislation, even by the permission of Congress. " That Congress can- "not delegate legislative power to the President," says the Supreme Court, "is a principle univer- " sally recognized as vital to the integrity and main- "tenance of the system of government ordained by "the Constitution."^ The prohibition against executive legislation in United States territory is not affected by the judg- ment of the Supreme Court upon the Kearny Code of New Mexico. This code was promulgated by ' The Law and Custom of the Constitution, The Crown, 2d Ed. 274. - See infra, p. 121. ■* Field V. Clark, 143 U. S. 649, 692. THE GOVERNING OE THE PHILIPPINES m General Stephen M. Kearny in 1846, while in com- mand 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 terri- tory by its formal cession to the United States, leaving the old Mexican law as the law of the land. But the Court decided that the Kearny Code was en- titled to respect as the law in force at the date of cession.^ Here the Court recognized a code of purely executive, indeed of belligerent, origin ; yet its de- cision is not an authority for the exercise of gen- eral 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, accord- ing to Leitensdorfer v. Webb, may be exercised byi ) the President as commander-in-chief of our forces in belligerent occupation of foreign territory, where Congress has no jurisdiction, are not enjoyed in the! United States, where Congress is supreme. Nor is I the prohibition affected by the decision in Cross v. Harrison: After the ratification of the treaty ceding California to the United States had been communi- cated 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 said: " 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, ex- ^ Leitensdorfer v. Webb, 20 Howard 176. 112 ZAJF AND POLICY OF ANNEXATION "cept by a compliance with the regulations 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, 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 reason be given for the exemption of for- " eign 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, imposts, 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 ex- "empt importers of foreign 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 effec- tive in territory annexed after its passage that the President, in possession, is expected to collect the duties ; but the Court did not appear to be thor- oughly satisfied with this position, for at the close of the opinion we read: "We do not hesitate to say, if "the reasons eiven for our conclusions in this case "were not sound, that other considerations would ^ Cross V. Harrison, 16 Howard 164, 198. (The italics are mine.) THE GOVERNING OF THE PHn.IPPIXES 113 "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 collection of imposts and 'tonnaoe from the commencement of the late war 'with Mexico to the 12th November, 1849, ^^- ' pressly 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. Harri- son we gain the impression that these 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 invariable test by which administrative decrees issued from Washington directly, or through the military government in the islands, are to be approved as executive regulations or condemned as acts of lecfislation. It is sufficient to know that decrees plainly of the forbidden sort are promulgated in the Philippines. The remarkable instance is the legislative activity of the Commission now installed in the Philippines. The First Philippine Commission was appointed before the ratifications of the Treaty of Paris had formally completed our legal title to the islands. It 8 114 LAW AND POLICY OF ANNEXATION was instructed to investigate, to conciliate, to report recommendations, but not to govern.-^ The very- different office of the present Commission is indicated by the following passage from the President's in- structions of April 7, 1900: "Beginning with the "first day of September, 1900, the authority to " exercise, subject to my approval, through the Sec- " retary of War, that part of the power of govern- "ment in the Philippine Islands which is of a "legislative nature is to be transferred from the " Military Governor of the islands to this Com- " mission, to be thereafter exercised by them in the "place and stead of the Military Governor, under " such rules and regulations as you shall prescribe, " until the establishment of the civil central govern- " ment for the islands contemplated in the last fore- " going paragraph, or until Congress shall otherwise "provide. Exercise of this legislative authority will " include the making of rules and orders, having the " effect of law, for the raising of revenue by taxes, " customs duties, and imposts ; the appropriation and "expenditure of public funds of the islands; the " establishment of an educational system throughout "the islands; the establishment of a system to se- "cure an efficient civil service; the organization and " establishment of courts ; the organization and es- "tablishment of municipal and departmental gov- " ernments ; and all other matters of a civil nature "for which the Military Governor is now competent "to provide by rules or orders of a legislative " character." '^ ' See Report of the Philippine Commission, I, 185. '^ President's message of December 3, 1900. THE GOVERNING OF THE PHILIPPINES 115 Here is a positive assertion of an executive power to govern the Philippines without the interposition of Congress. Considering that the power claimed includes the supreme right to levy taxes in United States territory, it is not perceived why, were the claim a lawful one, the President could not ascertain and dispose of all the public lands in the islands, intrust the material development of the country largely to private monopolies, and then turn over to Congress the vast estate committed to his steward- ship with the best part of its assets gone, and some of its greatest potentialities mortgaged. The Ad- ministration, indeed, disclaims the right to do such improvident things,^ but while this disclaimer is evi- dence of a just policy, it is inconsistent, theoretically, with the great powers claimed. Research may disclose some instances of executive usurpation of the powers of Congress, but I think the present Administration is the first that has ever made new laws for United States territory under claim of right ; certainly it is the first to defend its course before the courts. As the Administration declares that its g-overn- ment of the islands "is maintained by the law of bel- "ligerent right," it may imagine that it enjoys the arbitrary powers of a conqueror. Or, as it seems to be committed to the doctrine that the Constitution is in- operative in the ceded territory, it may assume all governmental powers upon the theory that the con- stitutional separation of powers does not affect the President as the custodian of the Philippines. Neither of these positions is tenable, as I have shown. ^ See Opinions of the Attorney-General, vol. xxii, 544, 546, 551. ii6 LAW AND POLICY OF ANNEXATION Arbitrary executive acts are not, indeed, always in- excusable or irreparable. " I am quite aware," says an eminent jurist, "that in times of great public danger " unexpected perils, which the legislative power " have failed to provide against, may imperatively " demand instant and vigorous executive action, pass- " ing beyond the limits of the laws ; and that when " the Executive has assumed the high responsibility "of such a necessary exercise of mere power, he " may justly look for indemnity to that department " of the government which alone has the rightful "authority to grant it — an indemnity which should "be always sought and accorded 7ipon the clearest ''admission of legal wrong finding its excuse in the "exceptional case which made that wrong absolutely " necessary for the public safety."^ The redeemable legislative acts of a President are those which Congress could have passed, and can ratify. President Taylor sought and gained legisla- tive approval for some acts of the military government of California,^ and, already, Congress seems to have adopted, as far as possible, the legislation of the military government of Porto Rico.^ Legislatures have also passed acts of indemnity, protecting from suit persons concerned in the execu- tion of illeoral executive decrees.* Thus Parliament acted in the case of "the forty days' tyranny" in 1766, during which the British Government sus- 1 Executive Power, by Benjamin R. Curtis ; reprinted in G. T. Curtis's Constitutional History of the U. S., II, 673. 2 See Messages of the Presidents, V, 19 ; and supra, p. 1 13. •^ See Porto Rico Government Act, § 7. 4 See Phillips v. Eyre, L. R. 4 Q. B. 225 ; L. R. 6 Q. B. i. THE GOVERNING OF THE PHILIPPINES 117 pended the laws permitting the export of corn. Thus Congress acted for the protection of ah per- sons who executed the orders of the mihtary authorities engaged in conducting the Civil War.^ Whenever the Administration has legislated for Porto Rico and the Philippines since their annex- ation 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 ne- cessity during the recess. These powers are the same in recess as in session, since, in theory of law, the President never lacks the cooperation of the legislature, except, perhaps, during the brief time needed to con- vene it in special session. If, then, the President pos- sessed 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 physical impossibility of its acting, for this was due to his failure to convene it ; and on this theory he would possess legislative power while Con- gress sits but does not act. And this appears to be the opinion of the Administration, for during the last session of Congress the Secretary of War issued a de- cree forbidding the foreclosure of mortgages in Porto Rico for six months, unless Congress should other- wise provide. But it is impossible that legislative powers should accrue to the President because of the 1 See Beard v. Burts, 95 U.S. 434, 438. ii8 LAW AND POLICY OF ANNEXATION inaction of Congress. If, in his judgment, legislation for annexed territory is necessary, he may commend it to Congress in regular or special session ; and if Con- gress shall not legislate on his motion or on its own, it is presumed to be satisfied with the existing body of law comprising the Constitution, the old law of the territory, and such United States statutes as may extend 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 ofoverninQf of the islands is not an emergency in any extenuating sense. Congress had provided for their acquisition before it adjourned in March, 1899, and must be presumed to have expected that the President would be called upon to take charge of them during the usual recess. If, before the next reofular session, there had arisen a need for legislation, the President should have convened Con- gress. He cannot plead the emergency of a condition caused by his failure to call the legislature. Then in December, 1899, Congress assembled in stated session, during which it neglected the Philip- pines. Another recess followed, and, during this session and recess, the President persisted in legis- lating, no longer encouraged by even the pretense of emergency. The fact is that the President and Congress have combined to exalt the one and de- grade the other by approving the theory that the President is a better legislature for the islands than Congress. As a matter of mere policy this theory is not commended by assuming that the alternative to executive legislation by the President's agents acting THE GOVERNING OF THE rUILIPPINES 119 on the spot, with some knowledge of local conditions, was the direct regulation of insular affairs by Con- gress sitting thousands of miles away in absolute ignorance of these conditions. The practicable alter- native was the establishment by Congress of a provisional government competent to exercise its delegated authority. In point of constitutional law the theory is not even open to discussion. 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 — upon Washington, prefigured as our first chief magistrate, as upon his unknown suc- cessors. 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 California ; ^ and the wretched plight of Alaska, a Territory neglected by Congress for more than thirty years, and accorded a proper government only a few months ago, has been laid before Congress by successive Presidents, none of whom supposed that the inactivity of the legislature gave him the right to act in its stead. Yet, while President McKinley said in his annual message of 1899,^ " There is practically no organized form "of government in the Territory [Alaska] ; there is " no authority except in Congress to pass any law, 1 Messages of the Presidents, I, 363. 2 Messages of the Presidents, IV, 589, 638. 3 Page 48. I20 LAW AND FOLIC Y OF ANNEXATION " no matter how local or trivial, ..." he does 1 not hesitate to legislate freely for the unorganized Philippine territory, and that this legislative power is not really assumed upon the plausible, though mis- taken, ground of the existence of insurrection-^ is shown by the fact that it was exercised in the peaceful territory of Porto Rico during the military regime. The legislative decrees in the Philippines are not justified by any intrinsic merit, though decrees pos- sessing this quality may be ratified by Congress in the public interest. Nor are they excused by reason of necessity, for Congress could have authorized the enactment of laws of like tenor through unimpeach- able agencies. Indeed the worst feature of the case is that we are not asked to be g^enerous toward an Administration that pleads even plausible necessity as an excuse for overstepping the law : We are ex- pected to applaud an Administration that, like the British Crown, asserts a right to make laws for new territory until the legislature shall see fit to inter- pose. Here is an assumption of power which merits the denunciation that Judge Curtis, at one time a member of the Supreme Court, and always a loyal citizen, launched against the Administration during the Civil War: " It has been attempted by some partisan journals " to raise the cry of 'disloyalty ' against any one who " should question these executive acts. " But the people of the United States know that 1 The executive duty of suppressing insurrection in United States territory, whether in the PhiHppines or in New Mexico, does not carry an executive prerogative of making laws for the dis- turbed district. THE GOVERNING OF THE PHILIPPINES 121 " loyalty is not subserviency to a man or to a party ** or to the opinions of newspapers, but that it is an "honest and wise devotion to the safety and welfare "of our country, and to the great principles which "our constitution of government embodies, by which "alone that safety and welfare can be secured. And " when those principles are put in jeopardy, every "truly loyal man must interpose, according to his "ability, or be an unfaithful citizen. "This is not a government of men. It is a gov- " ernment of laws. And the laws are required by "the people to be in conformity with their will de- "clared by the Constitution. Our loyalty is due to "that will. Our obedience is due to those laws; and "he who would induce submission to other laws, "springing from sources of power not originating in "the people, but in casual events, and in the mere "will of the occupants of places of power, does not "exhort us to loyalty, but to a desertion of our 1 1 trust " 1 THE POWERS OF CONGRESS Congress is supreme in the Philippines. It ac- quired jurisdiction the moment the islands became United States territory. There is no room for the notion that jurisdiction does not attach until Congress actually legislates. Congress is supreme throughout the United States ; it may legislate deliberately, reluctantly ; it may shirk its duty ; but it cannot 1 Executive Power; reprinted in G. T. Curtis's Constitutional History of the United States, II, 671. 122 LAW AND POLICY OF ANNEXATION escape the responsibility that goes with jurisdiction. In legislating for the Philippines, Congress will merely exercise jurisdictional rights already vested in it — vested by the ratification of the Treaty of Paris, in my opinion, but, at any rate, by the appro- priation of the $20,000,000 called for by the Treaty.^ Source and Extent of Congressional Powers There is some difference of opinion as to the pre- cise source of the power of Congress to govern the territory lying beyond the States. " The power "of governing and legislating for territory," says Chief Justice Marshall, "is the inevitable conse- "quence of the right to hold territory. Could this "proposition be contested, the Constitution of the "United States declares that '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 he said in a later opinion: "In the meantime "Florida continues to be a Territory of the United " States, governed by virtue of that clause in the "Constitution which empowers Congress 'to make "'all needful rules and regulations respecting the " ' territory or other property belonging to the "'United States.'" " Perhaps the power of governing a Territory " belonging to the United States which has not, by "becoming a State, acquired the means of self- 1 See supra, p. 22. '-iSere v. Pitot, 6 Cranch 332, 336. THE GOVERNING OE THE PHILIPPINES 123 " government, may result necessarily from the fact "that it is not within the jurisdiction of any particu- " lar State, and is within the power and jurisdiction '* of the United States. The right to govern may be " the inevitable consequence of the right to acquire "territory."^ In Chief Justice Taney's opinion, the power to "make all needful rules," etc., refers solely to land ceded by the States, and the general power to govern territory " stands firmly " on the right to acquire it.'^ This opinion has the better reason : It is self-justifying; and its adoption leaves the constitu- tional clause relating to territory to express simply the power to manage property, especially to sell the public lands, which, when the whole clause is read, is perceived to be its main purpose: "The Congress shall " have power to dispose of and make all needful rules "and regulations respecting the territory or otlier "property belonging to the United States; and "nothinsf in this Constitution shall be so construed " as to prejudice any claims of the United States, or "of any particular State." ^ But, to quote Chief Justice Marshall again: "Whatever may be the "source from which the power is derived, the pos- " session of it is unquestioned."* Whatever its source, the power of Congress over territory beyond the States is exclusive and com- plete. The Supreme Court says : " By the Constitu- 1 American Ins. Co. v. Canter, i Peters 511, 542. 2 Scott V. Sandford, 19 Howard 393, 432-444. See also U. S. V. Kagama, 118 U. S. 375, 380. 3 Art. IV, Sec. 3, § 2. "1 American Ins. Co. v. Canter, i Peters 511, 544. 124 LAW AND POLICY OF ANNEXATION "tion, 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 sov- " ereignty, national and municipal, federal and State, " over all the Territories, so long as they remain in "a territorial condition."^ " Congress may not only "abrogate laws of the territorial legislatures, but it "may itself legislate directly for the local govern- "ment. It may make a void act of the territorial "legislature valid, and a valid act void. In other " words, it has full and complete legislative authority "over the people of the Territories and all the " departments of the territorial governments. It " may do for the Territories what the people, under " the Constitution of the United States, may do for "the States."^ Although the difference between federal and local affairs is not marked in the Terri- tories by governments organically distinct, as in the States, it exists nevertheless, for Congress stands in a double relation to each Territory, treating it as a part of the republic in matters of federal concern, and caring for its local interests as a State govern- ment might. The local affairs of the Philippines may be admin- istered with as single a regard to their peculiar interests as are the affairs of a State, for the Con- stitution does not prescribe that all Territories shall be administered from a common standpoint, but per- mits the peculiar needs of each to be considered.^ ^Shively v. Bowlby, 152 U. S. 1,48. 2 National Bank v. County of Yankton, loi U. S. 129, 133. ^ See France v. Connor, 161 U. S. 65. THE GOVERNING OF THE PHILIPPINES 125 In virtue of its powers Congress enjoys a broad discretion in instituting a government for the Philip- pines. Any form is permissible, from an organiza- tion chosen by the islanders to a governor or com- mission 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 legisla- tive powers during the term of its existence. The legal right of Congress to establish a territorial gov- ernment without the cooperation, or even the consent of the people results from the necessary denial of popular sovereignty in the Territories ; but this gov- ernment, however it may be imposed, must rule in conformity to the Constitution. The Exercise of Congressional Powei's The current session affords Congress a second op- portunity to exert its constitutional powers in the Philippines. These powers should now, and here- after, be employed sparingly in the direct regulation of local as distinguished from federal affairs, because Congress lacks the knowledge and sympathy essen- tial to the framing of suitable laws for this strange and distant people. The abstention of a national legislature from frequent intervention in the affairs of remote dominions unrepresented in its councils is a notable feature of British policy. " In practice," says Mr. C. F. Lucas, "this paramount power "of legislation by the Imperial Parliament is only " exercised by acts conferring constitutional powers, 126 LAW AND POLICY OF ANNEXATION "or dealing with a limited class of subjects of special "imperial or international concern, such as merchant "shipping and copyright. It is therefore, generally " speaking, left to the Crown or to the local legisla- "tures to make laws, as Parliament can, when it "thinks fit, make its views on any colonial question "known to the Crown by resolution."^ Excepting its recognition of executive legislation, the British policy commends itself to us. While all lawful legis- lation for the Philippines must be congressional, in the sense of being enacted by the agents of Congress and subject to its inherent right of veto, mainly it should be framed by a body in touch with the islands. A bill carried over from the last session provides " 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 pro- "tecting the inhabitants of said islands in the free en- "joyment of their liberty, property, and religion." A precedent for this bill is said to be found in the action of Congress after the annexation of Louisi- ana. On October 31, 1803, ten days after the ex- change of the ratifications of the treaty of cession, ^ Lucas's Edition of Lewis's Government of Dependencies, p. 331. THE GOVERNING OF THE PHILIPPINES 127 Congress passed an act authorizing the President to take possession of Louisiana, and providing "that 'until the expiration of the present session of Con- ' gress, unless provision for the temporary govern- ' ment of the said Territories be sooner made by ' Congress, all the military, civil, and judicial powers ' exercised by the officers 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 ' maintaining and protecting the inhabitants of ' Louisiana in the free enjoyment of their liberty, ' property, and religion."^ The Louisiana Act was followed substantially in the case of Florida^ and may have inspired a part of the act annexing Hawaii,^ but it is not a precedent for the Philippine bill. The government of Louisiana, such as it was, was established definitely. The Philippine govern- ment 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 objec- tion that it recognizes, tacitly, the mere will of the executive as being the foundation of all governmental powers in the islands. The Louisiana Act con- tinued the old government of Louisiana and merely authorized the President to fill its offices. The Philippine bill enables the President to erect a gov- ernment at will, manned by " such person and per- ^ 2 Statutes at Large 246. -3 Statutes at Large 523. See also Mitchel v. U. S., 9 Peters 711, 736. •' 30 Statutes at Large 750. 128 LAW AND POLICY OF ANNEXATION "sons . . . as he may direct." The Louisiana Act did not purport to confer legislative powers upon the President, and Governor Claiborne's first procla- mation expressly recognized the obligation of the old laws and municipal regulations. 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 islands 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, with- out imposing the checks upon their abuse which ob- tain in the British system, where the Crown is forbid- den to act "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 doubt- ful 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 Congress and well within its power to act at once. ' See supra, \). 31. 2 See supra, p. 99. THE GOVERNING OE THE PHrLFPriNES 129 Each day of unrest in the Philippines makes our presence more hateful and postpones our opportunity for helpfulness ; indeed, if resistance be greatly pro- longed we may learn one day that we have demoral- ized 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 terri- tory. The Administration is blameworthy for hav- ing belittled the extent of the disaffection. If the President shall now call for troops to garrison the islands thoroughly he will not be blamed for exag- gerating 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 whilst we treat disaffection as wanton opposition to a benign sovereign, and armed resistance to our authority as unnatural rebellion. The attitude of regretful surprise that Filipinos should resist our benevolence is a disingenuous 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 institutions and spirit of our republic. 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 unexpect- edly into a difficult relation. In pursuance of these ends let Congress cause proclamation to be made that the Philippines are not a dependency, but are part of the republic and within the protection of the 9 I30 LAW AND POLICY OF ANNEXATION Constitution ; and especially that citizenship and civil rights are bestowed in the Philippines as in all other United States territory, and that trade between all parts of the republic is free. This proclamation should not be withheld because proclamations of the President and his agents have proved futile, for, as a messaofe from Congfress declarinsT the law of the Con- stitution, 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. Repre- sentative Filipinos should be invited to attend a con- ference to be held at Washington, and they should be received neither as traitors nor as heroes, but as people of new territory come to discuss the vital question of its government. If it be objected that any intercourse with insurgents is beneath our dig- nity, 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. OUR RELATION TO THE OLD ORDER The Old Laws One of the first questions suggested by the coming of a new sovereign to a country has regard to the fate of that old order which is evidenced by the local law. In this event, "the law which may be de- THE GOVERNING OF THE PHILIPPINES 131 "nominated political," says Chief Justice Marshall, "is necessarily changed."^ This 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. " It cannot be ad- " mitted," said the Supreme Court, "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 other- " wise, must hold it subject to the Constitution and "laws of its own government, and not according " to those of the government ceding it."- By the light of this decision we perceive that when President Jefferson commissioned a governor of Louisiana with the powers of the former governor-general and the intendant he could not lawfully invest the republican official with any attributes of those representatives of royal power inconsistent with our Constitution.^ While 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 annexa- tion necessarily effects this sweeping result ; and gov- ernmental 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 1 American Ins. Co. v. Canter, i Peters 511, 542. '•^ Pollard V. Hagan, 3 Howard 212, 225. See also New Orleans V. U. S., 10 Peters 662, 736. See Picton's Case, 30 State Trials 225. 3 See supra, p. 37. 132 LAW AND POLICY OF ANNEXATION courts have even sustained grants of pueblo (town) land made during the existence of the military gov- ernment by ayuntamientos acting under the old Mexican law.^ So the courts of a country 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 ratifica- 1 \ tions 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 tri- bunals of Mexican origin acting under the military pfovernment.^ 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 sup- planted 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 observe both the rule of public law, and the obligations of the Constitution by respecting private property and rights in annexed territory which have become duly vested under the old laws/ Note, how- ever, that the United States are not burdened with obligations in respect of private claims against the 'Hart V. Burnet, 15 California 530, 559. See also Townsend V. Greeley, 5 Wallace 326. 2 See Keene v. McDonough, 8 Peters 308. •' Mena v. Le Roy, i California 216; Ryder v. Cohn, 37 California 69. •* 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. THE GOVERNING OF THE PHILIPPTNES 133 former government. As the Supreme Court said in regard to the annexation of Mexican territory, the United States took the land, "bound to respect all " rights of property which the Mexican Govern- " ment respected, but under no obligations to right "the wrongs which that government had theretofore " committed."^ Except as they are the foundation of private rights already vested, and compatible with the Constitu- tion, the laws of annexed territory impose no per- manent obligation upon the United States. These laws may be divided roughly into three classes. I. Laws conflicting with the Constitution are null and void.^ An interesting recognition of this rule accompanied the transfer of Louisiana to the United States. On November 30, 1803, a French com- missioner took momentary possession of Louisiana under the Treaty of San Ildefonso, of October i, 1800 (by which Spain had ceded it to France), only to announce its cession by France to the United States. Pending actual occupation by the United States he revived by proclamation the Black Code ordained by Louis XV during the former rule of France, excepting, however, the provisions inconsis- tent with our Constitution and laws ; ^ and referring to this Code* we find sufficient reason for the excep- tion in the articles requiring the expulsion of Jews, and the exclusive recog^nition of the Roman Catholic religion. 1 Cessna v. U. S., 169 U. S. 165, 187. 2 See Chicago & Pacific Ry. Co. v. McGlinn, 1 14 U. S. 542, 546. ■' Martin's History of Louisiana, II, 197. •t French's Historical Collections of Louisiana, III, 89. 134 J-AW AND POLICY OF ANNEXATION 2. If an act of Congress extends of its own force to the ceded territory it displaces all laws inconsis- tent with its provisions. This statement 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 should be attrib- uted. Certainly self-extending acts must be excep- tional, for it is presumed that a legislature enacts a law with regard to the known requirements of the country then within its jurisdiction, and not to the unknown requirements of after-acquired territory." This presumption is sustained by the common prac- tice of our Government, and by our observance of the rule, just mentioned, that the laws of annexed territory generally subsist until they are definitely superseded — a rule of little value did the general statutes of the United States extend to the territory of their own force. The doctrines of the self-extension of the Consti- tution, and of the presumed non-extension of acts of Congress to annexed territory are perfectly recon- cilable. The Constitution is an organic law creating; a government for the United States, and prescribing fundamental rules for its guidance throughout its dominions. Acts of Congress are laws of lesser \ dignity. They deal with the circumstantial and \ \ varying needs of the republic, and, except where ' ' the Constitution prescribes uniformity, the places or ^ See Cross v. Harrison, i6 Howard 164, 197 ; Chicago & Pacific Ry. Co. V. McGlinn, 114 U. S. 542, 546. -See U. S. V. Seveloff, 2 Sawyer 311. THE GOVERNING OE THE PHILIPPINES 135 persons within their purview are necessarily deter- minable by Congress. When we say that private property in the Philippines cannot be taken for public use without compensation according to the Fifth Amendment, and that at present no one can acquire land there under the Homestead Act, we do not suggest an inconsistency, but attribute to the organic principle and to the circumstantial statute the proper function of each. 3. All other laws of annexed territory stand until changed by the personal or delegated authority of Congress; and the Supreme Court will take judicial notice of them as though they were the laws of a State. ^ The conduct of Congress in regard to the old body of law will be judged quite as much by the things it leaves untouched, as by its enactments. To point my meaning I cite a recommendation from a report of the Insular Commission on Porto Rico, as being animated by a provincial and destructive spirit from which Congress should be free : "The Spanish "system of laws and procedure," say the Commis- sioners, '■'■wJiile not all bad, differs so radically in " principle and structure as well as in methods and " forms from our own, that in our judgment the best "way to Americanize Porto Rico is to give them [sic] "the benefit of our complete system."" And they recommend the abolition of "all the Spanish laws, "civil and criminal code, code of civil and criminal 1 Fremont v. U. S., 17 Howard 542, 557. - Page 61. (The italics are mine.) 136 LAW AND POLICY OF ANNEXATION "practice, and all royal decrees applicable to Porto " Rico," and the substitution of a system based upon what they call " the common law as adopted by the "States of the Union and construed by the courts " thereof." The sneer at a system of jurisprudence, the greater part of which was devised for Spain and her colonies alike, and has been lately revised ; ^ which is akin to the systems of western Europe, and, like these, is founded upon the most enduring work of civilization, — the Roman law, — argues a provincialism and want of judgment that go far toward discrediting the report of the Commissioners as a whole, and the " full "code of laws" they promise to submit. The proposal to force the common law upon the people of Porto Rico is contrary to the practice of the country whence comes the common law. English colonists going to an uninhabited country take the common law with them as the law of the land ; - and when they go to a barbarous country they take it as the law for themselves, and for the natives who be- come members of their community.^ But when Eng- land extends her sovereignty over a land wherein a civilized system is established she usually accepts it as the basis of law. Thus we find the Roman-Dutch law in Ceylon ; * the old French law in Quebec ; ^ the 1 See Address of Hon. William Wirt Howe, 60 Albany Law Journal loi. 2 See Falkland Islands Co. v. The Queen, 2 Moore P. C. C, N.S. 266. 3 See Advocate-General 'v. Ranee Surnomoye Dossee, 2 Moore P. C.C.,N.S. 22. ^ Lindsay v. Oriental Bank, 13 Moore P. C. C. 401. •■"'See Exchange Bank v. The Queen, 11 App. Cas. 157. THE GOVERNING OF THE PHILIPPINES 137 French Civil Code in Mauritius ; ^ the old Norman law in Jersey. '^ Examining the practice of the United States we find that they have carried the common law to sparsely peopled districts in derogation of existing systems — as in the case of the Mississippi territory ; ^ but they have never uprooted the law of an impor- tant community. The case of Louisiana is especially instructive : Congress did not supplant the civil law, and, while the people of the Territory soon adopted the common law as the rule in criminal cases, they retained the old law as the basis of their general jurisprudence. And the present Civil Code of Louisiana is described as being " quite like that of " Spain and France, with some provisions, however, "introduced from New York and England. The "code of procedure resembles the procedure of " France and Spain, and is essentially the practice "of the late Roman law adapted to modern con- "ditions."* The common law supplanted the old system in Florida and California, but not by order of Congress. The inhabitants, acting through a Territorial legislature in one case, and a State legis- lature in the other, soon changed much of the law to conform to the usage of the dominant race. The body of Spanish law is partly repugnant to our Constitution, especially in the criminal branch. It may be partly unsuited to the new conditions. 1 Lang V. Reid, 12 Moore P. C. C. 72. 2 La Cloche v. La Cloche, 3 L. R. P. C. 125. 3 Pollard V. Hagan, 3 Howard 212, 227. •* See Mr. Howe's Address above cited. 138 LAW AND POLICY OF ANNEXATION Federal courts will administer in the islands, as else- where, a general commercial law for the United States ; but so far as this Spanish law is the basis of personal and property rights in the Philippines, let it be amended in the interests of the islanders, if need be, not supplanted because it is irksome to a few Americans. In thus respecting the local law we shall act in harmony with the spirit of our Constitu- tion. " In the future growth of the nation," said the Supreme Court, just before the beginning of the late war, "as heretofore, it is not impossible that Con- ' gress shall see fit to annex territories whose juris- ' prudence is that of the civil law. One of the con- ' siderations moving to such annexation might be ' the very fact that the territory so annexed should 'enter the Union with its traditions, laws, and ' systems of administration unchanged. It would be ' a narrow construction of the Constitution to re- ' quire them to abandon these, or to substitute for a ' system which represented the growth of genera- ' tions of inhabitants a jurisprudence with which ' they had had no previous acquaintance or sym- ' pathy." ^ La7iguage The Insular Commission says in its report on Porto Rico: "The official language of the island to " be the English language, but temporarily the " pleadings and proceedings in the first three named " courts to be called ' Porto Rican ' courts may be in " Spanish and in the Federal and Supreme Courts in 1 Holden v. Hardy, 169 U. S. 366, 389. THE GOVERNING OF THE PHILIPPINES 139 " English. An official interpreter shall be provided " for each court." ^ Naturally, English will be the medium of inter- course between the Federal Government and the governments of the islands, and the official language of the federal courts. But these requirements will not affect the islanders generally, and the inconve- nience of translation and interpretation must be accepted as an inevitable result of annexation. Rut the recommendation that English shall be the "official language of the island" suggests a hard- ship that perhaps the Commissioners did not intend, and Congress surely will never inflict. " Official "language" in its broad meaning is the language in which a government conducts all the public business, publishes the laws, and communicates with the people through officials of every degree, and it is the language of all documents of record. Now we may hope that the necessary employment of English, the obvious advantage of acquiring it, and the encourage- ment of our Government will promote its use in Porto Rico 'and the Philippines, but we should not attempt to force it upon either, directly or indirectly. A just government will respect the mother tongue of a people over whom it assumes dominion. The persistency of mother tongue has overcome most brutal efforts to supersede it. So far as sweeping changes in law and language would promote the interests of American office- seekers, and the convenience of a few American settlers, they are not worthy of consideration. As they would impose qualifications for local office that 1 Page 66. . I40 LAW AND POLICY OF ANNEXATION would exclude islanders generally, and for know ledge of local affairs that would make them strangers in their own country, they are altogether vicious. Yet if these changes be seriously considered, the motive will not be consciously bad, but rather an enthusiastic notion that we ought to " Americanize " the islanders by process of law. Whereas we should rely upon a wise policy and, above all, upon the example and tact of the men who develop it person- ally to the islanders to lead them to a better estate. Religious Institutions Our attitude toward religious institutions in the annexed territory involves problems of great interest, and some of serious difficulty. Excepting the self-explaining prohibition of any religious test as a qualification for office, the position of religion under the Constitution is defined by the clause: "Congress shall make no law respecting an " establishment of religion, or prohibiting the free "exercise thereof" " Free exercise" does not mean unbridled license. " It was never intended or sup- " posed," said the Supreme Court, "that the Amend- " ment could be invoked as a protection against "legislation for the punishment of acts inimical to "the peace, good order, and morals of society";^ and so the Mormon Church was not permitted to plead polygamy as a protected tenet of religion. Whether the Mohammedans of Sulu would have a ^ Davis V. Eeason, 133 U. S. 2,2^2^, 342. See also Mormon Church V. U. S., 131 U. S. i. THE GOVERNING OF THE PHILIPPINES 141 legal right to object to an act of Congress forbidding polygamy I do not discuss, because its abolition should be sought through moral influences and not by repressive laws. The sufficient reason for distin- guishing polygamy in Sulu from polygamy in Utah is that the Mohammedans are, like our tribal Indians, a separate people, a peculiar community who may maintain this traditional institution without affecting the great community of the republic. Our Gov- ernment, however, has the right to forbid practices so brutal that no plea can be permitted to excuse their perpetration, and it has sometimes exercised this right in the case of tribal Indians. The provision that Congress " shall make no law " respecting an establishment of religion " plainly forbids all legislation in support of ecclesiastical work and instruction, but lately it has been decided that Congress may appropriate money for hospital buildings for the reception of poor patients at the public charge, the hospital being a secular corpora- tion under the management of a Roman Catholic sisterhood.^ Whether this provision operates to dissolve a rela- tion between church and state existing in territory prior to its annexation has never been determined judicially, but this is its accepted and true effect, because under the new regime the state cannot per- form the duties imposed by such a relation. The Roman Catholic Church no longer enjoys in our new possessions exclusive recognition, nor a right to aid from the state, though, perhaps, under the rule 1 Bradfield v. Roberts, 175 U. S. 291. 142 LAW AND POLICY OF ANNEXATION in Bradfield v. Roberts, assistance may be given to worthy public charities managed by rehgious organi- zations. The critical ecclesiastical question in our new possessions concerns the friars in the Philippines. While awaiting full information for a thorough understanding of this question, the fact of discontent with the friars is patent enough to justify some com- ment and suggestion. Any discontent caused by the exercise of tem- poral power, or by the influence of a privileged class, should disappear with the divorce of state from church, and the abolition of class privilege. Discon- tent arising from any abuse of spiritual power in- volves ecclesiastical matters placed by our law beyond state interference. The possession of large tracts of land by the friars seems to be the main source of their power, and it is charged that they have not a valid tide to the greater part of their holdings. This, I believe, is the first time the United States have been confronted with so serious a question of this kind in new pos- sessions, the mission lands in California havine been readily determined to be held in trust for the public because Mexico had secularized them prior to the cession.^ A clause in the Eighth Article of the Treaty of Paris has been criticized, on the erroneous supposition that it assures to the Roman Catholic Church the possession of all property in its occupa- tion. In fact, the clause simply affirms the moral, ^ See U. S. V. Cervantes, i8 Howard 553; Faxon v. U. S., 171 U. S. 244. THE GOVERNING OF THE PHILIPPINES 143 and, in our case, the constitutional obligation to respect vested rights of property, leaving open the very question of present interest, whether the friars have a legal title. President McKinley has instructed the Philippine Commission to investigate this ques- tion,^ though not, as I understand, to adjudicate it, for this can be done only by a competent tribunal. It would seem, however, that Congress might adopt a report of the Commission as the basis of a suit before a regular court. ^ If after a just settlement of the land question the presence of the friars in the Philippines should be really inimical to the peace of the islands, it is to be hoped that the Church will transfer them to con- genial fields and relieve the United States of a vexatious, perhaps an insoluble, problem. Other countries have, at times, found no difficulty in expel- ling objectionable religious orders and even in confis- cating their property, but the United States are bound to respect both religion and property : They are forbidden to interfere at all with the one ; they are empowered to take the other only for public use and upon payment of compensation. 1 See message of December 3, 1900. 2 See U. S. V. Ritchie, 17 Howard 525. CHAPTER V THE ALIENATION OF THE PHILIPPINES I have investigated the status of the Philippines, and I find that our title to them Is as perfect in law as our title to the city of Washington, and that, like that city, they are part of the United States. I have investigated the position of the Constitu- tion with regard to the Philippines, and I find that, being a part of the United States, they are within the purview of many important provisions. I have considered the governing of the Philippines, and I find no want of legitimate power, yet an ac- tual preference for illegitimate power in the intrusion of the President into the domain of Congress. Mainly, I have written as though there were no question of our renouncing the sovereignty of the islands, for the reason that opportunity for renuncia- tion in no wise excuses us from respecting the status quo and its obligations ; yet the technical legitimacy of our possession neither palliates its real offense, nor suggests its permanence. The annexation of the Philippines is not a cross to be borne — which seems to be the best that can be said for it. It is a blunder to be retrieved. There is a presumption against the propriety of alienating national territory, and this is generally 144 THE ALIENATION OF THE PHILIPPINES 145 conclusive where the territory has been dehberately acquired, or long occupied, or, above all, where it is identified with the rest of the country through national unity and community of interest. These considerations are not pertinent in the case of the Philippines. At the outbreak of the war with Spain the American people neither wished nor expected to annex the islands, and, whatever personal expectations of aggrandizement may have lurked behind the plan of campaign in the East, the Administration, though it will not plead ignorance of a probable opportunity, maintains that aggrandizement was not intended. Indeed, the most common argument for annexation is really an apology : The law of war forced us to the isl- ands ; the law of necessity chained us there. Never in our history was so important an acquisition under- taken so lightly, and accomplished with so little pride of achievement. Our occupation of the Philippines is not only of recent date, but for an indefinite period is likely to be merely an armed occupation. Race ha- tred confronts us. National unity is beyond proph- ecy. Far from even desiring community of interests, we actually tax the trade between the islands and the mainland, and would view an immigration of Filipinos as an Asiatic plague. 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 location of American investments, and it is perceived that we are not em- barrassed by considerations that usually place aliena- tion of territory beyond the pale of discussion, but may consider freely the questions of right, terms, and expediency. 10 1 I 146 LAW AND POLICY OF ANNEXATION THE RIGHT OF ALIENATION The constitutions of some countries forbid any alienation of territory. This prohibition will not stand in the way of a conqueror; and, indeed, throughout this discussion I assume that a ceding state is acting free from the foreign duress that practi- cally effaces domestic law. Nor does it cover a sur- render of claims to disputed territory, as appears by the settlement of the boundary controversy between Great Britain and Venezuela, where the latter, though forbidden to alienate territory, accepted an award dismissing certain claims. The purpose of the prohi- bition seems to be to assure an ill regulated state against loss of territory by the act of improvident or corrupt rulers. Generally, and invariably among the stronger na- tions, with the right to acquire land there is, logically, a right to cede it. And voluntary cession is not un- exampled: Witness the cession of Louisiana by France to the United States, of Alaska by Russia to the United States, of Java and Heligoland by Great Britain to Holland and Germany respectively, of St. Bartholomew by Sweden to France. The law makes the Philippines a part of the United States, but it does not compel us to hold them forever. The right of alienation is conceded by the Administration in the agreement with the Sultan of Sulu, which provides that the United States will not sell the Sulu Islands without his consent. The con- cession is important as showing that, in the opinion of the Administration, the annexation of the Philip- THE ALIENATION OE THE PHILIPPINES 147 pines has not closed discussion as to their future dis- position, but the provision itself is derogatory to our sovereignty. We acquired the Sulus from Spain without the consent of the Sultan, and we should not require his permission to dispose of them. Each country determines for itself the procedure in regard to cession. Some constitutions, that of France among them, require treaties of cession to be submitted to the legislature.^ The Judicial Commit- tee of the Privy Council is strongly of the opinion that the treaty-making body of Great Britain — the Crown in Council — has full power to cede territory,^ and this seems to be justified by common precedent ; nevertheless, in 1890, the Crown asked the consent of Parliament before ceding Heligoland to Germany.^ The United States have never ceded territory, but in settling international boundaries their treaty- making body has yielded claims to territory ; and in the case of the Northeast Boundary the consent of the States interested was obtained.* Should a project of cession affect State land the State's consent must be secured,^ but outlying territory the Federal Gov- ernment is as free to cede, as to acquire without the express consent of the States. 1 Esmein, Elements de Droit Constitutionnel, 2d Ed. 533. 2 Damodhar Gordhan v. Deoram Kanji, i App. Cas. 332, 373. 3 See Anson, The Law and Custom of the Constitution, The Crown, 2d Ed. 299. •* See Moore, International Arbitrations, I, 153; Fort Leaven- worth R. V. Lowe, 114 U. S. 525, 541. •'■ See Life and Letters of Joseph Story, II, 286-289, for his own and Marshall's thoughts on the question of cession under the pow- ers to make war and peace. 148 LAW AND POLICY OF ANNEXATION As I have found no legal objection to our treaty- making body annexing land without the consent of the House of Representatives/ I find none to its ced- ing land of its own motion : And territory may be severed, as well as annexed by joint resolution of Congress. There is no merit in the assertion that recognition of the Constitution in the Philippines, with its conse- quence of conferring citizenship upon Filipinos, will preclude, legally or morally, our withdrawal from the islands because of its consequence of alienating citizens. As the extension of sovereignty over territory is a political matter not reviewable by the courts,^ so is its withdrawal; and in the latter, as in the former case the exercise of power is not preventable by the in- habitants.^ If we chose to accord to Filipinos permis- sion to elect to retain American citizenship it would be coupled with an obligation to migrate hither within a given time, and we could afford to receive the handful of islanders having the disposition and the money to accept the condition. Morally, the assertion is disingenuous. There is nothing sacred about a "citizenship" resented by most of its recipients, and begrudged by all its donors. THE TERMS OF ALIENATION THE PROTECTORATE The negotiations which it is to be hoped will effect the rehabilitation of China may disclose a solution of 1 See supra, p. 6. - See supra, p. 7. '^ See supra, p. 61. THE ALIENATION OF THE PHILIPPINES 149 our Philippine problem. The perseverance of the United States in their refusal to acquire land in China should not only contribute to a just settlement of this great question of the East, but should enable them to claim the consideration of the Powers for their purposes in regard to the Philippines. At present, however, the result of these negotiations is too uncertain to suggest any definite course for the United States in respect of the Philippines. As now appears, the United States, withdrawing their sover- eignty from the islands, will be persuaded to a pro- tectoral relation with a Philippine state. The President said in his annual message of 1899:^ "The sutrg-estion has been made that we could " renounce our authority over the islands, and, giving "them independence, could retain a protectorate 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 ac- " cept our authority, 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 protecting them against each other and "defending them against any foreign power with "which they chose to quarrel. In short, it would "take from the Confjress of the United States the "power of declaring war and vest that tremendous "prerogative in the Tagal leader of the hour." The humiliating relationship here depicted is a trav- 1 Page 44. i:io LAW AND POLICY OF ANNEXATION 5 esty of a protectorate. A brief examination of the law and custom of protectorates will show that the United States may assume the office of protector without allowing armed insurgents to terrorize peace- able islanders, or permitting an Aguinaldo to whistle the American people to arms. " Protectorate " is a name for so great a variety of political relationships that it defines none accurately, but a few general observations will suggest the rela- tion 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 constitution for the isl- ands 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 enlightened as we have a right to expect. \/\-}^ The study of the protectoral relations of other gov- ernments will be profitable, but is not likely to sug- gest a model. ^ Apart from the Mohammedan districts, 1 Appendix B contains a ityf documents illustrating some of the methods by which other nations have assumed more or less authority in territory without formally incorporating it in their dominions. Much of the documentary history of this subject will be found in Le Regime des Protectorats, Brussels, 1899; Aitchison, Collection of Treaties (British India) ; Holland, The European Concert in the Eastern Question ; Hertslet, Map of Africa by Treaty. For the theory and practice of the protectoral relation consult Despagnet, Essai sur les Proteciorats ; Westlake, Chapters on the Principles of International Law; Hall, Foreign Jurisdiction of the British Crown; Lee-Warner, The Protected Princes of India; Ilbert, The Government of India, Ch. VII. THE ALIENATION OF THE PHILIPPINES 151 which appear to be much like the Protected States of the Malay Peninsula, and may require separate treatment, the Philippines are quite dissimilar from any country now under protection, for we find there a population chiefly of Malay origin whose dominant portion has been Christianized and civilized to a de- gree by Spanish influence. More importantly, our action must be inspired by uncommon purposes. A protectorate frequently precedes annexation ; ours would be the sign of separation. A protectorate is generally 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 estab- lished without period, though its end may be condi- tioned upon the happening of an unexpected event; thus, if I may use this case in illustration, it is written that Great Britain shall hold Cyprus until Russia shall surrender Kars. With a clear understanding that our shortcominors at Washington have not neces- sarily saddled us with interminable responsibilities in the Philippines, our protection should be accorded in the expectation of its withdrawal. Assuming that a protectorate will be declared with a reasonable anti- cipation that a Philippine state will one day be able to maintain a place among the lesser states of the world, the treaty of protection should fix its own duration. It is asserted that a Philippine state is impossible, because the Filipinos are incapable of maintaining a 152 LAW AND POLICY OF ANNEXATION government. On the other hand we have good evi- dence of the orderly administration of a great part of Luzon by the insurgent government after the ces- sation of hostihties in the summer of 1898.^ Further evidence of capacity appears in the Report of the First PhiHppine Commission. The Commissioners describe the FiHpinos as being "of unusually promis- "ing material";^ "strongly desirous of better educa- "tional advantages";^ and say that, after the insurrec- tion has been suppressed, the majority will be found to be "good, law-abiding citizens."* They testify to the marked ability of the educated class, who, "though "constituting a minority, are far more numerous than "is generally supposed, and are scattered all over the "archipelago."^ In the matter of government the Commissioners remark a striking likeness between the Filipino ideal and American achievement, going so far as to say that the leading Filipinos have se- lected "almost precisely the political institutions and "arrangements which have been worked out in prac- "tice 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 territorial government substantially of the first class. "^ It is true that in spite of these tributes to Philippine compe- tency the Commissioners are at some pains to dis- credit the possibility of establishing a protectorate ; ^ but, like the President, whose views they reflect, they 1 See especially Senate Document 66, 56th Congress, ist Sess. 2 1, 120. ■* P. 120. •'Pp. 91, 119. 8 Pp. 99, 103. ^P. 41. •''P. 120. '^ Pp. Ill, 112. THE ALIENATION OF THE PHILIPPINES 153 narrow their consideration of protectorates to the ob- viously impracticable. And their disapproval must be weighed with due regard to the fact that a recom- mendation of a method of relinquishing sovereignty, or even an open-minded inquiry for practicable methods, would have been altogether foreign to their official instructions. The mature opinion of the present Philippine Commissioners is not at hand, but the system of government they are striving to establish would seem to be too advanced for a people really lacking the capacity for organization. I am not much interested, however, in the taking of testimony in regard to capacity for self-govern- ment, because, generally speaking, I do not consider it a fit subject for our adjudication. A nation is not authorized to deny the capacity of an alien people to make its own laws, and the right to live its own life ; and rarely does a nation assume this authority except to gloss a purpose of conquest. This is not to say that intervention may not be justified by anarchy or brutal despotism, for in neither case is there a pre- tense of government by, or for the people. In the case of the Filipinos we have no right to assume that they cannot, under our temporary pro- tection, organize a government suited to their condi- tion and requirements, and we shall appreciate this truth the moment we abandon the idea that the isl- ands should be held in the interest of American trade. And we maybe assured that every generous purpose in regard to the islanders will be more fully devel- oped in a Philippine state, than in a discontented 154 LAW AND POLICY OF ANNEXATION American Territory. Indeed, I believe that legiti- mate trade itself will fare better in the state. While it would be premature to consider the pro- tectorate in detail, some of its broader features may be suggested. The Philippine state will not be an exception to the rule that a protected state is never a sovereign among sovereigns. It will not be officially known in the family of nations, for it will hold no relations with foreign states, neither making treaties nor exchang- ing ministers, nor will it fly a national flag upon the high seas. At most points of contact between the state and the world at large the United States must stand, the advocate of its interests, the defender of its rights. This denial of official foreign intercourse is necessary if only for the reason that as the protector must defend the protected, it must, as far as pos- sible, deprive the latter of opportunity to quarrel with a foreign state by taking into its own strong and competent hands the management of foreign affairs. Considering that the United States will by pro- tecting a Philippine state assume certain responsi- bilities in the islands, extending at least to the reasonable protection of foreign interests ; and con- sidering that for a time the new state may be unable to preserve, unaided, the requisite order, the United States may reserve the right to keep troops in the islands, and to regulate the composition of a native militia. Thus far we shall perform a mere police duty, undertaken for the common benefit, and requir- ino- only a small force, diminishing as the new state grows in experience. Our own legitimate interests THE ALIENATION OF THE PHILIPPINES 155 will carry us no further. But should foreign nations choose to consider the Philippines as part of the United States^ they would be open to attack should we become involved in war, and we must keep a lareer force in the islands during^ the term of our protectorate. To avoid this burden, and also the risk of makino- the islands the theater of a war in which their people would have no interest, the estab- lishment of a protectorate should be followed by ne- gotiations with the Maritime Powers looking to the neutralization of the Philippines. A protectorate is not necessarily unconstitutional. Provided it be an honest arrangement, and not a sub- terfuge for complete control, it is among those foreign relations maintainable by the United States, as well because they are one of the family of nations as by the express contemplation of the Constitution. While the United States have never entered into a relation with another state like that suggested in the case of the Philippines, they have occasionally as- sumed a protectoral office, notably in respect of the possible routes of interoceanic canals. And our relation to the island of Tutuila is not only distinctly protectoral, but, formerly, was complicated by part- nership with Great Britain and Germany in a protec- torate over the entire Samoan group. Our courts have never been required to define the position of the United States in respect of protected territory, but it may be indicated. Bearing in mind that the establishment of a protectorate will mark our relinquishment of territorial sovereignty, it is ^See supra ^ p. 12. iS6 LAW AND POLICY OF ANNEXATION- perceived that the PhiHppines will pass straightway from the territorial jurisdiction of Congress to that of the protected state ; for, as Mr. Justice Story states the rule, "The laws of no nation can justly extend be- " yond 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 com- " prehensive the phrases used in our municipal laws "may be, they must always be restricted in construc- "tion to places and persons upon whom the legis- "lature 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 estab- "lished 'for the United States of America,' and not " for countries outside of their limits. . . . The Con- "stitution can have no operation in another country. "When, therefore, the representatives or officers of "our government are permitted to exercise authority "of any kind in another country, it must be on such "conditions as the two countries may agree, the laws "of neither one being obligatory upon the other." ^ This was written of our consular jurisdiction in Japan, now ended by limitation, but it applies to any pro- tectoral relation we may assume toward the Philip- pines. Upon the establishment of a protectorate, the Federal Government will be no longer the gov- ernment of the islands. Any influence it may have therein will be exerted in a foreign land by agree- ment with its sovereign. Our rights under this ' The Apollon, 9 Wheaton 362, 370. - Ross's Case, 140 U. S. 453, 464. THE ALIENATION OF THE PHILIPPINES 157 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 pro- vide the means for maintaining the lawful rights and obligations of the United States without regard to locality. This jurisdiction of Congress is not terri- torial jurisdiction in a foreign country. It is a power to be exercised in furtherance of rights lawfully ac- quired 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 ex- ample, an act creating an international court and de- fining its jurisdiction. More often it will be given by an appropriation of money, a precedent for which is found in the following item inserted for some years in the act making appropriations for the diplomatic and consular service : " For the execution of the ob- " ligations 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 gov- "ernments of Germany and Great Britain, six thou- " sand dollars, or so much thereof as may be necessary, " to be expended under the direction of the President." I have defined a protectorate on somewhat con- ventional lines, but with the hope that a better com- prehension of conditions may permit even a lighter hand on our part than the comparatively light one I 158 LAW AND POLICY OF ANNEXATION- have suggested. Indeed, were the islands free from the demoralizing influence of war, we might see our way clear to recognizing a Philippine state needing no protection at home, and finding ample security against foreign conquest in the power of the United States. THE EXPEDIENCY OF ALIENATION The United States, having the right and the op- portunity to withdraw their sovereignty from the Philippines, are brought to the question of expediency. Here we are met by the plea that by taking the islands we have given bonds to the world and the islanders to hold them. A perverse guide to con- duct ! The world has no rights in this domestic matter, and while the interests of the Filipinos should have weight in determining the time and manner of disposing of our territories in Asia, the expediency of disposition must be determined frankly in the interests of the American section of the United States ; for, so far as we are entitled to forecast the future of our republic from a study of its past, its strength must forever lie here, not there. With no thought of repudiating our real duties in Asia, with the assur- ance that these will be best performed by upholding the true ideals of the United States in America, we shall consider the disposition of the Philippines chiefly from the American standpoint. Commercial Considerations First from the standpoint of commerce. The widespread desire for an export trade in something THE ALIENATION OF THE PHILIPPINES 159 besides foodstuffs and a chance surplus of manufac- tures is a welcome event, though foreign war has only quickened the forces that have been surely pressing us beyond the "home market," so long ex- tolled as the sufficient field for our energies — pro- vided we shut out competitors. The acquisition of the Philippines being the strik- ing feature of our outward movement, their retention has been assumed, mistakenly, to be essential to its development. Retention of the Philippines has no relation to the bulk of our export trade. During the fiscal years 1898- 1900 we exported merchandise to the value of $3,852,000,000, of which all Asia took but $157,000,000 — not very much in excess of the amount taken by Belgium. Retention of the Philippines is not essential to the very trade so plausibly asserted to depend upon it — the trade of Asia, especially of China. During the fiscal years 1 898-1 900 our exports to China, including Hong Kong, averaged $20,000,000. The potential volume of this export trade is, perhaps, very great, assuming that the affairs of China shall be settled satisfactorily ; but we must decline to accept hysterical prophecy about Asiatic trade as our inspiration to duty in the Philippines. It is known that when four hundred million Chinese^ buy annually five dollars' worth of foreign goods per head they will buy $2,000,000,000 worth ; but the date is not set, and were it in sight our industrial community would be aghast in anticipation of the flood of cheap goods coming from China in payment." It is known ^ If there are so many. 2 Sir Robert Hart says : " Many regard China as a far-distant land, i6o LAW AND POLICY OF ANNEXATION that by drawing ever-widening circles about Manila ever-widening areas are brought within its reach — on the map ; but the rulers of Hong Kong, of Port Arthur, of Saigon, of Kiao Chau, of Yokohama may find as much fun and as little profit in playing this nursery game with their own ports for centers. It is known that when merchants the world over send goods for the mainland of Asia to Manila, there unlade and store them, and reship them thence to theirdestination, Manila will indeed realize the pre- with an immense population, but so wanting in all that others pos- sess as to be ready to purchase, in unlimited quantities, whatever is offered for sale ; whereas, what is true is this : China needs neither import nor export, and can do without foreign intercourse. A fertile soil, producing every kind of food, a climate which favors every variety of fruit, and a population which for tens of centuries has put agriculture, the productive industry which feeds and clothes, above all other occupations — China has all this and more; and foreign traders can only hope to dispose of their merchandise therein proportion to the new tastes they introduce, the new wants they cre- ate, and the care they take to supply what the demand really means. " The sanguine expectations which were expressed when treaties first regulated intercourse, a cycle back, have never been realized. Trade, it is true, has grown, and the revenue derived from it has multiplied; but as yet it is far, far from what our predecessors looked for; and the reason is not that the Chinese Government actively opposed foreign commerce, but that the Chinese people did not require it. Chinese have the best food in the world, rice; the best drink, tea; and the best clothing, cotton, silk, and fur; and possessing these staples, and their innumerable native adjuncts, they do not need to buy a penny's- worth elsewhere ; while their Empire is in itself so great, and they themselves so numerous, that sales to each other make up an enormous and sufficient trade, and export to foreign countries is unnecessary. This explains why sixty years of treaty trade have failed to reach the point the first treaty framers prophesied for it." — North American Heview, ]a.n- uary, 1901, THE ALIENATION OF THE PHILIPPINES i6i diction of the Philippine Commission by becoming "the distributing center of the Tar East"; but this event must await a discovery that transhipment and storage en route lessen freight charges. Moral and Political Consideratio7is Passing from commercial interests, which do not require the retention of the Philippines, we consider the moral and political obligations of the republic ; and these forbid it. The annexation of the Philippines was accomplished with the supposition that the islanders, with negligi- ble exceptions, would welcome our rule. This sup- position was at best a mistaken one, discouraged by the teachings of history, and unsupported by even plausible evidence ; and after the annexation the ab- solute demonstration of its falsity was persistently ignored in official reports and utterances until on October i, 1900, General Mac Arthur made his first report as military governor of the islands. In the course of his report General MacArthur says: "The Filipinos are not a warlike or ferocious peo- " pie. Left to themselves, a large number (perhaps " a considerable majority) would gladly accept Ameri- " can supremacy, which they are gradually coming to "understand means individual liberty and absolute "security in their lives and property. The people of " the islands, however, during the past five years have "been maddened by rhetorical sophistry and stimu- " lants applied to national pride, until the power of " discriminating in behalf of matters of public concern II 1 62 LAW AND POLICY OF ANNEXATION "or private interest (never very strongly established "among them) has for the time being been almost "entirely suspended. As a substitute for all other "considerations, the people seem to be actuated by " the idea that in all doubtful matters of politics or "war, men are never nearer right than when going " with their own kith and kin, regardless of the nature "of the action, or of its remote consequences. "This peculiar psychological condition has raised "practical difficulties in obstruction of pacification. " For example, most of the towns throughout the "archipelago, under the advice and control of mili- "tary authority, have organized municipal govern- " ments, for which kind of local administration the "people have evinced such intelligent capacity as to " encourage the expectation of rapid progress in the "art of self-government when the larger political ad- "ministrations are organized. "The institution of municipal government under " American auspices, of course, carried the idea of "exclusive fidelity to the sovereign power of the " United States. All the necessary moral obligations "to that end were readily assumed by municipal "bodies, and all outward forms of decorum and loy- " alty carefully preserved. But precisely at this point " the psychological conditions referred to above began " to work with great energy in assistance of insur- " gent field operations. For this purpose most of the " towns secretly organized complete insurgent mu- "nicipal governments, to proceed simultaneously and " in the same sphere as the American governments, " and in many instances through the same personnel ; "that is to say, the presidentes and town officials THE ALIENATION OF THE PHILIPPINES 163 " acted openly in behalf of the Americans and secretly "in behalf of the insurgents, and, paradoxical as it " may seem, with considerable apparent solicitude for "the interests of both. In all matters touching the " peace of the town, the regulation of markets, the " primitive work possible on roads, streets and "bridges, and the institution of schools, their open " activity was commendable ; at the same time they " were exacting and collecting contributions and sup- " plies and recruiting men for the Filipino forces, and "sending all obtainable military information to the " Filipino leaders. "Wherever, throughout the archipelago, there is a " group of the insurgent army, it is a fact beyond "dispute that all contiguous towns contribute to the " maintenance thereof In other words, the towns, "regardless of the fact of American occupation and "town organization, are the actual bases for all in- "surgent military activities; and not only so in the "sense of furnishing supplies for the so-called flying " columns of guerrillas, but as affording secure places " of refuge. Indeed, it is now the most important " maxim of Filipino tactics to disband when closely "pressed and seek safety in the nearest barrio, a "manoeuvre quickly accomplished by reason of the "assistance of the people and the ease with which "the Filipino soldier is transformed into the appear- "ance of a peaceful native, as referred to in a preced- " ing paragraph. " The success of this unique system of war depends "upon almost complete unity of action of the entire "native population. That such unity is a fact is too "obvious to admit of discussion; how it is brought 1 64 LAW AND POLICY OF ANNEXATION 'about and maintained is not so plain. Intimidation ' has undoubtedly accomplished much to this end, 'but fear as the only motive is hardly sufficient to ' account for the united and apparently spontaneous ' action of several millions of people. One traitor in 'each town would eventually destroy such a complete 'organization. It is more probable that the adhesive 'principle comes from ethnological homogeneity, ' which induces men to respond for a time to the ap- ' peals of consanguineous leadership, even when such ' action is opposed to their own interests and convic- 'tions of expediency. These remarks apply with ' equal force to the entire archipelago, excepting only ' that part of Mindanao occupied by Moros, and to 'the Jolo group. There is every reason to believe ' that all of the Moros are entirely satisfied with ex- ' isting conditions and are anxious to maintain 'them."i While General MacArthur indulges in hopes of better things at the beginning of this excerpt and in other parts of his report, he confirms the fact that, ex- cepting the Moros, the islanders are practically united in opposition to American rule ; and the satisfaction of the Moros is due to toleration for their barbarous customs, and payment of blackmail to keep them from piracy. Prattle about the eighty-nine tribes, the character of Aguinaldo, the absence of national feeling, the yearning for American control, the quieting influence of the presidential election, and treasonable sym- pathy with rebellion no longer diverts us from the 'Report of General MacArthur, October i, 1900, Army and Navy Journal, November 10, 1900. THE ALIENATION OF THE PHILIPPINES 165 fact that we are forcing our sovereignty upon the whole PhiHppine people. And we are compelled to judge this act of the republic of to-day by the principle on which the republic was founded — that governments derive "their just powers from the con- "sent of the governed." Petty criticism affects to discover the abandonment of this principle in the acquisition of Louisiana and California without con- sulting the handful of people living in these vast do- mains. Disino^enuous criticism insinuates a violation in the holding of the Confederate States to their al- legiance. But, be it well understood, our conduct in the Philippines involves a flagrant and unprecedented denial — not yet the abandonment — of this vital principle of the Declaration of Independence ; and this conduct is not excused by the afterthought that it may precede a higher state of civilization in the isl- ands. Civilization has followed conquest, and so has a new religion, but I believe that enlightened Mo- hammedans now disavow the propaganda of the sword : And they who affect to view devastation in the Philippines and the Transvaal as a preliminary step toward the higher education of the survivors are but trying to divert attention from blunders that have plunged the great free states of the world into wars for the subjugation of weak peoples. If, some day, the islanders shall be beaten into subjection, relief at the establishment of order may beget the comfortable reflection that " the end has "justified the means" — a maxim still current among the debased coin of politics. But, considering the permanent welfare of the 'republic, the Philippines 1 66 LAW AND POLICY OF ANNEXATION subdued will be quite as undesirable as the Philip- pines in revolt. The circumstance of revolt merely emphasizes the radical antagonism of this annexation, both to the true mission of the United States in the world and to their best interests at home. The victory over Spain, especially the dramatic entrance into Asia by way of the Philippines, is made the occasion for boasting that the United States have at last cast off their " swaddlinor clothes " and taken their place in the world ; as if international consequence of a virile and admirable sort had not been theirs from the beginning. The importance of the United States commenced with their birth in an age when free institutions were practically unknown in continental Europe, and when England had almost forgotten " her precedence in "teaching nations how to live" that Milton had besought her never to forget ; and it was not pure coincidence that the establishment of our republic was followed quickly by the French Revolution, from which, through many incidents of loss and gain, the people of continental Europe derive most of the liberties they enjoy to-day. The cause of freedom, encouraged by the founding of the republic, has been fostered everywhere by its success, by its open sympathy, by its prompt recognition of successful rebellion, and, in this hemisphere especially, by its ad- herence to the Monroe Doctrine. And the United States have borne a notable part in the unselfish activities of civilization ; in the advancement of science and the useful arts, in the promotion of respect for THE ALIENATION OF THE PHILIPPINES 167 international law, and in the work of missions and exploration. The worthiness of our achievements makes it dis- creditable to belittle them in order to magnify the events of the late war and the sufficiently great oppor- tunities these have disclosed. Far more discreditable is the temptation to use these opportunities as a means of becoming what is called, in the jargon of politics, a "world power." To equip itself for effec- tive work as one of the "world powers" the republic must adopt these policies and principles : 1. An unchanging foreign policy of territorial aggrandizement as active as opportunity permits. This is the cardinal policy of the "world powers." It is based upon the assumption that markets must be enlarged abroad to prevent starvation at home, and that the best way to sell goods is to own buyers. The anticipated consequence of the rule is an appal- ling struggle for food, after which the descendants of the brutalized survivors will grope their way to a new civilization. For the United States, the adoption of this policy means the abandonment of temperate friendliness towards all nations, and the substitution of persis- tent hatred thinly veiled now here, now there by vexatious alliances. 2. A great and increasing display of military power ; though this is partly due to dread of in- vasion, and, in some countries, of revolution. For the United States this means an armed force far beyond their proper needs in America, for we do not apprehend invasion, and the necessity for a great 1 68 LAW AND POLICY OF ANNEXATION federal army as a constabulary force can only arise through a blind encouragement of conditions breed- ing discontent. Probably it would mean also a recasting of our federal revenue system in order to permit the taxa- tion of land and incomes, now impracticable, as we have seen.-^ Our expenditure in peace on military account, including pensions, has for some time ex- ceeded that of any professedly militant state, and this must be largely increased if we abandon our traditional policies. 3. A selfishness passing the self-interest under- lying a sound national policy, and often reaching out to the denial of any rights in weaker nations. This is the mainspring of the policy of aggrandizement. These are some of the policies of the world powers, yet one who condemns them is not called upon to impute injustice to all their purposes (Russia, for ex- ample, must make her way to an open sea), or, in fine, to unravel the mixed motives and the confused pro- cesses that have accompanied notable advances in civilization. But when the best has been said for these policies, they remain unfit for our adoption ; and if it be argued that we may keep the Philippines without accepting the policies, I reply that by our con- duct in the Philippines we have adopted some of them experimentally, and must employ all of them perma- nently and in larger measure if we remain in the isl- ands. For if we keep the Philippines we shall not place our Terminus there. They will be but a stage on a march to the mainland of Asia, to be resumed some day, notwithstanding the rational ideas that at 1 See supra, p. 85. THE ALIENATION OE THE PHILIPPINES 169 present commend to us the preservation of the state of China. Withdrawal from the PhiHppines will mean that, having tried the policies of the "world powers" and found them wanting, we purpose to put our strength to better use than conquest, to affirm the hope of a better law for the world than the law of war, and to invigorate this hope in all nations by the example of our own. And our action will restore to our primacy in America the moral weight it has lost through aggrandizement in Asia, for the Monroe Doctrine, in which we demand the exemption of the Western hemisphere from foreign conquest, has been more conscientiously maintained at home and more respected abroad because of our traditional policy of abstaining from conquest in the Eastern. Withdrawal from the Philippines will reestablish the truth that the strength of our republic is not maintained by mere enlargement of boundaries, nor by mere addition of peoples: It is founded upon the competency and loyalty of the civic body, and upon the "indestructible union of indestructible States," OBSERVATIONS ON THE STATUS OF CUBA OBSERVATIONS ON THE STATUS OF CUBA The status of Cuba since the ratification of the Treaty of Paris is anomalous. Viewed as a whole it might be called unique, could this distinction be safely applied to any political condition. I The first paragraph of the First Article of the Treaty of Paris reads: "Spain relinquishes all claim " of sovereignty over and title to Cuba." Here is a parting with territory by Spain, yet there is no ces- sion, nor even a surrender in the sense of a trans- fer. At the end of the peace negotiations Spain did what at their commencement she protested could not be done; she abandoned Cuba, after vainly striving to induce the United States to accept it from her hands. Yet the island, though abandoned, did not become a derelict, being straightway occu- pied, although not annexed, by the United States. In these circumstances Cuba remains as foreiofn to our domestic system as it was when under the dominion of Spain. It is not within the purview of the Constitution, nor of any law of the United States ; nor within the territorial jurisdiction of Congress, for this is the legislature of the United States, and not of This paper is reprinted, somewhat revised, from Yale Law Journal, June, 1900, with the permission of the editors. 173 174 LAW AND POLICY OF ANNEXATION any other country. This Hmitation of congressional power is prescribed by the rule that the acts of a legislature have no force in foreign territory, except, of course, as they may be held to affect citizens abroad. This rule is sometimes stated in terms recognizing the inability of one state to depreciate the sovereignty of another by asserting jurisdiction in the latter's territory, and were this the whole reason for the rule there might be difficulty in apply- ing it to Cuba, where there is no sovereignty to be depreciated. But the sufficient reason for the rule is that a legislature is without territorial jurisdiction beyond the limits of the country in which it is sovereign.^ The second paragraph of the First Article of the Treaty of Paris reads : " And as the island is, upon "its evacuation by Spain, to be occupied by the " United States, the United States will, so long as " such occupation shall last, assume and discharge "the obligations that may, under international law, "result from the fact of its occupation, for the pro- "tection of life and property." In considering the nature and effect of this occu- pation from the standpoints of the different parties interested in Cuba we shall gain an approximate idea of the status of the island. II From the standpoint of the United States Cuba is a foreign country in our occupation and control. The occupation is not beneficial to us, as it would ■ See supra, p. 24. THE STATUS OF CUBA 175 be, presumably, had we annexed the island. In fact, it is decidedly burdensome, a vexatious result of a costly war waged for the avowed purpose of freeing Cuba from Spain in order to turn it over to its own people. However this fact may be esteemed in foreign chancelleries, or in Cuba itself, it entitles the United States to assert, upon occasion, any right, privilege, or immunity that enures to a disinterested occupant of territory as distinguished from a sov- ereign proprietor, and leaves them responsible only for the discharge of the specific obligations of the Treaty of Paris, and such duties, sufficiently oner- ous, as may be attached by international law to an occupation of this peculiar kind. Our control over Cuba savors of the protectoral relation in many respects, yet it is not a formal pro- tectorate, because, apart from uncivilized regions, the subject of this relation is a state of more or less sub- stantial powers. There is no sovereigfn state of Cuba, and we shall only add to the embarrassments of a sufficiently difficult problem by relying upon such fictions as an embryo state, or an effective sovereignty in the Cuban people. It is true that municipal and provincial systems of government are in operation in the island, and a complete judicial system, all officered by Cubans, but these agencies do not emanate from a local sovereignty ; they exist by the ordination or permission of the United States. To be short, what- ever real sovereignty there is in Cuba to-day is vested in the representatives of the United States who administer the government of Cuba. Cuba can 176 LAW AND POLICY OF ANNEXATION be called a " state " only as the term may be used to dignify a community having a certain standing of its own, yet lacking even the trappings of sovereignty.^ The government of Cuba is, really, the President of the United States, the island being ruled by his subordinates who execute his orders, or their own, which he adopts if he does not revoke. It cannot be said that this government is independent, organically, of the United States, for the President enjoys his powers by virtue of his office, and in no respect, either within or without the United States, is that office separable from the Federal Government of which it is a coordinate branch. The government of Cuba is rooted in Washington, not in Havana. It is an offshoot of the executive department of the United States, projected into and holding its place in a foreign territory with the assent of Congress. Hence, although the island of Cuba is not within the jurisdiction of Congress, the government of Cuba is subject to certain powers which the federal legislature is authorized to exert in regard to the executive department. Whether Congress is competent to order this gov- ernment to pass specific laws for the island, and thus legislate effectively for it through the medium of the executive department without bringing it, tech- nically, within congressional jurisdiction, I do not discuss. The impropriety of this action should be a sufficient reason for avoiding it. Our control over Cuba may be called "military" in view of its origin, the agencies by which it is 1 See supra, p. 39. THE STATUS OF CUBA i77 chiefly managed, and its freedom from the restraints of municipal law, yet it is not properly identified with a military occupation of conquered territory con- templated by the laws of war. Our control should be, as it is, exerted less rigorously than a " military occupation," and in thus differentiating it I rely upon the persuasive ethics of international law which dis- courage the application of the law of belligerent right to a peaceful country. And Cuba is at peace, though prudence may forbid at present the with- drawal of our forces, and, if need be, the government is competent to exercise full military powers in the face of insurrection. I say "insurrection" advisedly, because at the moment our government was estab- lished in Cuba it rightfully demanded the obedience of the people. While our control is less onerous than an ordinary military occupation its activities are more varied, and its responsibilities are heavier. The conqueror's strict duty to the inhabitants of the territory is performed when he affords them such liberty of action and protection as the exigencies of honorable warfare permit. Our duty in Cuba is to guide a friendly country to promised independence. The fourth clause of the Joint Resolution of Con- gress, April 20, 1898, reads: "The United States "hereby disclaims any disposition or intention to ex- " ercise sovereignty, jurisdiction or control over said " island except for the pacification thereof, and as- "serts its determination when that is accomplished to " leave the government and control of the island to its " people"; and this was incorporated in the ultimatum 12 1 78 LAW AND POLICY OF ANNEXATION forwarded to Spain. " Pacification " is the master word of the first part of the clause, and did this ex- press a self-imposed law, we have broken it, for after stretching the word to the uttermost, many of our acts in Cuba are hopelessly beyond its meaning. For example, the pacification of Cuba is not promoted by orders regulating the sponge fishery,^ and prescribing that civil marriages only shall be legally valid. ^ The truth is " pacification " did not prefigure the broad re- sponsibilities and the sequent powers of the United States in taking charge of Cuba, and so far from breaking faith by assuming, temporarily, complete control, they have performed a function justified by circumstances, though sometimes, as in the marriage law, they have abused their power. The government of Cuba is not bound by any law of the United States in its dealings with the people, nor by any law of the old regime which it may choose to alter or repeal. Yet, although it is not re- strained by a municipal constitution of which the governed may take advantage, I should hesitate to define this government as despotic in theory, not merely for sentimental reasons, but rather because it is required by principle as well as by treaty to respect the dictates of international law. This government, however defined, is charged with the duty of administering Cuba and abating some grosser evils of the Spanish regime : and perhaps there is a field for remedial action beyond these im- perative duties. But zeal for reform, a preference for the American way, which we understand, over the Spanish way, which we do not understand, do not ' General Brooke's Civil Report, I, 109. 2 jj^ ^^^ THE STATUS OF CUBA 179 justify disturbances of fundamental law and inveterate custom unbecoming" the office of a provisional ruler. Our occupation is terminable at our discretion ; and within our power is the method of ending it, though the way of abandonment is practically out of the question. The United States may end the present occupa- tion by changing its character to sovereign proprie- torship — by annexing the island. This can be accomplished by Congress only ; the treaty-making body, which usually enlarges the United States, being without jurisdiction in this case, because there is no local government competent to make a cession. Annexation by formal act would be the orderly course, but might not the same result be reached by Congress legislating for the island ? We are so accustomed to enlarge our dominion by formal con- sent of the titular sovereign of the desired territory that we are apt to lose sight of the truth that land may be annexed as well by occupation, followed by the actual assumption of jurisdiction by the President and Congress. ''Who is the sovereign, de jure or de "■facto, of a territory," says the Supreme Court, "is not "a judicial but a political question, the determination "of which by the legislative and executive depart- " ments of any government conclusively binds the "judges, as well as all other officers, citizens, and "subjects of that government. This principle has "always been upheld by this Court, and has been "affirmed under a great variety of circumstances."^ And Chief Justice Marshall said: " If those depart- 1 Jones V. U. S., 131 U. S. 202, 212. i8o LAW AND POLICY OF ANNEXATION 'ments which are intrusted with the foreign inter- ' course of the nation, which assert and maintain its ' interests against foreign powers, have unequivo- ' cally asserted its rights of dominion over a country ' of which it is in possession, and which it claims ' under a treaty, if the legislature has acted on the 'construction thus asserted, it is not in its own ' courts that this construction is to be denied. A ' question like this respecting the boundaries of ' nations is, as has been truly said, more a political ' than a legal question, and in its discussion the 'courts of every country must respect the pro- ' nounced will of the legislature." ^ The principle of Marshall's opinion covers a broader field than the disputed boundaries of land ceded by treaty, which was the case in Foster v. Neilson. If the army of the United States seizes foreign land ; if a treaty of peace does not mention hostile territory then occupied by our forces, thereby recognizing our possession by the operation of the principle o{ iiti possidetis ; if American officers take possession of unoccupied land in the name of the republic. Congress, by legislating for these terri- tories, may effect their incorporation in the United States. Now Congress is at present without juris- diction in Cuba, but the island is in possession of our forces. If, then. Congress shall choose to make laws for Cuba, the legislative and executive depart- ments of our government will have asserted the perfect sovereignty of the United States, and the ' Foster v. Neilson, 2 Peters 253, 309; cited in U. S. v. Lynde, II Wallace 632, 638. THE STATUS OF CUBA i8i courts will follow their lead, provided the assertion be unequivocal. Of course our courts would not recognize a statute of doubtful range as extending to Cuba. They would endeavor to construe a statute evidently- intended to be operative in the island as an exertion of exterritorial power over our citizens abroad, and not a law of the place ; and, though this suggests a most delicate question, it is possible that a statute plainly directed to Cuba might be so trivial in itself, or so markedly at variance with the pronounced attitude of Congress, that the court would properly treat it as tiltra vires, rather than infer the tremendous conse- quence of an enlargement of the United States from such doubtful evidence of intention. The method by which the United States are pledged to end their occupation of Cuba is to recog- nize a Cuban state. It is predicted that the pledge will be broken, or falsely kept by setting up a toy state that will formally cede the island to us. Of these political forecasts I have only to say, at pres- ent, that I have yet to see the reason why the pledge should not be kept, and I refuse to believe that the United States will play an hypocritical trick to gain an end which, if improper, should not be pursued, and, if proper, should be gained by the straightforward method of annexation by act of Congress. Ill From the Cuban standpoint the island is in a singular position. Severed from Spain; not joined i82 LAW AND POLICY OF ANNEXATION to the United States ; not the territory of a Cuban state, Cuba is, in some sense, merely a region admin- istered by a foreign master. Yet although the island is not the seat of a sovereign state it possesses a marked characteristic of an organ- ized society — a body of law. Spanish in origin, yet retaining its vitality after the withdrawal of Spain ; alterable by the government we have established, yet never becoming United States law, this body is the law of the place, and the fact of its existence makes Cuba to some extent a political entity. To this law of the place, both civil and criminal, all per- sons in Cuba are amenable, including all foreigners except those whose connection with our army may warrant their subjection to the military laws of the United States. What is the status of the people of Cuba, including in this class the Peninsular subjects of Spain who have not elected to retain Spanish citizenship in conformity with the provision of the Treaty of Paris? On April 20, 1898, Congress resolved "That the "people of Cuba are, and of right ought to be, " free and independent." In point of law, this resolu- tion had no more effect in Cuba than a resolution "That the Sultan of Morocco has and ousfht to have "but one wife" would have in his palace. In point of fact, the resolution, so far as it dealt with the ex- isting order of things, did not express a truth at the date of its passage — indeed, in the same breath Con- gress practically resolved to go to war with Spain be- cause the Cubans were not free and independent. THE STATUS OF CUBA 183 Nor are they free and independent to-day, except as they are released from the power of Spain. The Cubans are no longer subjects of Spain. Di- vested of Spanish nationality, by their own consent in the case of Peninsulars who have cast their lot with Cuba, by the act of Spain in the case of Cuban - born subjects who were not given a right of election, they can be reintegrated only by complying with the provisions of Spanish law. The situation of men of Cuban birth who prefer Spanish citizenship is, indeed, a hard one, yet they cannot question the legality of the rupture of the old allegiance, for with the right of a sovereign to cede territory is coupled the right to disavow further responsibility for its inhabitants. The Cubans are not, of course, citizens of the United States ; nor are they technically our subjects, though if they owe a qualified allegiance to any political head it is to the government we have set over them. They have been called "citizens of "Cuba," and so long as we understand their citizen- ship to be of that imperfect kind that does not involve membership in the community we call a sovereign state, we may accept this classification, which seems to be approved by the Treaty of Paris. The Ninth Article declares that if the Peninsular subjects of Spain residing in ceded or relinquished territories shall not within a certain time declare an intention to retain their allegiance, " they shall be held to have re- " nounced it, and to have adopted the nationality of the " territory in which they may reside." " Nationality " is evidently used in a political sense, and in order to give effect to this meaning in Porto Rico and the 1 84 LAW AND POLICY OF ANNEXATION Philippines we must assume that the persons men- tioned adopt the nationality of the United States, because, as the United States have annexed these islands, it would be as absurd to speak of Porto Rican or Philippine nationality as of Alaskan or New Mexican nationality.^ But as the United States have not annexed Cuba, we can give effect to the provision in its regard only by accepting the theory of a Cuban nationality for what it is worth. A familiar principle of public law is that a radi- cal change of government, however it may alter the public order of things, shall, of itself, affect private relations and rights as little as possible. The application of this principle to the domestic affairs of Cuba does not call for special consideration. It is sufficient to observe that rights vested under the old laws are not abrogated ; that the old laws themselves endure except as they may be altered by the provisional government ; and that the people must receive from this government protection to person and property. Beyond these domestic affairs there are interests growing out of the intercourse between Cuba and the world at large, and to these the principle should be applied wherever practicable. Cuba is still within the domain of private interna- tional law, and I assume that the courts of foreign nations, including, of course, our own, will generally continue to apply their rules in international con- troversies, involving contracts, wills, marriages, and the like, as though the island had not undergone a political change. iSee si/fra, p. 20. THE STATUS OF CUBA 185 Whether a foreigner may sue a person in the courts of the latter's country depends upon the local law, and it will be assumed that foreign tribunals, heretofore open to Cuban subjects of Spain, will not be closed to Cuban proteges of the United States. It is especially important that Cubans shall not lose any privileges in American courts because the United States have placed them in an anomalous position, and where proof of alienage is sufficient to confer jurisdiction there will be no question as to the pro- priety of entertaining their suits, for unquestionably they are aliens. Because the right to sue is ac- corded by the Constitution of the United States "to "citizens or subjects of a foreign state," an effort has been made to bar Cubans from the federal courts ; but Judge Lacombe has decided in their favor, saying of the defendant's contention : " There is "certainly nothing in all this which lends any color "to the proposition that the plaintiff is not a foreign "citizen. Even the brief memorandum of opinion in "Stuart V. City of Easton,^ gives no support to "demurrant's contention. One may be puzzled to "determine upon what theory it was held in that "case that a 'citizen of London, England,' is not " a ' foreign citizen ' ; but assuming, as suggested, "that it is because London is not a free and indepen- " dent community, but owes allegiance to the British " Crown, the decision has no application to the case "at bar, since the political branch of this govern- " ment has found as a political fact that the people of "the island of Cuba are 'free and independent.'"^ ^ 156 U. S. 46. 2 Betancourt v. Mutual Reserve Fund Life Association, loi Federal Rep. 305. 1 86 LAW AND POLICY OF ANNEXATION May not Judge Lacombe's conclusion be upheld without lending judicial sanction to the fiction of Cuban independence ? Even if we attribute to Cubans a sort of citizenship they are neither citizens nor subjects of a " foreign state," for there is no "state" of Cuba. As the letter of the Consti- tution must be somewhat overtaxed in order to cover the case of Cuba, why should not the provision be interpreted, as a whole, in the broad spirit which animates it, and our courts be declared open to persons who show that they are not citizens of the United States? Besides international controversies determinable in the courts, there are private interests recognized by the law and custom of nations as being the proper subjects of diplomatic assistance or negotiation, and for which individuals may request the good offices of their government. Regarding the common pro- tection and privileges to which persons in foreign countries are entitled by international law, the diplo- matic and consular offices of the United States should be exerted in behalf of Cubans as nearly to the extent of their exertion for our own citizens as the rules of foreign governments and our own permit. Generally speaking, our concern for Cubans abroad cannot be properly questioned by a foreign government, for these reasons : Because the relation between a state and a person for whom it claims protection is no concern of a foreign state unless it claims him as its own citizen, and we shall not meet this embarrassment, since Spain has completely denationalized her Cuban subjects: Because since THE STATUS OF CUBA 187 foreign governments are entitled, as we shall see, to view the United States as the protector of the inter- ests of their subjects in the island, they will not disavow the reciprocal duty of safeguarding Cuban interests in their own dominions. The fact that Cubans cannot receive United States passports, which are issuable to citizens only, is not especially detrimental. The State Department has approved the issuance of the following consular cer- tificate to an American Indian : " The bearer of this " document is a North American Indian whose name "is Hampa. This Indian is a ward of the United "States, and is entitled to the protection of its con- "sular and other officials. He is not, however, en- " titled to a passport, as he is not a citizen of the " United States. This consulate has the honor to "request the Russian authorities to grant Hampa all " necessary protection during his stay in Russia, and "grant him permission to depart when he requires "it."^ The State Department may issue suitable certificates to Cubans, — probably it has done so already, — and these will be honored abroad as our Indian certificate seems to have been, and as the pass- ports issued by Great Britain to persons not her citizens, but within her protection, are honored.^ Whatever rights under Spanish treaties Cubans may have enjoyed abroad as Spanish subjects have been lost by the severance of Cuba from Spain. Whatever rights may be secured to them by the Treaty of Paris are enforceable by the United States, at least during the term of their control. Whether ^ Hunt, The American Passport, p. 147. 2 See Lee-Warner, The Protected Princes of India, 225. 1 88 LAW AND POLICY OF ANNEXATION the United States shall be disposed to request and be able to secure for Cubans the benefit of treaty rights in foreign lands enjoyed by their own citizens de- pends upon the nature of the particular right in ques- tion. There is no doubt that the benefit of our con- sular jurisdiction in non-Christian countries should be claimed for Cubans ; on the other hand, it would be absurd for the United States to demand for them the fishing rights on the northeast coast secured to the people or citizens of the United States by treaty with Great Britain. IV The distinction between Cuba and the United States, which we maintain as a matter of domestic law and policy, is not altogether effective from the standpoint of foreign nations. When a region is occupied by a foreign state, other states are not necessarily affected by the motive of the occupation, so far as their current intercourse is concerned, and, in their reasonable demand for a visible and responsible head to a country with which they deal, are entitled to treat the occupant as the sovereign for certain purposes. And it is the interest as well as the duty of the occupant to accept the proper responsibilities of the position, because if these be disavowed the country is, practically, with- out a government, and in this event a foreign state, being unable to protect its lawful interests by negotia- tion, may employ adequate force. From the standpoint of foreign nations Cuba is in some sense part of the United States, and the United States accept this conclusion of international law. THE STATUS OF CUBA 189 According to the First Article of the Treaty of Paris, already cited, "the United States will, so long " as such occupation shall last, assume and discharge " the obligations that may, under international law, " result from the fact of its occupation for the pro- " taction of life and property." While this clause is part of a treaty with Spain, and does not import an agreement with any other nation, it is really but the acknowledgment of an independent obligation to all nations. And it may prove to be an inadequate acknowledgment, for if, perchance, there be any international duty not included in " the protection of "life and property," the United States cannot honor- ably avoid the consequences of a breach of it by referring to the treaty as the measure of their responsibility. In considering our duties to foreign nations in regard to Cuba we must first differentiate Spain from the generality in regard to the special agree- ments made with her in the Treaty of Paris. Apart from the special law of this treaty, by which Spain is particularly bound and benefited, she stands with the other nations in respect of international rights and obligations. The responsibilities in regard to foreign states cast upon an occupant of hostile territory during war, when inevitable disorder may excuse unavoidable de- faults, and when the absent sovereign has still a legal title to the country, and may regain possession by reconquest or treaty, are broader and heavier in Cuba, where order reigns, and whence the former sovereign 190 LAW AND POLICY OF ANNEXATION has departed, never to return, leaving the represen- tatives of the United States in occupation. Without attempting to forecast the possible re- clamations that may be made against the United States on Cuban account, it must be understood by the Cubans that should the United States become liable for a pecuniary indemnity they will place the real burden where it belongs. If the injury be caused by the unlawful act or omission of United States citizens, the indemnity should be charged upon the Federal Treasury. On the other hand, an indemnity due on account of the acts of Cubans should be charged to Cuba, and paid either out of insular revenues, or by Cuban obligations which the United States should guarantee to the creditor and enforce against the debtor. APPENDIX (A) JOINT RESOLUTION IN REGARD TO CUBA (30 U. S. Statutes at Large 738) Whereas The abhorrent conditions which have existed for more than three years in the island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization, culminating, as they have, in the destruction of a United States battle-ship, with two hundred and sixty-six of its officers and crew, while on a friendly visit in the harbor of Havana, and cannot longer be endured, as has been set forth by the President of the United States in his message to Congress of April eleventh, eighteen hundred and ninety-eight, upon which the action of Congress was invited : Therefore, Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, First. That the people of the island of Cuba are, and of right ought to be, free and independent. Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters. Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such an ex- tent as may be necessary to carry these resolutions into effect. Fourth. That the United States hereby disclaims any dispo- sition or intention to exercise sovereignty, jurisdiction, or control over said Island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the Island to its people. Approved April 20, 1898, 13 193 194 J^AIV AND POLICY OF ANNEXATION DECLARATION OF WAR (30 U. S. Statutes at Large 364) Bt it enacted by the Senate and House of Representatives of the United States of Ajnerica in Congress as se tub led, First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain. Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect. Approved April 25, 1898. PROTOCOL OF AUGUST 12, 1898 (30 Statutes at Large 1742) William R. Day, Secretary of State of the United States, and His Excellency Jules Cambon, Ambassador Extraordinary and Pleni- potentiary of the Republic of France at Washington, respectively possessing fjpr this purpose full authority from the Government of the United States and the Government of Spain, have concluded and signed the following articles, embodying the terms on which the two Governments have agreed in respect to the matters herein- after set forth, having in view the establishment of peace between the two countries, that is to say : Article I Spain will relinquish all claim of sovereignty over and title to Cuba. Article II Spain will cede to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and also an island in the Ladrones to be selected by the United States. APPENDIX 195 Article 111 The United States will occupy and hold the city, bay and harbor of Manila, pending the conclusion of a treaty of peace which shall determine the control, disposition and government of the Philippines. Article IV Spain will immediately evacuate Cuba, Porto Rico and other islands now under Spanish sovereignty in the West Indies; and to this end each Government will, within ten days after the signing of this protocol, appoint Commissioners, and the Commissioners so appointed shall, within thirty days after the signing of this protocol, meet at Havana for the purpose of arranging and carry- ing out the details of the aforesaid evacuation of Cuba and the adjacent Spanish islands ; and each Government will, within ten days after the signing of this protocol, also appoint other Com- missioners, who shall, within thirty days after the signing of this protocol, meet at San Juan, in Porto Rico, for the purpose of arranging and carrying out the details of the aforesaid evacuation of Porto Rico and other islands now under Spanish sovereignty in the West Indies. Article V The United States and Spain will each appoint not more than five Commissioners to treat of peace, and the Commissioners so appointed shall meet at Paris not later than October i, 1898, and proceed to the negotiation and conclusion of a treaty of peace, which treaty shall be subject to ratification according to the re- spective constitutional forms of the two countries. Article VI Upon the conclusion and signing of this protocol, hostilities between the two countries shall be suspended, and notice to that efiect shall be given as soon as possible by each Government to the commanders of its military and naval forces. Done at Washington in duplicate, in English and in French, by the undersigned, who have hereunto set their hands and seals, the twelfth day of August, 1898. [seal.] William R. Dav. [seal.] Jules Cambon. W 196 LAW AND POLICY OF ANNEXATION PROCLAMATION OF THE PROTOCOL (30 U. S. Statutes at Large 1780) Whereas, By a protocol concluded and signed August 12, 1898, by William R. Day, Secretary of State of the United States, and His Excellency Jules Cambon, Ambassador Extraordinary and Plenipotentiary of the Republic of France at Washington, respec- tively representing for this purpose the Government of the United States and the Government of Spain, the Governments of the United States and Spain have formally agreed upon the terms on which negotiations for the establishment of peace between the two countries shall be undertaken : and. Whereas, It is in said protocol agreed that upon its conclusion and signature hostilities between the two countries shall be sus- pended, and that notice to that effect shall be given as soon as pos- sible by each Government to the commanders of its military and naval forces : Now, Therefore, I, William McKinley, President of the United States, do, in accordance with the stipulations of the protocol, de- clare and proclaim on the part of the United States a suspension of hostilities, and do hereby command that orders be immediately given through the proper channels to the commanders of the military and naval forces of the United States to abstain from all acts inconsistent with this proclamation. Iti Wit7iess Whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington this twelfth day of August in the year of our Lord one thousand eight hundred and ninety-eight, and of the Independence of the United States the one hundred and twenty-third. William McKinley. By the President, Wilijam R. Day, Secretary of State. APPENDIX 197 THE TREATY OF PARIS (30 U. S. Statutes at Large 1754) Treaty of Peace between the United States of America and the King- dom of Spain. Signed at Paris December 10, i8g8 ; ratification advised by the Senate February 6, i8gg ; ratified by the President P'ebruary 6, i8pp ; ratified by Her Majesty the Queen Regent of Spain March ig, l8gp ; ratifications exchanged at Washington April II, i8gg ; proclaimed, Washington, April 11, i8gg. By the President of the United States of America A PROCLAMATION Whereas, a Treaty of Peace between the United States of Amer- ica and Her Majesty the Queen Regent of Spain, in the name of her August Son, Don Alfonso XIII, was concluded and signed by their respective plenipotentiaries at Paris on the tenth day of December, 1898, the original of which Convention being in the English and Spanish languages is, word for word, as follows : The United States of America and Her Majesty the Queen Regefit of Spain, in the name of her August Son, Don Alfonso XIII, desiring to end the state of war now existing between the two countries, have for that purpose appointed as plenipotentiaries : The President of the United States, William R. Day, Cushman K. Davis, William P. Frye, George Gray, and Whitelaw Reid, citizens of the United States ; and Her Majesty the Queen Regent of Spain, Don Eugenic Montero Rigs, President of the Senate, Don Buenaventura DE Abarzuza, Senator of the Kingdom and ex-Minister of the Crown, Don Josi de Garnica, Deputy to the Cortes and Associate Justice of the Supreme Court, Don Wenceslao Ramirez de Villa Urrutia, Envoy Extraordinary and Minister Plenipotentiary at Brussels, and Don Rafael Cerero, General of Division ; Who, having assembled in Paris, and having exchanged their full powers, which were found to be in due and proper form, have, after discussion of the matters before them, agreed upon the fol- lowing articles : 1 1 198 LAW AND POLICY OF ANNEXATION- Article I Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occu- pied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. Article II Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones. Article III Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following lines : A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty-seventh (127th) degree meridian of longitude east of Green- wich to the parallel of four degrees and forty-five minutes (4:45) north latitude, thence along the parallel of four degrees and forty- five minutes (4:45) north latitude to its intersection with the merid- ian of longitude one hundred and nineteen degrees and thirty-five minutes (119:35) east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty-five min- utes (119:35) east of Greenwich to the parallel of latitude seven degrees and forty minutes (7:40) north, thence along the parallel of latitude seven degrees and forty minutes (7:40) north to its in- tersection with the one hundred and sixteenth (i i6th) degree merid- ian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (loth) degree parallel of north latitude with the one hundred and eighteenth (ii8th) degree meridian of APPENDIX 199 longitude east of Greenwich, and thence along the (jne hundred and eighteenth (ii8th) degree meridian of longitude east of Green- wich to the point of beginning. , r The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty. Article IV The United States will, for the term of ten years from the date of the exchange of the ratifications of the present treaty, admit Spanish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States. Article V The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them. Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the island of Guam, on terms similar to those agreed upon by the Commission- ers appointed to arrange for the evacuation of Porto Rico and other islands in the West Indies, under the Protocol of August 12, 1898, which is to continue in force till its provisions are completely executed. The time within which the evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two Govern- ments. Stands of colors, uncaptured war vessels, small arms, guns of all calibers, with their carriages and accessories, powder, ammu- nition, live stock, and materials and supplies of all kinds, belonging to the land and naval forces of Spain in the Philippines and Guam, remain the property of Spain. Pieces of heavy ordnance, exclu- sive of field artillery, in the fortifications and coast defenses shall remain in their emplacements for the term of six months, to be reckoned from the exchange of ratifications of the treaty ; and the United States may, in the meantime, purchase such material from Spain, if a satisfactory agreement between the two Governments on the subject shall be reached. 200 LAW AND POLICY OF ANNEXATLON Article VI Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offenses, in connection with the insurrections in Cuba and the Philippines and the war with the United States. Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the in- surgents in Cuba and the Philippines. The Government of the United States will at its own cost return to Spain and the Government of Spain will at its own cost return to the United States, Cuba, Porto Rico, and the Philippines, ac- cording to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article. Article VII The United States and Spain mutually rehnquish all claims for indemnity, national and individual, of every kind, of either Govern- ment, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article. Article VIII In conformity with the provisions of Articles I, II, and III of this treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands in the West Indies, in the island of Guam, and in the Philippine Archipelago, all the buildings, wharves, l)arracks, forts, structures, public highways and other immovable property which in conformity with law belong to the public domain, and as such belong to the Crown of Spain. And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the pro])erty or rights which by law belong to the peaceful possession of proi)erty of all kinds, of provinces, mu- nicipalities, public or private establishments, ecclesiastical or civic APPENDIX 20 1 bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be. The aforesaid relinquishment or cession, as the case may be, in- cludes all documents exclusively referring to the sovereignty relin- quished or ceded that may exist in the archives of the Peninsula. Where any document in such archives only in part relates to said sovereignty a copy of such part will be furnished whenever it shall be requested. Like rules shall be reciprocally observed in favor of Spain in respect of documents in the archives of the islands above referred to. In the aforesaid relinquishment or cession, as the case may be, are also included such rights as the Crown of Spain and its authorities possess in respect of the official archives and records, executive as well as judicial, in the islands above referred to, which relate to said islands or the rights and property of their inhabitants. Such ar- chives and records shall be carefully preserved, and private persons shall without distinction have the right to require, in accordance with the law, authenticated copies of the contracts, wills and other instruments forming part of notarial protocols or files, or which may be contained in the executive or judicial archives, be the latter in Spain or in the islands aforesaid. Article IX Spanish subjects, natives of the Peninsula, residing in the terri- tory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, in- cluding the right to sell or dispose of such property or of its pro- ceeds ; and they shall also have the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their de- cision to preserve such allegiance ; in default ot which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. \An agree- 202 LAW AND POLICY OF ANNEXATION meut of March 29, i()oo, extended the time for fnaking declaration for six months after April 1 1, 1900.] The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be deter- mined by the Congress. Article X The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion. Article XI The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject in matters civil as well as criminal to the jurisdiction of the courts of the country wherein they reside, pursuant to the ordinary laws governing the same; and they shall have the right to appear before such courts, and to pursue the same course as citizens of the country to which the courts belong. Article XII Judicial proceedings pending at the time of the exchange of rati- fications of this treaty in the territories over which Spain relin- quishes or cedes her sovereignty shall be determined according to the following rules: One. Judgments rendered either in civil suits between private individuals or in criminal matters, before the date mentioned, and with respect to which there is no recourse or right of review under the Spanish law, shall be deemed to be final, and shall be executed in due form by competent authority in the territory within which such judgments should be carried out. 2wo. Civil suits between private individuals which may on the date mentioned be undetermined shall be prosecuted to judgment before the court in which they may then be pending, or in the court that may be substituted therefor. Three. Criminal actions pending on the date mentioned before the Sui)reme Court of Spain against citizens of the territory which by this treaty ceases to be Spanish shall continue under its juris- diction until final judgment ; but, such judgment having been ren- II APPENDIX 203 dered, the execution thereof shall be committed to the competent authority of the place in which the case arose. Article XIII The rights of property secured by copyrights and patents ac- quired by Spaniards in the island of Cuba, and in Porto Rico, the Philippines, and other ceded territories, at the time of the exchange of the ratifications of this treaty, shall continue to be respected. Spanish scientific, literary and artistic works not subversive of pub- lic order in the territories in question shall continue to be admitted free of duty into such territories for the period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty. Article XIV Spain shall have the power to establish consular officers in the ports and places of the territories, the sovereignty over which has either been relinquished or ceded by the present treaty. Article XV The Government of each country will, for the term of ten years, accord to the merchant vessels of the other country the same treat- ment in respect to all port charges, including entrance and clearance dues, Ught dues, and tonnage duties, as it accords to its own mer- chant vessels, not engaged in the coastwise trade. This article may at any time be terminated on six months' notice given by either Government to the other. Article XVI It is understood that any obligations assumed in this treaty by the United States with respect to Cuba are limited to the time of its occupancy thereof; but it will upon the termination of such occupancy advise any Government established in the island to assume the same obligations. Article XVII The present treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain ; and the ratifica- 204 LAW AND POLICY OF ANNEXATION tions shall be exchanged at Washington within six months from the date hereof, or earlier if possible. In faith whereof we, the respective plenipotentiaries, have signed this treaty and have hereunto affixed our seals. Done in duplicate at Paris, the tenth day of December, in the year of our Lord one thousand eight hundred and ninety-eight. William R. Day. Eugenio Montero Rios. CusHMAN K. Davis. B. de Abarzuza. William P. Frye. J. de Garnica. George Gray. W. R. de Villa Urrutia. Whitelaw Reid. Rafael Cerero. And whereas the said Convention has been duly ratified on both parts, and the ratifications of the two Governments were ex- changed in the City of Washington on the eleventh day of April, one thousand eight hundred and ninety-nine : Now therefore be it known that I, William McKinley, Presi- dent of the United States of America, have caused the said Con- vention to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington this eleventh day of April, in the year of our Lord one thousand eight hundred and ninety- nine, and of the Independence of the United States the one hundred and twenty-third. William McKinley. By the President, John Hay, Secretary of State. ACT OF MARCH 21, 1899 (30 U. S. Statutes at Large 993) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the pur- pose of carrying out the obligations of the treaty between the APPENDIX 205 United States and Spain concluded at Paris on the tenth day of December, anno Domini eighteen hundred and ninety-eight, to become immediately available upon the exchange of the ratifica- tions of said treaty, there is hereby appropriated, out of any money in the Treasury not otherwise appropriated, the sum of twenty million dollars. Approved March 2, 1899. (B) LEASE OF KIAO-CHAU (Blue Book China No. i (1899), p. 69) Extract from the " Reichsanzeiger" of April 29, 1898 [translation] The following is the text of the treaty between the German Empire and China respecting the lease of Kiao-chau, which was received in Berlin on the 28th April, 1898: The incidents connected with the Mission in the Prefecture of Tsao-chau-foo, in Shantung, being now closed, the Imperial Chinese Government consider it advisable to give a special proof of their grateful appreciation of the friendship shown to them by Germany. The Imperial German and the Imperial Chinese Governments, therefore, inspired by the equal and mutual wish to strengthen the bands of friendship which unite the two countries, and to develop the economic and commercial relations between the subjects of the two States, have concluded the following separate Convention : Article I His Majesty the Emperor of China, guided by the intention to strengthen the friendly relations between China and Germany, and at the same time to increase the military readiness of the Chinese Empire, engages, while reserving to himself all rights of sover- eignty in a zone of 50 kilom. (100 Chinese li) surrounding the Bay of Kiao-chau at high water, to permit the free passage of German troops within this zone at any time, as also to abstain from taking any measures, or issuing any Ordinances therein, without 2o6 LAW AND POLICY OF ANNEXATION the previous consent of the German Government, and especially to place no obstacle in the way of any Regulation of the water-courses which may prove to be necessary. His Majesty the Emperor of China, at the same time, reserves to himself the right to station troops within that zone, in agreement with the German Govern- ment, and to take other military measures. Article II With the intention of meeting the legitimate desire of His Majesty the German Emperor, that Germany, like other Powers, should hold a place on the Chinese coast for the repair and equipment of her ships, for the storage of materials and provisions for the same, and for other arrangements connected therewith. His Majesty the Emperor of China cedes to Germany on lease, provisionally for ninety-nine years, both sides of the entrance to the Bay of Kiao- chau. Germany engages to construct, at a suitable moment, on the territory thus ceded, fortifications for the protection of the buildings to be constructed there and of the entrance to the harbor. Article III In order to avoid the possibility of conflicts, the Imperial Chinese Government will abstain from exercising rights of sovereignty in the ceded territory during the term of the lease, and leaves the exercise of the same to Germany, within the following limits : (i) On the northern side of the entrance to the bay : The peninsula bounded to the northeast by a line drawn from the northeastern corner of Potato Island to Loshan Harbor. (2) On the southern side of the entrance to the bay : The peninsula bounded to the southwest by a line drawn from the southwesternmost point of the bay lying to the south-southwest of Chiposan Island in the direction of Tolosan Island. (3) The Island of Chiposan and Potato Island. (4) The whole water area of the bay up to the highest water- mark at present known. (5) All islands lying seaward from Kiao-chau Bay, which may be of importance for its defense, such as Tolosan, Chalienchow, etc. The High Contracting Parties reserve to themselves to delimi- tate more accurately, in accordance with local traditions, the boun- daries of the territory leased to Germany and of the 50-kilom. zone APPENDIX 207 round the l)ay, l)y means of Commissioners to be appointed on both sides. Chinese ships of war and merchant-vessels shall enjoy the same privileges in the Bay of Kiao-chau as the ships of other nations on friendly terms with Germany; and the entrance, departure, and sojourn of Chinese ships in the bay shall not be subject to any restrictions other than those which the Imperial German Govern- ment, in virtue of the rights of sovereignty over the whole of the water area of the bay transferred to Germany, may at any time find it necessary to impose with regard to the ships of other nations. Article IV Germany engages to construct the necessary navigation signals on the islands and shallows at the entrance of the bay. No dues shall be demanded from Chinese ships of war and mer- chant-vessels in the Bay of Kiao-chau, except those which may be levied upon other vessels for the purpose of maintaining the neces- sary harbor arrangements and quays. Article V Should Germany at some future time express the wish to return Kiao-chau Bay to China before the expiration of the lease, China engages to refund to Germany the expenditure she has incurred at Kiao-chau, and to cede to Germany a more suitable place. Germany engages at no time to sublet the territory leased from China to another Power. The Chinese population dwelling in the ceded territory shall at all times enjoy the protection of the German Government, provided that they behave in conformity with law and order ; unless their land is required for other purposes they may remain there. If land belonging to Chinese owners is required for any other purpose, the owner will receive compensation. As regards the reestablishment of Chinese customs stations which formerly existed outside the ceded territory, but within the 50-kilom. zone, the Imperial German Government intends to come to an agreement with the Chinese Government for the definitive regula- tion of the customs frontier, and the mode of collecting customs duties, in a manner which will safeguard all the interests of China, and proposes to enter into further negotiations on the subject. 2o8 LAW AND POLICY OF ANNEXATION The above Agreement shall be ratified by the Sovereigns of both the Contracting States, and the ratifications exchanged in such manner that, after the receipt in Berlin of the Treaty ratified by China, the copy ratified by Germany shall be handed to the Chinese Minister in Berlin. The foregoing Treaty has been drawn up in four copies, two in German and two in Chinese, and was signed by the Representa- tives of the two Contracting States on the 6th March, 1898, equal to the fourteenth day of the second month in the twenty-fourth year Kuang-hsii. (Great Seal of the Tsung-li Yamen.) The Imperial German Minister, (Signed) Baron von Heyking. Li Hung-chang (in Chinese), Imperial Chinese Grand Secretary, Minister of the Tsung-li Ya?neji, &'c., &^c. Weng Tung-ho (in Chinese), Imperial Chinese Grand Secretary, Member of the Council of State, Minister of the Tsung-li Yamen, dr'c, &'c. CHARTER GERMAN COLONIZATION SOCIETY (Hertslet, Map of Africa by Treaty, 2d Ed., I, 303) Charter of Protection granted to the German Colonization So- ciety, for certain Acquisitions of Territory made by it on the South East Coast of Africa between the Territory of the Sultan of Zanzibar and Lake Tanganyika. Berlin, 17th February, 1885. [translation] His Majesty the Emperor has been graciously pleased to address the following Imperial " Charter of Protection " to the Society for German Colonization for their territorial acquisitions in East Africa : " We, William, by the Grace of God German Emperor, King of Prussia, make known and ordain as follows : APPENDIX 209 " The present Presidents of the Society for German Colonization, Dr. Karl Peters and our Chamberlain Felix, Count Behr-Bandclin, having sought our protection for the territorial acquisitions of the Society in East Africa, west of the Empire of the Sultan of Zanzibar, and outside of the suzerainty (' Oberhoheit ') of other Powers, and the Treaties lately concluded by the said Dr. Karl Peters with the Rulers of Usagara, Nguru, Useguha, and Ukami in November and December last, by which these territories have been ceded to him for the German Colonial Society with sovereign rights (' Landes- hoheit ') over the same, having been laid before us, with the Peti- tion to place these territories under our suzerainty, we hereby de- clare that we have accepted the suzerainty, and have placed under our Imperial protection the territories in question, reserving to our- selves a right of deciding hereafter respecting any further acquisi- tions in the same district which may be proved to have been ob- tained by legal contract by the Society or by their legitimate successors. " We grant unto the said Society, on the condition that it remains German, and that the members of the Board of Directors or other persons intrusted with its management are subjects of the German Empire, as well as to the legitimate successors of this Society under the same conditions, the authority to exercise all rights arising from the Treaties submitted to us, including that of jurisdiction over both the natives and the subjects of Germany and of other nations es- tablished in those territories, or sojourning there for commercial or other purposes, under the superintendence of our Government, subject to further regulations to be issued by us, and supplementary additions to this, our Charter of Protection. " In witness whereof we have with our Royal hand executed this Charter of Protection, and have caused it to be sealed with our Imperial seal. "Given at Berlin the 17th February, 1885. "WILLIAM. " V. Bismarck." FRENCH PROTECTORATE OVER MADAGASCAR (Foreign Relations of the U. S., 1886, p. 300) The Governments of the French Republic and of Her Majesty the Queen of Madagascar, wishing to prevent forever the renewal 14 2IO LAW AND POLICY OF ANNEXATION of the dififerences which have lately arisen, and desiring to strengthen their former friendly relations, have agreed to conclude a conven- tion to this effect, and have named for plenipotentiaries to wit, Mr. Paul Emile Miot, rear-admiral commanding in chief the naval division of the Indian Ocean, and Mr. Salvator Patrimonio, minis- ter plenipotentiary for the French Republic, and General Digby Willoughby, general officer commanding the Malagasy forces and minister plenipotentiary for the Government of Her Majesty the Queen of Madagascar, who, after having exchanged their full pow- ers, found in good and due form, have agreed upon the following articles, subject to their ratification : (i) The Government of the French Republic will represent Mad- agascar in all its foreign relations. The Malagasies abroad will be placed under the protection of France. (2) A resident representing the Government of the Republic will control the foreign relations of Madagascar, without interfering in the internal administration of the country. (3) He will reside at Antananarivo, with a military guard, and will be entitled to be received in private personal audience by the Queen. (4) The Malagasy authorities under the Queen will not intervene in questions arising between French subjects or between French and foreign subjects. Actions at law between Frenchmen and Ma- lagasies will be tried by the resident, assisted by a Malagasy judge. (5) Frenchmen will live under French laws as regards the pun- ishment of crimes and offenses committed in Madagascar. (6) French subjects may freely reside, travel, and carry on trade throughout the Queen's dominions. They will be entitled to lease for undetermined periods or to take leases for long periods, renew- able at the sole pleasure of the contracting parties, land, houses, shops, and all other descriptions of real property, and may freely engage and take into their service, on any footing, any Malagasy subject who may be unhindered by previous engagements. Leases and contracts with work-people will be certified in due form before the French resident and the magistrates of the country, and the strict execution of the provisions of such instruments will be guar- anteed by the Government. At the death of a Frenchman who may have been the tenant of any landed or house property, his heirs will have the benefit of the remaining term of the lease concluded by the deceased, with the power of renewing the same. French- APPENDIX 211 men will only be called upon for the land tax paid by the Malagasies. No person shall have access to the property or enter the estab- lishments or houses occupied by Frenchmen, or by any person in their service, except with the sanction of the P'rench resident. (7) The Queen expressly confirms the guarantees sti[>ulated by the treaty of August 7, 1885, in favor of liberty of conscience and religious toleration. (8) The Queen's Government undertakes to pay the sum of 10,000,000 francs, to be applied in the settlement of French claims liquidated before the last war, and in compensation for the damages suffered by foreign subjects by reason of that war. The investiga- tion and settlement of these indemnities is left to the French Government. (9) Until payment in full of the above-mentioned sum French troops will occupy Tamatave. (10) No claim will be admitted in connection with the measures taken up to the present by the French military authorities. (11) The Government of the French Republic undertakes to lend assistance to the Queen in the defense of her states. (12) The Queen will continue as heretofore to preside over the internal administration of the whole island. (13) In consideration of these engagements, the French Republic agrees to desist from any renewal of its demand for a war indemnity. (14) The Government of the French Republic, in order to aid the advance of the Malagasy Government and people on the path of civilization and progress, undertakes to place at the Queen's disposal the military instructors, engineers, professors, and artisan foremen whose services may be applied for. (15) The Queen expressly undertakes to treat with good will the Sakalavas and Antankares, agreeably to the information on this subject furnished by the French Government. The Government of the Republic reserves to itself the right of occupying the Bay of Diego Suarez, and of creating there the establishments that it may consider desirable. (16) The President of the French Republic and the Queen grant a general and complete amnesty, accompanied by the raising of all sequestrations placed upon their property, to their respective sub- jects, who prior to the conclusion of peace compromised themselves by serving the other contracting party. 212 LAW AND POLICY OF ANNEXATION (17) The actually existing treaties and conventions between the French Republic and the Queen are expressly confirmed in so far as they may not be contrary to stipulations of the present treaty. (18) The present treaty has been drawn up in French and Malagasy, the two versions having exactly the same sense, so that the two texts may be legally cited in every respect. (19) The present treaty shall be ratified within a period of three months. Made in duplicate on board the Naiida, in the harbor of Tama- tave, December 17, 1885. The rear-admiral commanding in chief the naval division of the Indian Ocean, E. Miot. The minister plenipotentiary of the French Republic, S. Patrimonio, The minister plenipotentiary of Her Majesty the Queen of Mada- gascar, general officer commanding the Malagasy forces, DiGBY WiLLOUGHBY. (Madagascar has lately been formally annexed by France.) TRANSFER OF MYSORE TO A NATIVE RULER (Lee-Warner, The Protected Princes of India, p. 166) Whereas the British Government has now been for a long period in possession of the territories of Mysore, and has introduced into the said territories an approved system of administration : And whereas, on the death of the late Maharaja, the said Government, being desirous that the said territories should be administered by an Indian dynasty under such restrictions and conditions as might be necessary for ensuring the maintenance of the system of admin- istration so introduced, declared that if Maharaja Chamrajendra Wadiar Bahadur, the adopted son of the late Mahdraja, should, on attaining the age of eighteen years, be found qualified for the posi- tion of ruler of the said territories, the government thereof should be entrusted to him, subject to such conditions and restrictions as might be thereafter determined : And whereas the said Maharaja Cliamrajendra Wadiar Bahadur has now attained the said age of APPENDIX 213 eighteen years, and appears to the British Government quaHfied for the position aforesaid, and is about to be entrusted with the government of the said territories : And whereas it is expedient to grant to the said Maharaja Chamrajendra Wadiar Bahadur a written instrument defining the conditions subject to which he will be so entrusted : It is hereby declared as folloAvs : — (i) The Maharaja Chamrajendra Wadiar Bahadur shall, on the twenty-fifth day of March, 1 881, be placed in possession of the territories of Mysore, and installed in the administration thereof. (2) The said Maharaja Chamrajendra Wadiar Bahadur, and those who succeed him in manner hereinafter provided, shall be entitled to hold possession of and administer the said territories as long as he and they fulfil the conditions hereinafter prescribed. (3) The succession to the administration of the said territories shall devolve upon the lineal descendants of the said Maharaja Chamrajendra Wadiar Bahadur, whether by blood or adoption, according to the rules and usages of his family, except in case of disqualification through manifest unfitness to rule. Provided that no succession shall be valid until it has been recognized by the Governor-General in Council. In the event of a failure of lineal descendants, by blood and adoption, of the said Maharaja Chamrajendra Wadiar Bahadur, it shall be within the discretion of the Governor-General in Council to select as a successor any member of any collateral branch of the family whom he thinks fit. (4) The Maharaja Chamrajendra Wadiar Bahadur and his successors (hereinafter called the Maharaja of Mysore) shall at all times remain faithful in allegiance and subordination to Her Majesty the Queen of Great Britain and Ireland and Empress of In- dia, her heirs and successors, and perform all the duties which, in vir- tue of such allegiance and subordination, may be demanded of them. (5) The British Government having undertaken to defend and protect the said territories against all external enemies, and to relieve the Maharaja of Mysore of the obligation to keep troops ready to serve with the British army when required, there shall, in consideration of such undertaking, be paid from the revenues of the said territories to the British Government an annual sum of Government rupees thirty-five lakhs in two half- yearly instalments, commencing from the said twenty-fifth day of March, 1881. 214 LAW AND POLICY OF ANNEXATION (6) From the date of the Maharaja's taking possession of the territories of Mysore the British sovereignty in the island of Seringapatam shall cease and determine, and the said island shall become part of the said territories, and be held by the Maharaja upon the same conditions as those subject to which he holds the rest of the said territories. (7) The Maharaja of Mysore shall not, without the previous sanction of the Governor-General in Council, build any new fortresses or strongholds, or repair the defences of any existing fortresses or strongholds in the said territories. (8) The Maharaja of Mysore shall not, without the permission of the Governor-General in Council, import or permit to be im- ported into the said territories arms, ammunition, or military stores, and shall prohibit the manufacture of arms, ammunition, and military stores throughout the said territories, or at any specified place therein, whenever required by the Governor- General in Council to do so. (9) The Maharaja of Mysore shall not object to the mainte- nance or establishment of British cantonments in the said territories, whenever and wherever the Governor-General in Council may consider such cantonments necessary. He shall grant free of all charge such land as may be required for such cantonments, and shall renounce all jurisdiction within the land so granted. He shall carry out in the lands adjoining British cantonments in the said territories such sanitary measures as the Governor-General in Council may declare to be necessary. He shall give every facility for the provision of supplies and articles required for the troops in such cantonments, and on goods imported or purchased for that purpose no duties or taxes of any kind shall be levied without the assent of the British Government. (10) The military force employed in the Mysore state for the maintenance of internal order and the Maharaja's personal dignity, and for any other purposes approved by the Governor-General in Council, shall not exceed the strength which the Governor-General in Council may from time to time fix. The directions of the Governor-General in Council in respect to the enlistment, organiza- tion, equipment, and drill of troops shall at all times be complied with. (11) The Maharaja of Mysore shall abstain from interference in the affairs of any other state or power, and shall have no com- APPENDIX 215 munication or correspondence with any other state or power, or the agents or officers of any other state or power, except with the previous sanction and through the medium of the Governor- General in Council. (12) The Maharaja of Mysore shall not employ in his service any person not a native of India without the previous sanction of the Governor-General in Council, and shall, on being so required by the Governor-General in Council, dismiss from his service any person so employed. (13) The coins of the Government of India shall be a legal tender in the said territories in the cases in which payment made in such coins would, under the law for the time being in force, be a legal tender in British India ; and all laws and rules for the time being applicable to coins current in British India shall apply to coins current in the said territories. The separate coinage of the Mysore state, which has long been discontinued, shall not be revived. (14) The Maharaja of Mysore shall grant free of all charge such land as may be required for the construction and working of lines of telegraph in the said territories wherever the Governor- General in Council may require such land, and shall do his utmost to facilitate the construction and working of such lines. All lines of telegraph in the said territories, whether constructed and main- tained at the expense of the British Government, or out of the revenues of the said territories, shall form part of the British telegraph system, and shall, save in cases to be specially excepted by agreement between the British Government and the Maharaja of Mysore, be worked by the British Telegraph Department ; and all laws and rules for the time being in force in British India in respect to telegraphs, shall apply to such lines of telegraph when so worked, (15) If the British Government at any time desires to construct or work, by itself or otherwise, a railway in the said territories, the Maharaja of Mysore shall grant free of all charge such land as may be required for that purpose, and shall transfer to the Governor- General in Council plenary jurisdiction within such land; and no duty or tax whatever shall be levied on through traffic carried by such railway which may not break bulk in the said territories. (16) The Maharaja of Mysore shall cause to be arrested and surrendered to the proper officers of the British Government any 2i6 LAW AND POLICY OF ANNEXATION person within the said territories accused of having committed an offence in British India, for whose arrest and surrender a demand may be made by the British Resident in Mysore, or some other officer authorized by him in this behalf; and he shall afford every assistance for the trial of such persons by causing the attendance of witnesses required, and by such other means as may be necessary. (17) Plenary criminal jurisdiction over European British sub- jects in the said territories shall continue to be vested in the Governor-General in Council, and the Maharaja of Mysore shall exercise only such jurisdiction in respect to European British subjects as may from time to time be delegated to him by the Governor-General in Council. (18) The Maharaja of Mysore shall comply with the wishes of the Governor-General in Council in the matter of prohibiting or limiting the manufacture of salt and opium, and the cultivation of poppy, in Mysore; also in the matter of giving effect to all such regulations as may be considered proper in respect to the export and import of salt, opium, and poppy heads. (19) All laws in force and rules having the force of law in the said territories when the Maharaja Chamrajendra Wadiar Bahadur is placed in possession thereof, as shown in the schedule hereto annexed, shall be maintained and efficiently administered, and, except with the previous consent of the Governor-General in Council, the Maharaja of Mysore shall not repeal or modify such laws, or pass any laws or rules inconsistent therewith. {20) No material change in the system of administration, as established when the Maharaja Chamrajendra Wadiar Bahadur is placed in possession of the territories, shall be made Avithout the consent of the Governor-General in Council. (21) All title-deeds granted and all settlements of land revenue made during the administration of the said territories by the British Government, and in force on the said 17th day of March, 1 88 1, shall be maintained in accordance with the respective terms thereof, except in so far as they may be rescinded or modified either by a competent Court of law, or with the consent of the Governor-General in Council. (22) The Maharaja of Mysore shall at all times conform to such advice as the Governor-General in Council may offer him with a view to the management of his finances, the settlement APPENDIX 217 and collection of his revenues, the imposition of taxes, the admin- istration of justice, the extension of commerce, the encouragement of trade, agriculture, and industry, and any other objects connected wfth the advancement of His Highness's interests, the happiness of his subjects, and his relations to the British Government. (23) In the event of the breach or non-observance by the Maharaja of Mysore of any of the foregoing conditions, the Governor-General in Council may resume possession of the said territories and assume the direct administration thereof, or make such other arrangements as he may think necessary to provide adequately for the good government of the people of Mysore, or for the security of British rights and interests within the province. (24) This document shall supersede all other documents by which the position of the British Government with reference to the said territories has been formally recorded. And, if any question arise as to whether any of the above conditions has been faithfully performed, or as to whether any person is entitled to succeed, or is fit to succeed to the administration of the said territories, the decision thereon of the Governor- General in Council shall be final. (Signed) Ripon, Viceroy and Governor-General. Fort Willia?n, 1st March, i88r. LAGOS PROTECTORATE ORDER IN COUNCIL (The London Gazette, January 5, 1900) At the Court at Windsor, the 27th day of December, 1899. Present, The Queen's Most Excellent Majesty. His Royal Highness the Duke of Connaught and Strathearn. Mr. Balfour. Mr. Ritchie. Whereas Her Majesty hath acquired power and jurisdiction within divers countries on the West Coast of Africa, near or adjacent to Her Majesty's Colony of Lagos : And whereas by an Order in Council bearing date the twenty- ninth day of December one thousand eight hundred and eighty- seven, it was provided that it should be lawful for the Legislative Council for the time being of the Colony of Lagos, by Ordinance or Ordinances, to exercise and provide for giving effect to all such 14A 2i8 LAW AND POLICY OF ANNEXATION powers and jurisdiction as Her Majesty might, at any time before or after the passing of the said Order in Council, have acquired in the said territories adjacent to the Colony of Lagos, subject to such provisions as are in the said Order in Council described and set forth : And whereas, it is expedient to define the limits within which the powers and jurisdiction of Her Majesty in the said territories under the provisions of the said Order in Council shall in future be exer- cised. Now, therefore. Her Majesty, in pursuance of the powers by " The Foreign Jurisdiction Act, 1890," or otherwise in Her Majesty vested, by and with the advice of Her Privy Council, is pleased to order, and it is hereby ordered, as follows : I. This Order may be cited as the Lagos Protectorate Order in Council, 1899. II. Subject to the provisions of the said Order in Council of the twenty-ninth December one thousand eight hundred and eighty- seven, the Legislative Council for the time being of the Colony of Lagos may by Ordinance or Ordinances, exercise and provide for giving effect to all such powers and jurisdiction as Her Majesty may, at any time either before or after the passing of this Order, have acquired or may acquire within such of the territories of the West Coast of Africa near or adjacent to the Colony of Lagos as are within the limits of this order. Provided that nothing in any such Ordinance or Ordinances con- tained shall take away or affect any rights secured to any natives in the said territories by any Treaties or arrangements made on behalf or with the sanction of Her Majesty, and that all such Treaties and agreements shall be and remain operative and in force, and that all pledges and undertakings therein contained shall remain mutually binding on all parties to the same. IIL The limits of this Order are the territories of Africa bounded by the following line, ... ... ... ... • • • Provided always that such parts of territories so bounded as are within that portion of Her Majesty's dominions which is known as the Colony of Lagos, shall not be included within the limits of this Order. The territories within the limits of this Order shall be known and described as the Lagos Protectorate. IV. This Order shall be published in the Gazette of the Colony of Lagos, and shall thereupon commence and come into operation ; APPENDIX 219 and the Governor shall give directions for the publication of this Order at such places, and in such manner, and for such time or times as he thinks proper for giving due publicity thereto within the Lagos Protectorate. And the Right Honorable Joseph Chamberlain, one of Her Maj- esty's Principal Secretaries of State, is to give the necessary direc- tions herein accordingly. A. W. FiTz Roy. INDEX OF CASES AMERICAN American Ins. Co. v. Canter, 5, 23, 61, 63, 123, 131 American Publisliing Co. v. Fisher, 38 Apollon, The, 24, 156 Beard v. Burts, 117 Betancourt v. Life Ass'n, 185 Black V. Jackson, 38 Bollman's Case, 36, loi Boyd V. Thayer, 62, 63 Bradfield v. Roberts, 141 Brien v. Williamson, 34 Callan v. Wilson, 38 Capital Traction Co. v. Hof., 40 Cessna v. U. S., 133 Cherokee Nation v. Georgia, 15, 94 " Tobacco, 17 Chicago, etc., R. v. McGlinn, 133, 134 ■—HThisholm v. Georgia, 64 City of Panama, The, 40 Civil Rights Cases, 67 Cohens v. Virginia, 82 Cross V. Harrison, 77, 79, 80, 107, 112, 134 Davis V. Beason, 140 Doe V. Braden, 17 .^ Elk V. Wilkins, 57 Faxon v. U. S., 143 Field V. Clark, no Fleming v. Page, 5, 13, 79 Fong Yue Ting v. U. S., 16, 40 Fort Leavenworth R. v. Lowe, 147 Foster v. Neilson, 7, iSo France v. Connor, 124 , Fremont e/. U. S., 135 Gassies v. Ballon, 50 Gelston v. Hoyt, 7 Geofroy t/. Riggs, 17,39 Gibbons v. Dist. Columbia, 88 V. Ogden, 94, 97 Goetze v. U. S., 15, 19, 24, 26, 74 Groves v. Slaughter, 33, 93, 94 Hart V. Burnet, 132 Headmoney Cases, 16 Holden v. Hardy, 138 Honomu Sugar Co. v. Zeluch, 69 Hylton V. U. S., 85 Jaremillo v. Romero, 69 Johnson v. Mcintosh, 2, 5 Jones -'. U. S., 5, 7, 179 Keene v. McDonough, 132 Keith V. Clark, 98 Knowlton v. Moore, 87 Lattimer v. Poteet, 17 Legal Tender Cases, 94 Leitensdorfer z/. Webb, in Lem Moon Sing v. U. S., 59 License Cases, 17 Loughborough v. Blake, 8, 40, 42, 78, 85,87 McAllister v. U. S., 40 'Marbury v. Madison, 47, 99 Martin v. Mott, 109 Maynard v. Hill, 30, 40 Mena v. Le Roy, 132 Milligan's Case, 107 Mitchel V. U. S., 127 Mormon Church v. U. S., 40, 71, 140 Murphy v. Ramsey, 40, 71 National Bank v. Guthrie, t,^ " " V. Yankton, 39, 40, 71, 124 New Orleans v. De Armas, 9, 28 « " V. U. S., 17, 131 " " 7: Winter, 39 221 222 INDEX OF CASES Ortiz, ex parte, 38 Picton's Case, 131 Pollard -'. Hagan, 37, 131, 137 Pollock V. Trust Co., 85 Protector, The, 107 Reform, The, 96 Resolution, The, 3 Robertson v. Baldwin, 49, 68 Ross's Case, 26, 41, 50, 76, 156 Ryder v. Cohen, 132 Sah Quail's Case, 66 Scott f. Sandford, 8,"40,'7o, 123 S^re V. Pitot, 122 Shively v. Bowlby, 5,^9, 124 Siebold's Case, loi Slaughter-house Cases, 40, 53, 69 Snow V. U. S., 39 Springville v. Thomas, 38 Stoughtenburgh v. Hennick, 92 Strader v. Graham, 40 Strother v. Lucas, 132 Stuart V. Easton, 185 Talbott V. Silver Bow County, 39 Texas v. White, 58 Thirty Hogsheads of Sugar, 13 Thomas v. Gay, 17 Thompson v. Utah, 38 Townsendz*. Greeley, 132 U. S. z/. Bevans, 24 " V. Cervantes, 142 " V. Cruikshank, 55 " V. E. C. Knight Co., 96 " V. 43 Gallons of Whisky, 95 " V. Kagama, 123 " V. Lynde, 180 " V. Moreno, 132 " V. Old Settlers, 16 " V. Percheman, 132 " V. Repentigny, 59 " V. Rice, 13, 79 " V. Ritchie, 143 " V. SevelofT, 134 " V. The Peggy, 17 U. S. V. Wong Kim Ark, 54, 56, 57, 69 " V. Yorba, 107 Utter V. Franklin, 39 Van Home's Lessee v. Dorrance, 47 Ware v. Hylton, 17 William, The Brig, 93 Yerger's Case, loi ENGLISH Advocate-Gen. v. Ranee Surnomoye Dossee, 136 Anderson's Case, 100 Brown's Case, 21 Calvin's Case, 25 Campbell v. Hall, 13,31, 132 Damodhar Gordhan v. Deoram Kanji, 147 Billet's Case, 100 Emperor of Austria v. Day, 7 Exchange Bank v. The Queen, 136 Falkland Islands v. The Queen, loo, 136 Foltina, The, 13 Heathfield v. Chilton, 6 La Cloche v. La Cloche, 137 Lang V. Reid, 137 Lindsay v. Oriental Bank, 136 Natal, Lord Bishop of, 99 Parlement Beige, The, 17 Phillips V. Eyre, 116 Speaker v. Glass, 100 Sprigg V. Sigcau, loo Stepney Election Petition, 25 Walker v. Baird, 17 \ GENERAL INDEX Alaska, 9, 22, 36, 37, 66, 80, 119 Algeria, 64 Alienationof territory (see also Cession) propriety of, 144 right of, 146 Allegiance, 24, 52, 63, 64, 183 AUiancf, 3 Annexation, right of, 4 method of, 5-7, 13 purpose of, 8-10 Annexed territory, status of, 12, 23 old laws of, 112, 130 vested rights in, 132, 142 courts of, 132 Anson, Sir William, no Arbitrary power, 37, 48, 50, 73, 116, 198 Asia, 159, 166, 168 Australia, 21 Belligerent right, 107, 177 Benton, Mr., 37 Bill of rights, 73 Blackburn, Justice, 21 Bradley, Justice, 40, 53, 75 Brewer, Justice, 40 Bryce, Mr., 48 Calhoun, Mr., 27 California, 9, 23, 35, 37, 80, 86, 106, 108, III, 116, 131, 137, 142, 165 Canada, 21 Cession, right of, 26, 146 stipulations regarding, 18, 23 Chase, Chief Justice, 107 China, 148, 159 Chinese, 59, 68 Citizens, natural-born, 52 naturalized, 63 Civil law, 138 rights, 10, 71 Civil War, the, 4, 51, 58, 96, 98, 107, 120, 130, 165 ClifTord, Justice, 40 Coaling stations, 8 Cockburn, Chief Justice, 21, 100 Commerce, federal power over, 90-98 domestic — taxation of, 78 embargo on, 91 foreign, 158, 161 taxation of, 76 Commercial unity of United States, 78, 82, 91, 102, 104, 130 law of United States, 138 Congo State, 24 Congress — subordinate to Constitution, 29 distinguished from Parliament, 45, 47 depository of legislative power, iio- 121 territorial jurisdiction of, 24, 25, 27, 108, 121, 157,173, 176, 180 power over Territories, 70, 88, 89, 121-130 annexation by, 7, 13, 180, l8l alienation by, 148 abrogation of treaty by, 16 purview of acts of, 134, 1 81 Conquest, 104, 167 title by, 5, 13 effect of, on treaty-making power, 16, 19. 147 Consent of the governed, 12, 60, 165 Constitution of U. S. — the foundation of U. S.,45 inherent force of, 29, 102, 134 the source of authority, 46 ineffective beyond U. S., 50, 76, 156, 173 theory of geographical limitation, 34 theory of restriction to States, 35, 66, 78 amendment of, 105 effect of, in annexed territory, 98, 148 effect of withholding, 103 subordination of treaties to, 17, 20 13th Amendment of, 16 223 224 GENERAL INDEX Constitution ofU. S. (continued) — 14th Amendment of, 52, 56 15th Amendnaent of, 73 Contract labor, 68 Cooley, Judge, 68 Courts, jurisdiction "of, 76,98-101, 128 consular, 41, 188 territorial, 40 Cuba, 7, 14, 20, 25, 63 status of, 173-190 Curtis, Justice, 40, 116, 120 Danish West Indies, 69 Day, Judge W. R., 20, 72 Field, Justice, 40 Florida, 9, 36, 57, 61, 63, 122, 137 "Foreign" country, 14-16, 18, l^, 21, 24, 174 port, 79 Foreigners, status and rights, 57, 182 France, colonies, 43 plebiscite, 60 treaties of cession, 147 French territory, 21 Germany, il, 43, 50 Gray, Justice, 8, 40 Great Britain — Parliament, 31, 44, 47, 1 10 the Crown, 13,31,99, no, 120, 124, 128, 147 British territory, 21 colonies, 21, 44, no, 125, 136 contrasted with United States, 44,45, 67, 99, loi, no, 112 Guano Islands, 8 Habeas corpus, 100, loi Hamilton, Mr., 73 Hanolaux, AT., 21 Hanover, 24 Harlan, Justice, 40, 47 Harrison, Mr., 65 Hawaii, 6, 9, 59 Home market, 90 House of Representatives — powers regarding annexation, 22 House of Representatives (continued) — powers regarding cession, 148 Indemnity — Acts of, 113 for cost of war, 104 Indians, II, 15, 57, 66, 94, 95, 186 Insurrection, 3, 51, 58, 108, 120, 177 International Law, 5 duty of occupant under, 12, 174 private, 184 Italy, 43 Jackson, Gen., 36 Japan, 41, 63 Java, 43 Jefferson, President, 119, 131 Jury, trial by, 38 Kearny Code of New Mexico, no Lacombe, Judge, 185 Language of annexed country, 138 Lincoln, President, 130 Louisiana, 9, 35, 36, 79, 126, 131, 133, 137, 165 Lucas, Mr. C. F., 125 MacArthur, Gen., 161 McKinley, President, 119, 143, 149 Madagascar, 21 Mansfield, Lord, 6, 13, 31 Marshall, Chief Justice, i, 5, 8, 15, 22, 24, 40, 46, 61, 63, 82, 87, 94, 97, 122, 123, 131, 179 Matthews, Justice, 40 Mexico, 23, 79 MiHtary government, 106-109, 114,132, 176 occupation, 106, in, 174, 176, 189 Militia, 109, 154 Miller, Justice, 40 Mohammedan tribes, 57, 66, 140, 151, 164 Monroe Doctrine, 166, 169 National title to land, 2, 3 Nationality of territory, 20, 183 GENERAL INDEX 225 Nationality (continued) — persons, 20 change of, 61 election of, 20, 59, 148 Naturalization Acts, 54 Oath of office, constitutional, 45 Passports, to Cubans, 187 Peonage, 68 Philippine Commission — First, lOl, 113, 152 Second, 113, 143, 153 Philippine Islands — title of Spain to, I title of U. S. to, 10 description of, 1 1 part of U. S., 27, 144 insurrection in, 51, 58, 129, 161-166 Tagals, 58 value of Constitution in, 98 neglected by Congress, 118 administration of local affairs, 124 bill for government of, 126 friars in the, 142 their relation to trade, 159 reasons for alienating, 158 protectorate over, 148 neutralization of, 155 Plebiscite, 59, 148 Political franchises, 70 questions, 7, 8, 28, 32, 105, 107, 148, 179. 185 power in U. S., 13, 42 institutions in annexed territories, 130. 131 Polk, President, 37, 119 Polygamy, 140 Porto Rico, 6, 7, 14, 15, 22,24, 25. 35. 81, 107, 116, 135 Government Act, 32, 82, 108 President of U. S. — povi'ers in U. S., 31, 52, 76, 80, 81, 106-121, 144 abroad, 25, in, 176 distinguished from British Crown, 13, 31,99, no, 120, 124, 128, 147 Protectorate, 10, 26, 46, 148, 175 Religious institutions, 133, 140 Russia, 43, 186 Salisbury, Lord, 60 Samoa, 155, 157 Self-government, capacity for, 153 Settlement, title by, 5 Seward, Mr., 60 Slavery, n, 33, 35, 37, 65, 70, 92 Spain, title to Philippines, i title to Sulu Islands, 10 commercial privileges in Philippines, 18 Spanish residents in islands, 20, 60, 184 law, 135, 183 "State," 39, 174, 187 States, union of, 24 States of the Union, status and powers, 13, 39, 42, 49, 97 admission of, 8, 28, 32 cession of territory, 147 Story, Justice, 24, 36, 92, 94, 156 Subjects, 64, 183 Suffrage, 49, 55, 71, 73 Sulu Islands, 10, 67, 146 Tagals, 58 Taney, Chief Justice, 5, 8, 40, 123 Tariffs, 90 (See Commerce, Taxation) Taylor, President, 116 Taxation, federal, 36, 49, 84-87 uniformity, 18,34, 77, 82, 86, 90, n2 in Territories, 88-90 Territories of U. S. — status of, 15,39,53 power of Congress over, 122 "popular sovereignty" in, 70 administration of, 83, 88, 124 Texas, 6, 9 Treaty, construction of, 16-19 subordinate to Constitution, 1 7 of annexation, 5-7, 59, 148 ratification of, 22 the making of a, 13, 147 Treaty of Paris, 3, 10, 16, 17, 22, 132 Article I, 1 73. 174, 189 Article IV, 18 226 GENERAL INDEX Treaty of Paris (continued) — Article VIII, 142 Article IX, 18, 20, 62, 63, 183 Treaty of San Ildefonso, 153 " United States," meanings of, 12-15, 42, 52, 78, 188 " United States of America," 35, 45 Utah, 40, 54 Uti possidetis, 180 Waite, Chief Justice, 40 War (see Belligerent right, Conquest, Insurrection) — change of title by, 2, 5 termination of, 107 Webster, Mr., 31, 37 Wilson, Justice, 64, 73 ERRATA Page 20, last line, /or Cogordon rea^/ Cogordan. Page 45, line 3,/^r is not in line with read x?, in line with. UNIVERSITY OF CALIFORNIA, LOS ANGELES MO JUi APR i I UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. 001011990 Form L UNIVERSITY of CALIFORNIA AT LOS ANGELES (y 3 1158 00240 0819 ull»rHr,.. "^■llihlll AA 000 520 '"f^^r'^Cnr. '^G? ,