ACQUISITION OF TERRITORY. Banger of Taking- the Pliilippines— Their Retention Bodes Nothinj? but Evil. SPEECH OK HON. JOSEPH L. RAWLINS, In tke Senate of the United States, Wednefiday, February 1, 1S9D. Mr. RAWLINS. I ask for the reading of the joint resolution iutroclnced by the Senator from Missonri [Mr. Vest] . The PRESIDENT pro tempore. The Chair lays before theSen- ate joint resolution No. 191, v.'hich will be read. The Seoretarj' read the joint resolution (S. R. 191) declaring that under the Conslitulion of the United States no power is given to the Federal Government to acquire territory to be held and governed permanently as colonies, as follows: Resolved b}/ the Senate and House of Representatives of the United States of America in Congress assembled, Tiiat under the Constitution of the United States uo power is given to the Federal Government to acquire territory to be held and governed permanently as colonies. The colonial system of European nations can not be established under our present Constitution, but all territory acquired by the Government, except such small amount as may be necessary for coaling stations, correction of boundaries, and similar governmental xjurposcs, must be acquired and gov- erned with the purpose of ultimately organizing such territory into States suitable for admission into the Union. Mr. RAWLINS. Mr. President, the atmosphere just now seems to be clouded with perplexing problems. Everyone, I presume, is imbued with a wish while adhering to justice to do the best he can for his country. Heretofore I have not been opposed to expan- sion. This nation has been one of growth in population from 3,000,000 to 75,000,000 people, and in territory from the shores of the Atlantic across the continent and out into the swelling waters of the Pacific. Millions of homes of our sturdy and patriotic peo- ple and magnificent States have been the fruits of our expansion. Some of us can not afford to cut the limb which supports us be- tween ourselves and the trunk of the tree. Territorial expansion with commensurate extension of consti- tutional freedom is twice blessed. It blesses them that give and them that receive. No man can set an artificial barrier to the inevitable progress of the American people. So far our progress has been that of freedom and not of tyranny. Mr. President, when our fathers christened this Republic they gave it a name which they doubtless deemed sufficient to cover all the exigencies and developments of its future career. That name was the United States of America. We might stretch out 3698 to tlie north ami to the south until wc^ encompassed the two con- tinents and all the islands of the Caribheau Sea. and still we niiglit ai)propi'iately bear the name which our t'ather.s gave us. Mr. President, the mere idea of cxpansi(.>n, of extending our borders, does not alarm me so much as some of the startling doc- trines advanced in its justification. We ;ire to-day confronted with the question as to wliether we shall change the name of tlie Republic: and if so, wlnit slndl the new iianK; be. and wb.at shall it sj-mbolize? riliall it be the United States of America and the Kingdom of tlie Philii)pip.es or shall it be the Empire of America and Asia? Already there are spectral visions of ihis in tlie politi- cal sky. It isnotnccessarj", in order to up'hoUl the rigid and power of this Governnieiit to acquire territory, to hold territorj-, and govern its inhabitants, to maintain that it is an absolute monarchy or an imperial despotism. The right to acquire and liold property is an_ ordinary one. It belongs to every private individual. It is incident to the existence of every corporation, wlK^ther public or private, with tlie implied limitation that it must be to subserv<* the obieL-ts and purposes of the corporation. This nation pos- sesses that power. No one disputes it. But it is a pov.-er not e.K- isting independent of and apart from the Constitution, but is derivative from the express authority which that instrument con- fers upon the Federal Government. Tills being an implied power, there are, of course, no express limitations upon it, but there is always the implied one that the territory acquired must be to subserve some of the great objects and ends for which the Government itself was created. If we should concede for the purposes of the argument that the power to acquire and to hold territorj' was unlimited, it would by no means follow as an implication from that, or as a correlative proposition, that this nation would have absolute and uncontrolled power over the inhabitants which would thereby become subject to our jurisdiction. The arm of this nation, so potent for purposes of aggression or defense against a foreign foe, becomes impotent the moment it is turned to the oppression of any of our people, whether living in a State or in a Territor3^ ]\Ir. President, there liave been two schools of political thought in this countrj'. Both, I understand, have agreed that the Con- stitution is the iieople's grant of jiower to the Government of the United States. They have differed only as to the latitude of the construction of the grant. Both alike have agreed that all iiowor not granted according to the one rule of interpretation or the other and not prohibited by the Constitution and its amendments to the States is reserved to the States and to the people. But a new school of constitutional hermeneutics seems to have arisen in the person of the distinguished Senator from Connecticut [Mr. Platt], I quote his exact language. He says: I propose to maintain that the T^'nited States is .1 nation; tliat asanation it possesses every sovereign power not reserved in its Constitution to the States or the people. Mr. President, tlie power to define and punish crime, a part of the sovereign ])olice power, is nowhere in the Constitittion re- served to tiie States. Therefore, according to the logic of the Senator, the States do not po.ssess that ])ower. The sovereign power of eminent domain is nowhere in the Constitution reserved to the States. Tlieref ore the States do not possess it. The power 3693 to create corporations, recognized as tlie exercise of a sovereign power, is nowhere in the Constitution reserved to the States, Therefore tiie States do not possess it. So the proposition of the Senator reduces to absurdity. The Senator from Connecticut affirms that this is a nation; that it is possessed of plenary and absolute power, especially as relates to all its international relations and to the territories which may become subject to its jurisdiction. Mr. President, what is this thing which the Senator calls a na- tion, which he so idolizes and exalts? It is not the States or the people. They, according to his proposition, constitute no part of it. They possess only such crumbs of power as may be reserved to them expressly in the Constitution itself. Is it the President, the Executive, vWio is the autocratic pos- sessor of this uncontrolled and uncontrollable authority; or are we, the individuals who compose the Congress of the United States, the more than Forty Tyrants whose crown is to be placed upon a long pole with the command that the people as they pass by must fall down and worship it? Mr. President, it is not in the nature or essence of our institu- tions, and it is an impossible conception, that this Goverrimeiit, in any part of its internal structure and administration, can be a bald absolutism — a demon of omnipotence — to stalk forth any- where, either in State or Territory, to oppress or destroy. It is claimed by the Senator from Connecticut and reiterated by the Senator from Massachusetts [Mr. Lodge] that the Constitu- tion is not operative except within the limits or boundaries of the States, and that it can only be made to extend, and only does ex- tend, to the Territories, under and by virtue of an act of Congress, The Senator from Massachusetts [Mr. Lodge] uses this language: I believe that the pov'er of the United States in any Territory or posses- sion outside the limits of the States themselves is ahsolute. with the single exception or tne limitation placed upon siicli outside possessions by the thir- teenth amendment. Such, at all events, has been the policy of the United States and its course of action iu practice. Secondly, he says: Without a legislative act the Constitution does not extend to the Territo- ries or other possessions of the United States outside the limits of the States themselves. I refer to this in order to make examination of it to see whether there is any proper foundation for these assertions. If it were true that the Constitution of the United States is not operative at all beyond the limits of a State, it proves too much for the pur- pose of those who assert it. If the moment you step outside of a State the Constitution ceases to be. is a nonentity, is not to be re- ferred to, because it is not a vital and living force there, what follows? The 447 individuals who constitiite the Congress of the United States, the man who may occupy the Presidential chair, at once cease to be clothed with any official character or possessed of any power whatsoever. No one of the departments of this Government, either the executive, the .iudicial, or the legislative, can exercise authority anywhere, either in the States or the Ter- ritories, except under and by virtue of the Constitution. Strike away the Constitution and they are emasculated of all authorit}'. They can not take any authoritative step. They would be pos- sessed of no more power than that which pertains to every private individual. Mr. President, it may be that the Constitution in some of its 8608 4 provisions is not self-executing, but that is no less true in a Ter- ritory than in a State. Until Congress has provirlecl for tribunals inferior to the Supreme Court and clothed them with jurisdiction to enforce rights and to redress wrongs, the inhabitants of the State where there has been a violation of anj- of the fundamental rights secured to them by virtue oi the Constitution may be with- out opportunity or means of redress: it is possible they may be imprisoned often unlawfully, without due process of law, and be without the remedj' of the writ of habeas corpus, but in the mean- time, until Congress has performed the duty devolved upon it by the Constitution and created such tribunals and clothed them with the necessary jurisdiction, are those rights nonexistent? Cer- tainly not. If they are infringed, it is a violation of right; and if for the time being there is no tribunal competent to grant redress, as soon as such tribunal is created and clothed with the necessary power, the in;lividual whose right is intringcd may go into court and seek the form of redress which may then bo possible. Mr. MASC^N". Will the Senator yield for a (luestion? The PRESIDENT pro tempore. Does the Senator from Utah 3'ield to the Senator from lUinoioV Mr. RAWLINS. I yield. Mr. MASON. Has the Senator discussed at all the statute which covers, or evidently was intended to ccver, the suggestion he has been making? Section 1077 of the Revised Statutes provides that — All persons — It does not say all citizens, but — All persons within the jurisdiction of the United St.ites shall have the franio ri^lit in every State and Territory to mako .and enforeo contracts, to sue, 1)0 i)artics, tfivc evidence, and to the full and eiiual benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall bo subject to like pnnislnnont, ijains, penalties, taxes, licenses, and e.Kacliuns of every kind, and to no other. Would not that statute extend all the benefits of the Constitution to all persons who are within the jurisdiction of the United States, even though tlie machinery for giving the constitutional benefit had not been established? Mr. RAWLINS. Mr. President, I am not now considering the question of the necessity or tlie force of a statute of Congress. I am considering the question as to the scope and operation of the Constitution itself. The proposition I make is that in the States some of the provisions of the Constitution may not be self-execut- ing, but that this is no more the case in the Territories than in the States. Turning now to the condition in a Territory where the territory is acquired from another government, all municipal laws and regu- lations in force at the time of the acquisition continue to be in force after that time; that is, until they are superseded by com- petent legislation, subject, however, to this qualification, that they must be so modified as to conform to the fundamental prin- ciples established by the constitution of the Government succeed- ing to the sovereignty and the public policies which grow out of such principles. That was the rule which was applied with re- spect to the Louisiana purchase and with respect to the acquisi- tion from Mexico. During the interregnum, and from the moment the territory i.s acquired, the Constituti(m of the United States and all the provi- sions of that instrument, in so far as they are not essentially 308 uusuited and inapplicable to tiie condition of a territory, become proprio vigore applicable thereto and control all the municipal laws and regulations which may have been in existence and may have controlled the people up to that time. Mr. President, it is true tliat Congress may temporarily delay or refuse to perform its duty of providing a form of government and judicial tribunals in a Territory, as it might refuse to perform its constitutional duty in providing for courts inferior to the Supreme Court withiu the borders of a State. But we are not to indulge in an}' presumption that Congress will neglect to perform any duty which devolves upon it under and by virtue of the author- ity conferred by the Constitution. Let us proceed one step farther in this matter. There are cer- tain provisions of the Constitution which in their nature are not and can not be made applicable to a Territory. The framers of the Constitution contemplated that the United States would ac- quire and hold territory, and that such territory would be incor- porated into the Union as States upon an equal footing with the original States in due course of time. It was presumed that the Territorial situation would in every instance be but temporary. Allusion has been made to some decisions of the Supreme Court of the United States and the practice of the Govei-nment that the Territorial courts provided for by legislative enactment are not constitutional courts; that they are not courts inferior to the Su- preme Coiirt; that the judges of those courts, when appointed, do not hold their offices during life or good behavior. That pro- vision is unsuited to the situation in a Territory, because the framers of the Constitution, as a part of the interpretation of that instrument, contemplated that the Territorial condition would in every instance be temporary. The inferior tribunals referred to were designed to be permanent, and therefore the tenure of the oiJice of the judges appointed was to be during life or good be- havior. That provision was unsuited to the condition which the framers of the. Constitution contemplated would exist in respect to the Territories. Mr. President, I have asserted the proposition that no author- ity can be exercised by any branch or department of this Govern- ment in the Territories except under and by virtue of the Consti- tution. Take away the Constitution, and who is it that possesses this absolute control of the Territories? Is it Congress? But we are met at the very threshold with the question: What is Con- gress? We have no means of ascertaining its identity or charac- teristics without referring to the Constitution. How shall it man- ifest or express its legislative will in respect to the Territories in accordance with the methods prescribed in the Constitution or without any regard to them? Is it necessary in order to give validity to the attempt to exer- cise legislative authority, to obtain the concurrence of the Execu- tive; and if so, why, except that the Constitution is in force in respect to that act, and defines and limits and qualifies the power of Congress? If the act of Congress is invalid unless it receives the concurrence of the Executive and is passed in accordance with the forms of procedure which that instrument prescribes, must it not also be in conformity with all other limitations upon the exer- cise of Congressional authority? There is one case in the Supreme Court, which arose in the Dis- trict of Columbia, which is an apt illustration of the contention 1 3693 fiTO now maldng. The House of Representatives made an order. Kilbonvn refused to obey tliat order. The House of Representa- tives passed a resolution directing its Sergeant-at-Arnis to arrest and detain Kilbouru tor a viohition of the order. That order was complied witli. and Kilbourn apjjealed to the court. He claimed tliat no authority had been couferied upon the House of Repre- sentatives by the Constitution to make the original order; that the order was invalid; that all tlie proceedings based upon it were ecjually invalid, :uid that liis imprisonment was unlawful. He was discharged upon a writ of habeas corpus. Afterwards Kilbouru sued tlie h-ergeant-at-Arms of the House of Representatives and certain members of that body for damages resulting to him by reason of his unlawful imprisonment, and he recovered a verdict for a very large amount, which was carried to the Supreme Court of the United States, and there affirmed. The unanimous opinion which was delivered in that case is an instructive one. Tlie court said that the House of Representatives is not pos- ses.sed with the omnipotent powers of the Hou.se of Parliament of Great Britain, but possesses only such powers as have been ex- pressly conferred upon it by the Constitution or such as areneces- sarj' to carry into effect the powers which have been granted. The court searched the Constitution and found that the authority which the House of Representatives undertook to exercise in that case did not exist. They therefore held that the irapriaonment of Kilbourn was unlawful and that not only the Sergeant-at-Arms, the officer of the House, but members of the House aiding and abetting in the unlawful imprisonment wci'e liable for the dam- ages which Kilbourn sustained by reason of his imprisonment. Mr. President, extend that principle to the two Houses of Con- gress, include, if you please, the Executive, api)ly the doctrine to him, and make it applicable to the District of Columbia or to any one of the Territories. Suppose that both Houses of Congress passed an act, duly approved by the President according to the metliod prescribed in the Constitution, directing the imprison- ment of some man anywhere within otir national domain who owes us allegiance and who is entitled to the reciprocal benefit of the equal and just protection of our laws and the safeguards of our liberty, and he should be imprisoned in accordance with that act, and the case was brought to our highest tribunal and a search made for the authority conferred upon Congress to make that order, to pass that act, and no such authority was found or im- plied as incidental to the existence of any authority expressly confei'red in that instrument, what would follow? The liability of those causing the imprisonment, according to the decision of the Supreme Court of the United States, for the damages which that person would suffer. There is one step fur- ther. Suppose a person were executed by command of the Presi- dent without authority derivable anywhere or by any means from our Constitution, would not the President, if such act were de- fined and recognized in the municipal law applicable to the Ter- ritorj^ as such a crime, be guilty of murder? Mr. President, we can not take one step anywhere within the limits of our national domain as affecting tiie rights of the meanest of any of the inhabitants dwelling therein owing ns allegiance except under and by virtue of the Constitution. No matter how many of the departments participate in that act, they stand upor^ the footing of more intruders, marauders, and pirates when they 3C98 infringe npon the right, the liberty, or the property of the inhab- itants anywhere witliin car nationiil domain unless in the exercise of power which has been con (erred npon them bj^ tlie fundamental law of our land. Therefore I state that to prove that the Consti- tution is only operative within the States proves too much for the purposes of those who assert it. Now, as to the proposition that the Constitution can only ap- ply to the Territories if extended there by an act of Congress, that, when we analyze it, presents a most peculiar situation. An act of Congress is an insufficient basis upon which to rest the Constitution. The Constitution can not rest upon an act of Con- gress, but an act of Congress must rest upon the Constitution, and in every instance must depend for its vabdity upon the au- tliority which that instrument confers upon Congress to enact it. What is the proposition, when it is stated in its baldest form, which is presented here to justify the procedure which is proposed in regard to the Philippines by some Senators? The proposition is that the Constitution can not be in force in the Territories except by virtue of an act of Congress. It is equally certain that an act of Congress can not be in force in the Territories except by virtue of the Constitution. In logic that is what is called a vicious circle. The Senator from Massachusetts [Mr. Lodge], stating the prop- ositions which he did — namely, that the Constitution had no op- erative force out of the States and that it could onlj- be made applicable by virtue of an act of Congress — said that such had been the course and practice of this Government. No such i^rece- dent and no such practice have been presented to us. Every prece- dent, whether legislative or judicial, is against the Senator's con- tention. All my life has been spent in a Territory. For twenty- five years I have practiced law there, and never before did I hear it seriously contended that the safeguards of the Constitution were not a vital and living force anywhere in the Territories. Time and again 1 have searched the Constitution to find safe- guards to protect the rights of my clients, citizens of a Territory, and manj' cases I have carried to the highest judicial tribunal in this land, and have been able successfully to assert and maintain those rights in that august tribunal. I say that there never has been an opinion delivered by the Su- preme Court, there has never been a hint or suggestion by any judge who has ever occupied a place in that august tribunal from the time of its creation until the present hour, which has ever as- serted that the Constitution is not proprio vigore applicable to the Territories, and does not as much safeguard, in those provisions relating to civil and individual rights, the citizens of the Territory as the citizens of the State. Let us see. I am indebted to the Senator from Colorado [Mr. Teller] for one precedent of legisla- tive practice which is, to my mind, exceedingly significant. The ordinance relating to the Northwest Territory was passed in the year 1787, before the Constitution of the United States was framed and ratiiied. The Constitution was ratified in 1789. If the Constitutionthus adopted and ratified— the prior municipal regula- tions continuing in force until superseded, according to every principle of public and international law, subject to the qualifica- tions which I have previously stated— if the Constitution of the United States did not become by virtue of its ratification operative in the Northwest Territory, then tlie ordinance of 1787, although inconsistent with the provisions of that instrument, would have 3C93 8 continued in force as it was orisiinally enacted, and there would have been no necessity to change or modify it in order to conform to the limitations and provisions of the Constitution. On August 7, 1(80, tha very year in wliich the Constitution of the United States was r;ititied, Congress, composed of men who participated in the framing of that instrument, deemed it neces- sary to pass this act, entitled '-An act to provide lor the govern- ment of the territory northwest of the Ohio River," containing this provision, which I quote: Whereas, ill order that the ordinance of the tJuited States in Conjfress as- seiiihled for the goverinnpiit of the territory northwest of the river Ohio may continue to have full effect, it is reiiuisite — Note the words— that certain provisions shoukl he made so as to adapt the same to the present Coustitutiou of the United titntcs.—tltaliitcs at Lurgc, vohuno 1, pages JJO-.W. No such act solemnly passed as that could have been passed by the men who participated in framing and adopting the Constitu- tion of our country, unless they believed tliat that instrument and all its provisions not utterly unsuited to the condition of a Terri- tory would be proprio vigore applicable thereto, and it would be necessary to make any legislation previously enacted or subse- quently enacted conform to the provisions of that instrument. Whatever may have been done after that is immaterial, especially by those who did not participate in the framing of that instru- ment. This is a cotemporaneous declaration, an interpretation of the Constitution, and asserting the fact that that instrument was originally intended to apply to the Territories and not to be con- fined in its operations within the limits of the States. There is nothing in Congressional legislation subsequent to that time which is inconsistent with the interpretation to which I have now alluded. Turn to the Supreme Court, Mr. President. At this point I may be pardoned if I briefly allude to the decisions from the first, con- stituting a part of the history of that tribunal and all its declara- tions from the beginning until now on this question. In 4 Wheaton (Loughborough vs. Blake) Chief Justice Marshall, delivering the opinion of the court, said: The eighth section of the first article gives to Congress the " power to lay and collect taxes, duties, imposts, and excises" for the purposes thereinafter mentioned. This grant is general, without limitation as to place. It conse- quently extends to all places over which the Governinent extends. If this could be doubted, the doubt is removed by the subsequent words, which mod- ify the grant. Those words are, "but all duties, imposts, and excises shall be uniform throughout the United States." It will not be contended that the modification of tlio power extends to places to which the power itself does not extend. The power, then, to lay and collect duties, imposts, and excises may be exercised, and must be e.xerci.sod, throughout the United States. Does this term designate the whole or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great Republic, which is composed of States and Territories. The Dis- trict of Columbia or the territory west of the Missouri is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than the other. Since, then, the power to lay and collect taxes, wliich includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts, and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States. I next call attention to the case of Webster vs. Reid (11 Howard, page 400), which arose in the Territory of Iowa. The defendant 3C'J8 in error. Held, recovered .iuagment against Webster for a quartoi section of laiKl. Tlie validity of the nudgment depended upon the re-ularity of proceedings under a statute ot saul Territory Tiie .ludgment in t^vor of Reid was held invalid by the bupreine Court. in this case Justice McLean said: Bv the seventh article of the amendments of the Constitution it is declared: "In^snUs at conunon law where the value n, controversy shaUe^^^^^^ flip vi>lir of trial bv iury shall be preserved. - " ■ iiic [leniroiiaij aou nndlfwhche above pr..needing was had prohibited the trial by 3'n-y m matters I't fact in which the suits were founded. lu this respect the act was '°In the case of Reynolds vs. The United States C 98 U. S 162) which arose in the Territory of Utah, Reynolds claimed that lus religious rights had been infringed in his conviction. In the opinion of the Supreme Court in this case Chief Justice Waite uses this language: Coneress can not pass a law for the government of the Territories which ..b-rnnf-oMbit the free exercise of religion. The first amendment to the Con- '?iU t?on ex reS forl^^^^^^ legislation. Religious freedom is guaran- teed everywhere throughout the United States so far as Congressional leg- islation is concerned. Mr GEAR. Is that the Iowa case? Mr. RAWLINS. No. Mr GEAR. I thought the Senator was quoting the Iowa ca!,e. Mr" TELLER. I did not want to interrupt the Senator until he was through with that case, but I now ask if tnat is not the Utah case? Mr. RAWLINS. Yes. . . ., n . .. . n^. Mr TELLER I want to call attention to the fact that Cou- gress'in 1850. in the act to establish a Territorial government tor Utah, used this language: That the Constitution and laws of the United states are hereby cxt^^^^^^^ over and declared to be in force in said Territory of Utah so fai as the same or any provision thereof may be applicable. Mr RAWLINS. I was not unaware of that, Mr. President. There has been in most of the organic acts pertaining to the Ter- ritories such a provision. That proves nothing against the con- tention which I have made. It simply discloses that the Con- cresses which passed these acts, if there was any doubt upon the question-as there had been some expressions by such men as Daniel Webster and others in Congress, but never by the Supreme Court of the United States— that the Constitution was applicable to a Territory, desired, so far as they had the power to do so, to remove that doubt. It was an indication of the sentiment which had its inception at the time of the adoption of the Constitution and which has continued down to the present, that it there was or could be any doubt upon that ground, Congress intended, so far as possible, to remove that doubt; but that is no argument that it was not in the minds of the framers of the Constitution that the safeguards of that instrument should be equally applicable to the Territories as to the States. ^ ., . -i.. , Mr TELLER. I should like to say to the Senator that it he can cite any debate in Congress previous to 18'^8 where there was a sug- gestion that the Constitution of the United States went by its own force into the Territories, I shall be very much obliged to him; but I am sure it can not be found. , , .^ , i. Mr. RAWLINS. Mr. President, I have already cited an act passed August 7, liSD, o098 10 Mr. TELLER. That was for the purpose of giving to those peo- ple the benefit of the Constitution. Mr. RAWLINS. I interpret that act according to its language. The men who framed the Constitution said it %vas necessar}-, in order that that act might be enforced in the Territories, to make it conform to the Constitution. That was the substance of their dec- laration. Mr. TELLER. Yes: but it was to provide that the governor of the Territory, instead of reporting to the Confederation, should report to Congress. That is not an argument in favor of what the Senator suggests, for subsequent to that time, by several stat- utes, they extended the Constitution into the new Territories. Mr. RAWLINS. ^Yell, I shall submit the language itself for its own interpretation. I do not think it can be made clearer by anything that either the Senator or I can say about it. ftlr. President, I next refer to the case of Murphy ?;.s. Ramsey (114 U. S. Reports, page 41). Justice Matthews, in delivering the opinion of the court in that case, said: Tlie parsonal and civil i-ight.s of tbo inhabitants of the Territories arc so- CTired to tliem, as to other citizens, by tlie principles of constitutional liberty wliicli restrain all the accencies of Government, State and national. Their political rights are franchises which they hold as prvileges in the legislative discretion of the Congress of the United States. It is true that the Constitution does not impart political priv- ileges, the franchise of voting, or holding office to the inhabitants of a Territory, not because it is not applicable to the Territory, bttt becatise that instrtiment does not impart sttch rights any- where, either in a State or in a Territory, as held by the Supreme Court of the United States in the case of Minor vs. Happersett, 21 Wallace. Mr. President, ex parte Neilsen (131 U. S.) is an interesting case. Neilsen sought relief by the writ of habeas corpus from second trial and punishment for the same offense of whicli he had been previously convicted. Mr. Justice Bradley delivered the opinion of the court. I desire to call attention to the fact that this opin- ion was delivered by Mr. Justice Bradley, because some Senators have asserted that that distinguished .judge in another case made an intimation that the Constittition was not in force in or appli- cable to a Territory. This distinguished judge in this case used this language, page 183: In the present case the ground for the habeas corpus was not the invalidity of an act of Congress under whicli the defendant was indicted, but a second prosecution and trial of the same offense contrarjr to an exyn-ess provision of the Constitution. In other words, the constitutional immunity of the de- fendant was violated by the second trial and judgment. A similar case is that of ex parte Snow, reported in 120 U. S., 274, in which the opinion was delivered by Mr. Justice Blatch- ford. In the case of the Mormon Church vs. United States (13G U. S., 44) Justice Bradley, in delivering the opinion of the court, says: Doubtless Congress in legislating for the Territories would be subject to those fundamental limitations in favor of jiersonal rights which ai"e found in the Constitution and amendments, etc. In Callan vs. Wilson (127 U. S., 540), which arose in the Dis- trict of Columbia, it was held that the people of the District can not be deprived of any of the constitutional guarantees of life, liberty, and property. SG98 11 "Wo can not think— Siiid the Supreme Court- that the paople of this District Lave in that regard less rights than tliose accorded to the people of the Territories ot the Lnited States. In American Publishing Company vs. Fislier (16G U. S., 4G4) it was held that in the Territory of Utah parties to a suit at com- mon hiw where the vahie in controversy shall exceed S'30 can not he denied the right of a unanimous verdict of twelve men under the seventh amendment of the Constitution. _ In Sprino-ville rs. Thomas (ICG U. S., TOT), a later decision than the above, and involving the same question, m which it was elaborately contended by counsel that the provisions of the Con- stitution were not applicable to the Territories. Chiet Justice Fuller in delivering the opinion of the court uses this language, to which I invite the attention of Senators: In our opinion tlie seventh amendment secured unanimity in finding .a verdict as an essential feature of a trial by jury in common-law cases, and the act of Pongress could not impart the power to change the constitutional rule, and could not be construed as attempting to do so. Mr President, if the Constitution applicable to a Territory de- pends upon the legislative act of Congress, it has not the dignity of the Constitution, but stands upon the level of the act of Con- "•ress itself, and is subject to change, modification, or repeal; and the Supreme Court, referring to the numerous cases which had previously been before that tribunal, expres.sly here declared, m the very latest decision, that Congress can not impart vahdity to any act which will deprive the inhabitants of a Territory of the right of trial by jury as provided in the Constitution. In Thompson r.s. The State of Utah (ITO U. S., 346) the ques- tion was whether under the provision of the Constitution forbid- ding Congress to pass any bill of attainder or ex post facto law the rio-ht of trial by jury of twelve men to which the defendant was entitled in the Territory of Utah at the time when the offense charged was committed could be subsequently taken away by an act authorizing his trial by a jury composed of only eight men. The Supreme Court held not. Justice Harlan, in dehvenng the opinion of the court, says: That the provisions of the Constitution of the United States relating to the right of trial by .iury in suits at common law apply to the rerntoricb o£ the United States is no longer an open question. Further, the court say: When Thompson's crime was committed (in the Territory) it was his con- stitutional right to demand that his liberty .should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelvl perions. To hold that a State could deprive him of his liberty by the concurrent action of a court and eight jurors would recognize the pov.'er of the State not only to do what the United States lu respect of Thompson s crime could not at any time have done liy legislation, but to take from t ho accused a substantial right belonging to him wbeii the offense was committed. There is a distinct and unequivocal declaration that Congress could not, at any time, take from one charged with crime in a Territory, at any time during the Territorial condition, or deprive him of that constitutional right. Such are the precedents. Mr. President, there is another phase of this question. If it is po.ssible to establish anything by repeated decisions of the highest tribunal of this land, if it is possible to prove any proposition, which by logic and reasoning amounts to a demonstration, it must follow that the Constitution, in all the provisions of that m- 12 strmnent not unsuited to the conditiou in a Territory, there safe- guards all the rights of all the inhabitants of the Territory owing allegiance to this Government, as much as it safeguards the cor- responding rights of the people of the States. Tiiere is another interesting case to which I desire to call the attention of the Senate. It occurred in troublous times, when men were fevei'ish and restive under constitutional restraints, as some of them seem to be to-day. During the trouble between the States Milligan. in the State of Indiana, was arrested and arraigned be- fore a military tribunal, and was denied the right of due process of law or the intervention of a jury before he could be found guilty of the offense with which he was charged. They were pro- ceeding post haste to execiite him, illustrative of the fact in contra- vention of what the Senator from Massachusetts [Mr. Lodge] said the other day, that the American people are under all circum- stances too .inst ever to commit a wrong. They were proceeding to execute him without any authority whatever, and the su])reme tribunal was appealed to to prevent that crime from being com- mitted. The Supreme Court discharged him. They held that as to a State or Territory in which there was no invasion or rebellion and as to a person not a prisoner of war and not in the military or naval service Congress could not clothe a military commission with the power to try and convict and execute him; and as the same provisions which safeguarded Milligan in the State of Indi- ana apply equally everywhere within the limits of our dominion where the jurisdiction of our Government extends, under thelijn- itations and the qualifications of the Constitution, the same prni- ciples which were applicable to Milligan and Indiana will bo equally applicable under like circumstances to the Philippine Islands if we retain them. But there is some language in this opinion which I desire to quote. Mv. PLATT of Connecticut. May I interrupt the Senator from Utah? Mr. RAWLINS. Certainly. Mr. PLATT of Connecticut. Where under the Constitution is it provided that a person who is properly tried before a court- martial is not entitled to a trial by jury? I suppose the reason why a citizen of the United States is not entitled to trial by jury by a court-martial is because the Constitution says that Congress may make laws for the government of the Army and Navy just as it says it may make all needful rules and regulations for the government of territory. Mr. FvAWLINS. If I had plenty of time, I should like to read this opinion by the Supreme Court, delivered by Chief Justice Davis, I refer to the Milligan case, 4 Wallace. It shows why we can not do the one thing as to a person not in the military or naval service in a district or State where there is no inva- sion and no rebellion and why we can do it under a different set of circumstances as to a person who is a prisoner of war or who is in the military or naval service, and therefore subject to military discipline and military law. Mr. PLATT of Connecticut. But courts-martial in time of war try persons who are not in the military service; try citizens of the United States who are not soldiers, who have not enlisted, who have not signed the Articles of War, and try them without a jury, and because and only because, as I understand it, the Con- 8693 13 stitution provides that Congress may make rules for the regula- tion of the Army and Navy for their government, the same as it provides that Congress may make rules for the government of territory. j, -n ^.i -4- Mr RVWLINS. I can not oppose my own feehle authority against that of the distinguished Senator from Connecticut, but I do feel confidence in interposing the authority of the Supreme Court of the United States. I read what tliey say upon the sub- ject, quoting from the syllabus. Mr. PLATT of Connecticut. The Senator from Ltah will fi"d „ ^ ^- . -1. Mr. RAWLINS. "Will the Senator from Connecticut permit me to complete my sentence? The court saj-s: Military commissions organized during the late civil war in a State not invaded and not engaged in rebellion, in wliich the Federal courts were open and in the proper and unobstructed exercise of their pudieial functiont.. had no iurisdiction to try. convict, or uonteuce for any criminal ottense a citizen who was neither a resident of a reb3lliou3 State, nor a prisoner ot war, nor a person in the military or naval servics. And Congress can not impart such authority. That language is free from ambiguity. ^ -, .^, n Mr. PLATT of Connecticut. The Senator will find, if he reads the opinion, that Justice Davis puts the right to try a citizen of the United States by ciurt-martial without jury upon the clause in the Constitution to which I have referred. Mr. RAWLINS. Of course, I am aware of that proposition, i quote this language from the opinion: Time has proven the discernment of our ancestors, for even these pro- visions— That is, the safeguards of the Constitution— expressed in such plahi English words, that it would seem the Ingenuity of man could not evade them, are now, after the lapse of more than seventy years sought to be avoided. Those great and good men foresaw that troub- lous times would arise, when rulers and people would become restive under restraint and seek by sharp and decisive measures to acconiplish ends deemed iust and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the woHd had taught them that what was done in the past might bo attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes ol men, at all times and under all circumstances. Mr. President, it will be an evil day for this country when those principles thus solemnly announced become untrue. That is a suffi- cient answer to the remarks made by the junior Senator from Massachusetts [Mr. Lodgej and reiterated by the Senator from New York [Mr. Platt], that whenever the Constitution stands in the way of accomplishing any temporary expedient or purpose which may be thouglit proper in the frenzy of a temporary ma- jority, the Constitution is to be turned to one side. Ah, if it is not to be turned to one side, perhaps they would change it with- out going through the tedious and difficult formalities prescribed in that instrument for its own amendment. ^ , ^ ^ Tlie cases to which I have alluded are monuments of the tact that arbitrary power possessed by vi^homsoever anywhere will be abused. It has been abused in England time and time again by every sovereign who claimed to be clothed with an uncontrollable will with respect to the liberties and properties of his subjects. Time and time again I have seen it abused witliin the limits of the United States. In the Snow case they tried to convict him time and time again and punish him for one and the same offense, contrary to the provisions that for the same public offense no man 3o93 14 shall twice be put in jeopardy, etc. The Reynolds case, the Neil- sen case, the Snow case, the Milligan case, and the multitude of cases which have gone to the Supreme Court, carried there by those claiming the safeguards of our Constitution, and which have been reversed'by that tribunal for their violation, jilainly disclose that it is unsafe ever to break down the barriers to the exercise of arbitrarj' power. Mr. President, it would be useless for me to undortalco by further reference to authorities to establish the proposition which I started out to maintain: First, that the Constitution proprio vigore applies to the Territories, the remotest Territory within our jurisdiction, and is there a vital and living force, never to be overridden by any edict of any Executive, by any command of any military leader, or by the concurrent action of all the de- partments of this Government. I think it is clear that an act of Congress which must rest for its validity upon the Constitution can not give the Constitution any force anj'where which it would not otherwise possess. But let us apply these principle:; brieHy to the situation Vv'hich now immediately confronts us in the light of some claims which are put forth here by distinguislied Senators. One of these is that we will so adjust ami males unequal our revenue and tariff laws as that the sugar and hemp, the products of the inhabitants of the Philippine Archipelago, will not l;e permitted to come into com- petition with the like products of the American farmer. If we may do that, we can pass siuiilar legislation in order to prevent the wheat grown in Oklahoma from coming into compe- tition with the wheat grown in K;;nsa8 or other Stales of the American Union. Is it possible that there is vested anywhere in this Government power to make such discrin.iination as that against inhabitants and citizens owing al'egiance to this Govern- nient and entitled to the reciprocal benetits of its equal and just laws— such infamous discrimination between a citizen of Okla- homa and one in the State of Kansas or in any other State? Or may we prevent the competition of mineral protlucts of New Mexico and Arizona with the similar products of Colorado and Utah? If so, we are to override the interpretation of the Consti- tution as made by John Marshall and which has prevailed with- out question from that moment to this. Therefore we can not, unless we override the barriers of the Constitution, shut out the products of the meanest of our citizens owing allegiance, whoever they may be, whether upon the continent or an island of the sea 10,000 miles from the seat of government. Mr. President, another contention is made in respect to the dark inhabitant;) of those distant islands. It is that we, not as a punishment for any crime of which they have been duly con- victed in accordance with the safeguards and provisions of the Constitiition, may deny them the privilege of coming from their homes into the States or visiting the capital of the country to which they owe allegiance. If it is possible to do that, Mr. Presi- dent, is it not also possible for us to say to the inhabitants of a State, "You may not emigrate to a Territory?" If we may do that, wo may forbid those people from passing from one island to another; and if we may do that, we may forbid them visiting their neighbor's house; and if we can do that, not as a punish- ment for any crime of which they have been duly convicted, may we not throw them down into that Spanish dungeon described by 3t98 15 Senators, there to await the incoming tide to end their troubles and put them beyond the reach of American tyranny? Mr. President, what do we want the Philippine Islands tor? Do we want them to furnish homes for our own people? No. Do we want them to furnish an outlet for our surplus labor? The sturdy American workingman could not live in that climate, com- peting with the meanest of the Tagalos. Do we want them to add a wholesome element to our population, that our sons may tind wives and our daughters husbands? The blighting curse of tlie Almighty would rest upon such miscegination. Do we want them in order to practice upon their inhabitants the same arts of philauthropv which, applied to the aboriginal inhabitants of this continent, have led to their exteviuination? Humanity says no. Do we want them for the salce of their trade and commerce? Already the spokesmen of the dominant Administration are seek- ing to devise unconstitutional methods for intercepting and pre- venting such traffic. Do we want them in order to send hither swarms of officeholders, carpetbaggers, to riot among them like slimy worms, eating out their substance? Ah! there is the rub. But for this, this perplexing problem would not today be seriously confronting the American people. No, there is no conceivable good which they can bring to us. Their retention bodes nothing but evil. They" are made the pretext for emasculating our free- dom, for overriding our Constitution and breaking down the safe- guards of our liberty. , , ■,• Mr. President, it is said that we must keep the islands to dis- charge some humane duty or moral obligation. What is it? Those people rendered us aid, it is said: that Aguinaldo and his chieftains and some of his followers rendered us aid in the capture of Manila. We with our Army and Navy rendered them aid in their warfare against Spain. Suppose we set off our obligations against theirs, balance the account, and let it go at that? That will be satisfactorv to them; it ought to be satisfactory to us. Mr. President, f have had great difficulty in respect to the ques- tion which is soon to come before the Senate for a vote— the ratification of the peace treaty. I and the American people want to end this war. There is no reason why it should be protracted another moment. But some of us are confronted with another suggestion made by the Senator from Montana, hinted at by other Senators, suggested from sources which would seem to be authoritative, deriving then- strength as thevcome emanating from the Executive authority of this nation. What is it? While the armistice with Spain is pend- ing, while the Filipinos owe allegiance to the Spanish Kingdom, we are not in a position where we can discharge our obligations to them with shot and shell, not directed against the Spaniard, but against our former ally; that we must get rid of this treaty and end that situation, so that our guns, once directed toward Spain, may be turned upon them; and what for? Is the ratification of the treaty to end one war to be the incep- tion of another, the end of which no man can foresee, and against people who are absolutely guiltless in sin as against us, who have expressed their gratitude for the aid which we have rendered them— guilty of no crime under the sun except the desire and aspiration which moved our ancestors, the desire and aspiration to be free? Ah, Mr. President, that is the condition, and it is a serious problem, and I confess that while I should like to end one 3698 16 war, I do not want that to be the incexition of another under those circumstances and without any excuse or justification under the sun. Mr. President, there have been many undulations in the strange and wonderful career of humanity. The giory of Egypt was eclipsed in thr; progress and development of the barbarous tribes of Greece. Tiie plowshare coursed through the site of ruined Carthage, once the proud mistress of the seas and presiding over the destinies of commerce. The northern barbarian, overrun by the legions of Rome, afterwards wore the purple and occupied the imperial throne. There is a descending as well as a rising scale in the life of nations. A decadence may set in. No people, how- ever proud or strong, need flatter themselves that they are beyond the reach of vicissitude. Though they be, like the Ethiopians of old, the favorite associates of the gods, they may descend to the abasement and turpitude of slaves. We can not afford to go even halfway down to the Asiatic level in order to proportionately Vipiitt their civilization. Wo have enacted laws which stand like cherubim with llaming sword at the gateways of the Republic to drive back the hordes of the dark and degenerate races of the East, lest they may enter in to infect and to degrade us. Whatever may happen, Mr. President, let it be that the fathers who erected this Republic "reared a monument more enduring than brass, higher than the regal structure of pyramids, which may not be destroyed by the corroding storm, the fury of the northern wind, bv an innumerable series of years or the flight of time.'' Ihe Senator from Connecticut |Mr. Platt] twitted the Senator from Massachusetts [Mr. HoAit] with seeing constitu- tional obstacles, lions in the pathway leading to the House Beau- tiful. Would the Senator from Connecticut have us, like Samson of old, destroy the lion at the gate in order that we might enter in to wed the daughter of the Philistine? It behooves us to take warning by that example, lest we, too, by such "benevolent assimilation," have our locks shorn and the strength of our insti- tutions taken away. 2C03 O THIS IS A PHOTOCOPY REPRODUCTION It is made in compliance with copyright law and produced on acid-free archival book weight paper which meets the requirements of ANSI/NISO Z39.48-1992 Permanence of Paper for Printed Library Materials Preservation photocopying by The Uruversity of Connecticut Libraries Preservation Department 2001 1 6 University of Connecticut Libraries 39153027628363