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without the restraint of organic law the government would assume an office requiring the approval of imperial standards for its acceptance, the delegation of imperial powers for its administration, and then approve 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 coördinate departments, and not presume to check them, I reply that the immensity of the issues does not affect the judiciary 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.
THE GOVERNING OF THE PHILIPPINES
The inclusion of the Philippines within the boundaries of the United States, and the aegis of the Constitution, are results of acquiring territorial sovereignty, and while this sovereignty is maintained we must address ourselves to practical questions of government 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
The President is in possession of the Philippines, and his governing of them, provisionally, by military agents is a lawful exercise of executive power. This government originated in a belligerent occupation of foreign territory, and, agreeably to the precedent approved by the Supreme Court in the case of California, it was not dissolved by the trans
fer of the islands at the end of the war, but continues until superseded by Congress."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 President's annual message of 1899 stated that the government of Porto Rico was maintained by the Executive Department “under the law of belligerent ‘right,” ? 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.” 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 11, 1899, it certainly cannot be prolonged
1 Cross v. Harrison, 16 Howard 164, 193. Page 50. 4 Wallace 2, 140. 4 The Protector, 12 Wallace 700. See also U. S. v. Yorba, i
Wallace 412, 423.
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 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.
”i The President's governments in Porto Rico and the Philippines are precisely alike in origin and powers. Though military, as distinguished 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
1 Messages of the Presidents, IV, 638.
they magnify his office who urge him to recognize a Filipino republic, or declare a protectorate, or acknowledge in any way the existence of a local sovereign. The islands are in his charge, not at his disposition.
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, including the right 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, presently, that the annexation of a country does not abolish 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.