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In virtue of its powers Congress enjoys a broad discretion in instituting a government for the Philippines. Any form is permissible, from an organization chosen by the islanders to a governor or commission 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 legislative

powers during the term of its existence. The legal right of Congress to establish a territorial government without the coöperation, or even the consent of the people results from the necessary denial of popular sovereignty in the Territories; but this government, however it may be imposed, must rule in conformity to the Constitution.

The Exercise of Congressional Powers

The current session affords Congress a second opportunity to exert its constitutional powers in the Philippines. These powers should now, and hereafter, be employed sparingly in the direct regulation of local as distinguished from federal affairs, because Congress lacks the knowledge and sympathy essential 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,

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“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.”1 Excepting its recognition of executive legislation, the British policy commends itself to us. While all lawful legislation 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 Louisiana. On October 31, 1803, ten days after the exchange of the ratifications of the treaty of cession,

1 Lucas's Edition of Lewis's Government of Dependencies, p. 331. 2 Statutes at Large 246. 2 3 Statutes at Large 523. See also Mitchel v. U. S., 9 Peters

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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.”1 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 government 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 objection that it recognizes, tacitly, the mere will of the executive as being the foundation of all governmental powers in the islands. . The Louisiana Act continued the old government of Louisiana and merely authorized the President to fill its offices. The Philippine bill enables the President to erect a government at will, manned by “such person and per


711, 736.

30 Statutes at Large 750.

sons . . . as he may direct.” The Louisiana Act did not purport to confer legislative powers upon the President, and Governor Claiborne's first proclamation 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 1, 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, without imposing the checks upon their abuse which obtain in the British system, where the Crown is forbidden to act “contrary to the fundamental law,”1 and where relief from injustice may be had through an appeal to the Judicial Committee of the Privy Council.2

The Philippine bill is a halting measure of doubtful 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.

1 See supra, p. 31. 2 See supra, p. 99.

Each day of unrest in the Philippines makes our presence more hateful and postpones our opportunity for helpfulness; indeed, if resistance be greatly prolonged we may learn one day that we have demoralized 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 territory. The Administration is blameworthy for having 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 exaggerating 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 unexpectedly 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

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