Page images

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 message from Congress declaring the law of the Constitution, 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. Representative Filipinos should be invited to attend a conference 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 dignity, 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.


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


“nominated political,” says Chief Justice Marshall, “is necessarily changed."1 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.” ? 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 annexation necessarily effects this sweeping result; and governmental 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

By the

1 American Ins. Co. v. Canter, 1 Peters 511, 542.

2 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:


courts have even sustained grants of pueblo (town) land made during the existence of the military government 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 ratifications 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 tribunals of Mexican origin acting under the military


government. 3


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 supplanted 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, however, that the United States are not burdened with obligations in respect of private claims against the


1 Hart v. Burnet, 15 California 530, 559. See also Townsend v. Greeley, 5 Wallace 326.

2 See Keene v. McDonough, 8 Peters 308.

3 Mena v. Le Roy, i California 216; Ryder v. Cohn, 37 California 69.

4 Campbell v. Hall, Cowper 204; U. S. v. Percheman, 7 Peters 51, 80; Strother v. Lucas, 12 Peters 410, 436.

5 U. S. v. Percheman, 7 Peters 51, 86; U. S. v. Moreno, i

Wallace 400.

[ocr errors]

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 Constitution, the laws of annexed territory impose no permanent obligation upon the United States. These laws may be divided roughly into three classes.

1. 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 commissioner took momentary possession of Louisiana under the Treaty of San Ildefonso, of October 1, 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 inconsistent with our Constitution and laws; 3 and referring to this Code + we find sufficient reason for the exception in the articles requiring the expulsion of Jews, and the exclusive recognition of the Roman Catholic religion.

1 Cessna v. U. S., 169 U. S. 165, 187. 2 See Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S. 542, 546. 3 Martin's History of Louisiana, II, 197. 4 French's Historical Collections of Louisiana, III, 89.

2. If an act of Congress extends of its own force to the ceded territory it displaces all laws inconsistent 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 selfextending, there has not been established a general rule according to which this quality should be attributed. Certainly self-extending acts must be exceptional, 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 practice 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 Constitution, and of the presumed non-extension of acts of Congress to annexed territory are perfectly reconcilable. 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

1 See Cross v. Harrison, 16 Howard 164, 197; Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S. 542, 546.

2 See U. S. v. Seveloff, 2 Sawyer 311.

« PreviousContinue »