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conditions existing in the United States upon the continent of North America.”1 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 nowhere 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; otherwise we could not have lawfully annexed the Philippines. This "continental” theory is not even derived from the Preamble, for it restricts the Constitution to North America. Upon what basis of fact is a Constitution conceded to be adapted to the diverse 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 gained even the consideration that the common assent of statesmen might give it before the courts.

1 The italics are mine.

The proposition lacks the support of precedent. If the theory that the Constitution is operative in the States only has been consciously applied in administering outlying territory its applications have been infrequent and, presumably, inexcusable. There is no warrant for the boast that in denying the Constitution 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 territory from the great customs district of the republic violates precedent."

Regarding the general guaranties of the Constitution in annexed territory, we find that in the case of Louisiana while the inhabitants complained that selfgovernment 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 violation of the Fourth Amendment." 3

Whatever we did in Florida before we took possession under the completed treaty of cession was done in a foreign land, and so is immaterial to this inquiry. After the cession General Jackson was com1 See infra, p. 79.

3 Commentaries, Sec. 1902, Note.

2 4

Cranch 75.


missioned, by the authority of Congress, “ with all “the powers and authorities ” theretofore enjoyed by the Spanish rulers. Jackson was not affected, however, with a Spanish officer's irresponsibility in regard to our Constitution, though he is said to have declared that his powers were those “that no one under

a republic ought to possess "; 8 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 California was maintained by Polk's Administration, whose position was attacked by Webster and Benton because Calhoun assumed that it secured the right to take slaves into the new Territory. If Calhoun argued for the Constitution in California with the expectation of extending the area of slavery, he at least contemplated 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 Government 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 purpose 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 constitutional government.

121 Niles Weekly Register 135. 2 See the citation from Pollard v. Hagan, infra, p. 131. 321 Niles Weekly Register 136.

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 discredited in that seat of authority.

In Callan v. Wilson, the Supreme Court maintained the law of the Constitution beyond the States in the only case where an act of Congress disregarding it was forced upon the Court's attention. The suggestion that the principle of 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.

2 See also American Publishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 166 U. 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.

3 Callan v. Wilson, 127 U. S. 540, 550.

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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."1 Each has been called a state, however, in the primitive sense of being an organized community, and each has been ranked among the States of the Union in order to effectuate a treaty pledge.3

Territories have been also described as “dependencies, 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,” 6 and it is quite as impossible for the republic, as for a State, to withhold from the subordinate districts within its domain the protection of its Constitution.

" 4




1 New Orleans v. Winter, 1 Wheaton 91, 94.
2 Talbott v. Silver Bow County, 139 U. S. 438, 448.
3 Geofroy v. Riggs, 133 U. S. 258.
4 Snow v. U. S., 18 Wallace 317, 320.
5 National Bank v. County of Yankton, 101 U. S. 129, 133.

Geofroy v. Riggs, 133 U. S. 258, 268; see also Utter v. Franklin, 172 U. S. 416, 423.


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