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Among the Justices who have recognized the Constitution as having a broader dominion than the States are Chief Justices Marshall," Taney,· Waite, and Fuller, and Justices Curtis, Miller, Bradley,' Harlan, Matthews,'Gray, 1° Brewer, "1 Field, 12 and Clifford. 13 This consensus of opinion represents every theory of constitutional interpretation that has been expounded in the Supreme Court.

Several decisions cited in opposition are readily distinguished. In Benner v. Porter,' the Court held that territorial courts are not courts of the United States within the meaning of the judiciary clauses of the Constitution. This decision simply affirms the absolute discretion of Congress in creating the machinery of territorial government. The Mormon Church case 15 involved an act of Congress applying to educational uses certain property of the dissolved Corporation of Latter-day Saints in Utah Territory.


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1 Loughborough v. Blake, 5 Wheaton 317, 324.

2 Strader v. Graham, 10 Howard 82, 96; Scott v. Sandford, 19 Howard 393, 449.

3 National Bank v. County of Yankton, 101 U. S. 129, 133.
4 Mormon Church v. U. S., 136 U. S. 1, 67.
5 Scott v. Sandford, 19 Howard 393, 614, 624.

Slaughter-house Cases, 16 Wallace 36, 72.
7 Mormon Church v. U. S., 136 U. S. 1, 44.
8 McAllister v. U. S., 141 U. S. 174, 188.

Murphy v. Ramsey, 114 U. S. 15, 44. 10 Capital Traction Co. v. Hof., 174 U. S. 1. 11 Fong Yue Ting v. U. S., 149 U. S. 628. 12 Maynard v. Hill, 125 U. S. 190, 204. 13 « The City of Panama," 101 U. S. 453, 460. 14 9 Howard, 242.

: 15 136 U.S. 1.




Three Justices declared the act to be invalid because spoliative, thus affirming their conviction of the authority of the Constitution in the Territory. The Court recognized the obligation of the constitutional guaranties in Utah, but held that the disposition of the property was justified by the law of charitable

In Ross's case, the petitioner had been convicted of murder before our consular court in Japan. The conviction was affirmed, though the act of Congress authorizing the court under a treaty with Japan did not provide for presentment and trial by jury. The judge of the court was an American, yet it was not, from the constitutional standpoint, essentially different from a tribunal of mixed nationality like the one in Egypt, and in either case there is no question of carrying our Constitution to a foreign land, where, as the Supreme Court said, “it can have no opera“tion.” Usually, such tribunals are created for the protection of Christians in non-Christian countries. As they exist, in theory of law, by the permission of the local sovereign, albeit the permission is commonly extorted, their jurisdiction is entirely a matter of arrangement. As they dispense justice in a strange environment, their procedure is largely a matter of discretion. Our former privilege in Japan does not interpret our present duty in the Philippines; for we claim territorial sovereignty over the islands, not extraterritorial privilege, the whole authority of the United States, not a fragment of authority wrung from a foreign government.

The textual criticism by which territory beyond

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the States is read out of the Constitution, upon the theory that the “United States” covered by the Constitution comprises the States of the Union alone, is as harsh and artificial as that of the most strict constructionists of the old school, whom the new school resembles in denying the national and commercial unity of all who owe allegiance to the republic. And the new school is subject to a reproach not imputable to the old : It reverses the great rule of the common law by making every presumption against the individual and in favor of the state, for it attributes to the Federal Government absolute dominion over all persons and property lying beyond what it is pleased to call the “United “States” of the Constitution. The “United States, " whose people framed the Constitution, and retained for themselves and the States all powers not delegated to the Federal Government are, unquestionably, the States of the Union only. These States and their people wield the whole political power of the republic. Unquestionably the Constitution contains clauses relating exclusively to the States either in terms or by necessary implication. Other clauses embody principles of universal value and unrestricted range, and these are operative throughout the larger “United States” described by Marshall as our great republic, which is composed of States and Territories. The District of Columbia, or the Terri

tory west of the Missouri, is not less within the “United States, than Maryland or Pennsylvania.”?

1 See infra, p. 70. 2 Loughborough v. Blake, 5 Wheaton 317, 319.


That the Power of the United States over Annexed

Territory is the Same as that Possessed by Other Nations

The most popular argument for withholding the Constitution from the Philippines is that the United States are equal to any other nation in power and resource, and, therefore, are competent to deal with the islands as another nation might under the circumstances. Deferring to this opinion for the moment, let us inquire whether nations whose rank and experience invite, apparently, our profitable study of their expansion policies are accustomed to do what we are urged to do; namely, to divide national territory into sections distinguished organically by the presence of effective constitutional restraints on governmental power in the one, and the absence of such restraints in the other.

The colonial policies of Germany, Italy, and Japan are in the experimental stage; and we shall not find a model in the exploitation of Java by Holland.

Constitutional questions, in the Western sense, are practically unknown in Russia, whose inhabitants are classified as the Czar—and the others. Each acquisition of territory means simply the enlargement of the Czar's dominions and the increase of his subjects.

The first French republic professed to carry the French ideals of liberty, equality, and fraternity to its neighbors in Europe, and the present republic affects the same office in its colonies. It is not material to determine the value of these ideals, or how nearly they are realized. It is sufficient for our purpose to know that the French Constitution is not restricted, in theory, to France in Europe. And Algeria, French India, Mauritius, Réunion, and Guadeloupe, in sending senators and deputies to the national legislature, enjoy political rights denied to the colonies of Great Britain and the territories of the United States.

The colonial policy of Great Britain is especially commended for our imitation, but it will appear that organic equality is the constitutional theory in the British Empire, and not discrimination. For the will of Parliament is the organic law of the British Empire, whose parts are united by their common subjection to it, and Parliament presides over the scattered lands and the polyglot people with equal and unfettered power. England and the Gold Coast are integral parts of this empire: 1 The citizen of London and the native of India are on an equal footing before an authority that acknowledges no legal constraint. The opportunist colonial policy so cleverly displayed in the administration of the Queen's dominions beyond the sea is but a manifestation of a force quite as supreme in the British Islands. The organic law of the United States is the written Constitution, and so long as its broad guaranties run throughout the national territories all the people are equal before the law — an equality in harmony with the British theory. But were these guaranties circumscribed, all would not be equal; there would be the law of the Constitution for some, the pleasure of Congress for others — an inequality in marked contrast to the British theory.

1 See supra, p. 21.

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