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"servitude” forbidden by the Thirteenth Amendment, but dismissed the Amendment with a curt reference to earlier opinions in which it had pronounced the Constitution of the United States to be of no force during “the transition period.”

If it shall be finally determined that in the United States Territory of Hawaii a plantation hand may be imprisoned until he is ready to perform his contract to labor, perhaps a like system will some day be established in the States that have already practically disfranchised the negro. .


Political Franchises


Citizens of the United States not residing in States have no voice in federal affairs,' nor have they a constitutional right to regulate their own.

The entire sovereignty over territory beyond the States is vested exclusively in the federal legislature. This proposition was questioned in the Dred Scott case, and Senator Douglas and other statesmen declared that the people of the Territories possessed sufficient "popular sovereignty” to decide for themselves whether slavery should be allowed within their borders. The doctrine of “popular sovereignty” in the Territories was a political device for taking the question of slavery out of federal politics. It was wholly incompatible with the fundamental conception

1 See supra, p. 14.
2 Scott v. Sandford, 19 Howard 293, 501.


of the union of States, and is now thoroughly discredited. The definition of Filipinos as "citizens ” carries no right to participate in governing the republic, nor any State, nor even the Philippines. They can become members of the voting body of the United States only by coming into a State and satisfying the requirements of the local law of suffrage. They can exercise in the islands only such political franchises as Congress may grant.

In the language of the Supreme Court: “The personal and civil 'rights of the inhabitants of the Territories are se“cured to them, as to other citizens, by the principles “of constitutional liberty which restrain all the agen“cies of government, State and national; their politi“cal rights are franchises which they hold as privileges “in the legislative discretion of the Congress of the “United States." 2

Civil Rights

There is no absurdity in attributing the personal and civil rights of the Constitution to the Filipinos when the nature and limitations of these rights are understood. Surely the republic must regard life, liberty, and

property everywhere as rights, not as privileges. Even these primary rights are not absolute. Each one may be forfeited for crime. Each is held subject to the legitimate claims of the State.

Of course the right to liberty confers the freedom

1 See National Bank v. County of Yankton, 101 U.S. 129, 133; Murphy v. Ramsey, 114 U. S. 15, 44; Mormon Church v. U. S., 136 U. S. 1, 44.

2 Murphy v. Ramsey, 114 U. S. 15, 44.

of the republic, and no law can check the orderly migration of Filipinos to any part of the country. A man's right to work in any part of the republic, and his right to send the lawful product of his labor to any part, rest upon precisely the same foundation of personal liberty. As for liberty of speech and of the press, expressly guaranteed by the Constitution, why should not a Filipino speak and write his mind when he may be punished for abusing his rights, and hung if, like the Chicago anarchists, his utterances are linked to the crimes they are intended to provoke?

The Filipinos are entitled to bear arms, but the Constitution affirms this right for “the security of a free state,” not for the benefit of insurgents; they may assemble and petition for redress of grievances, but the Constitution requires them to

do SO “peaceably.”

Our rejection of the guaranties as constitutional standards of conduct in the Philippines would mean to the islanders the rule of a new master of higher purpose, of greater ability, of kindlier disposition than the old one, yet quite as free from the restraints of law. Defining the so-called rights of the islands under such a régime, the Secretary of War proffers “moral right,” and “the nature of our Government, and "implied contract” as efficient substitutes for legal guaranties.

In the same vein Judge Day, the head of the American Peace Commission at Paris, says: “What"ever the power of the American Government under “the Constitution, the American people, through

1 See Report for 1899, pp. 26, 27.

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“their executive and representatives in Congress, "may be trusted to see that there goes with American sovereignty the underlying principle of free"dom and liberty for which our fathers fought and "for which they set up a government of and by and "for the people. A party which should ignore or “forget these principles would be relegated by the “people from power to obscurity.”

A profession of good intentions is merely a pious opinion, not a substitute for a bill of rights. The Constitution originally adopted contained very few provisions of a bill of rights, and this omission was warmly defended by Hamilton, Wilson, and other statesmen. But the people mistrusted a government apparently capable of inflicting the abuses so intolerable under English rule. They made light of the objection that the prohibition of specific abuses might imply the power to inflict unforeseen ones. They demanded the guaranties that were quickly imposed in the first ten amendments, and these so thoroughly covered the ground that no further prohibition has been laid upon federal power save in the Fifteenth Amendment, forbidding the United States to deprive any person of suffrage because of “race, color, or pre“vious condition of servitude.” The same jealousy of arbitrary power is manifested in all the constitutions of the States. How graceless, then, is the assertion that Filipinos and Porto Ricans find ample protection in the self-asserted righteousness of the governing

1 Address before the Michigan Bar Association, May 23, 1900,

p. 12.

2 The Federalist, No. 84.
3 Elliot's Debates, ist Ed., III, 251.

body of the republic, when this body has determined that neither prejudice of race or class or religion, nor the power of one or of many shall overcome the rights of its own members so far as the organic law enforced by the courts can maintain them! And who will say that constitutional restraints so necessary in the self-governing sections of the republic are superfluous in the Philippines? Who will say that abuse of power decreases with the growth of opportunity ?

The Bill of Rights is not an essay on liberty. It is a law forbidding acts which, for the most part, are political crimes, and the illegality of these acts does not depend on the place of their commission or the color of their victims, if they are committed within the territorial jurisdiction of Congress.

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Conscious of the injustice of arrogating the exclusive benefits of the federal bill of rights to the people of our country who need them least, the opponents of constitutional rule in the new territory are casting about for a device whereby some of these benefits at least may be carried to the islands without drawing the Constitution after them.

In Goetze v. U. S.," the Court, commenting on a proposition that "a republic cannot be allowed to govern without

any restraint,” says: “In this very

” principle we may find the safeguard of such terri“tory. If the United States tried to govern any “territory in violation of the spirit pervading repub"lican institutions, such action might be held illegal “by courts on the basis of this principle. It may

1103 Federal Rep. 72, 84.

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