action. It cannot create rights, or extend itself, or do anything but regulate. It is itself inert; the life is in the people who institute it.

The separate clauses of the Constitution are equally incapable of automatic action. They may all be extended by external force, but none by innate power; and, as we have seen, in every instance the extending power is an act of congress, the agent of the living people. There is no provision in the Constitution for self-extension of any part of it. Corporate mortgages often provide for extension proprio vigore over after-acquired property. But the Constitution has no such provision. Laws are necessary in the United States and in all the States, not only to put it into operation but to keep it going. Let us examine these clauses in detail.

BILL OF RIGHTS INOPERATIVE.

(1.) Guaranties of civil rights are inoperative. The only absolutely essential portions of the Constitution are those organizing the government and distributing the sovereign powers. But they all relate to the nation and the States, and cannot be made operative in territories by annexation, act of

congress or otherwise (9 How. 244; 141 U. S. 180). and Gen. Harrison's principal argument is that this bill of rights at least, or the civil rights guaranteed by the Constitution, extend proprio vigore to annexed territory.

The Constitution also contains a bill of rights,

A distinction must be made between natural and

civil rights. Natural rights are given by the Creator to all people; they are the inalienable rights of the Declaration of Independence. Civil rights are guaranties by which natural rights are protected; they are statutory and constitutional and belong solely to the nation or race that institutes them. The federal Constitution deals solely with civil rights, and our courts have held that when any people has acquired by birthright of political action the civil rights of our Constitution, congress will not interfere therewith. In a late case the court said: "The bill of rights was not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors" (165 U. S. 281). "The right of the people to assemble," said Chief Justice Waite, in the Cruikshank case, "was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. * * * The right to bear arms is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence" (92 U. S. 553).

This is true of freedom of speech, the right of petition, due process of law, or any other of our civil rights which belong to a people subject to the government of congress. Congress can pass no law interfering with their enjoyment. But inability to act is not extension of power. Can a mere re

striction upon the power of congress to pass certain laws as rules and regulations for the government of new territory be held to extend, not the restrictions but the affirmative rights themselves? In no sense of the word, I repeat, can this negative operation of the prohibitions in the Bill of Rights be said to extend the Constitution over Porto Rico or the Philippines.

BILL OF RIGHTS FOR CITIZENS ONLY. The bill of rights, moreover, applies only to federal citizens. It is a social compact between the United States and its citizens (94 U. S. 124). Referring to it, Mr. Justice Field said: "The rights thus recognized and declared are rights of citizens of the United States, under their Constitution, which could not be violated by federal authority" (144 U. S. 362). And it was long since decided that the bill of rights operates only to protect federal citizens as distinguished from citizens of the States (7 Pet. 247; 123 U. S. 166; 175 U. S. 172).

NATIVES NOT CITIZENS.

But Porto Ricans and Filipinos are not federal the only citizenship congress can confer is national citizens. There is no citizenship of a territory, and (92 U. S. 542). "Its sources are two," said the Supreme Court, “and two only, birth and naturalization" (112 U. S. 101; 169 U. S. 702). Persons may be naturalized either individually under the naturalization acts, or "collectively," as the court explained, “by the force of a treaty by which foreign territory is acquired" (112 U. S. 102). Porto Ricans and Filipinos have not been naturalized in either manner.

The only other source of American citizenship is birth, and that must be where the Constitution is operative. No Constitution, no fourteenth U. S. 693). Until Porto Rico and the Philippines amendment; hence no citizenship by birth (169) become States, or until congress naturalizes their inhabitants, they will not be federal citizens, and hence will not be entitled to the civil rights of the Constitution.

ANGLO-SAXON RIGHTS OUR BIRTHRIGHT.

Again, two things must unite to entitle a people to the protection of our constitutional guaranties they must own the rights of their own title, and the rights must be the identical ones specified in our Constitution. But the civil rights of our Constitution belong by inheritance to the Anglo-Saxon race alone. Other races may have civil rights, but not those we possess. They are our birthright; they were the rights of our ancestors during the Saxon era of English history; they were lost in the Norman conquest; they were only partly regained by the Magna Charta and acts of confirmation; they were brought by the American colonists to this continent; they were claimed by the continental congress as the "rights of Englishmen" in the petition of 1774 to George III;

46

Our

they were secured to our patriot fathers by the revolution and the Constitution; and as our fathers and their descendants migrated from the older States they carried them westward all over the country, as their birthright," said the Supreme Court, as a part of the common law of the land, said Mr. Justice Gray (152 U. S. 52), but always as the same historic rights inherited from Saxon ancestors (136 U. S. 448). Porto Ricans and Filipinos did not possess these rights before annexation; they do not now. They have their own, which they cherish, and, doubtless, prefer. Unless congress expressly enacts the bill of rights, as a law, it will not exist in our new possessions, nor will the inhabitants be entitled to any of its guaranties.

NO UNIFORM TARIFF.

(2.) The uniformity clauses are inoperative. Article 1, section 8, requires that all tariff, bankruptcy and naturalization laws shall be "uniform throughout the United States." If Porto Rico and the Philippines are integral parts of the United States, the uniformity clauses must apply; if they are not, but are only "outlying dominions" (101 U. S. 133), or “dependencies" (3 Wash. 3 C. C. R. 286), then the uniformity clauses do not apply. Geographical inclusion or exclusion is the test, not constitutional extension; and the question is unqualifiedly political, belonging to congress and the president, and not to the courts. Political questions differ from judicial in that none but the sovereign can determine them. A sovereign decides by his own will, sic volo, sic jubeo. A court decides according to the law prescribed by the sovereign.

The maintenance and extension of our national dominion is a political, not a judicial, problem. The reasons are thus stated: "The president and congress are vested with all the responsibility and powers of the government for the determination of questions as to the maintenance and extension of our national dominion. It is not the province of the courts to participate in the discussion or decision of these questions, for they are of a political nature and not judicial. Congress and the president having assumed jurisdiction and sovereignty, and having made the declarations and assertions as to the extent of our national authority and dominion, all the people and courts of the country are bound by such governmental acts" (50 Fed. Rep. 110). A question like this, as Chief Justice Marshall said, is "more a political than a legal question; and in its discussion the courts of every country must respect the pronounced will of the legislature" (2 Pet. 308).

* * *

The wisdom, also, of the action of the political departments, in manner and degree of annexing new territory, is not open to question. As the court said in the Williams case (13 Pet. 420), it is not material to inquire, nor is it the province of the court to determine, whether the political de

partments are right or wrong. It is enough to know that they have decided the question. Having done this, their decision is conclusive upon "the judges, as well as all other officers, citizens and subjects of the government" (137 U. S. 212). ANNEXATION ISSUES POLITICAL, NOT JUDICIAL.

Hence all questions incident to the acquisition and government of Porto Rico and the Philippines, whether we should annex them permanently or sub modo; whether they should be part of our "outlying dominion," or integral portions of the United States; whether they should have local governments or be ruled from Washington; whether the inhabitants should be citizens or subjects; whether the Dingley act should apply, or there should be separate tariffs; these and all

similar problems of government are political, belonging exclusively to the legislative and executive departments, and "not within the province of the judiciary to contravene or question " (9 How. 154).

MCENERY RESOLUTION.

What have congress and the president done to define the geographical and legal status of the islands? On the same day on which the senate ratified the treaty it resolved: "By the ratification of the treaty of peace with Spain, it is not intended to incorporate the inhabitants of the Philippine Islands into citizenship of the United States; nor is it intended to permanently annex said islands as an integral part of the territory of the United States" (McEnery resolution). In the provisional act for Porto Rico, congress defined the political status of the inhabitants as "citizens of Porto Rico, entitled to the protection of the United States," and imposed tariff and tax laws differing from those imposed upon its own territory, and levied duties on commerce between the two countries.

It thus appears by affirmative action of congress that the islands are not "permanently annexed," but only sub modo, that they are not "an integral part" of the United States, and that their inhabitants are not citizens.

No clearer definition and interpretation of the geographical status of the islands and the political status of their inhabitants could be given; and this congressional action constitutes the law of the case, binding on the president, the secretary of war and all other executive officers, and conclusive upon "the judges, as well as all other officers, citizens and subjects of the government" (137 U. S. 212). The same reasoning applies to naturalization and bankruptcy. Hence none of these causes operates proprio vigore in Porto Rico or the Philippines.

TREASON ARGUMENTS FALLACIOUS.

(3.) Miscellaneous Clauses.-General Harrison's argument on treason is utterly fallacious. Treason

is a crime of citizens, he argues; Porto Ricans and Filipinos, unless the Constitution operates, are not citizens; citizens alone can be protected by the constitutional inhibitions relating to treason; hence congress, being unrestricted, can enact all the bloody laws of the middle ages, and no Porto Rican or Filipino can "know how to behave himself; to do, speak, or say, for doubt of the pains of treason" (N. A. Rev. p. 14).

His error is patent. Treason is not a crime against citizenship, but against allegiance. Any person who violates his allegiance to the United

44

*

*

States commits treason, whether he be a citizen or not. Porto Ricans and Filipinos are not citizens, but subjects. In 1817, Mr. Story thus defined a subject: "A person domiciled in a country and enjoying the protection of its sovereign, is deemed a subject of that country" (2 Wheat. 227). Again, in 1874, the Supreme Court said: Each member of the nation * owes it allegiance. Allegiance and protection are reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for alle giance" (21 Wall. 162). Hence, every person entitled to protection is the nation's subject; and hence, also, every person, in States or territories, who violates that allegiance commits treason against the United States.

How absurd, however, to claim that annexation extends the treason clauses. From the adoption of the Constitution they have extended over the whole world wherever the relation of American sovereign and American subject existed-in States, territories, American consulates, and even on the high seas aboard our men-of-war; it is impossible to extend them farther. In their essential nature they do not apply to territory as the uniformity clauses do, and have nothing to do with territorial expansion per se. They are made for persons, without regard to residence. They govern the relations of the United States with their subjects, wherever they exist, conditioned on allegiance alone, and this renders their territorial expansion unnecessary and impossible.

AMBASSADORS AND TITLES OF NOBILITY. Finally, there are a number of powers which the sovereign people denied to the federal government. Some of these, like the prohibition against conferring titles of nobility, are mere restrictions on the power to act anywhere. It is equally absurd to speak of these clauses as extending to our new territories by annexation. Article I, section 9, provides: "No title of nobility shall be granted by the United States. That is, it cannot be granted to a Porto Rican or a Filipino, nor yet to an Englishman or German; but that does not mean that the Constitution extends over Porto Rico or the Philippines any more than over England or Germany. Under article 1, section 6, congressmen cannot be appointed ambassadors to a foreign

court- France or Russia, for instance; but that does not mean that such prohibition thereby extends the Constitution over France and Russia.

POWER OF CONGRESS UNLIMITED.

(4) General Harrison argues that the Constitution extends to new territory only so far as applicable." But what is applicable? The Constitution

is silent. Who shall determine? The admission begs the whole question. General Harrison argues himself completely out of court. If the Constitution extends only "so far as applicable," the congress may and must, as the sole depositary of the political discretion of the nation, determine whether the annexation shall be temporary or permanent, whether the territory shall be an integral part of the United States or an outlying dependency, whether the inhabitants shall be citizens or subjects, and all the other questions involved in deciding what provisions are applicable and what are not, to the new possessions. This is equivalent to saying that no part of the Constitution extends proprio vigore, but only as decided in the absolute discretion and plenary power of congress. And this is the true theory of the law, supported by every decision the Supreme Court has made on the subject. Sixty years ago it laid down this broad rule: "The term 'territory,' as here used (article 4, section 3), is merely descriptive of one kind of property, and is equivalent to the word 'lands.' Congress has the same power over it as any other property belonging to the United States, and this power is vested in congress without limitation and has been considered the foundation upon which the territorial government rests" (14 Pet. 537).

Ten years later the court announced the comprehensive principle that territories "are not organized under the Constitution nor subject to its complex distribution of the powers of government as the organic law; but are the creations exclusively of the legislative department and subject to its supervision and control (9 How. 242). Chief Justice Waite, sustaining this power, said: “All territories within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of congress. The territories are but political subdivisions of the outlying dominions of the United States. * It has full and complete legislative authority over the people of the territories and all the departments of the territorial governments" (101 U. S. 133). And, summarizing the whole matter, the court announced this opinion through Mr. Justice Brewer: "A territory is a political community, organized by congress, all whose powers are created by congress, and all whose acts are subject to congressional supervision" (139 U. S. 446). The power of congress is, therefore, plenary and absolute, and can be exercised without constitutional restrictions in our new possessions.