making power finds no place in our jurisprudence. Though the Supreme Court has never been obliged to declare a treaty provision unconstitutional, and would do so with peculiar reluctance,1 it holds, as a matter of course, that treaties are subordinate to the Constitution.2 "It need hardly be said," says the Court, "that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government."3 Even in Great Britian it is doubtful whether the courts would respect a treaty provision repugnant to "the law of the land."4 In view of the subordination of treaties to the Constitution it must be assumed that the clause in question was drafted with due respect to the higher law, and that the President and Senate did not pretend to set bounds to a Constitution not at their disposition, but simply declared the powers of Congress in regard to status and rights of less than constitutional rank. A most objectionable yet the only plausible argument against the rule of the Constitution in the Philippines is that the Constitution was ordained for the States of the Union alone. This proposition was advanced in the Senate debates on the acquisition of Louisiana in 1803, and on the question of slavery in California in 1849. On August 12, 1848, Mr. Webster said in the Senate that Congress in governing territory "is subject of course to the rules of justice and propriety, but it is under no constitutional restraints;" but in the debate of 1849, Mr. Calhoun forced him to abandon this position and concede, as we have seen, that Congress is bound by the constitutional guarantees in legislating for the Territories. The theory that the Constitution is operative in the States only appears to have consciously affected the past government of outlying territory so slightly, if at all, that there is no warrant for the boast that in denying the Constitution to our new territory the Administration emulates its predecessors. The present policy of definitely excluding new territory from the great customs district of the Republic is contrary to precedent.5 1 See Ware v. Hylton, 3 Dallas 199, 237. 2 See U. S. v. The Peggy, I Cranch 103, 110. New Orleans v. U. S., 10 Peters, 662, 736; Lattimer v. Poteet, 14 Peters, 414; Doe v. Braden, 16 Howard, 635, 657; Geofroy v. Riggs, 133 U. S. 267; Thomas v. Gay, 169 U. S. 264, 271. 3 The Cherokee Tobacco, 11 Wallace, 616, 620. 4 See The Parlement Belge, 4 P. D. 129: 5 P. D. (C. A.) 197; Walker v. Baird, [1892] A. C. 491; Dicey, Law of the Constitution, 1st Ed. 391,5Infra, pp. 23-26. As to the estimation of the general guarantees of the Constitution; we find that in the case of Louisiana the inhabitants complained that self-government was not accorded at once, and that American rulers did not understand the local laws they were expected to administer. But it does not appear that our government ever denied the efficacy of the guarantees in Louisiana, and the Supreme Court practically recognized their existence in Bollman's case. 1 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. Upon the cession General Jackson was commissioned, by the authority of Congress, "with all the powers and authorities" theretofore enjoyed by the Spanish rulers.2 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"; 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 President Polk's Administration, whose position was attacked by Webster and Benton because Calhoun assumed that it permitted the carrying of slaves into the new territory. If Calhoun argued for the Constitution in California with an unworthy motive he at least contemplated the enjoyment of its rights by white men while these rights are now denied to all people in the islands in order to facilitate administration and above all to check industrial rivalry. I am not aware of any act of the government which can be construed as denying the authority of the Constitution in Alaska. A keen search for arbitrary acts in unorganized territory may not be wholly unsuccessful; but the search is a discreditable waste of time when its purpose is to parade such acts for our commendation. In reply 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 unsupported 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. 1 See infra, p 13. 221 Niles Weekly Reg., 135. 3 See the citation from Pollard vs. Hagan, infra, p 35. 421 Niles Weekly Reg., 136. In its opinion 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 previously 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."2 The notion that, because the District once belonged to States which ceded it for a Federal 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 law or policy why they should be preferred to the people of Oklahoma. When General Wilkinson arrested Bollman and Swartwout in Orleans Territory (Louisiana) upon a charge of treason, and sent them to Washington for trial, all without civil warrant, the Supreme Court discharged them,3 and Judge Story termed the arrest "a very gross violation of the Fourth Amendment."4 Among the Justices who have recognized the Constitution as having a broader dominion than the States are Chief Justices Marshall,5 Taney, Waite, and Fuller, and Justices Curtis, Miller,10 1 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. 2 Callan v. Wilson, 127 U. S., 540, 550. 3 Bollman's Case, 4 Cranch, 75. 4 Commentaries, Sect. 1902, Note. 5 Loughborough v. Blake, 5 Wheaton, 317, 324. 6 Scott v. Sandford, 19 Howard, 393, 450. 7 Bank v. County of Yankton, 101 U. S., 129, 133. 8 Mormon Church v. U. S., 136 U. S., 1,67. 9 Scott v. Sandford; 19 Howard, 393, 614, 624. 10 Slaughter-house Cases, 16 Wallace, 36, 72. of Bradley,1 Harlan,2 Matthews, and Gray. This consensus 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 6 involved an act of Congress applying to educational uses certain property of the dissolved Corporation of Latter Day Saints in Utah Territory. 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 conceded that the constitutional guarantees were effective in Utah, but held that the disposition of the property was justified by the law of charitable uses. In Ross's case,7 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 operation." Such tribunals are created for the protection of foreigners in uncivilized 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 extra-territorial 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 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 only, is as harsh and artificial as that of the most strict constructionists of 1 Mormon Church v. U. S., 136 U. S., 1, 44. 2 McAllister v. U. S., 141 U. S., 174, 188. 3 Murphy v. Ramsey, 114 U. S., 15, 44. 4 Capital Traction Co. v. Hof, 174 U. S., 1. 59 Howard, 242. 7 140 U. S., 453. 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, by attributing 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. Unquestionably, the "United States " whose people framed the Constitution and retained for themselves and the States all powers not delegated to the Federal Government, are the States of the Union only. These States and their people wield the whole political power of the Republic. In the words of Chief Justice Marshall," the members of the American Confederacy only are the States contemplated in the Constitution."1 Unquestionably, the Constitution contains clauses relating exclusively to 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 territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania.”2 SOME IMPORTANT QUESTIONS AFFECTED BY THE EXTENS Slavery. The first section of the Thirteenth Amendment of the Constitution reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Slavery exists in the Philippines, especially, perhaps exclusively, among the Mohammedan tribes, and although we shall see that these tribes may be classified as "Indians" and left with a large discretion in the management of their domestic affairs, they are within the purview of this amendment which, in fact, has been held to forbid a system of serfdom found among the Indians of Alaska.3 1 Hepburn v. Ellzey, 2 Cranch, 445, 452. 2 Loughborough v. Blake, 5 Wheaton, 317, 319. 3 Sah Quah's Case, 31 Federal Reporter, 727. |