dissimilar. Said the Supreme Court of the insurgent State of Texas and its people: "The State did not cease to be a State nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war of conquest and subjugation."1 In point of fact, the war in Luzon is waged for conquest and subjugation, yet it is not a foreign war. Like the Civil War, it is an insurrection against the United States, and the status of the insurgents is determined, like that of the Confederates, by our assertion of sovereignty, and not by their assertion of independence.

The Chinese and other foreigners in the Philippines are within the protection of the rule that while an alien "lawfully remains here he is entitled to the benefit of the guarantees of life, liberty and property secured by the Constitution to all persons of whatever race within the jurisdiction of the United States. His personal rights when he is in this country and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States."

What is the status of the natives living in the islands at the time of annexation, and who are not within the constitutional definition of Indians? Like the Mexicans of New Mexico these have come under the sovereignty of the United States as former subjects or citizens of a state which has ceded the land of their residence. They have a right to reside in their native land, and they must possess in permanence at least the primary rights affirmed by the Supreme Court to aliens during their sojourn.

Having ascribed to the Filipinos the rights confirmed by the Constitution to all human beings within the jurisdiction of the United States we come to the question of their political status. Treaties of annexation frequently provide that the subjects or citizens of the ceding state may elect to retain their old allegiance, either unconditionally or upon condition that they emigrate within a certain time. This election is sometimes called and usually treated as a right,3 and it is, I think, the nearest approach to a recognition in international law of the ethical principle that government should exist with

1 Texas v. White, 7 Wallace, 700, 726.

2 Lem Moon Sing v. U. S., 158 U. S., 538, 547.

3 See Cogordan, La Nationalité, 321.

the consent of the governed in its relation to the cession of territory. This principle is not recognized to the extent of entitling the inhabitants of the territory to determine its destiny by their vote. Though the plebiscite is not unknown in such cases, it is uncommon and is not always a free expression of the people's will.'

Nor is the so-called right of election anything more than a privilege, either granted by a conqueror, who thereby waives his right to forbid the emigration of persons whom he may hold as new subjects or citizens,2 or arranged by parties negotiating on an equal basis, and in each case often depending for its real value upon the ability of the people to find homes elsewhere. This privilege we properly accorded to the Spanish-born residents in the Philippines, for these have a fatherland to receive them should they choose to return and a government to protect them should they choose to remain. It was properly withheld from the Filipinos, as its allowance would have greatly embarrassed the United States without holding out any substantial advantage to the islanders.

The Filipinos, then, remain in the islands absolutely divested of their allegiance to Spain, and by the rules of public law they owe allegiance to the United States. Said Chief Justice Marshall of the inhabitants of Florida after its cession to the United States, "The same act which transfers their country, transfers the allegiance of those who remain in it." 3 And the Supreme Court said in a later case, "Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise as may be provided."4 The Supreme Court has recognized a power to create citizens en masse by process of collective naturalization "as by the force of a treaty by which foreign territory is acquired." 5 Now the treaties of annexation considered by the Court purport to confer citizenship expressly, and so Chief Justice Marshall significantly said of the citizenship of the people of Florida who remained there after cession, "It is unnecessary to inquire, whether this is not their condition, independent of stipulation." The Treaty of Paris contains no such stipulation, but

1 See Phillimore, International Law, I., 585, 604.

2 See U. S. v. Repentigny, 5 Wallace, 211, 260.

3 American Insurance Co. v. Canter, I Peters, 511, 542.

♦ Boyd v. Thayer, 143 U. S., 135, 162.

5 Elk v. Willkins, 112 U. S., 94, 102.

6 American Ins. Co. v. Canter, I Peters, 511, 542.

because it operates to transfer the allegiance of the Filipinos from Spain to the United States it appears to naturalize them collectively by implication. We have no word other than "citizens" to describe persons whose relation to the United States involves the reciprocal obligations of loyalty and protection.1

The Tariff.

The authority of the Constitution in the Philippines has an important bearing upon the question of the taxation of commerce.2

First, of commerce between the islands and foreign countries. After our occupation of California had been confirmed by the ratification of the treaty of cession the Administration abandoned the military tariff imposed during the belligerent occupation, and proceeded to collect upon foreign imports the duties of the general Tariff Act.3 A different practice prevails in our new territory where the Administration imposes duties at discretion. Now even if Congress were authorized to levy peculiar taxes upon foreign goods brought into annexed territory the President would have no right to do so. His ability to collect duties at all rests upon a presumed intention of Congress evidenced by a tariff act, though it is not clearly decided that even such collections are valid unless they are ratified by Congress. To admit his right to levy taxes at discretion because of a latent power in Congress to do this would imply the existence of an executive power to originate revenue legislation in territory belonging to the United States, in derogation of the fundamental principle that taxes shall not be imposed by executive proclamation, and of the particular provision of the Constitution that “All bills for raising revenue shall originate in the House of Representatives."

We come now to the question whether Congress itself may impose special duties upon foreign goods brought into the Philippines. As a matter of fact Congress has never exacted peculiar duties in new districts, but has always extended the existing tariff laws either about the time of annexation or shortly thereafter. As a matter of law, the Administration insists that the constitutional provision that "all duties, imposts and excises shall be uniform throughout the United States," does not apply to the new islands. The Secretary of War says in his report for 1899:5 "The provision of the Constitution prescribing uniformity of duties throughout the United States was not meant for

1 See Chisholm v. Georgia, 2 Dallas, 419, 456. 3 Cross v. Harrison, 16 Howard, 164.

2 See infra, pages 39-40.

4 See infra, page 40. 5 Page 27.

them [the Puerto Ricans] but was a provision of expediency solely adapted to the conditions existing in the United States upon the continent of North America." I should call a law assuring equal taxation and freedom of trade throughout the Republic a provision of justice, not of expediency, and I fail to understand upon what principle a court must hold this provision to be operative in Maine, Louisiana, Alaska and Ohio, and in Mexico and Labrador, should we one day annex them, yet inoperative in Puerto Rico. From this makeshift interpretation of the Constitution we turn with confidence to Chief Justice Marshall's impregnable definition of the "United States" contemplated by this very clause-"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; and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties and excises should be observed in the one, than in the other."1 Here is the law of the commercial unity of the Republic expounded by its foremost interpreter, and the Philippines being within the Republic are within the law.

We have next to consider the question of duties upon commerce between the islands and our mainland. A statement of the Court in Fleming v. Page 2 is often cited in this relation: ". . . under our revenue laws every port is regarded as a foreign one, unless the custom house from which the vessel clears is within a collection district established by act of Congress, and the officers granting the clearance exercise their functions under the authority and control of the laws of the United States." This statement misleads in so far as it lends color to the assertion that precedent sanctions the taxation of this commerce. It is conceded that a port is foreign in a fiscal sense, though the United States claim title to it, if they have not gained possession, as in the case of Baton Rouge in the Louisiana territory ceded by Spain to France and by France to us, but actually held by Spain for some time after we had taken possession of New Orleans; or have lost possession, as in the case of Castine in Maine, seized by the British forces in 1814:3 and a port is foreign, too, though the United States have possession, if they await the ratification of a treaty to perfect their title, as in the case of San Juan in Puerto Rico, or if they hold it by mere force of arms, as in the case of Tampico in the Mexican 1 Loughborough v. Blake, 5 Wheaton, 317, 319. 29 Howard, 603, 617. 3 U. S. v. Rice, 4 Wheaton, 246.

Nor can new

War, which was the matter before the Court in Fleming v. Page. But a scrutiny of administrative practice down to the end of the Mexican War shows that with perhaps trifling and peculiar exceptions, as in the case of New Orleans,1 duties were not collected upon goods carried between old and new possessions after our right to the latter had been confirmed by the ratification of a treaty of cession. The notable illustration of the rule of free intercourse, however, is the case of California after the Mexican War. Upon the ratification of the treaty ceding California to the United States the Administration promptly recognized the trade between the new territory and the rest of the country as domestic, as appears by the following passage from a letter of the Secretary of State quoted by the Supreme Court in Cross v. Harrison 2 "This government de facto [the temporary government of California] will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles the growth, produce or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the productions of California. duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States." And the Court also refers to a dispatch from the Secretary of the Treasury "providing for the reciprocal admission of goods which were the growth, etc., of California and the United States, free of duty, into the ports of each." The California precedent was followed upon the annexation of Alaska, the Secretary of the Treasury deciding that furs and oils brought in from the new territory were not subject to duty.3 The present Administration disregards these precedents. It treats the commerce between our islands and our mainland as foreign, and collects duties in each upon the imported products of the other, ex acting in the former place a tax determined by itself, and in the latter the duties of the Tariff Act. It is ungenerous and unlawful to treat our new citizens as foreigners in their commercial relations and hamper an intercourse whose promotion should be our first concern. So disastrous has this practice proved to Puerto Rico that the President has said to Congress, "Our plain duty is to abolish all customs tariffs between the United States and Puerto Rico and give her products free access to our markets."4 But as the distress is caused by his refusal to 2 16 Howard, 164, 185.

1 See Cross v. Harrison, 16 Howard, 164, 199.

3 Synopsis Treasury Decisions, 1868, pp. 10 and 20.

4 Message 1899, p. 50.