follow the constitutional practice of his predecessors he may relieve it at once. The President is not authorized to hamper internal commerce by laws of his own making, and this he has done in levying duties on merchandise carried from our mainland to our islands. Nor is he authorized to enforce a tariff act against merchandise brought in from islands which since its enactment have become United States territory. The Tariff Act of 1897 is entitled "An Act to provide revenue for the Government and to encourage the industries of the United States," and by the enacting clause its operation is limited to "articles imported from foreign countries." As the islands have been made domestic territory by the Treaty of Paris, they are not within the purview of an act intended to impose burdens upon foreign products exclusively. And this construction of the act is required by the Constitution, for the rule of uniformity which, as we have seen, forbids Congress to impose different duties upon foreign imports in different sections of the United States, forbids it to impose any duties whatever on commerce between them.

Our inquiry into the subject of the tariff leads to these conclusions: Under no circumstances can duties be lawfully collected in the annexed islands or the mainland upon the imported products of either; duties collected upon foreign goods brought to the islands must be the same as imposed in the rest of the United States.

ALLEGED IMPOSSIBILITY OF CONSTITUTIONAL GOVERNMENT.

The considered arguments against the Constitution for the Philippines affect the sanction of law, but they are really arguments of inconvenience, for they rest upon the assumed impossibility or, at least, the impropriety of constitutional government rather than upon approved legal principles. The assumption cannot be disproved by reciting opinions of the Supreme Court, for it suggests a question of fact determinable only by experience, but it will be shown that our constitutional powers are not presumptively insufficient and our constitutional obligations not presumptively unendurable.

The Constitution permits the pacification of the Philippines by any method which public opinion should tolerate. Surely a government that suppressed the revolt of eleven States is competent to deal with an insurrection in federal territory. And when reconstruction shall follow pacification a government that "reconstructed" the South cannot decently complain of lack of power in the Philippines.

It will be shown that the Constitution permits the President to govern the islands after a fashion until Congress shall exert its powers, and does not hamper Congress in providing a government for them. And the local affairs of the Philippines may be administered with as single a regard to their peculiar interests as are the affairs of a State, for the Constitution does not prescribe that all territories shall be administered from a common standpoint, but permits the peculiar needs of each to be considered.

There is bitter opposition to applying to the Philippines the constitutional rule of uniform tariff taxes. It is asserted that Congress cannot impose uniform duties on foreign imports that will be equally fair to the islands and to the mainland; but this suggests merely a phase of the persistent tariff controversy. Doubtless the new phase presents new difficulties, yet recalling that one tariff act drove South Carolina to the edge of rebellion, and that another led Louisiana to the Treasury for sugar bounties, we need not apprehend more extreme results from extending our revenue system to the Philippines. Moreover, the Philippines will have no voice in making a United Stat tariff, and this exclusion of an interested section from the work of bargain and compromise that usually accompanies tariff legislation will make the task somewhat easier. Exclusion is not so great a hardship as it seems for in any event an insular tariff would be dictated in Washington, and not in Manila, and the islanders will be quite as well off with an assurance of equal taxation as with a possibility of lighter taxation. Federal taxation without representation may be inevitable under the territorial system, but it is shorn of its worst possibilities where the taxpayer cannot be singled out for special burdens.

The rule of uniformity that forbids Congress to impose different duties on foreign goods imported into the Philippines and into the mainland of course forbids it to impose any duties whatever on commerce between them, and here we find the chief motive for resisting its application to our new territory. Free trade between the Philippines and Puerto Rico and the mainland may affect important agricultural interests here. Should Cuba be annexed, notwithstanding our promise, serious disturbance would be inevitable. If manufactures can be established in the islands the wave of disturbance will cover a wider But these results, however unwelcome, cannot influence the interpretation of the Constitution. They must be accepted as practical consequences of annexation.

area.

There is no evident absurdity in attributing the 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 of the Republic, and no law can check the orderly migration of Filipinos to any part of the country. "We are all citizens of the United States," says the Supreme Court," and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own State." 1 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 hangedung 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."

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 whole political power of the republic, whether directed to federal, state or territorial affairs, is vested exclusively in the voting citizens of the several states, and each State may prescribe such qualifications for suffrage as it pleases, so long as it bars no one because of "race, color, or previous condition of servitude." The entire sovereignty over territory beyond the States is vested in the federal legislature. This proposition was questioned in the Dred Scott case 2 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 of the

union of States, and is now thoroughly discredited.1 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 secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government, state and national; their political rights are franchises which they hold as privileges in the legislative discretion of the Congress of the United States."2

VALUE OF THE CONSTITUTION IN NEW TERRITORY.

In affirming the authority of the Constitution in the Philippines, I am far from anticipating the transformation of an Asiatic dependency of Spain into a well-ordered section of the United States by any magical power of written law. Constitutional rule will not prevail throughout the islands until the authority of the United States shall be as supreme in fact as it is in theory.

The gap between fact and theory, so marked in the Philippines, is not a novel circumstance in our history. A Southern Confederacy once denied the Constitution, and temporarily suspended its active authority throughout a wide area; yet the Supreme Court said of the insurrectionary State of Tennessee: "She never escaped her obligations to that Constitution, though for a while she may have evaded their enforcement."3 Again, the influence of the Constitution spread slowly throughout the vast domains we have annexed from time to time; isolated communities made their own laws, sparsely-peopled regions had none.

These conditions, after all, illustrate merely the general proposition that constitutional guarantees are not thoroughly efficient unless persons injured by their violation have recourse to competent tribunals for redress. How far such courts as may now sit in the islands are thus competent, I do not discuss, for it may be admitted that until Congress shall institute federal tribunals constitutional rights will receive

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. 3 Keith v. Clark, 97 U. S., 454, 461.

imperfect protection. But this admission must be made in regard to the whole Republic. The only court named in the Constitution is the Supreme Court, whose original jurisdiction is strictly confined to "all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party."1 Whether Congress may destroy the Supreme Court should forever be an academic question, but certainly this tribunal of limited original jurisdiction is the only one specifically contemplated by the Constitution. What inferior courts there shall be, what their jurisdiction, when and how their judgments involving the questions mentioned in the Constitution as reviewable by the Supreme Court shall be carried up, are determinable by Congress, which cannot be coerced into creating a court or directed in defining its jurisdiction, or prevented from abolishing it. Broadly speaking, the American people depend upon the facilities afforded by the Judiciary Acts for the orderly enforcement of their constitutional rights. And the Judiciary Acts are but one of many examples of legislative aid to the Constitution, for, although its presence in a particular territory does not depend on the pleasure of Congress, as I have shown, many of its provisions are partially or wholly ineffective anywhere until Congress shall have effectuated them by legislation.

Before leaving the subject of the jurisdiction of courts it will be profitable to note a marked difference between the American and English systems. The Judicial Committee of the Privy Council affirmed an ancient rule when they said in Bishop Colenso's Case: "It is the settled prerogative of the British Crown to receive appeals in all colonial causes."2 The royal prerogative, however, has long been required to be exercised in accordance with the judgment of the Judicial Committee, a court selected from the Council according to rules established by Parliament.

For

This court of appeal has a broad and varied jurisdiction. example, it will entertain an appeal from the act of a colonial governor in imprisoning an African chief,3 from the order of a colonial court denying certain powers and privileges to a colonial legislature, from the judgment of a police magistrate in a petty colony 5; and it will receive appeals in criminal cases generally whenever it appears

1 See Marbury v. Madison, I Cranch, 137.

2 The Lord Bishop of Natal, 3 Moore P. C., N. S. 115.

3 Sprigg v. Sigcan [1897] A. C., 238.

4 Speaker, etc., v. Glass, L. R. 3, P. C. 560.

5 Falkland Islands Co. v. The Queen, I Moore P. C., N. S. 299.