that "by a disregard of the forms of legal process, or by some violation of natural justice or otherwise, substantial and grave injustice has been done."1 Under the British system, then, the subjects of the Queen in all parts of her dominion may appeal for redress of injuries to a permanent tribunal whose territorial jurisdiction expands with the expansion of the Empire. There is no such tribunal in the United States. Citizens in an annexed district have no recourse to the federal courts until Congress shall so provide. In these circumstances it behooves Congress to extend promptly the federal judicial system to the annexed territories.

After the authority of the United States shall have been established in the Philippines, Federal courts opened, and necessary laws enacted, after the government shall have done its part toward confirming the rule of the Constitution, the islanders must learn to live up to it before it can mean to them what it means to us. We do not hand down the Constitution to the Filipinos in the anticipation of an early acceptance of its principles. Indeed, the unanimous protest that the islands shall never be admitted to statehood affirms our conviction that the islanders can never be trusted with a share of the political power of the Republic. We do not believe, we do not wish to believe the enthusiastic prophecy with which the Philippine Commissioners close their preliminary report: "When peace and prosperity shall have been established throughout the archipelago, when education shall have become general, then, in the language of a leading Filipino, his people will, under our guidance, 'become more American than the Americans themselves."

A hostile environment does not annul the Constitution, although it may impair its efficiency. In the Philippine Archipelago, as in all United States territory, the Constitution confers rights upon the ignorant and the unwilling as well as upon those who value them; enjoins our public servants to respect it in all their dealings; justifies resistance to acts forbidden by it; and, in theory of law, renders void every command, and illegal every act disregarding its prohibitions.

EFFECT OF DENYING THE CONSTITUTION TO THE PHILIPPINES.

I do not belittle the inconvenience of governing the Philippines under the Constitution, but, having acquired the islands, we had better 1 Dillet's Case, 12 Appeal Cases, 459.

accept constitutional responsibilities in their regard than face the consequences of rejecting them. Rejection would mean to the Filipinos the rule of a new master of higher purpose, of greater ability, of kindlier disposition than the old one, yet equally 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 guarantees,1 in disregard of the fact that the Constitution demonstrates our conviction of their inefficiency, our determination that neither prejudice of race, or class, or religion, nor the power of one or of many shall overcome the rights of man so far as the written law, enforced by the courts, can maintain them. And who shall say that the constitutional restraints so necessary in the self-governing sections of the Republic are superfluous in the Philippines? Who shall say that abuse of power decreases with the increase of opportunity in the face of the unprincipled bill, now pending in Congress, discriminating against our fellow-citizens in Puerto Rico?

Were the Filipinos alone concerned we might perhaps be seduced to try our hand at absolutism, but the evil course would have farreaching consequences.

Should the Constitution be denied to the Philippines on the ground that it is only effective in the States the people of the Territories and the District of Columbia would be deprived of its protection, and they would suffer this wrong, not because of their deserts, but by the operation of a rule fabricated for the handling of a host of Malays, over whom we have hastily asserted dominion. If to live beyond the States is to live beyond the Constitution, New Mexico, Arizona, Oklahoma, Alaska, and Hawaii and Puerto Rico as well, will instantly present a moral claim to statehood that we may find it difficult to disregard.

Should the Constitution be denied to the Philippines upon any pretext a drawback from indiscriminate expansion will be removed. While acquisition of territory means the enlargement of the United States and the reception of new citizens, while Congress must govern all country within its jurisdiction as a commercial and social unit, the American people will not covet outlying land if its acquisition means fellowship with uncongenial multitudes.

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

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THE CONSTITUTION AND A COLONIAL POLICY.

We are told that the United States are a nation and are therefore competent to deal with the Filipinos as any other nation, especially Great Britain, might deal with them under the circumstances. This is true in the sense that there is an ultimate authority in the Republic substantially similar to the authority of the British nation. It is not true in the intended sense that this authority is lodged in the Federal Government. The British Parliament is the British nation for every purpose. The Federal Government is the American nation only for the purpose of exercising the powers delegated in the Constitution by the people of the several States, who have reserved to themselves or to the States all powers not delegated, and the right to amend the Constitution.

The immeasurable difference between the limited powers of Congress and the omnipotence of Parliament is recognized by our courts,1 and it cannot be too strongly emphasized at this moment, when a sudden admiration for English colonial policy has begotten the desire to imitate it.

The will of Parliament is the fundamental law of the British Empire whose parts are united by their common subjection to it, and Parliament governs the scattered lands and the polyglot people with equal and unfettered power. England and the Gold Coast, the citizen of London and the native of India are on an equal footing before an authority that knows no legal restraint. The Constitution is the fundamental law of the United States. So long as its broad guarantees run throughout their territory all the people are equal before the law in respect of their civil rights. But if these guarantees are not general all are not equal before the law. There is the law of the Constitution for some, the pleasure of Congress for others. The difference between British and American legislative systems shows how repugnant the British colonial policy would be to the spirit of our institutions even were it agreeable to their letter. An opportunist colonial policy, so harmonious with the British scheme of government, would be a strange graft on American institutions which are distinguished, and, as I think, admirably distinguished, from all others by their imposition of real restraints upon governmental power.

By the law of the Constitution all land within the sovereignty of the United States is one country; all people within their jurisdiction are one people, who enjoy life, liberty and property of constitutional right 1 See Van Horne's Lessee v. Dorrance, 2 Dallas, 304, 307; Justice Harlan's opinion in Robertson v. Baldwin, 165 U. S. 275, 296.

without regard to which side of a boundary line between State and Territory or of lines of latitude or longitude they happen to live; these lines cannot be made a hindrance to the course of legitimate commerce. A few months ago this statement was generally accepted as good law and policy, and it might not be so seriously questioned today had the Treaty of Paris limited our acquisitions to American territory. It is the circumstance of conquest in Asia with its suppressed but inevitable suggestion of further aggrandizement in the East, for while we talk of the Philippines we are thinking of China, that provokes the assertion that at last we have gone beyond the proper sphere of the Constitution.

Assuming, for the sake of argument, that the assertion is true or, at all events, expresses the deliberate wish of the American people, how shall we deal with the question it presents? Certainly not by accepting an injurious rule as a perpetual obligation, or by refusing to admit that the Constitution must come at last to reflect a matured public opinion. If the supremacy of the Constitution in the Philippines will cause serious embarrassment, the approbation of law will not make it endurable. Or, if the American people are unwilling to treat the islands as United States territory in any circumstances no rule of law will long compel them. I am convinced that either event should move us to relinquish sovereignty over the country we cannot or will not govern according to our Constitution. Any abandonment of constitutional for arbitrary rule must weaken the moral supremacy of the Republic, and the taking over of millions of Asiatics who are deemed unfit for fellowship must increase its burdens without bringing new strength to bear them.

But should these considerations be overborne by a determination to hold the Philippines as a subject province at all cost, let the Constitution as it stands remain unspoiled by interpretations restricting it to the States, or conditioning its efficacy in federal territory upon the pleasure of Congress or the treaty-making body. Let us frankly admit that in ruling without the restraint of organic law the government would assume an office requiring the approval of imperial standards for its acceptance, the delegation of imperial powers for its administration, and then approve these standards and delegate these powers in a special amendment of the Constitution. I have seen no considered suggestion that the Constitution be amended, yet it must come to this if the United States are to embark upon a colonial policy, with lawful, adequate and unquestioned powers. A short amendment would serve to distinguish the Republic, governed under the old organic law, from outlying provinces ruled as policy shall dictate.

34

THE GOVERNING OF THE PHILIPPINES.

The incorporation of the Philippines into the United States, and their subordination to the Constitution, are legal results of our acquisition of territorial sovereignty through the operation of the Treaty of Paris. Whether sovereignty should have been acquired is strenuously disputed. That it has been acquired is the controlling factor in the situation, and while it is maintained we must address ourselves to practical questions of government and policy involved in the administration of United States territory, some of which have been already considered.

EFFECT OF ANNEXATION UPON THE OLD ORDER.

One of the first questions suggested by the coming of a new sovereign to a country has regard to the fate of that old order which is evidenced by the local law. Chief Justice Marshall says, "the law which may be denominated political is necessarily changed."1 This statement is true in the broad sense that the peculiar attributes and powers of the old sovereign are not transmitted to the new one, nor do the laws through which such powers have been exercised become its laws. As the Supreme Court said in a later case, 2 " It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it." And other parts of the law termed "political" may, for one reason or another, lapse upon a transfer of sovereignty.

Although the new sovereign has a right to change all the political institutions of the annexed district Chief Justice Marshall did not mean that the act of annexation necessarily effects this sweeping result, and governmental agencies consistent with the new order may be utilized without confirmatory legislation. The vitality of municipal agencies, for example, is illustrated in the case of California, where the state courts have even sustained grants of pueblo (town) land made during the existence of the military government by ayuntami

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

2 Pollard v. Hagan, 3 Howard, 212, 225. See also New Orleans v. U. S., 10 Peters, 662, 736.