Perhaps some examples of executive usurpation of the powers of Congress may be unearthed, but the present Administration appears to be the first that has ever made laws for United States territory under claim of right. The incapacity of the Executive Department to legislate for unorganized territory was recognized by President Jefferson in the case of Louisiana1 and by President Polk in the case of California2 and the wretched plight of Alaska, a territory neglected by Congress for more than thirty years, has been laid before Congress by every President, none of whom has supposed, however, that the inactivity of the legislature has given him the right to act in its stead. Yet, while President McKinley's last message recites that, "there is practically no organized form of government in the Territory [Alaska]. There is no authority except in Congress to pass any law no matter how local or trivial. . . ."3 we find no expression of doubt as to his powers to legislate for the unorganized Philippine territory, and that these powers are not really assumed upon the plausible though mistaken ground of the existence of insurrection is shown by the fact that the same powers are exercised in the peaceful territory of Puerto Rico.

As the Administration declares that its government of the islands "is maintained by the law of belligerent right," 4 it may harbor the idea that it enjoys the broad powers of a conqueror. Or, as it seems to be committed to the doctrine that the Constitution is inoperative in the ceded territory it may arrogate to itself all governmental powers upon the theory that the constitutional separation of powers does not affect the President as the custodian of the Philippines. Neither of these positions is tenable, as I have shown. Whenever the Administration has legislated for Puerto Rico and the Philippines since their annexation it has invaded the province of Congress, and all arguments of extenuation must come at last to the plea of necessity.

In considering this plea we must dismiss at the outset the notion that the assembling of Congress in stated session worked a change in the President's powers as administrator of the annexed territory, by depriving him of legislative functions enjoyed of necessity during the recess. These powers are the same in recess as in session, as, in theory of law the President never lacks the co-operation of the legislature except, perhaps, during the brief time needed to convene it in special session. If then the President possessed legislative powers of necessity when he might have called Congress but did not, his right must be based upon the mere inaction of Congress, and not upon the

1 Messages of the Presidents, I., 363.

3 Page 48.

2 Messages, etc., 589, 638.

4 See supra, page 37.

physical impossibility of its acting, for this was due to his failure to convene it, and on this theory he would possess legislative power now while Congress sits but does not act. And this appears to be the opinion of the Administration, for the Secretary of War has lately decreed an order forbidding the foreclosure of mortgages in Puerto Rico for six months, unless Congress shall otherwise provide. In opposition to this theory I submit the proposition that no legislative powers accrue to the President because of the inaction of Congress. If, in his judgment, legislation for annexed territory is necessary he may commend it to Congress in regular or special session; if Congress shall not legislate on his motion, or its own, it is presumed to be satisfied with the existing body of law comprising the Constitution, the old law of the territory and such United States statutes as may extend of their own force.

Whatever moral weight a plea of necessity may have when in a recess of Congress instant action is required to avert a threatened peril, it has none in this case. The governing of the islands is not an emergency in itself. Congress had provided for their acquisition before it adjourned in March, 1899, and must be presumed to have anticipated that the President would probably take charge of them during the usual recess. If, before the next regular session, there had arisen a need for legislation the President should have convened Congress. He cannot plead the emergency of a condition caused by his failure to call the legislature.

Breaches of the rule against executive legislation are not condoned by the good intentions of a chief magistrate or by the excellence of his decrees.

When the people commenced the Constitution with the law: "All legislative powers herein granted shall be vested in a Congress of the United States," they laid a prohibition upon all presidents at all times. Yet breaches are not always beyond repair.

The redeemable legislative acts of a President are those which Congress could have passed and can ratify. For these President McKinley should seek legislative approval, as President Taylor sought it for some acts of the military government of California,1 and as the British Government sought it in the case of "the forty days' tyranny” in 1766, during which it suspended the laws permitting the export of corn. Irredeemable acts are those which Congress is constitutionally incompetent to ratify.

1 Messages of the Presidents, V., 19.

THE POWERS OF CONGRESS.

Congress is supreme in the Philippines, and it acquired jurisdiction the moment the islands became United States territory. The impression that Congress will not be supreme until it actually legislates for the islands is erroneous. Congress is paramount over all United States territory, and in legislating for the Philippines it will not newly take jurisdiction, but will exercise jurisdictional rights already vested in it by the operation of the Treaty of Paris.

Whether the power of Congress to govern territory be derived from the provision of the Constitution which reads: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State,"

a provision plainly relating to the management of property, especially in public land, and not to the governing of people-or whether the power be derived, logically, from the "right to hold territory," 2 all will agree with Chief Justice Marshall that "whichever may be the source whence the power is derived, the possession of it is unquestioned." 3 And the scope of the power must be the same whichever its source.

The scope of federal power over territory beyond the States is thus defined by the Supreme Court: "By the Constitution, as is now well settled, the United States having rightfully acquired the territories and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, federal and state, over all the territories so long as they remain in a territorial condition."4 In virtue of these powers Congress enjoys a wide discretion in prescribing a government for the Philippines. Any form is permissible, from an organization chosen by the islanders to a governor or commission appointed by the President. But a territorial government is essentially subordinate and precarious. Congress remains the sovereign body, and may alter or abolish it at will and exert superior legislative powers during the term of its existence. The 1 American Ins. Co., v. Canter, I Peters, 511, 542.

2 Sère v. Pitot, 6 Cranch, 332, 336; Scott v. Sandford, 19 Howard, 393, 443; U. S. v. Kagama, 116 U. S., 375, 380.

3 American Ins. Co., v. Canter, I Peters, 511, 543.

4 Shively v. Bowlby, 152 U. S., 1, 48. See also National Bank v. County of Yankton, 101 U. S., 129, 133.

unquestioned power of Congress to establish a territorial government without enlisting the coöperation of the people, or even consulting them, results from the necessary denial of popular sovereignty in the territories; but this government, however arbitrarily imposed, cannot be arbitrary in conduct for it must obey the law of the Constitution.

The current session affords Congress the first opportunity to exert its constitutional powers in the Philippines, and though it should not legislate freely in respect of the islands in advance of reliable information of their requirements a general policy of deliberation will not excuse neglect of prompt efforts to ameliorate some of the worst conditions.

Each day of unrest in the Philippines makes our presence more hateful and postpones our opportunity for helpfulness; indeed, if resistance be greatly prolonged we may learn one day that we have demoralized a people we promised to benefit. The Republic itself may be menaced by persistent disaffection, for if it shall be involved presently in a new and greater war the enemy will find allies in the Philippine territory. The Administration is blameworthy for having belittled the strength of the insurrection. If the President shall now call for troops to garrison the islands thoroughly he will not be blamed for exaggerating it. But whatever may be the state of the insurrection, the peace we want is contentment-not merely the end of strife; and we cannot hope that one will follow the other while we treat disaffection as wanton opposition to a benign sovereign, and armed resistance to its authority as unnatural rebellion.

The attitude of regretful surprise that Filipinos should resist our benevolence is a dishonest pose. When we recall that a few months ago we knew nothing of the Philippines, know little now in fact, we may comprehend how ignorant must be the islanders of the institutions and spirit of our Republic, how possible it is that with their experience of white rulers they should view the United States as more dreadful than Spain because more powerful. In these circumstances conciliation is not an improper overture to rebels. It is a generous effort to allay the mistrust of a strange people, and to assure mutual comprehension between parties brought unexpectedly into a difficult relation. In pursuance of these ends let Congress cause proclamation to be made that the Philippines are not a dependency, but are part of the Republic and within the protection of the Constitution; and especially that citizenship and civil rights are bestowed in the Philippines as in all other United States territory, and that trade between

all parts of the Republic is free. This proclamation should not be withheld because proclamations of the President and his representatives have failed, for as a message from Congress declaring the law of the Constitution it will be of higher dignity and promise. Nor should it be issued with an exaggerated hope of its influence, since the sending of a message is after all but a one-sided dealing at arm's length with a situation that requires intimate discussion. Representative Filipinos should be invited to attend a conference to be held at Washington, and they should be received neither as traitors nor as heroes, but as people of a new territory come to discuss the vital question of its government.

If it be objected that any intercourse with insurgents is beneath our dignity let us remember that President Lincoln left his capital to talk with Confederate leaders at Hampton Roads, set in his own opinions, with no expectation of changing theirs, but determined that no chance for peace should be lost through lack of consideration on his part.

The President's government in the Philippines is so incompetent that Congress should supersede it at once. A bill has been introduced providing "That when all insurrection against the sovereignty and authority of the United States in the Philippine Islands, acquired from Spain by the treaty concluded at Paris on the tenth day of December, 1898, shall have been completely suppressed by the military and naval forces of the United States, all military, civil and judicial powers necessary to govern the said islands shall, until otherwise provided by Congress, be vested in such person and persons and shall be exercised in such manner as the President of the United States shall direct for maintaining and protecting the inhabitants of said islands in the free enjoyment of their liberty, property and religion." A precedent for this bill is said to be found in the action of Congress after the annexation of Louisiana. On October 31, 1803, ten days after the exchange of the ratifications of the treaty of cession, Congress passed an act authorizing the President to take possession of Louisiana and providing "that until the expiration of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress, all the military, civil and judicial powers, exercised by the officers of the existing government of the same, shall be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion." "The Louisiana Act was 12 Statutes at Large, p. 246.