followed substantially in the case of Florida 1 and may have inspired a part of the Act annexing Hawaii,2 but it will be shown that it is not a precedent for the Philippine bill.

The government of Louisiana, such as it was, was established definitely. The Philippine government is to be called into being by the President upon the happening of an event of which he is to be the sole judge the suppression of insurrection. And in this relation the bill is open to the serious objection that it recognizes, inferentially, the law of belligerent right as the present foundation of executive jurisdiction in the islands.

The Louisiana Act continued the old government of Louisiana and merely authorized the President to fill its offices. The Philippine bill enables the President to erect a government at will, manned by "such person and persons . . as he may direct."

The Louisiana Act did not purport to confer legislative powers upon the President, and Governor Claiborne's first proclamation expressly recognized the obligation of the old laws and municipal regulations. The Philippine bill seems to concede to the President full legislative powers.

The Louisiana government was to last no longer than the then session of Congress, though the new government ordained by Congress on March 24, 1804, was not actually installed until October 1, 1804. The Philippine government is without term.

Viewing the bill as an Administration measure and recalling the opinion of the Administration that the Constitution is not law in the Philippines, it seems that it purposes to invest the President with the right, or perhaps I should say to recognize that he has the right to hold all legislative powers in the island and exercise them at his pleasure. If this be the purpose of the bill it approves the powers of the British Crown over dependencies not regulated by Parliament without imposing the checks upon their abuse which obtain in the British system where the Crown can do nothing "contrary to the fundamental law,"3 and where relief from injustice may be had through an appeal to the Judicial Committee of the Privy Council.4

The Philippine bill is a halting measure of doubtful legality. It merely conveys an impression that some day, in some way something ought to be done for the Philippines, whereas it is the duty of Congress, and well within its power, to act at once. Probably Congress is not now in a position to prescribe an elaborate system of government;

13 Statutes at Large, 523.

230 Statutes at Large, 750.

3 See supra, P.

38.

4 See supra, p. 30.

but it is able to substitute for the present makeshift an organization that will be in all respects at least lawful and competent. Congress could ordain a government modeled, broadly, upon the Act of March 24, 1804, creating a temporary government for Orleans Territory composed of a governor, a legislative council and a court, all appointed by the President and vested with sufficient powers. Such a government would serve until Congress shall perfect a scheme for a permanent government.

THE DISPOSITION OF THE PHILIPPINES.

I have defined the status of the Philippines, and partially outlined the law governing our relation to them in order to determine the responsibilities of the Federal government in their regard. I have written as though there were no question of renouncing sovereignty over these islands because the opportunity for renunciation in nowise lightens the obligations now cast upon us, yet my conviction of the impolicy of annexation, expressed before the ratification of the Treaty of Paris,1 has been so strengthened by later events that I would have the voting citizens of the Republic view the disposition of the Philippines, not as settled by destiny, but as an open question.

As it is the purpose of these notes to deal chiefly with legal questions I shall pass over the moral and political principles that enjoin us to relinquish sovereignty over the Philippines, and simply point out the undoubted right and the probable method of relinquishment.

THE RIGHT OF DISPOSITION.

Although the law requires us to treat the Philippines as part of the United States it does not compel us to hold them forever. The implied right of acquisition under which we annexed the islands has its opposite in an implied right of disposition, at all events in the case of territory beyond a State.

Voluntary relinquishment of territory is not unexampled: Witness the cession of Louisiana by France to the United States, of Alaska by Russia to the United States, of Java and Heligoland by Great

1 See Notes on the Foreign Policy of the United States, June, 1898; A Note on the Question of the Philippines, Oct., 1898; Constitutional Aspects of Annexation, Dec., 1898, Harvard Law Review, Jan., 1899, reprinted in the Congressional Record, Jan., II, 1899.

Britain to Holland and Germany, respectively, of St. Bartholomew by Sweden to France. The right of disposition is conceded by the Administration in the agreement with the Sultan of Sulu which provides that the United States will not sell the Sulu Islands without his consent. The concession is important as showing that, in the opinion of the Administration, the annexation of the Philippines has not closed discussion as to their future disposition, but the provision itself is derogatory to our sovereignty. We acquired the Sulus from Spain without the consent of the Sultan, and we shall not require his permission to sell them.

1

There is, however, a presumption against the ability and willingness of a state to give up a section of its territory, and this is strengthened where the section has been deliberately acquired, or long occupied, or, above all, is identified with the rest of the country through national unity or community of interest. At the outbreak of the war the American people neither wished nor expected to annex the Philippines, and, whatever individual hope of aggrandizement lurked behind the plan of campaign in the East, the Administration maintains that aggrandizement was not the purpose, though it was well advised of the probable opportunity. Indeed, the prevailing argument for annexation is apologetic: The law of war forced us to the islands; the law of necessity has chained us there. Our occupation of the Philippines is not only of yesterday, but will probably be, during an indefinite period, merely an armed occupation. Not only is national unity beyond prophecy, but race hatred confronts us; and we are so far from even desiring community of interests that we actually tax the trade between the islands and the mainland, and would view an immigration of Filipinos as an Asiatic plague. When we add that the Philippines are not even an outer line of defense but rather a vulnerable outpost, and are neither the home of American colonists nor the seat of American investments it is perceived that we are not embarrassed by considerations that usually place relinquishment of territory beyond the pale of discussion.

THE PROTECTORATE.

The United States relinquishing sovereignty over the Philippines may have a choice of courses, but as at present advised they will be persuaded to a protectoral relation. The President says in his message: 2

1 See Admiral Dewey's letter from Hongkong, Mar. 31, 1898, Senate Doc. 73, 56th Cong., Ist Sess. 2 P. 44.

"The suggestion has been made that we could renounce our authority over the islands and, giving them independence, could retain a protectorate over them. This proposition will not be found, I am sure, worthy of your serious attention. Such an arrangement would involve at the outset a cruel breach of faith. It would place the peaceable and loyal majority, who ask nothing better than to accept our authority, at the mercy of the minority of armed insurgents. It would make us responsible for the acts of the insurgent leaders and give us no power to control them. It would charge us with the task of protecting them against each other and defending them against any foreign power with which they choose to quarrel. In short, it would take from the Congress of the United States the power of declaring war and vest that tremendous prerogative in the Tagal leader of the hour.”1 The humiliating relation here depicted is a travesty of a real protectorate. A brief examination of the law and custom of protectorates will show that the United States may assume the office of protector without allowing a minority of armed insurgents to terrorize the peaceable islanders, or permitting an Aguinaldo to call the American people to arms at his whistle.

A protectoral relation always suggests the comparative weakness of the protected country, but not, in its broadest sense, supervision by a guardian. In this sense, perhaps, the United States may be called the protector of Central and South American states, because in the Monroe Doctrine they declare their intention to resist foreign aggrandizement upon this continent. An extension of the Monroe Doctrine to the Philippines would not enable us to fulfil our present responsibilities in their regard. We should establish a closer relation — a protectorate.

"Protectorate" is a name for so great a variety of political relationships that of itself it defines none accurately, but a few general observations will suggest the relation I have in view. The protectorate will be founded upon a treaty or agreement with a Philippine state whose organization and fundamental law shall be satisfactory to the United States: I do not mean that we should draft an ideal constitution for the islands as did Locke for the Carolinas, nor commend, as of course, our own as the perfect model, but we must condition our protection upon the adoption of a practicable scheme of government as enlightened as we have a right to expect.

The Philippine state will not be an exception to the rule that a pro1 Page 44.

tected state is never sovereign in all respects. It will not be officially known in the family of nations, for it will hold no relations with foreign states, neither making treaties nor exchanging ministers, nor will it fly a national flag upon the high seas. At every point of contact between the state and the world at large the United States must stand; the promoter of its interests, the defender of its rights, the surety for its good behavior. This denial of official foreign intercourse is necessary if only for the reason that as the protector must defend the protected, it must deprive the latter of opportunity to embroil itself with a foreign state, and in anticipation of the possibility' of payment of damages by the United States on Philippine account the treaty should provide a method of recoupment.

As the responsibility for the defense of the island requires that the means be within our control the establishment of a protectorate will not be followed by the withdrawal of all our forces nor by the maintenance of a Philippine army at the discretion of the local government. The disposition of our troops will depend upon our own judgment, and so will the size and composition of a native force.

If it shall be advisable that foreigners be employed for a time in certain offices in the military and civil services in an advisory or responsible capacity the employment must be open to Americans alone, for the admission of other foreigners might lead to bickering and intrigue.

A protector may commend, and in fact often dictates a foreign commercial policy to the protected state, and any action of the United States in this direction should tend to open the door to the Philippines as wide as the exigencies of revenue will allow.

Should it appear that native courts ought not to administer civil or criminal justice where Americans or other foreigners are concerned, the treaty may provide and Congress maintain tribunals competent to try these cases.

To suggest in a general way the protectoral attitude of the United States towards the Philippines, it may be said that in matters of foreign concern our interest will be very broad, but in domestic affairs it will be limited to the maintenance of the Philippine state and the security of the protectorate. While it is to be hoped that the people of the northern islands will range themselves under a single government if not of a national, at least of a confederate character, race antagonisms may necessitate the recognition of more than one, and it is quite likely that the southern or Mohammedan islands will require a separate pro

tectorate.