nation? And what is land impressed with United States nationality but United States territory? But apart from this Article the suggestion is discredited by a conclusive presumption of law. The treaty-making body has, without doubt, a large discretion as to the interest it may acquire in land on behalf of the Republic, or the relation it may cause the Republic to assume toward another country. For example, our rights over Pearl River, in Hawaii, and Pago Pago, in Samoa, were not the rights of unlimited sovereignty; and by this very Treaty of Paris we assume a peculiar relation toward Cuba wholly distinguishable from sovereign proprietorship. Assuredly we may gain an interest in a country or assume a certain control over it without making it United States territory. But when land is brought within the complete and exclusive sovereignty of the Republic I find no argument of inconvenience strong enough to overcome the presumption that it is United States territory by force of the supreme tenure by which it is held.

The Philippines are not only within the United States in a general sense; they are not distinguished organically from the rest of our territory. Prior to the Treaty of Paris the common property of the States of the Union, called the territory of the United States, comprised New Mexico, Arizona, Oklahoma, Indian Territory, Alaska, Hawaii, and a number of islets. To these are now added the Philippines, Porto Rico and Guam. These districts present different characteristics. All are not governed in the same way. Some will become States or parts of States. Others will not. Some, indeed, have been acquired under what has been called a promise of ultimate statehood,1 but these are not distinguishable in law from the others, for the admission of new States is an act of policy within the unlimited discretion of Congress. Hawaii, annexed without promise, may enter the Union before Indian Territory, carved out of that Louisiana purchase in regard to which the so-called promise was made nearly a century ago. All are held by the United States in sovereign proprietorship, and although we unite now in protesting the everlasting unfitness of the Philippines for admission to the Union, our prejudice does not prevent their being, in point of law, as eligible as New Mexico, nor would their admission by the next generation involve a more radical and surprising reversal of prejudice than the admission of millions of negroes to political equality by the last generation. All the districts I have named are organically alike, because 1 See New Orleans v. De Armas, 9 Peters, 224, 235.

each is owned by the United States in sovereign proprietorship, and when this likeness is determined all differences in condition, location and probable destiny must be purely circumstantial.

THE CONSTITUTION AND THE PHILIPPINES.

An anxiety to rule the Philippines free from constitutional restrictions is even more marked than the unwillingness to consider them United States territory. Indeed this unwillingness is due to the apprehension that throughout all this territory the Constitution must be the supreme law. And so keen is the fear that we shall be obliged to administer the Philippines by constitutional rules that ingenious arguments are advanced to prove that the Constitution is really quite as foreign to these islands, unquestionably ours, as though they belonged to another nation.

Furthermore, the gravity of the issues at stake has created an impression that the question of the Philippines is not properly a question of law, but lies within that domain of policy into which the Supreme Court will not intrude; or, as some having greater respect for the powers than for the integrity of the Court say, its judgment will reflect what they assume is the popular desire to exploit the islands with a free hand. The Philippine question is political, and until it be adjudicated the Administration will probably persist in misconstruing the Constitution to suit its policy. But whenever a person having access to the federal courts alleges that one of his constitutional rights is invaded, what may have been a political question becomes an issue in a suit at law - the suitor must pay a tax, or he need not; his property has, or has not been wrongfully taken. The decision may displease a faction; it may thwart a novel policy, or even forbid a practice of long standing; yet the court will see only the parties to the suit, and judge the cause according to the law of the Constitution.

ARGUMENTS AGAINST CONSTITUTIONAL RULE EXAMINED.

It is contended that the Constitution is not in the Philippines because it has not been carried there by an act of Congress. This argument attributes unlawful powers to the federal legislature. Congress is the creature of the Constitution, not its master; bound to obey it wherever it is supreme, not privileged to decide where, within the

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jurisdiction of the United States, it shall be supreme. Probably the argument is suggested by an improper estimate of legislative practice. Certain acts of Congress organizing territories purport to extend the Constitution to the new district. The Supreme Court has recognized such legislation, but has never treated it as carrying the Constitution to a new field. In fact, the Court in a recent case practically ignored an act of Congress purporting to establish the right to trial by jury in Utah Territory, declaring that the right was established by the Constitution. 1 The acts in question are not of constitutional dignity: If the Constitution is in the territory by its own force they affirm an actual condition in a spirit of abundant caution; if it is not, they are merely repealable laws couched in the phrase of the Constitution, and an act of Congress dispensing with trial by jury, for example, would abrogate the privilege granted by the so-called extension of the Constitution. Of all the heresies that embarrass the fair discussion of the Philippine question few are more mischievous than the notion that Congress is competent to grant and, if to grant, to take away or withhold the Constitution at pleasure.

It is suggested that the Constitution will not affect the Philippines until Congress shall establish civil government there. Mr. Webster expressed perhaps somewhat the same idea when he said in the Senate on February 24, 1849, "I do not say that while we sit here to make laws for these territories, we are not bound by every one of the great principles which are intended as general securities for public liberty. But they do not exist in territories till introduced by the authority of Congress." 2 Even Webster's name cannot sustain the proposition that constitutional guarantees demand respect only when the establishment of civil order under the auspices of Congress renders them less likely to be needed. A monstrous doctrine indeed that the President may rule United States territory during the inaction of Congress free from the restraints which, it is conceded, affect both himself and Congress after the territory shall have been duly organized! Even a King of England cannot do so much, for as Lord Mansfield said: "If the King (and when I say the King, I always mean the King without the concurrence of Parliament) has a power to alter the old and introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles." 3

1 Thompson v. Utah, 170 U. S., 343, 346. 2 Curtis's "Life of Webster," ii., 366. 3 Campbell v. Hall, Cowper 204, 209.

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The annual report of the Secretary of War for 1899 contains the following passage: "The Treaty of Paris provides: The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.' I assume, for I do not think that it can be successfully disputed, that all acquisition of territory under this treaty was the exercise of a power which belonged to the United States, because it was a nation, and for that reason was endowed with the powers essential to national life, and that the United States has all the powers in respect of the territory which it has thus acquired, and the inhabitants of that territory, which any nation in the world has in respect of territory which it has acquired; that as between the people of the ceded islands and the United States the former are subject to the complete sovereignty of the latter, controlled by no legal limitations except those which may be found in the treaty of cession; that the people of the islands have no right to have them treated as States, or to have them treated as the territories previously held by the United States have been treated, or to assert a legal right under the provisions of the Constitution which was established for the people of the United States themselves and to meet the conditions existing upon this continent, or to assert against the United States any legal right whatever not found in the treaty."1 If I read this passage aright, it suggests two arguments against the rule of the Constitution. One is predicated on a provision of the Treaty of Paris, which will be considered presently: The other is suggested by the words: "The people of the islands have no right to have them treated as the territories previously held by the United States have been treated, or to assert a legal right under the provisions of the Constitution, which was established for the people of the United States themselves, and to meet the conditions existing upon this continent," and we read later that the Puerto Ricans cannot demand uniform tariff duties as between Puerto Rico and the United States, because the constitutional provision of uniformity was "solely adapted to the conditions existing in the United States upon the continent of North America." In other words, the Constitution is supposed to have been ordained for the present and future dominions of the United States upon the continent of North America and nowhere else. The Preamble, it is true, entitles our Republic "The United States of America," but I understand the suffix to be merely a descriptive term aptly chosen at the time, and not a legal restriction; otherwise we could not have lawfully annexed the Philippines. The

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"continental" theory is not even derived from the Preamble, for it restricts the Constitution to North America. Upon what basis of fact is a Constitution conceded to be adapted to the diverse physical, social, and economic conditions of our continental domain, deemed to be essentially unfit for Puerto Rico? Upon what principle of law can there be read into the Constitution this or any other geographical limitation on its authority?

The last clause of Article XI. of the Treaty of Paris reads: "The civil rights and political status of the native inhabitants of the territory hereby ceded to the United States shall be determined by the Congress." This clause is cited to show that the Constitution is not in the ceded territory, for, it is argued, were the Constitution supreme the rights and status of the islanders would not be left to the will of Congress. This argument is based on the premise that the President and Senate may determine whether or not the Constitution shall prevail in territory annexed by their treaty. It has been shown that Congress is incompetent to grant or withhold the Constitution, and if the power denied to the Federal legislature be vested in the special legislative body designated for the making of treaties, it must be upon the theory that this body differs from Congress in being free from constitutional restraints.

The theory that treaty provisions are a law unto themselves has a certain attraction because engagements with foreign states are presumably sacred, but this ethical principle does not necessarily bind our courts, and if Congress passes an act inconsistent with a treaty pledge, they will enforce the act and not the treaty, holding simply that an old law has been repealed by a new one.1 And in this relation it should be noted that the clause we are considering is not an engagement with Spain, but is merely a reservation of a matter of domestic interest. Another argument for attributing arbitrary powers to the treatymaking body is that it must be competent to act quickly and decisively in the most serious emergencies. What agreements and concessions the President and Senate might be forced to make and the Republic be forced to accept by a conqueror, suggests a circumstance too humiliating and too remote to affect the interpretation of their powers in normal cases. And the Treaty of Paris is on our part a normal act, requiring no sacrifice of constitutional principle to the law of necessity. The theory of the independence of the treaty1 Head Money Cases, 112 U. S. 580; Fung Yue Ting v. U. S. 149 U. S. 698; U. S. v. Old Settlers, 148 U. S. 427.