mistakes the nature of the true protectoral relation, for it appears that in theory of law a protected state is usually deemed to lie beyond the jurisdiction of the legislature of the protecting state, whose interests are managed by its executive department acting in the domain of foreign relations.1

What the United States might have done in the Philippines by way of a protectorate is now a belated question. What they may do yet, we shall consider later. At present we are concerned to know only that they have brought the islands within the jurisdiction of Congress: And no argument of inconvenience is strong enough to overcome the conclusion that land thus brought within the complete and exclusive sovereignty of our legislature cannot be a foreign country, but must be part of the United States 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 several districts present different character

1 See Lee-Warner, The Protected Princes of India, 181, 249, 263, 333. Compare Ilbert, The Government of India, 440, note 3, on the West African protectorates.

2 See Chapter V.

istics.

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,' but these are not distinguishable in law from the others, for the admission of a new State 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 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 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.

1 See New Orleans v. De Armas, 9 Peters 224, 235.

CHAPTER II

THE CONSTITUTION AND THE

PHILIPPINES

ARGUMENTS AGAINST THE RULE OF THE

CONSTITUTION EXAMINED

An anxiety to rule the Philippines free from constitutional restrictions is even more marked than the unwillingness to consider them as part of the United States. Indeed, this unwillingness is due to the apprehension that throughout all this territory the Constitution must be the supreme law; and there is so keen a 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.

Prominent among the arguments are these: that the Constitution is not self-extending; that it is ineffective beyond the North American continent; that it was ordained for the States alone; that the power of the United States over annexed territory is the same as that possessed by other nations.

That the Constitution is Not Self-extending

It has been 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; and is bound to obey it wherever it is supreme, not privileged to decide where, within the 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 enact the law of the Constitution for the new district. The Supreme Court has recognized such legislation, but has never treated it as carrying the Constitution to a new field. When Congress authorizes a territorial legislature to make laws "not inconsistent with the Constitution and "laws of the United States," it affirms "a condition "necessarily existing in the absence of express dec"laration to that effect." 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 Congress could withdraw any 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. And the President and Senate, acting as a treatymaking body, are quite as incompetent to play with the organic law from which their existence and their powers are derived.

1 Maynard v. Hill, 125 U. S. 190, 204.

Mr. Webster 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 in"tended as general securities for public liberty. But they do not exist in Territories till introduced by "the authority of Congress."-Hence the suggestion that the Constitution will not be effective in the Philippines until Congress shall legislate for them. This suggestion is wholly impracticable, whether it be predicated upon casual enactments, or upon a statute establishing a civil government. Even Webster's name cannot dignify the proposition that constitutional guaranties 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 lawfully 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 concur"rence of Parliament) has a power to alter the old "and to introduce new laws in a conquered country, "this legislation being subordinate, that is, subor"dinate to his own authority in Parliament, he "cannot make any new change contrary to funda"mental principles."2

It is noteworthy that they who deny, consistently,

1 Curtis's Life of Webster, ii, 366.

2 Campbell v. Hall, Cowper 204, 209.