of the republic, and no law can check the orderly migration of Filipinos to any part of the country. A man's right to work in any part of the republic, and his right to send the lawful product of his labor to any part, rest upon precisely the same foundation of personal liberty. As for liberty of speech and of the press, expressly guaranteed by the Constitution, why should not a Filipino speak and write his mind when he may be punished for abusing his rights, and hung if, like the Chicago anarchists, his utterances are linked to the crimes they are intended to provoke?

The Filipinos are entitled to bear arms, but the Constitution affirms this right for "the security of a "free state," not for the benefit of insurgents; they may assemble and petition for redress of grievances, but the Constitution requires them to do so "peaceably."

Our rejection of the guaranties as constitutional standards of conduct in the Philippines would mean to the islanders the rule of a new master of higher purpose, of greater ability, of kindlier disposition than the old one, yet quite as 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 guaranties.1

In the same vein Judge Day, the head of the American Peace Commission at Paris, says: "What"ever the power of the American Government under "the Constitution, the American people, through

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

"their executive and representatives in Congress, "may be trusted to see that there goes with Ameri'can sovereignty the underlying principle of free"dom and liberty for which our fathers fought and "for which they set up a government of and by and "for the people. A party which should ignore or "forget these principles would be relegated by the "people from power to obscurity.""

2

A profession of good intentions is merely a pious opinion, not a substitute for a bill of rights. The Constitution originally adopted contained very few provisions of a bill of rights, and this omission was warmly defended by Hamilton, Wilson, and other statesmen. But the people mistrusted a government apparently capable of inflicting the abuses so intolerable under English rule. They made light of the objection that the prohibition of specific abuses might imply the power to inflict unforeseen ones. They demanded the guaranties that were quickly imposed in the first ten amendments, and these so thoroughly covered the ground that no further prohibition has been laid upon federal power save in the Fifteenth Amendment, forbidding the United States to deprive any person of suffrage because of "race, color, or pre"vious condition of servitude." The same jealousy of arbitrary power is manifested in all the constitutions of the States. How graceless, then, is the assertion that Filipinos and Porto Ricans find ample protection in the self-asserted righteousness of the governing

1 Address before the Michigan Bar Association, May 23, 1900, p. 12.

2 The Federalist, No. 84.

3 Elliot's Debates, 1st Ed., III, 251.

body of the republic, when this body has determined that neither prejudice of race or class or religion, nor the power of one or of many shall overcome the rights of its own members so far as the organic law enforced by the courts can maintain them! And who will say that constitutional restraints so necessary in the self-governing sections of the republic are superfluous in the Philippines? Who will say that abuse of power decreases with the growth of opportunity?

The Bill of Rights is not an essay on liberty. It is a law forbidding acts which, for the most part, are political crimes, and the illegality of these acts does not depend on the place of their commission or the color of their victims, if they are committed within the territorial jurisdiction of Congress.

Conscious of the injustice of arrogating the exclusive benefits of the federal bill of rights to the people of our country who need them least, the opponents of constitutional rule in the new territory are casting about for a device whereby some of these benefits at least may be carried to the islands without drawing the Constitution after them.

In Goetze v. U. S.,1 the Court, commenting on a proposition that "a republic cannot be allowed to govern without any restraint," says: "In this very principle we may find the safeguard of such terri"tory. If the United States tried to govern any "territory in violation of the spirit pervading repub"lican institutions, such action might be held illegal "by courts on the basis of this principle. It may 1103 Federal Rep. 72, 84.

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"be admitted that the constitutional guaranties of civil rights would apply to territory under the sovereignty, but not a part, of the United States. "Certain civil rights which we believe belong to every one, are crystallized into the negative pro"visions of our Constitution, in order to prevent any "wrongful and improper use of our power, and these "may well be held to control our power wherever "it reaches. These considerations may be found to "limit us in governing any territory. Whether they "do or not it is not necessary here to decide. If 'they do, it will be because we cannot violate the principles of government embedded in our institu"tions, not because Porto Rico is a part of the American nation. It will be for the reason thus "stated by Mr. Justice Bradley in Mormon Church "v. United States: Doubtless Congress in legis"lating for the Territories would be subject to those "fundamental limitations in favor of personal rights "which are formulated in the Constitution and "its amendments; but these limitations would exist "rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by any express and direct applica"tion of its provisions.' Mr. Justice Bradley's much-quoted dictum is not a fit conclusion to these observations, because it recognizes the obligation of the guaranties, which is the important thing, and describes it as being inferential rather than direct, which is not important. Concerning the observations themselves I have only to say that a judge who asserts that our new possessions are not "part of the "American nation" is estopped from anticipating that

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their inhabitants may be entitled to the guaranties; for the Supreme Court has declared: "The Constitu❝tion can have no operation in another country."1 And "the spirit pervading republican institutions" cannot be invoked by the courts to discredit acts of government, except as it is embodied in the Constitution, for in this written law the people of the United States have gone as far as they intended to go in restraining their government. The right of the Supreme Court to condemn acts conflicting with these limitations has long been conceded; but should the court enthrone a "spirit" whose responses must reflect the opinion or prejudice of the questioning judge, it would assert an intolerable power of intervention in affairs of state, as well in New York as in the Philippines.

TAXATION COMMERCE

The authority of the Constitution in the Philippines has an important bearing upon the subject of federal taxation, especially the taxation of commerce.

Foreign Commerce

First, of commerce between the islands and foreign countries. After our occupation of California had been confirmed by the ratification of the treaty of cession, the Administration abandoned the military tariff imposed during the belligerent occupation, and proceeded to collect upon foreign imports the duties 1 Ross's Case, 140 U. S. 453, 464.