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Congress not without limitations.

The application of the prohibitions depends on the character

of the territory.

sovereign nations. This principle has been recognized by this Court from its earliest decisions. The Convention which framed the Constitution of the United States, in view of the territory already possessed and the possibility of acquiring more, inserted in that instrument, in Article IV, section 3, a grant of express power to Congress "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

While these cases and others which are cited in the late case of Downes v. Bidwell sustain the right of Congress to make laws for the government of territories without being subject to all the restrictions which are imposed on that body when passing laws for the United States, considered as a political body of states in union, the exercise of the power expressly granted to govern the territories is not without limitations. Speaking of this power Mr. Justice Curtis said: "If then this clause does contain a power to legislate respecting the territory, what are the limits of that power? To this, I answer that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that in the exercise of legislative power, Congress cannot pass an ex post facto law or bill of attainder and so in respect to each of the other prohibitions contained in the Constitution."

In every case where Congress undertakes to legislate in the exercise of the power conferred by the Constitution, the question may arise as to how far the exercise is limited by the "prohibitions" of that instrument. The limitations which are to be applied in any given case involving territorial government must depend upon the relation of the particular territory to the United States, concerning which Congress is exercising the power conferred by the Constitution. That the United States may have territory which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered giving power over the territories and is sanctioned by the opinions of the justices

concurring in the judgment in Downes v. Bidwell. Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision that the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation. For this case the practical question is, must Congress in establishing a system for trial of crimes and offenses committed in the Philippine Islands carry to their people by proper affirmative legislation a system of trial by jury?

not a

It was said in the Mankichi case that when the territory had not Jury trial been incorporated into the United States these requirements fundamental [relating to indictment by grand jury and trial by jury] were not right. limitations upon the power of Congress in providing a government for territory in execution of the powers conferred upon Congress. In the same case Mr. Justice Brown in the course of his opinion said: "We would say that most if not all the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case (right to trial by jury and presentment by grand jury) are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property and their well-being."

We conclude that the power to govern territory, implied in the Conclusion. right to acquire it, and given to Congress in the Constitution in Article IV, section 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not without legislation and of its own force, carry such right to territory so situated.

Reasons

for the action.

Resolutions.

155. Our Relations with Cuba

In a joint resolution, approved April 28, 1898, Congress set forth these grounds for the intervention in Cuba which led to the war with Spain and the acquisition of a protecting power over that island:

Whereas the abhorrent conditions which have existed for more than three years in the Island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization, culminating, as they have, in the destruction of a United States battleship, with two hundred and sixty-six of its officers and crew, while on a friendly visit in the harbor of Havana, and can not longer be endured, as has been set forth by the President of the United States in his message to Congress of April eleventh, eighteen hundred and ninetyeight, upon which the action of Congress was invited: Therefore, Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, First. That the people of the Island of Cuba are, and of right ought to be, free and independent.

Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the Island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters.

Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect.

Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said Island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the Island to its people.

The following provisions of law govern the relations of Cuba with the United States. They were incorporated, as the "Platt amendment," to the army appropriation act of March, 1901, and accepted by the Cubans as an appendix to their constitution:

relations.

That the government of Cuba shall never enter into any treaty Foreign or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgment in or control over any portion of said island.

That said government shall not assume or contract any public Debts. debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which, the ordinary revenues of the island, after defraying the current expenses of government shall be inadequate.

vention.

That the government of Cuba consents that the United States Intermay exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba.

That all Acts of the United States in Cuba during its military occupancy thereof, are ratified and validated, and lawful rights acquired thereunder shall be maintained and protected.

ment of

That the government of Cuba will execute, and as far as neces- Improvesary extend, the plans already devised or other plans to be mutually conditions agreed upon for the sanitation of the cities of the island, to the end in Cuba. that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein.

That the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty.

Coaling

station.

That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.

That by way of further assurance the government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.

The inauguration of government in the islands.

The

commission.

156. Principles of American Policy in the Philippines

In 1900, President McKinley appointed the second Philippine Commission and on April 7 of that year he transmitted to them through the Secretary of War a letter containing their instructions from which these extracts are taken:

In the message transmitted to Congress on the 5th of December, 1899, I said, speaking of the Philippine Islands: "As long as the insurrection continues the military arm must necessarily be supreme. But there is no reason why steps should not be taken from time to time to inaugurate governments essentially popular in their form as fast as territory is held and controlled by our troops. To this end I am considering the advisability of the return of the commission or of such members thereof as can be secured, to aid the existing authorities and facilitate this work throughout the island."

To give effect to the intention thus expressed, I have appointed Hon. William H. Taft, of Ohio; Prof. Dean C. Worcester, of Michigan; Hon. Luke I. Wright, of Tennessee; Hon. Henry C. Ide, of Vermont, and Prof. Bernard Moses, of California, Commissioners to the Philippine Islands to continue and perfect the work of organizing and establishing civil government already commenced by the military authorities, subject in all respects to any laws which Congress may hereafter enact.

The Commissioners named will meet and act as a board, and the Hon. William H. Taft is designated as President of the board.

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