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part of the world; and our government, occupying at the outset only a fringe of the continent, has been compelled to regulate the process by which these regions were settled.
We have treated the tribes throughout as independent nations. We have purchased their title to lands, which they claimed, by money and by agreements to furnish food and other supplies. We have never taxed them nor undertaken to regulate their internal affairs. Their chiefs have remained in power, and their independence has been respected. We have dealt with them regularly by treaties, and in law we have never considered them as citizens or subjects. When we have taken land by treaty, it has been land alone, and not inhabitants, so that we have not claimed the legal right to tax them or to govern them as our subjects without their consent. The Supreme Court of the United States has held that they are "alien nations," "distinct political communities" (Elk v. Wilkins, 112 U. S. 94 at p. 98; U. S. v. Wong Kim Ark, 169 U. S. at pp. 680, 681). This theory in no way conflicts with the Declaration of Independence or with our political principles.
Our practice, you will say, has not squared with our theory, and I admit this; but the result has been a “century of dishonor.” No American least of all, as I know, yourself- can find any cause for just pride in our dealings with the Indians, or treat our course as a precedent to be followed with another race. We have, as Mr. Thayer says, held them “ in the hollow of our hand,” and we have abused our power; but we have not abandoned our theories of government.
As for the territories, he says, Congress has absolute power over them, and is not bound to give them republican institutions. As a matter of fact, Congress has always recognized an obligation to do so. These territories, originally vacant lands, except so far as the Indians occupied them, were filled up by emigrants who went there to organize States. They went knowing how they would be governed and anticipating exactly what they received. As soon as they became numerous enough to make their civil government important to them, they have been allowed to choose their legislatures and to make their own laws. They have been partly represented in Congress by their delegates, though these had no vote. They have framed their own constitutions, and have been · admitted as States when their population has become sufficient. At every step the inhabitants have been American citizens volun
tarily going into unsettled districts, and there organizing free government. Congress has insisted that their constitutions should exclude or permit slavery, and has passed certain laws affecting them; but the territorial condition has been a period of organization, a temporary phase, to which every emigrant has consented by going there voluntarily.
Especially is this true of the District of Columbia, a small territory ceded by two States to the general government for a capital. Its inhabitants at any given moment are largely citizens of other States, who are there because they are in the service of the United States. With few exceptions, they have gone there knowing how
. they were to be governed and that Congress would be their only legislature. All are apparently satisfied with their position. This is consent to the government, and the government of the District is no more inconsistent with the Declaration of Independence than is the military discipline to which the citizen subjects himself by enlisting in the army.
The difference seems to me clear between governing as we do our own capital city and our territories while they are becoming States, both peopled by men who have voluntarily submitted to the governments there in force, and endeavoring to impose our will upon some ten millions of foreigners by fire and sword. It is a perversion of terms, in my judgment, to call the District of Columbia and the territories colonies.
Mr. Thayer next assumes that the Constitution does not extend to the territories, and disposes of a mass of authority to the contrary by saying, “It would be easy to cite dicta and even decisions that extend the Constitution and what we call its Bill of Rights to the territories, but no judicial decision yet made has thoroughly dealt with the matter or can be regarded as at all final on a question so very grave.” He admits that "it is probably the prevailing legal opinion to-day that the citizen of a territory is a citizen of the United States, and that children born in the territories and subject to our national jurisdiction are citizens of the United States." It is curious that he qualifies this statement by the word “probably.” This proposition is universally admitted. No one ever suggested that a person born in a territory, of foreign parents, must be naturalized to become a citizen of the United States. The law on this point is well settled. (United States v. Wong Kim Ark, 169 U. S. p. 693.) Congress cannot grant or withhold the rights of
citizenship secured by the Constitution, as would be the case if Congress could at pleasure make the Filipinos American citizens.
“Probably also," he continues, “it is the prevailing legal opinion, supported by some judicial decisions, that the territories are a part of the United States, not merely in the eye of internal law, as all agree, but in the sense of our municipal law, so that, e.g., as judges have said, taxes must be uniform there and in the States.”
Again, a curiously qualified statement, when it is remembered that the Supreme Court of the United States has established this exact proposition in a carefully considered case, - Cross v. Harri
a son, 16 Howard, 164,— where the court held that as soon as the treaty of peace with Mexico was ratified, and before any action by Congress, the Constitution extended our tariff law over California, which was ceded by that treaty, through the clause which makes “duties, imports, and excises . . . uniform throughout the United States,” saying, “ The ratification of the treaty made California a part of the United States." Nor should we forget that Chief Justice Marshall, in Loughborough v. Blake, 5 Wheaton, 318, said that the grant of power to tax given by the Constitution to Congress extends to all places over which the government extends, “and must be exercised throughout the United States," adding: “Does this term designate the whole or any particular portion of the United States ? Certainly, this question can admit of but one answer. It is the name given to our great republic, which is composed of States and territories.”
These decisions and others that might be cited make it clear why the prevailing legal opinion is against Mr. Thayer's contention that the Constitution does not restrain the power of Congress over the territories. This opinion I share; and I doubt whether Mr. Thayer would hold that Congress could take from the citizens of Washington or New Mexico their right to a trial by jury, their right to be paid for property taken by eminent domain, and the other rights secured by the Constitution to citizens of the United States. He quotes some words of Chief Justice Marshall. He should remember also that in Pollard v. Hagan, 3 How. 312, Mr. Marshall said: “It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and laws of its own government.”
The law may be changed, but at present it is settled against Mr. Thayer's contention, not only by the weight of professional opinion, but by the Supreme Court of the United States. I may say that any other decision would lead to consequences so monstrous that no change seems to me probable. Under the law as it stands, his plan of dealing with Puerto Rico and the Philippines is impossible. I think you must recognize this if you read the decisions carefully.
Mr. Thayer then speaks of men, who think as I do, in these words: “When people permit themselves to talk, then, of vassal states and subject peoples, as if the necessary condition of colonies, say of Canada or Australia, or of our territories, were one of slavery, when they talk of holding colonies as contrary to the spirit of our free institutions, of its being un-American, and having
a tendency to degrade our national character,” and asks, “Has ; England suffered in her national character by governing Canada and Australia as she does ?”, I think he is hardly fair.
Canada and Australia are self-governing communities. In both cases, Englishmen have settled foreign lands, anxious to remain British subjects and anxious to retain the protection of the British flag. They choose their own legislature, they make their own laws, they impose their own taxes, they levy duties under a protective tariff upon English goods. They are in substance independent States, remaining under a British protectorate because they desire it. If they wished independence, it would at once be conceded. England does not govern them in any real sense, and of course she has not “suffered in her national character” by her nominal connection. No one speaks of Canada and Australia as “vassal states,” but Mr. Thayer does not propose to give the Filipinos such a government as Canada and Australia enjoy. did, this is all that the Filipinos ask; and the war may end to
He proposes to make them surrender unconditionally to our will, and, without consulting them, to give them such a government as we see fit, without the rights secured by our Constitution and subject to change at the will of Congress. States subject to the absolute will of another State are properly described as subject peoples,” or I do not know what language means. Canada and Australia afford no precedent for this.
The example of England is cited, but the fact is ignored that our very existence as a nation is a proof that we do not accept the principles upon which her colonial empire rests. England has
a monarch who is Queen of England and Empress of India. We have never contemplated a ruler who should be President of the United States and Emperor of the Eastern Archipelago, either in name or fact. This is sufficient to indicate the difference between our political systems. England moves in various ways. In Egypt she intervened to suppress an insurrection against the Khedive, the vassal of the Sultan. · His government is still maintained. Lord Kitchener took his title of Sirdar from Egypt, not from England, and won his victory mainly with Egyptian troops. Englishmen advise the Khedive, hold office under him, command his troops. This is the legal theory, and it is not long since the English government refused to declare even a protectorate. You do not propose to treat the Philippines in this way.
The English government in India is more nearly like what you would establish in our new possessions,- a government in which the natives have only the trifling part which their rulers choose to concede. This is nearly an absolute despotism. India was first won by the East India Company, which enriched itself at the expense of the natives. Clive and Edmund Burke have told us how. England as a nation was afterwards forced to intervene; and to-day the Indian people are as far from self-government as ever. Englishmen like Goldwin Smith see that India would have been further advanced today, had her people been left to work out their own destiny. Gladstone and Disraeli concurred in saying that India was a source of weakness, not of strength, to England. Trevelyan tells
you how the conquest of India was followed by a period of great corruption at home. Neither the ruler nor the subjects have profited; and the case proves the truth of Lincoln's words, already quoted, that such a system“ keeps the people ignorant and vicious.” We shattered the government of Mexico half a century ago, and left her to work out her own salvation. Can
you doubt that the Mexican people are better off to-day than if we had tried to govern them as you wish to govern the Filipinos ?
You propose to establish a benevolent and excellent government. You think that our rulers can frame for these men, whom you call savages, a better government than can be framed for them by the educated men of their own race, who form the present Philippine Parliament. So much depends on sympathy between ruler and
. subject that government is not likely to be successful where such sympathy does not exist, as it cannot exist between men of differ