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and, while its range has not been definitely established, the nature of the subject must preclude its being extended to the point of interdiction. "It has "been said," says Chief Justice Marshall, “that the "Constitution does not confer the right of intercourse between State and State. That right "derives its source from those laws whose authority "is acknowledged by civilized man throughout the "world. This is true. The Constitution found it "an existing right, and gave to Congress the power "to regulate it." The last sentence would mean something very different were it altered to read: "The Constitution found it an existing right, and "gave to Congress the power to interdict it"; and this confused proposition would so pervert the law as to defeat its true and most admirable purpose.

The right of intercourse mentioned by Marshall obtained among communities practically independent, for the Articles of Confederation were but "a rope of sand," and it was because intercourse was seriously hampered by States exercising their sovereign powers of restriction that this clause was inserted in the Constitution. In fact, the need of commercial unity was the greatest incentive to the establishment of "the more perfect Union" assured by the Constitution. The States did not transfer to Congress the sovereign power of restriction which each possessed. They renounced these powers, left them in the air, and authorized Congress to maintain the freedom of trade established by their renunciation. To regulate domestic commerce, then, is to facilitate an intercourse placed beyond 1 Gibbons v. Ogden, 9 Wheaton 1, 211.

reach of prohibition, and, while regulations may in fact involve some restraint upon the conduct of particular intercourse, they have their warrant and purpose in the facilitation of all intercourse.

VALUE OF THE CONSTITUTION IN NEW TERRITORY

In affirming the authority of the Constitution in the Philippines, I am far from anticipating the transformation of an Asiatic dependency of Spain into a well-ordered section of the United States by any magical power of written law. Constitutional rule will not prevail throughout the islands until the authority of the United States shall be as supreme in fact as it is in theory.

The gap between fact and theory, so marked in the Philippines, is not a novel circumstance in our history. The influence of the Constitution spread slowly throughout the vast domains we have annexed from time to time; isolated communities made their own laws; sparsely peopled regions had none. A Southern Confederacy once defied the Constitution, and, temporarily, suspended its active authority throughout a wide area; yet the Supreme Court said of an insurrectionary State: "She never escaped "her obligations to that Constitution, though for a "while she may have evaded their enforcement."1

These untoward conditions illustrate the general proposition that constitutional guaranties are not thoroughly efficient unless persons injured by their violation have recourse to competent tribunals for

1 Keith v. Clark, 97 U. S. 454, 461.

"1

redress. How far such courts as may now sit in the islands are competent I do not discuss, for it may be admitted that until Congress shall authorize suitable tribunals constitutional rights will receive imperfect protection. But this admission must be made in regard to the whole republic. The only court named in the Constitution is the Supreme Court, whose original jurisdiction is strictly confined to "all cases affecting ambassadors, other public minis"ters and consuls, and those in which a State shall "be a party.' What inferior courts there shall be, what their jurisdiction, when and how their judgments involving the questions mentioned in the Constitution as reviewable by the Supreme Court shall be carried to this tribunal, are determinable by Congress, which cannot be forced to create a court, or directed in defining its jurisdiction, or prevented from abolishing it. Generally speaking, the people of the United States depend upon the facilities afforded by the Judiciary Acts for the orderly enforcement of their rights, and in saying this we suggest the high office of courts wherever justice is truly respected.

Before leaving the subject of the jurisdiction of courts it will be profitable to note a marked difference between the American and English systems. The Judicial Committee of the Privy Council affirmed an ancient rule when they said in Bishop Colenso's case: "It is the settled prerogative of the "British Crown to receive appeals in all colonial "causes." "2 The royal prerogative, however, has

1 See Marbury v. Madison, 1 Cranch 137.

2 The Lord Bishop of Natal, 3 Moore P. C. C., N. S. 115.

3

long been exercised in accordance with the judgment of the Judicial Committee, a court selected from the Council according to rules established by Parliament. This court of appeal has a broad and varied jurisdiction. For example, it will entertain an appeal from the act of a colonial governor in imprisoning an African chief,1 from the order of a colonial court denying certain powers and privileges to a colonial legislature,' from the judgment of a police magistrate in a petty colony; and it will receive appeals in criminal cases generally whenever it appears that "by a disregard of the forms of legal "process, or by some violation of natural justice or "otherwise, substantial and grave injustice has been "done." Under the British system, then, the subjects of the Queen in all parts of her dominions may, in certain cases, appeal for redress of injuries to a tribunal whose territorial jurisdiction expands with the expansion of the empire. Furthermore, the courts at Westminster have a common law right to grant the writ of habeas corpus: "which writ," said Chief Justice Cockburn, "in the absence of any pro"hibitive enactment, goes to all parts of the Queen's "dominions." 5

4

Our Supreme Court has, as we have seen, an original jurisdiction so restricted as to exclude all citizens of the republic from invoking its protection as a constitutional right. Especially noticeable, in 1 Sprigg v. Sigcau [1897], A. C. 238.

2 Speaker, etc., v. Glass, L. R. 3 P. C. C., 560.

3 Falkland Islands Co. v. The Queen, I Moore P. C. C., N. S. 299.

4 Dillet's Case, 12 App. Cas. 459.

5 Anderson's Case, 3 Ellis v. Ellis 487, 494.

1

contrast with English practice, is its inability to grant the writ of habeas corpus in virtue of organic power; 1 except, of course, in cases affecting ambassadors, other public ministers, and consuls.2 The appellate jurisdiction of the Supreme Court, including the matter of habeas corpus, is conferred by Congress, and it can hear appeals from such courts only as Congress shall designate. The designation of these courts in annexed territory is, therefore, a condition precedent to the opening of the Supreme Court to the inhabitants, to their enjoyment of the means of redress accorded to the rest of the community.

After the authority of the United States shall have been established in the Philippines, federal courts opened, and necessary laws enacted, after the government shall have done its part toward confirming the rule of the Constitution, the islanders must learn to live up to it before it can mean to them what it means to us. We do not hand down the Constitution to the Filipinos in the anticipation of an early acceptance of its principles. Indeed, the unanimous opinion that the islands should never be admitted to statehood affirms our conviction that the islanders ought never be trusted with a share of the political power of the republic. We do not believe the enthusiastic prophecy with which the First Philippine Commission closes its preliminary report: "When peace and prosperity shall have been estab

1 Bollman's Case, 4 Cranch 75, 94; Yerger's Case, 8 Wallace 85, 87.

2 See Siebold's Case, 100 U. S. 371, 374.