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“no matter how local or trivial,

he does not hesitate to legislate freely for the unorganized Philippine territory, and that this legislative power is not really assumed upon the plausible, though mistaken, ground of the existence of insurrection' is shown by the fact that it was exercised in the peaceful territory of Porto Rico during the military régime.

The legislative decrees in the Philippines are not justified by any intrinsic merit, though decrees possessing this quality may be ratified by Congress in the public interest. Nor are they excused by reason of necessity, for Congress could have authorized the enactment of laws of like tenor through unimpeachable agencies. Indeed the worst feature of the case is that we are not asked to be generous toward an Administration that pleads even plausible necessity as an excuse for overstepping the law: We are expected to applaud an Administration that, like the British Crown, asserts a right to make laws for new territory until the legislature shall see fit to interpose. Here is an assumption of power which merits the denunciation that Judge Curtis, at one time a member of the Supreme Court, and always a loyal citizen, launched against the Administration during the Civil War:

“ It has been attempted by some partisan journals to raise the cry of disloyalty’against any one who “should question these executive acts.

“But the people of the United States know that It is a gov

1 The executive duty of suppressing insurrection in United States territory, whether in the Philippines or in New Mexico, does not carry an executive prerogative of making laws for the disturbed district.

“loyalty is not subserviency to a man or to a party “or to the opinions of newspapers, but that it is an “honest and wise devotion to the safety and welfare “of our country, and to the great principles which “our constitution of government embodies, by which “alone that safety and welfare can be secured. And “when those principles are put in jeopardy, every “truly loyal man must interpose, according to his ability, or be an unfaithful citizen.

“This is not a government of men. "ernment of laws. And the laws are required by “the people to be in conformity with their will de

clared by the Constitution. Our loyalty is due to “that will. Our obedience is due to those laws; and "he who would induce submission to other laws, springing from sources of power not originating in “the people, but in casual events, and in the mere “will of the occupants of places of power, does not “exhort us to loyalty, but to a desertion of our • trust.”

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Congress is supreme in the Philippines. It acquired jurisdiction the moment the islands became United States territory. There is no room for the notion that jurisdiction does not attach until Congress actually legislates. Congress is supreme throughout the United States; it may legislate deliberately, reluctantly; it may shirk its duty; but it cannot escape the responsibility that goes with jurisdiction. In legislating for the Philippines, Congress will merely exercise jurisdictional rights already vested in it — vested by the ratification of the Treaty of Paris, in my opinion, but, at any rate, by the appropriation of the $20,000,000 called for by the Treaty.

1 Executive Power; reprinted in G. T. Curtis's Constitutional History of the United States, II, 671.

Source and Extent of Congressional Powers

- The power

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There is some difference of opinion as to the precise source of the power of Congress to govern the territory lying beyond the States. “of governing and legislating for territory,” says Chief Justice Marshall, “is the inevitable conse

quence of the right to hold territory. Could this “proposition be contested, the Constitution of the United States declares that Congress shall have

power to dispose of and make all needful rules “' and regulations respecting the territory or other «

property belonging to the United States.'” 2 And he said in a later opinion: “In the meantime

“Florida continues to be a Territory of the United

States, governed by virtue of that clause in the Constitution which empowers Congress 'to make “all needful rules and regulations respecting the

'territory or other property belonging to the *** United States.'

“Perhaps the power of governing a Territory “ belonging to the United States which has not, by “becoming a State, acquired the means of self

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1 See supra, p. 22. 2 Sère v. Pitot, 6 Cranch 332, 336.

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government, may result necessarily from the fact “ that it is not within the jurisdiction of any particu“lar State, and is within the power and jurisdiction “of the United States. The right to govern may be “the inevitable consequence of the right to acquire territory.”i In Chief Justice Taney's opinion, the power to “make all needful rules,” etc., refers solely to land ceded by the States, and the general power to govern territory “stands firmly” on the right to acquire it. This opinion has the better reason: It is self-justifying; and its adoption leaves the constitutional clause relating to territory to express simply the power to manage property, especially to sell the public lands, which, when the whole clause is read, is perceived to be its main purpose: “The Congress shall “have power to dispose of and make all needful rules “and regulations respecting the territory or other

property belonging to the United States; and "nothing in this Constitution shall be so construed

as to prejudice any claims of the United States, or “of any particular State.”3 But, to quote Chief Justice Marshall again: “Whatever may be the

source from which the power is derived, the pos"session of it is unquestioned.”

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Whatever its source, the power of Congress over territory beyond the States is exclusive and complete. The Supreme Court says: “By the Constitu

1 American Ins. Co. v. Canter, 1 Peters 511, 542.

2 Scott v. Sandford, 19 Howard 393, 432–444. See also U. S. v. Kagama, 118 U. S. 375, 380.

3 Art. IV, Sec. 3, § 2.
4 American Ins. Co. v. Canter, 1 Peters 511, 544.


“tion, as is now well settled, the United States, “having rightfully acquired the Territories, and

being the only government which can impose laws "upon them, have the entire dominion and sov

ereignty, national and municipal, federal and State, “over all the Territories, so long as they remain in "a territorial condition."1 “Congress may not only abrogate laws of the territorial legislatures, but it may

itself legislate directly for the local government. It may make a void act of the territorial "legislature valid, and a valid act void. In other "words, it has full and complete legislative authority “over the people of the Territories and all the "departments of the territorial governments.

It “may do for the Territories what the people, under “the Constitution of the United States, may do for " the States.” 2 Although the difference between federal and local affairs is not marked in the Territories by governments organically distinct, as in the States, it exists nevertheless, for Congress stands in a double relation to each Territory, treating it as a part of the republic in matters of federal concern, and caring for its local interests as a State government might

The local affairs of the Philippines may be administered with as single a regard to their peculiar interests as are the affairs of a State, for the Constitution does not prescribe that all Territories shall be administered from a common standpoint, but permits the peculiar needs of each to be considered.3

1 Shively v. Bowlby, 152 U. S. 1, 48. 2 National Bank v. County of Yankton, 101 U. S. 129, 133. 3 See France v. Connor, 161 U. S. 65.

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