have power to dispose of and make all needful rules and regulations
respecting the territory or other property of the United States." That
grant is absolute, and the only qualification is the one to be drawn
from the general spirit of the Government the Constitution was framed
to organize. Is it consistent with that spirit to hold territory
permanently, or for long periods of time, without admitting it to the
Union? Let the man who wrote the very clause in question answer. That
man was Gouverneur Morris of New York, and you will find his answer on
page 192 of the third volume of his writings, given only fifteen years
after, in reply to a direct question as to the exact meaning of the
clause: "I always thought, when we should acquire Canada and Louisiana,
it would be proper to govern them as provinces, and allow them no voice
in our councils. In wording the third section of the fourth article, I
went as far as circumstances would permit to establish the exclusion."
This framer of the Constitution desired then, and intended definitely
and permanently, to keep _Louisiana_ out! And yet there are men who
tell us the provision he drew would not even permit us to keep the
Philippines out! To be more papist than the Pope will cease to be a
thing exciting wonder if every day modern men, in the consideration of
practical and pressing problems, are to be more narrowly constitutional
than the men that wrote the Constitution!
Is it said that, at any rate, our practice under this clause of the
Constitution has been against the view of the man that wrote it, and in
favor of that quoted from Mr. Chief Justice Marshall? Does anybody
seriously think, then, that though we have held New Mexico, Arizona,
and Oklahoma as territory organized or unorganized, part of it nearly a
century and all of it half a century, our representatives believed all
the while they had no constitutional right to do so? Who imagines that
when the third of a century during which we have already held Alaska is
rounded out to a full century, that unorganized Territory will even
then have any greater prospect than at present of admission as a State?
or who believes our grandchildren will be violating the Constitution in
keeping it out? Who imagines that under the Constitution ordained on
this continent specifically "for the United States of _America_," we
will ever permit the Kanakas, Chinese, and Japanese, who make up a
majority of the population in the Sandwich Islands, to set up a
government of their own and claim admission as an independent and
sovereign State of our American Union? Finally, let me add that
conclusive proof relating not only to practice under the Constitution,
but to the precise construction of the constitutional language as to
the Territories by the highest authority, in the light of long previous
practice, is to be found in another part of the instrument itself,
deliberately added three quarters of a century later. Article XIII
provides that "neither slavery nor involuntary servitude shall exist
within the United States, _or any place subject to their jurisdiction_."
If the term "the United States," as used in the Constitution, really
includes the Territories as an integral part, as Mr. Chief Justice
Marshall said, what, then, does the Constitution mean by the additional
words, "or any place subject to their jurisdiction"? Is it not too
plain for argument that the Constitution here refers to territory not a
part of the United States, but subject to its jurisdiction--territory,
for example, like the Sandwich Islands or the Philippines?
What, then, shall we say to the opinion of the great Chief
Justice?--for, after all, his is not a name to be dealt with lightly.
Well, first, it was a dictum, not a decision of the court. Next, in
another and later case, before the same eminent jurist, came a
constitutional expounder as eminent and as generally accepted,--none
other than Daniel Webster,--who took precisely the opposite view. He
was discussing the condition of certain territory on this continent
which we had recently acquired. Said Mr. Webster: "What is Florida? It
is no part of the United States. How can it be? Florida is to be
governed by Congress as it thinks proper. Congress might have done
anything--might have refused a trial by jury, and refused a
legislature." After this flat contradiction of the court's former
dictum, what happened? Mr. Webster won his case, and the Chief Justice
made not the slightest reference to his own previous and directly
conflicting opinion! Need we give it more attention now than Marshall
did then?
Mr. Webster maintained the same position long afterward, in the Senate
of the United States, in opposition to Mr. John C. Calhoun, and his
view has been continuously sustained since by the courts and by
congressional action. In the debate with Mr. Calhoun in February, 1849,
Mr. Webster said: "What is the Constitution of the United States? Is
not its very first principle that all within its influence and
comprehension shall be represented in the Legislature which it
establishes, with not only a right of debate and a right to vote in
both houses of Congress, but a right to partake in the choice of
President and Vice-President?... The President of the United States
shall govern this territory as he sees fit till Congress makes further
provision.... We have never had a territory governed as the United
States is governed.... I do not say that while we sit here to make laws
for these territories, we are not bound by every one of those great
principles which are intended as general securities for public liberty.
But they do not exist in territories till introduced by the authority
of Congress.... Our history is uniform in its course. It began with the
acquisition of Louisiana. It went on after Florida became a part of the
Union. In all cases, under all circumstances, by every proceeding of
Congress on the subject and by all judicature on the subject, it has
been held that territories belonging to the United States were to be
governed by a constitution of their own,... and in approving that
constitution the legislation of Congress was not necessarily confined
to those principles that bind it when it is exercised in passing laws
for the United States itself." Mr. Calhoun, in the course of this
debate, asked Mr. Webster for judicial opinion sustaining these views,
and Mr. Webster said that "the same thing has been decided by the
United States courts over and over again for the last thirty years."
I may add that it has been so held over and over again during the
subsequent fifty. Mr. Chief Justice Waite, giving the opinion of the
Supreme Court of the United States (in National Bank _v._ County of
Yankton, 101 U.S. 129-132), said: "It is certainly now too late to
doubt the power of Congress to govern the Territories. Congress is
supreme, and, for all the purposes of this department, has all the
powers of the people of the United States, except such as have been
expressly or by implication reserved in the prohibitions of the
Constitution."
Mr. Justice Stanley Matthews of the United States Supreme Court stated
the same view with even greater clearness in one of the Utah polygamy
cases (Murphy _v._ Ramsey, 114 U.S. 44, 45): "It rests with Congress to
say whether in a given case any of the people resident in the Territory
shall participate in the election of its officers or the making of its
laws. It may take from them any right of suffrage it may previously
have conferred, or at any time modify or abridge it, as it may deem
expedient.... Their political rights are franchises which they hold as
privileges, in the legislative discretion of the United States."
The very latest judicial utterance on the subject is in harmony with
all the rest. Mr. Justice Morrow of the United States Court of Appeals
for the Ninth Circuit, in February, 1898, held (57 U.S. Appeals 6):
"The now well-established doctrine [is] that the Territories of the
United States are entirely subject to the legislative authority of
Congress. They are not organized under the Constitution nor subject to
its complex distribution of the powers of government. The United
States, having rightfully acquired the Territories, and being the only
Government which can impose laws upon them, has the entire dominion and
sovereignty, national and municipal, Federal and State."
[Sidenote: More Recent Constitutional Objections.]
In the light of such expositions of our constitutional power and our
uniform national practice, it is difficult to deal patiently with the
remaining objections to the acquisition of territory, purporting to be
based on constitutional grounds. One is that to govern the Philippines
without their consent or against the opposition of Aguinaldo is to
violate the principle--only formulated, to be sure, in the Declaration
of Independence, but, as they say, underlying the whole
Constitution--that government derives its just powers from the consent
of the governed. In the Sulu group piracy prevailed for centuries. How
could a government that put it down rest on the consent of Sulu? Would
it be without just powers because the pirates did not vote in its
favor? In other parts of the archipelago what has been stigmatized as a
species of slavery prevails. Would a government that stopped that be
without just powers till the slaveholders had conferred them at a
popular election? In another part head-hunting is, at certain seasons
of the year, a recognized tribal custom. Would a government that
interfered with that practice be open to denunciation as an usurpation,
without just powers, and flagrantly violating the Constitution of the
United States, unless it waited at the polls for the consent of the
head-hunters? The truth is, all intelligent men know--and few even in
America, except obvious demagogues, hesitate to admit--that there are
cases where a good government does not and ought not to rest on the
consent of the governed. If men will not govern themselves with respect
for civilization and its agencies, then when they get in the way they
must be governed--always have been, whenever the world was not
retrograding, and always will be. The notion that such government is a
revival of slavery, and that the United States by doing its share of
such work in behalf of civilization would therefore become infamous,
though put forward with apparent gravity in some eminently respectable
quarters, is too fantastic for serious consideration.
Mr. Jefferson may be supposed to have known the meaning of the words he
wrote. Instead of vindicating a righteous rebellion in the Declaration,
he was called, after a time, to exercise a righteous government under
the Constitution. Did he himself, then, carry his own words to such
extremes as these professed disciples now demand? Was he guilty of
subverting the principles of the Government in buying some hundreds of
thousands of Spaniards, Frenchmen, Creoles, and Indians, "like sheep in
the shambles," as the critics untruthfully say we did in the
Philippines? We bought nobody there. We held the Philippines first by
the same right by which we held our own original thirteen States,--the
oldest and firmest of all rights, the right by which nearly every great
nation holds the bulk of its territory,--the right of conquest. We held
them again as a rightful indemnity, and a low one, for a war in which
the vanquished could give no other. We bought nothing; and the twenty
millions that accompanied the transfer just balanced the Philippine
debt.
But Jefferson did, if you choose to accept the hypercritical
interpretation of these latter-day Jeffersonians--Jefferson did buy the
Louisianians, even "like sheep in the shambles," if you care so to
describe it; and did proceed to govern them without the consent of the
governed. Monroe bought the Floridians without their consent. Polk
conquered the Californians, and Pierce bought the New Mexicans. Seward
bought the Russians and Alaskans, and we have governed them ever since,
without their consent. Is it easy, in the face of such facts, to
preserve your respect for an objection so obviously captious as that
based on the phrase from the Declaration of Independence?
Nor is the turn Senator Hoar gives the constitutional objection much
more weighty. He wishes to take account of motives, and pry into the
purpose of those concerned in any acquisition of territory, before the
tribunals can decide whether it is constitutional or not. If acquired
either for the national defense or to be made a State, the act is
constitutional; otherwise not. If, then, Jefferson intended to make a
State out of Idaho, his act in acquiring that part of the Louisiana
Purchase was all right. Otherwise he violated the Constitution he had
helped to make and sworn to uphold. And yet, poor man, he hardly knew
of the existence of that part of the territory, and certainly never
dreamed that it would ever become a State, any more than Daniel Webster
dreamed, to quote his own language in the Senate, that "California
would ever be worth a dollar." Is Gouverneur Morris to be arraigned as
false to the Constitution he helped to frame because he wanted to
acquire Louisiana and Canada, and keep them both out of the Union? Did
Mr. Seward betray the Constitution and violate his oath in buying
Alaska without the purpose of making it a State? It seems--let it be
said with all respect--that we have reached the reductio ad absurdum,
and that the constitutional argument in any of its phases need not be
further pursued.
[Sidenote: The Little Americans.]
If I have wearied you with these detailed proofs of a doctrine which
Mr. Justice Morrow rightly says is now well established, and these
replies to its assailants, the apology must be found in the persistence
with which the utter lack of constitutional power to deal with our new
possessions has been vociferously urged from the outset by the large
class of our people whom I venture to designate as the Little
Americans, using that term not in the least in disparagement, but
solely as distinctive and convenient. From the beginning of the
century, at every epoch in our history we have had these Little
Americans. They opposed Jefferson as to getting Louisiana. They opposed
Monroe as to Florida. They were vehement against Texas, against
California, against organizing Oregon and Washington, against the
Gadsden Purchase, against Alaska, and against the Sandwich Islands. At
nearly every stage in that long story of expansion the Little Americans
have either denied the constitutional authority to acquire and govern,
or denounced the acquisitions as worthless and dangerous. At one stage,
indeed, they went further. When State after State was passing
ordinances of secession, they raised the cry,--erroneously attributed
to my distinguished predecessor and friend, Horace Greeley, but really
uttered by Winfield Scott,--"Wayward Sisters, depart in peace!"
Happily, this form, too, of Little Americanism failed. We are all glad
now,--my distinguished classmate here,[7] who wore the gray and invaded
Ohio with Morgan, as glad as myself,--we all rejoice that these
doctrines were then opposed and overborne. It was seen then, and I
venture to think it may be seen now, that it is a fundamental principle
with the American people, and a duty imposed upon all who represent
them, to maintain the Continental Union of American Independent States
in all the purity of the fathers' conception; to hold what belongs to
it, and get what it is entitled to; and, finally, that wherever its
flag has been rightfully advanced, there it is to be kept. If that be
Imperialism, make the most of it!
[7] The Hon. Albert S. Berry, M.C., from the Covington,
Kentucky, District.
[Sidenote: The Plain Path of Duty.]
It was no vulgar lust of power that inspired the statesmen and soldiers
of the Republic when they resisted the halting counsel of the Little
Americans in the past. Nor is it now. Far other is the spirit we invoke:
Stern daughter of the Voice of God,
O Duty! If that name thou love--
in that name we beg for a study of what the new situation that is upon
us, the new world opening around us, now demand at our hands.
The people of the United States will not refuse an appeal in that name.
They never have. They had been so occupied, since the Civil War, first
in repairing its ravages, and then in occupying and possessing their
own continent, they had been so little accustomed, in this generation
or the last, to even the thought of foreign war, that one readily
understands why at the outset they hardly realized how absolute is the
duty of an honorable conqueror to accept and discharge the
responsibilities of his conquest. But this is no longer a child-nation,
irresponsible in its nonage and incapable of comprehending or assuming
the responsibilities of its acts. A child that breaks a pane of glass
or sets fire to a house may indeed escape. Are we to plead the baby
act, and claim that we can flounce around the world, breaking
international china and burning property, and yet repudiate the bill
because we have not come of age? Who dare say that a self-respecting
Power could have sailed away from Manila and repudiated the
responsibilities of its victorious belligerency? After going into a war
for humanity, were we so craven that we should seek freedom from
further trouble at the expense of civilization?
If we did not want those responsibilities we ought not to have gone to
war, and I, for one, would have been content. But having chosen to go
to war, and having been speedily and overwhelmingly successful, we
should be ashamed even to think of running away from what inexorably
followed. Mark what the successive steps were, and how link by link the
chain that binds us now was forged.
The moment war was foreseen the fleet we usually have in Chinese waters
became indispensable, not merely, as before, to protect our trade and
our missionaries in China, but to checkmate the Spanish fleet, which
otherwise held San Francisco and the whole Pacific coast at its mercy.
When war was declared our fleet was necessarily ordered out of neutral
ports. Then it had to go to Manila or go home. If it went home, it left
the whole Pacific coast unguarded, save at the particular point it
touched, and we should have been at once in a fever of apprehension,
chartering hastily another fleet of the fastest ocean-going steamers we
could find in the world, to patrol the Pacific from San Diego to Sitka,
as we did have to patrol the Atlantic from Key West to Bar Harbor.
Palpably this was to go the longest way around to do a task that had to
be done in any event, as well as to demoralize our forces at the
opening of the war with a manoeuver in which our Navy has never been
expert--that of avoiding a contest and sailing away from the enemy! The
alternative was properly taken. Dewey went to Manila and sank the
Spanish fleet. We thus broke down Spanish means for controlling the
Philippines, and were left with the Spanish responsibility for
maintaining order there--responsibility to all the world, German,
English, Japanese, Russian, and the rest--in one of the great centers
and highways of the world's commerce.
But why not turn over that commercial center and the island on which it
is situated to the Tagals? To be sure! Under three hundred years of
Spanish rule barbarism on Luzon had so far disappeared that this
commercial metropolis, as large as San Francisco or Cincinnati, had
sprung up and come to be thronged by traders and travelers of all
nations. Now it is calmly suggested that we might have turned it over
to one semi-civilized tribe, absolutely without experience in governing
even itself, much less a great community of foreigners, probably in a
minority on the island, and at war with its other inhabitants--a tribe
which has given the measure of its fitness for being charged with the
rights of foreigners and the care of a commercial metropolis by the
violation of flags of truce, treachery to the living, and mutilation of
the dead which have marked its recent wanton rising against the Power
that was trying to help it!
If running away from troublesome responsibility and duty is our rôle,
why did we not long ago take the opportunity, in our early feebleness,
to turn over Tallahassee and St. Augustine to the Seminoles, instead of
sending Andrew Jackson to protect the settlements and subdue the
savages? Why, at the first Apache outbreak after the Gadsden Purchase,
did we not hasten to turn over New Mexico and Arizona to _their_
inhabitants? Or why, in years within the memory of most of you, when
the Sioux and Chippewas rose on our Northwestern frontier, did we not
invite them to retain possession of St. Cloud, and even come down, if
they liked, to St. Paul and Minneapolis?
Unless I am mistaken in regarding all these suggestions as too unworthy
to be entertained by self-respecting citizens of a powerful and
self-respecting nation, we have now reached two conclusions that ought
to clear the air and simplify the problem that remains: First, we have
ample constitutional power to acquire and govern new territory
absolutely at will, according to our sense of right and duty, whether
as dependencies, as colonies, or as a protectorate. Secondly, as the
legitimate and necessary consequence of our own previous acts, it has
become our national and international duty to do it.
[Sidenote: The Policy for our Dependencies]
How shall we set about it? What shall be the policy with which, when
order has been inexorably restored, we begin our dealings with the new
wards of the Nation? Certainly we must mark our disapproval of the
treachery and barbarities of the present contest. As certainly the
oppression of other tribes by the Tagals must be ended, or the
oppression of any tribe by any other within the sphere of our active
control. Wars between the tribes must be discouraged and prevented. We
must seek to suppress crimes of violence and private vengeance, secure
individual liberty, protect individual property, and promote the study
of the arts of peace. Above all, we must give and enforce justice; and
for the rest, as far as possible, leave them alone. By all means let us
avoid a fussy meddling with their customs, manners, prejudices, and
beliefs. Give them order and justice, and trust to these to win them in
other regards to our ways. All this points directly to utilizing
existing agencies as much as possible, developing native initiative and
control in local matters as fast and as far as we can, and ultimately
giving them the greatest degree of self-government for which they prove
themselves fitted.
Under any conditions that exist now, or have existed for three hundred
years, a homogeneous native government over the whole archipelago is
obviously impossible. Its relations to the outside world must
necessarily be assumed by us. We must preserve order in Philippine
waters, regulate the harbors, fix and collect the duties, apportion the
revenue, and supervise the expenditure. We must enforce sanitary
measures. We must retain such a control of the superior courts as shall
make justice certainly attainable, and such control of the police as
shall insure its enforcement. But in all this, after the absolute
authority has been established, the further the natives can themselves
be used to carry out the details, the better.
Such a system might not be unwise even for a colony to which we had
reason to expect a considerable emigration of our own people. If
experience of a kindred nation in dealing with similar problems counts
for anything, it is certainly wise for a distant dependency, always to
be populated mainly, save in the great cities, by native races, and
little likely ever to be quite able to stand alone, while,
nevertheless, we wish to help it just as much as possible to that end.
[Sidenote: The Duty of Public Servants.]