inflict on these temporarily turbulent wards of the Nation! First
order; then justice; then American civil rights, not for a class, or a
tribe, or a race, but for all the people; then local self-government.
But if your guests begin this task with the notion that they are the
first officials of a free people ever given such work, and must
therefore, American fashion, discover from the foundation for
themselves,--if they fancy nobody ever dealt with semi-civilized
Orientals till we stumbled on them in the Philippines,--they will waste
precious time in costly experiments, if not fail outright. It isn't
worth while thus to invent over again everything down to the very
alphabet of work among such people. We can afford to abate the
self-sufficiency of the almighty Yankee Nation enough to profit a
little by the lessons other people have learned in going over the road
before us.
From such lessons they will be sure to gather at once that if they now
show a trace of timidity or hesitation in their firm and just course,
because somebody has said something in Washington or on the stump, or
because there is an election coming on, they will fail.
In fact, if they do not know now, as well as they know what soil they
still stand on and what countrymen are about them, and if they do not
act as if they knew, that, no matter what the politicians or the
platforms say, and no matter what party comes into power, the American
people have at present no notion of throwing these islands away, or
abandoning them, or neglecting the care of them, they have not mastered
the plainest part of their problem, and must fail.
Above all, if there is a trace of politics in their work, or of seeking
for political effect at home, they will fail, and deserve to fail. In
this most delicate and difficult task before them there is no salvation
but in the scrupulous choice of the very best fitted agency available,
in each particular case, for the particular work in hand. If they
appoint one man, or encourage or silently submit to the appointment of
one man, to responsible place in their service among these islanders,
merely because he has been useful in politics at home, they will be
organizing failure and discredit in advance.
But they will do no such things. Not so has this body of men been
selected. Not such is the high appreciation of the opportunity offered
that has led you, Mr. President of the Commission, to abandon your
well-earned and distinguished place at home to begin a new career at
the antipodes. Yet more--I, at least, can certify to this company that
not such is the sense of public duty you inherited from your honored
father, and have consistently illustrated throughout your own career.
You will not fail, because you know the peril and the prize. You will
not fail, because you have civilization and law and ordered freedom,
the honor of your land and the happiness of a new one, in your
care--because you know that, for uncounted peoples, the hopes of future
years hang breathless on your fate. And so, gentlemen of the
Commission, good-by, and God-speed!
In spite of rock and tempest's roar,
In spite of false lights on the shore,
Sail on, nor fear to breast the sea!
APPENDICES
1. POWER TO ACQUIRE AND GOVERN TERRITORY.
2. THE TARIFF IN UNITED STATES TERRITORY.
3. THE RESOLUTIONS OF CONGRESS AS TO CUBA.
4. THE PROTOCOL OF WASHINGTON.
5. THE PEACE OF PARIS.
1
POWER TO ACQUIRE AND GOVERN TERRITORY
_The United States has as much power as any other Government._
"The Constitution of the United States established a Government, and
not a league, compact, or partnership.... As a Government it was
invested with all the attributes of sovereignty.... It is not only a
Government, but it is a National Government, and the only Government in
this country that has the character of nationality.... Such being the
character of the General Government, it seems to be a self-evident
proposition that it is invested with all those inherent and implied
powers which, at the time of adopting the Constitution, were generally
considered to belong to every Government as such, and as being
essential to the exercise of its functions." (Mr. Justice Bradley,
United States Supreme Court, Legal Tender Cases, 12 Wall. 554.)
_The United States can acquire territory by conquest or by treaty, as
a condition of peace or as indemnity._
"The United States ... may extend its boundaries by conquest or treaty,
and may demand the cession of territory as the condition of peace, in
order to indemnify its citizens for the injuries they have suffered, or
to reimburse the Government for the expenses of the war. But this can
only be done by the treaty-making power or the legislative authority."
(United States Supreme Court, Fleming _et al. v._ Page, 9 How. 614.)
_The United States can have a valid title by conquest to territory
not a part of the Union._
"By the laws and usages of nations, conquest is a valid title.... As
regarded by all other nations it [Tampico] was a part of the United
States, and belonged to them as exclusively as a Territory included in
our established boundaries, but yet it was not a part of the Union."
(United States Supreme Court, Fleming _et al. v._ Page, 9 How.
603-615.)
_A title so acquired by the United States cannot be questioned in its
courts._
"If those departments which are intrusted with the foreign intercourse
of the Nation ... have unequivocally asserted its rights of dominion
over a country of which it is in possession and which it claims under a
treaty, if the legislature has acted on the construction thus asserted,
it is not in its own courts that this construction is to be denied. A
question like this, respecting the boundaries of a nation, is ... more
a political than a legal question, and in its discussion the courts of
every country must respect the pronounced will of the legislature."
(Mr. Chief Justice Marshall, Foster _et al. v._ Neilson, 2 Peters 253,
309.)
_Yet such territory may be still outside the United States_ (meaning
thereby the American Union organized by the Constitution--the Nation),
_and cannot get in without action by the political authorities_.
"The boundaries of the United States, as they existed when war was
declared against Mexico, were not extended by the conquest.... They
remained unchanged. And every place which was out of the limits of the
United States, as previously established by the political authorities
of the Government, was still foreign." (Fleming _et al. v._ Page, 9
How. 616.)
_The United States can govern such territory as it pleases. Thus it
can withhold any power of local legislation._
"Possessing the power to erect a Territorial government for Alaska,
they could confer upon it such powers, judicial and executive, as they
deemed most suitable to the necessities of the inhabitants. It was
unquestionably within the constitutional power of Congress to withhold
from the inhabitants of Alaska the power to legislate and make laws. In
the absence, then, of any law-making power in the Territory, to what
source must the people look for the laws by which they are to be
governed? This question can admit of but one answer. Congress is the
only law-making power for Alaska." (United States _v._ Nelson, 29 Fed.
Rep. 202, 205, 206.)
_Mr. Jefferson even held that the United States could sell territory,
hold it as a colony, or regulate its commerce as it pleased._
"The Territory [Louisiana] was purchased by the United States in their
confederate capacity, and may be disposed of by them at their pleasure.
It is in the nature of a colony whose commerce may be regulated without
any reference to the Constitution." (And Louisiana was so governed for
years after the purchase, with different tariff requirements from those
of the United States, and without trial by jury in civil cases.)
_Again, the United States may even_ (as in the case of Consular Courts)
_withhold the right of trial by jury_.
"By the Constitution a government is ordained and established 'for the
United States of America,' and not for countries outside of their
limits. The guaranties it affords against accusation of capital or
infamous crimes, except by indictment or presentment by a grand jury,
and for an impartial trial by a jury when thus accused, apply only to
citizens and others within the United States, or who are brought there
for trial for alleged offenses committed elsewhere, and not to
residents or temporary sojourners abroad. The Constitution can have no
operation in another country." (_In re_ Ross, 140 U.S. 463, 465.) (In
this case the prisoner insisted that the refusal to allow him a trial
by jury was a fatal defect in the jurisdiction exercised by the court,
and rendered its judgment absolutely void.)
_The United States can govern such territory through Congress._
"At the time the Constitution was formed the limits of the territory
over which it was to operate were generally defined and recognized.
These States, this territory, and future States to be admitted into the
Union, are _the sole objects of the Constitution_. There is no express
provision whatever made in the Constitution for the acquisition or
government of territories beyond those limits. The right, therefore, of
acquiring territory is altogether incidental to the treaty-making
power, and perhaps to the power of admitting new States into the Union;
and the government of such acquisitions is, of course, left to the
legislative power of the Union, as far as that power is controlled by
treaty." (Mr. Justice Johnson of the Supreme Court, sitting in the
Circuit, in Am. Ins. Co. _v._ Canter, 1 Pet. 517.)
Mr. Chief Justice Marshall, affirming the above decision, says:
"Perhaps the power of governing a Territory belonging to the United
States which has not, by becoming a State, acquired the means of
self-government, may result necessarily from the facts that it is not
within the jurisdiction of any particular 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. Whichever
may be the source whence the power is derived, the possession of it is
unquestioned." (1 Pet. 541, 542.)
_The General Government exercises a sovereignty independent of the
Constitution._
"Their people [in organized Territories] do not constitute a sovereign
power. All political authority exercised therein is derived [not from
the Constitution, but] from the General Government." (Snow _v._ United
States, 18 Wall. 317, 320.)
_The General Government is expected, however, to be controlled as to
personal and civil rights by the general principles of the Constitution._
"The personal and civil rights of the inhabitants of the Territories
are secured to them, as to other citizens, by the principles of
constitutional liberty which restrain all the agencies of government."
(Murphy _v._ Ramsay, 114 U.S. 15, 44, 45.)
"Doubtless Congress, in legislating for the Territories, would be
subject to those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amendments; but these
limitations would exist rather by inference and the general spirit of
the Constitution, from which Congress derives all its powers, than by
any express and direct application of its provisions." (Mormon Church
_v._ United States, 136 U.S. 1, 44; Thompson _v._ Utah, 170 U.S. 343,
349.)
2
THE TARIFF IN UNITED STATES TERRITORY
The one point at which the opponents of the doctrine that Congress can
govern the Territories as it pleases are able to make a prima facie
case by quoting a decision of the Supreme Court, is as to the
application of the United States tariff to the Territories. When
California was acquired, but before Congress had acted or a Collection
District had been established, the Supreme Court sustained the demand
for duties under the United States tariff on goods landed at California
ports (Cross _v._ Harrison, 16 How. 164). Mr. Justice Wayne said:
"By the ratifications of the treaty California became a part of the
United States. And as there is nothing differently stipulated in the
treaty with respect to commerce, it became instantly bound and
privileged by the laws which Congress had passed to raise a revenue
from duties on imports and tonnage.... The right claimed to land
foreign goods within the United States at any place out of a Collection
District, if allowed, would be a violation of that provision in the
Constitution which enjoins that all duties, imposts, and excises shall
be uniform throughout the United States."
The court here bases its reasoning distinctly on the treaty by which
California was acquired. But that treaty gave the pledge that
California (an adjacent Territory) should be incorporated into the
American Union. The Treaty of Paris gave no such pledge as to the
Philippines (not adjacent territory, but nine thousand miles away),
could not in the nature of the case have given such a pledge, and did
provide, instead, that the whole question of the civil rights and
political status of the native inhabitants should be determined by the
Congress. Recalling Mr. Justice Story's remark that in a Constitution
"there ought to be a capacity to provide for future contingencies as
they may happen, and as these are ... illimitable in their nature, so
it is impossible safely to limit that capacity," it would seem that
there would certainly be elasticity enough in the Constitution, or
common sense enough in its interpretation, to permit the Supreme Court
to perceive some difference between a requirement of uniform tariff on
this continent over a territory specifically acquired in order to be
made a State, and such a requirement on the other side of the globe
over territory not so acquired. The case becomes stronger when the
treaty (also constitutionally a part of the Supreme Law of the land)
turns over the political status of the latter territory entirely to
Congress.
The Constitution makes the same or similar requirements of uniformity
throughout the United States as to the tariff, internal taxes, courts,
and the right of trial by jury. But in every case the early practice
did not construe this to include the Territories.
_As to uniformity in tariff._ It was not enforced rigidly in Louisiana
for years. So little, in fact, was it then held that Louisiana, as
soon as acquired, became an integral part of the United States
(notwithstanding the treaty provision that in time it should), that
though the directors of the United States Bank were empowered to
establish offices of discount and deposit "wheresoever they shall
think fit _within the United States_," they did not consider this a
warrant for establishing one in New Orleans, and actually secured from
the Congress for that purpose a bill, signed by Thomas Jefferson on
March 23, 1804, extending their authority, under the terms of their
original charter, to "any part of the Territories or dependencies of
the United States."
_As to uniformity in internal taxes._ The very first levied in the
United States, that of March 3, 1791, omitted the Territories
altogether, dividing the United States into fourteen Collection
Districts, "each consisting of one State." It is not until 1798 that
any trace can be found of a collection of internal revenue in the
territory northwest of the Ohio.
_As to the courts._ The Constitution requires that the judicial
officers of the United States shall hold office during good behavior.
For a century the judicial officers of Territories have been restricted
to fixed terms of office.
_As to trial by jury._ The Constitution gives the right to it to every
criminal case in the United States, and to every civil case involving
over twenty dollars. Under Mr. Jefferson's government of Louisiana,
trial by jury was limited to capital cases in criminal prosecutions. It
has likewise been denied in Consular Courts.
3
THE RESOLUTIONS OF CONGRESS AS TO CUBA
Adopted by Congress, April 19, 1898: by the Senate at 1:38 A.M.,
42 to 35; by the House at 2:40 A.M., 311 to 6.
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 battle-ship, with two hundred and sixty
of its officers and crew, while on a friendly visit in the harbor of
Havana,--and cannot longer be endured, as has been set forth by the
President of the United States in his message to Congress of April 11,
1898, upon which the action of Congress was invited; therefore be it
resolved,
_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 an 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.
4
THE PROTOCOL OF WASHINGTON
William R. Day, Secretary of State of the United States, and His
Excellency Jules Cambon, Ambassador Extraordinary and Plenipotentiary
of the Republic of France at Washington, respectively possessing for
this purpose full authority from the Government of the United States
and the Government of Spain, have concluded and signed the following
articles, embodying the terms on which the two Governments have agreed
in respect to the matters hereinafter set forth, having in view the
establishment of peace between the two countries, that is to say:
ARTICLE I
Spain will relinquish all claim of sovereignty over and title to Cuba.
ARTICLE II
Spain will cede to the United States the island of Porto Rico and other
islands now under Spanish sovereignty in the West Indies, and also an
island in the Ladrones to be selected by the United States.
ARTICLE III
The United States will occupy and hold the city, bay, and harbor of
Manila, pending the conclusion of a treaty of peace which shall
determine the control, disposition, and government of the Philippines.
ARTICLE IV
Spain will immediately evacuate Cuba, Porto Rico, and other islands now
under Spanish sovereignty in the West Indies; and to this end each
Government will, within ten days after the signing of this protocol,
appoint Commissioners, and the Commissioners so appointed shall, within
thirty days after the signing of this protocol, meet at Havana for the
purpose of arranging and carrying out the details of the aforesaid
evacuation of Cuba and the adjacent Spanish islands; and each
Government will, within ten days after the signing of this protocol,
also appoint other Commissioners, who shall, within thirty days after
the signing of this protocol, meet at San Juan, in Porto Rico, for the
purpose of arranging and carrying out the details of the aforesaid
evacuation of Porto Rico and other islands now under Spanish
sovereignty in the West Indies.
ARTICLE V
The United States and Spain will each appoint not more than five
Commissioners to treat of peace, and the Commissioners so appointed
shall meet at Paris not later than October 1, 1898, and proceed to the
negotiation and conclusion of a treaty of peace, which treaty shall be
subject to ratification according to the respective constitutional
forms of the two countries.
ARTICLE VI
Upon the conclusion and signing of this protocol, hostilities between
the two countries shall be suspended, and notice to that effect shall
be given as soon as possible by each Government to the commanders of
its military and naval forces.
Done at Washington in duplicate, in English and in French, by the
undersigned, who have hereunto set their hands and seals the twelfth
day of August, 1898.
(Seal) WILLIAM R. DAY.
(Seal) JULES CAMBON.
5
THE PEACE OF PARIS
Negotiations begun in Paris, October 1, 1898. Treaty signed in
Paris, 8:45 P.M., December 10. Delivered by United States
Commissioners to the President, December 24; transmitted to the
Senate with the official report of the negotiations, January 4,
1899; ratified by Senate in executive session, February 6, by a
vote of 57 against 27. Formal exchange of ratifications at
Washington, April 11. Twenty millions paid through Jules Cambon,
May 1. Treaty ratified by Spanish Senate, July 3, 1899.
The United States of America and Her Majesty the Queen Regent of Spain,
in the name of her august son, Don Alfonso XIII, desiring to end the
state of war now existing between the two countries, have for that
purpose appointed as plenipotentiaries:
_The President of the United States,_
William R. Day, Cushman K. Davis, William P. Frye, George Gray, and
Whitelaw Reid, citizens of the United States;
_And Her Majesty the Queen Regent of Spain,_
Don Eugenio Montero Rios, President of the Senate; Don Buenaventura de
Abarzuza, Senator of the Kingdom and ex-Minister of the Crown; Don Jose
de Garnica, Deputy to the Cortes and Associate Justice of the Supreme
Court; Don Wenceslao Ramirez de Villa Urrutia, Envoy Extraordinary and
Minister Plenipotentiary at Brussels; and Don Rafael Cerero, General of
Division;
* * * * *
Who, having assembled in Paris and having exchanged their full powers,
which were found to be in due and proper form, have, after discussion
of the matters before them, agreed upon the following articles:
* * * * *
Article I. Spain relinquishes all claim of sovereignty over and title
to Cuba.
And as the island is, upon its evacuation by Spain, to be occupied by
the United States, the United States will, so long as such occupation
shall last, assume and discharge the obligations that may under
international law result from the fact of its occupation for the
protection of life and property.
Article II. Spain cedes to the United States the island of Porto Rico
and other islands now under Spanish sovereignty in the West Indies, and
the island of Guam, in the Marianas or Ladrones.
Article III. Spain cedes to the United States the archipelago known as
the Philippine Islands, and comprehending the islands lying within the
following lines: