is void. To refer to the treaty in this connection is
to beg the question.

If we seek to justify the holding of slaves, in a
territory acquired by treaty, or the holding of its
civilized inhabitants in a condition less favored than
that of citizenship, by virtue of the provisions of
a treaty, it would seem to be necessary to show that
the constitution, in the one case, allows slavery, and,
in the other, a relation of civilized people to the
government that is not citizenship.

Now the constitution declares (i4th amendment)
that "all persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citi
zens of the United States." This disposes of the



VIEWS OF AN EX-PRESIDENT

question, unless it can be maintained that Porto Rico
is not a part of the United States.

But the theory that any part of the constitution,
of itself, embraces the territories and their people,
is contested by many. Congress seems to have as
sumed the negative, though among the members
there was not entire harmony as to the argument by
which the conclusion was reached. It is contended,
by most of those who defend the Porto Rican bill,
that the constitution expends itself wholly upon that
part of the national domain that has been organized
into states, and has no reference to, or authority in,
the territories, save as it has constituted a govern
ment to rule over them.

No one contends that every provision of the con
stitution applies to the territories. Some of them
explicitly relate to the states only. The contention
of those who oppose the Porto Rican legislation is
that all of those general provisions of the constitu
tion which impose limitations upon the powers of the
legislative, executive and judicial departments must
apply to all regions and people where or upon whom
those powers are exercised. And, on the other hand,
those who deny most broadly that the constitution
applies to the territories seem practically to allow
that much of it does. The powers of appointment
and pardon in the territories, the confirmation of ter
ritorial officers, the methods of passing laws to gov
ern the territories, the keeping and disbursement of



STATUS OF ANNEXED TERRITORY 193

federal taxes derived from the territories, the veto
power, and many other things, are pursued as if the
constitution applied to the cases.

But, in theory, it is claimed by these that no part
of the constitution applies except the thirteenth amend
ment, which prohibits slavery, and that only because
the prohibition expressly includes "any place subject
to their jurisdiction." This amendment was proposed
by congress on February i, 1865 the day on which
Sherman's army left Savannah on its northern
march ; and the words "any place subject to their juris
diction" were probably added because of the uncer
tainty of the legal status of the states in rebellion,
and not because of any doubt as to whether Nebras
ka, then a territory, was a part of the United States.

The view that some other general limitations of
the constitution upon the powers of congress must
relate to all regions and all persons was, however,
adopted by some members of the Senate committee
in the report upon the Porto Rican bill, where it is
said:

"Yet, as to all prohibitions of the constitution laid
upon congress while legislating, they operate for the
benefit of all for whom congress may legislate, no
matter where they may be situated, and without re
gard to whether or not the provisions of the consti
tution have been extended to them; but this is so be
cause the congress, in all that it does, is subject to
and governed by those restraints and prohibitions.



194 VIEWS OF AN EX-PRESIDENT

As, for instance, congress shall make no law respect
ing an establishment of religion, or prohibiting the
free exercise thereof; no title of nobility shall be
granted; no bill of attainder or ex post facto law
shall be passed; neither shall the validity of contracts
be impaired, nor shall property be taken without due
process of law; nor shall the freedom of speech or of
the press be abridged; nor shall slavery exist in any
place subject to the jurisdiction of the United States.
These limitations are placed upon the exercise of the
legislative power withouf regard to the place or the
people for whom the legislation in a given case may
be intended."

That is to say, every general constitutional limi
tation of the powers of congress applies to the ter
ritories. The brief schedule of these limitations
given by the committee is all put in the negative
form, "congress shall not"; but surely it was not
meant that there may not be quite as effective a
limitation by the use of the affirmative form. If
a power is given to be used in one way only,
all other uses of it are negatived by necessary im
plication. When it is said, "All duties, imposts, and
excises shall be uniform throughout the United
States," is not that the equivalent of "No duty or
excise that is not uniform shall be levied in the
United States?" And is not the first form quite as
effective a limitation of the legislative power over
the subject of indirect taxation as that contained in



STATUS OF ANNEXED TERRITORY 195

the fourth clause of the section is upon the power
to lay direct taxes?

In the latter the negative form is used, thus:

"No capitation or other direct tax shall be laid,
unless in proportion to the census or enumeration
hereinbefore directed to be taken."

This discrimination between express and implied
limitations, benevolently attempted to save for the
people of the territories the bill of rights provision
of the constitution, will not, I think, endure dis
cussion.

There are only three views that may be offered,
with some show of consistency in themselves:

First, that congress, the executive and the judi
ciary are all created by the constitution as govern
ing agencies of the nation called the United States;
that their powers are defined by the constitution and
run throughout the nation; that all the limitations
of their powers attach to every region and to all
civilized people under the sovereignty of the United
States, unless their inapplicability appears from the
constitution itself; that every guaranty of liberty, in
cluding that most essential one, uniform taxation, is
to be allowed to every free civilized man and woman
who owes allegiance to the United States; that the
use of the terms "throughout the United States' '
does not limit the scope of any constitutional pro
vision to the states that would otherwise be appli
cable to the territories as well; but that these terms



196 VIEWS OF AN EX-PRESIDENT

include the widest sweep of the nation's sovereignty,
and so the widest limit of congressional action.

Second, that the terms, "The United States/' de
fine an inner circle of the national sovereignty com
posed of the states alone; that, whenever those terms
are used in the constitution, they must be taken to
have reference only to the region and to the people
within this inner circle; but that, when these terms
of limitation are omitted, the constitutional pro
visions must, unless otherwise limited, be taken to
include all lands and people in the outer circle of
the national sovereignty.

Third, that the constitution has relation only to the
states and their people; that all constitutional limi
tations of the powers of congress and the executive
are to be taken to apply only to the states and their
citizens; that the power to acquire territory is nei
ther derived from the constitution, nor limited by it,
but is an inherent power of national life; that the
government we' exercise in the territories is not a
constitutional government, but an absolute govern
ment, and that all or any of the things prohibited by
the constitution as to the states, in the interest of
liberty, justice and equality, may be done in the ter
ritories; that, as to the territories, we are under no
restraints save such as our own interests or our benev
olence may impose.

I say "benevolence"; but must not that quality be
submerged, before this view of the constitution is pro-



STATUS OF ANNEXED TERRITORY 1 97

mulgated? It seems to have had its origin in a sup
posed commercial necessity, and we may fairly con
clude that other recurring necessities will guide its
exercise. Is it too much to say that this view of
the constitution is shocking?

Within the states, it is agreed that the powers
of the several departments of the national govern
ment are severely restrained. We read that congress
shall have power, and again that congress shall not
have power. But neither these grants nor these in
hibitions have, it is said, any relation to the terri
tories. Against the laws enacted by the congress, or
the acts done by the executive, there is no appeal, on
behalf of the people of the territories, to any writ
ten constitution, or bill of rights, or charter of lib
erty. We offer them only this highly consolatory
thought: a nation of free Americans can be trusted
to deal benevolently with you.

How obstinately wrong we were in our old answer
to the Southern slave-holder! It is not a question of
kind or unkind treatment, but of human rights; not
of the good or bad use of power, but of the power,
we said. And so our fathers said, in answer to
the claim of absolute power made on behalf of the
British parliament. As to the states, the legislative
power of congress is "all legislative powers herein
granted." (Art. I, Sec. i.) As to the territories,
it is said to be all legislative power all that any par
liament ever had or ever claimed to have, and as



198 VIEWS OF AN EX-PRESIDENT

much more as we may claim for there can be no ex
cess of pretension where power is absolute. No law
relating to the territories, passed by congress, can,
it is said, be declared by the supreme court to be
inoperative, though every section of it should con
travene a provision of the constitution.

An outline of a possible law may aid us to see
more clearly what is involved:

Sec. i. Suspends permanently the writ of habeas
corpus in Porto Rico.

Sec. 2. Declares an attainder against all Porto
Ricans who have displayed the Spanish flag since the
treaty of peace.

Sec. 3. Grants to the native mayors of Ponce and
San Juan the titles of Lord Dukes of Porto Rico,
with appropriate crests.

Sec. 4. Any Porto Rican who shall speak disre
spectfully of the congress shall be deemed guilty of
treason. One witness shall be sufficient to prove the
offense, and on conviction the offender shall have
his tongue cut out; and the conviction shall work
corruption of blood.

Sec. 5. The Presbyterian church shall be the Es
tablished church of the island, and no one shall be
permitted to worship God after any other form.

Sec. 6. All proposed publications shall be submit
ted to a censor and shall be printed only after he
has approved the same. Public meetings for the dis-



STATUS OF ANNEXED TERRITORY 199

cussion of public affairs are prohibited and no peti
tions shall be presented to the government.

Sec. 7. No inhabitant of Porto Rico shall keep
or bear arms.

Sec. 8. The soldiers of the island garrison shall
be quartered in the houses of the people.

Sec. 9. The commanding officer of the United
States forces in the island shall have the right, with
out any warrant, to search the person, house, papers
and effects of any one suspected by him.

Sec. 10. Any person in Porto Rico, in civil life,
may be put upon trial for capital or other infamous
crimes upon the information of the public prosecutor,
without the presentment or indictment of a grand jury;
may be twice put in jeopardy for the same offense;
may be compelled to be a witness against himself,
and may be deprived of life, liberty or property with
out due process of law, and his property may be
taken for public uses without compensation.

Sec. ii. Criminal trials may, in the discretion of
the presiding judge, be held in secret, without a
jury, in a district prescribed by law after the com
mission of the offense, and the accused shall, or not,
be advised before arraignment of the nature or cause
of the accusation, and shall, or not, be confronted
with the witnesses against him, and have compul
sory process to secure his own witnesses, as the pre
siding judge may in his discretion order.



2OO VIEWS OF AN EX-PRESIDENT

Sec. 12. There shall be no right in any suit at
common law to demand a jury.

Sec. 13. A direct tax is imposed upon Porto Rico
for federal uses without regard to its relative pop
ulation; the tariff rates at San Juan are fixed at 50
per cent, and those at Ponce at 15 per cent, of
those levied at New York.

New Mexico, or Arizona, or Oklahoma might be
substituted for Porto Rico in the bill; for, I think,
those who affirm that the constitution has no relation
to Porto Rico do so upon grounds that equally apply
to all other territories.

Now, no one supposes that congress will ever as
semble in a law such shocking provisions. But, for
themselves, our fathers were not content with an as
surance of these great rights that rested wholly upon
the sense of justice and benevolence of the congress.
The man whose protection from wrong rests wholly
upon the benevolence of another man or of a con
gress, is a slave a man without rights. Our fathers
took security of the governing departments they or
ganized; and that, notwithstanding the fact that the
choice of all public officers rested with the people.
When a man strictly limits the powers of an agent of
his own choice, and exacts a bond from him, to se
cure his faithfulness, he does not occupy strong
ground when he insists that another person, who had
no part in the selection, shall give the agent full
powers without a bond.



STATUS OF ANNEXED TERRITORY 2OI

If there is anything that is characteristic in
American constitutions, state and national, it is the
plan of limiting the powers of all public officers
and agencies. "You shall do this; you may do this;
you shall not do this" is the form that the schedule
of powers always takes. This grew out of our ex
perience as English colonies. A government of un
limited legislative or executive powers is an un-Amer
ican government. And, for one, I do not like to
believe that the framers of the national constitution
and of our first state constitutions were careful only
for their own liberties.

This is the more improbable when we remember
that the territory then most likely to be acquired
would naturally be peopled by their sons. They
cherished very broad views as to the rights of men.
Their philosophy of liberty derived it from God. Lib
erty was a divine gift to be claimed for ourselves
only upon the condition of allowing it to "all men."
They would write the law of liberty truly, and suf
fer for a time the just reproach of a departure from
its precepts that could not be presently amended.

It is a brave thing to proclaim a law that con
demns your own practices. You assume the fault and
strive to attain. The fathers left to a baser genera
tion the attempt to limit God's law of liberty to
white men. It is not a right use of the fault of
slavery to say that, because of it, our fathers did
not mean "all men." It was one thing to tolerate



2O2 VIEWS OF AN EX-PRESIDENT

an existing condition that the law of liberty con
demned, in order to accomplish the union of the
states, and it is quite another thing to create a con
dition contrary to liberty for a commercial profit.

In a recent discussion of these questions, sent me
by the author, I find these consolatory reflections:
"And yet the inalienable rights of the Filipinos, even
if not guaranteed by the constitution, are amply se
cured by the fundamental, unwritten laws of our civ
ilization/' Does this mean that the specific guaran
tees of individual liberty found in our constitution
have become a part of "our civilization," and that
they apply in Porto Rico and the Philippines in such
a sense that, if there is any denial of them by con
gress or the executive, the courts can enforce them
and nullify the law that infringes them? If that is
meant, then as to all such rights this discussion is
tweedledum and tweedledee the constitution does
not apply, but all these provisions of it are in full
force, notwithstanding.

Perhaps, however, it should be asked further,
whether the rule of the uniformity of taxation is a
part of the "law of our civilization" ; for, without
it, all property rights are unprotected. The man
whose property may be taxed arbitrarily, without re
gard to uniformity within the tax district and with
out any limitation as to the purposes for which taxes
may be levied, does not own anything; he is a ten
ant at will.



STATUS OF ANNEXED TERRITORY 203

But if these supposed "laws of our civilization" are
not enforcible by the courts, and rest wholly for their
sanction upon the consciences of presidents and con
gresses, then there is a very wide difference. The
one is ownership; the other is charity. The one is
freedom; the other slavery however just and kind
the master may be.

The instructions of the president to the Taft Phil
ippine commission seem to allow that any civil gov
ernment under the authority of the United States,
that does not offer to the people affected by it the
guarantees of liberty contained in the bill of rights
sections of the constitution, is abhorrent. Speaking
of these, he said :

"Until congress shall take action, I directed that,
upon every division and branch of the government
of the Philippines must be imposed these inviolable
rules :

" 'That no person shall be deprived of life, liberty
or property without due process of law; that private
property shall not be taken for public use without
just compensation; that in all criminal prosecutions
the accused shall enjoy the right to a speedy and
public trial, to be informed of the nature and cause
of the accusation, to be confronted with the wit
nesses against him, to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense; that excessive
bail shall not be required, nor excessive fines im-



2O4 VIEWS OF AN EX-PRESIDENT

posed, nor cruel and unusual punishment inflicted;
that no person shall be put twice in jeopardy for the
same offense, or be compelled in any criminal case
to be a witness against himself; that the right to
be secure against unreasonable searches and seiz
ures shall not be violated; that neither slavery nor
involuntary servitude shall exist except as a punish
ment for crime; that no bill of attainder, or ex post
facto law shall be passed; that no law shall be
passed abridging the freedom of speech or of the
press, or of the rights of the people to peaceably
assemble and petition the government for a redress
of grievances; that no law shall be made respect
ing the establishment of religion, or prohibiting the
free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship with
out discrimination or preference shall forever be al
lowed/ "

The benevolent disposition of the president is well
illustrated in these instructions. He conferred freely
"until congress shall take action" upon the Fili
pinos, who accepted the sovereignty of the United
States and submitted themselves to the government
established by the commission, privileges that our
fathers secured only after eight years of desperate
war. There is this, however, to be noted, that our
fathers were not content to hold these priceless gifts
under a revocable license. They accounted that to
hold these things upon the tenure of another man's



STATUS OF ANNEXED TERRITORY 2O5

benevolence was not to hold them at all. Their bat
tle was for rights, not privileges for a constitution,
not a letter of instructions.

The president's instructions apparently proceed
upon the theory that the Filipinos, after civil gov
ernment has superseded the military control, are not
endowed under our constitution, or otherwise, with
any of the rights scheduled by him; that, if he does
nothing, is silent, some or all of the things prohib
ited in his schedule may be lawfully done upon, and
all the things allowed may be denied to, a people
who owe allegiance to that free constitutional gov
ernment we call the United States of America.

It is clear that those Porto Ricans who have not,
under the treaty, declared a purpose to remain Span
ish subjects, have become American citizens or 'Ameri
can subjects. Have you ever read one of our com
mercial treaties with Great Britain or Germany, or
any other of the kingdoms of the world? These
treaties provide for trade intercourse, and define and
guarantee the rights of the people of the respective
nations when domiciled in the territory of the other.
The descriptive terms run like this : "the subjects of
Her Britannic Majesty" on the one part, and "the
citizens of the United States" on the other. Now,
if the commercial privileges guaranteed by these trea
ties do not, in their present form, include the Porto
Ricans who strewed flowers before our troops when
they entered the island, we ought at once to propose



2O6 VIEWS OF AN EX-PRESIDENT

to our "Great and Good Friends/' the kings and
queens of the Earth, a modification of our conventions
in their behalf.

Who will claim the distinction of proposing that
the words "and subjects" be introduced after the word
"citizens"? There will be no objection on the part
of the king, you may be sure; the modification will
be allowed smilingly.

We have never before found it necessary to treat
the free civilized inhabitants of the territories other
wise than as citizens of the United States.

It is true, as Mr. Justice Miller said, that the ex
clusive sovereignty over the territories is in the na
tional government; but it does not follow that the
nation possesses the power to govern the territories
independently of the constitution. The constitution
gives to congress the right to exercise "exclusive leg
islation" in the District of Columbia; but "exclu
sive" is not a synonym of "absolute." When the con
stitution says that "treason against the United States
shall consist only in levying war against them, or
in adhering to their enemies, giving them aid and
comfort," there is a limitation of the legislative
power; and it necessarily extends to every venue
where the crime of treason against the United
States may be laid, and to every person upon whom
its penalties may be imposed.

This constitutional provision defining the crime of
treason and prescribing the necessary proofs is a bill



STATUS OF ANNEXED TERRITORY 20?

of rights provision. In England, under Edward II,
"there was," it was said, "no man who knew how
to behave himself, to do, speak or say, for doubt
of the pains of such treasons." The famous statute
of Edward III, defining treasons, James Wilson de
clares, "may well be styled the legal Gibraltar of
England."

Mr. Madison, speaking of this section of the con
stitution, says in the Federalist:

"But as new fangled and artificial treasons have
been the great engines by which violent factions, the
natural offspring of free government, have usually
wreaked their malignity on each other, the conven
tion have with great judgment opposed a barrier to
this peculiar danger, by inserting a constitutional defi
nition of the crime," etc.

Mr. Madison believed that there was a real dan
ger that statutes of treason might be oppressively
used by congress. What have we been doing, or
what have we a purpose to do, that we find it neces
sary to limit the safeguards of liberty found in our
constitution, to the people of the states? Is it that
we now propose to acquire territory for coloniza
tion, and not, as heretofore, for full incorporation?
Is it that we propose to have crown colonies, and
must have crown law? Is it that we mean to be a
world power, and must be free from the restraints
of a bill of rights? We shall owe deliverance a
second time to these principles of human liberty, if



2O8 VIEWS OF AN EX-PRESIDENT

they are now the means of delivering us from un-
American projects.

The particular provision of the constitution upon
which congress seems to have balked, in the Porto
Rican legislation, was a revenue clause, viz., the first
paragraph of section 8 of Article I, which reads:

"The congress shall have power to lay and collect
taxes, duties, imposts and excises, to pay the debts,
and provide for the common defense and general wel
fare of the United States; but all duties, imposts and
excises shall be uniform throughout the United