Chapter 14

Regard, I beg of you, in the calm white light that befits these cloistered retreats of sober thought, the degradation of the Republic thus coolly anticipated by the men that assure us we have no possessions whose people are not entitled under our Constitution to citizenship and ultimately to Statehood! Surely to an audience of scholars and patriots like this not one word need be added. Emboldened by the approval you have so generously expressed, I venture to close by assuming without hesitation that you will not dishonor your Government by evading its duty, nor betray it by forcing unfit partners upon it, nor rob it by blind and perverse neglect of its interests.

May I not go further, and vouch for you, as Californians, that the faith of the fathers has not forsaken the sons--that you still believe in the possibilities of the good land the Lord has given you, and mean to work them out; that you know what hour the national clock has struck, and are not mistaking this for the Eighteenth Century; that you will bid the men who have made that mistake, the men of little faith, the shirkers, the doubters, the carpers, the grumblers, begone, like Diogenes, to their tubs--aye, better his instruction and require these his followers to get out of your light? For, lo! yet another century is upon you, before which even the marvels of the Nineteenth are to grow pale. As of old, light breaks from the east, but now also, for you, from the farther East. It circles the world in both directions, like the flag it is newly gilding now with its tropic beams. The dawn of the Twentieth Century bursts upon you without needing to cross the Sierras, and bathes at once in its golden splendors, with simultaneous effulgence, the Narrows of Sandy Hook and the peerless portals of the Golden Gate.

XI

"UNOFFICIAL INSTRUCTIONS"

This speech was delivered at the Farewell Banquet given by over four hundred citizens of San Francisco to the second Philippine Commission, on the eve of their sailing for Manila, at the Palace Hotel, April 12, 1900. The title is adopted from the phrase used by the President of the Commission in his response; to which a leading journal of the Pacific coast, "The Seattle Post-Intelligencer," promptly added that the address "spoke for the whole people of the United States," and was "the concrete expression of a desire that animates nine tenths of all our citizens." Judge Taft frankly stated his concurrence in the views expressed (though he held some legal doubts as to whether the Constitution of the United States did not extend, ex proprio vigore, to the new possessions), and he pledged the Commission against the influence of political considerations.

"UNOFFICIAL INSTRUCTIONS"

The kindness of your call shall not be misinterpreted or taken advantage of. Quite enough of my voice has been heard in the land, and that very recently, as some of you can testify to your cost. There are others here with far greater claims upon your attention, and I promise to be as brief as heretofore I have been prolix.

The occasion is understood to be primarily one of congratulation and personal good will. It is evident that San Francisco thinks well of the Pacific coast member of this Commission, and none the worse because he seems to have been chosen for the post merely on account of his being peculiarly fit for it. The city gladly takes the rest of you on faith, believing that the same rule of selection must have been applied in the cases with which it has not the happiness to be quite so familiar.

But it is an occasion, I am authoritatively assured, of no political significance whatever. It embraces in its comprehensive impulse of greeting and good wishes Republicans and Democrats and Dewey men; men who hold the offices, men who want the offices, and men who say, "A plague on both your houses!"--men who indorse the course of the Administration, and men who believe the acquisition of the Philippines a mistake. I shall not attempt to disguise from you the fact that this last is not an opinion that I individually hold. Still, I can respect the convictions of those who do.

But evidently we can have no concurrence to-night on our extra-continental policy, since the differences are so wide on vital points. Yet the organizers of this testimonial made no mistake. There is a common ground for our meeting. We are all citizens of the Republic, grateful for our high privilege and solicitous that the Republic shall take no harm--all Americans, proud of the name and eager that it shall never be stained by base or unworthy acts. There is no one here, of whatever political faith or lack of faith, who is not a patriot, anxious for our country on these new and untried paths it must walk--most desirous that all its ways may prove ways of pleasantness and all its paths lead to honorable peace.

Well, then, gentlemen, what is it that a company thus divided in opinion, and united only in patriotic aspirations, can agree in looking to this Commission for? What do the American people in general, and without distinction of party, look to them for?

Did I hear a public opponent but personal friend over there murmur as his reply, "Not much of anything"? Alas! we may as well recognize that there are political augurs who are ready to give just that as their horoscope, and even point to their useful predecessor, the last Commission, for presumptive proof! In fact, there are occasional grumblers who would look for more from them if they were fewer. These skeptical critics recognize that sometimes in a multitude of counselors there may be safety, but also recall the maxim that councils of war never fight. If the truth must be whispered in the ear of the Commissioners, there are here and there very sincere, capable people who are growing a bit weary of a multiplicity of commissions. They say--so cynical are they--that, in all ages and countries, the easiest method of evading or postponing a difficult problem has been to appoint a commission on it and thus prolong the circumlocution.

For a first thing, then, on which we are all united, we look hopefully to our guests to redeem the character of this mode of government by commission. For we assume that they are sent out to the archipelago to govern; and just at present we don't know of any part of the country's possessions that seems more in need of government.

We all unite in regarding them as setting sail, not only charged with the national interests, but dignified and ennobled by a guardianship of the national honor. Thus we are trying to put ourselves in Emerson's state of mind about a certain notable young poet, and unite in hoping that, to use his well-known phrase, we greet them at the beginning of a great career.

We certainly unite in earnestly wishing that they may make the best of a situation which none of us wholly like, and many dislike with all their hearts: the best of it for the country which, by good management or bad, rightfully or wrongfully, is at any rate clearly and in the eyes of the whole world now responsible for the outcome; and the best of it, no less, for the distracted people thrown upon our hands.

We cannot well help uniting in the further hope that their first success will be the re-establishment of order throughout regions lately filled with violence and bloodshed; and that they can then bring about a system of just and swift punishment for future crimes of disorder, since all experience in those regions and among those people shows that the neglect to enforce such punishment is itself the gravest and cruelest of crimes.

Nor can any one here help uniting in the hope that their next and crowning success will some way be attained in the preservation and extension of those great civil rights whose growth is the distinction, the world over, of Anglo-Saxon civilization; whose consummate flower and fruitage are the glory of our own Government.

I am even bold enough to believe that, however it might have been twelve months ago, or but six months ago, there is no one here to-night, recognizing the changed circumstances now, who would think they could best secure those rights to all the people by calling back the leader who is in hiding, and his forces, which are scattered and disorganized, and by now abandoning to such revengeful rule the great majority of the islanders who have remained peaceful and orderly during our occupation. For the present, at least, we unite in recognizing that they are forced to retain that care themselves; forced to act in the common interest of all the people there, not in the sole interest of a warring faction in a single tribe--in the interest of all the islands for which we have accepted responsibility, not simply of the one, or of a part of the population on the one, that has made the most trouble.

There can be little disagreement in this company on the further proposition that, in like manner, they must act in the interest of all the people here. In the interest of the islanders, they will soon seek to raise the needed revenue in the way least burdensome and most beneficial to the islands; but in the interest of their country, we cannot expect them to begin by assuming that the only way to help the islanders is to throw products of tropic cheap labor into unrestricted competition with similar products of our highly paid labor. In the interest of the islanders, they will secure and guarantee the civil rights which belong to the very genius of American institutions; but in the interest of their country, they will not make haste to extend the privilege of American citizenship, and so, on the one hand, enable those peoples of the China Sea, Chinese or half-breed or what not, to flood our labor market in advance of any readiness at home to change our present laws of exclusion, while, on the other hand, opening the door to them as States in the Union to take part in the government of this continent. If, in the Providence of God, and in contempt of past judicial rulings, the Supreme Court should finally command it, this Commission, like every other branch of the Government, will obey. Till then we may be sure it will not, in sheer eagerness and joyfulness of heart, anticipate, or, as Wall Street speculators say, "discount," such a decree for national degradation. But in their own land, and, as far as may be, in accordance with their old customs and laws, the Commission will secure to them, if it is to win the success we all wish it, first every civil right we enjoy, and next the fullest measure of political rights and local self-government they are found capable of sustaining, with ordered liberty for all the people.

There, then, is the doom we have reason to expect this Commission to 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."