Chapter 7

Nor does the great name of Marshall stand alone in support of such conclusions. The converse theory that these territories are not necessarily included in the constitutional term "the United States" makes them our subject dependencies, and at once the figure of Jefferson himself is evoked, with all the signers of the immortal Declaration grouped about him, renewing the old war-cry that government derives its just powers from the consent of the governed. At different periods in our history eminent statesmen have made protests on grounds of that sort. Even the first bill for Mr. Jefferson's own purchase of Louisiana was denounced by Mr. Macon as "establishing a species of government unknown to the United States"; by Mr. Lucas as "establishing elementary principles never previously introduced in the government of any Territory of the United States"; and by Mr. Campbell as "really establishing a complete despotism." In 1823 Chancellor Kent said, with reference to Columbia River settlements, that "a government by Congress as absolute sovereign, over colonies, absolute dependents, was not congenial to the free and independent spirit of American institutions." In 1848 John C. Calhoun declared that "the conquest and retention of Mexico as a province would be a departure from the settled policy of the Government, in conflict with its character and genius, and in the end subversive of our free institutions." In 1857 Mr. Chief Justice Taney said that "a power to rule territory without restriction as a colony or dependent province would be inconsistent with the nature of our Government." And now, following warily in this line, the eminent and trusted advocate of similar opinions to-day, Mr. Senator Hoar of Massachusetts, says: "The making of new States and providing national defense are constitutional ends, so that we may acquire and hold territory for those purposes. The governing of subject peoples is not a constitutional end, and there is therefore no constitutional warrant for acquiring and holding territory for that purpose."

[Sidenote: An Alleged Constitutional Inability.]

We have now, as is believed, presented with entire fairness a summary of the more important aspects in which the constitutional objections mentioned have been urged. I would not underrate by a hair's breadth the authority of these great names, the weight of these continuous reassertions of principle, the sanction even of the precedent and general practice through a century. And yet I venture to think that no candid and competent man can thoroughly investigate the subject, in the light of the actual provisions of the Constitution, the avowed purpose of its framers, their own practice and the practice of their successors, without being absolutely convinced that this whole fabric of opposition on constitutional grounds is as flimsy as a cobweb. This country of our love and pride is no malformed, congenital cripple of a nation, incapable of undertaking duties that have been found within the powers of every other nation that ever existed since governments among civilized men began. Neither by chains forged in the Constitution nor by chains of precedent, neither by the dead hand we all revere, that of the Father of his Country, nor under the most authoritative exponents of our organic act and of our history, are we so bound that we cannot undertake any duty that devolves or exercise any power which the emergency demands. Our Constitution has entrapped us in no impasse, where retreat is disgrace and advance is impossible. The duty which the hand of Providence, rather than any purpose of man, has laid upon us, is within our constitutional powers. Let me invoke your patience for a rather minute and perhaps wearisome detail of the proof.

The notion that the United States is an inferior sort of nation, constitutionally without power for such public duties as other nations habitually assume, may perhaps be dismissed with a single citation from the Supreme Court. Said Mr. Justice Bradley, in the Legal Tender Cases: "As a government it [the United States] was invested with all the attributes of sovereignty.... 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" (12 Wall. 554).

Every one recalls this constitutional provision: "The Congress shall 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.