Problems of Expansion. As Considered in Papers and Addresses

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:

A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachti, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty-five minutes (4° 45′) north latitude, thence along the parallel of four degrees and forty-five minutes (4° 45′) north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty-five minutes (119° 35′) east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty-five minutes (119° 35′) east of Greenwich to the parallel of latitude seven degrees and forty minutes (7° 40′) north, thence along the parallel of latitude seven degrees and forty minutes (7° 40′) north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of beginning.

The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty.

Article IV. The United States will for ten years from the date of exchange of ratifications of the present treaty admit Spanish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States.

Article V. The United States will, upon the signature of the present treaty, send back to Spain, at its own cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them.

Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the island of Guam, on terms similar to those agreed upon by the Commissioners appointed to arrange for the evacuation of Porto Rico and other islands in the West Indies under the protocol of August 12, 1898, which is to continue in force till its provisions are completely executed.

The time within which the evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two Governments. Stands of colors, uncaptured war-vessels, small arms, guns of all calibers, with their carriages and accessories, powder, ammunition, live stock, and materials and supplies of all kinds belonging to the land and naval forces of Spain in the Philippines and Guam remain the property of Spain. Pieces of heavy ordnance, exclusive of field artillery, in the fortifications and coast defenses, shall remain in their emplacements for the term of six months, to be reckoned from the exchange of ratifications of the treaty; and the United States may in the meantime purchase such material from Spain, if a satisfactory agreement between the two Governments on the subject shall be reached.

Article VI. Spain will, upon the signature of the present treaty, release all prisoners of war and all persons detained or imprisoned for political offenses in connection with the insurrections in Cuba and the Philippines and the war with the United States.