66 CHAPTER XX TERRITORIES AND EMPIRE The founders of the American system, in giving the name United States" to our country, contemplated a union of equal states, each inhabited by an English-speaking population, enjoying self-government, and sharing the benefits of the federation on the same terms. They did provide, of course, for territorial government, but they viewed territories as potential states held only in temporary tutelage. In the acquisition of Hawaii, Porto Rico, the Philippines, Guam, Tutuila, and the Virgin Islands, the Government of the United States made a break with its historic policy; it undertook to govern other races and nationalities that in some cases at least could not possibly be assimilated to the system founded by the Fathers. These acquisitions were made in the mere course of our commercial and military expansion without much thought as to consequences. When they were actually brought under the flag a fierce debate arose as to their destiny. The types of opinion held on the subject may be roughly classified in the following fashion. There are some who maintain quite frankly that the United States can profit commercially by the ownership, development, and exploitation of imperial domains just as the powers of Europe have done for centuries. That motive is clear and calls for no explanation. At the other extreme are those who claim that the government of "subject races" violates the principles of the Declaration of Independence, involves the United States in imperialistic enterprises like those undertaken by European countries, and leads to grave international complications. There is still a third group who take a more sentimental and humane attitude toward the problem of governing the dependencies; they speak of "the white man's burden," meaning his duty to educate and civilize backward and primitive peoples. It was this view which President McKinley voiced when he said of the Philippines: "There was nothing left for us to do but to take them all, and educate the Filipinos, and uplift and civilize them, and by God's grace do the very best we could by them as our fellow men for whom Christ also died." No doubt throughout colonial administration, all motives are mixed; the desire to do good is mingled with eagerness to make money out of colonies. We now have colonies. For weal or woe, the people of the United States, therefore, are confronted with the problem of administering imperial dominions scattered from the Caribbean to the Indian Ocean. The Legal Powers of the National Government The Constitution of the United States makes no express provision for the acquisition of territory, and at the time of the Louisiana purchase the question was raised whether the Federal Government had the power to buy that domain. President Jefferson at first doubted the constitutionality of the purchase, and in the summer of 1803 he wrote to John C. Breckinridge concerning the subject: "The executive in seizing the fugitive occurrence which so much advances the good of their country have done an act beyond the Constitution. The legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it."1 However, men who took a broader view of the matter claimed that there was full constitutional warrant for the action, inasmuch as the Federal Government enjoyed the undoubted right to acquire territory under the treaty-making power. Even Jefferson finally gave up the idea that it was necessary to amend the Constitution in order to purchase Louisiana, and later the Supreme Court held that, "the Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory either by conquest or by treaty."" Congress governs federal territory under that clause of the 1 Works (Ford ed.), Vol. IV, p. 500. 2 American Insurance Co. v. Canter, 1 Peters, 511. Constitution giving it power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. The conflict over the nature of the authority conferred on Congress by this provision furnishes a long and stirring chapter in the constitutional history of the United States. During the first half of the nineteenth century, the contest involved the question as to whether Congress could prohibit slavery in the territories. The pro-slavery wing of the Democratic party contended that the national legislature had no such power. Radical Republicans, on the other hand, maintained that it even had no right to permit slavery in the territories. The issue was reopened in 1898, with the acquisition of our insular possessions, in the form of the somewhat striking question, "Does the Constitution follow the Flag?" The answer to this proposition is simple: the Federal Government cannot go anywhere or do anything except under some power conferred by the Constitution. But this leaves unsettled the problem of what clauses of the Constitution control the federal authorities in the government of territories. It requires no very subtle analysis to discover that certain constitutional provisions are designed to restrain the operations of the Federal Government within the states; but do all the limitations in behalf of private rights contained in the original Constitution, and especially in the first ten amendments,1 run into the territories and control the Federal Government there? In his famous opinion in the Dred Scott case, Chief Justice Taney declared that they did, and hence that slavery could not be prohibited there because that would deprive the slave-owner of his property without due process of law-a gross violation of the private rights guaranteed under the Constitution. Many years later the Supreme Court held that the Seventh Amendment required a unanimous verdict in common law trials, and controlled both Congress and the territorial assemblies.2 A new aspect was given to this question when the Hawaiian Islands and the Philippines were acquired, because it was obviously impossible to apply there all the elaborate principles of Anglo-Saxon jurisprudence laid down in the first ten amendments to the federal Constitution. In a series of Supreme Court 1 See Readings, pp. 134-137. 3 Springville v. Thomas, 166 U. S. 707 (1897). decisions,1 known as the "Insular Cases," many technical points are involved, but the upshot of them all is that the Constitution may be divided into two parts, fundamental and formal; that only the fundamental parts control the federal authorities in the government of territories; and that the Supreme Court will determine, from time to time, as specific cases arise, what parts of the federal Constitution are fundamental and what parts are formal. Thus we may say, with a judge of the United States circuit court of appeals for California, that, for practical purposes, "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 powers of government as the organic law, but are the creation exclusively of the legislative department and subject to its supervision and control. The United States, having rightfully acquired the territory and having become the only government which can impose laws upon them, has the entire domain of sovereignty, national and municipal, federal and state. It may legislate in accordance with the special needs of each locality, and vary its regulations to meet the circumstances of the people.' Under this liberal interpretation of the Constitution, Congress may establish and maintain practically any form of government in the insular territories which does not violate too grossly the political traditions of the American people. I. With the admission of Arizona and New Mexico in 1912, the last of the continental domain of the United States was laid out into states, and the long history of conflicts over territorial and state organization brought to a close. There are, however, four territories which possess governments modeled on those which were traditionally established for the "organized" territories of the continental domain. These are Alaska, the Hawaiian Islands, Porto Rico, and the Philippines.* The first of these, Alaska, secured from Russia by purchase in 1867, remained under direct government from Washington 1 The following cases relate especially to the position of the new territories in our political system: Downs v. Bidwell, 182 U. S. 244 (1900); Dooley v. the United States, ibid., 222; Dooley v. the United States, 183 U. S. 151 (1901); Pepke v. the United States, ibid.; Hawaii v. Mankichi, 190 U. S. 197; Dorr . the United States, 195 U. S. 138; De Lima v. Bidwell, 182 U. S. 540 (1900). 2 See Readings, p. 375, for a succinct statement by Justice Day of the Supreme Court of the United States. ' Willoughby, Territories and Dependencies of the United States, p. 22. Porto Rico, Alaska, and Hawaii each has a delegate in Congress who may speak but not vote. The Philippines have two "resident commissioners." until 1912, when Congress enacted a law providing for a senate and house of representatives, both elected by popular vote. The powers of the legislature are defined by law and the executive authority is vested in a governor appointed by the President and Senate of the United States. Alaska, long regarded as a cold and barren waste of little political importance, has now come into considerable prominence on account of the discovery of immense coal areas, in addition to the precious metal regions. The proper treatment of the federal domain in that territory and the provision of railway facilities for opening up the natural resources are problems of first-rate importance at Washington. Advocates of the conservation of the resources seek to avoid the wastes which occurred in disposing of the continental domain; and to escape monopoly they have brought about government ownership of the important Alaskan railways. The Hawaiian Islands were annexed by a joint resolution of Congress approved July 7, 1898; their administration is still based on the organic act of April 30, 1900, which erected them into a territory and created a complete system of government. The provisions of the Constitution and laws of the United States, applicable to local conditions, were extended to Hawaii; and American citizenship was conferred upon all persons who were "citizens of the republic of Hawaii on August 12, 1898." The governor, secretary, and judges are appointed by the President and Senate. The legislature consists of a senate and a house of representatives, and the members of each are elected by popular vote. Every voter must be a citizen of the United States, twentyone years of age, and a resident of the territory of not less than one year's standing; he must be duly registered and must be able to read, write, and speak either the English or Hawaiian language. The possession of Porto Rico by the United States dates from the raising of the American flag on that island in July, 1898. For almost two years the new domain was governed under military authority, but on May 1, 1900, the organic act of Congress erecting civil government in the island was approved by the President. This law provided for a governor and executive council appointed by the President with the consent of the Senate of the United States, for a lower house elected by popular vote, and for the exclusion of Porto Ricans from American citizenship. Under this act there were many long disputes between the gov |