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constantly belittled and impeded, and the latter resented the injection of civilians into a situation which in their judgment would for many months be purely military. General MacArthur felt that the appointment of the commission showed a lack of appreciation of his capacity to establish civil governments as well as control the military situation. At that distance from home many of the officers seemed unable to accept the theory, never questioned in the United States, of the legal subordination of the military to the civil power.
The hasty institution of civil governments in some instances resulted unfortunately, but it is far from clear that the evils of continuing military government would not have been greater than those which were incidental to a too rapid progress in the right direction.
The Schurman Philippine Commission for some reason had been required to report to the secretary of state. The management of the new dependencies was now transferred to the War Department. Elihu Root became secretary of war in 1899, and thereafter until 1904 Philippine affairs were under his personal direction and control. Mr. Root was a great lawyer, a profound student of public and constitutional law, and a constructive statesman of the first order. The government of the Philippines as it exists to-day is largely his creation, and his efficient work in establishing and maintaining peace in the Archipelago was given due weight when, in 1913, he was granted the Nobel prize.
The president derived his power to govern the territory from his constitutional authority as commander-in-chief of the army and navy, and this power continued after the ratification of the treaty of peace and until such time as Congress assumed jurisdiction and control of the territory. But his authority was simply that of a military commander and was much less comprehensive than that of Congress. The immediate question was how, in the exercise of the war power, to give the Philippines the benefit of civil government while awaiting the action of Congress.
1 This question is always a live one in dependencies unless the civil governor is by law also commander-in-chief, as in such colonies as Ceylon and Hong Kong. For the famous contest between Lord Curzon and Lord Kitchener over the organization of the India government, see Fraser, Lord Curzon in India and After, Chap. XII.
2 Cross v. Howard, 16 Howard (U. S.) 164.
The military authority of a president includes executive, legislative and judicial power. Not infrequently a single military order includes all these powers,—the exercise of legislative power by prescribing a rule of action, of judicial power by determining a right, and executive power by the enforcement of the rules prescribed or the rights determined. As said by Secretary Root, “It is indeed the combination of all these powers in a single individual which constitutes the chief objection to any unnecessary continuance of military government.”3 As the war power could be exercised through civil agents as well as military officers, it was determined that the legislative power should be vested in civil agents who should act in accordance with legislative forms and that the judicial power should be exercised by courts established and regulated by the enactments of the legislative authority.
The ratification of the treaty with Spain without the usual provision determining the future status of the ceded territory and its inhabitants gave rise to numerous important constitutional questions which could not be settled definitely until they could be brought before the Supreme Court of the United States. They were not in fact decided by that august tribunal until March 21, 1901. In the meantime the administration under the guidance of Secretary Root had to proceed upon its own judgment and trust that its action would meet with the approval of the country and subsequently of the courts.
The all important, immediate question was whether, upon the cession of the territory, the Constitution of the United
3 Rept. Secy. of War, 1901. (Five Years of the War Dept., 1899–1903, p. 199.)
4 See notes, p. 496, infra.
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