States with all its requirements and limitations, became at once effective therein by its own force, regardless of the action of Congress. In the popular language of the day, did the Constitution follow the flag? These questions were agitating the country even before the treaty was signed. The two extreme views were expressed very clearly by Senator Vest of Missouri and Senator Platt of Connecticut during a debate in the Senate. On December 6, 1898, in contemplation evidently of the signing of the treaty, the former introduced a resolution to the effect "that under the Constitution of the United States, no power is given to the Federal Government to acquire territory to be held and governed permanently as colonies."

5

Senator Platt's resolution asserted that the United States is a nation with all the powers of a nation.

The United States had always held territory which was for a time out of the Union, and the Constitution recognized that such territory might be held as its property. The power to hold implies the power to acquire such territory, and the Supreme Court had held that the power was also implied from the express power to make war and treaties. "The Constitution," said Chief Justice Marshall," "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 by conquest or by treaty." Under the provisions of the Constitution Congress may either sell the territory which it so acquires, hold and govern it by such rules and regulations as it deems wise to make, or carve it up into numerous states and admit them into the Union. It follows that until new states are created out of the national territorial property and admitted into the Union the Constitution of the United States is not in force

5 For the conflicting views of jurists, see Thayer, 12 Harvard Law Rev. 464, March, 1899; Baldwin, Ibid., 393; Burgess, 14 Pol. Sci. Quar. 1, March, 1899; Woolsey, Ann. Am. Acad. Pol. and Soc. Sci. Supp., p. 15, April 7, 1899. 6 Cong. Rec., Dec. 19, 1898, pp. 321, et seq.

7 American and Ocean Insurance Co. v. Canter, 1 Pet. (U. S.) 511.

in such territory. The McKinley administration had good Jeffersonian authority for proceeding on the assumption that the Constitution did not apply to the new territory until it had been extended thereto by Congress in the exercise of its powers to "make all needful rules and regulations respecting the territory or other property belonging to the United States."

It followed strictly the political precedents in the history of the country. The treaty under which Louisiana was acquired from France in 1803 contained a provision with reference to the politicial status of the inhabitants but left Congress to determine when the Constitution and laws of the United States should be made applicable in the new territory. The Act of Congress of October 31, 1803, provided that "until the expiration of the present session of Congress, unless provision for the temporary government for the said territory be sooner made by Congress, all the military, civil and judicial powers exercised by the officers of the existing government of the same shall be vested in such person and persons and shall be exercised in such manner as the president of the United States shall direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion.' This statute was construed to mean that the local laws should remain in force until changed by Congress. Albert Gallatin, then secretary of the treasury, wrote to the territorial governor, "that the existing duties on imports and exports which by the Spanish law are now levied within the province, will continue until Congress shall have otherwise provided."

998

Early in the next year Congress extended the laws of the United States relating to customs duties to Louisiana and organized a territorial government by an act which specifi

8 U. S. Stat. at Large (Pet. Ed.), II, 245.

9 See Magoon, Law of Civil Government under Military Occupation, p. 159.

cally enumerated the provisions of the bill of rights of which the inhabitants of the territory should have the benefit.1

10

Upon the acquisition of Florida in 1819, a part of Mexico in 1848, the Gadsen's Purchase in 1853, and Alaska in 1867, it was assumed that the Constitution and laws of the United States did not extend to the new territory without express action by Congress. The Act of April 30, 1900, expressly extended the Constitution of the United States over the new territory of Hawaii. In each of these instances the treaty of cession provided that the inhabitants should in due time be admitted to the full rights of citizens of the United States, while the treaty with Spain merely reserved to Congress the right to determine the civil rights and political status of the inhabitants of the ceded territory. In neither case could the inhabitants become citizens without the action of Congress.

Under these political precedents the administration was justified in assuming that the Constitution was not self-operating in the newly acquired territory. Any government instituted by the president under the war power, necessarily would be temporary and it was not essential that the temporary government should be so framed as to provide a model for future congressional action. It was, however, desirable that the president's action should conform to the constitutional theory upon which Congress would act. Secretary Root proceeded to frame a government for the Philippines on the theory that the United States as a nation possessed and might lawfully exercise all the powers in respect to such territory which any other nation could have exercised in respect to territory and people so acquired. The inhabitants of the territory were subject to the complete sovereignty of the United States, and the sovereign was subject only to the legal limitations on its powers which were found in the treaty. The legal rights of the inhabitants also were determined by the treaty and not by a constitu10 United Stat. at Large (Pet. Ed.), II, p. 283.

tion which had been established by the people of the United States for themselves and to meet conditions existing on the American continent. They had, however, acquired a moral right to be governed by the United States according to the principles of justice and freedom which underlay the American system of government, and it was the duty of the United States to make the interests of the people the first and controlling consideration in all administration and legislation which concerned them.11

On the theory that the laws of the United States did not apply to the new territory until extended thereto by Congress the administration proceeded to collect duties on goods imported into the United States from Porto Rico and the Philippines, thus treating them as foreign countries within the contemplation of the tariff law. The Supreme Court subsequently held that this could not be done, because immediately upon the ratification of the treaty of peace the islands ceased to be foreign territory. In considering the litigation with reference to the tariff laws it is necessary to distinguish the period before the ratification of the treaty, the period from the ratification of the treaty to the passage of the Foraker Act on April 12, 1900, and the time subsequent to the enactment of that law. During the first period the duties and customs were legally determined and collected under the executive orders of the president in the exercise of the war power. In the first of the so-called Insular Cases, decided May 27, 1901, the Supreme Court held that the United States had the right to acquire territory by treaty, that the treaty of cession did not extend the Constitution and laws of the United States over such territory, and that territory thus acquired could not be considered as foreign territory. It followed that the duties could not be collected under the Dingley Tariff Law on goods coming from Porto Rico to the United States.12

11 Report Secy. of War, 1899 (Five Years of the War Dept., pp. 31-38). 12 De Lima v. Bidwell, 182 U. S. 1.