in the treaty the conditions favorable to incorporation, they will, if the treaty be not repudiated by Congress, have the force of the law of the land, and therefore by the fulfilment of such conditions cause incorporation to result. It must follow, therefore, that where a treaty contains no conditions for incorporation, and, above all, where it not only has no such conditions, but expressly provides to the contrary, that incorporation does not arise until in the wisdom of Congress it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family." Justice Gray concurred in the judgment and in substance agreed with the opinion. of Justice White, but prepared an opinion of his own.

Chief-Justice Fuller, with whom Justices Harlan, Brewer, and Peckham concurred, prepared the dissenting opinion. He denied that there was any constitutional distinction between incorporated territories and territories unincorporated or merely appurtenant to the United States. Justice Harlan added some further remarks, in the course of which he said: "I confess that I cannot grasp the thought that Congress, which lives and moves and has its being in the Constitution, and is consequently the mere creature of that instrument, can, at its pleasure, legislate or exclude its creator from territories which were acquired only by authority of the Constitution.”

1

See also The Insular Cases, comprising the records, briefs, and arguments of counsel, House Docs., 56 Cong., 2 Sess., No. 509.

In these cases four justices took the position that the Constitution extended of its own force to newly acquired territory, and four took the view that an act of Congress was necessary to extend it there; while Justice Brown based his conclusion in the Downes case on a principle that was repudiated by all eight of his colleagues. There was no constitutional doctrine, therefore, declared by a majority of the court.1

One other case of importance affecting the status of dependencies, or rather of their inhabitants, was decided by the Supreme Court. In the case of The Territory of Hawaii vs. Mankichi, decided June 1, 1903, the court held that prior to the organic act of April 30, 1900, the inhabitants of the Hawaiian Islands were not entitled to the privileges of the Fifth and Sixth Amendments to the Constitution, securing trial by jury. The annexing resolution had provided that "the municipal legislation of the Hawaiian Islands," not inconsistent with the joint resolution, nor contrary to the Constitution, nor to any existing treaty of the United States, should continue in force until Congress should otherwise determine. The defendant in error in this case was convicted of manslaughter without an indictment by a grand jury, and upon a verdict rendered by nine out of twelve jurors, in accordance with the local laws. Mankichi petitioned for a writ of habeas corpus on the ground that he was entitled to the

'On this point, see Willoughby, Am. Constitutional System, 238.

rights guaranteed by the Fifth and Sixth Amendments. On appeal to the Supreme Court, Justice Brown, who delivered the opinion, held that “most, if not all, the privileges and immunities contained in the Bill of Rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature." This decision was rendered by five members of the court, but Justices McKenna and White expressed their concurrence in a separate opinion, holding that at the time the action was brought the islands had not been incorporated in the United States, and that the Fifth and Sixth Amendments were not applicable; in other words, that the case was controlled by the decision in Downes vs. Bidwell. From this decision four justices dissented (Fuller, Harlan, Brewer, and Peckham), holding that, waiving all discussion of the question whether the Constitution extended at once to the islands or not, by the annexing resolution Congress intended to invalidate so much of the existing Hawaiian legislation as was inconsistent with the Constitution.1

The status of the new annexations was practically settled, on commercial and political grounds, before the constitutional questions involved came up for adjudication. The dominant business interests of the country were opposed to the full 1190 U. S., 197.

incorporation of the new possessions, and public opinion decided the question that way. When it came to the test the American nation, despite charges of inconsistency, applied to the situation the doctrine of inferior races and denied to the inhabitants of Porto Rico and the Philippines equal rights under the Constitution. The Supreme Court could not have reversed the decision of the American people, where such far-reaching acts of the president and of Congress were involved, without creating serious confusion. Consequently they bowed their heads before un fait accompli.

The decisions, confusing and unsatisfactory as they were from the stand-point of constitutional law, left Congress unhampered in the work of providing a government for the Philippine Islands. As in the case of Porto Rico, the type adopted was different from anything ever outlined by Congress before. It will be described at length in the next chapter.

CHAPTER IX

CIVIL GOVERNMENT IN THE PHILIPPINES

THE

(1898-1907)

HE task of governing the Philippines began with the occupation of Manila by American troops August 13, 1898. The military rule thus established under the authority of the president, as commander-in-chief of the army, was continued without special authorization or interference on the part of Congress for more than two and a half years. The military governor was instructed from the first to act as far as possible through the ordinary agencies of the civil administration; and a commission was shortly sent out on the sole responsibility of the president to aid in the administration of civil affairs. While military and civil matters were thus gradually separated and placed in different hands, the government continued legally a military one and was administered through the secretary of war. The problem of governing nearly eight million people, ranging from savagery to civilization, and divided into over eighty tribes representing a most complicated intermingling of races, customs, religions, and superstitions, presented so many new and