maintaining and protecting the inhabitants of the Islands in the free enjoyment of their liberty, property, and religion." By an act approved March 8, 1902, to provide a revenue for the Philippine Islands, duties were imposed on articles entering the Philippines from the United States as also on those coming into the United States from the Philippines.80 This act, besides regulating the revenues, contained, in section 9, provision that no person in the Philippine Islands should, under the authority of the United States, be convicted of treason by any tribunal, civil or military, unless on the testimony of two witnesses to the same overt act, or on confession in open court. This was in effect an enactment by Congress that the first clause in section 3, Article III of the Constitution should apply in the government of the Philippines. By the act of July 1, 1902, passed after the decision of the Supreme Court in Downes v. Bidwell, for the administration of civil government in the Philippine Islands, it is expressly enacted that section 1891 of the Revised Statutes-that the Constitution and laws of the United States not locally inapplicable shall have the same force and effect in Territories thereafter organized as elsewhere within the United States-shall not apply to the Philippines.81 The inhabitants of the Islands, who were residing there on April 11, 1899, and who have not elected to retain their Spanish nationality in accordance with the stipulations of the treaty, and their children born subsequently thereto, are declared to be citizens of the Philippine Islands and as such entitled to the protection of the United States.82 The act also embodies many of the guarantees as to private rights found in the Constitution, but not all of them.88 It is expressly declared that no ex post facto law, bill of attainder, law imparing the obligation of contracts, granting titles of nobility, depriving any person of life, liberty or property without due process of law, or denying any person therein the equal protection of the law, shall be enacted. Provisions against imprisonment for debt, against slavery, and the suspension of the privilege of the writ of habeas corpus are made. The rights and immunities as to religious freedom, bail, cruel and

79 31 Stats. at L. 910.

80 32 Stats. at L. 54.

81 Sec. I. 32 Stats. at L. 691, 692.

82 Sec. 4.

83 Sec. 5.

unusual punishment, searches and seizures, public trial, witnesses, and jeopardy, which are guaranteed in the first nine Articles of the Amendments to the Constitution, are substantially incorporated in this act. The rights and immunities found in Articles II, III, V, and VI of the Amendments, as to keeping and bearing arms, quartering of soldiers in time of peace, guaranteeing the right of trial by jury, and of presentment and indictment by a grand jury are not expressly included. Mr. Justice Day, Secretary of State during the war with Spain, negotiator of the protocol of August 12, 1898, and one of the American Commissioners, who negotiated and signed the treaty at Paris, in the opinion of the court in Dorr v. United States, said: "Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision [Downes v. Bidwell] that the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation***. If the treaty-making power could incorporate territory into the United States without Congressional action, it is apparent that the treaty with Spain, ceding the Philippines to the United States, carefully refrained from so doing; for it is expressly provided that (Article IX) 'the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.' In this language it is clear that it was the intention of the framers of the treaty to reserve to Congress, so far as it could be constitutionally done,85 a free hand in dealing with these newly acquired possessions. The legislation upon the subject shows that not only has

84 See Day, J., Kepner v. United States, 195 U. S. 100, 123.

85 "We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the 'American Empire.' There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges and immunities of citizens." Brown, J., Downes v. Bidwell, 182 U. S. 279. "It is then, as I think, indubitably settled by the principles of the law of nations, by the nature of the government created under the Constitution, by the express and implied powers conferred upon that government by the Constitution, by the mode in which those powers have been executed, from the beginning, and by an unbroken line of decisions of this court, first an

Congress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902, providing for temporary civil government, 32 Stat. 691, there is express provision that section eighteen hundred and ninety-one of the Revised Statutes of 1878 shall not apply to the Philippine Islands. This is the section giving force and effect to the Constitution and laws of the United States, not locally inapplicable, within all the organized Territories, and every Territory thereafter organized, as elsewhere within the United States." And it was held in this case "that the power to govern territory, implied in the right to acquire it, and given to Congress in Article IV, 83 [of the Constitution] to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated."86 In the later case of Dowdell v. United States,87 it was held that in the absence of legislation by Congress there was no right in the Philippine Islands to a trial by jury, or to an indictment by a grand jury as required in Article V of the Amendments to the Constitution.88

nounced by Marshall and followed and lucidly expounded by Taney, that the treaty-making power cannot incorporate territory into the United States without the express or implied assent of Congress, that it may insert in a treaty conditions against immediate incorporation, and that on the other hand when it has expressed 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 fulfillment of such conditions cause incorporation to result." White, J., Id., 338. "The office of a treaty of cession ordinarily is to put an end to all authority of the foreign government over the territory; and to subject the territory to the disposition of the Government of the United States. The government and disposition of territory so acquired belong to the Government of the United States, consisting of the President, the Senate, elected by the States, and the House of Representatives, chosen by and immediately representing the people of the United States. Treaties by which territory is acquired from a foreign state usually recognize this. It is clearly recognized in the recent treaty with Spain, especially in the ninth article." Gray, J., Id., 346.

86 195 U. S. 138, 143, 149.

87 221 U. S. 325.

88 See as to the Territory of Hawaii, section 5 of the act of April 30, 1900, 31 Stats. at L. 141, and the case of Hawaii v. Mankichi, 190 U. S. 197.

899. Power to Cede Territory.-In the Federal Convention, August 15, 1787, while the treaty power was still vested in the Senate alone, George Mason, in urging that all bills for raising or appropriating money should originate in the House of Representatives, said that he was extremely anxious to take this power from the Senate, which "could already sell the whole country by means of treaties." "The Senate might," he added, "by means of treaty alienate territory, etc., without legislative sanction. The cessions of the British Islands in the W. Indies by treaty alone were an example. If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union."99 Elbridge Gerry on August 17, in supporting a motion to give Congress the power to make peace, said: "Eight Senators may possibly exercise the power if vested in that body, and fourteen if all should be present; and may consequently give up part of the United States." On September 7, during the debate on the question of the proportion of the Senate to be required for concurrence in treaties of peace (it having been voted to except them from the requirement of a two-thirds vote), Gerry urged that a greater proportion should be required than in case of other treaties, since in treaties of peace the dearest interests would be at stake, such as the fisheries and territories. He objected to putting the "essential rights of the Union" in the hands of a majority of the Senate which might represent less than a fifth of the people.91 An amendment was offered by the terms of which no treaty of peace should be entered into whereby the United States should be deprived of any of their present territory or rights without the concurrence of two-thirds of the members of the Senate present. Another amendment was offered which provided that no rights established by the treaty of peace should be ceded without the sanction of the legislature. Upon a reconsideration of the clause, the exception as to treaties of peace was stricken out."2

In the Virginia convention that ratified the Constitution, Patrick Henry, in a bitter attack on the treaty-making provision, said that the President and two-thirds of a quorum of the Senate "might relinquish and alienate territorial rights, and our most

89 Doc. Hist. of the Const., III, 535, 536.

90 Id., III, 554.

91 Id., III, 701, 704.

92 Id., III, 703, 704.

valuable commercial advantages. In short, if anything should be left us, it would be because the President and Senators were pleased to admit it."9 George Mason, in the same convention, declared that there was "nothing in the Constitution to hinder a dismemberment of the empire"; and he urged the adoption of an amendment by which it should be expressly provided that no treaty to dismember the empire should be made except in case of the most urgent and unavoidable necessity, and then only with the consent of three-fourths of both branches of Congress.9 Madison, in replying to these objections, said: "I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power."95 Grayson contended that express provision ought to be made that no dismemberment should take place without the consent of the legislature. He added: "There is an absolute necessity for the existence of the power. It may prevent the annihilation of society by procuring a peace. It must be lodged somewhere. The opposition wish it to be put in the hands of three-fourths of the members of both houses of Congress. It would be then secure. It is not so now."96 Similar objections were raised in the first North Carolina convention.97 An amendment to the Constitution, that no treaty ceding or compromising in any manner the rights or claims of the United States to territory, fisheries in the American seas, or navigation of American rivers should be concluded except in case of the most urgent and extreme necessity, and then only with the concurrence of three-fourths of all the members of both houses of Congress, was proposed both by the Virginia convention and by the first North Carolina convention.98

The question as to the power of the central government to cede by treaty territory lying within a State came under consideration. in President Washington's administration during the negotiations with Spain relative to the boundary between Georgia and the Floridas. In the draft of the instructions of March 18, 1792, to Carmichael and Short, the American commissioners, Jefferson,

93 Elliot's Debates (2 ed.), III, 500.

94 Id., III, 508.

95 Id., III, 514.

96 Id., III, 613.

97 Id., IV, 119.

98 Doc. Hist. of the Const., II, 271, 382.