DISCUSSION.

DR. TALCOTT WILLIAMS, Philadelphia.

The discussion to which we have listened for three hours, has covered all three phases of this subject, constitutional, administrative and industrial, with a complete ability. We may fitly congratulate the Academy upon its series of papers, which face this national issue with confidence, accept its responsibilities without hesitation and see in our laws, our government and our citizenship the material for its successful solution.

The burden of utterance has been in favor of the constitutional power of the government to discharge all the duties before it in the administration of dependencies. This was also the case in the debate in Congress. While Professor Woolsey and Professor Huffcut confine themselves to this aspect, Professor Lowell has dealt in a strain as encouraging with the administrative necessities of the case, and the solitary doubt as to the future is raised by Mr. Ireland in his assertion, which I will take up later, that contract laws are indispensable in dealing with labor in the tropics.

The constitutional argument advanced by both Professor Woolsey and Professor Huffcut has become familiar during the last six months. They differ, one in believing that it will be necessary to adjust constitutional guarantees in some shape, and the other in asserting that they do not extend over territory newly acquired. I do not propose here and now to review this constitutional discussion, but I desire to draw attention to a phase of this branch of our subject, to which neither has alluded. In guessing on the future decisions of the Supreme Court, it has generally proved wiser to trust to the trend of its past history than to our analysis of its probable reasons for a future decision. For a century, since its early decisions first struck out the path, the Supreme Court, with the exception of the solitary decision in the Dred Scott case has never found a national need without discovering a national power. This has been the basis of its steady extension of the powers of the "federal agency" into the prerogatives of a nation possessing all the powers required in the external discharge of its duties in the field of international law. In deciding internal questions the pendulum of the Supreme Court has swung from one extreme to the other, but in deciding those questions created by the external relations of the United States, ending in the luminous decisions in Ross' case, quoted by Professor Huffcut (140 U. S.

453), the Supreme Court has always found whatever power it was necessary for the United States to have to act in its sovereign capacity. I need not review these cases. They have decided the right to acquire territory, to determine its government, to govern territory conquered, but not annexed, to enforce treaties, to exclude aliens in time of peace and to discharge, even to the execution and imprisonment of American citizens, the civil and criminal jurisdictions of ex-territorial law in Oriental countries. With this clear ascending curve running through a century, it is no great stretch of either imagination or calculation to assume that the Supreme Court will reach a precisely similiar conclusion when it is called upon to decide whether the nation organized by the constitution can exercise the ordinary national powers of other nations in dealing with annexed territory.

The precise letter of the constitution of course, blocks the way, as Professor Woolsey has pointed out. Through it, Professor Huffcut has driven his ingenious tunnel, but the provision in regard to jury duty is in the same article with the provision in regard to judges holding for good behavior, and if Congress can establish courts which can legally condemn a man when the judge only holds for a term of years in our territories, it could by parity of reasoning eliminate the jury. Nor is this all. The United States has had three successive classes of territory acquired, first from cession by states to the United States, under conditions which the Supreme Court has recognized as limiting congressional action, second by the cession of foreign countries under treaties which stipulated that in the new acquisitions, the citizens of the ceding nation should enjoy the privileges of the citizens of the nation accepting the cession, which Justice Marshall held the sole basis of civil rights. Third, our present acquisitions which are ceded without this provision and in which by implication these rights are not conferred by annexation. There is here a steady sequence whose march and progress the Supreme Court sought to interrupt in the Dred Scott decision, but in which the arbitrament of events proved more powerful than the logic of Taney. The absence of this treaty clause in our last acquisitions under the reasoning of Marshall vitally changes the situation, and while it does not alter the power of Congress to legislate, it changes the environment under which it acts.

Any confusion on this subject arises from failing to discriminate between the limits of sovereignty and constitutional jurisdiction. The decisions in the California cases to which Professor Huffcut alluded (Cross v. Harrison, 16 Howard, 164) do not base the right to levy taxes on the war power, but the absence of constitutional reason

for interference with these taxes on the fact that Congress had not yet legislated so as to extend the jurisdiction of the laws of the United States, its treaties and its constitution. Sovereignty and jurisdiction may be coterminous. Either may exist where the other is absent. The sovereignty of the United States sentenced in Japan to death and provided for the imprisonment of Ross for life in Albany, a stronger case than the finding in Japan because the sentence had to be executed within our constitutional limits, but no one will pretend that the constitutional jurisdiction of the United States applied in either case because if it had a jury would have been necessary, and the Supreme Court wisely found the authority for dealing with the life and liberty of an American citizen, not in any special grant of power to Congress, but in the necessity for the exercise of the international powers of an independent sovereignty. A long series of decisions show that the executive sovereignty of the English crown attaches at the instant of conquest, but the judicial jurisdiction of the English crown only begins after an order in council has extended it. The sovereignty of the United States extends over an Indian tribe; but its members are not within the constitutional jurisdiction of the United States and the right of Congress to regulate the manner in which the local powers of such a tribe shall be exercised does not render such local powers Federal powers, arising from and created by the Constitution of the United States. (Tatton v. Mayer, 163 U. S. 376.) By discovery the sovereignty of the United States extended over the Guano Islands which our citizens occupy, but the jurisdiction of the United States is only established there by act, and if Congress instead of making Navassa a ship as it did by section 5516 R. S. had given its governor power of life and death the grant would have rested on as complete constitutional power in one case as in the other. National sovereignty exists complete, unchallenged and unquestioned over the Philippine Islands and Porto Rico. The authority now exercised there is ordinarily spoken of as the war power of the President, but it is also the necessary exercise, as the Supreme Court pointed out in the case already cited, of that authority which attaches to a sovereignty that acquires territory, an authority which is not provided for in the constitution, but which exists as a logical deduction from the fact that the constitution created a sovereignty with complete national powers for international purposes.

The constitution created a constitutional jurisdiction within certain definite limits, to wit, the states which formed the union. It also created a nation with the usual international powers needed and demanded by an independent nation, recognized and acting as such under the law of nations. To both of these propositions all agree.

When this national sovereignty acts within the sphere of constitutional jurdisdiction, it is limited by constitutional provisions. When as a national sovereignty, it acts within the international field, it has whatever powers are needed for its work as such, a principle established by a long series of decisions. (Fong Yue Ting v. U. S. 149, U. S. 712). Sovereignty is exercised over conquered territory under no specific constitutional power, but as part of the rights inherent in the international nation created by the constitution. Legislation, by treaty or statute (American Insurance Co. v. Canter, 1 Peters, 511), decides when the constitutional jurisdiction shall be coterminous with this national sovereignty, and until some legislation, treaty or statute decides this political question, the judicial power of the United States does not attach (Jecker v. Montgomery, 13 Howard, 498); unless Congress legislates otherwise, the "belligerent rights of a conqueror " remaining complete until this time (16 Howard, 164). Sovereignty, in short, moves with the international acts of the nation. Constitutional jurisdiction travels with the municipal law of the United States, and is created by a treaty because it is part of that law. Nor does any decision, not even that cited referring to the District of Columbia, traverse this distinction, for the simple reason, if no other, that a treaty annexing territory without conferring civil rights—that is, extending constitutional jurisdiction in greater or less degree has never yet been before our courts. I submit, therefore, that in dealing with territory thus annexed, there may be found a power wider than that simply "to make all needful rules and regulations respecting territory, and other property," to wit, that broader national power which permits annexation itself, though the constitution makes no provision for the act and under which power a long series of statutes have been passed and even juryless courts created as part of national sovereignty, and not part of our municipal constitutional jurisdiction.

In dealing with the administration of dependencies, Professor Lowell has laid stress, as is indeed fit, on the trained and organized character of the English colonial service. But the precise force and efficacy of the English colonial administration is and always has attached to the absence of this requirement in its higher parts. It is the combination of a trained force headed and controlled by men chosen from the general political life of the realm and for political service which gives the English colonial service practical efficiency. A pure bureaucracy, a trained and examined colonial service, exclusively applied to colonial administration ends where the German colonial service, which is of this character, has always ended, in the perpetual broils and the perpetual blunders of the "competition wallah,” if he has not some one over him selected by the competition of life and

not of examination. Ultimate power in India rests with the governorgeneral and governors of the presidencies, men selected from active English political life, and for these posts a Conservative government, selects Conservatives and a Liberal administration, Liberals. Sir Alfred Milner, the ablest figure to-day in English colonial administration, was a dozen years ago a mere journalist and has never gone through the competition mill. Of the seven Australian governors last year only two had ever had political training. The rest had been, one a gentleman in waiting, another groom of the chambers, another "Verderer of Epping Forest"-an ancient office doubtless, but whose direct training for colonial administration must be admitted to be slender by the few, even in this audience, who can define its duties. A successful explorer, like Thomson, a good regimental officer, some journalist or barrister with a genius for management, a man successful in English politics—these have made half the good colonial governors, aided and supported by a trained force selected by competition as their administrative tools.

Nor are Anglo-Indian salaries what they were. The very place Macaulay took to accumulate a competence, can to-day be held only by a man with a private fortune to bridge the gap between the salary paid and the level of expenditure demanded by the post.

Mr. Alleyne Ireland speaks the undoubted conviction of all Englishmen in deeming contract labor laws necessary in the tropics. I may be pardoned if I remember that every English paper teemed with this advice thirty-three years ago, in behalf of the cotton crop. We were assured-Who does not remember it?—that without contract laws the negro would not work and the cotton crop cease. Our largest crop then had been 3,000,000 bales. Free labor has quadrupled the yield. There are two ways of making a man work-by pressure from above, disguised slavery-or by stimulus from within, the higher wages of a highly organized, free, industrial system. The last, the tropics have never yet had. Jamaica and the other English tropical West Indian Islands are the dissevered fragments of a continent from whose industrial activity they have been separated. Give the stimulus of a

market and of high wages and all men will work. Deprive them of either and contract labor laws are needed. The American may yet solve the tropical industrial probiem as he has quadrupled the cotton crop in face of all the arguments marshaled by Mr. Ireland, all made thirty-three years ago, not by laws making it harder for a man to be idle but by an industrial system making it more profitable for a man to labor.