Professor L. S. RowE, University of Pennsylvania.

It is no small task to add anything to the admirable addresses we have heard this afternoon. In them we find exhausted the possibilities of political organization in the management of dependencies, as well as the constitutional difficulties that we are likely to encounter. Upon these two questions-of political organization and constitutional interpretation-I wish to say a few words.

I have not the slightest doubt, that so far as the organization of government in our new dependencies is concerned, we shall be able -whether in Cuba, Porto Rico, or the Philippines-to adapt our standards to the needs and possibilities of the inhabitants of the islands. Arguing from precedent, there is reason to believe that our government will be too despotic rather than too free. It is a mistake to suppose that the extension of American rule means equality of political rights. Throughout our history the principle for which we have stood above all others is the maintenance of order and security. To this end we are prepared to subordinate all other political ideals and principles.

The real difficulties which we will encounter in the government of our new possessions, difficulties which are as yet new to us, lie in the field of the private rather than in that of the public law. In other words, while we shall in all likelihood be able to develop a governmental organization strong enough to meet any emergency, there is grave danger that by suddenly undermining customs, traditions and systems of law which do not conform to the principles of the common law, we shall destroy the fabric of social organization in the new territories. Incomplete and inadequate as such social organization may be, it is the first step in orderly, progressive development. To destroy it is to invite disintegration and decay. This danger is evidently very much greater in the Philippines than in either Cuba or Porto Rico. In the latter our first and most important mission is to reorganize the judicial system and the administration of law rather than its form. In certain departments of legal procedureparticularly that of land transfer-glaring abuses must be corrected. The only immediate change necessary in the substantive law however is to make it definite. We cannot afford to permit our GovernorGeneral to indulge in the arbitrary interference with the form of law and administration of justice which characterized the rule of his Spanish predecessor. Under our rule, Cubans and Porto Ricans must be assured of equality before the law not only as between themselves, but also as against the public authorities. This does not mean that we must sweep away all local customary law and establish the code

of the civil law throughout the islands, thus sacrificing efficiency to uniformity. If we will but keep in mind how easily the legal fibre of a people is undermined, how gradually permanent changes in legal standards are effected, we shall be spared many humiliating failures.

Our policy in Cuba and Porto Rico is comparatively simple when compared with the difficulties which we shall encounter in the Philippines. We shall there require a combination of firmness and forbearance which no nation has as yet shown in its dealings with inferior races. For it must be remembered that it was only after a series of bitter lessons that England acquired the first rudimentary notions as to the proper method of dealing with half-civilized peoples. In the Philippines we shall have to deal with almost every conceivable form of primitive institution, from the patriarchal family to the most pronounced theocracy. However their system may violate our legal standards, we must remember that it cannot be suddenly changed without setting the population adrift toward anarchy and rebellion. For a long time we may have to tolerate institutions that may seem undesirable, even unjust to our eyes, and yet which are absolutely necessary to maintain the cohesion of the present social system. Law of some kind is better than no law at all. If we endeavor suddenly to inject American ideas into Malay tribal relations, disintegration and disorder are certain to result. The most that we can hope to do at present is to prevent the more violent forms of tribal or individual aggression, to establish an equitable system of taxation and then allow the civilizing influence of industrial reorganization to pave the way for improvement in property and other legal relations. As Mr. Lowell has well said, we shall probably make many blunders, but it is asking too much to expect an easy solution to so complex and delicate a problem.

A word before closing, on the vexed question of constitutional interpretation. In this respect I am inclined to take quite a different view of the situation from that outlined by Professor Woolsey. If instead of analyzing the letter of constitutional interpretation, we stop to examine its spirit, we find one cardinal principle guiding the court, viz., to avoid as far as possible any interference with the political organs of the government on broad questions of public policy. In order to carry out this principle we find the court resorting to legal fictions, as for instance in Fleming v. Page, * and Hamilton v. Dillin.†

I am fully aware that this proposition in the general form may give rise to some misunderstanding. Is it not the function of the judiciary,

9 Howard, 603.

t21 Wallace, 73.

ary, it will be asked, to safeguard the constitution and in so doing to check the action of the other organs of government? An analysis of the decisions of the Supreme Court will show that while this is true, it is subject to certain definite limitations. The court has consistently refused to interfere with what it calls "the political functions of the government."

While it has given no definite meaning to the term "political functions" the end which the court has kept in view seems quite clear, viz., to refrain from interfering with the political organs of the government whenever the peace, or safety of the country is endangered or the order and security of any district menaced. It would take us far beyond the limits of this discussion to examine the instances in which this principle has been carried out. The most striking cases have arisen in periods of conflict, such as the Civil and Mexican Wars. The Reconstruction Period was particularly fruitful in this respect.*

This desire to avoid conflict with the political organs of government has demanded a degree of self-restraint on the part of the judiciary which has aroused the admiration of every student of politics. This self-restraint has indirectly increased the authority of the courts, for it has assured to them the respect and support of the people in those cases in which the courts have seen fit to place checks upon executive action. Traditions such as these make it seem tolerably certain that the courts will not force upon the political organs of the government a construction of the constitution which would make good government in the Philippines impossible.

But what is the nature of this construction for which Professor Woolsey contends? Because, in Callan v. Wilsont the court held that the framers of the constitution were anxious to secure the benefits of the common law system to the whole people and, by implication, extended the right of trial by jury to the inhabitants of the District of Columbia, therefore, it is argued, this right must be extended to all the territory over which the United States may acquire dominion. This reasoning would apply to the amendments as well as to the body of the constitution. In order to avoid giving to the Filipinos the "right to keep and bear arms,”‡ and to guard against the dangers involved in guaranteeing to them the common law jury system, it is necessary to resort to a form of casuistry which can only be regarded as a subter

* See Mississippi v. Johnson, 4 Wallace, 475; Georgia v. Stanton, 6 Wallace, 50: also Dunning "Essays on the Civil War and Reconstruction." Macmillan; 1898. † 127 U. S. 540.

Amendments, Article II.

fuge. In Cross v. Harrison* the court held that the President as commander-in-chief of the army might govern newly acquired territory and that such territory did not become domesticated until Congress had established a civil government. Arguing from the letter of this decision, it is held that so long as the President governs the Philippines under the provisional form of military administration, the constitutional guarantees will not attach. In other words, if this mode of interpretation be correct we are driven to the conclusion that in order to govern the Philippines efficiently we must establish irresponsible government with its attendant evil-civil government by the military arm. To preserve order and maintain liberty we must create one of the worst forms of despotism.

I dwell upon this point, for it seems to me to involve a serious menace to the orderly development of our institutions. If we must resort to such devices to "beat" the constitution, it will not be long before its authority will be seriously undermined. Many of those who believe that they are its staunchest supporters are in reality fostering that form of constitutional observance which abides by the letter but violates the spirit. Is it not far better consciously to face the fact that the precedents cited are precedents in form rather than in substance? A precedent is "a decision precisely, exactly or directly, in point,"† or a case, of which the "facts cannot be distinguished in effect from those of the present case." Judged by these standards can the proposition for a moment be seriously entertained that real legal precedents exist for the constitutional questions involved in the government of the Philippines; at all events as regards the applicability of the constitutional restrictions and the constitutional guarantees? In every one of the cases cited the question before the court has been, whether the benefits of the constitutional guarantees, together with the common law system which they include, should be extended to territory contiguous to the territory of the states, settled by a people of essentially the same training and traditions. Is it not natural that with expediency and traditional policy in harmony, the Supreme Court should have followed the line of least resistance?

But now the question has arisen under totally different conditions. With a population on a lower plane of civilization, untrained to the common law-in fact, in many cases devoid of any legal system-are we blindly to follow rules of interpretation intended for essentially different application? The mere statement of the possibility is a *76 Howard, 164 (193).

+6 East, 512, Ram, “On Legal Judgment, ”p. 113. 13 Barn. and Ald. 56.

reflection on our political capacity as a nation. When we bear in mind the splendid traditions of forbearance and self-restraint of the judiciary, the constant desire which it has shown to remove rather than to increase the obstacles to efficient government, there is, it appears to me, but little danger that we will be forced to the unpleasant choice between inefficient government and irresponsible rule.