PROBLEMS OF CONSTITUTIONAL LAW 599 



Do not understand me as claiming the development of such a 

 policy for the party at present in power in Congress and the present 

 administration without the aid of their party opponents. I am not 

 at all sure that, in the immediate enthusiasm of victory, and under 

 the necessity of exercising temporary absolutism in government in 

 the newly acquired territories, the party in power would not have 

 lost sight of the real purpose of their work in the world's civilization 

 except for the earnest expostulations of their opponents calling 

 them back to the contemplation of the historic principles of the 

 Republic. I rather fear they would. This noble policy is, therefore, 

 the resultant of two forces rather than the direct product of one. It 

 is the policy of the nation rather than of any party within the nation 

 or of any part of the nation. As such it is sound and true and un- 

 changeable, and is destined to be pursued no matter what party 

 shall hold the reins of the government. 



But we have some constitutional difficulties in the way of the 

 realization of this policy. These difficulties relate to the constitu- 

 tional powers of the United States Government and the limitations 

 imposed thereon in behalf of individual immunity within newly 

 acquired territory. It is settled that the United States Government 

 may acquire territory for the United States by treaty or conquest; 

 that it may set up a temporary military regime therein against 

 which there is no constitutional immunity for the individual ; that it 

 may relinquish possession of the same to its own inhabitants or another 

 power, either absolutely or under such conditions in the form of a 

 treaty as may be agreed upon by the parties, and may enforce the 

 stipulations of the agreement in such ways as may have been agreed 

 on, or in such ways as are recognized by the customs and practices 

 of nations; or that it may perfect its acquisition and transform the 

 temporary military despotism therein into such civil government as 

 Congress may establish, under the limitations of the constitution 

 in behalf of civil liberty. I say that these points are all well settled. 

 But there is some question about the power of the United States 

 Government to exercise a protectorate over peoples occupying 

 territory which is not a part of the United States, especially when 

 that protectorate shall not have been established by treaty and 

 shall not be exercised under the forms of international agreement 

 or custom. There is not a word in the constitution expressly author- 

 izing it, and it is a grave question as to whether there is a word 

 from which such power can be implied. 



Moreover, it has appeared desirable, perhaps I should say abso- 

 lutely necessary, to the United States Government to make the 

 transition from military despotism in the government of some of 

 these new acquisitions to a first and temporary form of civil govern- 

 ment without constitutional limitations in behalf of individual liberty, 



