Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1899-01-19

to Wow these matters in 4 Judicial
light and be as earnest defenders of
the Constitution as the great Webster
was. Two men Of my acquaintance,
professors of history, have recently
given cause for just criticism, as giving
aid TO the enemies OF the Constitution
by their light treatment OF that bull
@ark Of our liberties. / refer to Prof.
Hart of Harvard and Prof. Judson
of the University of Chicago.
At the last meeting of the American
Historical Association, Prof. Hart re-
piled to Judge s. f.. Baldwin's able
and mastery paper on the 'Constitu-
tional and Legal Aspects Of tho IN
nexation Of Dependencies. II seemed
to me particularly unfortunate that
Prof. Hart did not maintain the dis
cussion on the high judicial plane
where Judge Baldwin had placed il.
His treatment OF the subject savored
ton much of the political hastings,
and was quite unsuited to the calm
and dispassionate discussion which
should characterize the meetings Of
such an association. Prof. Hart said
in the course of bis remarks "If
you wish authority for Congress TO leg
islate for the Philippines. why cannot
we find it in the clause authorizing
Congress to legislate for the Indian
tribes? Who are more Indian than the
FilIpinos?" This called forth loud
burst of applause, but grated on my
feelings as a jugglery with words, and
my disapproval of it has steadily in
creased as have pondered upon the
language.
The word Indian" as | understand
ii, has two meanings, the American
and the English. In the first sense,
which is almost universal in this coun
try, il refers TO the original red man
Of the western continent. In that sense
it was used by the trainers of the Con
stitution, as Prof. Hart vol knows.
In the second sense. which is almost
universal in England, il refers to the
inhabitants of British India and ad
joining islands, under which head
might loosely be classed the Philip
pines. have an English friend. who
has sometimes said TO me: MY kins-
men have been Indian officials for three
generations. y ! understand him per
fectly as using the word in the English
sense. Bus il had not been several
times in England, I should be quite
mystified, for I should take the word
in Its American sense.
The grave fault of Prof. Hart was,
rs ii seems to me, that in his first ques-
tion he used the word in the American
sense, and in the second question he
used the word in the English sense.
This does not seem to me fair argu-
ment.
In my opinion. il Prof. Hart should
attempt such an argument as that
before the Supreme Court of the
United States, those nine men who
hold the scales of Justice for GO, 600,
600 Of people would with eager delight
turn him down with dull, sickening
| thud that would make mis- head swim.
When man Of the eminent and we'll.
deserved fame of Prof. Hart, in the
Constitution in that light and flippant
way. he sets bad example, which the
ordinary politician is only too eager to
initiate.
The same feeling of protest was
aroused by examining Prof. Judson's
article in the last number of the Re-
view of Reviews. 1t seems to me that
| it would be much better for magazine
editors when they wish to instruct
| the public on these great questions,
not to take the opinion of an amateur
| In constitutional law like Prof. hudson,
but to give tho testimony of exports,
bred in the law, who have made the
study OF the Constitution their life
work, like Judge Hare Of Radnor, Pa,
Judge Baldwin, OK Senator Edmunds,
and tho like.
Tho quotation from Prof. Judson' IS
article will show his amateur char
acter and his fitness as an interpreter
Of constitutional law! On page rs he
says:
"The limitation of uniformity in the
power TO lay indirect taxes is confined
TO the United States, which may well
mean the States. Thus there would be
no such limitation so far as territories
are concerned, and hence Congress
would be quite free to maintain therein
| such q system of duties and excuses
| as circumstances may warrant, ire
spectivo of the policy controlling the
| States. Thus Congress may, il it seems
expedient to do 50, establish the open
door in oversee territories without
| let or hindrance from the Constitu-
tion.'
1t simply takes my breath away TO
sec with what cool complacency Prof.
Judson overrides the opinion of Chief
Justice Marshall, delivered In 1920.
Let anyone turn 10 the fifth volume
OF Wheaton, pago 3l7. Tho case is
that of Loughborough vs.. Blake The
second heading reads:
The power of Congress TO levy and
collect taxes, duties, imposts and
excuses is coextensiye with tho terri
tory OF the United States.'' In the
decision itself Chief Justice Marshall
says:
This power to lay taxes, &c., may
be exercised and must be exercised
throughout tho United States. Does
this designate the whole or any par
ticular portion of the American en-
pire? 1t is tho name given to our
great republic, which is composed of
| of Columbia or the territory west of
| the Missouri is not less within the
| United States than Maryland or Penn
sylvania, and it is not less necessary
| in the principles of our Constitution
that uniformity in the imposition OF
| imposts, duties and excise should be
observed in the one than in the other?"
| According 10 this Interpretation by
Chief Justice Marshall, can ii fairly
be denied that President Mckinley. if
he provides an ''open door" in the
Philippines, as the treaty of Paris pro
poses, should they be annexed, will
violate the Constitution, which in his
inaugural oath he swore to obey, pro-
tect and defend?
There IRE other statements of Prof.
Judson, equally ENTHUSIASTICALLY, but
have not space to discuss them. In
his last paragraph he writes himself
down as quite Incompetent to interpret
our constitutional law. in this grave
crisis Of our history. This is it: 81 he