Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-03-29

only 10 ike SITUATIONS, anu th3t the eOiu-
lions of new problems shall not be ham
pered and involved by fitting them into en-
cent snd neutrality-suspicious.. The very
philosophy of precedent demands the crea-
ton of new preceaeIits out of new occa-
sions. Surely can see more clearly the
situation before with our living eyes
than with the cad eyes of the fathers, and
even those dead eyes looking not at our
problems. but at theirs.
Precedent has its rightful authority, but
1t has its danger, teo. 1t sanctifies the
past, but. used beyond its rightful sphere,
1t forbids the future. vChina. we say. is liv-
ing in the past She Is living in her prece-
dents. She inquiries not the best way; she
asks only the way of the fathers. She is
reminiscent, not inventive. Her memory is
abnormal, her initiative is strophied.
Dragged with the opium of precedent. she
sits and dreams of ancient glories and the
ancient gods. The science of the modern
knew it not. Our medicines are poison
because they are not inherited from the
past, and enchantment is efficacious be-
cause her ancestry dealt. with the magic of
the night Spirits of evil fly upon the air,
and vorkmen fix charms upon buildings
where they labor. to frighten the fell in
nuences of the neither world be cause their
fathers did the like for a thousand years
Precedent has shod with lead the feet Of
this puissant people. and put upon her eve
lids the somnolent spell of dreams. Happy
1or China when she shall be aroused from
that narcotic sleep. even by the thunder of
foreign cannon on her coil.
Constitution Does Give Power,
But the Constitution does give us power
as ample as our opportunities; power so ex-
press and emphatic that the opposition dare
not quote 1t, lest 1t confound them, but fly
to subtleties and refnements of other Sec
tons not bearing on the matter in dispute;
power SO clear that it bears almost the au-
thority of command: power written by the
instructive anticipation of our development;
,a1 hxyf BIO. IT.
blood of the fathers; power so complete,
emphatic and unusual that there Is in 1t
the suggestion of duty.
The Congress shall have power to dis
pose OF and make all needful rules and reg
ulations respecting the territory or other
property belonging to the United States
so the Constitution says that there can
be territory belonging to the United States
Congress can even dispose of that terri
tory. But territory belonging to the United
states cannot be part of the United
States-that Is contradiction in terms. If
territory belongs to the United States and
at the same time is part of the United
states 1t belongs to- Is owned by a body
polite of which 1t is itself part-which is
an absurdity in reasoning. an impossibility
IN logic. And Congress may even 'disDose
OF territory belonging to the United States
dispose of how? Not by making that ter
ritory states only; not by establishing indie
pendent government only; not by making
that territory part of the republic only,
No; and full provision for such disposition
of territory is made elsewhere in the Con-
st1tuton. But the words dispose of any
territory belonging to the United States
stand there unlimited, absolute and inn
perial We can make it part of the United
States If we wish. We can set up independ-
ent government If We wish, and ALLEVIATE it
utterly; and yet we could not do that If it
is part of the United States for how can
the United States ALLEVIATE any part of it.
self, or how can any part of the United
States ALLEVIATE itself from the United
n1,r tho-r, hok
latter question, and million men answered
1t with their lives.
or course, Congress must exercise this
power In the manner prescribed in the Con-
stitution. The Constitution determines the
method of congressional action in exercis-
ing all its powers, and the Constitution fixes
certain fundamental general limitations to
and absolute general prohibitions on the
power of Congress; and when Congress
makes nee liul rules and regulations re-
Spectlns territory or other property belong
ing to the United States it cannot trans
gresS these limitations or prohibitions any
more than It can pass laws in any other
manner, except the one marked out in the
Constitution This is. of course, self-evi-
dent, but state it only that even the mall
ice of partisanship shall not say that we
put Congress above the Constitution"
Our institutions Control.
DO you tell me that under power so
broad we can set up a king in Porto Rico
and that therefore we must so construe the
Constitution as to forbid such a power? I
answer that We could not, even if an
other section of the Constitution did not
in terms. forbid it.
Why not? Because our Constitution in
terms forbids? Yes. But also because orr
institutions. forbid. Institutional law is old
er, deeper and more vital that constitu-
tional law. Our Constitution is only one
OF the concrete manifestations of our in
stitutions Our statutes are another; decis-
:.nDtner 1nr
tutional law is like the atmosphere i'm
palpable, imperceptible. but all-pervading
and the source of life itself. There is
scarcely q decision of our courts of last
resort in all the republic involving great
constitutional questions. which does not re-
Ter to the spirit of our institutions as inter
preuns our constitution. 1t is our institu-
tional law which, flowing like our vital
blood through the weaker constitution gives
that instrument vitality and power of de-
Veiopment. Our institutions were not es-
tabltshed by the Constitution institutional
law existed before the Constitution"
He declared that wherever the Constttu-
ton correctly interprets our institutions If
nVes; Wherever 1t does not correctly in
tefpret our Constitution it dies and has
died. N 'ie''
And SO our security" he said, 1.-The Sc
curlty OF our island wards, the security of
liberty, is not in the written word of the
constitution; 1t is in our institutions which
are the spirit of the Constitution Eng
land has no written constitution: France
mas an IDEAL written constitutions; and vet
England has liberty and law; France has
bureaucracy and military absolutism. Eng
land, without a written constitution is as
free government as ours. Law reigns su-
preme.
The Letter or the Spirit,
1T is our institutional law, therefore. of
which men should inquire, who would know
the meaning and the life of our constitu-
tional law. 1 have heard Constitution Con-
stitution,' the letter of the Constitution
l have listened for our institutions, and in
vain. And yet is it not written that the
letter killeth but the spirit giveth life" Is
1t not written that man shall not live by
bread alone but by every word that pro-
ceedeth out OF the mouth Of God?' And SO
l say l respect not, neither do heed, the
false prophets OF the constitutional law,
who have not learned the history of our
institutions Of which the Constitution ia
but an incident. until 1t Is a part of their
being and their blood. l respect not con-
stitutional charlatanism, that pseudo learn
ing that fastens its eye on the printed page
alone. disdains our institutions as interpret
ing 1t. and refuses to consider the sources
OF those institutions-the English struggle
Tor the rights of Hat cd h,,