Evening star., 1901-01-17
REPLY TO- GEN. HARRISON
CHARLES A. GARDENERS ADDRESS
ON THE CONSTITUTION.
Talks to State Bar Association About
This COuntry's New Pos
sessions.


was the subject of a paper read before the
New York State Bar Association at AL
bany, n. Y, yesterday by Charles A Gardi-
ner of New York city. Mr.. Gardiner said
in part:
our right to acquire and govern foreign
territory was advocated before this asso-
citation two years ago. The problem, then
so momentous, has passed from the stage
of controversy into final judgment. The
right to acquire and govern Is now con-
ceded: for two years Congress and the
President have exercised it; and in the last
election the action of the peoples repre-
sentatives was sustained by the overwhelm-
ing vote of the people themselves.
The problems now before the nation
arise from the government of our new pos
sessions. In his recent Ann Arbor address
General Harrison discussed them with such
profound learning and fervor of conviction
that his opinions demand the serious con-
sideration of every American. He bases
his entire argument on the self-expansion
of the Constitution. Annexation ipso facto,
he says, extends the document over an
nexed territory. 1t becomes operative
therein proprio vigore, and confers on the
inhabitants our Bill of Rights and the civil
and political franchises of American citi-
zens. Congress, therefore, cannot govern
ject to al constitutional limitations.
What is the history of this doctrine!
Prior to the adoption of the thirteenth
amendment the Constitution authorized
slavery; in states only, said the north; IN
states and territories also, said the south.
The issue was political, and after long de-
bate Congress enacted, hrst, the missouri
compromise act, and then other statutes,
excluding slavery from the territories. But
with each annexation of new territory the
strugg.es IN Congress broke out afresh,
and In the crisis of 1871, during the de-
bates on the Wilmot proviSo and oregon
bill Calhoun came out with his new ana
supreme dogma of the transmigratory 1unc-
ton of the Constitution and the lnStantane-
Gus transportation of itself In Its slavery
attributes into all acquired territories Y
Benton 7lO. Finally, in 1919, in the last
hours of the Thirtieth Congress, Calhoun
caused a rider to be introduced to the gen
eral appropriation bill, which again pre-
cipitated the entire prO-SlaVery agltatlon
in its most violent form In the discussion
that followed Webster maintained that the
Constitution did not extend to the terrl-
tories Calhoun replied: 1 am very happy,
sir to hear this proposition thus asserted
for it will have the effect OF narrowing very
greatly the controversy between the north
and south as regards the slavery question IN
connection with the territories The simple
question is. does the Constitution extend
to the territories or does 1t not! II IS tne
supreme law not within the limits of the
safes of this Union merely, but wherever
our fag. waves. Is not Congress
the creature of the Constitution! Anu
shall we. the creature of the consul
tuition pretend that we have any authority
beyond the reach of the Constitution? Ana
this as Benton says, was the last slavery
creed of the Calhoun school, ana the one
on which his disciples stand. y behtoh'
1881
Mr. Gardiner then reviewed the history of
the earlier territories under the Constitu-
ton until their admission as states. on
tinuing, he said: In orleans Leans tern ,erri'ory, Dry,
an established church, clergy PAID out OF
the public treasury, son could not sue
without the consent of his father, certain
criminals were not only denied jury trial,
but could be executed by the head of the
family without trial; a separate port law
existed for New Orleans. and lower duties
We're charged at that port on French ana
Spanish imports by - per cent than else
where in the United States
1.-The maintenance and extension of our
national dominion Is political not Judi.
cial problem. The reasons are thus stated:
The President and Congress are vested
with all the responsibility and powers OF
the government for the determination OF
questions as to the maintenance and eXten-
sion of our national dominion. 1t is not the
province of the courts to participate In the
discussion or decision of these questions,
for they are of a political nature. and not
judicial. Congress and the President hay
ing assumed jurisdiction and sovereignty,
and having made the declarations and as
thority and domion all the peo-
pie and courts Of the country are bound by
such governmental acts go Fed. Rep.
100 A question like this. as Chief Justice
Marshall said, is more a political than a
legal question; and in its discussion the
courts of every country must respect the
pronounced will of the legislature q Pet.
30S).''
Mr.. Gardiner then reviews the action
taken by the Senate regarding the territory
acquired under the treaty with Spain and
sums up the McEnery resolution as fol-
lows:
1T thus appears by affirmative action of
Congress that the islands are not 'perma-
nently annexed but only sub modo: that
they are not an integral part of the
United States. and that their inhabitants
are not citizens"
After quoting General Harrison in his de-
nunciation of the present policy regarding
these new territories the speaker continued:
who was it that inaugurated our pres
ent insular and extraterritoral policy?
That policy received its first practical and
definite expression in the transmission TO
Congress by President Harrison on Febru-
airy Is. 1893. of treaty providing for the
immediate annexation of Hawaii. He then
said: The treaty does not attempt to deal
in detail with the questions that grow out
of the annexation. . The commits
sloners representing the Hawaiian govern
ment have consented to leave to the future
and to the just and benevolent purposes or
the United States the adjustment OF all
of the Senate peace and good order will be
secured in the islands under existing law
until such time as Congress can provide by
legislation a permanent form of govern
ment for the islands,
General Harrison Is here confronted with
a distressing dilemma. Was he right in
1893. or is he right now? He urged Con-
gress to annex Immediately. but only sub
modo. as We have annexed Porto Rico and
the Philippines. and then the operation of
the Constitution and federal statutes was
to be suspended until such time as Con-
gress can provide by legislation perma-
nent form of government. For year after
ratification and pending congressional ac-
ton. Hawaii was also to retain its sepa-
rate tariff laws. and its Chinese inhabitants
were forever excluded from American soil
.as IL entering from a foreign country.
The policy of the present administration is
Identical with that initiated by General
Harrison.
again, he urged that all questions aris-
ing out of annexation should be left to the
future and to the just and benevolent pur-
poses of the United States When Presi-
dent Mckinley issued his instructions for
the government of the Philippines, he not
only followed the Hawaiian precedent, but
adopted General HarrisonS language-he