boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace in order to indemnify its citizens for the injuries they have suffered or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by declaration of war. His duty and his power are purely military.'

"This seems sufficiently clear, for it was not necessary for the United States to make war upon the Filipinos to vindicate its own rights and the rights of its citizens. The war was merely one of aggression and conquest and for the acquisition of territory to which, as against the Filipinos, the United States had no valid right whatever.

On

"What the Court says about the right of the United States to extend its boundaries by conquest or treaty and to demand the cession of territory as the condition of peace in order to indemnify its citizens for the injuries they have suffered, etc., does not help the case as against the Filipinos, for the United States had suffered no injury from them. the contrary, it had received much benefit. If the United States had a right to indemnity against Spain, no treaty between these parties could bind the persons or property or territory of the Filipinos. Spain had neither the possession nor the right to possess the one-hundredth part of those islands, nor could the treaty give the United States title to any part of them against the Filipinos without the consent of the latter, as already often stated in this discussion.

"I consider the question of the extent of the power of Congress, under the Constitution, to declare and wage war

so important that, with the indulgence of the meeting, I would say something more on that subject before closing.

"Many years ago I gave in "The Federalist' (No. 40) two rules of construction, the application of which ought to settle the question whether the power of Congress to declare war is unlimited. The rules are these, and are dictated by plain reason as well as founded on legal maxims: The one is that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the

means.

"Let the most scrupulous expositors of the delegated powers answer whether it is of most importance that the rights enumerated in the Preamble to the Constitution should be preserved, or that Congress should have unlimited power to declare war, or to authorize the President to make war upon any people. Let them answer whether the preser vation of the enumerated rights and blessings for which the Constitution was formed, or the unlimited exercise of the war power by Congress, is the more important. Which is the more important, the end or the means? Or rather, which is the more important, the ends to be attained, or the extreme and arbitrary exercise of one of the means provided by the Constitution to attain them? There can be but one answer to these questions.

"It is not intended to undervalue the war power, but to

guard against its abuse. It is not intended to deny the right and duty of Congress to exercise its discretion in declaring and waging war, but to insist that its discretion should be reasonably exercised and that the wars declared by it must be for objects contemplated by the Constitution.

"The power given the courts and judges to grant injunctions is a salutary one. But an arbitrary and unjust judge or court may so abuse his discretion as to make what was intended as a benefit a curse and a terror to the people. That would be an illegal exercise of a legal right.

"So the power of Congress to declare war may be so abused as to become an unconstitutional exercise of a constitutional power.

"The executive of the nation is the natural, proper, and constitutional commander-in-chief of its military force. But if, in exercising that command, he so manages as to involve his country in war with another people, he is guilty of usurpation and is liable for all the consequences which follow his unconstitutional action. Such, as I understand from the evidence, is the situation in the present case.

"The foregoing view of the limit and proper exercise of the war power under our Constitution is strengthened by a consideration of the history and character of the men who formed that Constitution. They were intelligent, patriotic men, devoted to liberty and free government, and labored long and earnestly to frame a constitution which would secure these blessings to themselves and their posterity forSeveral of them were signers of the Declaration of Independence, and most of them had been students of history

ever.

and acquainted with the science and practice of government

for many years.

"It is not reasonable to suppose that such men would confer upon any department of the government they framed such a tremendous and dangerous power as unlimited discretion in making and waging war. Such a power would be uncontrollable and despotic, and could be used to defeat the objects for which the Constitution was formed. The logical conclusion is that this power was not intended to be, and was not, conferred upon Congress, and that its exercise would be unconstitutional."

Mr. Madison's manner was earnest but unimpassioned. He commanded the most profound attention, and I deeply regret my inability to reproduce his argument entire, or to give an adequate idea of its clearness and force.

COUNT TOLSTOI'S SPEECH.

Count Tolstoi said that he had been in the habit of giving his views upon the subject of war freely for many years. That if any excuse or apology were necessary to justify him in using great plainness of speech upon the present occasion, the extreme abuse of the jury indulged in at the political meeting held by some of the friends of the President last night might furnish it.

"Last year," he said, "in answer to a letter, I again gave my opinions upon the subject of war; a part of what I then

said is applicable to the present occasion, and I will repeat it substantially as it was then given:

"Enlightened, sensible, good Christian people, who inculcate the principle of love and brotherhood, who regard murder as an awful crime, who, with very few exceptions, are unable to kill an animal-all these people suddenly, under those conditions when these crimes are called war, not only acknowledge the destruction, plunder, and killing of people as right and legal, but themselves contribute towards these plunders and murders, prepare themselves for them, take part in them, are proud of them.

"If a man act in accordance with that which is dictated to him by his reason, his conscience, and his God, only the very best can result for himself and for the world.

"People complain of the evil conditions of life in our Christian world, but is it possible for it to be otherwise when all of us acknowledge not only that fundamental, divine law proclaimed some thousands of years ago, "Thou shalt not kill," but also the law of love and brotherhood of all men; and when, notwithstanding this, every man in our European world practically disavows this fundamental divine law, acknowledged by him, and, at the command of president, emperor, or minister, of Nicholas or William, arrays himself in an idiotic costume, takes an instrument of murder, and says, "Here I am, ready to injure, ruin, or kill anyone I am ordered to."

"Governments do not desire the settlement of misunderstandings; if there be none, they invent some in order to have a pretext to keep up the army on which their power