as if it were a question of their operation within the States of the Union, it necessarily follows that the minority Judges regard all the American dependencies as dependencies under a régime of assimilation.

The dissenting Judges criticized the theory of the majority, as a theory according to which the dependencies of the American Union are subjected to "absolute" and "unrestricted" power. They said:

The contention seems to be that if an organized and settled Province of another Sovereignty is acquired by the United States, Congress has the power to keep it, like a disembodied shade, in an intermediate state of ambiguous existence for an indefinite period; and, more than that, that after it has been called from that limbo, commerce with it is absolutely subject to the will of Congress, irrespective of constitutional provisions.

That theory [of the majority of the Court] assumes that the Constitution created a Government empowered to acquire countries throughout the world, to be governed by different rules than those obtaining in the original States and Territories, and substitutes for the present system of republican government a system of domination over distant Provinces in the exercise of unrestricted power.

The plain and necessary meaning of the majority of the Court is, however, that the power of the American Union over its dependencies is neither an absolute power nor an unrestricted power, but a conditional power and a power limited by the necessity for its exercise in the particular case. It is not a power which is exercised by the Government of the American Union without a Constitution, but a power exercised under a trust imposed on the Government of the American Union by the people of the American Union, in their written Constitution, compelling the Government to adjudicate and

execute an unwritten Constitution. The majority of the Court recognize that a written Constitution is only the best evidence of the unwritten Constitution which it evidences, and that the same rule of the relationship between the Constitution of a State and the Constitution of its Empire applies, whether the Constitution of the State is written or unwritten,-that the Constitution of a State, whether written or unwritten, is in force in its dependencies so far as may be practicable, considering the local conditions and circumstances of each dependency, and to this extent forms a part of the unwritten Constitution of the Empire of the State. There is nothing in this theory which militates against the interposition of the Imperial Judiciary for the protection of private rights. The very definition of the Imperial power in the Constitution as the power of disposition accompanied by a power to make all needful rules and regulations, implies a power existing somewhere to nullify all acts of the American Union which are not acts of disposition, and all legislative acts which are not "needful."

On the other hand, the theory of the dissenting Judges, though apparently based upon a desire to protect the inhabitants of the dependencies against unlimited governmental power, is really based upon the theory that the power of the Imperial State over its dependencies is a power based upon its will, supported by force, and not upon compact. Any régime of assimilation necessarily implies the non-recognition of the wishes and desires of the people of the dependencies, and the claim on the part of the people of the Imperial State that what they consider good for them is good also for the people of the dependencies. The enforcement of limitations on governmental power may be an injustice to the people of the dependencies, where it would be doing justice to the people of the Imperial State. The exercise of governmental power according to the neces

sity of the case is the prime necessity of all community life, and to require power to be exercised in a certain manner, which is not the manner dictated by the necessity of the case, is practically to deny to the community the prime necessity of community life, and to exercise power which to all intents and purposes is, so far as the people of the dependencies are concerned, "absolute " and "unrestricted."

By the decision in the Insular Tariff Cases, the purpose of the framers of the Constitution has been at last recognized and fulfilled, and the American Empire is recognized as a Federal Empire.

If the history of the instrumentalities by which the American Union has performed its Imperial obligations is examined, they will be found to reflect the views which have been held, from time to time, concerning the political relationship.

From the beginning of the nineteenth century until very recently, the Congress has regarded itself as the sole representative of the American Union in the exercise of the power over its dependencies. Though, by the Organic Acts of the Territories, the President, by and with the consent of the Senate, has been recognized as having the power to appoint the Territorial Governors and Secretaries and in some cases the Executive and Legislative Councils, he has not been recognized until recently as having any legislative power, except for military purposes or purposes incidental thereto, either negative or affirmative. This power has been claimed and exercised solely by Congress. Though the reports of Territorial Governors, when they have been made, have always been made to the President, through one of his Secretaries, it has been for the purpose of laying them before Congress.

By Act of 1884, the District of Alaska was given a form of government wholly appointive but without legislative

powers, the applicable provisions of the laws of Oregon being declared by the Act to be in force in the District. This form of government was continued by the Act of 1900, providing a code for the District.

By Joint Resolution of July 7, 1898, it was provided:

That the Hawaiian Islands and their dependencies be and they are hereby annexed as a part of the territory of the United States, and are subject to the sovereign dominion thereof.

By this Resolution it was also provided:

That until Congress shall provide for the government of such Islands, all the civil, judicial, and military powers exercised by the officers of the existing Government in said Islands shall be vested in such person or persons, and shall be exercised in such manner as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned.

By the Act of 1900, Hawaii was given a Territorial form of government.

Various provisions having been made in the treatres prior to 1898 by which territory was ceded, concerning the rights of the inhabitants, some of which had led to a claim, by the people of the dependencies in the ceded regions, of a right to be admitted as Member-States of the American Union, this possibility was carefully guarded against in the treaty of cession from Spain of December 10, 1898, following substantially the provisions in the treaty with Russia of 1887 ceding Alaska, by a provision which read as follows:

The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.

By the Act of 1900, the Island of Porto Rico was given a Government, under an appointed Governor and Council and an elected House of Representatives, with full powers of local legislation. The Act was so worded as to make it impossible for a claim to be made under it that the American Union was under any obligation to Porto Rico to admit that dependency into the Union.

On April 7, 1900, a Philippine Commission of five members was appointed by the President, without authority of any Act or Resolution of Congress, which was, by the Instructions accompanying the President's commission, given the following powers, among others:

Beginning with the 1st of September, 1900, the authority to exercise, subject to my approval, through the Secretary of War, that part of the power of government in the Philippine Islands which is of a legislative nature is to be transferred from the Military Governor of the Islands to this Commission, to be thereafter exercised by them in the place and stead of the Military Governor, under such rules and regulations as you shall prescribe, until the establishment of the Civil Central Government for the Islands or until Congress shall otherwise provide.

The Instructions required the Commission to admit the natives to as large a share in the Government as possible, provided for putting the Civil Service of the Islands under proper regulations to insure expertness, enjoined legisla tion conforming as far as practicable to the customs, habits, and prejudices of the people, and authorized the isolation of uncivilized tribes under their tribal governments.

By Act of Congress of March 2, 1901, it was provided:

All military, civil, and judicial powers necessary to govern the Philippine Islands, ... shall, until otherwise provided by Congress, be vested in such person or persons and shall be exercised in such manner as the President of the