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when the same acts would be lawful if committed by isolated individuals. It prohibits the issuance of injunctions in specified instances. All these objects are provided for in our proposed measure, with equal if not greater effectiveness; and the lieu measure has the additional merit of placing human labor above the mere property considerations of the fifth amendment.

The provisions of the substitute bill with respect to procedure in cases of indirect contempt appear to be general in their character, and not confined to labor disputes; they would more properly be the subject of separate legislation.

PHILIPPINE INDEPENDENCE

BRIEF PREPARED BY DANIEL R. WILLIAMS, RELATIVE TO THE CONSTITUTIONAL POWER OF CONGRESS TO ALIENATE SOVEREIGNTY

OVER THE PHILIPPINE ISLANDS

PRESENTED BY MR. BINGHAM

FEBRUARY 17 (calendar day, MARCH 4), 1931.-Ordered

to be printed

UNITED STATES

GOVERNMENT PRINTING OFFICE

WASHINGTON : 1931

PHILIPPINE INDEPENDENCE

IS CONGRESS EMPOWERED TO ALIENATE SOVEREIGNTY

OF THE UNITED STATES?

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On January 10, 1930, Senator King, of Utah, requested the legislative counsel of the Senate to supply him “legal material” bearing upon the constitutional power of Congress to grant Philippine independence. On January 13, 1930, or three days later, a memorandum on the subject was submitted him by an assistant counsel of that office. While this memorandum makes no express holding upon the question suggested, it quotes in extenso from Willoughby's Constitution of the United States, and Malcom's Philippine Constitutional Law, both of which authors are of opinion that Congress is now empowered to alienate United States sovereignty over the Philippine Islands.

Messrs. Willoughby and Malcolm discuss the particular question at length in their respective treatises, and it is fair to assume state the case in favor of congressional authority in the premises as strongly as it can be done. For this reason their admissions upon certain controverted points may be accepted as authoritative, thus reducing the issue to comparatively narrow limits.

SOVEREIGNTY HAS NEVER BEEN TRANSFERRED OR WITHDRAWN OVER ANY TERRITORY ADMITTEDLY BELONGING TO THE UNITED STATES

Willoughby, Volume I, section 317, states:

In several treaties in settlement of boundary disputes areas previously claimed by the United States as its own have been surrendered to foreign powers. These, however, can scarcely be considered as instances of the alienation or portions of its own territory, for the fact that the treaties were assented to by the United States is in itself evidence that it conceded that the claim that the areas in question belonged to the United States was unfounded. There has been no instance in which territory, indisputably belonging to the United States, has been alienated to another power.

Malcolm, page 169, states:

No precedent can be pointed to in which the United States alienated territory indisputably its own to another country. The most that has been done has been to make certain adjustments of boundaries and to remove any cloud to the title of the United States to the region in question.

SD—71-3—VOL 15

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NO AUTHORITY CONFERRED UPON CONGRESS BY THE CONSTITU.

TION TO ALIENATE SOVEREIGNTY

Willoughby, Volume I, page 422, states: That Congress has not been expressly given the power to alienate territory which has come or been brought under American sovereignty is equally certain: Certain also is it that there has been no judicial pronouncement that Congress has this constitutional power, for there has been no exercise by Congress of such a power, and, therefore, no opportunity for its judicial examination.

Malcolm, page 169, states:

It is true that there is no express provision of the Constitution authorizing a transfer of territory in possession of the United States to another power. THAT THE PHILIPPINE ISLANDS HAVE NOT BEEN “INCORPORATED"

INTO THE UNITED STATES HAS NO BEARING UPON THE CONSTITUTIONAL QUESTION INVOLVED

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Willoughby, Volume I, page 422, states: The fact that the Philippine Islands have not been, by Congress, "incorporated" into the United States is without constitutional significance, for it is incontestible that, by the treaty with Spain, they were brought under the sovereignty of the United States.

This simply recognizes that the point at issue is whether Congress can alienate sovereignty over territory, and not whether it may elect to incorporate the inhabitants of such territory into our body politic. Nothing remains to be done or can be done by Congress-by way of "incorporation” or otherwise to more fully vest sovereignty over the Philippine archipelago in the United States than now exists. Construing the force and effect of the Treaty with Spain in this regard, our Supreme Court, speaking through Chief Justice Fuller in the Diamond Rings case (183 U. Š. 176, 180) stated:

By the third article of the treaty Spain ceded to the United States "the archipelago known as the Philippine Islands."

The Philippines thereby came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established.

The Philippines were not simply occupied but acquired, and having been granted and delivered to the United States by their former master, were no longer under the sovereignty of any foreign nation.

Spain granted the islands to the United States, and the grantee in accepting them took nothing less than the whole grant.

The conclusion of Doctor Willoughby, therefore, that this matter of "incorporation”-whatever it signifies-has no bearing upon and adds nothing to the Constitutional power of Congress to alienate sovereignty over the Philippines, is in accordance with law and unavoidable. PHILIPPINE INDEPENDENCE CAN NOT BE GRANTED UNDER THE

TREATY-MAKING POWER Willoughby, Volume I, page 424, says:

That, through the exercise of the treaty-making power, American territory may be alienated is abundantly clear, as will be later shown. Of course, however, this power could not be availed of if the United States should decide to grant full independence to the Philippine Islands or to any other area, for, in such case, not until such independence became a fact would there be any other sovereignty with which the United States could deal by means of a treaty.

A treaty, in its legal sense, is “A compact between two or more independent nations with a view to the public welfare." As a

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