THE RIGHT OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, INSTITUTED BY THE PRESIDENT OF THE UNITED STATES, TO REGULATE COMMERCIAL INTERCOURSE WITH THE ARCHIPELAGO; AND, AS AN INCIDENT TO SUCH REGULATION, TO IMPOSE IMPORT AND EXPORT DUTIES.

[Submitted November 18, 1901. Case No. 1244, Division of Insular Affairs, War Department. Printed as War Department publication by order of the Secretary of War.]

SYNOPSIS.

1. The right of the Government of the Philippine Islands, instituted by the President of the United States, to regulate commercial intercourse with that archipelago, is justified as an exercise of the war powers of the nation in territory affected by an insurrection.

2. The right to exercise the war powers of the nation does not turn upon the question as to whether or not the territory is foreign, but whether or not the territory is hostile.

3. The President is authorized to determine the question as to whether or not existing conditions render territory hostile, and his determination thereof is binding upon the courts.

4. The customs duties levied on imports and exports at the ports of said archipeiago are to be consitlered and justified as—

(a) Conditions imposed upon the privilege of trading with hostile territory. (Hamilton v. Dillin, 21 Wall., 73.)

(b) Regulations of trade with hostile territory. (Ibid.)

(c) Military contributions in territory wherein the United States is conducting military operations against an armed insurrection.

(d) Revenue measures adopted by the Government of territory subject to military occupation.

5. The war powers of a nation are not subject to the limitations and control of its domestic laws and Constitution.

6. The discretion of the President in the exercise in hostile territory of the war powers of the United States for the enforcement of measures intended to suppress an armed insurrection against the authority of the United States, is not subject to the control of the judicial branch of this Government.

7. The legislative branch of the Government of the United States may participate in the exercise of said war powers.

8. By the legislation known as the "Spooner amendment" Congress confirmed the authority of the Philippine government to adopt and enforce appropriate measures for the administration of the affairs of civil government in territory subject to its jurisdiction.

9. The "Insular cases (182 U. S.) determine that in legislating for Porto Rico under the conditions of peace Congress is not bound by the limitations imposed by the Constitution on legislation for the States of the Union. A like liberty respecting insular matters is possessed by the governing authority in the Philippines which Congress has recognized as possessing legislative authority.

10. The Constitution (Art. I, sec. 10, par. 2) permits export taxes to be levied by the concurrent action of a State and Congress. In the Philippines the national authority of the United States may exercise all the powers of both Federal and State Governments.

11. Under the distribution of powers among the several branches of the Government of the United States, the authority to fix and determine the relations sustained to the Federal Government, by territory and inhabitants not included in the original thirteen States, is vested in the political branch until such territory is made a State of the Union. The late treaty with Spain recognized and declared this authority to be so vested.

WAR DEPARTMENT, OFFICE OF THE SECRETARY,

DIVISION OF INSULAR AFFAIRS, Washington, D. C., November 18, 1901. SIR: I have the honor to acknowledge the receipt of your request to prepare and submit a report on the question of the right of the Government of the Philippine Islands, instituted by the President of the United States, to regulate commercial intercourse with that archipelago, and, as an incident to such regulation, to impose import and export duties.

In compliance with your request, I have the honor to submit the following:

I. THE AUTHORITY OF THE UNITED STATES TO EXERCISE BELLIGERENT RIGHTS IN DEALING WITH THE INSURRECTION IN THE PHILIPPINE

ARCHIPELAGO.

The customs duties exacted by the government of the Philippines are enforced by an exercise of belligerent right. The authority for such exercise arises from the conditions existing in the islands. There prevails in said archipelago an insurrection against the sovereignty of the United States and authority of the existing government, of such magnitude and extent as to require set military operations by the military forces of the United States for its suppression. While engaged in suppressing such insurrection, the government may properly exercise the rights of a belligerent. It is true that Congress has not formally declared war against the forces of the insurrection in the Philippines. A war originating in insurrection against lawful authority is never formally declared. An insurrection becomes a war by reason of its attendant circumstances, the number, power, and operations of the persons who originate it or engage therein. (The Prize Cases, 2 Black., 635.) War is a condition, not an act of the legislature.

In sustaining the right of the Federal authorities to blockade the ports of the late rebellious States, the Supreme Court of the United States say:

War has been well defined to be "that state in which a nation prosecutes its rights by force." The parties belligerent in a public war are independent nations. But it

is not necessary to constitute war that both parties should be acknowledged as independent nations or sovereign states. A war may exist where one of the belligerents claims sovereign rights as against the other. (The Prize Cases, 2 Black., 666.)

A sovereignty engaged in suppressing an insurrection against its authority may exercise the rights of a belligerent and deal with the insurrectionists as entitled to the protection of the laws of war without authorizing neutrals to deal with them as an independent power. In order that this discussion may not be unduly extended, this point is not elaborated, but is treated as closed by the quotation from the Instructions for the Government of Armies of the United States in the Field, as follows (sec. 10):

1. Insurrection is the rising of people in arms against their government or a portion of it, or against one or more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view.

2. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government.

3. The term rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of their

own.

4. When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them as an independent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power.

5. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people or of the government which they may have erected as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.

6. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. (See also Hickman v. Jones, 9 Wall., 197, 200; Williams. Bruffy, 96 U. S., 176, 191.)

For the purposes of this investigation it is unnecessary to ascertain the date of the inception of the conspiracy which culminated in the insurrection. The date of the first overt act of the war is not so unimportant. The first hostile engagement between the insurgents and the

forces of the United States consisted of an assault by the insurgents on an outpost located near the town of Santol, a suburb of Manila. The official report of this attack, made by Lieutenant Whedon, the officer in command at said outpost, is as follows (Report of MajorGeneral Commanding Army, 1899, part 2, p. 464):

WATERWORKS DEPOSITO, February 10, 1899.

ADJUTANT, First Nebraska, United States Volunteer Infantry.

SIR: I have the honor to make the following report of what occurred at Nebraska outpost No. 2 on the evening of February 4, 1899:

On Saturday evening, February 4, 1899, at 7 o'clock, I took charge of outpost No. 2, as ordered. From this outpost, about 100 yards down the road which passes it, is the town of Santol. Here we had a Cossock post of eight men stationed at the junction of three roads, one leading from outpost No. 2, another leading to blockhouse No. 7, the third to blockhouse No. 6. At 7.30 I instructed all the men of this post in their orders, a copy of which is hereto attached. They were to allow no armed insurgents to enter the town or the vicinity. They were to halt all armed persons who attempted to advance from the direction of the insurgents' lines, which lay between blockhouses 6 and 7 and the San Juan bridge, and order them back to their lines. If they refused to go, to arrest them if possible, or if this was impossible, to fire upon them. I also ordered them to patrol each of the roads leading to blockhouses 6 and 7 for 100 yards every half hour. Shortly before 8 o'clock a patrol of three men advanced from Santol toward blockhouse 7. After proceeding about 100 yards they halted at the side of the road and waited to see if there were any insurgents in the vicinity. Private William Grayson, Company D, was a short distance in advance of the other two. After waiting about five minutes, Private Grayson saw four armed men suddenly appear five yards in advance of him. He immediately called "Halt!” as did also Private Miller, Company D, who was in rear of him and saw the men at the same time. At this command the four men cocked their pieces, whereupon Private Grayson called "Halt!" again, and fired at them. Our three men then retreated to the town of Santol, where I met them, being at the town when the shot was fired.

Immediately after the shot was fired we could hear the insurgents coming down the road from blockhouse 7. I sent a man back to the outpost to signal the Nebraska camp that the insurgents were coming from the blockhouse. I remained with the man in Santol and in about three minutes from the time our man fired the shot several armed men emerged from the trees in our front across the road and the houses on our right and fired toward us where we were kneeling in the opposite side of the road. We returned their fire with a volley and then fell back along the road to the pipe line which lies near outpost No. 2, the enemy keeping up a rapid fire along the road for about five minutes. We fired no more after leaving Santol until later in the evening. About ten minutes after the skirmish at Santol the insurgents opened up a general fire on the Nebraska camp and outposts, and also on Colorado's outpost on our left. On the morning of February 4 the insurgents ordered our men to move out of town (Santol), and upon their refusal to do so the former said that they would bring a body of men and drive them back when night came.

Very respectfully, your obedient servant,

BURT D. WHEDON,

Second Lieutenant Company C, First Nebraska United States Volunteer Infantry. On February 6, 1899, two days after this engagement occurred, and with full knowledge thereof, the Senate advised the President to ratify the treaty. On the same day (February 6) another engagement between

the insurgents and the troops of the United States occurred. The official report on that engagement is as follows:

FIRST NEBRASKA UNITED STATES VOLUNTEER INFANTRY,
OFFICE OF THE COMMANDING OFFICER,

ADJUTANT-GENERAL,

Waterworks, Deposito, February 7, 1899.

Second Brigade, Second Division, Eighth Army Corps.

SIR: I have the honor to report that early Monday morning, February 6, 1899, I sent the telegram appended, marked “A,” to brigade and division headquarters. Having had no reply, I again urged the importance of the movement. I was then instructed by General MacArthur, who was then on the extreme left of the line, to forward my communications to the department commander direct, a copy of which is inclosed and marked "B." In reply to this I received a note from Colonel Barry, stating that he would be out with two battalions, and that we would then proceed to the waterworks.

As nothing seems to be done, and it was impossible to get into communication with higher authority, and the insurgents were intrenching and massing in our front, I ordered the troops prepared for an immediate advance, hoping to have every preparation made before the enemy could get into position. A copy of this order is inclosed, marked “C.” ́ At about 1 o'clock I received a message from Colonel Barry, saying that he would not be out, and about the same time the enemy's sharpshooters began firing upon us. Here I ordered the Utah battery to open fire on intrenched position north of road and about three-fourths of a mile from the Deposito. The action then began to be general all along our entire front, and the infantry fire was terrific on our left near the Mariquina-Manila road. We charged on them and took hill after hill all the way to pumping station. About three-fourths of a mile from the Deposito a horse with a broken leg was found, which proved to have been the one ridden by Dr. H. A. Young, of the Utah Battery. His body was found horribly mutilated a mile farther on the road.

On our left, about 2 miles from the Deposito, Company L, Captain Taylor, made a very gallant charge on a stone intrenchment and could not take the position at first. I thought the Twenty-third Infantry was up, but as Company L seemed to be falling back I ordered over three companies, B, G, and H, of this regiment to reenforce the line. They all charged a quarry, our troops losing 1 man killed and 4 wounded. The enemy broke, and as they retreated out of the cover into the open they were severely handled, 17 being killed. After that they were shelled and flanked out of every position and kept on the run. The line of their retreat was the direction of Mariquina. At 4.45 we arrived at the pumping station and found the machinery intact except the cylinder and valves, which had been hidden under the coal.

Companies D and I of the First Colorado, under Major Grove, did valuable service on the right during the advance.

The Tennessee battalion, under Major Cheatham, formed our right flank and was slightly refused.

As usual the Utah Battery (A) did most excellent service.

The battalion of the Twenty-third Infantry on our left followed the general direction of the Mariquina-Manila road and protected our left flank. I inclose copy of the order I sent Major Goodale, who received it near the powder magazine.

We threw outposts to the front, left, and right, and put one company at the pumping station.

Very respectfully,

JOHN M. STOTSENBURG, Colonel, First Nebraska United States Volunteer Infantry.

It was soon evident that the insurrection was general throughout the greater portion of the archipelago. On March 2, 1899, in view