Page:Harvard Law Review Volume 12.djvu/432

412 4^2 HARVARD LAW REVIEW. tinue; duties on imports could be lawfully collected by his agents; and whatever courts of a municipal character he may have set up would continue in the discharge of their functions, with the power of life and death/ And here such certainty as can be derived from judicial prece- dent or settled legislative construction and popular acquiescence comes to an end. Whether Puerto Rico can be held permanently and avowedly as a colonial dependence; whether the PhiHppines could be held per- manently, whether with or without a view of ultimately dividing them into States to be admitted as such into the Union; whether they could be given over to their inhabitants; whether all trials for crimes committed there must be by jury; whether Cuba, which we have taken in the capacity of a friend or protector, for the bene- fit of its people, through a war, at the outset of which the pubhc faith was pledged not to acquire it for ourselves by right of con- quest, could, should we come at last to despair of their capacity for self-government, be kept as part of the territory of the United States; whether in this republic there can be settled inhabitants of civihzed or semi-civilized races owing allegiance to the United States alone, but who can be regarded as subjects and not citizens,^ — these are questions unsettled so far as we can consult the oracles of the past, and in view of which the Senate must act, in deahng with the great issue now presented to it as the executive council with which the States have surrounded the President to protect their interests against an undue exercise of executive power. The last in the list, however, and not the least in importance, while never adjudicated upon by the Supreme Court of the United States, received an answer from one of its most illustrious Judges, by way of an ohiter dictum^ in the first great case in which the construction of the Constitution was involved. This was Chis- holm V. Georgia, in which the matter in issue was as to how far the ordinary immunity from suit belonging to a sovereign had been stripped from the States by the grant of judicial power to the United States. Mr. Justice Wilson in his opinion, when discuss- ing what sovereignty is, had occasion to consider what is subject to it and used these words: ^ Jeckert'. Montgomery, 13 Howard, 498, 515; The Grapeshot, 9 Wallace, 129, 133- 10 Sawyer, 353; 21 Fed, Rep. 905.
 * See on this point Boyd v. Thayer, 143 U. S. 135, 162, 169; In re Look Ting Sing,