Page:Harvard Law Review Volume 12.djvu/435

415 GOVERNMENT OF ISLAND TERRITORY. 415 Puerto Rico and the Philippines, should the pending treaty be ratified, and if, as I have taken for granted, it cedes to us the sovereignty over both. If not, it must be on the theory that the guaranties which they afford to personal liberty refer only to proceedings had in the exercise of the judicial power of the United States. To read them thus would seem to me to violate the ordinary rule that constitu- tional provisions for the safety of the individual and the security of property should be favorably and liberally construed.^ It would also lead to what I should say was the inadmissible assumption that the Amendments set up no checks against executive and legislative power.^ The fourth amendment, which guards the people against unreasonable arrests and general warrants, was successfully invoked in an early case before Chief Justice Marshall, arising in the Territory of Orleans. General Wilkinson, who was then in command of the army of the United States, and superin- tending the fortifications at New Orleans, arrested two men impli- cated in the Burr conspiracy, and sent them on to Washington for trial. There was a Territorial court at New Orleans before which they might have been prosecuted. Arrived at Washington, they applied for a writ of habeas corpus, and were discharged by order of the Supreme Court of the United States, mainly on the ground that they could only be prosecuted where their offence was com- mitted, and so that their arrest was unwarranted by the Constitu- tion.^ Judge Story, in commenting on the decision, remarks that as the arrests were made without any warrant from a civil magis- trate, they were in violation of the third amendment.* Our Constitution was made by a civilized and educated people. It provides guaranties of personal security which seem ill adapted to the conditions of society that prevail in many parts of our new possessions. To give the half-civilized Moros of the Philippines, or the ignorant and lawless brigands that infest Puerto Rico, or even the ordinary Filipino of Manila, the benefit of such immuni- ties from the sharp and sudden justice — or injustice — which they have been hitherto accustomed to expect, would, of course, be a serious obstacle to the maintenance there of an efficient government. 1 Boyd V. United States, 116 U. S. 616.
 * State V. Griswold, 67 Conn. 290, 309.
 * Ex parte Bollman, 4 Cranch, 75.
 * Story, Commentaries on the Constitution, § 1895, ^'Oi'^-