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13 January, 2012
The New Star Chamber and Other Essays
by Edgar Lee Masters
The barons of special privilege, all of whom are uniformly supporting the present revolutionary administration, threaten the American people with financial wreckage, unless the policy outlined by the Puerto Rican bill shall be approved at the polls. The administration is attempting to distract public attention to a purely economic question and from the colonial question. And if the people, led by this deception, return the present administration to power that act will be construed as a popular approval of the present colonialism of Puerto Rico and of the future colonialism of the Philippines. If then it becomes advisable to test in the Supreme Court what the people will be alleged to have approved at the polls that also will be done. And when the Supreme Court finds that despotic government over Puerto Rico is constitutional the people will in vain protest that they believed that there was no such issue as imperialism and that the currency question was paramount in 1900. The contest at that conjuncture of affairs will have been lost to the monarchial principle.
But before the people are distracted from the overshadowing issue to a mere economic problem, and before they give it into the hands of the revolutionists to say that this republican form of government has been changed by their vote, they should pause and consider the full import of the step to be taken.
The revolutionary press has already found the Puerto Rican bill to be constitutional, or at least not to be incursive of anything in the constitution. The statement of the question proceeds upon a theory of interpretation entirely novel. The constitution in its entirety is not over the islands until Congress extends it to them; Congress is expressly prohibited from passing certain laws, prohibited generally and universally. These limitations are expressed in the bill of rights and in some other portions of the constitution, and, to speak specifically, as Congress is negatived from passing any bill of attainder, ex post facto law or law prescribing any form of religion, or where Congress is otherwise limited in its power, the constitution may be said to be over the islands. In all other senses it is not over the islands. Hence, to proceed with the argument, as Congress may collect taxes, duties and imposts and as they must be "uniform throughout the United States," and as the term United States means the states and territories but not the islands, and as there is no express negation upon Congress from making duties unequal as between the United States and disconnected territory like Puerto Rico, the Puerto Rican bill is not unconstitutional. This is the statement that the revolutionists make of the case.
Properly, then, a brief survey of the materials which were cemented into the fabric of the republic under which we live may be indulged in to ascertain how much of truth there is in these contentions and whether it be not the fact that the republican party has perpetrated revolution and is now clamoring to obtain a vote which may be tortured into a plebiscitum of revolution.
The Puerto Rican law of April 12, 1900, apparently enacted at that late day so as to render its construction in the Supreme Court improbable before the election, is distinguished by the following provisions:
1. The Puerto Ricans are not citizens of the United States, nor are they promised citizenship at any time whatever.
2. Puerto Rico is not a territory of the United States preparing itself for statehood, but it is a colonial dependency and no statehood is promised or foreshadowed.
3. The Puerto Ricans have no representation in Congress.
4. The Puerto Ricans are taxed without such representation, which was formerly denounced as tyranny.
5. The Puerto Ricans, while declared to be citizens of Puerto Rico are under the effect, the provision and the spirit of the Puerto Rican law subjects of the United States.
6. The upper house of Puerto Rico is appointed by the president of the United States and is called the executive council, and this executive council has the power of passing upon the qualification of voters for the lower house.
7. No person can be a member of the lower house unless he possesses in his own right taxable property.
8. The governor is appointed by the president and has the power to veto all legislation.
9. There is a two-edged tariff of 15 per centum between the United States and Puerto Rico.
10. The supreme judges of Puerto Rico are appointed by the president and the local judges by the governor, an appointee of the president.
11. All the salaries of the president's appointees are to be paid by the Puerto Ricans.
That our fathers should have resisted with their life's blood the assertion, of wrongs like the foregoing as against them, and then that they should have formulated a constitution which by the force of its sovereignty or its implied powers or the absence in it of proper limitations permits the perpetration of the same wrongs as against other peoples is precisely what the revolutionists ask us to believe. Great Britain pursued the same policy toward the colonies of America as the present administration is pursuing toward Puerto Rico under the Puerto Rican law of April 12, 1900.
On May 17, 1763, the British parliament passed the "molasses act," which levied a high tax against the importation in the colonies of sugars, syrups and molasses.
On April 5, 1764, the British parliament passed the "sugar act," which levied heavy duties, not only upon sugar, but upon everything else that could be worn, eaten or used by the Americans. And the money so raised was to be paid to the crown and by the crown used to pay colonial governors and judges and twenty regiments of troops to be kept standing for their support and to overawe discontent by the arm of the military.
On March 22, 1765, the British parliament passed the stamp act, by which a heavy tax was paid upon every paper filed in court, every copy or probate of a will, every deed, bond, note, lease, conveyance or contract; every pamphlet, newspaper, advertisement, almanac, policy of insurance and other things far too numerous to mention. Certain violations of this act were punishable by death.
The American people were driven to frenzy by these despotic measures. The king answered their complaints by the "quartering act" of April, 1765, by which large bodies of troops were to be sent to America and quartered in the houses of the Americans, in order to render "his majesty's" dominions more secure and to suppress anarchy and rebellion and effectually to enforce the principle that the "king hath and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America subjects of the crown of Great Britain and in all cases whatsoever."
The course of the British government tending uniformly toward more outrageous oppression, delegates from Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, Maryland and South Carolina met in New York on October 7, 1765, and on the 19th of that month these delegates, calling themselves the stamp congress, adopted resolutions against the British government. Among other things they resolved:
"That it is essential to the freedom of the people and the undoubted right of Englishmen that no taxes be imposed on them but with their own consent, given personally or by their representatives. That the people of these colonies are not and from their local circumstances cannot be represented in the house of commons in Great Britain. That the only representatives of the people of these colonies are persons chosen therein by themselves and that no taxes ever have been or can be constitutionally imposed on them but by their respective legislatures."
Patrick Henry in the house of burgesses of Virginia on May 30, 1765, offered a resolution embodying the same ideas, which was adopted.
On March 12, 1773, the Virginia house of burgesses thought proper to adopt some means of obtaining ready intelligence of new acts of despotism on the part of Great Britain, which were following each other with startling rapidity. Therefore Richard Henry Lee, Benjamin Harrison, Thomas Jefferson, all of whom afterward signed the declaration of independence with others, were appointed a committee of correspondence.
On June 17, 1774, the house of Massachusetts, under the leadership of Samuel Adams, resolved that committees from all the colonies should be called to consider the acts of parliament. The house appointed Samuel Adams, John Adams and Robert T. Paine, all of whom signed the declaration of independence, with others, as a committee to call this congress. They issued a call for delegates to meet in Philadelphia on September 5, 1774. They did meet, and the Carpenters' Association of Philadelphia, corresponding to a union of this day, tendered their hall to the delegates. Here in this humble chamber the presence of Omniscient Justice was invoked to judge of the rectitude of their intentions, and in the most noble, serious and candid mood that men ever assumed for the consideration of the gravest questions of life these delegates proceeded to pass judgment upon the acts of the crown. Who were present? George Washington, Patrick Henry, Richard Henry Lee, Samuel Adams, John Adams, John Jay, John Rutledge, Peyton Randolph, Roger Sherman and others. Some of these afterward signed the declaration of independence, the articles of confederation and the constitution.
On October 14, 1774, the first continental congress resolved that the American people "are entitled to life, liberty and property," and "they have never ceded to any foreign power whatever a right to dispose of either without their consent." That the crown had no right to "tax the Americans externally or internally" for raising a "revenue in America without their consent;" that "keeping a standing army in these colonies in times of peace without the consent of the legislature of that colony is against law." That legislative power invested in a "council appointed during pleasure by the crown is unconstitutional, dangerous and destructive to the freedom of American legislation."
On October 20, 1774, the American colonies entered into an association to obtain redress and to refrain from importations, and therefore the payment of the taxes imposed. And that association was provided to be maintained until the obnoxious acts of parliament were repealed.
On June 23, 1775, the continental congress appointed John Rutledge, William Livingston, Benjamin Franklin, John Jay and Thomas Johnson as a committee to draw up a "declaration of the causes of taking up arms against Great Britain," to be published "by General Washington upon his arrival at the camp before Boston." Jefferson and Dickinson were added to the committee. Of these William Livingston and Franklin afterward signed the constitution; Franklin signed both the declaration of independence and the constitution and Thomas Jefferson signed the declaration of independence. In this declaration of causes it was declared that the colonies had been taxed without representation; that nothing was so dreadful as a foreign yoke and voluntary slavery; that they would not "tamely surrender that freedom which we received from our gallant ancestors," being "with one mind resolved to die freemen rather than to live slaves."
On July 4, 1776, the unanimous declaration of the thirteen United States of America was published, commonly called the declaration oŁ independence. And this document, among other things, announced the following causes which had impelled the colonies to separate from Great Britain: "For imposing taxes upon us without our consent," "for quartering large bodies of armed troops among us," "for making judges dependent upon his (the king's) will alone for the tenure of their offices and the amount and payment of their salaries." And by way of preamble they declared, not that the Americans were born equal with the English. As Abraham Lincoln said, the declaration was not merely revolutionary. It also laid down basic truths applicable to all men and all times in all places -- that "all men are created equal and endowed with the inalienable rights of life, liberty and the pursuit of happiness," just as the first continental congress resolved and in almost the same language on October 14, 1774, when Washington, Jay, John Adams, Samuel Adams and others of the most sober and temperate sense were present and gave their voice to those principles.
On November 15, 1777, the congress formulated the articles of confederation. It was signed by the delegates of the several states and congress met under it on March 2, 178I. Among other things the articles provided that "the people of each state shall have free egress and regress to and from any other state and shall enjoy therein all the privileges of trade and commerce subject to the same duties, impositions and restrictions as the inhabitants thereof respectively."
On December 20, 1783, the assembly of Virginia ceded to the United States for the benefit of the states the territory northwest of the Ohio river "upon condition that it be laid out and formed into states having the rights of sovereignty, freedom and independence of the other states." And on March 1, 1784, Thomas Jefferson and James Monroe, with others, executed the deed of Virginia, conveying that territory to the United States.
On July 13, 1787, the congress, under the articles of confederation, passed an ordinance for the government of the northwestern territory, so ceded by Virginia. It was declared therein to be the purpose of that ordinance to "extend the fundamental principles of civil and religious liberty which form the basis whereon these republics, their laws and constitutions are erected," and "to fix and establish those principles as the basis of all laws, constitutions and governments which forever hereafter shall be formed in said territory." The ordinance provided for the liberties expressed afterward in the bill of rights of the constitution. It provided that as to Indians "their lands and property shall never be taken from them without their consent;" that taxes should be uniform and should be laid by the "legislatures of the district or districts or new states as in the original states," and that the constitution and government of the states to be formed out of said territory should be republican and that slavery should never exist in said territory.
The first congress which sat under the constitution passed an act in 1789 for the enforcement of the ordinance of 1787. And sixteen of the thirty-nine framers of the constitution were members of this congress and voted for the act. Robert Sherman, Robert Morris and George Clymer, who signed the declaration of independence, were included in those sixteen members mentioned. Roger Sherman and George Washington, as before shown, participated in the association of October 20, 1774, and George Washington as president of the United States approved this bill as to the northwestern territory enforcing the ordinance of 1787.
On September 17, 1787, the constitution of the United States was signed by the delegates in congress, and this constitution reached back to the principles enunciated by the feeble legislatures of the Massachusetts and Virginia colonies and welded them indissolubly into the organic law of a "more perfect union." Representatives and direct taxes were apportioned among the several states according to their respective numbers, which numbers should be determined, in a manner since amended, excluding, however, "Indians not taxed." Duties, imports and excises were provided to be uniform throughout the states and to be levied to pay debts and provide for the common defense and welfare. No preference was to be given over the ports of any state; no duties should be laid on the exports of any state; the citizens of each state had the rights, privileges and immunities of the citizens in the several states and were declared to be entitled to the equal protection of the laws.
The constitution was adopted to secure the blessings of that liberty which had been acquired in the revolutionary war. Of course the constitution does not expressly say that congress shall not tax people outside of the states living in a disconnected territory without giving them representation. It does not say that the people of the islands of the sea shall be forever free from the dominion of congress or the president. How could the fathers anticipate such a contingency as that? Could they foresee that the constitution would be held by this generation not to forbid that form of oppression as to islanders of the sea which the arbitrary power of parliament had imposed upon the American colonists? They did all that men could have done, by devotion, by money, by all forms of sacrifice and by their lives, to embody into the organic law of the land the great principle that taxation and representation must go hand in hand and that taxation without representation is tyranny.
Can therefore a republic so founded be constitutionally capable of tyranny? The men had gone to war because they were taxed without representation; because no tax could be imposed upon the colonists without their consent; because they were entitled to life, liberty and property, and no foreign power had the right to dispose of either without their consent. These principles characterize every document and every organic instrument executed by them and were reiterated by them on all official occasions so as never to leave any doubt that they regarded these things as axiomatic and cardinal truths, absolutely impregnable from assault or qualification.
The declaration and resolves of the first continental congress of October 14, 1774, contained the same principles as the declaration of independence expressed in practically the same language. And yet among those who were in that congress and who also signed the constitution of the United States we find the names of George Washington, John Rutledge and Roger Sherman.
Those who signed both the declaration of independence and the articles of confederation were:
Josiah Bartlett, Thomas McKean,
Samuel Adams, John Penn,
Elbridge Gerry, Francis Lewis,
Roger Sherman, John Witherspoon,
Samuel Huntington, Richard Henry Lee,
Oliver Wolcott, Francis Lightfoot Lee.
Those who signed the articles of confederation and the constitution were:
Roger Sherman, Gouverneur Morris,
Robert Morris, Daniel Carroll.
Those who signed the declaration of independence and the constitution were:
Roger Sherman, Robert Morris,
Benjamin Franklin, George Clymer,
James Wilson, George Reed.
In 1803, when Louisiana was acquired, and in 1819, when Florida was acquired, no one dreamed of perpetuating a colonial government upon either of them. Their inhabitants were made citizens. Their territory was prepared for the creation of sovereign states, as the northwestern territory had been prepared by the ordinance of 1787 and the act of congress of 1789. When the Mexican territory was acquired in 1848 the treaty provided that the Mexicans were free to retain the title and rights of Mexican citizens or to acquire those of citizens of the United States, and the executive policy of President Polk was in strict harmony with the fundamental principles which had been endowed with immortal life and vigor by Washington, Franklin, Jefferson, Jay, Sherman and the other fathers of American liberty.
When the Mexican treaty was ratified James Buchanan, secretary of state under Polk, announced the following policy as to California, which had been ceded by that treaty:
"This government de facto will, of course, exercise no power inconsistent with the provisions of the constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles the growth, produce or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the productions of California.
"Nor can new duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States."
This precedent was followed when Alaska was acquired. In 1820 Chief Justice Marshall, who had been in the revolutionary war and who had a concrete knowledge that that war was waged against taxation without representation, decided that duties, imposts and excises must be uniform as between the states and the District of Columbia. And he wrote: "The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary that uniformity in the imposition of import duties and excises should be observed in the one than in the other."
The defenders of the present revolutionary administration argue that this decision of Marshall's is not binding because Marshall was called upon to pass on the status of the District of Columbia and not upon that of Missouri or a territory. The revolutionists further say that the Dred Scott case, which held that there is "no power given by the constitution to the federal government to establish colonies to be governed at its pleasure," was reversed by the battle of Gettysburg. But Lincoln in his oration at that battle field declared in effect that it was the declaration of independence which had there received a new baptism, which declaration of independence must be repealed in order to carry on colonialism.
But in view of the traditions of the revolutionary war, which was a concrete struggle on this self-same question of taxation, it is too obvious for discussion and admits of no denial that the McKinley administration has perpetuated revolution in the form of this government. What is there in the constitution to have prevented Puerto Rico from being treated as a territory advancing to statehood, or even as to a state presently to be formed? What is there in the constitution to have prevented due observance of that principle that taxation and representation go hand in hand, and that life, liberty and the pursuit of happiness are inalienable rights?
These principles were grappled into the adamant of all American charters, including the constitution, with hooks of steel, and were welded there by the fierce heat of an eight-year struggle never to be dislodged except by a blast of revolution. But as the English were determined that the American colonists should not participate in the political power of Great Britain, but should be used for the purpose of commercial profit, so do the revolutionists now proceed upon that theory as to the Puerto Ricans.
It was a significant thing that the English government annexed the Boer republics on July 4, 1900, the one hundred and twenty-fourth anniversary of our declaration that taxation without representation is tyranny, and a few weeks after the McKinley administration had repudiated that doctrine by the Puerto Rican bill. The English celebrated the confession of our error on the anniversary of the day when we committed it. And so the administration was estopped to decry the strangulation of the Boer republics when it had assassinated in our own midst the republican principle which caused the revolutionary war and armed the patriots to secure liberty and independence. The English had good cause for rejoicing on the anniversary of the declaration of independence in 1900.
What is the Puerto Rican bill, therefore, but an act of revolution having the full effect of changing the form of government and extinguishing the soul of liberty in the constitution? The American colonists had no representation in parliament, nor have the Puerto Ricans in congress, with or without the privilege of debate. The American colonists were subjects of the crown; the Puerto Ricans have been made subjects of the United States. The councils of the American colonists were appointed by the crown; the executive council of Puerto Rico is appointed by the president. The governors of the colonists were appointed by the crown and had the power of veto; the governor of Puerto Rico is appointed by the president and has the power of veto. The crown taxed the colonists without representation; the United States by the Puerto Rican bill tax the Puerto Ricans without representation. The crown's appointees in the colonies were paid by the Americans; the president's appointees in Puerto Rico are paid by the Puerto Ricans.
How are these revolutionary policies justified? On the ground that only part of the constitution is over Puerto Rico, and that as to the part that is not over Puerto Rico the congress has despotic power.
The Puerto Rican bill is declared by the revolutionists to be the forerunner of a like bill as to the Philippines. The Filipinos know this. They also know and believe that President McKinley was right when he said that "forcible annexation is criminal aggression," and, believing these words, they have taken encouragement from them and are resisting criminal aggression. But suppose the supreme court decides that the constitution is over the islands where the congress is expressly restrained and that it is not otherwise over the islands; that in consequence the Puerto Rican act is constitutional, not because it is warranted by words in the constitution, but because it is not expressly prohibited by words in the constitution -- what will be the status of the republic?
Will the people have the courage to say that such a decision cannot prescribe a rule of political action which shall be binding on future presidents and congresses? Or will they tamely submit as upon a question irrevocably and firmly settled? To this point does the Puerto Rican bill conduct a republic which grew out of resistance to taxation without representation.