The responsibility of determining the problems which arose, 'devolved upon the Secretary of War, and practical necessities required a determination in advance of Congressional action or judicial decision. Many problems raised new or long forgotten questions as to the character of the Federal Government, the nature and extent of the Nation's sovereignty, the division of its powers, and the extent of its authority at home and abroad. It was necessary to ascertain and observe precedents in dealing with unprecedented situations, and duly regard a long line of judicial decisions touching but not meeting the issue involved. Different civilizations, different systems of law and procedure, and different modes of thought brought into contact evolved a great crowd of difficult questions. New facts and changed conditions called for the interpretation and application of our own rules of policy and the establishment of further rules. Different views as to the scope of authority under the distribution of powers required reconciliation. The application of the law of military occupation to rights and practices existing under the laws of Spain, and the process of overturning inveterate wrongs brought about frequent appeals to the highest authority, which, being made in the name of justice, compelled consideration. At the same time the work of construction of civil government was carried to successful completion. A delicate and difficult task was that of transferring the public powers from the military to the civil organization, to bridge the chasm between the military camps and the forums of peace. In Cuba the change was effected by means of a constitutional convention which adopted a form of government and a constitution therefor; officials were elected thereunder at elections held under the auspices of the Military Government. The necessities of the public service being provided for, the military authorities withdrew from place and power, the civilian officials entered upon the discharge of their duties, and the Republic of Cuba took its place in the family of nations.

At this stage in the affairs of Cuba it became necessary for Secretary Root to solve the far-reaching problem of fixing the general principles for the permanent regulation of the relations between Cuba and the United States, so as to preclude the possibility of complications which might interfere with the amity essential to the welfare of both countries. Cuba is so situated, geographically, that it must be either the steadfast ally or the natural enemy of the United States. Internationally, the United States is bound to see that the Government of Cuba is conducted with due regard to the standards erected by modern civilization and the obligations devolving upon a member of the family of nations. Nationally, the United States is bound to promote its own industrial welfare, military defense, and domestic tranquillity, and especially to prevent the recurrence of yellow fever, that in the past periodically ravaged our shores. The measures adopted necessarily must be projected into the period when Cuba would be an independent State; mutuality was essential to their

continuance, if not to their adoption; the inhabitants of the island were eager to exercise the powers of independent sovereignty; and, therefore, the task presented was that of permitting the exercise of the powers of the on-coming Government of Cuba, in respect of these matters, and at the same time insure that said powers would not be employed in an unwarranted or ill-advised manner, so as to embarrass or delay the accomplishment of the laudable purposes of the United States. The plan adopted by Secretary Root was to make the general relations to be sustained by the Republic of Cuba to the United States part and parcel of the basic structure of the Republic of Cuba; the declaration of those relations to be a condition precedent to the establishment of independent government in the island, and the surrender thereto of the powers and authority acquired by the United States by the war with Spain and the Treaty of Paris. The order of the Military Government dated July 25, 1900, authorizing the election and assemblage of the delegates to the Constitutional Convention, declared the purpose of the convention to be "to frame and adopt a constitution for the people of Cuba, and, as a part thereof, to provide for and agree with the Government of the United States upon the relations to exist between that Government and the Government of Cuba." When the Convention assembled the Military Governor, pursuant to instruction, admonished them as follows:

It will be your duty, first, to frame and adopt a constitution for Cuba, and when that has been done, to formulate what, in your opinion, ought to be the relations between Cuba and the United States. When you have formulated the relations which, in your opinion, ought to exist between Cuba and the United States, the Government of the United States will, doubtless, take such action on its part as shall lead to a final and authoritative agreement between the people of the two countries to the promotion of their common interests.

The wisdom of this course was soon manifest. The Cuban convention formulated a constitution, but omitted action with reference to the relations to exist between Cuba and the United States; whereupon Congress took the initiative and adopted what is known as the "Platt Amendment," specifically setting forth the general characteristics of such relations. The provisions of that amendment were adopted by the Constitutional Convention, and thereby became as much a part of the governmental organization and polity of the Cuban State as is the Constitution of Cuba.

The construction and maintenance of popular government in the Philippines presented no problem more serious than how to accomplish the transition from military to civil government, for the change was to be made "under fire" and in the presence of a formidable insurrection. The task set before Secretary Root was to devise a plan which would enable civil government to keep abreast with the success of our arms and at the same time continue available at all times the authority and

organization of the Military Government to meet possible emergencies. The task was nearly as difficult as the impossible proposition of causing two bodies to occupy the same space at the same time. The plan adopted and successfully carried out was that set forth in the instructions to the Philippine Commission, dated April 7, 1900. These instructions were prepared by Secretary Root. They constitute the Magna Charta of the Philippines, and will contest with the Emancipation Proclamation for the rank of first of American State documents.

It is remarkable and gratifying that the work of developing civil government in Porto Rico, Cuba, and the Philippines was accomplished by exercising the military powers of the United States. The army, organized, trained, and equipped for the work of destruction, was utilized by the President and the Secretary of War as an instrument of construction. That which was fashioned to overthrow and expel one government was devoted to the purpose of erecting another. The war powers of this nation, although outside of the limitations of our laws and Constitution, knowing nothing of their restrictions, bound only by the discretion of the Commander-in-Chief and the practices of civilized warfare, were effectively used to construct, out of and for a people ignorant of our form of government and the principles on which it is founded, a government incorporating and inculcating the principles and theories which have made the United States foremost among the nations of the earth.

X

LEGISLATIVE AND ADMINISTRATIVE

PROBLEMS

[The article by Mr. Samuel W. McCall, Member of Congress from Massachusetts, on the Fifty-ninth Congress, gives an excellent account of the legislative problems before the nation at that time. The matters upon which action was then taken do not yield in importance even to the great structural activities at the beginning of our national life. Then it was the framework of the state that was to be fitly planned and carefully erected, now it is the conditions of social and economic life themselves that are to be given legislative form. The first session of the Fifty-ninth Congress thus becomes a turning point in our national development.]

1 THE FIFTY-NINTH CONGRESS 1

BY SAMUEL W. MCCALL

It is easy to overestimate the historical importance of our contemporary politics, although it is far from being the worst fault that we should treat them too seriously. Questions that are discussed with a vast deal — I will not say of passion, for there is little genuine passion in our current politics - but with a vast deal of noise, are somehow quickly displaced by other questions no more important nor more closely related to the real life of the nation, and permanently disappear. We have witnessed in the last decade the sudden rise of statesmen, almost purely the creatures of executive favor, who have in a moment blazed from the horizon to the zenith, whose greatness has been established by executive proclamations and solemnly ratified by university degrees conferred with academic eloquence, and we are already asking ourselves what they really said or did that history will trouble itself to recall. Its verdicts we may be sure will not be greatly influenced by the extravagance of contemporary censure or contemporary praise. Whether or not a President really said not long ago, as reported, "In Mr. I have a great Secretary

of State, in Mr. a great Attorney-General" - and so on throughout nearly the whole Cabinet list and then, "in Mr. I have the greatest war minister that has appeared on either side of the ocean in our time," there are plenty of contemporary utterances to prove amply that now, not in the troubled times that try men's souls, but in the fat era 1 The Atlantic Monthly, Nov. 1906. Reprinted with permission. Copyright.

of a gross material prosperity, the real golden age of statesmen has at last dawned.

All this leads to caution in expressing emphatic opinions concerning contemporary politics, although the extreme of censure is more often met with than that of praise in dealing with Congress, except when it suits the whim of the moment to treat that department of the government as the mere organ of the executive. It is somewhat the fashion to rank the present Congress, in the importance of its work, with the congresses immediately following the Civil War. I think this opinion may safely be treated as an exaggerated one; and that it has done nothing that can equal in constitutional importance the first act for the government of Porto Rico, or, in point of industrial importance, the Wilson or the Dingley Tariff Act, or that can approach in the logical response to a critical condition of the country the repeal of the silver-purchasing clause of the Sherman Act. And if one ventured farther back he would find other legislation of equal importance this side of the period of Reconstruction.

But the record of the first session of the Fifty-ninth Congress is very notable both for what was done and what was not done, although the balance is strongly in favor of actual achievement. It failed to pass the bill granting free trade to the Philippine Islands, and the tariff escaped that judicious revision which it has so often been proclaimed to be the peculiar prerogative of its friends to bestow; but it passed the bills for untaxed industrial alcohol, for meat inspection, for pure food, for the admission of the territories, and for a form of government railroad ratemaking. It also displayed a remarkable capacity for spending money, and granted a total of appropriations of almost fantastic proportions.

The membership of the two houses in point of character and ability will compare not unfavorably with the best congresses that have ever been sent to Washington. Although they lacked the very few overshadowing figures associated with the congresses of past times, they contained men of rare talent, while their average membership was of a character scarcely to encourage those who delight in disparaging their own time in comparison with the past, or with the future their imaginations paint.

It would not be difficult to name a score of senators who in debate or in some other important feature of the work of a senator will be likely to be remembered at least by the next generation. "There does not seem to be a quorum in the divine presence," Mr. Reed once sarcastically observed, as he entered the Senate Chamber when a senator was delivering an elaborate and carefully prepared speech to a small number of sleepy colleagues. But Mr. Reed, who signalized his speakership by his daring way of counting a quorum, and who always went to the heart of the subject himself, rarely making a speech in the House over fifteen minutes long, did not regard with favor the average set speech. The set