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Although by the decision in the Slaughter House and subsequent cases in the Supreme Court, the command laid upon the States to respect federal privileges and immunities has been shorn of all but declaratory significance, and the general police power confirmed in the Commonwealths, the other prohibitions of the first section of the Fourteenth Amendment have been so construed by the Supreme Court as to give to the Federal Government a very extensive supervisory jurisdiction over state legislation which it did not possess prior to 1868. Whenever the claim has been made that a state law has worked a deprivation of life, liberty, or property without due process of law, or has resulted in a denial to any person of the equal protection of the laws, the federal courts have assumed jurisdiction, and, when the claim has been made good, have declared the statutes involved void.1

It would carry us beyond the scope of this volume to show in any detail the manner in which this additional right of federal supervision over state legislation has been exercised. It is appropriate to say, however, that the phrase "equal protection of the laws" ten Amendments are to be regarded as federal privileges and immunities which, according to the Fourteenth Amendment, may not be altered or denied by the States. This point had previously been raised in the Spies case (Ex parte Spies, 123 U. S., 131) but not passed upon.

1 In the Slaughter House Cases, the Court declared relative to the clause providing for the equal protection of the laws: "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." As a matter of fact, however, this obiter dictum has been repeatedly overruled.

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has not been construed to secure to all persons in the United States the benefit of the same laws and remedies, but only to provide that no one within a State's jurisdiction shall be deprived of legal rights or subjected to legal burdens to which all other persons or similar classes of persons are entitled. Furthermore, it may be added that the term "due process of law" has been defined as simply "a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of legal rights."1 Thus it has been held that due process of law does not necessarily involve the right to a trial by jury in civil suits at common law, or even to a presentment of a grand jury in cases of felony and capital crimes. "Apparently," said Justice Field in a dissenting opinion in a state court (Carleton v. Rugg, 149 Mass., 550), "any mode of proceeding duly established by a State which provides for an impartial trial, and does not violate the fundamental principles of general jurisprudence, would be due process of law within the meaning of that instrument [the Constitution]." And the Supreme Court itself has said: "If the laws enacted by a State be within the legitimate sphere of legislative activity, and their enforcement be attended with observance of those general rules which our system of jurisprudence presents for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty, or property without due process of law" (Mo. Pacific R. R. v. Humes, 115 U. S., 512). 1 Pennoyer v. Neff, 95 U. S., 714.

CHAPTER XI

THE POWER OF THE UNITED STATES TO ACQUIRE

TERRITORY

IN the chapters that have gone before the effort has been made to set forth the constitutional relations subsisting between the Union and its commonwealth members. From the very beginning, however, the American constitutional system has included other political units than the States. These units are Territories, Dependencies, and a Federal District or seat of National Government.1 To a consideration of the constitutional questions incident to the annexation and government by the National Government of the territories and peoples of which these political elements are composed, we shall now turn. This will involve a discussion of the following points: (1) The constitutional power of the United States to acquire territories; (2) The modes in which and purposes for which they may be acquired; and (3) Their constitutional status. First then as to

The Constitutional Power of the United States to Acquire Territory. At the time of the adoption of the

1 The term "Dependency" can hardly be said to have been as yet accepted as a technically correct term, and possibly never may be. In default, however, of a better word the term will be here provisionally employed.

Constitution and the establishment thereunder of the present National Government, the territory subject to the sovereignty of the United States consisted of the respective territories of the thirteen original States and vast reaches of lands to the west, that lying north and west of the Ohio River being known as the Northwest Territory. These areas had been originally ceded to the old Confederation by the States and governed according to the provisions of the famous Northwest Ordinance of 1787. Upon the establishment of the new government in 1789 they were turned over to it. Contemporary opinion and the practice of many years showed the existence of the idea that from these lands new States were to be formed as fast as the development of their populations and resources should warrant. Until that time they were to be under the exclusive control of the Federal Government. The provisions inserted in the new Constitution bearing upon this point are the following: "New States may be admitted by the Congress into this Union" (Article IV, Sec. 3, Clause 1); "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States (Article IV, Sec. 3, Clause 2).

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No express power is given the United States by the Constitution to acquire additional territory. In 1803, however, the vast Louisiana Territory was purchased from France and annexed to the Union; in 1819 Florida was obtained from Spain; in 1845 the State of 1 To this new government Georgia and North Carolina also later ceded their western lands.

Texas was annexed; in 1846 the Oregon Territory was obtained through discovery, occupation, and convention with England; in 1848 and 1853 additional territory was obtained by cession from Mexico; in 1856 the annexation of the Guano Islands was authorized by a congressional statute; in 1867, Alaska, the first territory non-contiguous to the United States, was obtained by purchase from Russia; in the same year Midway Island was taken possession of by the President; in 1898 the Hawaiian Islands were annexed; in 1898, as a result of the Spanish-American War, the islands of Porto Rico, the Philippines, and Guam came under the sovereignty of the United States; and in 1900 three of the Samoan Islands were acquired.1

From what grant of power we may now ask did the United States Government derive the authority thus to increase its territory?

When, in 1790, North Carolina made a cession to the United States of its title to western territory, this was accepted by Congress in the act of April 2, 1790, without constitutional question. This, it will be observed, however, involved only a transfer of title from a State to the Nation and not an annexation of territory foreign to the United States. The acquisition of the Louisiana Territory was, however, of this latter character, and Jefferson, then President, felt, and expressed, as we know, most serious doubts as to the constitutionality of the act, though upon grounds of political expediency he urged that the treaty providing for it be ratified, and, if necessary, a constitu

1 The term "Insular Possessions" has been officially applied to the islands owned by the United States.

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