to find a single reputable authority more than twelve months old for the opposite doctrine. Upon the contrary, he and others of the same view were able to cite numerous declarations not only of public men, but of Congress and even of the courts during past years to the effect that American constitutional law did not contemplate the holding by the United States for an indefinite length of time of dependent territories to which statehood could not be granted. Of the foregoing claim this much must be admitted; namely, that beyond all probable doubt those who framed and adopted the federal Constitution did not anticipate, and therefore cannot be said deliberately to have provided for, the time when the United States should extend its sovereignty over territories not intended ultimately for statehood. Nor can it be said that a different view was held upon this point by practically any one until comparatively recent times. But in admitting this, the conclusion that the annexation of such territory was an unconstitutional act does not follow. For in the first place, as has been repeatedly declared by the Supreme Court, it is not enough to say that a particular case was not in the minds of those who framed and adopted the Constitution in order to hold an act unconstitutional. One must go further and show that had the particular case been suggested to those framers and adopters of the Constitution, they would so have modified its language as to exclude it. Thus, as the Court declared in the famous Dartmouth College Case: "The case being within the words of the rule, must be within its operations likewise, unless there be something within its literal

construction so obviously absurd or mischievous, or repugnant to the general spirit of that instrument as to justify those who expounded the Constitution in making it an exception" (Dartmouth College v. Woodward, 4 Wh., 518). In the second place, even were this principle of constitutional construction not sufficiently broad to uphold the federal power in question, there would be applicable two principles, each of which would prevent the Supreme Court from passing upon this point. The first of these principles is the one recently mentioned that the question of de facto and de jure sovereignty is one regarding which the courts hold themselves bound by the determination of the executive and legislative branches of government; the second is that the motive of an act, except for the purpose of solving an ambiguity in its application, is not a proper subject for judicial examination, and that therefore, in the case of an annexation of territory, it would not be proper for the court to seek to learn whether or not ultimate statehood was intended to be granted the lands and peoples obtained. Indeed, as we shall see, as regards the contiguous continental territories of the United States, it has been uniformly held that the grant to them of statehood lies wholly within the discretion of Congress, and that no legal means exist for compelling action should that body arbitrarily refuse for an indefinite length of time to grant this privilege to a deserving territory.

CHAPTER XIII

THE CONSTITUTIONAL STATUS OF TERRITORIES: THE POLITICAL RIGHTS OF THEIR INHABITANTS

THE topic to which we have given the title "The Constitutional Status of the Territories" is divisible into two parts, the one relating to the political or governmental rights of their inhabitants; the other to their private or civil rights. These we shall consider separately. First, then, as to the powers of the Federal Government over the government of such territories as are subject to its sovereignty but are not embraced within the boundaries of any of the States.

This federal authority has been derived from two sources: (1) The express power given to Congress "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," and (2) The implied power to govern derived from the right to acquire territory. Both of these sources have been recognized by the Supreme Court. Thus in Sere v. Pitot (6 Cr., 332), decided in 1810, Marshall, after referring to the former source of authority, said: "Accordingly we find Congress possessing and exercising absolute and undisputed power of governing and legislating for the territory of Orleans." So also in Clinton v. En

glebrecht (13 Wall., 434) the same deduction was drawn from this same source. It was early recognized, however, that this clause might possibly have been intended merely to give to Congress a necessary control of its public lands as property, and indeed, its phraseology is scarcely such as one would think the framers of the Constitution would naturally have employed in making a grant of general governmental powers. Thus in the same case (Sere v. Pitot) in which the express power "to make all needful rules and regulations' is relied upon, the doctrine is also asserted that "the power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory."

In American Insurance Co. v. Canter (1 Pet., 511) the Supreme Court declared that: "Whatever may be the source whence the power [to govern territories] is derived, the possession of it is unquestioned; " and in Murphy v. Ramsay (114 U. S., 15) the question was declared "no longer open to controversy"-that it had "passed beyond the stage of controversy into final judgment." In Mormon Church v. United States (136 U. S., 1), Justice Bradley, speaking for the Court, said: "Having rightfully acquired said territories, the United States government was the only one which could impose laws upon them, and its sovereignty over them was complete. No State of the

1 The power of the Federal Government to govern territories has also been deduced from the fact that territories being subject to the sovereignty of the United States and admittedly not subject to government by any of the States, their control necessarily falls to the federal power.

Union had any such right of sovereignty over them; no other country or government had any such right. These propositions are so elementary and so necessarily follow from the condition of things arising upon the acquisition of new territory, that they need no argument to support them." And in De Lima v. Bidwell (182 U. S., 1), [one of the Insular Cases], the Court said: "It [the power to govern] is an authority which arises, not necessarily from the territorial clause of the Constitution but from the necessities of the case, and from the inability of the States to act upon the subject."

Not only has there never been any serious dispute as to the power of the National Government to govern all territories subject to its sovereignty and not included within the boundaries of any of the States, but, with equally unanimous assent, this power has been held to be practically absolute. That is to say, the form of government which shall be erected over these territories, and the extent to which their inhabitants shall be permitted to participate in this government, is recognized to rest wholly within the discretion of the President and the federal law-making power. In Mormon Church v. United States (136 U. S., 1) the Supreme Court said: "The power of Congress over the territories is general and plenary." In National Bank v. County of Yankton (101 U. S., 129), Chief Justice Waite, speaking for the Court, asserted: "Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void.