In a proper view of the Constitution the Union is composed of the component parts of State and Territory. This is predicated on the power of the federal government to acquire new territory. Under the Constitution the States are directly concerned as units, while the territory is left as rough material in the hands of congress, to be fashioned into States by means of the constitutional provisions permitting new States to be erected and admitted to the Union. When this new territory shall be found to possess the necessary qualifications it may come into the Union upon request, and thereafter it shall be, like all its sister States, subject directly to the terms of the Constitution. But the Constitution does not cover it as a territory.

During this debate the clause of the treaty granting certain rights to the ships of France and Spain to enter the ports of Louisiana upon such terms as owners of vessels belonging to the United States, was assailed as a violation of another stipulation of the Constitution providing:

"That no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."

In this treaty it was claimed that the granting of this immunity to the ships of these favored nations to trade on even terms with merchants of the United States in the ports of this new territory was a discrimination in favor of these ports as against those of Boston and New York, and consequently violated section 9 of article 1 of the Constitution above referred to.

The answer to this objection was that the provision of the Constitution affected related to the States of the Union in express terms and not to any territory belonging thereto. Louisiana was a territory, not a State. The Constitution was made for the States of the Union and not for territories. But there was strong opposition to this theory in congress, and in the long and desperate struggle which followed on the heels of this measure, the slave holders of the South attempted to reverse this decision and to carry the Constitution into the western territories; that what they claimed as their property rights there might receive the same protection as claimed in the States, by virtue of constitutional stipulations.

The question, then, of the relation of the Constitution to after-acquired territory was now to become all important in view of sentiment of expansion, soon to become so popular as to be embodied into a doctrine. The Federalists got in the way of the sentiment and were driven into exile, in consequence. Ever since then the party with expansive ideas, relating to territory, of course, has been the successful party.

And with the Monroe doctrine, in one hand, and the golden rule, in the other, as poetically pictured by a high official of the government at a recent banquet in New York, we have marched on in our progress as a great nation. In order to avoid the imputation of a ridiculous inconsistency of the figure of speech, it is to be assured that the reference to the golden rule in that speech was, so to speak, in a diplomatic sense.

Chief Justice Marshall announced the position of the federal Supreme Court in the matter of congressional authority over territorial possessions near a hundred years ago, in this language:

"The power over the territories is vested in congress without limitation, and this power has been considered the foundation upon which the territorial governments rest" (McCulloch v. Maryland, 4 Wheaton, p. 316; see, also, United States v. Gratiot, 14 Peters, p. 526). And, concerning territorial relation under the Constitution, the same court held that the territories are but political subdivisions of the outlying dominion of the United States. They bear much the same relation to the general government that counties

do to the States to which they belong. And congress may legislate for them as States do for their respective municipal organizations (First National Bank v. County, etc., 101 U. S. S. C. Repts. 129). Again, in a later case, the court, speaking through Mr. Justice Bradley, says:

"The power of congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. Doubtless congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments, but those limitations would exist rather by inference and the general spirit of the Constitution, from which congress derives all its powers, than by any express and direct application of its provisions" (Church of Christ, etc., v. United States, 136 U. S. S. C. Repts., P. 1).

approval at the outset, and it was concluded by both parties in congress that no such power was vested in the congress under letter or spirit of the Constitution. That the terms of the second clause of the third section of the Constitution should not be interpreted to give power to alienate, by treaty or otherwise, any part or portion of the territory absolutely and definitely belonging to the United States.

The treaty providing for the cession to the United States by Spain of the territory then known as Florida was ratified by congress in October, 1820. This territory rimmed the Gulf of Mexico all the way from the mouth of the Mississippi to the Keys of Florida, and was a valuable acquisition in many ways. Besides helping to round out the proportions of the young Republic, it gave a commanding control to the entrance to the Gulf and consequent protection to the port towns of the South, not to speak of the great future commercial advantage to the South. Two years later Eastern Florida was given a territorial government, with much the same outline as that for Orleans established in 1804. And soon after this Chief Justice Marshall announced the first opinion, perhaps, of the federal Supreme Court touching upon the distinction between States of the Union and the territorial possessions (American Ins. Co. v. Three Hundred Fifty-six Bales of Cotton, 1 Peters' Repts. p. 511). In this case the chief justice said:

"We must take into consideration the relation in which Florida stands to the United States.

That territory ceded by treaty becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose." And, further, in substance, it was the opinion of the court that an act of congress establishing a territorial court was not in derogation of those clauses of the federal Constitution providing for the establishment of the judicial system, since congress controlled the territorial possessions and the government thereof entirely independent of the Constitution.

Upon being ratified by congress this treaty became part of the law of the land and admitted the inhabitants of Florida to the enjoyment of the privileges, rights and immunities of citizens of the United States.

Perhaps it is unnecessary to inquire whether this is not their condition, irrespective of the stipulation in the treaty, since usage, and, it may be, the settled law of nations, requires such a political status for the people of any ceded territory. But it is even more certain that they do not participate, in a political sense, in the government, but must wait until reorganized by that part of the government having control over them, that is, congress under

Our Constitution. Lacking self-government, the territory of the United States, not being subject to the jurisdiction of any State government

under the present Constitution, must necessarily, from this fact, come within the jurisdiction of the Federal government. And the right to govern springs naturally from the right to acquire. This was the opinion of Marshall, and he was a student of Grotius and Vattel. Halleck puts it in this way:

"This is now a well-settled rule of the law of nations and is universally admitted. Its provisions are clear and simple and easily understood; but it is not so easy to distinguish between what are political and what are municipal laws, and to determine when and how far the Constitution and laws of the conqueror change or replace those of the conquered. And in case the government of the new State is a constitutional government of limited and divided powers, questions necessarily arise respecting the authority which, in the absence of legislative action, can be exercised in the conquered territory after the cessation of war and the conclusion of a treaty of peace. The determination of these questions depends upon the institutions and laws of the new sovereign, which, though conformable to the general rule of the law of nations, affect the construction and application of that rule to particular cases (Int. Law [1st. ed.], chap. 33, sec. 14). Following in line came the opinion of the federal court in Pollard's Lessee v. Hagan (3 Howard's Repts. p. 225).

Every nation acquiring territory by treaty or otherwise must hold it subject to the constitution and laws of its own government." Then, in a much later case, the same court goes into the subject again and further announces the policy followed by this government in respect to the status of the inhabitants of the ceded territory:

'Whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment.

As a matter of course all laws, ordinances and regulations in conflict with the political character, institutions and constitution of the new government are at once displaced. Thus upon a cession of political jurisdiction and legislative power- and the latter is involved in the former to the United States the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishment and the like, would at once cease to be of obligatory

force without any declaration to that effect, and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But, with respect to other laws affecting the possession, use and transfer of property and designed to secure good order and peace in the community and promote its health and prosperity, which are of a strictly municipal character, the rule is general that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed" (Railway Co. v. McFlinn, 114 U. S. S. C. Repts., p. 546). Interpretation of constitutional stipulations concerning the territorial possessions of the United States had been, from the time of the adoption of the northwest territory by the States and the beginning of our experience with a colonial form of government, controlled, more or less, by sectional interest and influences.

Mr. Calhoun, the uncompromising advocate of the right of property in slaves, in the debates in Congress on the proposed establishment of territorial governments for the new accessions of Oregon, California and New Mexico, in the years immediately preceding the rebellion, sought to justify the recognition of slavery in the new territories, because the Constitution recognized slaves as a property right of force throughout the United States. And as this was one of the rights assuredly, by all authority, recognized as preserved throughout the change of relations of acquired territory, the right was good in this new territory and could not be avoided by act of Congress.

The federal court gave force to this contention soon after in the Dred Scott case. Besides, the subsequent amendments to the Constitution were admissions of the force of the argument, and amendments to the Constitution became necessary to finally settle this question.

The debate in congress over the admission of this new territory and the discussion of the consequent constitutional questions was, perhaps, the most remarkable in the history of Congress, and there may have been no greater forensic contest in history than that which involved the matter of constitutional interpretation as applied to the acquired territory and the terms of its admission to the Union, which immediately preceded the war between the North and the South.

Ever since the adoption of the ordinance of 1787 slavery had been a bone of contention, which resulted, in 1820, in scaring the nation from the East to West with the line of the Missouri Compromise. Webster at first championed the cause of the New England abolitionists, and Calhoun and Clay met him with brilliant, logical and convincing argument; and built, as this argument was, in the express stipulations of the Constitution itself, it staggered the chief advocate of the abolitionists and later on caused him to array himself with Calhoun and Clay.

There were many brilliant men in both houses of congress at this time, and the New England sentiment had taken root in the West. Abolition was becoming a strong political factor and there were strong champions of this sentiment besides the senator from Massachusetts. However, the defection of Webster led to compromise, and neither the question of slavery nor the power of congress over the territory of the United States was, apparently, nearer solution.

As a result of the war with Mexico came the treaty of Guadalupe-Hidalgo, and through the diplomatic application of the "Golden Rule," as understood by nations,

"They should take who have power and they should keep who can,"

we came into possession of the territory of Texas, together with other territory west of the Rocky mountains.

Texas was, very probably, included in the Louisiana Purchase, although Spain and then Mexico had remained in possession of it from the time of the purchase of Louisiana by the United States. It had, in consequence, become a bone of contention, especially as many Americans had settled in this region and their rights were not always respected. This region, like the region of Orleans, was populated by mixed races of people, with customs and such laws as they had, very dissimilar to our own.

In the debate over the ratification of this treaty the same question of the relation of the acquired territory to the Union under the Constitution came up in congress again. The stipulation in the treaty as to the disposition of the inhabitants caused a renewal of the contest, which became more important, as it involved impending sectional strife over the question of the extension of slavery, as before stated. In dealing with this new territory now, the South stood for the Missouri Compromise and were willing to accept a construction of the Constitution respecting the right of congress to intervene in the control and disposition of the territorial possessions that would assure to them a recognition of the right of property in slaves below the extension of the line of the Missouri Compromise, while north of that line slavery should be prohibited.

The contest in congress over these constitutional powers begun with the proposed establishment of territorial government for Oregon, California and New Mexico, was kept up until South Carolina passed her Ordinance of Secession and thus precipitated the rebellion in the South. It was argued in these debates that the precedent of the Louisiana Purchase and that of Florida did not establish the constitutionality of the proposed extension of the Union to this new territory. That, while precedent was of great authority in a country like England, with its parliament as the supreme power, in this country precedent could never stand as against a correct interpretation of constitutional provisions.

"To sustain the judgment in this case under consideration it by no means becomes necessary to show that none of the articles of the Constitution apply to the Island of Porto Rico. There is a clear distinction between such prohibitions as go to the very root of the power of congress to act at all, irrespective of time or place, and such as are operative only throughout the United States or among the several States.

Thus when the Constitution declares that no bill of attainder or ex-post facto law shall be passed, and that no title of nobility shall be granted by the United States, it goes to the competency of congress to pass a bill of such description.

Whatever may be finally decided by the American people as to the status of these islands and their inhabitants, whether they shall be introduced into the sisterhood of States or be permitted to form independent governments, it does not follow that in the meantime, awaiting that decision, the people are, in the matter of personal rights, unprotected by the provisions of our Constitution and subject to the merely arbitrary control of congress."

It is true that in its opinion the court does not perceptibly enlarge the rights of inhabitants of our territories under the Constitution. But, while acknowledging the exclusive right of congress to control them, the absolute right in congress to govern is by no means conceded. Such constitutional provisions as by their terms apply throughout the Union or among the several States must be applicable to the territories organized by acts of congress. Otherwise we would have the paradox of a Union of States existing only by means of its Constitution, yet exercising powers through its legislative function in conflict with the provisions of its fundamental law.

If this were the case, the constitutional rights of the people of Alaska, Arizona, New Mexico, Oklahoma, Porto Rico and Hawaiian Islands would be uncertain, to say the least. And here it might be said that the Constitution is not the supreme law of

the land.

Mr. Justice Brown maintained that the Constitution was made for the original States of the Union and the territory then belonging which should eventually become parts of the Union; and, further, that the Constitution did not, by its own force, extend to the possessions of the United States, even under established territorial governments.

Quite a respectable part of the court, led by the Chief Justice, were of the opinion that the Constitution followed on the heels of a ratification of the treaty with Spain, and took hold and was of force in the new territory thereafter when duly organized. In an article in the North American Review for August of this year the Hon. George S. Boutwell sees nothing in the different opinions expressed by the members of the federal court in these Insular

Tariff cases to justify a belief that at the proper time they will not hold that the Constitution covers all organized possessions of the United States.

"It follows, therefore, that very soon every dependency which has come into the possession of the United States through the treaty with Spain will be organized in a territorial government, and, therefore, that within the same period of time the Constitution of the United States will be made applicable to each of them through the expressed opinion of a large majority of the justices of the Supreme Court."

And hence that all of the territory that has been acquired, appurtenant or insular, in conformity to

the law of nations and now in our possession, will come under the jurisdiction of the Constitution. This is an optimistic view of the situation in view of the fact that these same differences of constitutional interpretation have existed ever since the first acquisition of territory by this government. And, notwithstanding that this democratic government of ours owes its right to exist and do business by virtue alone of its Constitution, the federal Supreme Court, charged with the interpretation thereof, finds it to be the absolute function, practically, of Congress to rule a part of the territory and people, irrespective of that Constitution. The court held to the apparently incontrovertible fact that the Constitution was made for the United States and not for the territorial possessions or after-acquired territory while in that status, and, therefore, found the Island of Porto Rico to be appurtenant territory belonging to the United States, but not a part of the United States in the sense that the Constitution operated over it. As the same court had just decided that this territory was domestic and not foreign, the situation assumed the same old condition of compromise and convenience, if not doubt, that began a hundred years back and led the Chief Justice to make the sarcastic comments in his dissenting opinion.

Those who know the political history of this country, especially that portion having to do with the accession of territory, will see no inconsistency in the position of Mr. Justice Brown in deciding this insular territory, acquired through treaty duly ratified, to be domestic and appurtenant in the one case and outside of the Constitution of the United States in the other. He follows the line of political cleavage wrought by precedent and court decision, as far as it goes, and irregular as it is. From the law of nations he concludes, very properly, that this acquired territory has become a part of our domestic territory.

Here the same difficulty is confronted that puzzled Jefferson and Madison, that as the Constitution was made for States of the Union alone, and it may be for the original States at that, there could have been no intention of the framers of that instrument to make its provisions operative in future-acquired territory that could only be appurtenant to the United States, at least for such a time necessary for