and rights of citizenship which are provided for by the Constitution of the United States for citizens domiciled within the territorial boundaries of the United States? In other words, does the Constitution, ex proprio vigore, extend over said territory?

Throughout our entire history Congress has adhered to the doctrine that the great powers and appurtenant rights created and conferred by the Constitution were not inherent to all people, but were to be bestowed upon them, the bestowal to be made upon those only who possessed the ability and determination to properly exercise them. Hence the requirements of the naturalization laws.

Congress and the Executive are to judge of the fitness of the applicants for such bestowal and the tests by which they are to be tried. Hence the authority to enact the Chinese, contract labor, and pauper exclusion acts. Hence the right to fix the time when organized Territories shall be admitted into the Union as States and the people thereof acquire the sovereign rights of a State. Acting upon the theory that the Constitution did not, er proprio vigore, extend over the territory of the United States outside of the boundaries of the several States, Congress has given force and effect to the Constitution and laws of the United States in the organized Territories by legislative enactment. The act to establish a Territorial government for New Mexico (1850) contained the following provision:

SEC. 17. And be it further enacted, That the Constitution and all laws of the United States which are not locally inapplicable, shall have the same force and effect within said Territory of New Mexico as elsewhere within the United States. (9 Gen. Stats. of U. S., chap. 49, p. 452. )

Similar legislation has been had in regard to other organized Territories, as follows: Utah, vol. 9, Stat. L., p. 458, chap. 51, sec. 17; Colorado, vol. 12, p. 176, chap. 59, sec. 16; Dakota, vol. 12, p. 244, chap. 86, sec. 16; Idaho, vol. 12, p. 813, chap. 117, sec. 13; Montana, vol. 13, p. 91, chap. 95, sec. 13; Wyoming, vol. 15, p. 183, chap. 235, sec. 16; District of Columbia, vol. 16, p. 426, chap. 62, sec. 34.

Finally in the "Act to revise and consolidate the statutes of the United States," approved June 22, 1874, Congress made general provision as follows:

The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere in the United States. (Revised Statutes of the United States, sec. 1891.)

The expression "organized Territories" and "every Territory hereafter organized," appearing in this statute, refers to the political subdivisions known as Territories, in which Territorial governments have been or may be organized. (See title 23, chaps. 2 and 3, Rev. Stats.) It can not be interpreted to mean unorganized territory considered as an expanse of country, nor can "every Territory hereafter organized"

be held to mean every foot of land hereafter acquired. (See title 23, chap. 3, p. 342, Rev. Stats., U. S.)

When the various new States were admitted into the Union their territory and inhabitants derived the benefits and were subjected to the obligations of the Constitution by virtue of the act of admission, which invariably contains the provision that said State is "admitted into the Union on an equal footing with the original States in all respects whatever."

The opinion of Chief Justice Marshall in Loughborough . Blake (5 Wheat., 317) is often cited as sustaining the doctrine that the Constitution is in force er proprio vigore in the Territories. The name of Marshall is one to conjure with; and when he speaks regarding the Constitution it behooves a person desiring an understanding of that instrument" to write his sayings in a book."

The case of Loughborough . Blake was an action of trespass, to try the right of Congress to impose a direct tax on the District of Columbia. Chief Justice Marshall stated the issue as follows:

This case presents to the consideration of the court a single question. It is this: Has Congress a right to impose a direct tax on the District of Columbia?

In answering this question affirmatively, Chief Justice Marshall said (pp. 318-319):

The eighth section of the first article gives to Congress the "power to lay and collect taxes, duties, imposts, and excises," for the purposes thereinafter mentioned. This grant is general, without limitation as to place. It consequently extends to all places over which the Government extends. If this could be doubted, the doubt is removed by the subsequent words which modify the grant. These words are, "But all duties, imposts, and excises shall be uniform throughout the United States." It will not be contended that the modification of the power extends to places to which the power itself does not extend. The power, then, to lay and collect duties, imposts, and excises may be exercised, and must be exercised throughout the United States. Does this term designate the whole or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our Great Republic, which is composed of States and Territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts, and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States.

What was it extended "to all places over which the Government extends?" Clearly it was "the power to impose taxes." The power of taxation is a sovereign right of Government. One of those rights which Marshall was eager to establish belonged to the General or Federal Government.

That the Chief Justice did not intend to declare the Constitution to be in force in the District of Columbia appears clearly when the facts upon which the action was founded are known.

The law assailed by the taxpayers was a special act imposing a direct tax upon the District alone. That is, the act did not impose a tax upon the country at large and simply require the District to pay a share proportionate with that of the several States. The taxpayers directed attention to the following provisions of the Constitution:

The Congress shall have power to lay and collect taxes. (Sec. 8, clause 1, Art. I.) Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers. (Sec. 2, clause 3, Art. I.)

No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. (Sec. 9, clause 4, Art. I.)

The protesting property owners of the District contended that Congress was not authorized to impose a direct tax except in those parts of the country afforded Representatives in Congress and embraced in the language "the several States which may be included within this Union;" and if this contention was not sustained, and the power of Congress to impose a direct tax extended beyond the States of the Union, the Constitution required that the amount to be raised by such tax "be apportioned among the several States" and not confined to one, to wit, the District of Columbia.

Regarding this contention Chief Justice Marshall said (pp. 322-323): We think a satisfactory answer to this argument may be drawn from a fair comparative view of the different clauses of the Constitution which have been recited. That the general grant of power to lay and collect taxes is made in terms which comprehend the District and Territories as well as the State is, we think, incontrovertible. The subsequent clauses are intended to regulate the exercise of this power, not to withdraw from it any portion of the community. The words in which those clauses are expressed import this intention. In thus regulating its exercise a rule is given in the second section of the first article for its application to the respective States. The rule declares how direct taxes upon the States shall be imposed. They shall be apportioned upon the several States according to their numbers. If, then, a direct tax be laid at all, it must be laid on every State, conformably to the rule provided in the Constitution. Congress has clearly no power to exempt any State from its due share of the burden. But this regulation is expressly confined to the States and creates no necessity for extending the tax on the District or Territories. The words of the ninth section do not in terms require that the system of direct taxation, when resorted to, shall be extended to the Territories, as the words of the second section require that it shall be extended to all the States. They, therefore, may, without violence, be understood to give a rule when the Territories shall be taxed without imposing the necessity of taxing them.

Loughborough . Blake was decided in 1820. In 1828 the American Ins. Co. . Canter (1 Pet., 511) was presented to the court, Chief Justice Marshall presiding. In the course of his argument of that cause, Mr. Daniel Webster, discussing the condition of Florida, then a Territory, said (p. 538):

What is Florida? It is not part of the United States. How can it be? How is it represented? Do the laws of the United States reach Florida? Not unless by particular provisions. The Territory and all within it are to be governed by the acquiring power, except where there are reservations by treaty. By the law of England, when possession is taken of territory, the King, Jure Coronae, has the power of legislation until Parliament shall interfere. Congress has the Jus Coronae in this case, and Florida was to be governed by Congress as she thought proper. What has Congress done? She might have done anything-she might have refused the trial by jury, and refused a legislature. She has given a legislature to be exercised at her will. Mr. Whipple, who was associated with Mr. Webster in the case, said (p. 533):

Much argument has been used in order to show that the Constitution and laws of the United States are, per se, in force in Florida, and that the inhabitants are citizens of the United States.

How the Constitution became of force in Florida has not been shown. Was it by the act of cession? Is there any principle in the law of nations which, upon the act of cession or conquest, gives to the ceded or conquered country a right to participate in the privileges of the Constitution of the parent country? The usages of nations from the period of Grecian colonization to the present moment are precisely the reverse. Such a right never was asserted.

The Constitution was established by the people of the United States for the United States. It provides for the future admission of Territories into the Union, and expressly confers upon Congress the power of governing them as Territories until they are admitted as States.

If the Constitution is in force in Florida, why is it not represented in Congress? Why was it necessary to pass an act of Congress extending several of the laws of the United States to Florida? Why did Congress designate particular laws, such as the crimes act, the slave trade, and revenue acts, and introduce them as laws into Florida? Why enumerate particular rights secured to the people of the United States, if the inhabitants of Florida were entitled to them upon the act of cession?

This case was heard in the circuit court by Mr. Justice Johnson, of the Supreme Court. He delivered his opinion in writing. Therein he said (see note, 1 Pet., 517):

It becomes indispensable to the solution of these difficulties that we should conceive a just idea of the relation in which Florida stands to the United States, and give a correct construction to the second section of the act of Congress, of May the 26th. 1824, respecting the Territorial government of Florida. Correct views on these two subjects will dispose of all the points that have been considered in argument. And, first, it is obvious that there is a material distinction between the territory now under consideration and that which is acquired from the aborigines (whether by purchase or conquest), within the acknowledged limits of the United States, as also that which is acquired by the establishment of a disputed line. As to both these there can be no question that the sovereignty of the State or Territory within which it lies, and of the United States, immediately attach, producing a complete subjection to all the laws and institutions of the two governments, local and general, unless modified by treaty.

The question now to be considered relates to territories previously subject to the acknowledged jurisdiction of another sovereign; such as was Florida to the Crown of Spain. And on this subject we have the most explicit proof that the understanding of our public functionaries is that the Government and laws of the United States do not extend to such territory by the mere act of cession. For, in the act of Congress of March 30, 1822, section 9, we have an enumeration of the acts of Congress,

:

which are to be held in force in the territory; and, in the tenth section, an enumeration in the nature of a bill of rights, of privileges, and immunities which could not be denied to the inhabitants of the territory, if they came under the Constitution by the mere act of cession.

As, however, the opinion of our public functionaries is not conclusive, we will review the provisions of the Constitution on this subject.

At the time the Constitution was formed the limits of the territory over which it was to operate were generally defined and recognized. These limits consisted, in part, of organized States, and, in part, of Territories, the absolute property and dependencies of the United States. These States, this Territory, and future States to be admitted into the Union are the sole objects of the Constitution. There is no express provision whatever made in the Constitution for the acquisition or government of territories beyond those limits.

The right therefore of acquiring territory is altogether incidental to the treatymaking power, and perhaps to the power of admitting new States into the Union; and the government of such acquisitions is of course left to the legislative power of the Union, as far as that power is uncontrolled by treaty. By the latter we acquire either positively or sub modo, and by the former dispose of acquisitions so made; and in case of such acquisitions I see nothing in which the power acquired over the ceded territories can vary from the power acquired under the law of nations by any other government over acquired or ceded territory.

The United States Supreme Court affirmed the decision of Mr. Justice Johnson. The Court, speaking by Chief Justice Marshall, say (1 Pet., 541-542):

The course which the argument has taken will require that, in deciding this question, the court should take into view the relation in which Florida stands to the United States.

The Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently that Government possesses the power of acquiring territory, either by conquest or by treaty.

The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty the acquisition is confirmed, and the ceded territory 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. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law which may be denominated political is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State.

On the 2d of February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession contains the following provisions: "The inhabitants of the territories which his Catholic Majesty ceded to the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution; and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.” This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent