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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."3 "As free and independent States, they (the United States of America) have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may, of right do." "It is superfluous to cite authorities establishing the right of the government of the United States to acquire territory, in view of the possession of the Northwest Territory when the Constitution was framed and the cessions to the general government by various States subsequent to the adoption of the Constitution, and in view also of the vast extension of the territory of the United States, brought about since the existence of the Constitution substantially every form of acquisition known to the law of Nations."

§ 279. Government of territory belonging to the United States but not included within the limits of any state. There is not, and never has been, any such legal question as to whether (to use a popular expression) "the Constitution follows the flag." The government of the United States rests entirely upon the powers granted to it by the Constitution, if the Constitution under any circumstances or in any place, ceases to be operative, the National Government must of necessity cease to have any power to act. The question often arises, however, as to the application of a certain portion, or portions, of the Constitution. The question as to the degree of power possessed by Congress over the territories and colonies of the United States is not whether the Constitution applies at all in these cases, but as to what part of the Constitution so applies. "The Government of the United States was born of the Constitution and all

3 Chief Justice Marshall in American Insurance Co. v. Canter, 1 Peters, 511.

Declaration of Independence.

Concurring opinion of Justice White, Shiras and McKenna in Downes v. Bidwell, 182 U. S. 244.

powers which it enjoys or may exercise must be either derived expressly or by implication from that instrument. Every func tion of the government thus being derived from the Constitution it follows that the instrument is everywhere and at all times potential in so far as its provisions are applicable. In the case of the territories, as in every instance, when a provision of the Constitution is invoked the question which arises is, not whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable."

The powers granted to the Congress are contained in two widely separate parts of the Constitution. The eighth section of the first article, contains an enumeration of the general powers granted to Congress to be exercised in the government of the United States. The second clause of the third section fourth article of the Constitution contains the following provisions as to the government of territory belonging to the United States: "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." It is upon this clause of the Constitution that the power of the United States to govern the territory of the United States not included within the limits of any particular State, rests. Independently of this clause, however, the power to govern and regulate such territory would be necessarily implied from the power to acquire it. "We are also of opinion that the power to acquire territory by treaty not only implies the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status will be in what Chief Justice Marshall termed, the 'American Empire." "

That Congress has the general power of government over the territories and colonies of the United States, under Article IV, Section 3, Clause 2 cannot now be disputed. The controversies on this subject, which have arisen, have grown out of the question as to how far this general power is restricted by other portions of the Constitution, and, in particular, as to the applica

Concurring opinion of Justice White, Shiras and McKenna in Downes v. Bidwell, 182 U. S. 244.

'Downes v. Bidwell, 182 U. S.

244.

tion of the revenue laws of the United States and whether certain limitations which are placed upon the power of Congress in the United States, are also restrictions upon their power over territory belonging to the United States.

The determination of these questions (except those arising out of the restrictions placed upon Congressional action) involve the point whether or not the territories and colonies belonging to the United States are included within the United States, and are a part of the United States, as the term is used in the Constitution. That they are not so included seems certain not only by a study of the text and history of the Constitution of the United States, but also by the decisions of the Supreme Court. The authority to the contrary is confined almost entirely to dicta. and dissenting opinions. Our country is a union of formerly independent (or quasi-independent) States; the Constitution is the compact between these States, regulating the terms on which the union was to take the place and the rights of the several States against the general government. No rights are conferred by this compact on those not parties to the agreement; the framers of the Constitution, acting for the several States, had the power to determine how territory belonging to the States in common, or to the new central government, should be governed, and this was done in that clause of the Constitution already referred to, which provides that: "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."

The matter is thus stated by Justice Brown in the decision of the Supreme Court in Downes v. Bidwell. "It is sufficient to observe in relation to these three fundamental instruments that it can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, to be governed solely by representatives solely of the States; and even the provision relied upon here, that all duties, imposts and excises shall be uniform, "Throughout the United States,' is explained by subsequent provisions of the Constitution, that, 'no tax or duty shall be laid on

8

U. S. Const., Art. 4, Sec. 3, Clause 2.

9

182 U. S. 244.

articles exported from any State and no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another. In short, the Constitution deals with States, their people and their representaties.

"The thirteenth amendment of the Constitution prohibiting slavery and involuntary servitude 'within the United States and in any place subject to their jurisdiction,' is also significant as showing that there may be places within the jurisdiction of the United States, that are no part of the Union.

"Upon the other hand, the Fourteenth Amendment, upon the subject of citizenship, declares only that, 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.' Here there is a limitation to persons born or naturalized in the United States which is not extended to persons born in any place subject to their jurisdiction."

Those provisions therefore, which apply only to the States or the United States, do not affect the power which Congress has, under the clause giving them power to make all needful rules and regulations respecting the territory belonging to the United States.

No valid distinction can be correctly drawn between the position, under the United States Constitution, of the territories and the colonies of the United States. The Constitution throughout divides the territory subject to the authority of the United States, into the United States itself, and the public territory which it might at any time possess. At the time of the adoption of the Constitution the United States ruled over none but contiguous territory, and the insular expansion of the country was unforseen by the members of the Constitutional convention. The great existing differences between the laws and government of our territories and of our colouies is due to statutory provisions enacted by Congress under their extensive discretionary power.

§ 280. The bill of rights in territory belonging to the United States. The question whether, when Congress is prohibited generally from legislating on any particular subject

or from doing any particular act (as is the case with the restrictions contained in the first eight amendments and part of those in the ninth section of the first Article of the Constitution) such restrictions would act as a limitation of the power of Congress over the territory belonging to the United States, as well as over the United States itself, is one which after having been the occasion of much discussion was finally passed upon by the Supreme Court in the year 1903, in the case of Hawaii v. Mankichi.10 This case involved the legality of the conviction of Osaki Mankichi, a murderer in Hawaii, who had not been indicted by a grand jury, and who had been convicted by a majority instead of by a unanimous vote of the trial jury, after the Islands had been annexed to the United States, but before. they were formally incorporated into a territory. The provision in the United States Constitution requiring a trial by jury, is held to require the old common law method of jury trial; i. e., the unanimous verdict of a jury of twelve men. The Hawaian law required no grand jury indictment, and permitted a majority of the trial jury to convict. The Newlands Resolution annexing the islands provided that: "The municipal legislation of the Hawaian Islands, not enacted for the fulfillment of treaties so extinguished, and not inconsistent with this joint resolution nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine."11 The question presented to the Supreme Court was whether the conviction by a majority of the jury, while Hawaian laws still applied, was contrary to the American Constitutional provision. By a vote of five to four the court decided that the conviction by a majority of the jury was legal. This is a decision to the effect that the United States "Bill of Rights" is only in force in the United States itself, and does not apply to territory belonging to it. This decision was followed in Dorr v. United States12 where, in a case appealed from the courts of the Philippine Islands, it was held that the residents of these islands are not entitled to a trial by jury under the Constitution. In

10 190 U. S. 197.

"Act July 7, 1898. 30 Stat.

750.

12 195 U. S. 138.

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