But in another case, that of Mrs. Alexander Cotton (2 Wall., 404, 419), the Supreme Court say:

This rule, as to property on land, has received very important qualifications from usage, from the reasonings of enlightened publicists, and from judicial decisions.

See also Briggs v. United States (143 U. S., 346, 356), wherein the court quote with approval the decisions above referred to.

It will be noticed that in none of these cases does the court suggest that the limitations on this sovereign power are created by the Constitution of the United States.

It is with reference to these higher laws and most potent spirit that the Supreme Court say:

The personal and civil rights of the inhabitants of the Territories are secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government. () (Murphy . Ramsay, 114 U. S., 15, 44–45.)

And also (to quote a third time):

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 these 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. (Mormon Church e. United States, 136 U. S., 1, 44; Thompson v. Utah, 170 U. S., 343, 349.)

Alaska is an existing instance of unorganized territory belonging to the United States and governed directly and entirely by Congressional legislation.

Regarding the powers of Congress in legislating for Alaska, Dawson, J., said:

Possessing the power to erect a Territorial government for Alaska, they could confer upon it such powers, judicial and executive, as they deemed most suitable to the necessities of the inhabitants. It was unquestionably within the constitutional power of Congress to withhold from the inhabitants of Alaska the power to legislate and make laws. In the absence, then, of any lawmaking power in the Territory, to what source must the people look for the laws by which they are to be governed? This question can admit of but one answer. Congress is the only lawmaking power for Alaska. (United States . Nelson, 29 Fed. Rep., pp. 202, 205, 206.)

In Endleman . United States, speaking of the powers of Congress in legislating for Alaska, the court say (86 Fed. Rep., 456):

Congress has full legislative power over the Territories, unrestricted by the limitations of the Constitution. (Syllabus.)

In the body of the opinion the court said (p. 459):

*

* *

The United States, having rightfully acquired the territory, and being the only Government which can impose laws upon them, has the entire dominion and sovereignty, national and municipal, Federal and State. It may legislate in acordance with the special needs of each locality, and vary its regulations to meet the conditions and circumstances of the people.

This case was decided by the United States circuit court of appeals, ninth circuit, February 28, 1898.

Speaking with reference to the government of organized Territories and their inhabitants, the Supreme Court say:

Their people do not constitute a sovereign power. All political authority exercised therein is derived from the General Government. (Snow . United States, 18 Wall., 317, 320.)

It will be noticed that the source of the designated authority is declared by the court to be the "General Government," not the Constitution. This decision is a clear recognition of the sovereign power vested in the General Government, and which is exercised independent of the Constitution.

If this is the rule as to organized Territories, peopled as they have been by immigration from the older communities of the nation, by our own citizens, who at home possessed the rights of citizenship and participated in the sovereignty, many of whom entered the Territory to avail themselves of special privileges bestowed upon them in recognition of their valor in defense of the nation, is a more advantageous rule to be applied to unorganized territory, largely peopled by an alien race, ignorant of our laws, customs, and institutions, unable to distinguish the difference between the Constitution of the United States and a map of the country, and as incapable, at present, of properly applying its complex provisions and diverse agencies as they would be those of the switch board of a union railway station?

It therefore seems incontrovertible that the unorganized territory of the United States is not bound and benefited by the Constitution and laws of the United States until Congress has made appropriate. provision therefor. And if Congress shall by appropriate action extend the territorial boundaries of the United States to include the islands acquired by the nation during the late war with Spain, and thereafter continue said islands in the condition of unorganized territory governed by the sovereign powers of the nation, the exercise of said sovereign powers will not be directed, limited, or controlled by the expressed provisions of the Constitution.

All the functions of government being within the legislative discretion, Congress may exercise them directly or through organized agencies for local rule.

"All the discretion which belongs to the legislative power is vested in Congress" (114 U. S., 44), and therefore "the power of Congress over the Territories is general and plenary." (136 U. S., 42.)

III.

Congress having determined to change unorganized territory belonging to the United States into organized territory and invest it with the powers of government known as Territorial, is Congress thereupon and thereafter under obligation to provide laws and a government for it which shall fulfill all the guarantees of political independence

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, ex 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 v. 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):