With reference to the annexation of the Philippine Islands, the point was raised by certain "Anti-Imperialists" that the United States did not get a valid title for the reason that Spain had never reduced some of them to possession; and that, as to others, at the time of transfer neither she nor the United States was in effective occupation. This, however, is not a question of constitutional, but of international law-one, that is, that a foreign power might possibly raise, but which could not be considered in our courts. CHAPTER XXIV. THE CONSTITUTIONAL SOURCES OF THE POWER OF CONGRESS TO GOVERN THE TERRITORIES. § 156. Power to Govern Territories not Questioned. There has never been any question as to the power of the United States to govern the territories possessed or acquired by it and not included within the limits of any of the individual States. The only question has been as to the source and extent of this power. This federal authority to govern has been derived from three 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;" (2) The implied power to govern derived from the right to acquire territory; and (3) The power implied from the fact that the States admittedly not having the power, and the power having to exist somewhere, it must rest in the Federal Government. All three of these sources of authority have been, at different times, recognized by the Supreme Court. The earliest case is that of Sere v. Pitot,1 decided in 1810, with reference to the Territory of Orleans. In his opinion Marshall says: "The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and hold property. Could this position be contested, the Constitution of the United States declares that 'Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States.' Accordingly, we find Congress possessing and exercising the absolute and undisputed power of governing and legislating for the Territory of Orleans. Congress has given them a legislature, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively." 16 Cr. 332; 3 L. ed. 240. From this it will be seen that both the first and second sources of authority mentioned above are relied upon. Marshall himself is plainly of the opinion that the power to govern is a necessary incident to the power to acquire, but indicates that this view may possibly be contested. In American Insurance Co. v. Canter, decided in 1828, with reference to the government of Florida, Marshall uses the following language: "In the meantime [until it is admitted as a State] Florida continues to be a Territory of the United States; governed by virtue of that clause which empowers Congress' to make all needful rules and regulations, respecting the territory, or other property belonging to the United States." He adds, however: "Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned." Here, then, all three of the possible sources of the authority of Congress to govern acquired territory are referred to, though the two latter are only suggested as possible sources. In United States v. Gratiot,3 decided in 1840, it is declared: "The term territory as here used [Art. IV, Section III] is merely descriptive of one kind of property; and is equivalent to the word lands. And Congress has the same power over it as over any other property belonging to the United States; and this power is vested in Congress without limitation; and has been considered the foundation upon which the territorial governments rest." In Cross v. Harrison, decided in 1853, with reference to territory acquired from Mexico, the court say: "The territory had been ceded as a conquest, and was to be preserved and governed 21 Pet. 511; 7 L. ed. 242. as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting territory and other property belonging to the United States." In United States v. Guthrie,5 decided in 1854, Justice McLean in a dissenting opinion declared: "The power under which the territorial governments are organized is a matter of some controversy. It seems to me that the power to govern a territory is a necessary consequence of the power given ‘to make all needful rules and regulations respecting the territory or other property belonging to the United States.' No one doubts the power of Congress to sell the public lands beyond the limits of any State; and this renders necessary the organization of a government for the protection of the persons and property of the purchasers. This is an implied power, but it necessarily results from the power to sell the public lands." 6 § 157. Doctrines of the Dred Scott Case. This review of decisions brings us chronologically to the Dred Scott case. Up to this time, it must be observed, that the chief reliance for the power to govern the territories had been the grant of authority contained in Article IV, Section III. It is further to be observed that recourse to this source of authority is subject to the possible limitation that it applies only to territories possessed by the United States at the time the Constitution was adopted, and, therefore, that it cannot be appealed to for authority to govern areas acquired since that time; also that, over such territories as it is applicable to, it does not grant to the Government general governing powers, but only such as are necessary and proper for disposing of and regulating the public lands as prop 5 17 How. 284; 15 L. ed. 102. It is worthy of note, that, though McLean relies upon an express grant of power given Congress in Article IV, Section III, he construes this to be not a direct grant of governing power, but of a power to dispose of lands which carries with it the implied power to govern. erty, and preparing them and their inhabitants for admission to the Union as States. This was the position assumed by the majority of the court in the great case of Scott v. Sandford, decided in 1857. This case we have already discussed with reference to its bearing upon citizenship in the United States. We have now to examine it in its bearing upon the status of territories. This suit, it will be remembered, was one brought by Dred Scott, a negro, who had been owned and held as a slave in the State of Missouri, had been carried by his master first to the State of Illinois, where slavery did not exist, where he remained for two years; then to the Territory then known as Upper Louisiana, from which slavery had been excluded by the Missouri Compromise Act of 1820; and finally brought back to Missouri. Scott alleged that by being carried by his master voluntarily into the free State of Illinois and the free Territory he became a free man. He thereupon brought suit in the nature of an action of trespass against his master for restraining his liberty. The suit was brought in a federal court, the jurisdiction of the federal court being based upon a diversity of citizenship, Scott claiming to be a citizen of the State of Missouri, and Sandford, the defendant, being a citizen of the State of New York. The plea in abatement that Scott was not a citizen of a State within the constitutional sense, has already been considered in Chapter XVII. A plea in bar was filed which set up that Scott was still a slave, and that, therefore, no legal injury had been done him by the defendant; that when he was taken into Illinois as a slave and held there as such, and brought back by his master to Missouri, his status as fixed by the laws of Missouri was not changed; and that, as for his being carried into the free Territory of Upper Louisiana, Congress had had no constitutional power to exclude slavery therefrom, as it had attempted to do by the Act of 1820. It was in passing upon this last point that the court found it necessary to examine as to the constitutional power of the United States to acquire foreign territory and to govern it when acquired. 719 How. 393; 15 L. ed. 691. |