liberty, property, and religion." This act changed the basis of the Philippine government from a presidential to a congressional one, but did not change its form, the President being given by Congress practically the same powers that before that time he had exercised by virtue of his position as Chief Executive.

By the Act of July 1, 1902, entitled "an act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes," Congress not only approved and ratified the previous acts of the Philippine Commission, but went on to define the general lines of action that body should take, especially with regard to the introduction of local self-government as fast as circumstances should warrant. The constitutional source of the power of the United States to establish and maintain governments over territories not annexed to itself but in the possession of its military forces is derived both from the expressed power given it to declare and wage war, and from the fact of its exclusive authority in all that relates to international affairs, which fact, as we have seen, properly implies the right, in the absence of express prohibitions, to exercise all the powers possessed by sovereign States generally.

From this same source was derived the power of the United States to administer Cuba, and to establish consular courts in oriental countries.13

13 See chapter XXXV.

CHAPTER XXIX.

THE DISTINCTION BETWEEN INCORPORATED AND UNINCORPO

RATED TERRITORIES.

§ 173. Limitations Upon Powers of Congress.

The Constitution of the United States contains a number of express limitations upon the federal legislative power. In addition to those contained in the first ten amendments relative to freedom of religion, speech, and press, the quartering of troops, the right of the people to assemble, to petition, to keep and bear arms, to be secure against unreasonable searches and seizures, to presentment or indictment by jury, to speedy trial, to juries in civil suits, to immunity from excessive bail and fines and cruel and unusual punishments, etc., it is elsewhere provided in the Constitution that all duties, imposts, and excises shall be uniform throughout the United States, that the writ of habeas corpus shall not be suspended, except under certain specified circumstances, that no bill of attainder or ex post facto law shall be passed, no capitation or other direct tax laid except in proportion to population, no duty laid upon goods exported from a State, no commercial preferences given to the ports of one State over those of another, no money drawn from the treasury but in consequence of an appropriation made by law, no title of nobility granted, etc. The Thirteenth Amendment also declares that "neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

When legislating for the States or for their inhabitants these limitations have of course to be observed. The question whether the same is true when Congress is legislating for the territories and their populations has now to be examined.

In the preceding chapters we have learned the sources whence is derived the power of Congress and of the President to govern annexed Territories. We have learned that by mere military oc

cupation a territory, though for the time being subject to the de facto control of the President as Commander-in-Chief of the army and navy, is not annexed to the United States, that is, does not become permanently subject de jure as well as de facto to its sovereignty. Only by treaty, or by statute, or by joint resolution of Congress, may this annexation be effected.

§ 174. Possible Status of Territories after Annexation.

When thus annexed, however, a district may, according to the recent "Insular Cases," find itself, or by subsequent statute be placed, in any one of the following categories.

1. A State of the Union.

2. A "Territory" incorporated into the Union. This Territory may be either "unorganized," as for example is Alaska, or "organized," examples of which are at present New Mexico, Arizona and Hawaii.

3. A Territory appurtenant to, that is, subject to the sovereignty of the United States, but not "incorporated," constitutionally speaking, into the Union of States and Territories for the benefit and protection of whose inhabitants the Constitution was adopted.

§ 175. Unincorporated Territory.

Such" appurtenant," dependent or unincorporated territory is, of course, from the international point of view a part of the United States, but is not, as we shall see, a part thereof in the

1 This international use of the term United States is considered in the case of De Geofroy v. Riggs (133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642), in which the question involved was whether the terms of a treaty giv. ing to citizens of France the right to inherit an interest in real estate in "States of the Union," were applicable to the District of Columbia or only to the States of the Union. The use of the phrase "States of the Union would upon its face indicate that only the States and not the extra-State areas were concerned, yet the court held that the treaty was to be construed as generally applicable. In its opinion the court said: "This article is not happily drawn. It leaves in doubt what is meant by "States of the Union." Ordinarily these terms would be held to apply to those political communities exercising various attributes of sovereignty which compose the United States, as distinguished from the organized municipalities known as Territories and

stricter constitutional sense in which the term is used in the Constitution with reference to certain limitations which that instrument lays upon the legislative powers of Congress.

§ 176. Distinction between Incorporated and Unincorporated Territories.

With respect to the form of government that may be established and maintained by Congress over the Territories, there is no distinction between an incorporated and an unincorporated Territory. In either case the congressional authority is absolute. With respect, however, to the civil or private rights of the inhabitants of the Territories, the distinction is very important. For if it be that a Territory is merely appurtenant to, but not " incorporated into the United States, Congress in its legislation regarding it is bound by but few of the limitations which apply in the case of incorporated Territories, whether organized or unorganized.

This distinction between incorporated and unincorporated territory is one that was not clearly made until the decision of the the District of Columbia. And yet separate communities, with an independent local government, are often described as States, though the extent of their political sovereignty be limited by relations to a more general government or to other countries. (Halleck on Int. Law, chap. III, §§ 5, 6, 7.) The term is used in general jurisprudence and by writers on public law as denoting organized political societies with an established government. Within this definition the District of Columbia, under the government of the United States, is as much a State as any of those political communities which compose the United States. Were there no other territory under the government of the United States, it would not be questioned that the District of Columbia would be a State within the meaning of international law; and it is not perceived that it is any less a State within that meaning because other States and other territory are also under the same government."

After referring to the case of De Geofroy v. Riggs, Justice Brown in the individual opinion which he rendered in Downes v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088), observes: "In dealing with foreign sovereignties, the term 'United States' has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal Government, wherever located. In its treaties and conventions with foreign nations, this government is a unit. This is so, not because the Territories comprise a part of the government established by the people of the States in their Constitution, but because the Federal Government is the only authorized organ of the Territories, as well as of the States in their foreign relations."

Insular Cases in 1901. Indeed, prior to that time, there had been a number of decisions by the Supreme Court which indicated that such a distinction did not, and could not, exist according to the Constitutional Law of the United States. There were, however, on the other hand, not a few legislative and administrative precedents which supported such a doctrine; and by rigorously confining the contrary decisions of the Supreme Court to the facts of the cases in which they were rendered, it was found possible to escape from their control, and to hold that the term "United States," as used in at least some of the clauses of the Constitution, does not, and was not intended to, include all districts subject to the sovereignty of the United States; and that as to such areas not within the limits of the "United States," in this strict constitutional sense, Congress, in the exercise of its legislative powers, is not subject to the limitations which rest upon it when dealing with Territories which are included in the United States.

A review of the decisions of the Supreme Court rendered prior to the Insular Cases, shows that, from the first, the doctrine was held by the court that Congress when legislating upon the civil rights of inhabitants of the Territories is governed by all those express and implied limitations which rest upon it when dealing with the same subjects within the States.2 The only departures from this doctrine, if departures they be, were: (1) The remark thrown out by Justice Bradley in the Mormon Church case that "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

2 See Loughborough v. Blake, 5 Wh. 317; 5 L. ed. 98; Am. Ins. Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; Webster v. Reid, 11 How. 437; 13 L. ed. 761; Scott v. Sandford, 19 How. 393; 15 L. ed. 691; Reynolds v. U. S., 98 U. S. 145; 25 L. ed. 244; Nat. Bank v. Yankton, 101 U. S. 129; 25 L. ed. 1046; Murphy v. Ramsay, 114 U. S. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47; Callan v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223; Mormon Church v. U. S., 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478; Am. Pub. Co. v. Fisher, 166 U. S. 464; 17 Sup. Ct. Rep. 618; 41 L. ed. 1079; Springville v. Thomas, 166 U. S. 707; 17 Sup. Ct. Rep. 717; 41 L. ed. 1172; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061.

3 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.