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The Government for the Island Colonies Is One of

guards of every individual against the powers of government, not because those provisions were enacted for them, but because they are essential limitations inherent in the very existence of the American Government.'

"Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated by the Constitution." ;

The new decision and policy with reference to our island possessions may mean, then, at the most, only

that the government of Congress for the Ter. ritories is a government under an unwritten

constitution instead of a government under a an Unwritten written Constitution. To say that the islands Constitution.

acquired in the war with Spain are not to be regarded as a part of the United States, and that their inhabitants are not citizens of this country protected by the provisions of our Constitution, this is not to say that they have no rights recognized by our Government; that they are not entitled to trial by jury, to the writ of habeas corpus, to representation as the basis of taxation, to move and speak and write freely, to acquire property and to make contracts and to have these contracts enforced. These rights are theirs by a higher law than that of the Constitution.

As to the application of the Constitution in its restrictions and limitations, this may come to the people of a ceded territory in various ways:

1. By express extension of the Constitution over a Territory by specific act of Congress. The Constitution

does not extend to a new territory by its own How Constitutional Rights power (ex propria vigore), but an act of Congress are Expressly

is Guaranteed:

necessary to make it apply. An issue was 1. By Act of raised before the Supreme Court whether a citCongress

izen of the District of Columbia was entitled


Hon. Elihu Root, Secretary of War, Report, 1899. - Justice Bradley, in Mormon Church vs. United States, 136 U.S., i., 44.

2. By the

to the provisions of the Constitution relating to trial by jury. It was held that he was so entitled.

But this was because an act of Congress, February 21, 1871,

Trial by Jury expressly extended the Constitution to the in the District District of Columbia and because, also, that

of Columbia:

How Secured. District had been carved out of Maryland and Virginia, both of whose Constitutions guaranteed this right to their people. When Congress by specific act has once extended the provisions of the Constitution over a new territory, and thus fixed its constitutional status, that status cannot be subsequently changed by a withdrawal of the Constitution. As the Supreme Court has said, there are some steps that cannot be retraced.

2. By the organic law of Congress for the Territory; i. e., the Organizing Act.-An act of the legislature of Iowa dispensing with a jury. in certain common-law actions was held void.2 But this was Territorial Act. because the organic law of the Territory of Iowa, the Organizing Act, by express provision extended the laws of the United States, including the Ordinance of 1787, over the Territory. This Ordinance provides for trial by jury. So the act of Iowa was void because of its conflict with congressional legislation, which had made certain preliminary provisions the fundamental law of the State.

3. By Treaty Provisions.In order to modify the otherwise unlimited powers of Congress over the territory acquired by treaty it has been deemed 3. By Treaty. necessary to insert limiting provisions in the treaties of acquisition.

In all the territorial treaties save that relating to Alaska provision has been made that the territory acquired should be incorporated into the Union All Previously as soon as possible, and that in the meantime the civil rights of the inhabitants should be

Incorporated guaranteed. In the Alaska Treaty with Russia into the Union. : Callan vs. Wilson,

• Webster vs. Reid, 2 Howard, 437.

Ceded Terri

tory to be habitants to Have the

(1867) no provision was made for the incorporation of the Territory into the Union, but provision was made that And their In

the inhabitants should have the immunities of

citizens of the United States and protection in Rights of the enjoyment of their liberty, property, and Citizenship. religion. Had not these terms been made in the treaties the territories acquired would have become subject to the legislation of Congress without limitation. The guarantees to the people are the guarantees secured by the treaty. In the case of territory acquired with no limitations upon the power of Congress, its power is absolute and exclusive except in so far as it is limited by the Thirteenth Amendment, which prohibits slavery in any place over which the United States has jurisdiction.'

The minority view of the Court in the InMinority View in the Insular sular cases is based upon two fundamental con

tentions : 1. The term “United States” used in the revenue clause of the Constitution comprehends the Territories as well as the States.

2. The National Government is one of enumerated powers, and these powers cannot be increased in any part of the Republic's territory or within its jurisdiction, except by an amendment to the Constitution.

As to what the term “United States” means in the Constitution, the answer was given by Chief Justice Marshall, supported by the entire Court, in 1820:


“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 it is not less necessary, on the principles of our Constitution that uniformity in the imposition of imposts, duties, and excises should be observed in one than in the other."

' House Report, 249, February 8, 1900, 56th Congress, Ist session.

As to whether the National Government can exercise unrestricted powers in the Territories, from Marbury vs. Madison until the late decisions no utterance of the Court has intimated a doubt that in its operation the National Government is one of enumerated powers. In the Dred Scott case the antislavery minority agreed with the proslavery majority that the power to legislate respecting a Territory was limited by the restrictions of the Constitution,-as Justice Curtis expressed it, “by the express prohibitions on Congress not to do certain things." Justice McLean, though asserting the power of Congress over the Territories to prohibit slavery, said, “No powers can be exercised which are prohibited by the Constitution, or which are contrary to its spirit.” Associate Justice Harlan sets forth very ably the view of the minority:

"If it be said that this doctrine restricts the sovereignty of our nation, the answer is that the sovereignty of the nation under our system resides in the people, the Tenth

Justice Amendment expressly reserving to the States and

Harlan's the people all powers not expressly delegated to the Dissenting

View, National Government. If the government of distant colonies and territories unrestricted by the Constitution seems desirable to the sovereign power, the people of the United States, they may amend the Constitution, but those who expound it can do nothing so absurd or mischievous or repugnant to its general spirit as to give it a construction not warranted by its words.

“The protection of a written Constitution against the arbitrary power of the government is as essential to the unrepresented people of our new possessions as our fathers knew it to be for the people of our own land.

Congress has no existence and can exercise no authority outside of the Constitution. It is not true that Congress may deal with new territory just as other nations may. This nation is under the control of a written Constitution, the supreme law of the land. This is the only source of the powers which our government or any branch of it may exert. Monarchical governments, unrestrained by written Constitutions, may do with newly acquired territories what this government may not do. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Such a result was never contemplated by the Fathers of the Republic.

“ The Constitution is supreme over every foot of territory under the jurisdiction of the United States. Concessions cannot be made for emergencies. We cannot violate the Constitution in order to serve particular interests. The meaning of the Constitution cannot depend upon accidental circumstances arising out of the products of other countries, or of this country. The ceded territory cannot be under the Constitution for one purpose and not for another. The people who ordained the Constitution never supposed that a change would be made in our system of government by mere judicial interpretation. If Porto Rico may be treated as though not a part of the United States then New Mexico and Arizona may be so treated and be subjected to such legislation as Congress may choose to enact without any reference to the restrictions of the Constitution."

Justice Harlan then proceeds to consider the undefined process by which a people are to be incorporated into the political community known as the United States. If the treaty, and the payment of the money agreed to and the Foraker Act organizing a civil government for Porto Rico,-if these steps do not “incorporate" the island into the United States, he is unable to see how it can be done by a mere resolution.'

Judging from the varying opinions of the judges who agreed in the judgment of the Court it is not unreasonable to suppose that this decision may be reversed in a

* Justice Harlan, dissenting opinion in Porto Rican cases.

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