The very treaty with Spain under discussion in this case contains similar discriminative provisions, which are apparently irreconcilable with the Constitution, if that instrument be held to extend to these islands immediately upon their cession to the United States. By article 4 the United States agree "for the term of ten years from the date of the exchange of the ratifications of the present treaty, to admit Spanish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States ”— a privilege not extending to any other ports. It was a clear breach of the uniformity clause in question, and a manifest excess of authority on the part of the commissioners, if ports of the Philippine Islands be ports of the United States.

So, too, by article 13, "Spanish scientific, literary and artistic works * * * shall be continued to be admitted free of duty in such territories, for the period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty." This is also a clear discrimination in favor of Spanish literary productions into particular ports.

Notwithstanding these provisions for the incorporation of territories into the Union, congress not only in organizing the territory of Louisiana by act of March 26, 1804, but all other territories carved out of this vast inheritance, has assumed that the Constitution did not extend to them of its own force, and has in each case made special provision, either that their legislatures shall pass no law inconsistent with the Constitution of the United States, or that the Constitution or laws of the United States shall be the supreme law of such territories. Finally, in Revised Statutes, section 1891, a general provision was enacted that "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 within the United States."

laws, in the early ones of which no provision was made for the collection of taxes in the territory not included within the boundaries of the existing States, and others of which extended them expressly to the territories, or "within the exterior boundaries of the United States;" and in the acts extending the internal revenue laws to the territories of Alaska and Oklahoma. It would prolong this opinion unnecessarily to set forth the provisions of these acts in detail. It is sufficient to say that congress has or has not applied the revenue laws to the territories, as the circumstances of each case seemed to require, and has specifically legislated for the territories whenever it was its intention to execute laws beyond the limits of the States. Indeed, whatever may have been the fluctuations of opinion in other bodies (and even this court has not been exempt from them), congress has been consistent in recognizing the difference between the States and territories under the Constitution.

The decisions of this court upon this subject have not been altogether harmonious. Some of them are based upon the theory that the Constitution does not apply to the territories without legislation. Other cases, arising from territories where such legislation has been had, contain language which would justify the inference that such legislation was unnecessary, and that the Constitution took effect immediately upon the cession of the territory to the United States. It may be remarked, upon the threshold of an analysis of these cases, that too much weight must not be given to general expressions found in several opinions that the power of congress over territories is complete and supreme, because these words may be interpreted as meaning only supreme under the Constitution; nor, upon the other hand, to general statements that the Constitution covers the territories, as well as the States, since in such cases it will be found that acts of congress had already extended the Constitution to such territories, and that thereby it subordinated not only So, too, on March 6, 1820 (3 Stat. 545), in an act its own acts, but those of the territorial legislatures, authorizing the people of Missouri to form a State to what had become the supreme law of the land. government, after a heated debate, congress declared "It is a maxim not to be disregarded that general that in the territory of Louisiana north of thirty-expressions, in every opinion, are to be taken in six degrees thirty minutes slavery should be forever connection with the case in which those expressions prohibited. It is true that, for reasons which have are used. If they go beyond the case, they may be become historical, this act was declared to be un-respected, but ought not to control the judgment in constitutional in Scott v. Sandford (19 How. 393), a subsequent suit when the very point is presented but it is none the less a distinct annunciation by congress of power over property in the territories which it obviously did not possess in the several States.

for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated" (Cohens v. Virginia, 6 Wheat. 264, 399).

The researches of counsel have collated a large number of other instances, in which congress has, in its enactments, recognized the fact that provisions intended for the States did not embrace the territories, unless specially mentioned. These are found The earliest case is that of Hepburn v. Ellzey (2 in the laws prohibiting the slave trade with "the Cranch, 445), in which this court held that, under United States or territories thereof; " or equipping that clause of the Constitution limiting the jurisdicships in any port or place within the jurisdiction|tion of the courts of the United States to controof the United States;" in the internal revenue versies between citizens of different States, a citizen

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This

of the District of Columbia could not maintain an
action in the Circuit Court of the United States.
It was argued that the word "State," in that con-
nection, was used simply to denote a distinct political
society. "But," said the chief justice, "as the act
of congress obviously used the word 'State' in
reference to that term as used in the Constitution,
it becomes necessary to inquire whether Columbia
is a State in the sense of that instrument. The re-
sult of that examination is a conviction that the
members of the American confederacy only are the
States contemplated in the Constitution
and excludes from the term the signification_at-
tached to it by writers on the law of nations."
case was followed in Barney v. Baltimore City (6
Wall. 280), and quite recently in Hooe v. Jamieson
(166 U. S. 395). The same rule was applied to
citizens of territories in New Orleans v. Winter
(I Wheat. 91), in which an attempt was made to
distinguish a territory from the District of Colum-
bia. But it was said that neither of them is a
State in the sense in which that term is used in the
Constitution." In Scott v. Jones (5 How. 343), and
in Miners' Bank v. Iowa (12 How. 1), it was held
that under the Judiciary Act, permitting writs of
error to the Supreme Court of a State, in cases
where the validity of a State statute is drawn in
question, an act of a territorial legislature was not
within the contemplation of congress.

bers." That article I, section 9, paragraph 4 declaring that direct taxes shall be laid in proportion to the census, was applicable to the District of Columbia, "and will enable congress to apportion on it its just and equal share of the burden, with the same accuracy as on the respective States. If the tax be laid in this proportion, it is within the very words of the restriction. It is a tax in proportion to the census or enumeration referred to." It was further held that the words of the ninth section did 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."

There could be no doubt as to the correctness of this conclusion, so far, at least, as it applied to the District of Columbia. This district had been a part of the States of Maryland and Virginia. It had been subject to the Constitution, and was a part of the United States. The Constitution had attached to it irrevocably. There are steps which can never be taken backward. The tie that bound the States of Maryland and Virginia to the Constitution could not be dissolved, without, at least, the consent of the federal and State governments to a formal separation. The mere cession of the District of Columbia to the federal government relinquished the authority of the States, but it did not take it out of the United States or from under the ægis of the Constitution. Neither party had ever consented to that construction of the cession. If, before the district was set off, congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the district was created, it would have been equally void; in other words, congress could not do indirectly by carving out the district what it could not do directly. The district still remained a part of the United States, protected by the Constitution. Indeed, it would have been a fanciful construction to hold that territory which had been once a part of the United States ceased to be such by being ceded directly to the federal government.

Loughborough v. Blake (5 Wheat. 317) was an action of trespass (or, as appears by the original record, replevin), brought in the Circuit Court for the District of Columbia to try the right of congress to impose a direct tax for general purposes on that district (3 Stat. 216). It was insisted that congress could act in a double capacity: in one as legislating for the States; in the other as a local legislature for the District of Columbia. In the latter character it was admitted that the power of levying direct taxes might be exercised, but for district purposes only, as a State legislature might tax for State purposes; but that it could not legislate for the district under article I, section 8, giving to congress the power "to lay and collect taxes, imposts and excises," which "shall be uniform throughout the United States," inasmuch as the district was no part of the United States. It was held that the grant of In delivering the opinion, however, the chief justhis power was a general one without limitation as tice made certain observations which have occato place, and consequently extended to all places sioned some embarrassment in other cases. "The over which the government extends; and that it power," said he, “to lay and collect duties, imposts, extended to the District of Columbia as a constituent and excises may be exercised, and must be exercised part of the United States. The fact that article I, throughout the United States. Does this term desigsection 20 declares that "representatives and direct nate the whole, or any particular portion of the taxes shall be apportioned among the several American empire? Certainly this question can adStates * * * according to their respective num- mit but of one answer. It is the name given to our bers," furnished a standard by which taxes were great republic, which is composed of States and apportioned; but not to exempt any part of the coun- territories. The District of Columbia, or the territry from their operation. "The words used do not tory west of the Missouri, is not less within the mean that direct taxes shall be imposed on States United States than Maryland and Pennsylvania; and only which are represented, or shall be apportioned it is not less necessary, on the principles of our to representatives; but that direct taxation, in its Constitution, that uniformity in the imposition of application to States; shall be apportioned to num-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 co-extensive 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." So far as applicable to the District of Columbia, these observations are entirely sound. So far as they apply to the territories, they were not called for by the exigencies of the case.

In line with Loughborough v. Blake is the case of Callan v. Wilson (127 U. S. 540), in which the provisions of the Constitution relating to trial by jury were held to be in force in the District of Columbia. Upon the other hand, in Geofroy v. Riggs (133 U. S. 258), the District of Columbia, as a political community, was held to be one of the States of the Union" within the meaning of that term as used in a consular convention of February 23, 1853, with France. The seventh article of that convention provided that in all the States of the Union, whose existing laws permitted it, Frenchmen should enjoy the right of holding, disposing of and inheriting property in the same manner as citizens of the United States; and as to the States of the Union, by whose existing laws aliens were not permitted to hold real estate, the president engaged to recommend to them the passage of such laws as might be necessary for the purpose of conferring this right. The court was of opinion that if these terms, "States of the Union," were held to exclude the District of Columbia and the territories, our government would be placed in the inconsistent position of stipulating that French citizens should enjoy the right of holding, disposing of and inheriting property in like manner as citizens of the United States, in States whose laws permitted it, and engaging that the president should recommend the passage of laws conferring that right in States whose laws did not permit aliens to hold real estate, while at the same time refusing to citizens of France, holding property in the District of Columbia and in some of the territories, where the power of the United States is in that respect unlimited, a like release from the disabilities of alienage, "thus discriminating against them in favor of citizens of France holding property in States having similar legislation. No plausible motive can be assigned for such discrimination. A right which the government of the United States apparently desires that citizens of France should enjoy in all the States it would hardly refuse to them in the district embracing its capital, or in any of its own territorial dependencies."

comprised 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. By article 1, section 10 of the Constitution, "no State shall enter into any treaty, alliance or confederation * ** or enter into any agreement or compact with another State, or with a foreign power." It would be absurd to hold that the territories, which are much less independent than the States, and are under the direct control and tutelage of the general government, possess a power in this particular which is thus expressly forbidden to the States.

It may be added in this connection that, to put at rest all doubts regarding the applicability of the Constitution to the District of Columbia, congress by the act of February 21, 1871 (16 Stat. 419, 426, sec. 34), specifically extended the Constitution and laws of the United States to this district.

The case of American Ins. Co. v. Canter (1 Pet. 511) originated in a libel filed in the District Court for South Carolina for the possession of 356 bales of cotton which had been wrecked on the coast of Florida, abandoned to the insurance companies and subsequently brought to Charleston. Canter claimed the cotton as bona fide purchaser at a marshal's sale at Key West, by virtue of a decree of a territorial court consisting of a notary and five jurors, proceeding under an act of the governor and legislative council of Florida. The case turned upon the question whether the sale by that court was effectual to divest the interest of the underwriters. The district judge pronounced the proceedings a nullity, and rendered a decree from which both parties appealed to the Circuit Court. The Circuit Court reversed the decree of the District Court upon the ground that the proceedings of the court at Key West were legal, and transferred the property to Canter, the alleged purchaser.

The opinion of the Circuit Court was delivered by Mr. Justice Johnson, of the Supreme Court, and is published in full in a note in Peters' Reports. It was argued that the Constitution vested the admiralty jurisdiction exclusively in the general government; that the legislature of Florida had exercised an illegal power in organizing this court, and that its decrees were void. On the other hand, it was insisted that this was a court of separate and distinct jurisdiction from the courts of the United States, and as such its acts were not to be reviewed in a foreign tribunal, such as was the court of South Carolina; "that the district of Florida was not part of the United States, but only an acquisition or deThis case may be considered as establishing the pendency, and as such the Constitution, per se, had principle that, in dealing with foreign sovereignties, no binding effect in or over it." "It becomes," said the term "United States" has a broader meaning the court, "indispensable to the solution of these than when used in the Constitution, and includes all difficulties that we should conceive a just idea of the territories subject to the jurisdiction of the federal relation in which Florida stands to the United government, wherever located. In its treaties and States. * And, first, it is obvious that there conventions with foreign nations this government is a material distinction between the territory now is a unit. This is so not because the territories under consideration and that which is acquired from

* *

could be created within a State, except under the by conquest, by treaty and by cession is an incident restrictions of the judicial clause. It is sufficient to of national sovereignty. The territory of Louisiana say that this case has ever since been accepted as when acquired from France, and the territories west authority for the proposition that the judicial clause of the Rocky mountains, when acquired from of the Constitution has no application to courts cre- Mexico, became the absolute property and domain ated in the territories, and that with respect to them of the United States, subject to such conditions ás congress has a power wholly unrestricted by it. We the government, in its diplomatic negotiations, had must assume, as a logical inference from this case, seen fit to accept relating to the rights of the people that the other powers vested in congress by the Con- then inhabiting those territories. Having rightfully stitution have no application to these territories, or acquired said territories, the United States governthat the judicial clause is exceptional in that ment was the only one which could impose laws particular. upon them, and its sovereignty over them was complete. 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 those 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." See, also, to the same effect National Bank v. County of Yankton (101 U. S. 129); Murphy v. Ramsey (114 U. S. 15).

This case was followed in Benner v. Porter (9 How. 235), in which it was held that the jurisdiction of these territorial courts ceased upon the admission of Florida into the Union, Mr. Justice Nelson remarking of them (p. 242) that "they are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control. Whether or not there are provisions in that instrument which extend to and act upon these territorial governments, it is not now material to examine. We are speaking here of those provisions that refer particularly to the distinction between federal and State jurisdiction

(p. 244). Neither were they organized by congress, under the Constitution, as they were invested with powers and jurisdiction which that body were incapable of conferring upon a court within the limits of a State." To the same effect are Clinton v. Englebrecht (13 Wall. 434); Good v. Martin (95 U. S. ço. 98), and McAllister v. United States (141 U. S. 174).

*

**

In Webster v. Reid (11 How. 437) it was held that a law of the territory of Iowa, which prohibited the trial by jury of certain actions-at-law, founded on contract to recover payment for services, was void; but the case is of little value as bearing upon the question of the extension of the Constitution to that territory, inasmuch as the organic law of the territory of Iowa, by express provision and by reference, extended the laws of the United States, including the ordinance of 1787 (which provided expressly for jury trials), so far as they were applicable; and the case was put upon this ground (5) Stat. 235, 239, sec. 12).

In Reynolds v. United States (98 U. S. 145), a law of the territory of Utah providing for grand juries of fifteen persons, was held to be constitutional, though Revised Statutes, section 808, required that a grand jury empanelled before any circuit or district court of the United States shall consist of not less than sixteen nor more than twenty-three persons. Section 808 was held to apply only to the circuit and district courts. The territorial courts were free to act in obedience to their own laws.

That the power over the territories is vested in congress without limitation, and that this power has been considered the foundation upon which the territorial governments rest, was also asserted by Chief Justice Marshall in McCullough v. Maryland (4 Wheat. 316, 422), and in United States v. Gratiot (14 Pet. 526). So, too, in Mormon Church v. United States (136 U. S. 1), in holding that congress had power to repeal the charter of the church, Mr. Justice Bradley used the following forceful language: "The power of congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire In Ross' case (140 U. S. 453), petitioner had been the territory itself, and from the power given by the convicted by the American consular tribunal in Constitution to make all needful rules and regula- Japan of a murder committed upon an American tions respecting the territory or other property be- vessel in the harbor of Yokohama, and sentenced longing to the United States. It would be absurd to death. There was no indictment by a grand to hold that the United States has power to acquire jury, and no trial by a petit jury. This court afterritory, and no power to govern it when acquired. firmed the conviction, holding that the Constitution The power to acquire territory, other than the terri- had no application, since it was ordained and estabtory northwest of the Ohio river (which belonged lished "for the United States of America," and to the United States at the adoption of the Consti- not for countries outside of their limits. “The tution), is derived from the treaty-making power guarantees it affords against accusation of capital or and the power to declare and carry on war. The infamous crimes, except by indictment or presentincidents of these powers are those of national ment by a grand jury, and for an impartial trial by sovereignty and belong to all independent govern- a jury when thus accused, apply only to citizens ments. The power to make acquisitions of territory and others within the United States, or who are