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The Power of the Federal Government

THE Constitution of the United States makes no express provision for the acquisition of territory, and at the time of the Louisiana purchase the question was raised whether the federal government had the power to buy that domain. President Jefferson at first doubted the constitutionality of the purchase, and in the summer of 1803 he wrote to Mr. John C. Breckenridge concerning the subject: "The executive in seizing the fugitive occurrence which so much advances the good of their country have done an act beyond the Constitution. The legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it."1

However, men who took a broader view of the matter claimed that there was full constitutional warrant for the action, inasmuch as the federal government enjoyed the undoubted right to acquire territory under the treaty-making power. Even Jefferson finally gave up the idea that it was necessary to amend the Constitution in order to acquire Louisiana, and later the Supreme Court held that, "the Constitution confers absolutely on the government of the Union the power of making war and of making treaties; consequently that the government possesses the power of acquiring territory by conquest or by treaty.""

Congress governs federal territory under that clause of the Constitution giving it power to dispose of and make all needful rules and regulations respecting the territory or other property

1 Works (Ford ed.), Vol. IV, p. 500.

2 American Insurance Co. v. Canter, 1 Peters, 511.

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belonging to the United States. The conflict over the powers of Congress under this provision furnishes a long and stirring chapter in the constitutional history of the United States. During the first half of the nineteenth century, this conflict was waged over the question as to whether Congress could prohibit slavery in the territories. The pro-slavery wing of the Democratic party contended that the national legislature had no such power, and radical Republicans, on the other hand, maintained that it even had no right to permit slavery in the territories.

The whole matter of the power of Congress over territories was reopened in 1898, with the acquisition of our insular possessions, in the form of the somewhat striking question, "Does the Constitution follow the Flag?" The answer to this proposition is simple: the federal government cannot go anywhere or do anything except under some power conferred by the Constitution. But this leaves unsettled the problem of what provisions of the Constitution control the federal authorities in the government of territories. It requires no very subtle analysis to discover that certain clauses of that instrument are designed to limit the federal government within the states; but do all the provisions in behalf of private rights contained in the original Constitution, and especially in the first ten amendments,' run into the territories and control the federal government there? In his famous opinion in the Dred Scott case, Chief Justice Taney declared that they did, and hence that slavery could not be prohibited there because that would be depriving the slaveowner of his property without due process of law a gross violation of the private rights guaranteed under the Constitution. Many years later the Supreme Court held that the Seventh Amendment required a unanimous verdict in common law trials, and controlled the legislation of Congress and territorial assemblies.2

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A new aspect was given to this question when the Hawaiian Islands and the Philippines were acquired, because it was obviously impossible to apply there all of the elaborate principles of Anglo-Saxon jurisprudence laid down in the first ten amendments to the federal Constitution. In a series of Supreme Court

1 See Readings, pp. 134-137.

'Springville v. Thomas, 166 U. S. R., 707, (1897).

decisions,1 known as the "Insular Cases," many technical points are involved, but the upshot of them all is that the Constitution may be divided into two parts, fundamental and formal; that only the fundamental parts control the federal authorities in the government of territories; and that the Supreme Court will determine, from time to time, as specific cases arise, what parts of the federal Constitution are fundamental and what parts are formal.2 Thus we may say, with a judge of the United States circuit court of appeals for California, that, for practical purposes, "the territories of the United States are entirely subject to the legislative authority of Congress. They are not organized under the Constitution, nor subject to its complex distribution of powers of government as the organic law, but are the creation exclusively of the legislative department and subject to its supervision and control. The United States, having rightfully acquired the territory and having become the only government which can impose laws upon them, has the entire domain and sovereignty, national and municipal, federal and state. It may legislate in accordance with the special needs of each locality, and vary its regulations to meet the circumstances of the people." 3 Under this liberal interpretation of the Constitution, Congress may establish and maintain practically any form of government in the insular territories which does not violate too grossly the political traditions of the American people.

In view of the fact that, during the campaigns of 1900 and 1904, the opponents of the American imperialist policy demanded for the Porto Ricans and Filipinos either complete freedom or at least "self-government on the Principles of the Declaration of Independence," it seems worth while to examine briefly at this point the historical policy of the United States in the administration of the territories. The famous ordinance of 1787 for the government of the Northwest Territory provided that

1 The following cases relate especially to the position of the new territories in our political system: Downs v. Bidwell, 182 U. S. R., 244 (1900); Dooley v. the United States, ibid., 222; Dooley v. the United States, 183 U. S. R., 151 (1901); Pepke v. the United States, ibid.; Hawaii v. Mankichi, 190 U. S. R., 197; Dorr v. the United States, 195 U. S. R., 138; De Lima, v. Bidwell, 182 U. S. R., 540 (1900).

2 See Readings, p. 375, for a succinct statement by Justice Day of the Supreme Court of the United States.

3 Willoughby, Territories and Dependencies of the United States, p. 22.

Congress should appoint the governor, and fixed his property qualifications at a freehold estate of a thousand acres of land; the secretary and judges were likewise appointed by Congress and required to have certain property qualifications. For the time being, the governor and judges were to make the civil and criminal laws for the territory, subject to the approval of Congress. It was further provided that when the territory should have 5000 free male inhabitants, there should be instituted a representative assembly composed of delegates, each owning 200 acres of land, chosen by the voters of the territory, each possessing a freehold of 50 acres. To this representative assembly was added a legislative council composed of five members, (each with the property qualification of 500 acres of land freehold) chosen by Congress out of ten persons nominated by the representative branch. Thus in the beginning the federal government did not even give to territories inhabited principally by white citizens of the United States that complete autonomy and democratic form of government which many anti-imperialists would have conferred upon the insular possessions almost at the very outset of our administration.

This policy of keeping a firm control on the territories, with more or less modification, has been continued throughout our history. When the territory of Orleans was organized, in 1804, the executive power was vested in a governor appointed by the President and Senate, and the legislative power was given to the governor and a legislative council consisting of "thirteen of the most fit and discreet persons of the territory appointed annually by the President of the United States from persons holding real estate." It was not until the western territories were fairly well settled and somewhat experienced in the conduct of their own political affairs that they were given large powers of self-government on the basis of a widely extended franchise.'

The Government of Territories

I. At the present time the territories of the United States fall into three groups, the first of which embraces New Mexico, Arizona, and Hawaii, each regularly organized according to those principles which have been applied as the continental do


1 Willoughby, Territories and Dependencies of the United States, pp. 27–52.

main of the United States has been developed. Arizona and New Mexico' each has a governor, appointed by the President and Senate for a term of four years and enjoying the usual powers of a commonwealth governor. He is charged with the faithful execution of the laws; he is commander-in-chief of the militia; he has the power of pardon and reprieve; and he may veto bills passed by the territorial legislature subject to the ordinary rule of repassage by two-thirds vote; he may call extra sessions of the legislature on approval of the President. The supreme judicial power is vested in a supreme court composed of a chief justice and two associate justices appointed by the President and Senate for a term of four years.


The legislative power is vested in an assembly of two houses, the members of which are chosen on district tickets under a franchise so broad as to include substantially all males above the age of twenty-one. The powers of the territorial legislature and its mode of procedure are in many respects restricted by the statutes of the United States, but they resemble, in general, those of ordinary state legislatures.3

The Hawaiian Islands were annexed by a joint resolution of Congress approved July 7, 1898; and their administration is based on the organic act of April 30, 1900, which erected them into a territory and created a complete system of government, going even into greater detail than in the case of Arizona and New Mexico. The provisions of the Constitution and laws of the United States, applicable to local conditions, were extended to Hawaii; and American citizenship was conferred upon all persons who were "citizens of the republic of Hawaii on August 12, 1898." The governor and secretary of Hawaii are appointed by the President and Senate. The legislature consists of a senate and a house of representatives, and the members of each are elected by popular vote. Every voter must be a male citizen of the United States twenty-one years of age and a resident of the territory of not less than one year's standing; he must be

1 The admission of these territories as states is now (February, 1910) pending in Congress.

The governor is assisted by a secretary appointed by the President and Senate.

Willoughby, Territories and Dependencies, pp. 55 ff. Each territory has a delegate in Congress who may speak but not vote.

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