for a seat in congress. These results are certainly opposed to the ideas that have prevailed hitherto. Objections may be raised in like manner to the broader construction, which extends the provisions of the Constitution over our new dependencies. This construction assumes that the interpretation given by the courts to the Constitution in the case of the older territories applies to all places subject to the jurisdiction of the United States, an assumption for which there is no judicial sanction, and which actually contradicts two decisions. It may be urged that this construction is irrational, because it extends the restrictions of the Constitution to conditions where they cannot be applied without rendering the government of our new dependencies well nigh impossible, and surely no provision ought to

In the interpretation of a constitution some weight must also be attributed to the conditions under which it was formed, to previous constitutions, to the steps by which it attained its final form, and finally to generally accepted legal opinions and decisions. It is the latter to which we shall give especial attention, since we generally find all the others embodied in this one. It seems that two opposing theories of the application of the Constitution to our new dependencies have been put forward. One opinion holds that the limitations imposed by the Constitution upon the Federal government apply only to the States, and that the term "United States," when used in a territorial sense, includes the States alone.

The other opinion holds that these limitations apply wherever the jurisdiction of the government extends, and that all territory in the possession of the nation is a part of the United States. But it seems to us that both of these theories reject a certain number of decisions, and it may not be impossible to formulate a third opinion which reconciles a larger proportion of the authorities than either of them. These are the extreme views on either side, and if they are examined closely, each of them presents serious objections. The narrower view of the Constitution, that which limits all its provisions to the area of the States, besides contradicting many judicial opinions, leads to conclusions sharply at variance with commonly received opinion. It allows congress to confiscate property in the District of Columbia, or in the territories, without compensation, or to take it arbitrarily from the owner and bestow it upon another person. It suffers the government to pass a bill of attainder against a resident of Arizona or New Mexico. According to this view, moreover, a person born of alien parents in a territory is not a citizen of the United States either by the Constitution or by statute (R. S., secs. 1992-3), and residence there is not residence within the United States for the purpose of subsequent qualification

tional result, if the language will bear equally well a different construction.

The Constitution (art. 4, sec. 3) provides that congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." We then come to the nucleus of the whole matter: What constitutional prohibitions are laid upon congress in legislating for territories?

Constitutional prohibitions may be express or implied - unqualified or they may be qualified. For example, congress is unqualifiedly forbidden to pass a bill of attainder or an ex post facto law (art. 1, sec. 9, par. 3). The inhibition is absolute and excludes all action of the kind forbidden under any and all circumstances, whether of time, place or condition. Hence it is plain that no such legislation would be valid, whether applying to States or to territories. On the other hand, the next preceding inhibition (art. 1, sec. 9, par. 2) forbids the suspending of the writ of habeas corpus "unless when in cases of rebellion or invasion the public safety may require it." Plainly this is a qualified prohibition, implying that under the special circumstances named the prohibition does not lie. In order to know the precise limitations which the Constitution places on congress with respect to territories, then, we must first enumerate all the unqualified prohibitions on Federal legislation. These, of course, must forbid such legislation under any circumstances and for any area, and hence must apply to territories as well as to States. In the second place, we must enumerate the qualified prohibitions, and must examine whether the qualifications are such as to cover territories. Bearing in mind the power of congress to legislate for territories, the judicial construction of which we shall soon show, it at once appears that the doctrine is exactly the converse of that which relates to Federal legislative power over the States. So far as the States are concerned, congress has only powers granted, whether expressly or by implication, while all the

residuary powers are in the States (amendt. X). On the other hand, so far as territories are concerned the States severally have no power whatever, and congress has all power not denied by the Constitution i. e., congress has all the residuary powers. We consider this distinction vital in the solution of this problem. The prohibitions of the Federal government which are incontestably unqualified are not many, and may easily be enumerated. They include the prohibitions of bills of attainder and ex post facto laws (art. sec. 9, par. 3), of titles of nobility (Ib., par. 8), of certain modes of legislation (Ib., par. 7, and also art. 1, sec. 7), of slavery, of the repudiation of the national debt or the assumption of the insurrectionary debt (amendt. XIV, sec. 4), and a few others, express and implied.

The prohibitions on the Federal government which are obviously qualified are also not many. Among them are that directed against the suspension of the writ of habeas corpus, above noted; that which forbids a direct tax unless laid in proportion to population (art. 1, sec. 9, par. 4); those which forbid export duties at State ports or commercial discrimination among States (art. I, sec. 9, pars. 5 and 6); of involuntary servitude except as a punishment for crime (amendt. XIII); the limitation of suffrage for certain specified reasons (amendt. XV, sec. 1), and some others, express or implied. It will be observed that the inhibition on congress to lay export duties is placed among the qualified prohibitions. The words of the Constitution are: "No tax or duty shall be laid on articles exported from any State (art. 1, sec. 10, par. 5). The Supreme Court has repeatedly held that in the sense of the Constitution a territory is not a State. Hence the prohibition of export duties is not absolute, but is limited to State areas, and leaves congress free so far as territories are concerned. The same reasoning applies to commercial discriminations among States. The text is: "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another" (art. 1, sec. 9, par. 6). This inhibition cannot lie against legislation with respect to territories.

In considering the judicial authority upon the question a distinction may be drawn between the territory belonging to the United States at the time of the adoption of the Constitution and that which has been acquired subsequently. The status of the former has been brought before the courts only in the case of the District of Columbia. The first allusion to it is in Loughborough v. Blake (5 Wheat. 317), which involved the right to impose a direct tax upon the District, and where Chief Justice Marshall, in the course of the decision, gave his famous dictum on the meaning of the provision "that duties, imports and excises shall be uniform throughout the United States."

"Does this term designate the whole or any

portion of the American empire? Certainly 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 obserevd in the one than in the other."

Many years later (1887) in the case of Callan v. Wilson (127 U. S. 540), the question was presented whether the provision for trial by jury applied to the District of Columbia, and the Supreme Court decided that it did. The same doctrine affirmed in 19 Sup. Ct. Rep. 580, and 167 U. S. 548.

The status of the territory acquired since the adoption of the Constitution has given birth to more abundant litigation; but in regard to this three distinct questions arise: First, has the United States the right to acquire possessions? Second, do they have the same standing as those which belonged to the nation at the time of the adoption of the Constitution? and third, What in either case is their constitutional position?

The Constitution makes no provision for the acquisition of territory, and although Gouverneur Morris, in the letters quoted by Campbell, J., in the Dred Scott case (19 How. 393), says that he contemplated such action, he certainly gave no intention of it in the Constitution. The purchase of Louisiana was, however, a political necessity; and while at first Jefferson was doubtful of his own authority, and desired the sanction of a constitutional amendment, his precedent has been followed so often, and has been so thoroughly confirmed by judicial decisions and by practice of every department of the government, that its legality is no longer a subject of dispute.

It is a well-settled principle that the sovereign nations of the world possess equal rights and equal powers. Their equality is perfect, their independence absolute. Between them national constitutions are unknown. In all international relations the United States is assumed by other sovereignties to possess absolute powers unrestrained by constitutional limitations. That assumption is correct, based upon the fundamental canon of the law of nations. The United States has ratified the recent treaty with Spain, and now no other nation has the right to question its political or constitutional authority to do so. It would seem, from the very nature of government, from the necessity of its preservation, from the efforts which must be made to keep it in its integrity, that the necessity and power of making war involves the power of crippling, hindering and, if necessary, destroying the adversary by every means necessary to prevent it from doing harm in the future, and, if necessary, to carry that power of destruction to the ultimate and com

plete extinction of the nation with which war exists, and that only one of the methods which may be adopted for the purpose is that of depriving the hostile power of its territory. This we believe is the view which has been adopted in the practice of all nations, however highly civilized, which has been incorporated in the law of nations, and that has been adopted by the Supreme Court, which is to us the highest exponent of the law. It was said by Chief Justice Marshall in the American Insurance Co. v. Canter (1 Pet. 511) that:

"The Constitution confers absolutely on the government of the Union the power of making war and of making treaties; consequently, that government possesses the power of acquiring territory either by conquest or by treaty. The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either by the terms of stipulation in the treaty of session or such as its new master shall impose."

Chief Justice Marshall also said that "the right to govern is 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."

The United States possessing every attribute of the most potential sovereignty, and, in the language of Mr. Justice Lamar, the Federal government in all external relations being "the exclusive representative and embodiment of the entire sovereignty of the nation," it follows that any power possessed by any sovereignty is possessed by the United States; and unless specifically prohibited by the Constitution (as above shown), can be exercised without restriction by the Federal government. The right to acquire territory irrespective of its situs, contiguous or foreign, by conquest, treaty, purchase or discovery, is an acknowledged and well-established attribute of sovereignty, and has been exercised by sovereigns from the beginning of recorded history. I advance the proposition with deference that this right is itself a primary and substantive attribute of sovereignty, as is the right of natural existence or of self-defense, and I have regarded it in this discussion as the primary and fundamental authority for territorial expansion. The same doctrine was laid down by Mr. Justice Story when he said: "The power of the United States to acquire new territory by cession or conquest does not depend upon any specific grant in the Constitution to do so, but flows as an incidental power from its sovereignty over war and treaties." The United States, then, possessing the right to acquire territory, it follows as an inevitable consequence

that we also possess the right to hold and hence to govern it.

The right to acquire being a primary attribute of sovereignty, and the right to hold and govern being ancillary thereto, it follows that wherever our sovereignty extends there our right to acquire, and hence to hold and govern, extends also. The situs of the territory is immaterial; it may be contiguous or remote, on the American continent or in foreign lands. Our abstract right to acquire and hold is as plenary and sovereign in the Philippines as in Alaska or Arizona.

Subject to the unqualified prohibitions already mentioned, congress has absolute and unlimited control over the territories, and we believe that this view is sustained by the great weight of American authority. Congress has the same power over its public domain as over any other property belonging to the United States. This power," said the Supreme Court (14 Pet. 537), is vested in congress without limitation, and has been considered the foundation upon which territorial governments rest." The Supreme Court early announced (9 How. 242) the comprehensive principle that "territories 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."

"The power of congress over the territories is general and plenary," said Mr. Bradley in 136 U. S. 42.

And the court (114 U. S. 44), summarizing the whole matter, announced this opinion through Justice Brewer: "A territory is a political community organized by congress, all whose powers are created by congress, and all whose acts are subject to congressional supervision."

The broad constructionists support their view by the dicta of Chief Justice Marshall in Loughborough v. Blake, above quoted. It will be apparent upon the most casual examination that the expression relied upon in this case is a mere dictum, and was not at all necessary to the decision of the case. "This case," said the chief justice, "presents to the consideration of the court a single question. It is this: Has congress a right to impose a direct tax on the District of Columbia?" This he answered in the affirmative. Of course congress had a right to impose a direct tax upon the District of Columbia, because under the Constitution congress is given exclusive control over that District. No necessity arose for the court to define the term "United States." It does not, therefore, necessarily follow that in the disposition of that case anything was involved like the proposition that the United States covered both the United States and territories, nor do we think the case decided any such thing. In effect it decided the exact opposite, because it decided

that a tax which was uniform throughout the United States, but was not applied to the territories at all, was a constitutional tax. If the case had decided what is claimed by its supporters that it did, it certainly would be overruled by the subsequent decision of Chief Justice Marshall in Am. Ins. Co. v. Canter (1 Pet. 511), above noted; nor is it in harmony with a long line of decisions, many of which we have had occasion to quote. Also, Dr. Judson, professor of political science in the University of Chicago, in a recent article on the Thirteenth Amendment, says that the Thirteenth Amendment is a complete reversal of Chief Justice Marshall's well-known opinion in Loughborough v. Blake.

All the treaties for the acquisition of territory on the continent of North America have provided that the people should be incorporated into the Union, or admitted to the right of citizens, and some of them have professed in terms to extend the limits of the United States. The joint resolutions for the annexation of Hawaii may, perhaps, have the same effect, for they declared that the islands be and they are hereby annexed as a part of the territory of the United States." But the recent treaty with Spain makes no such provision. It merely cedes Porto Rico and the Philippines to this country without any stipulation in regard to the relation in which the islands or their inhabitants shall stand towards the United States. In fact, the ninth article- after providing that Spanish subjects, natives of the peninsula and residing in the ceded territory, may preserve their allegiance to the crown of Spain or renounce it substitutes for the clause in earlier treaties that in the latter case they shall acquire or be admitted to the rights of citizens of the United States, the provision that they shall be held "to have adopted the nationality of the territory in which they may reside," and adds: "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the congress." The power of congress, therefore, with respect to them, whether that power be the result of our power to acquire or of the constitutional power to dispose of and make all needful rules and regulations, etc., is unlimited.

But it is contended by the theory of some that immediately upon the acquisition of territory by the United States the Constitution ex proprio vigore is extended to that territory. No authority will be found anywhere in the rulings of the courts to support this proposition. It depends for its vitality upon certain dicta to be found here and there in cases discussed by the Supreme Court. We believe that in all of the cases wherein such dicta is to be found they dealt with the law in places where the constitutional power of congress had been limited. In an early case Chief Justice Marshall decided that territory annexed did not

ipso facto derive rights from the Constitution. Its only powers, he said, were those "stiplated in the treaty" or granted by "its new master" (1 Pet. 542).

Mr. Justice Nelson, in a subsequent case (9 How. 252), suggested a patent reason therefor. He said: "Territories are not organized under the Constitution. They are the creations exclusively of the legislative department of the government, and subject to its supervision and control." If territories are neither created, nor organized, nor supervised under authority of the Constitution, how can it be urged that they acquire all rights from the Constitution ex proprio vigore?

| With respect to the cases cited by those claiming this doctrine, it may be said further that even if they furnish decisions instead of opinions — mere orbiter dicta - they would not be decisive of the question now under consideration. They related to an entirely different condition of things from that now. presented: (1) They all had to do with territory belonging to the United States acquired for the purposes of statehood and with respect to which the general and plenary power of congress had been modified by treaty stipulations; (2) they all had to do with territory over which congress had legislated, provided a code of laws, and so far as might be extended the Constitution.

IT

T cannot be expected that in the brief time allowed me I should enter into any general discussion of the important subject announced. I may, however, properly in these limits seek to point out some of the defects in our divorce laws, and also to suggest some of the amendments to our statutes, and changes in our practice which occur to me as calculated to protect the rights of individuals and subserve the public interests. My aim is to speak as a member of this association and as an Ohio lawyer to Ohio lawyers upon the statutes of Ohio and the practice of the courts under these statutes. A few elementary principles, supposed at least to be undisputed, will be sufficient by the way of introduction. Mr. Bishop has, in the preface of his original work on the subject, stated as follows: