The arguments and opinions in the Dred Scott case revealed the difficulties involved in a recourse to Article IV, Section III, for the power to govern acquired territories, and, accordingly, since that date we find the Supreme Court emphasizing the doctrine that the power is implied in the right to acquire, as well as arguable from the fact that inasmuch as the States have no authority in the premises the Federal Government must have it. Thus in United States v. Kagama" the court say: "The power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations conthe United States and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purpose of the instrument, as it is with its language, and I can have no hesitation in rejecting it. I construe this clause, therefore, as if it had read, Congress shall have the power to make all needful rules and regulations respecting those tracts of country out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions as well as of the jurisdictions as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it. It has been argued that the words 'rules and regulations' are not appropriate terms in which to convey authority to make laws for the government of the Territory. But it must be remembered that this is a grant of power to the Congress—that it is, therefore, necessarily a grant of power to legislate- and certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a legislature to make all needful rules and regulations respecting the Territory, is a power to pass all needful laws respecting it . . . Without government and social order there can be no property; for without law, its ownership, its use and the power of disposing of it cease to exist, in the sense in which those words are used and understood in all civilized States. Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that government is indispensable to provide for those needs, and the power is, to make all needful rules and regulations respecting the Territory, I cannot doubt that this is a power to govern the inhabitants of the Territory, by such laws as Congress deems needful, until they obtain admission as States."

11 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

cerning the territory and other property of the United States, as from the ownership of the country in which its territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else." In the Late Corporation of the Church of Jesus Christ v. United States12 the court say: "The power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property of the United States, it would be absurd to hold that the United States has the power to acquire territory, and no power to govern it when acquired." Here, though Section III of Article IV is indeed referred to, the power to acquire is clearly emphasized as the source of the power to govern. Finally in De Lima v. Bidwell,13 one of the so-called "Insular Cases," the court say: "It [the power to govern] is an authority which arises not necessarily from the territorial clause of the Constitution, but from the necessities of the case, and from the inability of the States to act on the subject."

12 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478. 13 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.

CHAPTER XXV.

THE EXTENT OF THE POWER OF CONGRESS TO GOVERN THE TERRITORIES.

$158. Power to Govern Absolute.

Since the time when the necessity for the exercise of the authority arose, there has been almost no question as to the absolute power of Congress to determine the form of political and administrative control to be erected over the Territories, and to fix the extent to which their inhabitants shall be admitted to a participation in their own government. Both by legislative practice and by judicial sanction, the principle has been from the first asserted that upon this matter the judgment of Congress is absolute. This, however, has not been construed to carry with it the absolute control of the federal legislature over the civil rights — the private rights of person and property of the inhabitants of the Territories. The extent of the power of Congress with respect to these will be discussed in the next chapter.

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The first act for the government of Territories, the "Ordinance for the Government of the Territory of the United States Northwest of the Ohio River," implied the doctrine that to Congress is given the complete discretion as to the form of government to be supplied, and that the inhabitants of this region are not, except by congressional grant, entitled to local self-government. The act provides that "as soon as there shall be five thousand free male inhabitants, of full age, in the district" they shall receive authority to elect a representative legislative assembly, and that as soon "as may be consistent with the general interest," the territory is to be subdivided into States, which are to be admitted into the Union on an equal footing with the original States. Until, however, the Assembly is established, all governing power is vested in a governor, a secretary and a court of three judges, all nominated by the President and appointed by and with the consent

1 By Act of August 7, 1789, the first Congress under the Constitution reenacted the ordinance of 1787, with the necessary change that the officers provided for by it should be nominated by the President and appointed by and with the advice and consent of the Senate.

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of the Senate. During this period, then, there was to be no local self-government whatever.

By the Act of May 26, 1790, the Southwest Territory was given a government in all respects the same as that erected for the Northwest Territory.

By the Act of October 31, 1803, passed for the government of the Louisiana Territory purchased from France, the President was given full power to take possession, using for this purpose such force as might be necessary, and "that, until the expiration. of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress, all the military, civil, and judicial powers exercised by the officers of the existing government of the same shall be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion.”

A formal remonstrance against the autocratic regimé thus established, as being in violation of the rights guaranteed by the treaty with France, was presented in behalf of the inhabitants of the Territory to the United States Senate, but no question as to the constitutionality of the action was raised.

The Act of March 3, 1819, for the taking possession and temporary government of Florida, was almost identical with the Louisiana Act of 1803.

Without attempting to trace further the legislation with reference to the government of the Territories it is sufficient to say that Congress has continued to the present day uniformly to consider this subject one to be dealt with absolutely at its own discretion.2

2 For legislation of Congress with reference to the Territories, see W. F. Willoughby, Territories and Dependencies of the United States: Their Government and Administration; Farrand, The Legislation of Congress for the Government of the Territories of the United States; Organic Acts for the Territories of the United States with Notes Thereon, Compiled from the Statutes at Large of the United States; also Appendix Comprising Other Matters Relating to the Government of the Territories. (Senate Document, No. 148, 56th Congress, 1st Sess.)

Maniped

Acting in pursuance of its powers, Congress has thus from time to time, as new territories have been acquired, established for them, by statutes, territorial governments. The latest of these statutes are those establishing civil rule in Porto Rico and the Philippines.

§ 159. Classes of Territorial Governments.

Generally speaking, it may be said that the governments thus created have been and are of four kinds.

First, there is the class of so-called Unorganized Territories, at present consisting only of Alaska. These have no local selfgovernment but are governed by officials nominated by the President and confirmed by the Senate, and have for their laws such as have been given them by Congress. To this class of autocratically governed territories should also possibly be added the Samoan, Wake, Midway, and Guano Islands which are ruled by officers of the military force of the United States.

Second, there is the whole class of Organized Territories that has included all of the continental territories of the United States except Indian Territory and Alaska, and at the present time embraces New Mexico, Arizona, and Hawaii. The chief executive and judicial officers of these governments are nominated by the President and confirmed by the Senate and hold office for four years. Their legislatures consist of two Houses, each elected by those inhabitants of the territories who have been given the suffrage by federal law. The law-making power of these bodies is extended by Congress " to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States." The laws passed in pursuance of this legislative authority are, of course, not only subject to scrutiny in the courts as to their constitutionality, but may be amended or annulled at any time by an act of Congress.

Third, there is the government of the island of Porto Rico which stands in a class by itself. According to the Foraker Act of April 12, 1900, its governor and chief executive officials and judges are nominated by the President and confirmed by the