CHAPTER XIX

GOVERNMENT OF THE TERRITORIES AND DEPENDENCIES

Power of Congress over the Territories.-The Constitution expressly confers upon Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. In dealing with the territories the powers of Congress are general or residuary in character, whereas when it legislates for that part of the country which has been erected into states, its powers are specifically enumerated. Congress, therefore, may establish practically any form of government in the territories that it chooses. It may, if it wishes, set up therein a military government or it may establish civil government with such limitations and exceptions as it may wish. In the latter case it may allow the inhabitants a legislative assembly for purposes of local legislation, or Congress may legislate directly for them itself. And in case it permits the inhabitants to have a legislative assembly of their own and to enact their own laws, Congress may veto or modify any law passed by such legislature. Indeed, says the Supreme Court, Congress may make valid an invalid act passed by a territorial legislature as well as declare invalid a valid act passed by it.

Does the Constitution Extend to the Territories?—A subject much discussed, especially at the time of the acquisition of Porto Rico and the Philippines, was whether such provisions Govt. U. S.-24

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of the Constitution as were applicable extended of their own force to new territories immediately upon the establishment of American sovereignty over them; that is, whether the Constitution "follows the flag" or whether its provisions apply only when extended by act of Congress. One party asserted that such provisions go wherever the sovereignty of the United States goes, that the government cannot be carried to any new territory unless accompanied by the Constitution from which it derives its authority, and that Congress has no power to withhold such provisions as are applicable. The other party maintained that the Constitution was established only for the people of the United States; that whenever new territories have been acquired, Congress has extended such provisions as it saw fit; and that Congress is unlimited as to its power in dealing with the inhabitants of such territories. The Supreme Court in the famous Insular Cases, decided in 1900 and 1901, upheld the latter view and ruled that for all practical purposes the territories of the United States are completely subject to the legislative authority of Congress, and that it is not even restricted by those provisions of the Constitution which were adopted for the protection of individual liberty. In practice Congress has always extended to the domestic territories such provisions of the Constitution as were applicable, thus putting the inhabitants upon the same footing as those of the states so far as the enjoyment of civil rights are concerned, but not as to political rights. So far as the insular territories are concerned, it has also extended most of the provisions relating to civil rights, though in the case of the Philippines a few safeguards such as the right of indictment by grand jury, trial by jury, and the right to bear arms have been withheld.

The Origin of the Territorial System.-Before the Con

THE ORIGIN OF THE TERRITORIAL SYSTEM

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stitution was adopted, Congress had acquired by cession from certain of the original states a vast domain of territory north of the Ohio River, and later it acquired a considerable domain lying south of the Ohio (p. 159). One of the conditions upon which the territory north of the Ohio was ceded, was that Congress should form the territory into distinct republican states which should be admitted to the Union on an equal footing with the old states. It was felt, however, that the territory in question should be put through a sort of preparatory stage before being erected into states; that is, it should be held in a state of dependency until the population was sufficiently numerous to maintain a state government and the inhabitants had acquired sufficient political capacity to manage their own public affairs.

The Northwest Territory.-By the famous Ordinance of 1787, as reënacted and slightly modified two years later (after the adoption of the Federal Constitution), Congress provided a scheme of government for the northwest territory which was in force for many years. The Ordinance provided for two grades of government: one for the territory before its population should amount to 5,000 inhabitants; the other for the territory thereafter. The principal difference was that in the former case the territory was to have no local legislature of its own, while in the latter it was to have a legislative assembly. The scheme of government provided in the beginning consisted of a governor, a secretary, and three judges, appointed by the President. Although no legislature was provided, the governor, secretary, and judges were empowered, not to make new laws, but to select such laws from the statutes of the old states as were suitable.

When the population had reached 5,000 inhabitants, the territory was given the second grade form of government,

that is, it was allowed a local legislature, the lower house of which was elected by the inhabitants on the basis of a restricted suffrage, the upper house or council to be appointed by the President from a list nominated by the lower house. The territory was now allowed to send a delegate to Congress with a right to a seat in that body, but no right to

vote.

The scheme of government thus provided for the northwest territory became the model for the later territorial governments. It was introduced into the southwest territory and later to the territory acquired west of the Mississippi River.

The Organized Territories: Hawaii and Alaska.The territories and dependencies of the United States may be grouped into two classes: the organized and the unorganized. A territory of the first class is said to be

organized" because it has its own local legislature, both houses of which are elected. At present the only territories of this class fully included as parts of the United States are Hawaii1 and Alaska,2 but since most of the states were organized territories before being admitted to the Union,

1 The Hawaiian Islands were annexed to the United States in July, 1898, by a joint resolution of Congress after a treaty of annexation had been rejected by the senate. The senate of Hawaii is composed of fifteen members, the house of thirty; ability to speak, read, and write the English or Hawaiian language is required of voters; the governor may veto special items in appropriation bills; and in case the legislature fails to pass appropriation bills to pay the necessary expenses for carrying on the government and meeting its obligations, the treasurer may, with the approval of the governor, make such payments, for which purpose the sums appropriated in the last appropriation bills shall be deemed to have been reappropriated; the purpose being to prevent the legislature from causing deadlocks.

2 For Porto Rico and the Philippines, see pages 374-379.

GOVERNMENT OF FULLY ORGANIZED TERRITORIES 373 this kind of government is of more than ordinary interest to the student of civics.

Executive.—In a fully organized territory there is a governor who is appointed by the President with the consent of the senate for a term of four years, and who enjoys the usual powers of a state executive. The appointment is usually made from the residents of the territory, though in a few cases outsiders have been appointed. There is also a secretary who keeps the records of the territory, compiles and publishes the acts of the legislature, and serves as governor during the absence or disability of the latter official. Other administrative officers of the territory are the attorney-general, treasurer, commissioner of public lands, superintendent of public education, surveyor, and auditor.

The Legislature is composed of two houses, both of which are popularly elected. Regular sessions of the legislature are held every two years and are limited to sixty days, though the governor may call extraordinary sessions with the approval of the President of the United States.

The territorial legislature is empowered to enact laws in respect to all rightful subjects of legislation not inconsistent with the laws and Constitution of the United States. Congress, however, has from time to time imposed various limitations upon the power of the territorial legislatures, and has shown a tendency to increase the restrictions, especially in regard to financial matters. Congress may veto any act of a territorial legislature.

Judiciary. For the administration of justice, a fully organized territory has a supreme court, a number of district courts, and such inferior courts as the legislature may create. The judges of the higher court are all appointed by the President of the United States for a term of four