§ 62. The Mormon Church Case; Justice Bradley's opin ion. Many of the cases referred to in the preceding notes, including Chief Justice Marshall's decision in the Canter case, in regard to the extensive powers possessed by Congress over the territories had been decided prior to 1889, but some points still remained to be cleared up when the confiscation acts passed by Congress in regard to the Mormon Church were brought before the Supreme Court for adjudication.1

The acts were of such a nature that, had they affected property within the limits of any State, they would unquestionably have been declared unconstitutional. They affected, however, property in territory which had been acquired by the United States from Mexico, and which had never possessed statehood. The question of the extent of Congressional power over the territories thus being involved, Mr. Justice Bradley availed himself of the opportunity to express the opinion of the court as to the status of such territories in upholding the acts, as follows:

"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 belonging to the United States. It would be absurd to hold that the United States has power to acquire territory and no power to govern it when acquired. . . Doubtless Congress in

§ 62.

1 The acts of Congress referred to in the Mormon Church case are as follows:

Large, 501), U. S. Revised Statutes, §5352 in regard to polygamy. The Edmunds act amending § 5352 of the Revised Statutes passed March 22, Organic act organizing a terri- 1882, (22 U. S. Statutes at Large, 30). torial government of Utah, Sep- Act of February 19, 1887, making tember 9, 1850, (9 U. S. Statutes at additional provisions as to the prosLarge, 453), and other acts supple-ecutions of polygamy and by mental thereto. "An act to punish §§ 13, 17 and 26, which are quoted and prevent the Practice of Polygamy in the Territories of the United States and other Places and disapproving and annulling Certain Acts of the Legislative Assembly of the Territory of Utah" passed July 1, 1862, (12 U. S. Statutes at

at length on pp. 7-9, 136 U. S. Rep., confiscating the property of the Mormon Church which was known as the Church of Jesus Christ of Latter-Day Saints. (24 U. S. Statutes at Large, 637-641.)

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 these 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.'

§ 63. Subsequent cases involving same point. The doctrine laid down in Murphy vs. Ramsey1 and the Mormon Church case, that the power of the United States to govern the territories is plenary has been constantly affirmed and followed by the Supreme Court. Chief Justice Waite, and Justices Matthews, Bradley, Gray and Harlan, as well as others, have delivered, and concurred in, opinions sustaining this plenary power. There is not room to quote all of these decisions and opinions, but most of them will be found in the notes to section 61. It is proper, however, to refer to the opinion of Mr. Justice Gray in Shively vs. Bowlby, in which he says: "By the Constitution, as is now well settled, the United States, having rightfully acquired the Territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and state, over all the Territories, so long as they remain in the territorial condition." 3

There seems to be no doubt therefore that Congress can legislate for the territories in a different manner, and with far greater power than it can legislate in regard to matters affecting states.

§ 64. Constitutional limitations, or limitations by fundamental principles.-In the closing sections of the last chapter, the theory of limitations by fundamental principles was discussed1; the basis of that theory can be found in the decisions of the Supreme Court which have been cited in the notes to the last two sections.

After citing Mr. Justice Matthews in Murphy vs. Ramsey, Mr. Justice Bradley said, in the Mormon Church case already cited: "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 these 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." Chief Justice Chase declared in Clinton vs. Englebrecht: "The theory upon which the various governments for portions of the territory of the United States have been organized, has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of National authority, and with certain fundamental principles established by Congress.'

§ 65. Justice Harlan's opinion.-In McAllister vs. United States,1 Mr. Justice Harlan, in declaring that territorial courts were not subject to the limitations in the Constitution said that "The whole subject of the organization of territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive and the manner in which they may be removed or suspended from office, was left, by the Constitution, with Congress under its plenary power over the Territories of the United States. How far the exercise of that power is restrained by the essential principles upon which our system of government rests, and which are embodied in the Constitution, we need not stop to inquire; though we may repeat what was said in Mormon Church vs. United States." He also followed the opinion of Mr. Justice Bradley as expressed in the Mormon Church case and quoted in section 62 of this volume.

§ 66. General summary of views.-To-day, while many of our most distinguished counsel are engaged in arguing these

2 Murphy vs. Ramsey, U. S. Sup. | Sup. Ct. 1871, 13 Wallace 434, p. 441, Ct. 1885, 114 U. S. 15, 42, MAT- CHASE, Ch. J. THEWS, J.

3136 U. S. 1, p. 42, and see § 62 ante.

$ 65.

1 McAllister vs. United States, U. S. Sup. Ct. 1891, 141 U. S. 174,

Clinton vs. Englebrecht, U. S. p. 188, HARLAN, J

questions before the Supreme Court, which tribunal may decide them by divided opinions, as has happened in many cases involving political questions, it is impossible for the author of a text-book to predict in advance what the decision of that court will be, and it would be highly presumptuous on his part to declare what it should be; all that the author can do under such circumstances, therefore, is to call the attention of his readers, and those examining this subject, to the cases which have already been decided, and those which are now under consideration bearing upon this question.1

$67. Government of territories as affected by treaties of cession. So far we have only referred to the right of the United States Government to govern territory under provisions of the Constitution, and by virtue of its inherent power to do so as an attribute of sovereignty and nationality. There are times, however, when the right to govern is affected by clauses or stipulations in a treaty by which the territory is ceded to the United States.

Questions arising under those stipulations do not form a part of the subject-matter of this volume; they will be considered in their proper place as a part of the effect of cessions of territory and change of sovereignty upon personal rights and liberties and upon laws and customs of the ceded territories. There are, however, a few specific instances which will be noted in this volume.

§ 68. Special clauses in treaty with Spain of 1898.—The right of the United States to govern the territories recently acquired from Spain will be complicated, so far as decisions. of the pending cases already referred to are concerned, by the final clause in the ninth Article of the Treaty of Paris, which provides that the civil and political rights of the native inhabitants of the ceded territory shall be determined by the Congress of the United States.1

Undoubtedly when the United States is obliged to accept

§ 66.

1 See cases collated in notes under §§ 61a-h, ante, since decided. § 68.

1The civil rights and political status of the native inhabitants of the territories hereby ceded to the

United States shall be determined by Congress." Article IX. Treaty with Spain, December 10, 1898, 30 U. S. Stat. at Large, p. 1759, and see treaty for other special clauses as to rights of inhabitants to renounce or retain allegiance.

territory as a part of an indemnity, or to definitely establish the title of the United States to territory conquered in war, the United States has the right to decline to accept the territory except under such conditions as it is willing to receive it; when a treaty, therefore, contains a stipulation that Congress shall determine the civil and political status of the inhabitants of territory so accepted, it must be admitted that the power of Congress to regulate, fix and determine that status shall not be limited by the same rules as limit Congressional action in regard to matters within the domain of the original States, or those which have been admitted to the Union on an equal basis. Unless the United States has the right to so qualify its acceptance of territory it might be placed in the position of being obliged to give full political rights to a population entirely diverse in nature, in some respects undesirable, and in any event unaccustomed to our methods of government.

§ 69. States' Rights and anti-expansion. The States' Rights School and the anti-expansionists have certain elements in common, although they by no means constitute the same class. The States' Rights principles which were developed to the highest degree in the Southern States were by no means antagonistic to the acquisition of territory, for it was largely due to the Southern influence that our greatest acquisitions were made.

In so far, however, as limitations are placed upon the general government, the States' Right school and the anti-expansion school are almost identical; ever since the organization of our government there has been a faction, not necessarily limited to any particular part of the country, but always appearing whenever any acquisition was under consideration, which has opposed the extension of the boundaries of the United States. Under the leadership of Senator Pickering, it tried to prevent the purchase of Louisiana;1 the arguments, § 69.

shire and White of Delaware,

1 The Louisiana Purchase, by Representatives Griswold of ConBinger Hermann, Washington, Gov- necticut and Griffin of Virginia, ernment Printing Office, 1898. See all of whom expressed as their page 37 for views of Senator Pick- | opinion that the annexation of ering of Massachusetts, Macy of Louisiana and its subsequent Connecticut, Plumer of New Hamp- incorporation into the Union as