Senate, and its legislature is composed of two houses, the upper of which consists of the six chief executive officials and five native Porto Ricans, and the lower of thirty-five members elected by popular vote.

Fourthly, and finally, there is the government of the Philippine Islands by means of a Commission appointed by the President and confirmed by the Senate under authority granted by act of Congress. Since 1907 there has been also a popularly elected legislative chamber.

§ 160. Constitutionality of These Governments.

The constitutionality of this legislation has never been seriously questioned.3

3 In the early case of Sere v. Pitot (6 Cr. 332; 3 L. ed. 240), decided in 1810, in its first reference to the power, the Supreme Court, without dissent, speaking through Marshall, after declaring the right of the United States to acquire and govern territory say: "Accordingly we find Congress possessing and exercising the absolute and undisputed right of governing and legislating for the Territory of Orleans. Congress has given them a legislature, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively."

In American Insurance Co. v. Canter (1Pet. 511; 7 L. ed. 242), decided in 1828, Marshall, after referring to certain provisions of the treaty by which Florida was acquired from Spain, says: "This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States . . They do not, however, participate in political power; they do not share in the government, till Florida shall become a State."

In Snow v. United States (18 Wall. 317; 21 L. ed. 784), decided in 1873, the court say: "The government of the Territories of the United States belongs primarily to Congress; and secondarily to such agencies as Congress may establish for that purpose. During the term of their pupilage as Territories, they are mere dependencies of the United States. Their people do not constitute a sovereign power. All political authority exercised therein is derived from the General Government. It is, indeed, the practice of the Government to invest these dependencies with a limited power of self-govern ment as soon as they have sufficient population for the purpose. The extent of the power thus granted depends entirely upon the organic act of Congress in each case, and is at all times subject to such alterations as Congress may see fit to adopt."

In the Dred Scott case, Taney, though otherwise emphasizing the limita tions upon the power of Congress over Territories, concedes that it has a full discretion with reference to the form of governments it may establish over

The plenary character of the legislative power of Congress in this respect is perhaps best stated in National Bank v. County of Yankton.* Chief Justice Waite, speaking for the court, says: "Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the territorial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States." Again, in Murphy v. Ramsay the court declare: "The people of the United States, as sovereign owners of the National Territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion, they are represented by the government of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restrictions as are exthem. He says: "The power to acquire, necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be established necessarily rested in the discretion of Congress. It was their duty to establish the one that would be the best suited for the protection and security of the citizens of the United States and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory, as to the number and character of its inhabitants, and the situation in the Territory. In some cases a government, consisting of persons appointed by the Federal Government, would best subserve the interests of the Territory, when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of eivil authority would be absolutely necessary to organize and preserve civilized society, and prepare it to become a State; and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of the citizen who night go there to reside or for any other lawful purpose. It was acquired by the exercise of this discretion and it must be held and governed in like manner, until it is fitted to be a State."

4101 U. S. 129; 25 L. ed. 1046.

$114 U. S. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47.

pressed in the Constitution, or are necessarily implied in its terms, or in the purposes and objects of the power itself; for it may well be admitted in respect to this, as to every power of society over its members, that it is not absolute and unlimited. But in ordaining government for the territories, and the people who inhabit them, all the discretion which belongs to legislative power is vested in Congress; and that extends, beyond all controversy, to determining by law, from time to time, the form of the local government in a particular Territory, and the qualification of those who shall administer it. It rests with Congress to say whether, in a given case, any of the people resident in the Territory, shall participate in the election of its officers or the making of its laws; and it may, therefore, take from them any right of suffrage it may previously have conferred, or at any time modify or abridge it, as it may deem expedient. The right of local self-government, as known to our system as a constitutional franchise, belongs, under the Constitution, to the States, and to the people thereof, by whom that Constitution was ordained, and to whom by its terms all power not conferred by it upon the government of the United States was expressly reserved."

In Late Corporation, etc., v. United States the foregoing decisions are cited and unqualifiedly approved.

There is in fact an unbroken line of judicial dicta upon this point. Even in the Dred Scott case, Taney, who would limit the legislative power of Congress over the Territories in other re spects, does not deny that as to the form of government to be established over them, Congress has full discretion. Upon this point the preceding opinions which we have quoted are cited by Taney with approval. He does, indeed, say that no power is given by the Constitution to the Federal Government to acquire territory to hold and maintain permanently as colonies, but admits, as we have seen, that territory may be annexed which is not immediately ready for statehood, and that until so fitted, the form of its government must necessarily lie in the discretion of Congress.

6136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.

In the opinion rendered by Justices White, Shiras, and McKenna and concurred in by Gray, in Downes v. Bidwell it is intimated that there may be unexpressed but inherent limitations upon the discretion of Congress in the establishment of governments for the Territories. After calling attention, in illustration of the plenitude of power of Congress in this respect, to the fact that Congress has established in the District of Columbia "a local government totally devoid of local representation in the elective sense, administered solely by officers appointed by the President, Con gress, in which the District has no representative, in effect acting as the local legislature, the opinion nevertheless goes on to say: "While, therefore, there is no express or implied limitation on Congress in exercising its power to create local governments for any or all of the Territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free governments which cannot be with impunity transcended Chuch of Jesus Christ v. United States, 136 U. S. 1, 10 Sup. Ct. Rep. 792; 34 L. ed. 478]. But this does not suggest that every express limitation of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution."

It is difficult for the author to follow the reasoning of the Justices as set forth in these sentences. It would seem that there is some confusion of the authority of Congress to create governments for the Territory, and its power to legislate regarding the private civil rights of their inhabitants. The reference to the Mormon Church case shows this, for that case had nothing to do with the governing powers of Congress. These governing powers are absolute, without any express, implied, or "inherent" limi

tations.

7182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

8

§ 161. Territorial Governments are Congressional Governments. The governments established in the Territories by Congress act as agencies of Congress, in the same sense that an administrative board acts as the agent of the law-making body that creates it. As such congressional agencies, the territorial governments are not considered to be parts of the General Government established or directly provided for by the Constitution. This point was early determined in American Insurance Co. v. Canter. In this case the point was raised that the territorial judges in Florida had been appointed for terms of but four years, whereas the Constitution provides that the judges of both the Supreme and inferior federal courts shall hold office during good behavior. In sustaining the validity of the territorial law in this matter, Marshall said: "These courts . . are not constitutional courts in which the judicial power conferred by the Constitution on the General Government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but was conferred by Congress in execution of those general powers which that body possesses over the Territories of the United States."

In Benner v. Porter the court say with reference to territorial governments: "They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and government of the territories, combining the powers of both the federal and state authorities. There is but one system of government or of laws operating within their limits, as neither is subject to the constitutional provisions in respect to state and federal jurisdiction. They are not organized under the Constitution, nor subject to its complex distribution of the powers

81 Pet. 511; 7 L. ed. 242.

99 How. 235; 13 L. ed. 119.