The Constitution confers on the Government of the Union the power of making war and of making treaties; and it seems, consequently, to possess the power of acquiring territory, either by conquest or by treaty. If the cession be by treaty, the terms of that treaty must be obligatory, for it is the law of the land. And if it stipulates for the enjoyment by the inhabitants of the rights. privileges, and immunities of citizens of the United States, and for the admission of the territory into the Union, as a State, these stipulations must be equally obligatory. They are within the scope of the constitutional authority of the Government, which has the right to acquire territory, to make treaties, and to admit new States into the Union.

Those persons who deny the power of Congress for which I contend lay great stress upon section 8, article I, which declares that "all duties, imposts, and excises shall be uniform throughout the United States," and section 9 of the same article, which says that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another." The plain and conclusive construction of these provisions is that they apply to the States, and do not apply to Territories, except as they are made to apply by some act of Congress or by the terms of the treaty under which the territory is admitted into the Union.

We are often pointed to some organized Territory and asked if Congress can lay a different duty or impost there from that of any State; and if not, how can Congress exercise the power in the Philippines, or Porto Rico, or Cuba, or Hawaii? The answer is obvious and simple; and herein will be found a legislative construction of our Constitution which has been given whenever any new territorial government has been erected in the Union. By examining the statutes it will be found that. with two exceptions, I believe, to be noticed later, Congress has in providing organic acts for the Territories brought them within the provisions of the act of 1787, or the Constitution of the United States; so that in coming into the Union they came with their rights and immunities fully defined. If it be true that these provisions by their own force extended at

once to any newly-acquired territory, no such legislation was needed.

It is because Congress guaranteed these rights and immunities by the acts of admission into the Union, and not because of any inherent rights, or rights under the Constitution or previous laws, that no preferential legislation can be made to apply to them. To make this clear, attention is asked to some of these laws for the admission of new Territories. When New Mexico was erected into a Territory in 1850, section 17 of the act enacted "That the Constitution, and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within said Territory of New Mexico as elsewhere in the United States." - California was admitted in the same year, as a State, and the act declared that she was "admitted on an equal footing with the original States in all respects whatever." She came in declaring that slavery should never exist within her boundaries. But Texas came in by the same act which admitted New Mexico; and the act declared that she should be admitted with or without slavery as she might by her constitution provide. Utah came in the same year, under like guarantees given New Mexico. And so, also, Colorado, Dakota, and Idaho, in 1861. In the act admitting Dakota the act governing New Mexico was extended over Dakota; but it was specially provided that slavery should not exist therein, and the act repealed all laws of New Mexico or of Congress establishing or recognizing slavery. The Constitution and laws of the United States were extended over Montana upon its admission, in 1864. And so, also, in the case of Wyoming. By act of May 2, 1890, Oklahoma was admitted. In that act certain of the statutes of the State of Arkansas relating to administration of government were extended over the Indian Territory. The Constitution of the United States and all laws thereof which prohibit crimes in any place within the jurisdiction of the United States (except the District of Columbia) were given effect in the Indian Territory, except in certain enumerated cases. the case of the Indian Territory the Constitution and laws were extended to it, but with important restrictions and exceptions. If, as is claimed, the Constitution

In

and laws of the United States are extended over acquired territory by their own force, how can Congress extend certain provisions and withhold others, as has been frequently done?

Alaska furnishes an example similar to that of the Indian Territory. In the case of Alaska it has been a part of the Union, -that is, the territory has belonged to the United States-for thirty-two years, and it has never yet been admitted into the Union under any form of territorial government. The act of 1884 constituted the territory a civil judicial district, and provided for the appointment of a governor, with very limited duties; a district court was provided for, with the necessary officers. Commissioners were given, by ap pointment of the President, with powers of justices of the peace under the laws of Oregon, where not in conflict with the

trict, except for medicinal, mechanical, and scientific purposes, was prohibited.

It was under this latter provision and certain regulations made by the President as to the sale of liquors that the case of Edleman v. United States (86 Fed. Rep. 456) arose, and which was decided in the Circuit Court of Appeals sitting in San Francisco. Edleman was indicted for selling liquors within the district. He was convicted, and appealed to the Circuit Court of Appeals. The appeal was heard by Justices Morrow, Gilbert, and Ross. It was contended that Congress had not the constitutional power to interfere with the right of a citizen to own and hold proper

William H. Seward - Negotiated the Purchase of Alaska

ty without distinction as to kind; that whisky is property; that Congress can not impose restrictions upon commerce prohibiting the sale of a particular commodity; that if Congress may regulate the sale of whisky as a police regulation, it can only enact laws applicable alike to all Territories. The court said, speaking through Mr. Justice Morrow :

The answer to these and other like objections urged in the brief of counsel for defendant is found in the now well-established

doctrine that the Territories of the United States are entirely subject to the legislative authority of Congress. They are not organized under the Constitution, nor subject to its complex distribution of the powers of government as the organic law, but are the creation, exclusively, of the legislative department, and subject to its jurisdiction and control. (Benner v. Potter, 9 How. 235, 242.) The United States, having rightfully ac quired the Territories, and being the only government which can impose laws upon them, has the entire dominion and sovereignty, national, municipal, federal, and state. (Ins. Co. v. Canter, 1 Peters, 511, 542; Cross v. Harrison, 16 How. 164, 193; Nat'l Bank v. Yankton Co., 101 U. S. 129, 133; Murphy v. Ramsey, 114 U. S. 15, 44; The Mormon Cases, 136 U. S. 1, 42, 43; McAllister v. U. S., 141 U. S. 174, 181; Shively v. Boweby, 152 U. S. 1, 48.) Under this full and comprehensive authority, Congress has unquestionably the power to exclude intoxicating liquors from any or all its Territories, or limit their sale under such regulations as it may prescribe. It may legislate in accordance with the special needs of each locality, and vary its regulations to meet the conditions and circumstances of the people. Whether the subject elsewhere would be a matter of local police regulation, or within State control under some other power, it is immaterial to consider. In a Territory all the functions of government are within the legislative jurisdiction of Congress, and may be exercised through a local government, or directly by such legislation as we have now under consideration.

When this case and the doctrine it lays down are considered it must be remembered that the court was dealing with Alaska as an unorganized Territory having no relation to the Union by any organic act as other Territories have been given. It may be that when a Territory has been admitted and the Constitution and laws of the United States have been extended over it, as in the case of Arizona or New Mexico, Congress cannot thereafter take away any of the fundamental rights thus vested in the people. But as applicable to a territory situated as is Alaska, over which the Government exercises sovereignty by virtue of having purchased or acquired by treaty all the rights of the former sovereign, and over which the Constitution and laws of the United States have not been extended, there can be no doubt of the soundness of this decision.

The situation in the Philippines is precisely met in an early case entitled Flem

ing . Page, reported in 9th of Howard, at page 278. Chief Justice Taney delivered the opinion of the Supreme Court of the United States. It arose during our war with Mexico. Our military forces were in possession of the port of Tampico, in the Mexican state of Tamaulipas. Certain goods were shipped from that port to the port of Philadelphia. In 1846, Congress passed a law reducing the duty on imports so that goods, the product of Mexico, shipped from Tampico to Philadelphia during our military occupation, were not subject to the duties prescribed by the act. The collector exacted the duties, and hence the suit. I will quote some passages from the opinion of the learned Chief Justice. He said:

The Mexican authorities had been driven out, or had submitted to our army and navy; and the country was in the exclusive and firm possession of the United States, and governed by its military authorities, acting under the orders of the President. But it does not follow that it was a part of the United States, or that it ceased to be a foreign country in the sense of which these words are used in the acts of Congress. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace. But this can only be done by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. ... He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits assigned to them by legislative power.

He then shows that as to other nations they were bound to regard the conquered territory as belonging to and part of the territory of the United States.

But yet, [he said] it was not a part of the Union. For every nation which acquires territory by treaty or conquest, holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States, while it was occupied by their arms, did not depend upon the laws of nations, but upon our own Constitution and acts of Congress.

But the boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest. They remained unchanged. every place which was out of the limits of the United States, as previously established

...

And

by the political authorities of the Government, was still foreign; nor did our laws extend over it.

He then shows that after Florida was ceded to the United States and our forces had taken possession of Pensacola, and Florida had become a part of the Union, goods imported from Pensacola were made to pay duties until an act was passed by Congress erecting it into a collection district. And so, also, was it held when Louisiana was purchased.

This case leads inevitably to the conclusion reached by Judge Morrow and his associates. It means and decides that until Congress has extended our Constitution and our laws over the Philippines no dutiable goods can come from those islands to our ports without paying the duties fixed by our laws. It means also that having acquired the Philippines these islands passed under the unrestricted sovereignty and control of the United States, and the Constitution and laws of this country will go into operation there so far, and so far only, as Congress shall from time to time declare.

66

If the Constitution and all the laws of the United States were extended over the Philippines after such treaty, without reservation or exception, unquestionably there could be no open door," and equally so there could be no preferential duties protecting the present States and Territories from the competing products of those islands. But what I say, and what, I think, rests upon abundant authority, is that the whole subject will be within the power of Congress, and it may exercise that power so as to allow all nations to trade in those islands on an equal footing with ourselves, which is what I understand by the "open door," and it may impose a duty on goods brought to this country from those islands. The whole subject, in my opinion, becomes one not of power, but of policy. I believe, also, that any other solution of the question would cast great doubt upon the wisdom of entering upon a policy of acquiring and governing remote regions of the world. By this solution we are left with free hands to legislate upon the broad plane of the highest and best interests of the Territories themselves, and with due regard to the varying

conditions by which they may be environed.

The argument might be greatly strengthened by citations from other decisions of the Supreme Court and by conducting the reader along the pathway of our past history in our dealing with the slavery question and with the Mormon, the Indian, and other questions relating to the Territories. How can we justify the compromise measures of 1820? How can the acts of Congress forbidding the owners of slaves from taking their property into Territories find a resting-place in the Constitution, unless it be under the power given to make all needful rules and regulations respecting the Territories and other property belonging to the United States?

It was said by the Supreme Court in Murphy v. Ramsey (114 U. S. 15-44) that "the constitutional power of Congress to

enact laws for the government of the Territories has passed beyond the stage of controversy to final judgment. The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants." In National Bank v. Yankton County, 101 U. S. 129, the Court said, "Congress has full and complete legislative authority over the people of the Territories and all 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."

But I forbear further argument. I think we may safely look to the Constitution of our country and to the interpretation it has received by the highest Court in the land to guide our footsteps. And this brings me to speak of the Oriental Problem and the Philippines.

T MATTERS little whether this be a tale of imagination or of the purest realism, a story concealing an autobiography or hovering in the realms of the ideal. Since Howells is about to prepare for us a novel without love, without hero experience, drawing his inspiration simply from the forces which move the universe to-day, we must suppose that he has found enough sentiment in our real life-for instance, in struggling journalism—to draw his romance thence, and to paint fitly the things which hinder or develop our poor humanity.

I know that I like to view things with my reporter's eye, as my critics are fond of saying,—and in this spirit I find in the depths of my heart the necessary tear which softens the hard road I am destined to climb. For the hour of nature's report

ers will come sooner or later, and Mr. Howells is there to prove it to you some day or other.

In a little book which I had the folly to lend, and so, naturally, lost, I read one day the history of a coincidence. The world is full of coincidences. There was a gentleman whose name began with F, who used only to make visits to a certain family on Fridays, far apart, and, strange to say, on that very day the cook was wont to serve plum-pudding to her master. Man and plum-pudding made their appearance at a fixed day and hour, despite the change of cooks. After that it is not surprising that my Christmas storytrue, like all Christmas stories should have its points of coincidence in two Christmas-days of different date.

They called her "L'Angelo."

This