elected by them,' Congress did not hesitate, in the original organization of the territories of Louisiana, Florida, the Northwest Territory and its subdivisions of Ohio, Indiana, Michigan, Illinois and Wisconsin, and still more recently in the case of Alaska, to establish a form of government bearing a much greater analogy to a British crown colony than a republican State of America, and to vest the legislative power either in a governor and council, or a governor and judges, to be appointed by the President. It was not until they had attained a certain population that power was given them to organize a legislature by vote of the people. In all these cases, as well as in Territories subsequently organized west of the Mississippi, Congress thought it necessary either to extend the Constitution and laws of the United States over them, or to declare that the inhabitants should be entitled to enjoy the right of trial by jury, or bail, and of the privilege of the writ of habeas corpus, as well as other privileges of the Bill of Rights."

Mr. Justice White delivered a separate opinion, in which he concurred in the result reached by Mr. Justice Brown, but in which he laid down the following propositions (p. 289):

"Every function of the government being derived from the Constitution, it follows that that instrument is everywhere and at all times potential in so far as its provisions are applicable. The Constitution has undoubtedly conferred on Congress the right to create such municipal organizations as it may deem best for all the territories of the United States, whether they have been incorporated or not, to give to the inhabitants as respects the local governments such degree of representation as may be conducive to the public well being, to deprive such territory of representative government if it is considered just to do so, and to change such local government at discretion. As Congress in governing the territories is subject to the Constitution, it results that all the limitations of the Constitution which are applicable to Congress in exercising its authority necessarily limit its power on this subject."

Mr. Justice Shiras and Mr. Justice McKenna concurred in the opinion of Mr. Justice White, and Mr. Justice Gray also concurred with Mr. Justice White, in a separate opinion in which he said (p. 345):

"The cases now before the court do not touch the authority of the United States over the territories, in the strict and technical sense, being those which lie within the United States, and the territories of Alaska and Hawaii; but they relate to territory, in the broader sense, acquired by the United States by war with a foreign State. . The civil government of the United States cannot extend immediately, and of its own force, over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief. Civil government cannot take effect at once, as soon as possession is acquired under military authority, or even as soon as that possession is confirmed by treaty, it can only be put in operation by the action of the appropriate political department of the government at such time and in such degree as that department may determine. There must, of necessity, be a transition period. In a conquered territory, civil government must take effect either by the action of the treaty-making power, or by that of the Congress of the United States. . So long as Congress has not incorporated the territory into the United States neither military occupation nor cession by treaty makes the conquered territory domestic territory, in the sense of the revenue laws. But those laws concerning 'foreign countries' remain applicable to the conquered territory until changed by Congress. If Congress

is not ready to construct a complete government for the conquered territory, it may establish a temporary government, which is not subject to all the restrictions of the Constitution."

Chief Justice Fuller and Justices Harlan, Brewer and Peckham dissented, the Chief Justice and Mr. Justice Harlan writing dissenting opinions. None of the opinions received the support of a majority of the court. The conclusion of Mr. Justice White, in which Mr. Justice Shiras, Mr. Justice McKenna and Mr. Justice Gray substantially concurred, while not strictly a dissent from the opinion of Mr. Justice Brown, was reached by a different process of reasoning and can only be regarded as a separate opinion on the subject. Both it and the opinion of Mr. Jus

tice Brown seem to have been modified by subsequent decisions.

The subject next came up in Dorr v. United States, the question being, as stated by Mr. Justice Day, who delivered the opinion, whether in the absence of congressional enactment giving the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where a demand for a jury trial made by the defendant and refused by the courts of the Islands. After referring to the cases of DeLima v. Bidwell and Downes v. Bidwell, Mr. Justice Day said (p. 140):

"It may be regarded as settled that the Constitution. of the United States is the only source of power authorizing action by any branch of the federal government.

. . It is equally well settled that the United States may acquire territory in the exercise of the treaty-making power by direct cession as the result of war, and in making effectual the terms of peace; and for that purpose has the powers of other sovereign nations."

The Justice continued (p. 142): "While Congress may make laws for the government of territories, without being subject to all the restrictions which are imposed upon that body when passing laws for the United States, considered as a political body of States in union, the exercise of the power expressly granted to govern the territories is not without limitations. In every case where Congress undertakes to legislate in the exercise of the power conferred by the Constitution, the question may arise as to how far the exercise of the power is limited by the 'prohibitions' of that instrument. The limitations which are to be applied in any given case involving territorial government must depend upon the relation of the particular territory to the United States, concerning which Congress is exercising the power conferred by the Constitution. That the United States may have territory, which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered, giving power over the territories, and is sanctioned by the opinions of the justices concurring in the judgment in Downes v. Bidwell. Until Congress shall see fit to incorporate

61 182 U. S. 244.

territory ceded by treaty into the United States, we regard it as settled by that decision that the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation."

This reached the great and vital question. It decided that "ceded territory" is of two kinds; that which is incorporated into the United States, and that which is not.

Mr. Justice Day concluded this portion of his opinion°2 as follows: "The power to govern territory does not require Congress to enact for ceded territory, not made a part of the United States by congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated."

The plain lesson of this decision is that the Constitution applies to ceded territory which has been incorporated into the United States, but it does not apply to territory which has been annexed but not incorporated into the Union, unless taken there by congressional action.

The question again came before the court in Rassmussen v. United States,63 in which Mr. Justice White, in delivering the opinion, said:

"Without attempting to examine in detail the opinions in the various cases, in our judgment it clearly results from them that they substantially rested upon the proposition that where territory was a part of the United States the inhabitants thereof were entitled to the guarantee of the Fifth, Sixth and Seventh Amendments, and the act or acts of Congress purporting to extend the Constitution were considered as declaratory merely of the result which existed independently by the inherent operation of the Constitution."

Later the Supreme Court announced: "The civil government of the United States cannot extend immediately and of its own force over conquered and ceded territory. Theoretically, Congress might prepare and enact a scheme

62 195 U. S. 149. 63 197 U. S. 516.

of civil government to take effect immediately upon the cession, but, practically, there always have been delays and always will be. Time is required for a study of the situation and for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the President as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the President as commanderin-chief. In the case of Cross v. Harrison, 16 How. 164, a situation of this kind was referred to in the opinion of the court, where it said: 'It (the military authority) was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the Government' (pp. 193, 194). The authority of a military government during the period between the cession and action of Congress, like the authority of the same government before the cession, is of large, though it may not be of unlimited extent. ' '84

Summing up the result of the decisions on this important and most controverted question, the following doctrine seems to be established. Foreign territory acquired by the United States is subject to two classifications: First, territory which is incorporated into the United States. This is subject to the provisions of the Constitution, and its people are entitled to its benefits, including the Bill of

04 Santiago v. Nogueras, 214 U. S., 260, 265.