172. Duties of President Prior to Congressional Action. The absolute power of Congress to determine the political or governmental rights in annexed territories constitutionally attaches from the moment that they become subject to the sovereignty of the United States. Until Congress exercises this right, however, and provides them with governments and laws, they remain under the control of the federal executive. This duty devolves upon the President as a result from his general obligation to see that the authority and peace of the United States are everywhere maintained throughout its territorial limits. Thus, after the treaty of peace with Spain in 1899, Porto Rico remained under the control of the President until by the act of April 12, 1900, known as the "Foraker Act," Congress provided a government for that island. So also it was by an exercise of the same authority that the President, after the same treaty of cession, appointed commissions for the government of the Philippine Islands.

12

On March 2, 1901, Congress enacted '2 that "All military, civil, and judicial powers necessary to govern the Philippine Islands. shall, until otherwise provided by Congress, be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct for the establishment of civil government and for the maintaining and protecting the inhabitants of said islands in the free enjoyment of their title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her, or that uncivilized tribes may have defied her will, did not affect the validity of her title. She granted the islands to the United States, and the grantee in accepting them took nothing less than the whole grant. If those in insurrection against Spain continued in insurrection against the United States, the legal title and possession of the latter remained unaffected. We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking to subjugate the people of a foreign country, but on the contrary, that it is preserving order and suppressing insurrection in the territory of the United States. It follows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable."

12 This was as an amendment to the act making appropriation for the' support of the army for the fiscal year ending June 30, 1902.

liberty, property, and religion." This act changed the basis of the Philippine government from a presidential to a congressional one, but did not change its form, the President being given by Congress practically the same powers that before that time he had exercised by virtue of his position as Chief Executive.

By the Act of July 1, 1902, entitled "an act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes," Congress not only approved and ratified the previous acts of the Philippine Commission, but went on to define the general lines of action that body should take, especially with regard to the introduction of local self-government as fast as circumstances should warrant. The constitutional source of the power of the United States to establish and maintain governments over territories not annexed to itself but in the possession of its military forces is derived both from the expressed power given it to declare and wage war, and from the fact of its exclusive authority in all that relates to international affairs, which fact, as we have scen, properly implies the right, in the absence of express prohibitions, to exercise all the powers possessed by sovereign States generally.

From this same source was derived the power of the United States to administer Cuba, and to establish consular courts in oriental countries.13

13 See chapter XXXV.

CHAPTER XXIX.

THE DISTINCTION BETWEEN INCORPORATED AND UNINCORPO.

RATED TERRITORIES.

§ 173. Limitations Upon Powers of Congress.

The Constitution of the United States contains a number of express limitations upon the federal legislative power. In addition to those contained in the first ten amendments relative to freedom of religion, speech, and press, the quartering of troops, the right of the people to assemble, to petition, to keep and bear arms, to be secure against unreasonable searches and seizures, to presentment or indictment by jury, to speedy trial, to juries in civil suits, to immunity from excessive bail and fines and cruel and unusual punishments, etc., it is elsewhere provided in the Constitution that all duties, imposts, and excises shall be uniform throughout the United States, that the writ of habeas corpus shall not be suspended, except under certain specified circumstances, that no bill of attainder or ex post facto law shall be passed, no capitation or other direct tax laid except in proportion to population, no duty laid upon goeds exported from a State, no commercial preferences given to the ports of one State over those of another, no money drawn from the treasury but in consequence of an appropriation made by law, no title of nobility granted, etc. The Thirteenth Amendment also declares that "neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

When legislating for the States or for their inhabitants these limitations have of course to be observed. The question whether the same is true when Congress is legislating for the territories and their populations has now to be examined.

In the preceding chapters we have learned the sources whence is derived the power of Congress and of the President to govern annexed Territories. We have learned that by mere military oc

cupation a territory, though for the time being subject to the de facto control of the President as Commander-in-Chief of the army and navy, is not annexed to the United States, that is, does not become permanently subject de jure as well as de facto to its sovereignty. Only by treaty, or by statute, or by joint resolution of Congress, may this annexation be effected.

§ 174. Possible Status of Territories after Annexation.

When thus annexed, however, a district may, according to the recent "Insular Cases," find itself, or by subsequent statute be placed, in any one of the following categories.

1. A State of the Union.

2. A "Territory" incorporated into the Union. This Territory may be either "unorganized," as for example is Alaska, or organized," examples of which are at present New Mexico, Arizona and Hawaii.

3. A Territory appurtenant to, that is, subject to the sovereignty of the United States, but not "incorporated," constitutionally speaking, into the Union of States and Territories for the benefit and protection of whose inhabitants the Constitution was adopted.

§ 175. Unincorporated Territory.

Such "appurtenant," dependent or unincorporated territory is, of course, from the international point of view a part of the United States, but is not, as we shall see, a part thereof in the

1 This international use of the term United States is considered in the case of De Geofroy v. Riggs (133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642), in which the question involved was whether the terms of a treaty giv. ing to citizens of France the right to inherit an interest in real estate in 'States of the Union," were applicable to the District of Columbia or only to the States of the Union. The use of the phrase "States of the Union" would upon its face indicate that only the States and not the extra-State areas were concerned, yet the court held that the treaty was to be construed as generally applicable. In its opinion the court said: "This article is not happily drawn. It leaves in doubt what is meant by "States of the Union." Ordinarily these terms would be held to apply to those political communities exercising various attributes of sovereignty which compose the United States, as distinguished from the organized municipalities known as Territories and

stricter constitutional sense in which the term is used in the Constitution with reference to certain limitations which that instrument lays upon the legislative powers of Congress.

§ 176. Distinction between Incorporated and Unincorporated Territories.

With respect to the form of government that may be established and maintained by Congress over the Territories, there is no distinction between an incorporated and an unincorporated Territory. In either case the congressional authority is absolute. With respect, however, to the civil or private rights of the inhabitants of the Territories, the distinction is very important. For if it be that a Territory is merely appurtenant to, but not "incorporated into the United States, Congress in its legislation regarding it is bound by but few of the limitations which apply in the case of incorporated Territories, whether organized or unorganized.

This distinction between incorporated and unincorporated territory is one that was not clearly made until the decision of the the District of Columbia. And yet separate communities, with an independent local government, are often described as States, though the extent of their political sovereignty be limited by relations to a more general government or to other countries. (Halleck on Int. Law, chap. III, §§ 5, 6, 7.) The term is used in general jurisprudence and by writers on public law as denoting organized political societies with an established government. Within this definition the District of Columbia, under the government of the United States, is as much a State as any of those political communities which compose the United States. Were there no other territory under the government of the United States, it would not be questioned that the District of Columbia would be a State within the meaning of international law; and it is not perceived that it is any less a State within that meaning because other States and other territory are also under the same government."

After referring to the case of De Geofroy v. Riggs, Justice Brown in the individual opinion which he rendered in Downes v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088), observes: "In dealing with foreign sovereignties, the term 'United States' has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal Government, wherever located. In its treaties and conventions with foreign nations, this government is a unit. This is so, not because the Territories comprise a part of the government established by the people of the States in their Constitution, but because the Federal Government is the only authorized organ of the Territories, as well as of the States in their foreign relations."