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The first official document in which the term “United States" appears is the Declaration of Independence.

Later, when the Articles of Confederation were agreed to, the congress directed that they should be proposed to the legislatures of the states.

The preamble to the Articles of Confederation recites that they are proposed for the perpetual union of the original thirteen states, naming them.

On these facts as an historical basis it is contended that the Constitution was ordained for states alone, not for territories, and that since the term did not originally include any territories it is not fair or logical to so enlarge it at the present time.

It is doubtless true that, at least up to the time of the adoption of the Constitution, the term “United States” was a collective name for the states which had united for the purpose of throwing off the sovereignty of Great Britain, and did not, as then used, include anything but the area comprising such states.

When, however, the first congress under the Constitution met, the United States owned what was known as the Northeast Territory, ceded by New York and Virginia, and one of the first acts of that congress was to reënact the ordinance of 1787 for the government of that territory, with this declaration : "The said territory and the states which may be formed therein shall be and forever remain a part of the United States of America.”

Thus it will be seen that it was at least deemed advisable for congress to declare that this territory was a part of, though it already belonged to, the United States. If the Constitution extended ex proprio vigore over that territory, such action by congress was superfluous. The statutes of the United States show that for many years it was the uniform practice of congress to extend the laws of the United States to newly admitted states. This was done with North Carolina and Rhode Island, two of the original thirteen states, and with Vermont, soon after admitted; but it does not appear that in these acts any reference was made to the Constitution being so extended.

The laws made by congress and thus extended might be repealed and become of no further force or effect, but if the Constitution can only be extended to the territory by act of congress, if the only power to place it there be congress, would not a subsequent repeal of such act operate to withdraw the Constitution from such territory? By what other authority than the act is it there? The power to extend would certainly imply the power to withdraw. Whatever the congress has the power to enact it has the power to repeal. This particular point, however, has never received judicial consideration.

It is strenuously insisted that under the terms of the Treaty of Paris the status of Puerto Rico and the other islands and their inhabitants was expressly left to determination by congress and hence there need be no further controversy on any constitutional question, as, under the treaty, congress may do as it please.

This position seems clearly untenable in view not only of generally recognized principles, but also of numerous decisions of the Supreme Court of the United States.

In the case of the Cherokee Tobacco, 11 Wallace, 616-620, that court said:

“It need hardly be said that a treaty can not change the Constitution or be held yalid if in violation of that instrument. This results from the nature and fundamental principles of our government.”

To the same effect is Thomas vs. Gray, 169 C. S., 264.

In the case of Fong Yue Fing vs. U. S., 149 U. S., 698, the same court held that if congress passed a law inconsistent with a treaty pledge, the law will be enforced and not the treaty.

Many other cases might be cited, but the proposition seems clear that the status of our newly-acquired possessions and their inhabitants—so far as the power of congress extends—are precisely the same as though the Paris Treaty had made no reference to the subject of their disposition. No treaty can add to the powers of congress.

It has been assumed that Puerto Rico has been acquired with the intention of permanently holding it under the sovereignty of the United States.

There is not, I believe, any serious contention that Puerto Rico is not a territory in the same general sense that any other territory was when originally organized and before any congressional action with reference to the extension of the Constitution over it. True, some distinctions have been attempted and Puerto Rico is often referred to as a “dependency," the word being used as a synonym for "territory," and authority is found for this in the language of Mr. Justice Bradley in the case of Snow vs. U. S., 18 Wallace, 317, where he says, speaking for the court:

“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."

So that we are finally brought to the direct question-Does the Constitution extend er proprio vigore to the territories?

Upon the solution of this question the whole controversy depends and it may emphasize the importance of the point, at present, in view of a wide-spread public interest, to recall that the heated controversy as to the propriety of what is known as the Puerto Rican Tariff Bill turned almost wholly on this ques. tion.

Those who insist that congressional action is necessary before the express provisions of the Constitution apply in territories, contend “that Puerto Rico is a mere dependency of the United States and that congress has not only an inherent, but a constitutional, power to legislate without regard to any of the restraints or limitations of the Constitution regarding states."

While, as has been noted, various acts of congress had extended the laws of the United States over newly-admitted states, it was not until 1819 that congress ever passed an act specifically extending the Constitution over a territory; it was then done with reference to New Mexico. Mr. Webster took the position in the debate on that question that the Constitution could not be extended by congress or otherwise; that the Constitution applied to states and not to territories; that the only way to apply the ('onstitution to any territory was to admit it into the Union as a state, and to that extent and in that way alone could the Constitution be extended to new territory. Mr. Webster's great antagonist, Mr. Calhoun, took the other view.

It is further stated that the doctrine that the Constitution made for the states extends proprio vigore beyond the states was first introduced into American political controversy in 1850 in the debate in the senate over the admission of California and the creation of territorial governments for New Mexico and Utah.

The great authority of Benton, in his Thirty Years' View is cited in support of this. He says:

“A new dogma was invented to fit the case,” and adds: “History can not class higher than as a vagary of a diseased imagination this imputed self-acting and self-extension of the Constitution. The Constitution does nothing of itself—not even in the states for which it was made. Every part of it requires a law to put it into operation. No part of it can reach a territory unless imparted to it by act of congress."

This language is perhaps the strongest employed by the men of Benton's generation save that used by Webster, but the extreme view of the latter has been as effectually overruled as was Jefferson's on constitutional power to acquire territory. The real strength of this position can not be said to rest in judicial decisions, but rather in many acts of the first and early congresses constituting a contemporaneous construction of the Constitution which is entitled to most respectful consideration.

Among these acts may be mentioned the legislation referring to the Northwest Territory, to the newly-admitted states of North Carolina, Rhode Island and Vermont, and to the legislation of 1804 continuing preferential rates on certain goods at the port of New Orleans in clear violation of the Constitution, if applicable to the Territory of Louisiana.

Strongest of all the decisions by the “shock of arms" that the Constitution could not take slavery into the Territories.

Benton is, however, supported by respectable authority.

The case of Hepburn vs. Ellzey, 2 Cranch., 414, was a suit brought by a resident of the District of Columbia against a citizen of a state. The court held that the plaintiff was not, within the meaning of the clause of the Constitution relating to jurisdiction, a citizen of a state and therefore could not maintain his suit.

New Orleans vs. Winter, 1 Wheaton, 93, was a suit brought by a resident of a territory against a citizen of a state, and the court said:

"It has been attempted to distinguish a territory from the District of Columbia, but the court is of opinion that this distinction can not be maintained. They may differ in many respects, but neither of them is a state in the sense in which that term is used in the Constitution.”

In the case of Fleming vs. Page, 9 Howard, a question arose under the revenue laws as to whether Tampico in the year 1817, while in the military occupation of the forces of the United States, ceased to be a foreign country and as to whether or not goods imported into Philadelphia from Tampico were subject to the payment of duties or were entitled to be admitted free as from a domestic port. The court held that for the purpose of collecting revenue it was a foreign port, and said:

"For after Florida had been ceded to the United States, and the forces of the United States had taken possession of Pensacola, it was decided by the treasury department that goods imported from Pensacola before an act of congress was passed erecting it into a collection district and authorizing the appointment of a collector, were liable to duty; that is, that although Florida had by cession actually become a rt of the United States and was in our possession, yet under our revenue laws its ports must be regarded as foreign until they were established as domestic by an act of congress.”

The court further remarks:

"The department in no instance that we are aware of, since the establishment of the government, has ever recognized a place in a newly acquired country as a domestic port, from which the coasting trade might be carried on unless it had been previously made so by act of congress."

This case seems to look both ways, for, while holding congress must act as stated, it refers to the ceded territory as a "part of the United States."

In Kagawa vs. U. S., 118 U. S., 375, Justice Miller says, in effect: Power of congress, to make laws for territories and to organize their governments arises “not so much” from the clause in the Constitution as to making rules and regulations concerning the territory and other property of the United States, as from the ownership of the country in which the territories are, and from the right to exclusive sovereignty, which must exist in the national government and can be found nowhere else.

“The territorial governments owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified or repealed at any time by congress.”

The foregoing may be considered dictum, as the question was the right of congress to exercise jurisdiction over Indians living on reservations in a state to the exclusion of the state government.

One of the features of the case made by those who contest the self-acting expansion of the Constitution from a purely legal

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