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Admission of States.

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new states out of such territory. This provision (Const. Art IV, 3, ¶ 1) does not specify the conditions under which new states shall be admitted; consequently Congress may impose such conditions as it sees fit. It may require that certain fundamental provisions be incorporated into the constitution. of the new state, that the state accept such boundaries as Congress may prescribe, and in general that any plan or policy which has the support of Congress be acceded to. But when a state has once been admitted, it is on a par, so far as power to regulate its internal affairs is concerned, with the other states, and it seems that it may by amendment change its constitution, regardless of any condition imposed by Congress. After admission a state is limited as to its powers only by the provisions of the constitution itself (Sands v. Manistee River Improvement Co.).

180. Change of State Boundaries.

After the admission of a state with specified boundaries, such boundaries cannot be changed by action of the state alone, for by the federal constitution (Art. IV, § 3, ¶ 1) it is provided that "no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states without the consent of the legislatures of the states concerned, as well as of the Congress." Therefore, territory cannot be taken away from a state nor added to a state without the consent of both states involved and of Congress as well. In the construction of this language it may well be assumed that to attempt to change the boundaries of a state would in practical effect be to attempt the creation of a new state.

181. Readmission of Seceded States.

From what has been said in the last preceding chapter with reference to the condition of the states which seceded during the war of the Rebellion, it is evident that Congress, in providing for the reorganization of governments in those states after the restoration of peace, did not act under the authority

to admit new states to the union, but rather under the authority to guarantee a republican form of government. The states were not readmitted, but provision was made for the re-establishment of governments therein.

182. Steps for Admission of States.

Different methods for the admission of new states have been pursued by Congress in different cases. Sometimes the proposed state has organized itself for the adoption of a constitution and has asked admission under such constitution; at other times conditions have been imposed, on compliance with which by the states admission has been granted; and again, Congress has sometimes first provided for the formation of a constitution under the authority of an enabling act, and then for the admission of the proposed state when the constitution should be adopted by the people as prescribed by the act. It has not always been required that the constitution under which the state is admitted shall have been submitted for approval by the people of the proposed state, but that has been required in most cases and in all the recent cases of admission.

183. Effect of Admission of States.

Congress has authority to organize territories and provide for local governments therein, analogous in some respects to the governments of the states. Frequently, but not uniformly, territories thus created have been subsequently admitted as states with the same boundaries, but even when so admitted the state government has gone into operation under the constitution adopted at the time of its admission as a new government. is proper, however, to provide and is often provided by the statute for admission that the laws of the territory shall remain in force until they are superceded by the adoption of state laws under the authority of the constitution of the new state.

It

CHAPTER XXXII.

TERRITORIAL GOVERNMENTS.

184. References.

J. Story, Constitution, §§ 1322-1330; J. N. Pomeroy, Constitutional Law, §§ 483-499; T. M. Cooley, Constitutional Law, ch. viii; H. C. Black, Constitutional Law (2d ed.), pp. 228-232; American Insurance Co. v. Canter (1828, 1 Peters, 511; 7 Curtis' Decisions, 685; McClain's Cases, 827; Thayer's Cases, 350 and note, Marshall's Decisions, Dillon's ed., 586); Clinton v. Englebrecht (1871, 13 Wallace, 434); Thompson v. Utah (1898, 170 U. S. 343; McClain's Cases, 831); The Insular Cases: viz. De Lima v. Bidwell (1901, 182 U. S. 1); Downes v. Bidwell (1901, 182 U. S. 244); Dooley v. United States (1901, 182 U. S. 222); Fourteen Diamond Rings v. United States (1901, 183 U. S. 176); Hawaii v. Mankichi (1903, 190 U. S. 197); Gonzales v. Williams (1904, 24 Sup. Court Reporter, 177); Dorr v. United States (1904, 24 Sup. Court Reporter, 808).

185. Territorial Power of Congress.

The territories of the United States not included within the limits of any state may be governed directly by Congress under authority "to make all needful rules and regulations respecting the territory or other property belonging to the United States" (Art. IV, § 3, ¶ 3). In the exercise of that power Congress may provide as it sees fit for a greater or less degree of local self-government in any portion of such territory. It may provide for the organization of a territorial government in a specified portion of territory set apart under a distinct name given to it, with executive, legislative, and judicial departments, may grant the elective franchise to persons within such territory having certain qualifications, and may authorize the election by them of members of the legislative body. The governor and the judges are appointed by the president. But such judges are not technically "judges of the courts of the United States," within the description of the federal constitution, and

its provisions with reference to tenure of office of the judges of the judicial department of the federal government are not applicable to the territorial judges thus provided for, and the courts thus created are not courts of the United States, but courts of the territories, having such authority as Congress may prescribe (American Insurance Co. v. Canter and Clinton v. Englebrecht).

186. The Constitution in the Territories.

Serious questions have recently arisen as to whether all the provisions of the federal constitution are applicable in territory which is under the jurisdiction of the United States but outside the limits of the states. Some provisions of the federal constitution are by their terms applicable only to the states, and it may be assumed that the provisions of the constitution, as a whole, were primarily designed for a federal government exercising its powers with reference to territory and persons included within state limits. On the other hand, it is evident that when the federal constitution was framed and adopted it was contemplated that there should be territory within the jurisdiction of the United States which should temporarily, at least, not be within the limits of any state; and that there should be persons, subjects of the United States, who are not citizens of any states. Prior to the adoption of the federal constitution, the so-called Northwestern Territory had been organized by the Congress existing under the Articles of Confederation, including the territory now embraced in the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin; and this territorial government was recognized as continuing to exist after the adoption of the federal constitution. It is not to be doubted that persons residing within the limits of this territory and subject to the jurisdiction of the United States were considered citizens of the United States.

As a matter of fact, the constitution of the United States has been expressly extended by acts of Congress to all the territory of the United States within the limits of the North American continent, and citizenship has been conferred either by treaties

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Constitution in the Territories.

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of annexation or by action of Congress upon all persons becoming subject to the United States within those limits; so that there is no question as to the constitution having full force and effect, either by its own operation or by express action of the federal government, within such territory. But express provision has not thus been made for the extension of the constitution over Porto Rico and the Philippine Islands, recently acquired by treaty with Spain; nor has citizenship been expressly conferred upon the inhabitants of such territory, and it is still, perhaps, not fully decided whether the general limitations found in the federal constitution on the powers of the federal government and the rights of citizenship under the federal constitution have been extended to these islands and their inhabitants in consequence of acquisition by the United States. It has, indeed, been settled that the islands are not foreign territory (see Insular Cases), and that the inhabitants, who have become permanently subject to the authority of the United States, are not aliens (Gonzales v. Williams). Something more will be said (below, ch. xxxiv) as to the condition of the inhabitants in the chapter relating to citizenship.

Whatever may be the conclusion as to citizenship in the insular possessions, it is conceded that Congress has the power under the constitution to make such provisions as it sees fit, with reference to the government of the people within such insular possessions and to organize such local governments as it deems expedient; and it may confer upon the inhabitants such political rights as public policy may justify or require. The extent to which the inhabitants of this newly acquired territory shall enjoy the privileges of self-government cannot be determined otherwise than by action of Congress.