Page:The Green Bag (1889–1914), Volume 11.pdf/42

 Territorial Sovereignty.

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TERRITORIAL SOVEREIGNTY. By James V. St1llman. AMONG the important measures which arc to engage the attention of Con gress during its present session is the pro posed territorial government for the Hawaiian Islands which are now under the actual or de faeto jurisdiction of the United States. Although the writer, in the September issue of this magazine, as he thinks, has clearly demonstrated the unconstitutionality of the recent action of Congress in annexing these islands to this nation by a joint resolution, he concedes for the purpose of this dis cussion that said action was within the power of that body, and that the islands in question are now a part of the territory of the United States. He also concedes the validity of the general principle that an act of Con gress is presumed to be in accordance with the Constitution until the Supreme Court shall have determined it to be otherwise in a case brought before it by a party whose rights are directly affected by such legislation, and in which the constitutionality thereof is necessarily involved; and until a case in volving the constitutionality of the joint resolution just referred to shall have been presented to that tribunal for adjudication, and until it shall have been decided to be unconstitutional, it is, and will continue to be, binding upon every department or officer of the Government and upon all the people. As no such case has yet arisen, and as no such decision has yet been rendered, the an nexation of Hawaii must be considered as an accomplished fact; and, therefore, Con gress now possesses the same power over that Territory which it does over the others. Among the many interesting questions which have arisen under the Constitution is that concerning the relation of the Federal Government to the Territories. It has been the subject of many debates in Congress, in which some of our ablest statesmen and most

eminent constitutional lawyers have partici pated; it has been treated of in legal works and in periodical literature, and has been formally adjudicated by the Supreme Court. But as that tribunal has the right and the power to reverse its own decisions, having done so in several instances, and as this question is likely to arise again in the near future, it may still be treated as an open one; and, therefore, the writer proposes to consider the provisions of the Constitution under which Congress has assumed to legis late for the Territories, and to determine whether or not this power actually resides in that body. The words of the Constitution which are usually referred to by those persons who contend that Congress has sovereign power over the Territories are found in Clause 2, of Section 3 of Article IV., which reads as follows : — The Congress shall have power to dispose of and make all needful rules and regulations re specting the territory or other property belonging to the United States; and nothing in this Consti tution shall be so construed as to prejudice any claims of the United States, or of any particular State. Let us examine the language of that clause and determine what it means, if there can be any doubt in regard to its meaning. "The Congress shall have power to dispose of," — what do these words signify? When speaking of territory or of land which can not be destroyed, they must necessarily mean, to give away, to cede, to sell, or to lease; they can have no other meaning. Also, " Congress shall have power to make all needful rules and regulations respecting the territory," — and here the word "terri tory " is in the singular number, the only place in which it occurs in the Constitution; and it can have no other meaning than land.