sideration of the modern novel shows that this differentiation has already taken place. If on the one hand "Resurrection" stands now at the head of the purposeful form, it is certain, on the other, that the people by whom the most novels are read will never see Resurrection." The people to whom "Richard Carvel" is great do not want to read "Resurrection." The one is deficient in power, the other in interest, without either of which no novel can be completely great; and as now the whole of modern creative power is turned toward the novel in one form or the other, we can expect with confidence to see sooner or later novels perfect in their kind as we have seen dramas and epics perfect in their kind. GEORGE CLIFTON EDWARDS.

THE CONSTITUTION AND TERRITORIAL

POSSESSIONS.

CONSTITUTIONAL agitation never ceases. The men who in 1787 drafted the great paper constitution made from it in 1789 the vital, working, real Constitution of the United States.

Since the middle of this century there has been a vigorously contested question as to whether the Federal Constitution applies ex proprio vigore, or by its own force, to a territory which is not a member of the Federal Union; or, in other words, as to whether the term "United States "in the Constitution includes more than the States united. This same question was decided in the negative in the case of "territory" which had been relinquished by Great Britain, most of which had been made into an organized Territory before the great instrument was formed. Is the question now settled in the affirmative? Does the clause, for example, which enjoins uniform duties, imposts, and excises "throughout the United States" bind Congress as to the "territory" over which that body has jurisdiction? Has the "United States" of the Constitution become in law the same as the United States of popular language?

There was no unsettling of the original interpretation of the Constitution as to territory when the Union first acquired foreign territory. But in 1822, after Florida had been acquired, the question was agitated thoroughly in Congress. The previous solution of the question was not decried, however, for it was proposed only to extend the Constitution by statute to the Territory of Florida-just as Congress might have voted to extend the common law system so as to supplant the civil law system in the Spanish settlements. Before 1850 each attempt thus to extend the Constitution failed. But each attempt was an indisputable recognition of the fact that the Constitution of the fathers had never applied ex proprio vigore except to the States. Congress would never have attempted to extend anything which extends itself.

Territory belonging to the United States before our civil war may be classified as under three different conditions. Of the first condition, or status, was all territory relinquished by Great Britain, wherever and whenever it did not form a State or part of a State. Instead of prescribing government for it, the Federal Constitution allowed Congress full power to govern it as that body might deem best-even power to withdraw the ordinance of 1787, if such were desirable-which was extremely different from the over-State, or federal, government so carefully prescribed. Moreover, indisputably, Congress governed that territory in its discretion. Thus the fathers, by written words and by deeds, developed a perfectly elastic, unwritten constitution or system of what they called "territorial government." A reason, if not the only reason, why they never employed the term "colonial government" was the unhappy association which that term brought to them.

Of the second status were the Louisiana, Florida, and Mexican accessions. These were acquired through treaties which promised future Statehood, and that Congress should not govern them as territories entirely in its discretion, as is provided in Article IV., Section 3, of the Constitution. These treaties contained a second kind of governmental recognition of the fact that the general limitations of the Constitution upon Congress did not necessarily apply to territory. To the Territories of Orleans and Florida neither the Constitution nor all of the general statutes were extended while they remained Territories.

Of the third status were the Territories organized during and after 1850, to which the organic acts of Congress promised the Federal Constitution "so far as applicable." These include all the Territories fully organized since 1850, except Washington Territory, and this lack of uniformity was corrected in the Revised Statutes. Thus we have, coming down almost to the present day, a third class of governmental recognitions of the fact that the Federal Constitution

1 Language as to Utah. Elsewhere it is "not locally inapplicable."

ex proprio vigore applies solely to the Federal Union and the individual States. To such a direct promise of constitutional protection, in respect to the greater part of the territory of the third status, are to be added the implied or indirect promises made by the treaties of cession, as before mentioned. In the case of this territory with double promises of constitutional protection-promises through the two coördinate forms of "supreme law of the land," treaty and statute, which are next in authority to the Constitution itself -it might seem both immoral and illegal to alter such constitutional protection. But Congress has unquestioned legal authority to amend or repeal any of its statutes, and also any law of coördinate authority, as a treaty; and when, in 1882 and 1887, Congress in effect did amend or repeal or ignore this supposed double extension of constitutional protection in the case of Utah, both the Federal Supreme Court and "the common sense of most" recognized it to be not only legal, but also morally justifiable.

Thus a concrete case, involving an unpopular territorial institution, immoral and corrupt, was grasped and mastered by the popular mind in the nation. It is far more difficult, however, to grasp the great legal principles, as principles, by which the court justified such extraordinary power as was exercised by Congress on those two occasions; and perhaps the majority of Americans believe, in our day, that the Constitution of the United States was made for both States and Territories, since the more comprehensive meaning of "United States" is the more often used. Most magazine articles bearing on the question have held more or less vigorously to this side. The Ways and Means Committee recently adopted the less comprehensive meaning, that of States only, by the narrow division of eight to seven-one Republican member of the committee and the Silver member holding with the Democratic minority. And in both houses of Congress a thoroughly organized political party, in these days of party discipline, was not held together upon the question.

There is, of course, a fourth status of Federal territory not a member of the Federal Union. It is found where territory

has been acquired by treaty, but where there has not been promised any constitutional protection for it either by treaty or by act of Congress. Porto Rico and the Philippines are of this status. Instead of being guaranteed any definite "civil rights and political status," these islands and their inhabitants are by the treaty turned over to be governed in the discretion of Congress in clearer words than any in the third section of the fourth article of the Constitution; and even the Dred Scott opinion recognized that the fourth article gave to Congress unlimited discretion in governing the territory relinquished by Great Britain, while it remained territory. Yet, strange to say, many public men, without regard to party affiliations, are to-day claiming that the Constitution, ez proprio vigore, applies even to territory of this new class. Why? If for any purpose, it is probably to incline the American people to favor scuttling out of the Philippines or to embarrass the Administration as to an "open door" therein.

One of these men writes, for example, in the North American Review for November, 1899, that "an open door to the world's commerce in the Philippines is a political myth," they being an "integral part of the United States." Supporting this side of the question there are at least three leading Supreme Court cases. Upon these stress is often laid; for they seem to strike the nail on the head by making statements to the effect that "United States," in the Constitution, includes States and Territories. They are Loughborough v. Blake (5th Wheaton), Cross et al. v. Harrison (16th Howard), and Dred Scott v. Sandford (19th Howard). In the first case the statement was brought about by the accident of some remarkable arguments of counsel. It was confessedly obiter dictum, unlike the similar statements in the two other cases. The opinion in the second case came indirectly from practices, statutes, and words in a treaty of cession, and were the work of that greatest moving force in our constitutional history, the slavery question. The opinion in the third case came directly from that great force.

The first-named case, in 1820, tried the right of Congress to tax the District of Columbia for national purposes.

This