26 (25). Territories have but temporary governments. Are in tutelage to become states. The federal constitution provides for the admission of new states.24 The provision is general and has been applied not only to the admission of new states in territory belonging to the government when the constitution was adopted, but to new statesformed in newly acquired territory. It has been decided to be contrary to the constitution to acquire territory with any other view than to the formation and admission of new states.25

"The very fact," says Mr. Wharton, "that territories are infant states, to be admitted into the Union on maturity,

upon an equal footing with the other states, must rest upon the same discretion."

24 Sec. 3, art. 4.

25 In the majority opinion in Dred Scott v. Sanford, already cited, the chief justice said: "There is certainly no power given by the constitution to the federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new states. That power is plainly given; and if a new state is admitted, it needs no further legislation by congress, because the constitution itself defines the relative rights and powers and duties of the state, and the citizens of the state and the federal government. But no power is given to acquire a territory to be held and governed permanently in that character." He amplifies thus on another page: "The principle upon which our governments rest, and upon which alone they continue to exist, is the

union of states, sovereign and independent, within their own limits in their internal and domestic concerns, and bound together as one people by a general government possessing certain enumerated and restricted powers, delegated to it by the people of the several states, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the general government to obtain and hold colonies and dependent territories over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires it acquires for the benefit of the people of the several states who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted." See historical notes in opinion of Mr. Justice Campbell in same case, pp. 507–508. Whart. Am. L., §§ 462, 464.

shows that they are to be governed on the same general principles, as far as is applicable, as are states, just as infants, mutatis mutandis, are governed on the same general principles, so far as concerns safeguards, as are adults." Only a political change is produced by admission into the Union as a state. Congress then ceases to legislate for its people, or in regard to their internal and domestic concerns. They have thus been admitted to the exercise of the right of self-government. The territorial laws enacted by congress or the local legislature continue in force so far as they are consistent with the new condition of statehood and the provisions of the state constitution.27

26 Id., § 464.

27 Ante, § 19. See Benner v. Porter, 9 How, 234, 13 L. Ed. 119; Ter

ritory v. Lee, 2 Mont. 124; Am. Ins. Co. v. Canter, 1 Pet. 511, 7 L Ed. 242.

CHAPTER II.

THE ENACTMENT OF LAWS AND HOW THEIR EXISTENCE IS ESTABLISHED.

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§ 27 (26). The legislature. It is a primary requisite to the enactment of laws that there be a legal legislature. In time and place the members entitled so to do must lawfully convene. A legislature elected under a void apportionment act is a de facto legislature and its acts are valid.? When a majority of the members of the house meet and organize at the regular place of meeting, they constitute the legal house, though the governor and senate recognize the minority who have also organized at another place.3 The senate of New Jersey consists of twenty-one members and seven are elected each year. It has been held that it is not a continuous body, but must be organized anew each year, and that, where nine old members and one new organized one body and four old members and seven new organized another, the latter, being organized by a majority, was the legal senate. But where the question is whether a statute was legally passed, the courts will not go back of the journals to inquire whether the legislature was legally constituted."

The American legislature, acting under written constitu

1 Tennant's Case, 3 Neb. 409; State v. Judge, 29 La. Ann. 223; Macon, etc. R. R. Co. v. Little, 45 Ga. 370; Gormley v. Taylor, 44 Ga. 76. See Rohrbacker v. Jackson, 51 Miss. 735; People v. Hatch, 33 Ill. 9, 151.

2 State v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561. 3 In re Gunn, 50 Kan. 155, 32 Pac. 470, 948, 19 L. R. A. 519.

4 State v. Rogers, 56 N. J. L. 480, 28 Atl. 726.

5 Auditor-General v. Supervisors, 89 Mich. 552, 51 N. W. 483; State v. Smith, 44 Ohio St. 348, 7 N. E. 447. In both these cases an act was as sailed on the ground that it never received the vote of a majority of the senate. It was set up that a minority of the senate met in the

tions, can only exercise a delegated power. It must keep within the limits of power granted to it and observe the directions as to membership, the time of meeting and length of its sessions, procedure in its deliberations, the number of votes necessary for any purpose, and the making of its records.

$ 28 (27). How existence of statute established — English rule. The British parliament, including the three great estates of the realm-the king, lords and commons,possesses a transcendent power. It enacts laws by a procedure devised by itself, and it is subject to no paramount law. When a statute is framed and recorded according to its traditional forms as an act of parliament, it is a record which expresses the will of the sovereign power. General acts are "enrolled by the clerk of the parliament, and delivered over into the chancery, which enrollment in the chancery makes them the original record." Private acts filed, sealed, and remaining with the clerk of parliament, are also original records. The record is deemed a high

absence of the majority, voted to unseat certain of the majority and to seat others in their places, who, joining with the minority, passed the act. But the court refused to consider these facts, and in the lat ter case it is said: "As to the averment that the passage of the act was part of a conspiracy, entered into between the president of the senate and seventeen members, carried into effect in the absence from the state of a majority of the members of the senate, it is sufficient to say that such suggestions have frequently been made for the purpose of inducing judicial in quiry into the conduct of legislative bodies, but the inquiry has as frequently been declined by the courts as not only indecorous, but as sub

versive of the independence of the legislature as a co-ordinate branch of the government. There is no authority for it in the constitution and laws of this state, and it is opposed to the practice and polity of our system of government.” p. 366. And see People v. Mahaney, 13 Mich. 481; Lyons v. Woods, 153 U. S. 649, 14 S. C. Rep. 959, 38 L. Ed. 854.

6 King v. Arundel, Hob. 110; 5 Comyn's Dig. Parliament; 1 Phil. Evi. 316. Anciently, the manner of proceeding in parliament was much different from what it is at the present day; for, formerly, the bill was in the form of a petition, and these petitions were entered upon the lords-rolls, and upon these rolls the royal assent was likewise

record. It imports absolute verity, and must be tried by itself, teste meipso. This is the dignity and quality of all technical records. No plea can raise any other question regarding a record than that of its existence. Upon that issue the record itself is the only evidence; the trial is merely by the record. A record or enrollment is a monument of so high a nature, and imports in itself such absolute verity, that if it be pleaded that there is no such record there is no trial by witnesses, jury or otherwise than by the court inspecting the record itself. The court being bound to take judicial notice of the laws, no plea can be necessary or permitted denying the existence of the record of an act of par

entered; and upon this, as a groundwork, the judges used, at the end of the parliament, to draw up the act of parliament into the form of the statute which was afterwards entered upon the rolls, called the statute-rolls; which were different from those called the lords-rolls, or the rolls of parliament; upon these statute-rolls neither the bill nor petition from the commons, nor the answer of the lords, nor the royal assent, were entered, but only the statute, as it was drawn up and penned by the judges; and this was the method till about Henry the Fifth's time. In his time, it was desired that the acts of parliament might be drawn up and penned by the judges before the end of parliament; and this was by reason of a complaint then made, that the statutes were not equally and fairly drawn up and worded. After the parliament was dissolved or prorogued in Henry the Sixth's time, the former method was altered, and these bills contenentes formam actus parliamenti

were first used to be brought into the house. The bills (before they were brought into the house) were ready drawn, in the form of an act of parliament, and not in the form of a petition, as before; upon which bill it was written by the commons, soite baile al seigneurs; and by the lords, soit bayle al roye; and by the king, le roy le veut; all this was written upon the bill, and the bill, thus indorsed, was to remain with the clerk of the parliament, and he was to enter the bill thus drawn at first, in the form of an act of parliament or statute, upon the statute-rolls, without entering the answer of the king, lords or commons upon the statute-rolls, and then issued out writs to the sheriffs, with transcript of the statute-rolls, viz.: of the bill drawn at first in the form of a statute and without the answer of the king, lords and commons, to the bill, to proclaim the statute. Bac. Abr., title Court of Parliament, F.

72 Black. Com. 331.