Mr. Justice HARLAN. Do you admit that Congress could establish titles of nobility in the territories of the outlying possessions?

He

The ATTORNEY-GENERAL. I do not know whether he did or not. may not have had that in his mind. He was referring to the rights of persons.

Mr. Justice HARLAN. That is why I suppose he used the term "personal rights."

The ATTORNEY-GENERAL. We are not dealing with titles of nobility, nor any such rights, nor considering whether Congress can create lords; nor are we dealing with any personal rights.

But when it comes to personal rights, which is what we are dealing with in this case, we need not consider whether Justice Bradley thought Congress could set up an establishment of religion or confer titles. He was speaking of personal rights, and that is what we are dealing with in this case. He held that there were not any under territorial government except such as arose out of the fundamental principles that underlie and are not expressed within the Constitution.

International law declares that the new sovereign may deal with the inhabitants of conquered or ceded territory, and give them such law as he sees fit. They receive political privileges and benefits at the will of the new Government, and not by virtue of the automatical operation of the laws of the new sovereign.

In the great case of Campbell against Hall, which was four times argued before it was decided by Lord Mansfield, the distinction was made between countries which are colonized by the citizens or inhabitants of the parent country and those which are obtained by conquest or cession from a foreign country; and the doctrine which I have read, namely, that the laws of the home or parent country do not extend to the acquired territory, was declared by him to be the doctrine and law of England. But when colonists from England established under the patent of the Crown, or by right of discovery, a colony or offshoot of the home Government, they took with them the laws of their own country, and these became, so far as they were suitable to the place, the laws for the guidance of the colonists.

In the case of Johnson v. McIntosh, it was said:

"The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually they are incorporated with the victorious nation and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections and united by force to strangers.

"When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can

disregard, imposes these restraints upon him; and he can not neglect them without injury to his fame and hazard to his power." Johnson v. McIntosh, 8 Wheat., 543, 589.)

Other expressions in opinions of this court relative to the power and control of Congress over acquired territory includes the following: Clinton v. Englebrecht (13 Wall., 434), where Chief Justice Chase said:

"The theory upon which the various governments for portions of the territory of the United States have been organized has been that of leaving to the inhabitants all the powers of selfgovernment consistent with the supremacy and supervision of national authority and with certain fundamental principles established by Congress (p. 441)."

Observe he didn't say anything about the fundamental principles of the Constitution!

And thereupon court adjourned until the next day, December 19, 1900.

May it please the court: I had reached page 20 of my brief, when the court rose last evening, and was quoting the decision of this court in the case of Clinton v. Englebrecht. The court further said in that

case:

"There is no Supreme Court of the United States, nor is there any district court of the United States, in the sense of the Constitution, in the Territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution or the General Government. The courts are the legislative courts of the Territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the Territories belonging to the United States."

And in the case of National Bank v. County of Yankton (101 U. S., 129) the court said:

"It is certainly now too late to doubt the power of Congress to govern the Territories. There have been some differences of opinion as to the particular clause of the Constitution from which the power is derived, but that it exists has always been conceded. The act to adapt the ordinance to provide for government of the territory northwest of the river Ohio to the requirements of the Constitution (1 Stat., 50) is chapter 8 of the first session of the First Congress, and the ordinance itself was in force under the Confederation when the Constitution went into effect. All territory within the jurisdiction of the United States". Observe the court does not say "forming a part of the United States," but says "within the jurisdiction of the United States."

"not included in any State must necessarily be governed by or under the authority of Congress. The Territories are but political subdivisions of the outlying dominion of the United States. Their relation to the General Government is much the same as that which counties bear to the respective States, and Congress

may legislate for them as a State does for its municipal organizations. The organic law of a Territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the Territorial authorities, but Congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States, except such as have been expressly or by implication. reserved in the prohibitions of the Constitution.

"In the organic act of Dakota there was not an express reservation of power in Congress to amend the acts of the Territorial legislature, nor was it necessary. Such a power is an incident of sovereignty and continues until granted away. Congress may not only abrogate laws of the Territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the Territorial legislature valid and a valid one void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the Territorial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States."

And in the case of McAllister v. The United States (141 U. S., 174), which related to the power of Congress or the President to terminate the term of office of a Territorial judge in Alaska, Mr. Justice Harlan, of the present bench, expressing the opinion of the court, said:

"An elaborate argument, displaying much thought and extended research upon the part of counsel, has been made in support of the proposition that, upon general principles, lying at the foundation of our institutions, the judicial power in the Territories, exercised as it must be for the protection of life, liberty, and property, ought to have the guaranties that are provided elsewhere within the political jurisdiction of the nation for the independence and security of judicial tribunals created by Congress under the third article of the Constitution. We have no occasion to controvert the soundness of this view, so far as it rests on grounds of public policy. But we can not ignore the fact that while the Constitution has, in respect to judges of courts in which may be vested the judicial power of the United States, secured their independence by an express provision, that they may hold their offices during good behavior and receive at stated times a compensation for their services that can not be diminished during their continuance in office, no such guaranties are provided by that instrument in respect to judges of courts created by or under the authority of Congress for a Territory of the United States. The absence from the Constitution of such guaranties for Territorial judges was no doubt due to the fact that the organization of governments for the Territories was but temporary, and would be superseded when the Territories became States of the Union. The whole subject of the organization of Territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive, and the manner in which they may be removed or suspended from office, was left by the Constitution with Congress under its plenary power over the Territories of the United States. How far the exercise of that power is

restrained by the essential principles upon which our system of government rests, and which are embodied in the Constitution, we need not stop to inquire, though we may repeat what was said in Mormon Church v. United States (136 U. S., 1, 44), referring to the expression of Mr. Justice Bradley in that case.

Now, allow me right here, if your honors please, to call attention to the fact that if the Constitution was framed for the Territories, and for the government of the Territories; if the jurisdiction of Congress over the Federal judiciary was restrained only as to the States, then we have here a very important and a very controlling decision. Certainly when the Constitution defines the jurisdiction of the courts of the United States, and puts safeguards about the judiciary to preserve its independence from executive and legislative interference, it is doing a thing which is of great importance to the States; and admittedly it has done that for the States. The phrase it uses is "the judicial power of the United States.” But this court holds that that does not extend to the Territories; that the judicial power of the Territories is derived entirely from Congress under its power to legislate for territory, and is not derived from that other provision of the Constitution.

Now it is quite important, I suppose, that the independence of the judiciary should be preserved. That is a subject that our forefathers complained about. In the catalogue of royal grievances contained in the Declaration of Independence is one charging that the King had interfered with the administration of justice by making the tenure of office of the judges depend upon the royal will and the payment of their salaries upon the royal pleasure. Therefore, assuming that when they formed a constitution they intended to protect themselves in the new government against the direct objects of their complaints, they made provision for the independence of their judiciary. But the provision was limited to the States. They did not protect the Territories. According to the decision of this court in the Canter case and the McAllister case, the term "United States" in the judiciary clause of the Constitution means nothing more than the States united. But a very strong argument might be made, as was made in the McAllister case, to the effect that the very principles of our Government, the history of our independence, of our protests to the King, all went to prove that the independence of the judiciary was one of the objects for which the Constitution was formed; and that if the people of the Territories were under the Constitution, they were entitled to this guarantee. The court said the distinction was made because the Territories were not governed under the judiciary clause of the Constitution, but under the special clause which gave Congress power to make all rules and regulations respecting the territory belonging to the United States.

I cite, further, as to the power of Congress to govern Territories, the case of Benner v. Porter, and the case of the United States v. Kagama, where Mr. Justice Miller, delivering the opinion of the court, said, referring to a tribe of Indians:

"But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the Government of the United States, or of the States of the Union. There exist within the broad domain of sovereignty but these two. There may be cities, counH. Doc. 509-19

ties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. 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. What authority the State governments may have to enact criminal laws for the Indians will be presently considered. But this power of Congress to organize Territorial governments and make laws for their inhabitants arises not so much from the clause in the Constitution in regard to disposing of and making rules and reg. ulations concerning the territory and other property of the United States as from the ownership of the country in which the Territories are and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else." Then I refer to the opinion of the circuit court in the case of Endleman v. United States (86 Fed. Rep., 457); and, as having appropriateness to some phases of this question that either now or in the near future will be presented, to the case of New Orleans v. Steamship Company (20 Wall., 373), where the following statement of the broad and untrammeled power of the conqueror of territory was made:

"Although the city of New Orleans was conquered and taken possession of in civil war waged on the part of the United States to put down an insurrection and restore the supremacy of the National Government in the Confederate States, that Government had the same power and rights in the territory held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war. In such cases the conquering power has a right to displace the preexisting authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war. These principles have the sanction of all publicists who have considered the subject."

And Story, writing in 1833, and following closely the language of Chief Justice Marshall in Insurance Company v. Canter, thus expresses the power of the National Government with reference to ceded territory:

"As the General Government possesses the right to acquire territory, either by conquest or by treaty, it would seem to follow, as an inevitable consequence, that it possesses the power to govern what it has so acquired. The territory does not, when so acquired, become entitled to self-government, and it is not subject to the jurisdiction of any State."

I need not pause to emphasize that expression, that country ceded by one to another, ceded to the United States, does not become entitled