Page:Harvard Law Review Volume 12.djvu/500

48o HARVARD LAW REVIEW. also, it is the prevailing legal opinion, supported by some judicial decisions, that the territories are a part of the United States, not merely in the eye of international law, as all agree, but in the sense of our municipal law; so that e.g. as judges have said, taxes must be uniform there and in the States. There is also judicial authority for the opinion, and I suppose it is the more common opinion, that those parts of the Constitution securing trial by jury and other personal rights are applicable to the territories. There is, however, little in the text of the Constitution itself, and little, in point of intrinsic reason, in the judicial opinions and dicta on these subjects, to prevent us from holding that the Constitution does not cover the territories, and that the power of the United States in governing them, except as to one or two particulars, is to be measured only by the terms of the cessions which it has accepted, or of the treaty under which a territory may have come in. It may be observed that States and foreign countries in making their cessions inserted such conditions and guaranties of right as they thought necessary. Beyond these restraints it may well be thought that the territories are subject to the absolute power of Congress. I will not go into detail in discussing these matters now. It would take too much time, and would require much too technical a discussion to be appropriate to this time and place. But let me refer to a single head of the Constitution, in its relation to the territories, on which the law is perfectly settled, and which furnishes a clear suggestion for a right solution of some at least of the questions in hand. The great difficulty when the United States Constitution was made, was the adjustment between the power of the States and of the United States. The territories played no part at all. They were disposed of in the Constitution, so far as anything was said of them, by placing them wholly under the control of Congress. Article IV., Section 3 : " The Congress shall have power to dis- pose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States." In Article I., Section 8, Congress is also given power of exclusive legislation in all cases whatever over the district, not exceeding ten miles square, where the seat of government should be fixed, and over places purchased by consent of the States for forts and the like. Congress might admit new States; and these, no doubt, might be made out of the territories, because Congress had already promised to admit States out of the Northwest Territory. The