Page:Harvard Law Review Volume 12.djvu/501

OUR NEW POSSESSIONS. 48 1 territories of that period had belonged to the States, and whatever privileges the States wished to secure they could and did secure in the terms on which they were ceded. The great anxiety was to make a strong enough central government and yet prevent the United States from encroaching on the rights of the States or of the people of the States. One sees no sign of any anxiety on the part of the makers of the Constitution as to the status of people belonging to regions then ceded to the national government or there- after to be ceded. That was a matter which had been attended to in the cessions actually made by the parties who made them; and it might fairly be presumed that it would be attended to in future cessions, so far as might be desired and found convenient between the parties concerned. What was appropriate in the case of some territories might not be in other cases. A cannibal island and the Northwest Territory would require different treatment; and restraints beneficial in the one case would be harmful in the other. It was perfectly natural, therefore, and to be expected, when in dealing with the third article of the Constitution providing for the distribution of " the judicial power of the United States " and the tenure of the judges, that it should be treated as having no applica- tion to the territories. The Constitution provides that all its judges shall hold office during good behavior. But in regulating the judicial system of the territories Congress has always appointed the judges for a term of years, and not during good behavior. Seventy years ago, Chief Justice Marshall said: "These courts, then, are not constitutional courts in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the gov- ernment, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is conferred in the third article of the Constitution, but is conferred by Congress in the execution of those general powers which that body possesses over the territories of the Upited States." ^ This doctrine has always been acted on. In 1871 the court said, through Chief Justice Chase : " 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 1 Am. Ins. Co. v. Canter, i Peters, 511.