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as against the commonwealths. It transcends the powers of the commonwealths entirely to create the organs and offices of the general government or regulate their powers, or to prescribe the relations between commonwealths.

The Congress may, however, in the exercise of these powers, come into contact, if not collision, with the other departments of the general government; e.g. with the President, in prescribing the duties and responsibilities of those officers whose offices are not created by the constitution, and with the Court, in regulating the judicial procedure in the appeal and removal of causes. The Congress has asserted, in practice, full control of these subjects, although a sound political science would guard jealously the President's control over the executive officials, and would assign in very large degree to the domain of the rules of the Supreme Court the regulation of appeal and removal.

12. Legislation in respect to Territories, Districts and Places not under the Federal System.

The constitution vests in the Congress the exclusive power of legislation for the district of the seat of the United States government, not to exceed ten miles square; for all places purchased by the general government within the commonwealths, with consent of the legislatures of the respective commonwealths, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings;1 and for the territory of the United States not yet erected into commonwealths.2

Of course exclusive legislation carries with it the exclusive jurisdiction of the government whose legislative department is vested with the power of exclusive legislation.

Congress is not limited in its legislative power over these places, districts and territories, either by a division of its power with a local legislature, or by an enumeration in de

1 United States Constitution, Art. I, sec. 8, § 17.

2 Ibid. Art. IV, sec. 3, § 2.

tail of the subjects in regard to which it may legislate. It is limited in its legislative power for such places only by the constitutional restrictions which create individual immunities against the general government. What these immunities are I have already set forth in the second book of this part of my treatise.

It has never been seriously questioned that Congress has full and exclusive legislative power over the district of the seat of the general government, and over those places purchased by the general government for the needful works and buildings of the government within the limits of the commonwealths. It is necessary that the legislatures of the commonwealths, to which such places and districts originally belonged, should give consent to the acquirement of the property in the same by the general government, and should cede jurisdiction over the same. This once accomplished, however, it has always been the settled principle that the legislative power of the Congress thereover is general and exclusive. The Congress may create local legislative bodies for such districts, and confer upon them powers of purely municipal legislation; but these powers may, at any moment, be withdrawn by the Congress, and their exercise must at all times be subject to the supervision of the Congress. It cannot erect these districts into commonwealths, i.e. it cannot give them a constitutional existence, as local self-governments, independent of the power of the Congress in matters of local concern. Of course the Congress may again cede these places and districts to the commonwealths from which they were obtained, or to any other commonwealth, when the government ceases to use them for those purposes for which the constitution authorizes their acquisition, and in this manner the Congress may extinguish its power of exclusive legislation over them; but so long as the general government

1 Stoutenburgh v. Hennick, 129 U. S. Reports, 142.

makes use of them, no commonwealth powers can be created by Congress within them.

On the other hand, it was strenuously denied during the confederatizing period of our history, i.e. from 1820 to 1860, that Congress possesses full and exclusive legislative power in the territories other than the places and districts above mentioned. Several theories were advanced in regard to the relation of these parts of the territory of the United States to the general government. The immediate purpose of all these theories was to limit and hold in abeyance the powers of the general government; the ultimate purpose was the advancement of the slavery interest. With the disappearance of slavery, these theories have all disappeared, and there is now no longer any question that Congress has full and exclusive legislative power in these parts, limited only by the restrictions imposed by the constitution in behalf of individual liberty.1

The constitution, however, expressly vests in Congress the power to erect commonwealth governments in these parts;2 and by so doing Congress limits its own legislative power in` these parts to the subjects enumerated in the constitution.

The clause of the constitution which empowers Congress to create new commonwealths reads as follows: "New States" (commonwealths) "may be admitted by Congress into this Union; but no new State" (commonwealth) "shall be formed or erected within the jurisdiction of any other State" (commonwealth), “nor any State" (commonwealth) "be formed by the junction of two or more States" (commonwealths) "or parts of States" (commonwealths), "without the consent of the legislatures of the States" (commonwealths) "concerned, as well as of the Congress." The language of the principal paragraph of this clause is not well chosen. It appears to confer upon the Congress

1 National Bank v. County of Yankton, 101 U. S. Reports, 129.

2 United States Constitution, Art. IV, Sec. 3, § I.

the power to connect foreign states with this Union by an act of legislation. Nothing of the sort was intended by the framers. An examination of the debates of the Convention will show that they had reference only to the erection of new commonwealths within the territory belonging at any given moment to the United States.1 The only constitutional way in which a foreign state can be annexed to the United States is by a treaty between the foreign state and the United States or by conquest in war. After the annexation has been accomplished through treaty or conquest, the form of local government to be erected in the new territory is to be determined by the legislation of Congress. There is no reasonable doubt that the admission of Texas into this Union by the legislation of the Congress was in plain disregard of the prescripts of the constitution, and was occasioned by the fact that the two-thirds majority in the Senate, necessary to secure annexation by treaty, could not be obtained, while a simple majority in both houses and the President favored it. They called their legislation a joint resolution. It was, however, approved by the President; and the line between a joint resolution approved by the President and a statute is very shadowy; and, were this line distinct, the joint resolution is no more the method prescribed by the constitution for the annexation of foreign territory than is the statute.

2

The only limitation upon the power of the Congress in erecting new commonwealths within the United States is when the new commonwealth is formed out of territory already under commonwealth government. In such case the consent of the legislature or the legislatures of the commonwealth or commonwealths concerned is necessary. Where the new commonwealth is erected in territory not yet under the federal system, then the power of the Congress is plenary and exclusive.

1 Elliot's Debates, vol. i, p. 274; vol. v, pp. 128, 157, 190, etc.
2 United States Statutes at Large, vol. 5, p. 797 ff.

Congress alone shall determine when the conditions and circumstances of a population in any part of such territory are such as will justify the vesting of such population with commonwealth powers. Congress ought not to pass its enabling act until it is clear that such a population is fully prepared to exercise the powers of local self-government and to participate in the general government. When this moment has arrived, Congress ought not to withhold its enabling act. This is a matter, however, of political ethics, not of constitutional law; and the Congress alone must judge when the proper requirements shall have been fulfilled to warrant the change from centralized to federal government in any part of the territory of the United States. I think, however, we may say that the Congress is constitutionally bound not to clothe with commonwealth powers any population which is unrepublican in its character-nor perhaps any population which is unnational in character. But of this character again the Congress alone must be the judge. The conclusion. is that the constitution recognizes no natural right to commonwealth powers in any population, but views these powers as a grant from the sovereign, the state, which latter employs the Congress to determine the moment from which the grant shall take effect.

When the Congress discharges this function, however, the commonwealth powers, both as to local government and participation in general government, are vested in the given population by the constitution, not by the Congress. I cannot convince myself that the Congress has the right to determine what powers the new commonwealth shall or shall not exercise, although I know that the Congress has assumed to do so in many cases. I think the constitution determines these questions for all the commonwealths alike. Certainly a sound political science of the federal system

1 United States Statutes at Large, vol. 13, p. 31, sec. 4; Ibid. vol. 13, p. 48, sec. 4; Ibid. vol. 18, p. 474, sec. 4, etc.

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