Territories in U.S. History: Territorial Clause and Supreme Court decisions before 1898

Updated: Oct 16, 2020

The years between the Louisiana Purchase and the Civil War served as the foundation for the developing of Congress’s plenary powers doctrine on the territories. There were a series of cases presented in the Supreme Court in this period and questions were asked to the court that the Louisiana Purchase left without answers. As the Louisiana Purchase, the first cases revealed tension between a vision of the constitution as the source of all authority of the national government, thus extending its applicability to the territories subject to the sovereignty of the United States, and a vision that saw the applicability of the constitution to the territories in a limited way. These cases also reveal the court's gradual movement toward a broad, pro expansionist understanding of national power.


In Sere v. Pilot[1]Chief Justice Marshall held that Congress could bestow more extensive jurisdiction to territorial courts than those authorized by Article III. The “absolute and undisputed power to govern the Orleans territory, either was inherent in the inevitable consequence of the right to acquire and to hold territory or arose from the Territory Clause.”[2]The theory that the constitution applied equally to all parts of the American empire was affirmed in the case of Loughborough v. Blake[3], which involved a claim challenging the constitutional authority of Congress to impose a tax on the District of Columbia. Chief Justice Marshall asserted that the power to impose contributions was a power of attorney not limited literally by the constitution to a specific territory, “which extends to all places over which the government extends.[4]” Marshall made clear that the United States included the states as well as the territories by expressing the following:


“Does this term designate the whole, or any particular portion of the American Empire? Certainly, this question can admit of but one answer. It is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory West of Missouri, is not less within the United States than Maryland or Pennsylvania…”[5]

Quickly after the acquisition of Florida in 1819, Congress established a territorial government for Florida, which, like other territorial governments, included territories with judges appointed to serve every four years. The ability of the lower territorial courts to enforce federal admiralty jurisdiction became the focus of controversy in the case of American Insurance Co. v. Carter.[6]The plaintiffs contended, “the Constitution was made for the whole people of the United States, without reference to heir being within the original thirteen states,[7]” and that Article III’s bestowal of exclusive admiralty jurisdiction to the federal courts accordingly was controlling in the territories.


The Supreme Court confirmed the territorial jurisdiction of the court without entering into extra-constitutional reasoning. Chief Justice Marshall said that the authority of the United States to acquire a power derives from the power of war and the power to make treaties[8]. In relation to the application of the Constitution to the new territory, Marshall pointed out that regarding the law of nations, laws related to political allegiance are automatically transferred once the change of sovereignty, while other laws continue in force until they are altered by the new sovereign.[9]Marshall found it unnecessary to attend if the rule of international law governed the constitutional application to Florida, since both the treaty with Spain and the federal statute creating the territorial government stipulated that the Constitution applied.[10]Having established that the constitution applied to Florida, Marshall asserted that the power to govern the territories arises from the Territorial Clause, but quickly qualified with a suggestion characterizing the power to govern the territories as an inherent[11]one, regardless of their constitutional source. Marshall expressed the following:


“Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a state, acquired the means of self-government, may result necessarily from the facts, that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The right to govern, may be the inevitable consequence of the right to acquire territory. Whichever may be the source whether the power is derived, the possession of it is unquestioned.” [12]


Marshall concluded that the territorial courts, in which the judges did not hold life tenure, were not established under Article III of the Constitution.[13]Instead they were legislative courts created by either “in virtue of the general right of sovereignty which exits in the government, or as a result of the Territory Clause.”[14]Marshall then concluded, that the requirement that only Article III courts could hear admiralty cases did not apply to territories, where “Congress exercises the combined powers of the general, and of a state government.[15]” The Court upheld the non- Article III courts as a proper exercise of “those general powers Congress possesses over the territories.”[16]


Sere and Carter contributed significantly to the development of the doctrine of congressional power over the territories in at least two aspects. First, both decisions suggested that congressional authority can be derived from the "right of sovereignty" government rather than some textual provision of the constitution.[17]Second, and in contrast to Loughborough, the decision showed satisfaction on the part of the court to find that even specific general provisions of the constitution did not in any way restrict the power of Congress in the territories, where Congress exercised the equivalent of the federal/state legislative power. The Canterdecision left open the question of whether the constitution automatically applied to territorial governments, or whether its operation depended on the mandates established in the transfer treaty and Congress.


In the case of Benne v. Porter[18]of 1850, again the controversy was concentrated in the territorial courts of Florida. The language of the Court ambiguously suggested that territories were extra-constitutional entities. The territorial governments, the Court analyzed, "are not organized under the Constitution, nor subject to its complex distribution of the powers of the government, as the organic law... they were invested with powers and jurisdiction which were incapable of conferring upon a court within limits of a State."[19]They were “the creations, exclusively, of the legislative department, and subject to its supervision and control.”[20]This plenary power over the territories, however, terminated upon Florida’s admission to the Union.[21]The Court declined to address the applicability of other constitutional limitations to the territories, deciding that "whether or not there are provisions in that instrument which extend to these territorial governments, it is not yet material to examine."[22]


The 1850 case of Fleming v. Page[23]again raised the controversy as to whether the laws of the United States apply immediately to a newly acquired territory or if it needs affirmative action from Congress. The case involved whether a foreign territory under the U.S. military control was part of the United States so that the goods imported from the territory to the U.S. were not “imports” subject to the U.S. tariffs duties. Congress had declared war on Mexico in 1846, and it was stipulated that the port of Tampico, Mexico, from which the products were shipped, was "in the exclusive and firm possession of the United States."[24]In defense of the tax rate of products, attorneys for the United States government argued from the principles of the doctrines of membership and consent. Although the sovereignty of the United States was tied to the port, the Constitution provided that the law of the United States could not apply until Congress acted affirmatively.[25]


Writing for the court, Chief Justice Taney accepted the distinction between the sovereignty of the United States and the application of the laws of the United States. Taney concluded that "subject to the sovereignty and dominion of the United States, Tampico was occupied enemy territory and sovereignty and dominion of the United States."[26]Tampico was occupied enemy territory and "was not part of the Union" because it had not been finally ceded by treaty or by statute.[27]Taney argued that the relationship between Tampico and the United States “did not depend upon the law of nations, but upon our own Constitution and acts of Congress.”[28]“[I]n this country the sovereignty of the United States resides in the people of the several States, and they act through their representatives, according to the delegation and distribution of powers contained in the Constitution.”[29]Taney concluded that under the Constitution, only Congress had authority to extend the borders of the United States to a new territory or to subject such a territory to U.S. laws. Mere military occupation could not accomplish this because the president could not constitutionally enlarge the boundaries of the United States. Taney expressed the following:


"The country in question had been conquered in war. But the genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens… A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country."[30]


The debate of slavery pushed an urgency the controversy if the Constitution applied or not to the territories. The pro-slavery argued that the Constitution (including the projection of property rights in slaves extended to all the territories of the United States, and that Congress lacked the power to abolish slavery in the Territory). John C. Calhoun[31]and Senator Pierce Butler[32]swore: "to carry slavery into the territories under the wing of the Constitution."[33]Calhoun argued that the Constitution provided the sole source to legislate for the territories. The debate of slavery concerning the territories governments was particularly problematic given that between 1845 and 1848 the United States acquired 1,240,000 acres of new Territory with the annexation of Texas, the agreement of Oregon, and the Treaty of Guadalupe Hidalgo of 1848 with Mexico. A decision in the 1850s supported the proposition that the Constitution applied entirely to the territories acquired after the Constitution was adopted and another decision in the same decade I did not apply.


The cession of California to the United States after the peace treaty with Mexico provoked a bitter dispute in Congress over slavery in the newly acquired Territory. During the session of 1848-1849, pro-slavery in Congress tried to amend a bill that established territorial governments for New Mexico, California, Utah for "that the Constitution of the United States ... be and the same hereby "As a result of the impasse in Congress between May 1848 and March 1849, California was de facto governed by an interim civilian government that had been established during the war, without instructions of the national Government.


In Cross v. Harrison[34], importers demanded to receive back what was paid at the San Francisco wharf during the period after the peace treaty and before Congress created a custom district in California. Following the dicta of Chief Justice Taney in Fleming v. Page, the defendants argued that the laws of the United States did not apply to the Territory of California until Congress formally imposed them. Therefore, the collection of duties that was done at the pier in San Francisco was ultra vires.


The Supreme Court agreed that the military occupation ended with the signing of the peace treaty. However, they concluded that the rare situation that occurred in California justified continuing that Government. The court reasoned that the sovereign powers of the United States had been tied to California with military occupation and that U.S. Customs laws had applied to California immediately after its session. " "By the ratification of the treaty, California became a part of the United States... [I]t became instantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on import and tonnage." The root of the United States authority over California was based on the right to acquire Territory and in Treaty and Territories Clauses. Hence, contrary to the reasoning in Fleming, the decision in Cross established that the Constitution and the laws applied to the new territories immediately after their acquisition and that the collection of tariffs in California in the absence of confessional legislation was valid. Why did Taney completely ignore Fleming?


The tension between slavery and the authority of Congress to legislate reached its climax in the case of Scott v. Sandford[35]. The case arose when the constitutionality of the Missouri Compromise was argued, which had outlawed slavery in the northern Louisiana Territory. It also brought the jurisdiction dispute over Scott, a free black man, if he was an American citizen with access to the courts. The plaintiff contended that Congress had the power to outlaw slavery in the territories under the Territory Clause and that the Constitution applied entirely to the territories destined for statehood.

To reconcile ambiguities in American Insurance v. Carter, the plaintiffs argued that the United States could acquire Territory by the treaty and war powers and may also govern those territories ultimately outside constitutional protection, in accordance with the law of nations. The Territorial Clause would only become a source of constitutional authority, and other constitutional provisions only applied, once the Territory was incorporated into the political union to become a state.


Chief Justice Taney denied jurisdiction to Scott's claim. The approach used by Taney was one strictly around the theory of the social contract and the analysis of the powers enumerated. Taney saw the Constitution as a pact between the Government and its citizens. The Constitution and its protections were "formed by them and for them, and their prosperity, but for no one else."[36]Taney believed that while Indians and Aliens could be naturalized and have all the benefits within the American community, blacks they were not citizens of the different states at the time the Constitution was adopted, and could not then be welcomed as citizens, whether by naturalization or by some state in general.[37]Therefore, Scott was not a citizen and could not sue in federal court.


Turning to the question of the power of Congress to abolish slavery. Taney agreed that the Constitution applies to the territories, but it barred Congress from abolishing slavery there. Taney rejected the existence of inherent national powers. This decision, still today some academics can call it the worst decision in the legal and constitutional host of the United States. Taking advantage of the reputation of the case, the doctrine of the leu of nations, among other things, is that the Government of the United States plans its arguments in the Insular Cases. Taney rejected that international law had relevance in any of the questions and controversies of the case. He also rejected the argument that the national Government enjoyed the full array of Powers that other sovereign nations in the world had. Taney emphasized the limited peculiar powers of the sovereignty of the United States:


"Although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of the nation. Certain specific powers, enumerated in the Constitution, have been conferred upon it; and neither the legislative, executive or judicial departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution."[38]


Like Jefferson, and contrary to Marshall in American Insurance v. Canter, Taney rejected that the territories clause extended beyond the borders of the territories of the United States when the Constitution was adopted. In this way, Taney denied the possibility that Northwest Ordinance's prohibition on slavery would apply to the new states. However, Taney agreed that the Constitution gave the power to acquire territories as part of the power to admit new states and that that power of Congress to govern territories unquestionably arose as the "unfeasible consequence to acquire territory."[39]However, this inherent power to govern the Territory did not include the power to abolish slavery. Taney then expressed the following:


"[W]hen the Territory becomes part of the United States, the Federal Government... enters upon it with its power over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied it."[40]


That argument expressed by Taney will become famous in the Insular Cases like the following one, where he rejected the possibility that the U.S. could exercise colonial authority:


"The principle upon which the 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."[41]


The concurrent and dissenting judges agreed with Taney that the Constitution applied to the territories[42]. Taney failed to have a majority in the idea that the territorial clause only extended to the original courts when the Constitution was adopted[43]. In their dissenting opinions, Judges McLean and Curtis considered that the power of Congress over the territories was broad enough, so broad as to prohibit slavery. Curtis argued that the discretion of Congress was unlimited except those prohibitions to legislate that are based on the Constitution[44]. The rules of the Congress under the Territory Clause must be needful but if this requirement was met or not it was a political and non-judicial question: "Whether Congress deems needful is so under the grant of power."[45]Taney's opinion cast a spell over the Territory Clause as a source of authority to govern territories.


The Fourteenth Amendment was adopted by Congress to overturn Taney's view that blacks could not be citizens and appeared to confirm the view that the Constitution applied uniform to the territories extending citizenship from birth to all persons subject to the jurisdiction of the United States. In the Slaughter-House Cases[46], Judge Miller's voice court recognized that the Amendment granted citizenship to the uninhabitable of a territory residing outside any state. The Thirteenth Amendment and its prohibition against slavery and involuntary servitude within the United States, or any place subject to "U.S. jurisdiction," however, was more ambiguous in its territorial scope.[47]This distinction between the United States and places subject to U.S jurisdiction could be read as confirming that the Amendment applied both to the sovereign domain of the United States and to any forts, consuls or vessels abroad. It could have been intended for the seceded southern states when the Amendment was adopted in January 1865. Alternatively, it could have been interpreted, as it would be in the Insular Cases, to mean that the United States to which the Constitution applies was some geographic subset of territories subject to U.S jurisdiction and sovereignty.[48]


In the 1878 case of Reynolds v. U.S.,[49]the court recognized the constitutional rights to an impartial jury, confrontation of the witness, and freedom of expression to the territory of Utah while nevertheless acknowledging as valid the criminal statute that criminalized polygamy. The same year in Wilkerson v. Utah[50], the court decided that the constitutional right to a jury trial "was demanded and secured for the benefit of all benefits of all people of the United States, over the government's objection that the right was only guaranteed to the states. The 1889 case of Kemon v. Gilmer[51]decided that the Seventh Amendment to the right to a jury trial was "in full force in Montana, as in all organized Territories of the United States. InAmerican Publishing Co. v. Fisher[52]the court did not discuss the source of the application of the Constitution, but did discuss that "either the Seventh Amendment to the Constitution or the acts of Congress, served every litigant in a common law action in the courts of the territory of Utah the right to a trial by jury. Two weeks later, however, the court decided that the Seventh Amendment itself required the territorial legislature to provide the guarantee of unanimous verdicts in lawsuits of a civil nature, finding that "the act of Congress could not import the power to change the constitutional rule, and could not be treated as attempting to do so."[53]

In Thompson v. Utah[54], the court decided that the right to trial by jury in criminal cases had to be made up of 12 people. Writing on behalf of the court, Judge Harlan noted that it was "beyond question" that the provisions related to the jury trial in common law actions and criminal cases applied "to the territories of the United States."[55]Even though Utah, once admitted as a state, had the sovereign power to provide for eight member juries, in governing the territory, the United States was bound by the Constitution to require twelve member unanimous verdicts required in federal courts.[56]


The battle with the Mormons for control of Utah territory formed the first stage for the development of the inherent powers of Congress. In the case of Murphy v. Ramsey[57]the constitutionality of a congressional law that prohibited polygamists from voting was questioned. Writing on behalf of the court, Justice Mathews repudiated the claim that the law unconstitutionally removed a right given by Congress:


"The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants. In their exercise of this sovereign dominion... all discretion which belongs to the legislative power is vested in Congress... subject only to such restrictions as are expressed in the Constitution or are necessarily implied in its terms [58]


In the 1890 case of Late Corporation of the Church of Latter-Day Saints v. United States[59], the court upheld the power of Congress to rescind the Charter of the Mormon Church[60]and for the Church's property in enforcing the anti-polygamy statutes.[61]The Church questioned the law as arbitrary for violating the Due Process Clause of the Fifth Amendment of the Constitution, which limited the actions of the Congress in the territory. The Church also questioned that Congress lacked the authority to relinquish the conferred property rights. The government argued that the source of its power to legislate was the Territorial Clause, the power to acquire territories, that Congress had reserved the power to annul territorial legislation in the Organic Act of Utah, that the Mormon Charter violated the Establishment Clause and that the promotion of polygamy constituted an abuse of corporate power. Writing on behalf of the court, Justice Bradley proclaimed a broad vision of absolute congressional power:


"The power of Congress over the Territories in the United States is generally and plenary... The incidents of these powers are those of national sovereignty and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty."[62]


In response to the observation made in Murphythat the Constitution restricted sovereign power, Bradley postulated his vague idea of confessional power:


"Doubtless Congress, in legislation for the territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers than by the express and direct application of its provisions."[63]


The decision provoked discontent with those in the court who believed in a limited vision of powers enumerated in the government. Presiding Judge Fuller disagreed with judges Fidel and Lamar, arguing that Congress enjoyed only enumerated powers and not inherent powers and that the Constitution did not authorize Congress to confiscate property in that manner:


"In my opinion Congress is restrained not merely by the limitations expressed in the Constitution, but also de absence of any grant of power, express or implied, in that instrument... [The property's] diversion under this act of Congress is in contravention of specific limitations in the Constitution; unauthorized, expressly or by implication, by any of its provisions, and in disregard of the fundamental principle that the legislative power of the United States... is delegate and not inherent.”[64]


The same year as the decision of Latter-Day Saints, the court in Jones v. United States[65]decided that the United States as a result of its nationhood could exercise criminal jurisdiction over its overseas possessions. Under the 1856 Guano Island Act, Congress authorized the President to declare part of the sovereignty of the United States the inoculated islands of Guano in the Caribbean and extended criminal jurisdiction in the islands. Henry Jones was a U.S. national seaman who had been tried and convicted by a federal jury in Maryland for the capital murder committed during a labor dispute on the Caribbean island of Navassa. Jones did not argue did not bring a claim of individual rights against his conviction, only claim the authority of Congress to legislate on territories that were neither part of the territorial Domain of the United States or the high seas.[66]The government of the United States argued that Congress had the power to legislate, through the Territorial Clause[67]or under the inherent power to govern American citizens recognized by international law which the government contended the Constitution bestowed it.[68]Without any discussion about the congressional source of constitutional authority, the court accepted the government's international argument.


"By the laws of nations, recognized by all civilized states, the dominion of new territory may be acquired by discovery and occupation, as well as by cession or conquest; and... the nation... may exercise such jurisdiction and for such period as if sees fit over territory so acquired. This affords ample warrant for the legislation of Congress concerning guano islands.”[69]


The next term the court decided in In Re Ross[70]that the constitutional criminal protections of a jury trial and a sworn indictment did not apply to the consular courts in Japan. Ross was an English seaman on an American merchant ship that was accused of killing a mate on the ship in the port of Yokohama. Ross was convicted and sentenced to death by a consular court composed of the consul general and four American citizens. The court had been created by a treaty between the United States and Japan.[71]If the crime had been committed in the high seas, Ross like Jones the year before would have been to trial under federal law in a U.S. domestic Court, with the complete constitutional protections.[72]President Rutherford B. Hayes commuted Ross's sentence and sentenced him to life in incarceration in Albany, New York.[73]Ten years later, Ross brought a habeas corpus claim arguing that his conviction violated his constitutional rights to a grand jury indictment and a jury trial.[74]


Justice Field, in the 1890 case of Geofroy v. Riggs, held for the Court that the treaty power was limited by the Constitution[75]. Contrary to Geofroy and writing on behalf of a unanimous court in Ross, Justice Field found no difficulty in finding authority for Congress to create consular courts based on the treaty power. It had been the standard practice of civilized governments for centuries to provide consular tribunals for their naturals.[76]Field reasoned that consular courts were created because of the need to protect American citizens in non-Christian countries, mainly Muslim countries.[77]Field argued that the United States enjoyed a power similar to that of Korean governments, which included the power to establish consular courts:


"The treaty-making power vested in our government extends to proper subjects of negotiation with foreign governments. It can, equally with any former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein."[78]


The power of Congress to create consular courts was not an issue in this case. The question was whether Congress had the power to establish consular courts that interpreted US laws against American citizens without having the protection of the fifth or the Sixth Amendment. Field responded concerning the individual rights of the Constitution by using an interpretation on strictly territorial issues:


"By the Constitution, a government is ordained and established for the United States of America and not for their countries outside their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial..., and not to residents or temporary sojourners abroad. The Constitution can have no operation in another country."[79]


Field denied Ross's argument that the American ship constituted American territory where the Constitution applied. Field recognized that American ships were considered territories of the United States for many purposes, but people aboard the ship could not invoke the protections of the fifth and sixth amendments "until brought within the current boundaries of the United States."[80]The territorial limits and the authority of the United States were governed only under the agreements made with the foreign government. Field avoided jurisdictional issues since Rosswas a Briton concluding that the provisions of the treaty creating jurisdiction over the Americans referred to "those who brought in the jurisdiction of the consular courts for offenses committed in Japan."[81]Ross established strict limits of territoriality to the Constitution concerning provisions related to individual rights. Through the power of making treaties, did the United States jump into an extra-constitutional world where the law of nations reigned?


The argument that general limitations could apply to US territories reread mostly in the dicta in Fleming v. Pageand Latter-Day Saints. The established doctrine was the Constitution applies to the national territories of the United States and that the Congress enjoyed the shared authority of state / federal government over citizens subject to the limitations of the Constitution. It was not clear if the power came from the Territory Clause, the power to acquire, the power to make treaties or the inherent authority. All of the decisions after Scottavoided answering any of those questions directly. The only territorial case where the court decided that the Constitution did not limit the congressional authority was In Re Ross, that as we discussed involved the action in a Japanese territory not subject to the sovereignty of the United States. To conclude, in the decade of the 1890s, no case in the court decided that constitutional limitations did not operate in territories subject to American sovereignty.


After discussing the critical cases before the change of sovereignty, let us summarize them with the positions that each one supports:


1. Congress had authority to govern territories under the Territory Clause (Am. Ins. Co. v. Canter, 26 U.S. [1 Pet.] 511, 1828).

2. Congress had inherent authority to govern territories pursuant to the sovereign powers to acquire (Canter, 1828; Scott v. Stanford. 60 U.S. [19 How.] 393 1857; Jones v. United States, 137 U.S. 2021890).

3. The Constitution and U.S. laws applied automatically to newly acquired territory (Loughborough v. Blake,18 U.S. [5 Wheat.] 317 1820; Cross v. Harrison, 57 U.S. (16 [How.] 164 1853; Dred Scott, 1857).

4. Not all portions of the U.S. Constitution and the U.S. laws applied to the territories (Canter,1828; Murphyv. Ramsey, 114 U.S. 15 1885).

5. The Constitution and the U.S. laws did not apply to new territories until extended there by Congress (Fleming v. Page, 1850 dicta).

6. The letter of constitutional limitations did not restrict Congress in the territories (Late Corporation of Church of the Latter-Day Saints v. United States,136 U.S. 11890 dicta).

7. Congress could act extraterritorially pursuant to the treaty power without constitutional limitation (In re Ross, 140 U.S. at. 454 1891).


[1]10 U.S. (6 Cranch) 332 (1810).

[2]Id. at. 336-337.

[3]18 U.S. (5 Wheat) 317 (1820).

[4]Id. at. 318-319.

[5]Id. at. 319.

[6]26 U.S. (1 Pet.) 511, 542 (1828). In 1826, Congress disapproved the provision authorizing inferior territorial courts to exercise admiralty jurisdiction int the territory.

[7]Id. at. 523.

[8]Id. at. 542.

[9]Id. Marshall complained: “The usage of the world is… to consider the holding of conquered territory as a mere military occupation, unit its fate shall be determine by treaty of peace. If it ceded by treaty, the acquisition is confirmed, and the ceded territory becomes part of the nation to which is annexed; either on the terms stipulated in the treaty of cession, or such as its new master shall impose… The same Act which transfers their country transfers the allegiance of those who remain in it, and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse, and general conduct of individuals, remains in force, until altered by the newly created power of the state.

[10]Article 6 of the February2, 1819 treaty provided, “The in habitants of the territories...shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States.” Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty, Feb. 22, 1819, U.S.-Spain, 8 Stat. 252, 256. The Act of Congress of March 3, 1823, provided that “no law shall be valid, which is inconsistent with the laws and Constitution of the United States.” Act of Mar. 3, 1823, ch. 28, 3 Stat. 750 (establishing a territorial government in Florida).

[11]Sere and Carter appear to be contradictory to Loughborough, where he applies a formalistic approach to the controversy. Canter, 26. U.S. 542 (“Florida continues to be a territory of the United States, governed by the virtue of that clause in the Constitution, which empowers Congress to make all needful rules and regulations, respecting the territory, or the property belonging to the United States.)

[12]Id. at. 542-543.

[13]Id. at. 546.

[14]Id.

[15]Id.

[16]Id.

[17]United States v. Gratiot, 39 U.S. (14Pet.) 526, 537-38 (1840) (holding, with respect to the original U.S. territories, that the power to “make all needful rules and regulations” for the territory was “vested in Congress without limitation”).

[18]50 U.S. (9 How.) 235 (1850).

[19]Id. at. 242, 244.

[20]Id.at. 242.

[21]Id. at. 243.

[22]Id.

[23]50 U.S. (9 How.) 603 (1850).

[24]Id. at. 606.

[25]Id. at. 611.

[26]Id. at. 614.

[27]Id. at. 615.

[28]Id.

[29]Id. at. 618.

[30]Id. at. 614.

[31]Downes v. Bidwell, 182 U.S. 244, 275-76 (1901) (citing Thomas Hart Benton, A History and Legal Examination of that Part of the Supreme Court of the United States in the Dred Scott Case(1857)).

[32]Id. at. 156. (“If by that Constitution slavery is extended, I am willing to stand by that Constitution. I am unwilling to withhold from our Southern brethren any of the rights given to them by that sacred instrument.”) (statement of Rep. Benjamin Walker of New York).

[33]Downes, 182 U.S. at. 276.

[34]57 U.S. (16 How.) 164 (1853).

[35]60 U.S. (19 How.) 393 (1857).

[36]Idat. 406.

[37]Id. at. 407 (“They had for more than a century before been regarded as being so far inferior order, and altogether unfit to associate with the white race,... and so far inferior, that they had no rights which the white man was bound to respect....”).

[38]Id.at. 401.

[39]Id. at. 432.

[40]Id. at. 449-450.

[41]Id. at. 447-448.

[42]Id. at. 542. McLean, J., dissenting) (“In organizing the government of a Territory, Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution, or which are contrary to its spirit.”); id. at 614 (Curtis, J., dissenting) (arguing that Congress's power to legislate for the territories, like all other legislative powers of Congress, “finds limits in the express prohibitions on Congress not to do certain things” such as pass ex post facto laws or bills of attainder, “and so in respect to each of the other prohibitions contained in the Constitution”).

[43]Three members of the majority and both dissenters rejected Taney's position. See Id. at 489 (Daniel, J., concurring); Id. at. 450 (Campbell, J., concurring); Id. at 519-21 (Catron, J., concurring); Id. at 540-42, 544 (McLean, J., dissenting) (Congress's power to legislate arose from the Territory Clause and the power to conquer territory); Id.at 613 (Curtis, J., dissenting) (ridiculing the majority for rejecting the Territory Clause but nevertheless implying the authority to govern from “suppositious powers” found nowhere in the Constitution).

[44]Id. 623.

[45]Id. at 614-16 (Curtis, J., dissenting); see also Id. at 540-42 (McLean, J., dissenting).

[46]83 U.S. (16 Wall.) 36 (1873).

[47]U.S. Const. amend. XIII, §1.

[48]See Downes v. Bidwell, 182 U.S. 244, 251 (1901) (Brown, J.) (asserting that the Thirteenth Amendment demonstrates “that there may be places within the jurisdiction of the United States that are no part of the Union”); Id. at 336 (White, J., concurring) (same). See Id. at 358 (Fuller, C.J., dissenting) (concluding that the Amendment's language was included “out of abundant caution” to include the rebellious southern states and would have applied to the territories even without the phrase “or any place subject to their jurisdiction”).

[49]98 U.S. 145 (1878).

[50]99 U.S. 130, 137 (1878). (rejecting the claim that a sentence that a convicted capital defendant “be publicly shot until he was dead” violated the 8thAmendment).

[51]131 U.S. 22, 28 (1889).

[52]166 U.S. 464 (1895).

[53] Springville v. Thomas, 166 U.S. 707, 708-09 (1897).

[54]170 U.S. 343 (1898). The defendant Thompson had stolen a calf while Utah was a territory, and later was convicted by an eight-member jury as provided by the Utah Constitution after Utah became a state. Justices Brewer and Peckham dissented without opinion.

[55]Id. at. 346-347.

[56]Id. at. 355.

[57]114 U.S. 15 (1885).

[58]Id. at. 44.

[59]136 U.S. 1, 42, 64-65 (1890).

[60]The Charter had been granted by the preexisting Mormon State of Deseret. Id. at. 3.

[61]The statute authorized the Attorney General to forfeit the property of the Mormon Church without any criminal proceeding establishing a violation of the anti-polygamy statutes. The proceeds from the forfeited property were to be used for the common schools of the territory. Id. at. 7.

[62]Id. at. 42.

[63]Id. at. 44.

[64]Id. at. 67-68.

[65]137 U.S. 202, 212-213 (1890).

[66]Brief for Plaintiff in Error at 4-5, 7, Jones (No.1143). The Defendant also denied that the discovery was valid since Haiti had a prior claim to the territory and the island had no guano. Id. at 13. Haiti's 1856 claim to the island had not been acknowledged by the United States, since the United States refused to recognize the black- ruled island of Haiti until after the Civil War.

[67]Brief for Defendant in Error at 7-8, Jones (No. 1143).

[68]Id. at. 8-9. (“The power...to enact laws for the government, trial, and punishment of American citizens for crimes wherever committed is inherent in Congress under the Constitution, as a like inherent power is vested in every other nation to supervise, try, and punish its own citizens or subjects.”). The government contended that this power was recognized by the constitutional provision allowing Congress to designate the location of trials for crimes committed outside of any state. Id. at. 10.

[69]Jones, 137 U.S. at. 212.

[70]140 U.S. at. 454.

[71]Treaty of June17, 1857, art. IV, 11 Stat. 723; Treaty of July 29, 1858, art.VI, 12 Stat. 1056. Similar treaties had been entered with China, Siam, Egypt, and Madagascar.

[72]Act of Apr. 30, 1790, ch. 9, §8, 1 Stat. 112 (“[T]he trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought.”).

[73]Ross, 140 U.S. at. 454.

[74]Id.

[75]103 U.S. 258, 267 (1890) (The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument.... It would not be contended that it extends so far as to authorize what the Constitution forbids....”).

[76]Ross, 140 U.S. at. 462.

[77]Id. at. 463. (“[B]y reason of the barbarous and cruel punishments inflicted in those [Islamic] countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects... from the arbitrary and despotic action of the local officials.”).

[78]Id. In other words, the Constitution’s Treaty Clause created the source of U.S. authority to establish consular courts abroad.

[79]Id. at. 464.

[80]Id.

[81]Id. at. 475.

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