With respect to the form of government that may be established and maintained by Congress over the Territories, there is no distinction between an incorporated and an unincorporated Territory. In either case the congressional authority is absolute. With respect, however, to the civil or private rights of the inhabitants of the Territories, the distinction is very important. For if it be that a Territory is merely appurtenant to, but not "incorporated" into the United States, Congress in its legislation regarding it is bound by but few of the limitations which apply in the case of incorporated Territories, whether organized or unorganized.
This distinction between incorporated and unincorporated territory is one that was not clearly made until the decision of the the District of Columbia. And yet separate communities, with an independent local government, are often described as States, though the extent of their political sovereignty be limited by relations to a more general government or to other countries. (Halleck on Int. Law, chap. Ill, §§ 5, 6, 7.) The term is used in general jurisprudence and by writers on public law as denoting organized political societies with an established government. Within this definition the District of Columbia, under the government of the United States, is as much a State as any of those political communities which compose the United States. Were there no other territory under the government of the United States, it would not be questioned that the District of Columbia would be a State within the meaning of. international law; and it is not perceived that it is any less a State within that meaning because other States and other territory are also under the same government."
After referring to the case of De Geofroy v. Riggs, Justice Brown in the individual opinion which he rendered in Downes v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088), observes: "In dealing with foreign sovereignties, the term 'United States ' has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal Government, wherever located. In its treaties and conventions with foreign nations, this government is a unit. This is so, not because the Territories comprise a part of the government established by the people of the States in their Constitution, but because the Federal Government is the only authorized organ of the Territories, as well as of the States in their foreign relations."
Insular Cases in 1901. Indeed, prior to that time, there had been a number of decisions by the Supreme Court which indicated that such a distinction did not, and could not, exist according to the Constitutional Law of the United States. There were, however, on the other hand, not a few legislative and administrative precedents which supported such a doctrine; and by rigorously confining the contrary decisions of the Supreme Court to the facts of the cases in which they were rendered, it was found possible to escape from their control, and to hold that the term "United States," as used in at least some of the clauses of the Constitution, docs not, and was not intended to, include all districts subject to the sovereignty of the United States; and that as to such areas not within the limits of the "United States," in this strict constitutional sense, Congress, in the exercise of its legislative powers, is not subject to the limitations which rest upon it when dealing with Territories which are included in the United States.
A review of the decisions of the Supreme Court rendered prior to the Insular Cases, shows that, from the first, the doctrine was held by the court that Congress when legislating upon the civil rights of inhabitants of the Territories is governed by all those express and implied limitations which rest upon it when dealing with the same subjects within the States.2 The only departures from this doctrine, if departures they be, were: (1) The remark thrown out by Justice Bradley in the Mormon Church case3 that "Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its
2 See Loughborough v. Blake, 5 Wh. 317; 5 L. ed. 98; Am. Ins. Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; Webster v. Reid, 11 How. 437; 13 L. ed. 761; Scott T. Sandford, 19 How. 393; 15 L. ed. 691; Reynolds v. U. S., 98 U. S. 145; 25 L. ed. 244; Nat. Bank v. Yankton, 101 U. S. 129; 25 L. ed. 1046; Murphy v. Ramsay, 114 U. S. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47; Callan v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223; Mormon Church v. U. S., 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478; Am. Pub. Co. v. Fisher, 166 IT. S. 464; 47 Sup. Ct. Rep. 618; 41 L. ed. 1079; Springville v. Thomas, 166 U. S. 707; 17 Sup. Ct. Rep. 717;
41 L. ed. 1172; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 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 any express and distinct application of its provisions;" and (2) the quotation of this observation by Justice Brewer in American Publishing Co. v. Fisher4 and the statement that "whether the Seventh Amendment of the Constitution of the United States . . . operates ex prop no vigore to invalidate this territorial statute may be a matter of dispute." 5
42 L. ed. 1061.
3 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.
Opposed, however, to this great weight of judicial opinion, there had been from the beginning, as has been said, a line of administrative and legislative precedents which tended to show a prevailing opinion that the Constitution with its limiting clauses does not immediately extend, ex proprio vigore, over all annexed territories, but over only such as have been expressly brought within its sphere of application by being "incorporated " in the Union. And, based upon the fact that this incorporation had certainly taken place with reference to the Territories concerned in the various Supreme Court decisions rendered prior to the Insular Case, an argument was furnished for holding them not controlling in the Insular Cases which were concerned with districts that had not been so incorporated. These legislative and administrative precedents it does not fall within the province of this treatise to review. It is sufficient to say that in not a few instances various of the constitutional limitations were not applied in practice in the Territories, and that by specific legislative provisions these limitations were, from time to time, extended over the several Territories acquired by the United States, thus indicating on the part of Congress at least a doubt as to whether the constitutional provisions extended ex proprio vigore over the Territories.
Finally, it is to be observed, that, in the Constitution itself, there occur expressions which furnish possible ground for holding that some at least of its limitations were not intended to operate over all Territories that might come under the jurisdiction of, but remain merely appurtenant to, the United States. Thus the Thirteenth Amendment declares that slavery and involuntary servitude shall not exist "within the United States, or any place subject to their jurisdiction." Thus is plainly indicated the possibility that there may be districts subject to but not within the United States. And this point is emphasized when it is remembered that this Amendment was drafted and adopted by substantially the same men who drafted and adopted the Fourteenth and Fifteenth Amendments in which this qualifying phrase does not appear. Again, the Sixth Amendment provides that in criminal trials the accused shall be tried by an impartial jury "of the State and district wherein the crime shall have been committed." 6
4 166 U. S. 464; 17 Sup. Ct. Rep. 618; 41 L. ed. 1079. 5 The case of In re Ross (140 U. S. 453; 11 Sup. Ct. Rep. 897; 35 L ed. 581), properly construed, did not indicate a departure from the rule.
6 In United States v. Dawson (15 How. 467; 14 L. ed. 775), the opinion declares: "But it will be seen from the words of this amendment that it applies only to the case of offenses committed within the limits of a State. . The language of the Amendment is too particular and specific to leave any doubt about it." In Cook v. United States (138 U. S. 157; 11 Sup. Ct. Kep. 268; 34 L. ed. 906), the court say: "That amendment has reference only to offenses against the United States committed within a State" (citing United States v. Dawson). Yet, as we have seen in Reynolds v. United States (98 U. S. 145; 25 L. ed. 244), the court declared specifically that the Amendment was applicable to the Territory of Utah.