Legislature. It is not the usual function of a Legislature composed of necessarily non-expert delegates to inquire whether the circumstances and conditions of communities which none of the delegates represent, but to which the powers of the Legislature extend, are the same as those of communities represented, and from hence to "infer" that express limitations upon the power of the Legislature in the latter are, according to "the general spirit of the Constitution," applicable in the former. If a representative body has, in fact, as a part of its duties, to occupy itself with such "inferences," its duties are essentially expert, and its powers of legislation are incidental to its power of disposition. It is acting under an unwritten Constitution.

In the case of McAllister v. The United States, 141 U. S., 174, which involved the question of the power of Congress over the Judges of Territorial Courts with respect to their term of office, suspension, or removal, the Court, speaking by Mr. Justice Harlan, in upholding the power of Congress in this respect, said:

How far the exercise of [the plenary power of Congress over the Territories of the United States] is restrained by the essential principles upon which our system of government rests, and which are embodied in the Constitution, we need not stop to inquire, though we may repeat what was said in Mormon Church v. United States, 136 U. S. 1, 44: “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 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 direct application of its provisions."

Here was another enormous step forward. The power of the American Union over its dependencies is, it was

intimated, "restrained by the essential principles upon which our system of government rests, and which are embodied in the Constitution." This was a very different proposition, indeed, from that advanced in the Mormon Church case that the power was restrained by "those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments." The suggestion plainly is that every provision of the Constitution is, in principle and so far as applicable, a restriction upon the power of the American Union and its Central Government over the dependencies. At last the Supreme Court returned to the principle of the old English Colonial Charters-that all governmental action relating to the dependencies should "not be repugnant to, but agreeable, as nearly as may be, to the Constitution, laws and customs" of the Imperial State, "considering the circumstances and conditions" in the dependency, and the Congress of the United States was declared to stand substantially in the same relation to the dependencies as the King in Council did to the American Colonies, though possessing, in addition, full powers of legislation and execution, in aid of its jurisdiction—that is, to have the power of disposition of the dependencies.

Though Mr. Chief Justice Fuller, Mr. Justice Field, and Mr. Justice Lamar dissented in the Mormon Church Case, and Mr. Justice Field, Mr. Justice Gray, and Mr. Justice Brown in the McAllister Case, their dissent did not go to the statement of the majority regarding the effect of the Constitution in the Territories.

In the case of Downes v. Bidwell, one of the so-called Insular Tariff Cases, decided May 27, 1901, and reported in 182 U. S., 244, involving the validity of the special tariff for the island of Porto Rico, established by Act of Congress on April 12, 1900, the whole question of the relationship of the Constitution of the United States to the

Constitution of the American Empire was again considered, and the power of the Union to establish this special tariff was upheld by a majority of the Court. Five of the Judges were of the opinion that the Constitution of the United States is the basis of the unwritten Constitution of the American Empire, so that the American Union is at liberty to treat its dependencies as having natural rights of statehood and as entitled to a régime either of autonomy or of assimilation according to the local conditions and circumstances of each; and four were of the opinion that the Constitution of the United States, or some part of it, is actually the written Constitution of the American Empire, so that the Union can recognize no right in the dependencies to a régime of autonomy, but is obliged to force upon them, to an extent not specified, a régime by which they shall be assimilated, as nearly as possible, to the States of the Union regardless of their local conditions and circumstances. Because the Constitution provides that all taxes, duties, and imposts shall be "uniform throughout the United States," the dissenting Judges were of opinion that they must be likewise uniform throughout the American Empire.

The régime which the French call the régime of assimilation, the majority of the Supreme Court in the Insular Tariff Cases call the régime of "incorporation." The French word seems the more proper. "Incorporation " means "admission into the body and personality" of the State. In the case of a State under popular government, incorporation of lands and populations can only occur by admission of them to a representation in the Legislature on equal terms with the lands and populations already constituting the body and personality of the State, and with equal participation in the vote for the Executive if he is elective. In the case of a Federal State, incorporation of lands and populations can only occur when they

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form a State and that State is admitted into the Union as a State, on equal terms respecting representation in the Congress or Parliament, and with equal participation in the vote for Chief Executive if he is elective. Lands and populations, however, though not incorporated into the State, may be dependent upon the State under a régime similar in all respects except participation in the election of the Central Government to that which prevails in the lands and populations which are actually incorporated into the State. Such a dependency is under the régime of "assimilation," as distinguished from the régime of "autonomy."

Mr. Justice White, speaking also for Mr. Justice Shiras and Mr. Justice McKenna, in his opinion maintaining the proposition that the Constitution of the United States is only the basis of the unwritten Constitution of the Empire, and that the American Union has the right to apply either the régime of assimilation or autonomy, said:

In some adjudged cases, the power to locally govern at discretion has been declared to arise as an incident to the right to acquire territory. In others it has been rested upon the clause of Section 3, Article IV. of the Constitution, which vests Congress with the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States. But this divergence, if not conflict of opinion, does not imply that the authority of Congress to govern the Territories is outside of the Constitution, since in either case the right is founded upon the Constitution, although referred to different provisions of that instru

ment.

Whilst, therefore, there is no express or implied limitation on Congress in exercising its power to create Local Governments for any and all of the Territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed,

principles which are the basis of all free government, which cannot be with impunity transcended. But this does not suggest that every express limitation of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution.

As Congress in governing the Territories is subject to the Constitution, it results that all the limitations of the Constitution which are applicable to Congress in exercising this authority necessarily limit its power on this subject. It follows also that every provision of the Constitution which is applicable to the Territories is also controlling therein.

It is insisted, however, conceding the right of the Government of the United States to acquire territory, that, as all such territory when acquired becomes absolutely incorporated into the United States, every provision of the Constitution which would apply under that situation is controlling in such acquired territory. This, however, is but to admit the power to acquire, and immediately to deny its beneficial existence.

The general principle of the law of nations, already stated, is that acquired territory, in the absence of agreement to the contrary, will bear such relation to the acquiring government as may be by it determined. To concede to the Government of the United States the right to acquire, and to strip it of all power to protect the birthright of its own citizens and to provide for the well-being of the acquired territory by such enactments as may in view of its condition be essential, is, in effect, to say that the United States is helpless in the family of nations, and does not possess that authority which has at all times been treated as an incident of the right to acquire. Let me illustrate the accuracy of this statement. Take a case of discovery. Citizens of the United States discover an unknown island, peopled with an uncivilized race, yet rich in soil, and valuable to the United States for commercial and strategic reasons. Clearly, by the law of nations, the right