Fort Crawford, Prairie du Chien, Wisconsin, built in 1826. For a long time Forts Crawford and Snelling were the principal outposts of the United States along the upper Mississippi River. From a painting in possession of the Wisconsin Historical Society.

CHAPTER XX

THE AMERICAN SYSTEM OF TERRITORIAL GOVERNMENT

THE United States has from time to time been confronted with the problem of the government of new territory. This has been one of the most important and interesting questions from the day when the federated States settled so wisely the conflicting claims to the western domains to the present, when the treatment of the recently acquired foreign territory is of vital importance. This westward expansion, which involved the question of the government of the new territory, did not greatly interest the men who agreed to the Articles of Confederation. They were more concerned about finding some way by which the Atlantic States could work in harmony than in providing for future contingencies.

The framers of the Constitution provided that new States might be admitted into the Union, and that Congress should have power "to dispose of and make all needful Rules and Regulations respecting the territory of the United States." There was no right expressly given to acquire new lands, but this was recognized by the majority to be an attribute of sovereignty. The Union had the power to carry on war and make treaties. Treaty making often meant the acquisition of territory. This has proved to be the case, and frequently since the formation of the Constitution the nation has seen reason to add to its territory by purchase or conquest. The problem of government became a pressing one, and this has been, as a whole, wisely solved.

The first experiment was greatly facilitated by the fact that those for whom the government was to be made were people from the eastern section, who had already had experience in self-government.

In Louisiana a different problem was presented, because the people were largely of an alien race, and a military despotism was for a time established, as it seemed to be necessary. How the newly acquired territory should be organized had to be decided by circumstances. It was not always wise to give the people the full privileges of American citizens. This principle, as old as the Louisiana Purchase, has been again enunciated in the treatment of the Insular cases in a decision of the Supreme Court in 1901; Justice Brewer said, in announcing the judgment of the court: "A false step at this time might be fatal to the development of what Chief Justice Marshall called the American Empire. Choice in some cases, the natural gravitation of small bodies toward large ones in others, the result of a successful war in still others, may bring about conditions which would render the annexation of distant possessions desirable. If these possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action."

Sometimes the annexed territory has passed at once to statehood; at other times there has been a long period of waiting; but the government has from the beginning been guided in its administration of acquired territory by the principle that it is contrary to the spirit of this nation to hold colonies, and that all acquired territory is to be advanced toward statehood as rapidly as can be done with

benefit to itself and safety to the nation; and in every case so far the nation has been true to this principle, except that the Territorial condition has sometimes been prolonged because of sectional politics.

A Territorial government is legally a temporary arrangement. How long this time of waiting for fuller organization to State privileges must be depends upon whether the Territorial subjects are such men as Manasseh Cutler and his fellow Americans from Massachusetts and Virginia, or the Sultan of Sulu and his subjects. Naturally, the latter will be slow in absorbing Anglo-Saxon ideas of self-government. Noticing now more particularly the government and administration of the Territories, we find that the foundation for the Territorial system was laid in the Ordinance of 1787. To sum up what has already been presented, the Ordinance provided that a governor and judges should be appointed by Congress. After the adoption of the Constitution, this power of appointment passed to the president. The governor and judges constituted a legislative body to form a code of laws, but were limited to the selection of laws already in force in the States. Congress had the right to an absolute veto on every legislative act. When the popu

lation reached five thousand the Territory could enter upon the second stage, in which the people elected their own legislature, but Congress still had the veto power. Under this Ordinance, the Northwest Territory was organized into separate Territories.

Complications arose when it was necessary to organize territory beyond the original limits of the United States, and many questions were raised as to how that could be done under the Constitution. This was debated during the presidency of Jefferson. It seemed necessary at the time for the President of the United States to take over with very little change the power which had belonged to the Spanish ruler of Louisiana. But this temporary despotism gave way to a system similar to that which obtained in the earlier Territories, modified by the different conditions.

The governor of Louisiana was appointed by the president for three years, and a secretary for four years. The Territorial legislature was composed of the governor and a Legislative Council of thirteen members who were appointed annually by the president, but every legislative act became null and void if vetoed by Congress. Special laws for Louisiana Territory were passed by Congress. Out of Upper Louisiana, Missouri Territory was organized in 1812, with a governor, Legislative Council, and House of Representatives. The last was elected by the people.

All the present United States, except the original thirteen States and Vermont, Maine, Kentucky, West Virginia, Texas, and California, have passed through the Territorial period. Of these, all except Texas and California were originally parts of other States, while Texas and California were admitted to statehood without Territorial organization.

How far Congress had the right of legislation for the Territories became a disputed question when action was taken for the admission of Missouri into the Union. It was asked whether Congress had a right to impose any restriction. Objection was made that any restriction would be inconsistent with the sovereignty of the State about to be admitted into the Union.

In the act passed for the purpose of admitting Missouri, March 6, 1820, there was a clause prohibiting slavery in all the territory obtained from France north of thirty-six degrees thirty minutes north latitude, except Missouri. Congress made this restriction in relation to the territory outside of Missouri on the ground that it had a right to make all needful regulations respecting the territory of the United States.

The power of Congress over the Territories is defined by the following decision of the Supreme Court in the case of the Mormon Church against the United States:

"The principal questions raised are, first, as to the power of Congress to repeal the charter of the Church of Jesus Christ of Latter Day Saints, and, secondly, as to the power