8. It has been proposed by a well-known public man that federal judges should be elected by the people. What is your opinion of the proposition?

9. Do you think the present salary allowed justices of the Supreme Court large enough to attract the best judicial talent?

10. Do you think the Supreme Court is ever justified in reversing its own decisions, or should it stand by the precedents?

11. What is the meaning of the term obiter dicta as applied to a judicial opinion?

12. Do you think it is a wise practice for judges who disagree with the majority of the court to file dissenting opinions?

13. A recent President took occasion to criticize publicly a federal judge for a decision which he rendered in a "trust" case. Do you think judges should be criticized for their decisions?

14. Are juries ever made use of in federal courts? If so, when?

15. Why have federal judges been criticized for issuing injunctions?

16. When may an appeal be taken from a state court to a federal court?

17. The Supreme Court has always refused to decide "political"

controversies. What is a "political" as opposed to a "legal"

controversy? Give examples.

CHAPTER XIX

GOVERNMENT OF THE TERRITORIES AND DEPENDENCIES

=Power of Congress over the Territories.=--The Const.i.tution expressly confers upon Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. In dealing with the territories the powers of Congress are general or residuary in character, whereas when it legislates for that part of the country which has been erected into states, its powers are specifically enumerated. Congress, therefore, may establish practically any form of government in the territories that it chooses. It may, if it wishes, set up therein a military government or it may establish civil government with such limitations and exceptions as it may wish. In the latter case it may allow the inhabitants a legislative a.s.sembly for purposes of local legislation, or Congress may legislate directly for them itself. And in case it permits the inhabitants to have a legislative a.s.sembly of their own and to enact their own laws, Congress may veto or modify any law pa.s.sed by such legislature. Indeed, says the Supreme Court, Congress may make valid an invalid act pa.s.sed by a territorial legislature as well as declare invalid a valid act pa.s.sed by it.

_Does the Const.i.tution Extend to the Territories?_--A subject much discussed, especially at the time of the acquisition of Porto Rico and the Philippines, was whether such provisions of the Const.i.tution as were applicable extended of their own force to new territories immediately upon the establishment of American sovereignty over them; that is, whether the Const.i.tution "follows the flag" or whether its provisions apply only when extended by act of Congress. One party a.s.serted that such provisions go wherever the sovereignty of the United States goes, that the government cannot be carried to any new territory unless accompanied by the Const.i.tution from which it derives its authority, and that Congress has no power to withhold such provisions as are applicable. The other party maintained that the Const.i.tution was established only for the people of the United States; that whenever new territories have been acquired, Congress has extended such provisions as it saw fit; and that Congress is unlimited as to its power in dealing with the inhabitants of such territories. The Supreme Court in the famous Insular Cases, decided in 1900 and 1901, upheld the latter view and ruled that for all practical purposes the territories of the United States are completely subject to the legislative authority of Congress, and that it is not even restricted by those provisions of the Const.i.tution which were adopted for the protection of individual liberty. In practice Congress has always extended to the domestic territories such provisions of the Const.i.tution as were applicable, thus putting the inhabitants upon the same footing as those of the states so far as the enjoyment of _civil_ rights are concerned, but not as to _political_ rights. So far as the insular territories are concerned, it has also extended most of the provisions relating to civil rights, though in the case of the Philippines a few safeguards such as the right of indictment by grand jury, trial by jury, and the right to bear arms have been withheld.

=The Origin of the Territorial System.=--Before the Const.i.tution was adopted, Congress had acquired by cession from certain of the original states a vast domain of territory north of the Ohio River, and later it acquired a considerable domain lying south of the Ohio (p. 159). One of the conditions upon which the territory north of the Ohio was ceded, was that Congress should form the territory into distinct republican states which should be admitted to the Union on an equal footing with the old states. It was felt, however, that the territory in question should be put through a sort of preparatory stage before being erected into states; that is, it should be held in a state of dependency until the population was sufficiently numerous to maintain a state government and the inhabitants had acquired sufficient political capacity to manage their own public affairs.

_The Northwest Territory._--By the famous Ordinance of 1787, as reenacted and slightly modified two years later (after the adoption of the Federal Const.i.tution), Congress provided a scheme of government for the northwest territory which was in force for many years. The Ordinance provided for two grades of government: one for the territory before its population should amount to 5,000 inhabitants; the other for the territory thereafter. The princ.i.p.al difference was that in the former case the territory was to have no local legislature of its own, while in the latter it was to have a legislative a.s.sembly. The scheme of government provided in the beginning consisted of a governor, a secretary, and three judges, appointed by the President. Although no legislature was provided, the governor, secretary, and judges were empowered, not to make new laws, but to select such laws from the statutes of the old states as were suitable.

When the population had reached 5,000 inhabitants, the territory was given the second grade form of government, that is, it was allowed a local legislature, the lower house of which was elected by the inhabitants on the basis of a restricted suffrage, the upper house or council to be appointed by the President from a list nominated by the lower house. The territory was now allowed to send a delegate to Congress with a right to a seat in that body, but no right to vote.

The scheme of government thus provided for the northwest territory became the model for the later territorial governments. It was introduced into the southwest territory and later to the territory acquired west of the Mississippi River.

=The Organized Territories: Hawaii and Alaska.=--The territories and dependencies of the United States may be grouped into two cla.s.ses: the organized and the unorganized. A territory of the first cla.s.s is said to be "organized" because it has its own local legislature, both houses of which are elected. At present the only territories of this cla.s.s fully included as parts of the United States are Hawaii[105] and Alaska,[106] but since most of the states were organized territories before being admitted to the Union, this kind of government is of more than ordinary interest to the student of civics.

[105] The Hawaiian Islands were annexed to the United States in July, 1898, by a joint resolution of Congress after a treaty of annexation had been rejected by the senate. The senate of Hawaii is composed of fifteen members, the house of thirty; ability to speak, read, and write the English or Hawaiian language is required of voters; the governor may veto special items in appropriation bills; and in case the legislature fails to pa.s.s appropriation bills to pay the necessary expenses for carrying on the government and meeting its obligations, the treasurer may, with the approval of the governor, make such payments, for which purpose the sums appropriated in the last appropriation bills shall be deemed to have been reappropriated; the purpose being to prevent the legislature from causing deadlocks.

[106] For Porto Rico and the Philippines, see pages 374-379.

_Executive._--In a fully organized territory there is a governor who is appointed by the President with the consent of the senate for a term of four years, and who enjoys the usual powers of a state executive. The appointment is usually made from the residents of the territory, though in a few cases outsiders have been appointed. There is also a secretary who keeps the records of the territory, compiles and publishes the acts of the legislature, and serves as governor during the absence or disability of the latter official. Other administrative officers of the territory are the attorney-general, treasurer, commissioner of public lands, superintendent of public education, surveyor, and auditor.

_The Legislature_ is composed of two houses, both of which are popularly elected. Regular sessions of the legislature are held every two years and are limited to sixty days, though the governor may call extraordinary sessions with the approval of the President of the United States.

The territorial legislature is empowered to enact laws in respect to all rightful subjects of legislation not inconsistent with the laws and Const.i.tution of the United States. Congress, however, has from time to time imposed various limitations upon the power of the territorial legislatures, and has shown a tendency to increase the restrictions, especially in regard to financial matters. Congress may veto any act of a territorial legislature.

_Judiciary._--For the administration of justice, a fully organized territory has a supreme court, a number of district courts, and such inferior courts as the legislature may create. The judges of the higher court are all appointed by the President of the United States for a term of four years. The territory also has a United States district court, a district attorney, and a marshal.

Finally, a fully organized territory is given a limited representation, in the Congress of the United States through a delegate, elected by the people of the territory every two years, who is allowed a seat in the house of representatives with a right to serve on committees and take part in debate, but not to vote.

_Alaska_, acquired by purchase from Russia in 1867, was for seventeen years after its acquisition administered directly by the President without any express authority from Congress. In 1884, however, an act was pa.s.sed providing a system of civil government for the territory, to be administered by a governor appointed by the President for a term of four years. The general laws of the state of Oregon, so far as applicable, were extended to the territory. In 1898 a criminal code was provided for the territory, and in 1900 a complete civil code and a code of civil procedure were enacted. Finally, in 1912 Alaska was made a fully organized territory, with a legislative a.s.sembly consisting of a senate of eight members and a house of representatives of sixteen members. Acts can be pa.s.sed over the governor's veto by vote of two-thirds of the members of each house of the legislative a.s.sembly.

=The Organized Dependencies.=--Porto Rico and the Philippines, acquired from Spain in 1898, were formerly, and are now to a certain extent, regarded more as colonies than as territories, although they are governed much like a territory. For many years they were cla.s.sed as "partly organized" because in their legislatures only one house was elective. They now have legislatures in which both houses are elective; but unlike the territories they are inhabited by a foreign race, and had been at the time of their cession to the United States for centuries governed by an entirely different system of laws and administration from that to which the people of the United States were accustomed.

=Porto Rico.=--By an act of Congress in 1917, the supreme executive power of the island is vested in a governor appointed by the President, for an indefinite term. He has the usual powers of a territorial governor. There are six executive departments, namely, justice, finance, interior, education, agriculture, and health. The attorney-general and the commissioner of education are appointed by the President for a term of four years; the heads of the other four departments are appointed by the governor for the same term. The department heads collectively form an executive council charged with the performance of such duties as the governor may prescribe.

_The Legislature._--Formerly the legislature was composed of an upper house, known as the council, the members of which were appointed by the President, and a house of delegates, popularly elected. The act of 1917, however, provided for a legislature, both houses of which are elected by the voters. The upper house is called the senate and is composed of nineteen members, elected for a term of four years. The lower chamber, called the House of Representatives, consists of thirty-nine members, elected for a term of four years. The legislature is required to meet biennially and the governor may call extraordinary sessions. Laws vetoed by the governor and pa.s.sed over his veto by the legislature must be transmitted to the President for his approval or disapproval. All acts of the legislature are required to be laid before Congress which may annul the same. To prevent deadlocks in the administration of the government, as several times happened in former years, the law provides that whenever the appropriation bills for the support of the government fail of pa.s.sage the amount appropriated for the past year shall be considered to have been appropriated for the ensuing fiscal year.

_Suffrage and Citizenship._--Practically all citizens over twenty-one years of age who can read and write are qualified voters. Formerly a source of complaint among the inhabitants was that they were denied the status of United States citizenship. They were designated as citizens of Porto Rico and were ent.i.tled to be protected by the United States and were eligible to receive pa.s.sports for travel abroad, but they were not citizens of the United States. The law of 1917, however, removed this grievance by providing that all citizens of Porto Rico should be deemed to be citizens of the United States. The act also contains an elaborate bill of rights similar to those in the state const.i.tutions.

_Judiciary._--The elaborate system of Spanish courts and the Spanish legal system generally have been done away with, and in their place a system of law and procedure and a judicial system modeled upon those of the American states have been subst.i.tuted. There is a supreme court consisting of five judges appointed for life by the President, and of these, three are Porto Ricans and two Americans. Below this court are a number of district courts each of which is presided over by one judge appointed by the governor with the consent of the council for a term of four years. There are also twenty-four munic.i.p.al courts, and in the several towns there are courts held by the justices of the peace. The act of 1917 provided for the establishment of a District Court of the United States for the island.

_Resident Commissioner at Washington._--The interests of the island are looked after at Washington by a resident commissioner who is elected by the qualified voters for a term of four years. Unlike the delegate from an organized territory he has no right to a seat in the house of representatives, but the house has granted him the courtesy of this privilege. He is, however, ent.i.tled to official recognition by all the executive departments whenever he wishes to discuss with them matters of business affecting Porto Rico.

The island has its own internal revenue system for raising taxes, and the receipts from all customs duties on goods imported into the island are turned into the insular treasury. Unlike the Philippines, however, the island does not have its own monetary system, but uses that of the United States.

=The Philippines.=--The problem of governing the Philippines has proved much more difficult than that of governing Porto Rico. Instead of a single island inhabited by a fairly h.o.m.ogeneous population, the Philippine archipelago consists of several hundred islands inhabited by various races and peoples representing almost every stage of development from savagery to fairly complete civilization. It has been a difficult problem to develop a system of government adapted to the needs and capacities of so many different elements. In addition to the difficulties presented by these conditions, the Filipinos in various parts of the archipelago have resisted American rule, and no small amount of effort and expenditure of money has been directed toward the suppression of outbreaks and the maintenance of order.

_Organic Act of 1902._--In 1902 Congress pa.s.sed an organic act for the government of the islands, and shortly thereafter William H. Taft was inaugurated civil governor. This act continued for the most part the form of government that had been created by the Philippine Commission.

The organic act provided, however, that as soon as the insurrection then existing was suppressed, a census of the inhabitants should be taken and if the islands were in a state of peace, steps should be taken toward the establishment of a legislative a.s.sembly, the lower house of which should be popularly elected. This provision was duly carried out, and in 1907 the a.s.sembly was chosen. The upper house was a commission of nine members, including the governor, appointed by the President; and members of the commission also served as heads of executive departments.

In 1916 the government was altered by abolishing the commission and creating a legislature in which both houses are elective. The governor general, at the head of the executive department, is appointed by the President, as are also the vice governor and the auditor. Acts of the Philippine legislature may be vetoed by the governor general (or finally by the President if pa.s.sed over the governor general's veto), or may be annulled by Congress. The act of 1916 declared it to be the purpose of the United States to grant the Philippines independence as soon as a stable government can be established therein.

_Resident Commissioners._--The legislature is allowed to choose two resident commissioners to represent the islands at Washington. Like territorial delegates, they have seats, but no vote, in the house of representatives.

_The Judicial System_ of the islands consists of a supreme court of seven judges who are appointed by the President, a court of first instance in each province, the judges of which are appointed by the governor general, and various munic.i.p.al courts. Unlike Porto Rico and Hawaii, no United States district court has been established in the islands. Appeals lie from the supreme court of the islands directly to the United States Supreme Court in all cases in which the Const.i.tution or any statute or treaty is involved or in which the amount in controversy exceeds $25,000.

_Local Government._--Each province is governed in local matters by a board consisting of a governor and other officers elected by the voters.

The organized munic.i.p.alities are governed by elective councils. Special provision has been made for the government of districts inhabited by certain non-Christian peoples by the creation of a Bureau of Non-Christian Tribes.

=The Unorganized Territories and Dependencies.=--The third group of territories or dependencies embrace those which have no legislative a.s.sembly whatever. These include Samoan Islands, Virgin Islands, Guam, the Panama Ca.n.a.l Zone, and the District of Columbia.

The American _Samoan Islands_, the chief of which is Tutuila with its valuable harbor of Pagopago, are governed by a naval officer--the commandant of the naval station at Tutuila. He makes the laws and regulations, and sees that they are enforced, but so far as possible the inhabitants are allowed to govern themselves.

By treaty of 1916, three of the _Virgin Islands_ were purchased from Denmark for $25,000,000. They were placed under the jurisdiction of a governor appointed by the President, but the local laws were kept in force.

_Guam_ was seized by the United States during the war with Spain, and was retained by the treaty of peace. It is governed by the commandant of the naval station.[107]

[107] Other insular possessions of the United States are Wake Island, Midway or Brooks Island, Howland and Baker Islands, all in the Pacific Ocean. They are practically uninhabited and no provision for their government has been found necessary.

_The Panama Ca.n.a.l Zone_ is a strip of land ten miles wide extending from the Atlantic to the Pacific Ocean across the Isthmus of Panama, and was acquired by treaty from the Republic of Panama in 1904, upon the payment of $10,000,000. Soon after the conclusion of the treaty, Congress pa.s.sed an act placing the entire government of the Ca.n.a.l Zone in the hands of the President. The powers of the President prior to 1914 were exercised through the Isthmian Ca.n.a.l Commission consisting of seven members, with authority to make and enforce all needful rules and regulations for the government of the Zone and to enact such local legislation as might be needed, subject to the condition that it must not be inconsistent with the Const.i.tution, laws, or treaties of the United States. In January, 1914, President Wilson, in pursuance of an act of Congress pa.s.sed in 1912, issued an order abolishing the commission and organizing a system of civil government for the Ca.n.a.l Zone. Colonel George W. Goethals was appointed the first civil governor.