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CROSS v. HARRISON, US Supreme Court, 57 US 164 (1853)pages 3 - 41

THE HOBBESIAN CONSTITUTION: GOVERNING WITHOUT AUTHORITYNorthwestern University Law Review, Winter 2001

Gary Lawson (Professor, Boston University School of Law. Former Professor, Northwestern University School of Law) & Guy Seidman (Lecturer, Interdisciplinary Center, Herzliya, Israel)

pages 42 - 101

POPULAR SOVEREIGNTY, THE RIGHT OF REVOLUTION, AND CALIFORNIA STATEHOOD

NEXUS: A Journal of Opinion, Spring, 2001Herman Belz (Professor of History, University of Maryland; Ph.D., University of Washington, 1966)

pages 102 - 133

CALIFORNIA LEGAL HISTORY: THE LEGAL SYSTEM UNDER THE UNITED STATES MILITARY GOVERNMENT, 1846-1849

Law Library Journal, Fall 1996Myra K. Saunders (Law Librarian and Assistant Professor of Law in Residence, UCLA School of Law, Los Angeles, California)

pages 133 - 179

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TERRITORIAL GOVERNMENTS AND THE LIMITS OF FORMALISMCalifornia Law Review, July, 1990

by Gary Lawson (Assistant Professor, Northwestern University School of Law; B.A. 1980, Claremont Men's College; J.D. 1983, Yale Law School)

pages 179 - 261

APPLICABILITY OF AMERICAN LAWS TO OVERSEAS AREAS CONTROLLED BY THE UNITED STATES

Harvard Law Review, March 1955Sedgwick W. Green (Member of the New York and District of Columbia Bars. First Lieutenant, Industrial Relations Branch, Procurement Law Division, Office of the Judge Advocate General, United States Army. A.B., Harvard, 1950, LL.B., 1953)

pages 262 - 300

APPLICATION OF THE US CONSTITUTION IN INSULAR AREAShttp://www.gao.gov/archive/1998/og98005.pdf

page 300

MISCELLANEOUSpages 301 - 319

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16 How. 164, 14 L.Ed. 889

Supreme Court of the United StatesALEXANDER CROSS, WILLIAM L. HOBSON, AND WILLIAM HOOPER, TRADING UNDER THE NAMEAND STYLE OF CROSS, HOBSON, & COMPANY, PLAINTIFFS IN ERROR,v.EDWARD H. HARRISON.December Term, 1853

THIS case came up, by writ of error, from the Circuit Court of the United States, for the Southern District of New York.Cross, Hobson, & Co., brought an action of assumpsit to recover back from Harrison, moneys paid to him while acting as collector of customs at the port of San Francisco, in California, for tonnage on vessels and duties on merchandise, not of the growth, produce, or manufacture of the United States, imported by the plaintiffs from foreign places into California, and there landed, between February 3, 1848, and November 12, 1849.The plea was non assumpsit, and the verdict and judgment were for Harrison, in January, 1852.The bill of exceptions contained the substance of much testimony *165 offered by the plaintiff, (which it is not necessary to recite,) and also the whole of the Senate Document, No. 18, of the first session of the thirty-first Congress. The opinion of the court contains a statement of the material parts of this evidence.

West Headnotes

KeyCite Notes

114 Customs Duties 114I Validity, Construction, and Operation of Customs Laws in General 114k1 k. Power to Impose Duties on Imports or Exports. Most Cited Cases

The duties exacted by the military authorities of San Francisco, from the date of the cessation of hostilities between the United States and Mexico until the arrival of the

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regular collector appointed by the president under the act of congress making San Francisco a port of entry, were properly levied.

KeyCite Notes


It was not improper to collect tonnage duties and imposts upon foreign merchandise arriving in San Francisco subsequent to treaty of 1848 with Mexico, but prior to enactment of legislation providing for collection of duties, on ground that inhabitants of a ceded conquest may enjoy laws previously existing until they have been changed by the new sovereignty, where foreign trade in California had been changed by virtue of a belligerent right before the territory was ceded as a conquest, and had not been remitted to Mexican regulation because it had passed from sovereignty of Mexico.

KeyCite Notes


That no collection districts were in existence in California for several months after ratification of treaty with Mexico, by which California was ceded to the United States, did not preclude collection of tonnage duties and imposts upon foreign merchandise arriving at San Francisco, since no right existed to land foreign goods in California except upon compliance with Revenue Acts.

KeyCite Notes


Under the law of nations, each nation may designate, upon its own terms, ports and places within its territory for foreign commerce, and any attempt to introduce foreign goods elsewhere within its jurisdiction is a violation of its sovereignty.

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KeyCite Notes


Where California had been conquered by arms of the United States, the plaintiffs had no right of trade with California with foreign goods except from permission given by United States under civil government and war tariff established there, and no larger liberty of trade resulted from cession of California to the United States.

KeyCite Notes

114 Customs Duties 114I Validity, Construction, and Operation of Customs Laws in General 114k3 k. Tariff Acts in General. Most Cited Cases

Acts of Congress ratifying acts of government established in California upon conquest of that territory, relative to collection of imposts and tonnage, sanctioned the collections made and established existence of legal authority therefor.

KeyCite Notes

114 Customs Duties 114I Validity, Construction, and Operation of Customs Laws in General 114k10 Treaty Provisions 114k10.1 k. In General. Most Cited Cases (Formerly 114k10)

The civil government of California organized in 1847 from a right of conquest did not become defunct upon signature and ratification of treaty with Mexico, but it continued until Congress legislated for the territory, and duties upon foreign goods imported into San Francisco were legally received by collector of ports, appointed according to instructions from Washington, during period subsequent to receipt of notice of ratification of peace treaty and prior to passage of legislation governing matter.

KeyCite Notes

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Instructions received from Washington by military authorities in conquered territory in California prior to ratification of the treaty with Mexico, and under which tonnage duties and imposts were collected on foreign merchandise in 1848, were binding upon those administering civil government in California until they had notice that a treaty had been finally concluded.

KeyCite Notes


Where California had become a part of the United States by ratification of treaty with Mexico, plaintiffs were bound by Acts of 1790, 1 Stat. 130, and 1799, 1 Stat. 627, under which ships from foreign ports could not land cargoes in any port of United States other than a port of delivery. 1 Stat. at L. 130, c. 30, 627, c. 22.

The tonnage duties and imposts paid on foreign merchandise arriving in San Francisco in 1848 prior to ratification of peace treaty with Mexico were properly received by military authorities exercising belligerent rights under orders of the president in the conquered territory, and sums paid could not be recovered from collector of customs.

The plaintiffs who had paid tonnage duties and imposts upon foreign merchandise arriving in San Francisco in 1848 were not entitled by reason of cession of California to the United States to have restored to them duties paid between ratification of treaty with Mexico and notification of that fact to the military governor of California.

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The case was argued by Mr. Richard T. Merrick and Mr. James W. McCullok, upon a brief filed by himself and Mr. John S. McCullok, for the plaintiffs in error, upon which side there was also filed a brief by Mr. Rockwell and Mr. Lawrence; and by Mr. Cushing, (Attorney-General,) for the defendant in error.The briefs on both sides were so elaborate that only a portion of each can be inserted; and those parts are selected which relate to the legality of continuing, after the peace, the government which had been established during the war.The points for the plaintiffs in error, as stated by the Messrs. McCullok, were the following points:1st. That on foreign goods or vessels brought into California, between the 3d of February, 1848, and the 3d of March, 1849, and between the 3d of March, 1849, and the 12th of November, 1849, duties did not accrue to the United States, and their exaction was therefore illegal.2d. That on foreign goods and vessels brought into California between the 3d of February, 1848, and the 12th of November, 1849, the defendant had no authority by any treaty or law of the United States to collect duties, and their exaction was therefore illegal.3d. Between the 3d of February, 1848, and the 12th of November, 1849, the defendant was not authorized, by any law of the United States, to require the plaintiffs to go with or send to a port within a collection district of the United States, foreign goods and vessels, and there pay duties, before the plaintiffs should bring the same into California; nor to put plaintiffs to elect between so doing and the paying of duties to the defendant.4th. That after the 23d of February, 1849, when the plaintiffs protested against the exactions made, or to be made, the defendant was not justified in paying over the moneys theretofore or thereafter exacted to the use of the United States, or any other person.5th. That the plaintiffs are entitled to the customary interest of California, on all sums exacted by defendant by duress, and against protest, on goods and vessels brought into California between the 3d February, 1848, and the 12th of November, 1849.6th. That on the whole evidence, no part of the duties claimed were paid voluntarily, but each and every of them were exacted by compulsion and duress.*166 Under the foregoing points, the plaintiffs in error will rely upon the following authorities:1st. Between the 3d of February, 1848, and the 12th of November, 1849, duties did not accrue to the United States in California.(a.) The wisdom, goodness, and power necessary for the protection of the general welfare and peace of the people, are the only source from which is derived the

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authority to exercise the sovereignty of the nation. 1 Burlamaqui Nat. Law, c. 9, pp. 83, 89. And on these the power to reward and punish rests. Id. 93. The powers which the sovereign exercises, are those which relate to internal administration. 2 Burlamaqui, Pt. 3, c. 1, p. 152. And next, those which regulate foreign or external administrations. 2 Id. Pt. 4, c. 1, p. 220. Among this last class are the powers of making offensive or defensive war, of concluding treaties and alliances, of controlling the immigration of foreigners, and of regulating commerce. By the laws of war, the sovereign acquires the right to spoil, plunder, and destroy the goods of his enemy, and possess his lands. 2 Burlamaqui, Pt. 4, c. 7, p. 290, &c. In order to indemnify for the expenses of war out of his enemies' goods and lands, and while the conqueror continues in possession of the lands, he is sovereign over them, and of all within them; and may either admit the vanquished to the rights of subjects, or banish them as enemies from the country, for the sovereignty thus acquired is absolute. 2 Burlamaqui, Pt. 4, c. 8, § 12, p. 309. And from these rights of war flows the sovereign power of making treaties, equal or unequal, (2 Burlamaqui, Pt. 4, c. 9, pp. 314, 317, 319,) and whether in war or in peace--such treaties being unequal whenever they limit the powers of the foreign sovereign; as by stipulating that the conqueror's consent shall be had before the foreign sovereign can act in any given way. Id. § 13, p. 319.The power to regulate foreign commerce necessarily includes, as one of its incidents, the power to lay imposts on foreign goods, or even to prohibit them entry, (Vattel's Law of Nations, Bk. 1, c. 8, p. 39,) whenever the welfare of the State demands it. The right to trade with a foreign nation is therefore conventional, and the treaty that cedes the right is the measure or limit thereof--dependent on the will of the foreign sovereign, and not a right of prescription. And a foreign nation may limit its foreign trade to itself, or to its own vessels, by treaty or otherwise. Vattel, Bk. 2, c. 2, p. 121.During the flame of war, a nation may sell or abandon part of its public property, (Vattel, Bk. 1, c. 21, p. 105,) though, if the sovereign be not absolute, this may require the concurrence *167 of his coördinates, the people. The empire or sovereignty, and the domain or property, are not inseparable--for the nation may have its sovereignty but not its domain--which may be held in the possession of a foreign nation, either by war or treaty. Vattel, Bk. 1, c. 23, p. 118.(b.) The sovereign who acquires a country by conquest or treaty, has the exclusive right to legislate in regard to it, and may impart this right to another; and the country so acquired may be retained in a subject condition, or be erected into a colony.The laws of the conquered or ceded country remain, until changed by the sovereign conqueror, who may change the political form of government; but the laws of trade remain. Dwarr. on Stat. 907; Hall v. Campbell, Cowp. Rep. 204; Calvin's Case, 7 Rep. 176. And where the power to legislate therein has been granted by charter or statute to

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another, there the laws of the conqueror do not extend into such territories. Dwarris, 526, 527; 3 and 4 William 4, c. 93, relating to Governor and Council of India.But where the country is acquired by the right of occupancy and discovery, and peopled by the subjects of the sovereign who makes the discovery, the colonists carry with them such laws of their sovereign as may be applicable to their condition, Dwarr. on Stat. 905; Attorney-General v. Stuart, 2 Meriv. Rep. 143.All laws, beneficial to such colonies, go with the colonists; but penal laws, inflicting forfeitures and disabilities, never extend to colonies not in esse, (Dawes v. Painter, Freeman, 175; Dwarris, 527,) nor do laws of tithes, bankruptcy, mortmain, or police.The laws of the sovereign, passed after the settlement of a country, whether ceded, conquered, or discovered, do not affect such colony unless specifically named; or, unless they relate to the exercise of the foreign powers of the sovereign, in regard to navigation, trade, revenue, and shipping. Dwarr. on Statutes, 527, 906; 1st Report of Commr's West Indies, Legal Inquiry, 2, 6; Parl. in Ireland, 12th Rep. 112.Thus we find that, after the discovery of the North American Colonies, till the Revolution, Great Britain regulated the foreign trade of these her colonies, by various acts of parliament, passed to limit it to the vessels of British subjects and to British ports, and to encourage it. She controlled the tobacco trade by statutes--(1670, 22 and 23 Car. 2, c. 26; 1685, 1 James 2, c. 4; 1695, 7 William 3, c. 10; 1699, 10 and 11 William 3, c. 21; 1704, 3 and 4 Anne, c. 5; 1709, 8 Anne, c. 13; 1713, 12 Anne, c. 8.) She restrained all imports and exports to and *168 from America to British ports and British ships--(12 Car. 2, c. 12, §§ 1, 2, 3, 4, 19; 7 and 8 Wm. 3, c. 22, § 13; 8 Anne, c. 13, § 23; The Recovery, 6 Robinson, 346; Wilson v. Marriatt, 8 T. R. 31; 1 Bos. & Pull. 432; 2 Evans's British Statutes, 51; 15 Car. 2, c. 7; 2 Evans's Stats. 58, 62; Grant v. Lloyd, 4 Taunt. 136.) She regulated the import of prize goods into and from America,--(1711, 10 Anne, c. 22; 1742, 15 George 2, c. 31; and 1744, 17 George 2, c. 34.) She encouraged and controlled all the trade to her colonies, by statutes--(1695, 7 William 3, c. 22; 1707, 6 Anne, c. 37; 1710, 8 Anne, c. 27; 1733, 6 George 2, c. 13; 1740, 13 George 2, c. 31.) She forbade exports from her colonies to certain foreign countries--(1731, 4 George 2, c. 15; 1732, 5 George 2, c. 22; 1757, 30 George 2, c. 9.) She regulated the import of coffee, tea, and other goods into these colonies; appointed commissioners of the revenue, and provided penalties for the violations of such laws--(1763, 4 George 3, c. 15; 1765, 5 George 3, c. 45; 1766, 6 George 3, c. 49 and 52; 1767, 7 George 3, c. 41, 46, 56; 1768, 8 George 3, c. 22; 1772, 12 George 3, c. 7 and 60; 1773, 13 George 3, c. 44.) And following up her legislation in regard to these colonies, Great Britain in 1772, (12 George 3, c. 60,) allowed a drawback on tea, exported to her British North American Colonies; and, until the Revolution, entirely controlled the trade and duties laid in the colonies. Journals of Congress, Vol. 1, pp.

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27, 31, 33 to 39, 47, 394 to 396; Gales & Seaton's Debates in Congress, 216.The oppression of these laws of Great Britain upon her colonies having resulted in the destruction at Boston, on the 31st December, 1773, of teas imported there by the East India Company, on which they had paid duties; in the meeting of the Congress of the Colonies on the 5th of September, 1774, at Philadelphia; in Great Britain's denouncing them out of her protection on the 20th of December, 1775; in the Declaration of Independence of 4th of July, 1776; in the acknowledgment of the independence of the United States by Great Britain, on 30th November, 1782; and in the Treaty of Peace, signed at Paris on the 2d of September, 1783,--the United States became independent and absolute sovereignties.(c.) From the 2d of September, 1783, until the adoption of the Constitution by the States, respectively, each had, and several of them exercised, the power of regulating its foreign commerce, and laying imposts and tonnage duties. Journals of Congress of the Confederation, Vol. 2, 298, 301; Gales & Seaton's History of Debates in Congress, 111. Georgia laid 1s. 8d. sterling on tonnage; and South Carolina laid 1s. 3d. sterling, (id. 300); Pennsylvania laid a tonnage on vessels of nations in treaty; *169 Maryland laid 1s. 8d. per ton on vessels in treaty, and 2s. 8d. on others, except British, which paid 6s. 8d. and two per cent. on goods therein; Virginia laid a tonnage of 3s. 6d. on vessels in treaty, and 6s. 6d. on non-treaty vessels, and two per cent. ad valorem on goods therein; and South Carolina laid 2s. 9d. sterling on British sugars, and 1s. 8d. on those of other nations. Id. 275.By the Confederation of 17th November, 1777, the States still reserved to themselves the right to regulate their foreign commerce, and to lay duties. See article 6th, vol. 2, Journals of Congress of the Confederation, 298, 301, 330. There were, however, secured to the citizens of different States certain rights by the Confederation in regard to imports and exports of goods from State to State. Arts. 4, 6, 2 volume Journals of Confederation, 330.It is true that the Congress of the Confederation, on the 22d September, 1774, (see Journal of Congress, vol. 1, 14,) requested the merchants and others in the colonies to recall all orders for goods from Great Britain, and on the 27th September, 1774, (id. vol. 1, 15,) resolved, that after 1st December, 1774, there should be no importation of goods from Great Britain or Ireland, nor purchase of goods if imported thence; and that on 20th October, 1774, (id. vol. 1, 23 to 26,) the non-importation, non-consumption, and non- exportation agreement was signed by the members of Congress, yet the Congress did not, in fact, execute these resolves; and on 6th April, 1776, (id. vol. 1, 307-8,) a resolve was passed allowing importations and exportations to the citizens of the colonies, and of all nations, except to and from those under the dominion of Great Britain, subject to the duties laid or to be laid by the colonies.

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Yet, before the Revolution, a commercial combination regulated the importations between America and Great Britain. If any man was suspected of an infraction of the non-importation agreement, his conduct was strictly watched, and if his guilt was discovered he was published and held up to the world as an enemy to his country. Gales & Seaton's History of Debates in Congress, vol. 1, 320, speech of Mr. White.The means to defray the expenses of government, under the Confederation, for common defence and general welfare, were obtained by requisitions on the several States, for such sums of money as should be in proportion to the value of the lands and improvements in possession, or in grant to the citizens of the State, (Journals of Congress of Confederation, October 14th, 1777, vol. 2, 288,) to be estimated in such way as Congress should appoint. See Confederation, article 8, vol. 2, Journal of Congress, 330, November 15th, 1777. These quota were fixed *170 by Congress, from time to time, according to the number of the white inhabitants in each State. Art. 9, Confederation; see vol. 2 of Journals of Confederation, 336, 337; also id. 346, Nov. 23d, 1777, and the Report of the Committee of the Board of Treasury, id. 332.From these authorities it will appear that the States, individually, regulated their foreign commerce and duties, and were in this respect foreign sovereigns to each other, and they maintained this relation until the adoption of the Constitution of the United States. Thus we find that by the 7th article of the Constitution, the ratification thereof by the conventions of nine of the original thirteen States was to be sufficient for the establishment of the Constitution, and that on 26th July, 1788, eleven of the thirteen had adopted it, and that North Carolina and Rhode Island stood aloof; the first until 2d November, 1789, and the last till 29th May, 1790. See Mr. Hickey's Book, published in 1847, p. 24.Between the 26th July, 1788, and 29th May, 1790, Rhode Island was therefore in the position of a foreign State, regulating her own commerce, and laying her own duties, and she did not send deputies to the convention at Philadelphia to form a Constitution. See Gales & Seaton's History of Debates in Congress from 1789 to 1791, vol. 1, p. 4 of Introduction. Rhode Island was thus in a position to force British goods into the United States, by Long Island and Connecticut. Id. p. 124, Mr. Boudinot's speech. She did, in fact, enter into the neighboring States linen and barley that had not paid duty to the United States. Id. p. 164.(d.) The position of North Carolina and of Rhode Island was that of foreign States, as to the United States, and they were so treated by the Congress of the United States, under the Constitution. Thus (Gales & Seaton's History of Debates in Congress from 3d March, 1787, to 3d March, 1791, vol. 1, pp. 1011, 1012,) a bill passed the Senate to prevent goods from being brought from Rhode Island into the United States; and (History of Congress from March 4, 1789, to March 31, 1793, by Carey, Lea &

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Blanchard, p. 609, 2d sess. 1 Cong. Senate Journal, p. 134,) on 28th April, 1790, a committee was appointed to consider what provisions would be proper for Congress to make respecting Rhode Island; and on 11th May, 1790, their report was considered, (same Journal, p. 138, 139,) and a resolution was passed, that all commercial intercourse between the United States and Rhode Island from 1st July next be prohibited; and on 13th May, 1790, the committee reported a bill for that purpose; on 14th May, it was ordered to a third reading, and on the 18th May, it was passed by the Senate, 13 ayes to 7 noes. *171 In the House, it passed first and second readings; and on 1st June, 1790, the President communicated, by a message to both houses, that Rhode Island had acceded to the Constitution. See House Journal, p. 219, 232; also, Gales & Seaton's History of Debates in Congress, vol. 2, p. 1009, 11th May, 1790. When Rhode Island came into the Union, acts of Congress were passed to extend to this State, the laws of Congress relative to the judiciary, the census, &c. vol. 1 Gales & Seaton's History of Debates in Congress, pp. 1020, 1023, 1026; Id. 1711; also, Id. 1006.The State of Vermont was admitted by 1 Stat. at L. 191, c. 7, February, 1791, and laws extended over her by c. 12, March, 1791, 1 Stat. at L. 197, 198.Rhode Island and North Carolina were, therefore, until they adopted the Constitution of the United States, foreign to the United States, and to the laws of Congress, and were outside of all provisions in regard to commerce and duties, unless expressly named in the statutes of Congress. The General Collection Act of 31st July, 1789, c. 5, (1 Stat. at Large, p. 29,) by section 1, establishes collection districts, in each of the eleven States that had adopted the Constitution; and by section 39, 1 L. U. S., 48, recites that North Carolina and Rhode Island had not adopted the Constitution, and 'lays duties on goods not the produce of those States, when imported from either of them into the United States.' The act of 16th September, 1789, c. 15, (1 Stat. at L. 69,) section 2, gives to vessels of North Carolina and Rhode Island the same privileges, when registered, as to vessels of the United States; section 3 lays on rum, loaf-sugar, and chocolate made in North Carolina and Rhode Island, the same duties as when imported from other foreign countries; neither North Carolina nor Rhode Island were embraced in the acts of 23d September, 1789, c. 18, to compensate the judges of the Supreme Court, (1 Stat. at L. 72,) and of 24th September, 1789, c. 20, establishing the judiciary of the United States, (1 Stat. at L. 73.) North Carolina was brought within the revenue laws by the act 8th February, 1790, § 1, c. 1, (1 Stat. at L. 99); and the Judiciary Act was extended to North Carolina, 4th June, 1790, c. 17, (1 Stat. at L 126.) And the second section of act of 16th September, 1789, was revived against Rhode Island by the first section of the act of 8th of February, 1790, (1 Stat. at L. 100.) The Census Act of the 1st March, 1790, c. 2, did not embrace her; 1 Stat. at L. 102. And on

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the 4th June, 1790, c. 19, (1 Stat. at L. 127,) the revenue acts were extended to Rhode Island, and by reason thereof, the thirty-ninth section of the act 1789, c. 5, ceased to operate, when she came into the Union; and on *172 23d June, 1790, c. 21, extended the Judiciary Act to Rhode Island; and the law of 5th July, 1790, extended to her the Census Act.The power lodged in the Congress of the United States by Constitution, Art. 1, § 8, 'to regulate commerce with foreign nations,' includes all power over navigation. Gibbons v. Ogden, 9 Wheat. 191; The North River Steamboat Company v. Livingston, 3 Cowen, R. 713; United States v. The Brigantine William, 2 Hall's Law Journal, 265; 3 Story's Com. Const. 161; 1 Kent's Com. 405, Lec. 19. The power to regulate it 'among the several States' was demanded because, during the confederacy, the States had pursued a local and selfish policy, suicidal in its tendency; and temporily sought to gain advantages over one another in trade, by favors and restrictions. Federalist, No. 42, 1 Tuck. Black Com. App. 247 to 252; President Monroe's Message, 4th May, 1822, pp. 31, 32; 2 Story's Com. Const. § 1062, p. 511. And the power to regulate it 'with the Indian tribes' having been prior to the Revolution vested in the British sovereign, and having, at the Revolution, naturally flowed, subject to some restrictions, to the government under the confederacy, (Worcester v. State of Georgia, 6 Pet. 515; Johnson v. McIntosh, 8 Wheat. 543,) was finally vested, unreservedly in the United States, under the Constitution. 2 Story's Com. Const. § 1094, p. 540, 541.(e.) The power to admit new States under the Confederation was limited to Canada (Art. 11); no other British colony was to be admitted, except by consent of nine States. The Congress of the Confederation at length induced the States to cede the Western Territory, (3 Story's Com. Const. 1311,) and the ordinance of 13th July, 1787, as to this territory, is the model hitherto used for our territorial governments. 3 Story's Com. § 1312; Webster's Speeches, January, 1830, pp. 360,-4. Missouri came into the Union by force of this ordinance, with a limit of 36° 30' N. lat. as that, by which all territories ceded by France shall exclude slavery. Act of Congress, 6th March, 1820, 3d L. U. S. 548. See Green v. Biddle, 8 Wheat. R. 1, 87, 88, as to the compact between Virginia and Kentucky. Now, under the Constitution, (§ 3, art. 4, 3 Story's Com. Const. § 1308, p. 184,) the United States have power to admit new States, and their power can only be exercised by the Congress.The power of Congress to admit new States does not include, as its incident, any power to acquire new territory by treaty, purchase, or otherwise, (the power to admit new States had reference only to the territory then belonging to the United States, 3 Story's Com. Const. § 1280,) was designed for the admission of the States, which, under the ordinance of 1787, were to be formed within its old boundaries. The purchase of Louisiana *173 cannot be justified as incident to the power of Congress

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as to common defence and general welfare. This purchase from France, by treaty of 1803, by which the United States were to pay eleven millions of dollars and to admit the inhabitants into the Union as soon as possible, was justified by President Jefferson, on the ground of the necessity to protect the commerce of the West and have the passage of the Gulf, (President's Message, pp. 105, 106, &c., 17th October, 1803,) and the power to make this purchase depends solely on its being an incident of the national sovereign power of the United States, to make war and conclude treaties, (4 Elliott's Debates, 257 to 260; American Insurance Company v. Canter, 1 Pet. S. C. R. 511, 542, 5173; Story's Com. Const. § 1281,) and the United States have incidentally the power to create corporations and territorial governments. McCulloch v. Maryland, 4 Wheat. 409, 422, 3 Story's Com. Const. 132.The power, then, of the United States to acquire new territory does not depend upon any specific grant in the Constitution to do so, but flows from its sovereignty over foreign commerce, war, treaties, and imposts. 3 Story's Com. Const. § 1281; 4 Elliott's Debates, 257-260; American Insurance Company v. Canter, 1 Pet. 511-542, 517. The power of the United States over conquered and ceded territory is sovereign, and exclusive of State control or power, (3 Story's Com. Const. § 1251, p. 124; Hamilton's Works, vol. 1, p. 115; 4 Wheat. 420; 9 Wheat. 36, 5, 7; 3 Story's Com. Const. § 1322; except so far as the treaty, or the ordinance of 1787 may limit it. Rawle on Const. c. 27, p. 237; 1 Kent's Com. § 12, p. 243; id. § 17, pp. 359-360. By. § 3, Art. 4 Constitution, 'The Congress is empowered to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.'Territory acquired by the United States, by conquest or by treaty, does not, by force of our Constitution, become entitled to self-government, nor can it be subject to the jurisdiction of any State. 3 Story's Com. Const. 1318. It would be without any government at all, if it were not under the dominion and jurisdiction of the United States. American Insurance Company v. Canter, 1 Pet. S. C. R. 511, 542; id. 516. During military occupation, it is governed by military law; but when ceded by treaty, it is under the civil government of the United States; and the terms of the treaty, or statutes of the United States, are the only law that can bind it. The rights and relations of persons inter se remain, but the allegiance is transferred, although the *174 people do not share in the powers of general government, until they become a State, and are admitted as such. American Insurance Company v. Canter, 4 Pet. S. C. R. 511- 543. With the transfer of the domain, the inhabitants cease to be inhabitants of the State or country that cedes the lands in question. People v. Godfrey, 17 Johns. R. 225; Commonwealth v. Young, 1 Hall's Jour. of Jurisprudence, 47. The power of the United

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States lodged in the Congress is supreme over all cessions, even from the several States--and no State can limit, defeat, or modify the action of the United States over such cessions, (Cohens v. Virginia, 6 Wheat. 264, 424-8; Loughborough v. Blake, 5 Wheat. R. 322-4,) both as to the property and as to the inhabitants; and the domain and sovereignty are distinct, and may be one or both exercised or not; hence Congress may lay a direct tax on lands in its ceded territories. 5 Wheat. 317. Congress may omit to extend a direct tax to the territories or districts owned by her, whenever a direct tax is laid on the States. 5 Wheat. 317; 3 Story's Com. Const. § 996, p. 463. The words of Art. 1 § 9, Constitution United States, do not require that such tax shall extend to the territories. 2 Story's Com. Const. § 1005, § 2, Art. 1, Const. regulates how a direct tax shall be apportioned among the States, but this does not require the territories to be taxed, although no State could be exempted.(f.) These authorities show clearly that the domain and the sovereignty of the United States always must be distinct; and may or may not be both in full exercise at once, as is ever the case with all nations. The sovereignty of the United States is operative in foreign countries--both in war and peace her domain is local. In war, we taxed the goods brought into Tampico, in Mexico, while in our military occupancy; and also laid imposts on goods brought thence into the collection districts of the United States. Fleming v. Page, 9 Howard, S. C. R. 615-619. See Benner v. Porter, id. 235. In war, Great Britain, by force of arms, occupied Castine, a port within a collection district of the United States, and foreign goods were there imported during such hostile occupancy: hence, upon the abandonment of that port by the foe, the United States had no right to lay imposts on said goods, then and there found; because her sovereignty was, as to that port, in her domain, suspended by the hostile occupancy. United States v. Rice, 4 Wheat. 246; United States v. Hayward, 2 Gallison's R. 501; Grotius de Jure, B. & P. 2, c. 6, § 5; id. lib. 3, c. 6, § 4; id. c. 9, §§ 9, 14; Puffendorf lib. 7, § 5, n. 4; lib. 8, c. 11, § 8; Bynkershoek Quest. Jur. Pub. lib. 1, c. 6; 30 hhds. Sugar v. United States, 9 Cranch, 195; The Fama, 5 Robinson, 114, 117; Reeves's Law of Shipping, 103; Hall v. Campbell, Cowp. 204; see Journal H. Rep. *175 15th Cong. 1st Sess. p. 165; Report, dated 23d March, 1815; also Journal 15th Cong. 2d Sess. p. 61; 16th Cong. 2d Sess.; Journal, p. 140, 197; Act Cong. 19th May, 1824, 19th Cong. 1st Sess.; Report Com. of Senate, No. 23, January 23, 1826.The sovereignty may be in full force; but the actual possession of the domain may not be enjoyed in such way as to put the power of collecting imports, &c., in force,--thus Louisiana was acquired by cession, under treaty with France of 30th April, 1803, and until the act of Congress of 24th February, 1804, took effect, no duties were taken on foreign goods imported into Louisiana. Ch. 13, 2 L. U. S. 251.So Florida was ceded to the United States by treaty of 22d February, 1819; and on 3d

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March, 1821, (16th Cong. 2d Sess. c. 39, sec. 2, 3 Stat. at L. 639,) the revenue laws were extended over Florida; and in the interval no duties accrued to the United States on foreign goods imported into Florida. See the Fama, 5 Robinson, 97; 2 Robinson, 361; Jacobsen's Sea Laws, 455; 5 Robinson, 349; Opinion of Attorney-General, 359, 365, 395, case of the Olive Branch.Under the Louisiana cession the United States claimed to 54° 40' north latitude, embracing Oregon, and it was not until August 14th, 1848, when the revenue laws were extended to Oregon, and a port of entry established therein. See 9 Stat. at L. c. 177, p. 331, 1st Session, 30th Congress.The territory of Washington was created, out of the same cession, a territory by act of 32d Cong. 2d Sess. c. 90, (Session Laws, 1852-3, 173,) but the revenue laws do not yet extend to it.The inland and lake districts were created by acts of 1799, c. 22, 1 Stat. at L. 637, and 2 Stat. at L. 181.The District of Minnesota, by act of 1850, c. 79, § 89, Stat. at L. 510.Texas collected her own duties until the act of 31st December, 1845, took effect, and created collection districts therein. See 9 L. U. S. p. 2, c. 2, p. 128; id. 108; Calkin v. Cocke, 14 Howard, 235, 236.The taxes laid by Great Britain on her colonies, without representation or consent, formed part of the injuries and wrongs which led to our independence. Declaration of Independence, 1 Stat. at L. 2.Finally, duties have never been held to accrue to the United States in her newly acquired territories, until provision was made by an act of Congress for their collection; and the revenue acts always have been held to speak only as to the United States, and her territories, existing at the time when the several *176 acts were passed; and the decisions of the courts and acts of the executive have conformed to these views. See Letter of Gen. Jones from R. B. Mason, 19th Aug. 1848; see Walker's Circular, 7th October, 1848; President's Annual Message, Dec. 1848; Fleming & Marshall v. Page, 9 Howard, 603; Ripley v. Gelston, 9 Johnson R. 202.And the right to exclusive power of taxation through the Congress formed one of the strongest inducements to the adoption of the Constitution of the United States. See Madison Papers, 171, 217, 224, 475, 481, 493, 540; id. 146, 297; id. 109, 218, 488; id. 403; id. 730. See, also, Elliott's Debates in Convention on Adoption of Federal Constitution, vol. 1, pp. 72, 76, 82, 83, 86 to 88, 95 to 106; id. 298, 304, 320; vol. 2, pp. 189, 461, 441, 133 to 150, 118 to 125; 2 Story's Com. Const. § 977.And, as if more fully to evince the intention of the Congress to confine its revenue laws to the States and Territories, at the times when the respective laws are passed, and not to seem, by prospective legislation, in regard to territories not yet acquired, to

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hold forth the character of a conqueror, the United States have passed two acts regulating the entering of merchandise into the United States from foreign adjacent territories. See act 1821, c. 14, 3 Stat. at L. 616; and act 3d March, 1823, c. 58, 3 Stat. at L. 781.(The argument upon the other points is omitted for want of room.)The brief of Mr. Cushing, (Attorney-General,) occupied thirty printed pages. >From it there will be extracted so much as relates to the first instruction asked for by the plaintiffs below.III.--First and second Instructions. The bill of exceptions begins on page 8, and ends on page 138, (as before stated,) and includes the instructions moved by the plaintiffs and refused by the court, and the charge to the jury as given, pp. 136-137.1. As to both Instructions. The first instruction, moved by the plaintiffs and refused, comprises the period from the 3d of February, 1848, the day on which the treaty of peace and cession to the United States of California was signed, to the 3d of March, 1849, the day on which the act of Congress was approved for making California a collection district and San Francisco a port of entry.The second instruction, moved by the plaintiffs and refused by the court, comprehends the period from the 3d of March, 1849, when the act of Congress passed for making California a *177 collection district, to the 13th of November, 1849, when the collector, Collier, appointed under that act, arrived at San Francisco and entered upon the duties of his office.These two instructions may be considered together; they assert, in substance, that the collections of duties by the defendant, Harrison, were illegal exactions, for which the defendant is responsible to the plaintiffs in this action; for that, during the first period, 'no duties accrued to the United States on merchandise not the production of the United States, nor on vessels not of the United States, which arrived within the limits of California; and during the second period, that nobody but Collier was authorized to collect duties in California until 'Collector Collier entered upon his duties as collector of the customs at the port of San Francisco.'The instructions must be considered as having been asked of the court in reference to the evidence given, and must be pertinent to that evidence, and must be the deductions of law properly arising out of the facts which the evidence conduces to prove; if not so, the court ought to refuse to give the instructions.The court is not bound to entertain abstract propositions, nor should the judge bewilder the jury with instructions couched in language to lead them astray.The plaintiffs' own evidence (for the defendant adduced none) proved--1. That the foreign merchandise, and foreign vessels laden with the merchandise in question, were not only imported into California with the intent to be there unladen,

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but were actually unladen and landed at the port of San Francisco.2. That the plaintiffs were warned that if the merchandise was unladen at San Francisco without the payment of duties, they would be liable to seizure and forfeiture; were left at liberty to carry the goods, wares, and merchandise to some other port in the United States, and there make entry and payment of the duties, or to pay the proper duties at San Francisco, and save the expense of going elsewhere and the forfeiture; that the plaintiffs elected to pay the duties, and did pay them voluntarily, without compulsion, without force, and for no other cause than the warning and election so given them.3. That no other or higher duties were paid by plaintiffs and received by the defendant than were imposed by the laws of the United States.4. That the defendant was lawfully appointed and acting under the government of California, instituted during the war between the United States and Mexico, and continued in being, operation, and effect, after the treaty of peace and cession of *178 the conquered territory of California to the United States, and so continued, and solely existing in fact, and in operation, during the whole period of time comprised in the instructions asked by the plaintiffs.5. That the defendant received the duties to the use of the United states, and had 'disbursed and paid out to and for the use of the United States' all the moneys received from the plaintiffs except the sums repaid to the plaintiffs for drawbacks on goods re-exported.Upon such proof as to the mild alternative given, and the election thereupon made by the plaintiffs, and the voluntary payments of duties according to their election, no cause of action can arise to the plaintiffs unless the defendant falsely affirmed to the plaintiffs that their goods would be liable to seizure and forfeiture if landed in California without permit, and without having paid the duties accruing to the United States.2. As to the first Instruction separately. The first instruction asked by plaintiffs, therefore, asserts, 'that during the period from the 2d day of February, 1848, the date of the treaty of peace and limits with the Republic of Mexico, and the 3d of March, 1849, the date of the act of Congress which erected the State of California into a collection district of the United States, no duties accrued to the United States on merchandise not the production of the United States, which arrived within the limits of California ceded by said treaty,' and applying that instruction to the facts that the goods, and vessels wherein they were laden, were imported into California with intent to be unladen, and were actually there landed, it asserts that the said goods, and the vessels from which they were so unladen, were not liable to seizure and forfeiture if the duties were unpaid.

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The error of those propositions of the plaintiffs is proved by inspection of the following statutes:Act of July 30, 1846, 9 Statutes at Large, 42, c. 74; Act of July 20, 1790, 1 Statutes at Large, 135, c. 30, for imposing duties of tonnage on ships and vessels; and of January 14, 1817; 3 Ib. 345, c. 3, supplementary to an act to regulate the collection of duties on imports and tonnage. Act of March 2, 1799: 'An act to regulate the collection of duties on imports and tonnage.' 1 Statutes at Large, 639, c. 22 §§ 18, 92.The first act above mentioned, of July 30, 1846, enacts, 'That from and after the first day of December next, in lieu of the duties heretofore imposed by law on the articles hereinafter mentioned, and on such as may be now exempt from duty, there shall be levied and collected and paid on the goods, wares, and *179 merchandise herein enumerated and provided for, imported from foreign countries, the following rates of duty--that is to say,' &c.This is the tariff of duties by which the plaintiffs paid the moneys to the defendant.The second and third acts before cited, imposing duties of tonnage on ships and vessels, need not be recited.The 18th section of the act of March 2d, 1799--to regulate the collection on imports and tonnage, before cited, (vol. 1, 639)--enacts, 'That it shall not be lawful to make entry of any ship or vessel which shall arrive from any foreign port or place within the United States, or of the cargo on board such ship or vessel, elsewhere than at one of the ports of entry, . . . nor to unlade the said cargo or any part thereof elsewhere than at one of the ports of delivery' established by law: 'Provided, always, that every port of entry shall be also a port of delivery.'Section 62 prohibits any permit for the landing of goods to be granted until the duties thereon are paid or secured to be paid.Section 63 prohibits any permit to be granted for unlading a vessel until the tonnage duty thereon is paid.'Section 92. That except into the districts herein before described on the northern, northwestern, and western boundaries of the United States, adjoining to the dominions of Great Britain in Upper and Lower Canada, and the districts on the rivers Ohio and Mississippi, no goods, wares, or merchandise of foreign growth or manufacture, subject to the payment of duties, shall be brought into the United States from any foreign port or place in any other manner than by sea, nor in any ship or vessel of less than thirty tons burden, agreeably to the admeasurement hereby directed for ascertaining the tonnage of ships or vessels; nor shall be landed or unladen at any other port than is directed by this act, under the penalty of seizure and forfeiture of all such ships or vessels, and of the goods, wares, or merchandise imported therein, landed or unladen in any other manner. And no drawback of any duties on goods,

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wares, or merchandise, of foreign growth or manufacture shall be allowed on the exportation thereof from any district of the United States, otherwise than by sea and in vessels not less than thirty tons burden.'This act of 1799, in its various sections, and particularly in sections 18, 62, 63, and 92, taken together, protect the revenue from being evaded or defrauded by importing and landing goods in the United States at ports or places where the United States have not established a port of entry or delivery, *180 and likewise from the landing of goods even at a port of entry or of delivery without a permit, which permit cannot be granted until the duties on imports and tonnage have been paid or secured to be paid.The defendant therefore truly informed the plaintiffs that their goods, if landed at San Francisco without permit and payment of duties, would be liable to seizure and forfeiture, and the vessel also from which such unlawful unlading was effected. The first instruction asked is totally erroneous in supposing that no duties would accrue to the United States upon foreign goods nor upon foreign vessels arriving in California, and there unlading their cargoes between February 2, 1848, and March 3, 1849. It is a most egregious blunder to assert, that after the United States had acquired California by treaty, and before they had provided by after law for a collection district, and a collector in that country, the citizens of the United States and foreigners might lawfully inundate the country with foreign goods, wares, and merchandise, without incurring any liabilities for duties on imports and tonnage; that the former laws and government ceased eo instante upon the treaty of peace and cession; and that there was no law, no government, no order there until the Congress of the United States had legislated, and the executive department had acted in pursuance of such new legislation upon the new state of things growing out of the war and the ensuing peace.In so far as the revenue from duties on imports and tonnage was concerned, in the acquisition of Upper California, the act of 1799 had effectually provided against the importation of foreign dutiable goods into that country, and landing them there free of duty. And the existing government and its laws and officers provided the means of causing these revenue laws to be respected and obeyed until the Congress of the United States had provided the proper officers of the customs adapted to the new state of things.Before the treaty, and under the government instituted and existing in fact in Upper California, duties of import and tonnage were levied and collected, and a system for the collection of those duties was in full, actual, effective operation, sanctioned by the President of the United States, the civil and military governor of the territory, supported by the naval force of the United States in the Pacific Ocean, and by the army of the United States then in California. The defendant Harrison was the collector of customs appointed by the then existing government, and acted in obedience to the

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laws and instructions of that government.Upon the cession of California to the United States, 'the *181 laws, whether in writing or evidenced by the usage and customs of the ceded country,' continued in force until altered by the new sovereign. Strother v. Lucas, 12 Peters, 436; Mitchell v. United States, 9 Peters, 749.Such is the law of nations. Vattel, edition 1853,358. So it is by the common law.Lord Mansfield lays it down as the doctrine of the common law, that conquered (and, of course, also ceded) States retain their old laws until the conqueror thinks fit to alter them. Rex v. Vaughan, 4 Burr. 2500. See also Calvin's case, 7 Coke, 176; Blankard v. Galdy, 2 Salk. 411; S. C. 2 Mod. 222; Attorney- General v. Stewart, 2 Meriv. 154; Hall v. Campbell, Cowp. 209; Gardiner v. Fell, 1 Jac. & W. 27; Anon. 2 P. Williams, 76; Spragge v. Stone, cited, Doug. 38; Ex parte Prosser, 2 Br. C. C. 325; Ex parte Anderson, 5 Ves. 240; Evelyn v. Forster, 8 Ves. 96; Sheddon v. Goodrich, 8 Ves. 482; Elphinstone v. Bedreechund, Knapp's P. C. R. 338; Mostyn v. Fabrigas, Cowp. 165; 4 Com. Dig. Ley. (C.)The first instruction, so moved by the plaintiffs, was an improper deduction of law from the facts proved by the plaintiffs' own evidence, oral and documentary, conducing, if given, to confuse and mislead the jury, and was therefore properly overruled.In the war with Mexico, the port of San Francisco was conquered by the arms of the United States, in the year 1846, and shortly afterwards the United States had military possession of all of Upper California. Early in 1847 the President of the United States, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of the United States forces in California to exercise the belligerent rights of a conqueror, and to form a civil and military government for the conquered territory, with power to impose duties on imports and tonnage for the support of such government, and of the army, which had the conquest in possession.This was done, and tonnage and import duties were levied under a war tariff, which had been established by the civil government for that purpose, until official notice was received by the civil and military Governor of California, that a treaty of peace had been made with Mexico, by which Upper California had been ceded to the United States.Upon receiving this intelligence the governor directed that import and tonnage duties should thereafter be levied in conformity with such as were to be paid in the other ports of the United States, by the acts of Congress; and for such purpose he appointed the defendant in this suit, collector of the port of San Francisco.The plaintiffs now seek to recover from him certain tonnage duties and imposts upon foreign merchandise paid by them to the defendant as collector between the 3d of

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February, 1848, (the date of the treaty of peace,) and the 13th of November, 1849, (when the collector appointed by the President, according to law, entered upon the duties of his office,) upon the ground that they had been illegally exacted.The formation of the civil government in California, when it was done, was the lawful exercise of a belligerent right over a conquered territory. It was the existing government when the territory was ceded to the United States, as a conquest, and did not cease as a matter of course, or as a consquence of the restoration of peace; and it was rightfully continued after peace was made with Mexico, until Congress legislated otherwise, under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.The tonnage duties, and duties upon foreign goods imported into San Francisco, were legally demanded and lawfully collected by the civil governor, whilst the war continued, and afterwards, from the ratification of the treaty of peace until the revenue system of the United States was put into practical operation in California, under the acts of Congress, passed for that purpose.

Mr. Justice WAYNE delivered the opinion of the court.This case comes up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.It was an action brought by Cross, Hobson and Company against Harrison, for the return of duties alleged to be illegally exacted by Harrison whilst he was acting as collector of the customs at the port of San Francisco, in California. The claim covered various amounts of money which were paid at intervals between the 3d day of February, 1848, and the 13th of November, 1849. The first of these dates was that of the treaty of peace between the United States and Mexico, and the latter when Mr. Collier, a person who had been regularly appointed collector at that port, entered upon the performance of the duties of his office. During the whole of this period it was alleged by the plaintiffs that there existed no legal authority to receive or collect any duty whatever accruing upon goods imported from foreign countries.The period of time above mentioned was subdivided by the plaintiffs in the prayers which they made to the court below, into two portions, to each of which they supposed that different rules of law attached. The three periods may be stated as follows:*182 3d of February, 1848, the date of the treaty of peace between the United States and Mexico. 9 Stat. at Large, 922 to 943.3d of March, 1849, when the act of Congress was passed, including San Francisco within one of the collection districts of the United States. And13th of November, 1849, when Collector Collier entered upon the duties of his office.

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In order to show what was the state of things on the 3d of February, 1848, it is necessary to refer to some of the public documents which were offered in evidence by the plaintiffs, being Senate Document No. 18 of the first session of the thirty-first Congress.On the 19th of August, 1847, H. W. Halleck, signing himself 'Lieutenant of Engineers and Secretary of State for the Territory of California,' issued a circular to certain persons who had been appointed collectors of the customs, in which he recited that the commander-in-chief of the naval forces had been authorized by the President of the United States to establish port regulations, to prescribe the conditions under which American and foreign vessels might be admitted into the ports of California, and also to regulate the import duties. The circular then prescribed certain rules which were to be observed.On the 15th of September, 1847, Commodore Shubrick prescribed certain rates, or scales of duties, which were confirmed on the 14th of the ensuing October, by R. B. Mason, who signed himself Colonel of the 1st dragoons and Governor of California.On the 20th of October, 1847, Colonel Mason, still styling himself Governor of California, issued an order saying, that 'recent instructions from the President of the United States made the officers of the army and navy the collectors of the customs in California.' The arrangement was made accordingly.This was the state of things up to the 3d of February, 1848, the first epoch mentioned by the plaintiffs in their prayers to the court. The war tariff was collected by officers of the army and navy.On the 3d of February, 1848, a treaty of peace was signed between the United States and Mexico, the ratifications of which were exchanged on the 30th of May ensuing. Some alterations were made in the mode of collecting the revenue during this second period of time, namely, between the 3d of February, 1848, and 3d of March, 1849, which it is necessary to notice.On the 26th of July, 1848, Colonel Mason, still calling himself Governor of California, issued a number of regulations for *183 the government of the custom-house, amongst which the following two may be mentioned:'7. If any master of a vessel shall be detected in landing, or attempting to land, anywhere in California, any goods or merchandise, without permit from a collector, he shall be fined for every such offence in the sum of five hundred dollars, and the goods or merchandise so landed, or attempted to be landed, and the boat or boats through which such landing is effected or attempted, shall be seized, forfeited, and sold by the nearest collector.'8. If any person or persons other than the master of a vessel shall be detected in landing, or attempting to land, anywhere in California, any goods or merchandise,

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without permit from a collector, he or they shall be fined in the sum of one hundred dollars, and the goods or merchandise so landed, or attempted to be landed, and the boat or boats through which such landing is effected or attempted, shall be seized, forfeited, and sold by the nearest collector.'On the 7th of August, 1848, a proclamation was issued to the people of California, by R. B. Mason, the governor, announcing the ratification of the treaty of peace, by which Upper California was ceded to the United States.On the 9th of August, H. W. Halleck, lieutenant of engineers and Secretary of State, wrote to Captain Folsom, the collector of the customs at San Francisco, directing him to perform the duties until further orders, but announcing that he would be relieved as soon as some suitable citizen could be found to be appointed his successor. In the mean time he was told 'the tariff of duties for the collection of military contributions will immediately cease, and the revenue laws and tariff of the United States will be substituted in its place.'In order to illustrate the view which Colonel Mason took of his position, it may be proper to insert the following extract from a letter written by him to the War Department on the 14th of August, 1848:'In like manner, if all customs were withdrawn, and the ports thrown open free to the world, San Francisco would be made the depot of all the foreign goods in the north Pacific, to the injury of our revenue and the interests of our own merchants. To prevent this great influx of foreign goods into the country duty free, I feel it my duty to attempt the collection of duties according to the United States Tariff of 1846. This will render it necessary for me to appoint temporary collectors, &c., in the several ports of entry, for the military force is too much reduced to attend to those duties.'I am fully aware that, in taking these steps, I have no *184 furtherauthority than that the existing government must necessarily continue until some other is organized to take its place, for I have been left without any definite instructions in reference to the existing state of affairs. But the calamities and disorders which would surely follow the absolute withdrawal of even a show of authority, impose on me, in my opinion, the imperative duty to pursue the course I have indicated, until the arrival of despatches from Washington (which I hope are already on their way) relative to the organization of a regular civil government. In the mean time, however, should the people refuse to obey the existing authorities, or the merchants refuse to pay any duties, my force is inadequate to compel obedience.'On the 3d of September, 1848, Governor Mason appointed Edward H. Harrison temporary collector of the port of San Francisco, with a salary of two thousand dollars per annum, provided that so much was collected over and above the expenses of the custom-house.

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In order further to illustrate the view which was taken by the Executive branch of the government, of the existing condition of things in California, it is proper to insert an extract from a despatch written by Mr. Buchanan, Secretary of State, to Mr. Voorhees, on the 7th of October, 1848. It is as follows:'The President, in his annual message, at the commencement of the next session, will recommend all these great measures to Congress in the strongest terms, and will use every effort, consistent with his duty, to insure their accomplishment.'In the mean time, the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion of the Treaty of Peace, the military government which was established over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California? Are life, liberty, and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate *185 an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest.'This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles the growth, produce, or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the productions of California. Nor can new duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States. I shall not enlarge upon this subject, however, as the Secretary of the Treasury will perform that duty'At the same time, despatches were issued by the War and Treasury Departments to their respective officers, of similar import to the above. Mr. Walker, the Secretary of the Treasury, after providing for the reciprocal admission of goods which were the growth, &c., of California and the United States, free of duty, into the ports of each, thus provided for the case under consideration, so as to protect the revenue: 'Third.

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Although the Constitution of the United States extends to California, and Congress have recognized it by law as a part of the Union, and legislated for it as such, yet it is not brought by law within the limits of any collection district, nor has Congress authorized the appointment of any officers to collect the revenue accruing on the import of foreign dutiable goods into that territory. Under these circumstances, although this department may be unable to collect the duties accruing on importations from foreign countries into California, yet, if foreign dutiable goods should be introduced there, and shipped thence to any port or place of the United States, they will be subject to duty, as also to all the penalties prescribed by law when such importation is attempted without the payment of duties. R. J. WALKER,Secretary of the Treasury.'When these papers reached California, some doubt was entertained whether or not the revenue laws would be enforced, and application was made to Commodore Jones, then commanding the naval forces in the Pacific, to know whether he would use the forces under his command to aid the collector in seizing and confiscating goods, &c.; to which the commodore replied that he would so employ the force under his command.On the 23d of February, 1849, Cross, Hobson, and Company *186 protested against the payment of $105.62, duties which accrued upon an importation by the French bark Staonele, and also protested against the payment of duties upon all other importations, past, present, or to come.In order still further to explain the views of those who administered the government in California, it may be proper to introduce another extract from instructions which were issued on the 2d of February, 1849, by H. W. Hallecks, Secretary of State, to Mr. Harrison, the collector, namely:'This view of the subject presents a ready reply to the questions proposed in your letter. No vessel can demand as a right to enter any foreign dutiable goods here, and you will not be liable to prosecution for refusing such entry; and by a voluntary payment of her duties here, in preference to going to a regularly established port of entry, such vessel binds herself to abide by the revenue laws of the United States, in the absence of all instructions to the contrary.'On the 3d of March, 1849, (another of the periods of time mentioned in the prayers to the court,) Congress passed an act (9 Stat. at Large, 400,) making the port of San Francisco a collection district.On the 13th of November, 1849, Collector Collier, who had been regularly appointed, entered upon the execution of his duty at San Francisco. This was the third period referred to in the prayers to the court.

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In April, 1851, Cross, Hobson, and Company brought an action of trespass on the case in the Circuit Court of the United States for the Southern District of New York, against Edward H. Harrison, to recover sundry sums of money paid, under the above protest, for duties upon goods imported into San Francisco, during the period between the 3d of February, 1848, and the 12th of November, 1849.Upon the trial, the jury, under the instructions of the court found a verdict for the defendant.The bill of exceptions contained the deposition of sundry persons as to the payment and other facts in the case, and also the whole of the Senate Document above mentioned.The counsel for the plaintiffs then rested; and the counsel for the plaintiffs thereupon prayed the court to charge and instruct the jury, as matter of law, as follows:1. That during the period from the 3d day of February, 1848, the date of the treaty of peace and limits with the republic of Mexico, and the 3d of March, 1849, the date of the act of Congress which erected the State of California into a collection district of the United States, no duties accrue to the United States on merchandise not the production of the United States, nor of *187 vessels not of the United States which arrived within the limits of California, ceded by said treaty to the United States, and that the exaction by the defendant of such alleged duties on such goods imported into California by the plaintiffs within said period was not authorized by any law of the United States, and was therefore illegal.2. That during the period from the 3d of March, 1849, when the act of Congress erected the State of California into a collection district, and the 13th of November, 1849, when Collector Collier entered upon his duties as collector of customs at the port of San Francisco, in said district, the exaction of alleged duties to the United States, by the defendant, was not authorized by any law of the United States, and was therefore illegal, unless the jury shall find that the defendant was legally appointed and qualified to act as collector of the customs at San Francisco.3. That if the jury shall find that on the 23d February, 1849, the plaintiffs made their written protest against all exactions that then were or thereafter should be made by said defendant, as unauthorized by any act of Congress and illegal, and that moneys then and thenceforward were demanded as alleged duties to the United States by said defendant, and were paid under coercion of military power and duress, and not in pursuance of any law of the United States, that then such exactions were unauthorized and illegal, and the jury must find for the plaintiffs.4. That if the jury shall find from the evidence that alleged duties were exacted by the defendant from the plaintiffs between the 3d February, 1848, and the 12th November, 1849, by coercion and duress, and against their remonstrance and protest, that then the

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plaintiffs are entitled to the customary interest of California upon such exactions.Whereupon the court, pro forma, then and there charged and instructed the jury in conformity with the following prayers, in conformity with which the defendant's counsel insisted and prayed the court to instruct the jury as matters of law:1. That between the 3d February, 1848, and the 3d March, 1849, duties did accrue to the United States, on foreign merchandise, not the production of the United States, and on foreign vessels not of the United States, which were imported into and arrived within the limits of California, as ceded to the United States by the treaty of peace and limits with the Republic of Mexico, signed at Guadaloupe Hidalgo.2. That after the act of 3d March, 1849, erecting the State of California into a collection district of the United States, took effect, duties accrued to the United States, both on foreign *188 merchandise, not the production of the United States, and on foreign vessels not of the United States, imported and brought within the limits of such collection district.3. That if, from the evidence in the cause, the jury shall find that between the 3d February, 1848, and 12th November, 1849, the plaintiffs were allowed by the defendant to enter their said foreign goods and vessels at another port of the United States within a collection district, and thereafter to land the same at San Francisco without further exaction of duties, and that the plaintiffs neglected so to do, and elected to enter and land the same at San Francisco, and pay duties thereon, and that the duties were paid by defendant to the use of the United States, that then the said payment of duties was voluntary and not coercive, and the jury must find for the defendant.4. That if the jury shall find that the plaintiffs paid duties to the defendant on foreign merchandise, and on foreign vessels, not of the United States, between the 3d February, 1848, and 12th November, 1849, and that such payments were illegal but voluntary, and made through mistake of law, then the plaintiffs are not entitled to interest upon such exactions, and that upon the whole evidence the payments aforesaid were voluntary and not coercive.And the court further, pro forma, refused to instruct and charge the jury in conformity with the points insisted upon by the plaintiffs' counsel, and in conformity with which he had prayed the court to charge and instruct the jury as aforesaid.Upon this exception, the case came up to this court.This statement presents the case of the plaintiffs as strongly as it can be made from the record, and that contains every fact and document having any connection with the subject. The cause has been argued here with much research. Every argument has been brought to bear upon it by counsel on both sides, which can enter into its consideration. It seems, from the institution of the suit, until now, to have been

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conducted with the wish upon the part of the United States to give to the plaintiffs every opportunity to establish their claim judicially, if that could be done; and with a desire upon its part to obtain from this court a decision as to what are the rights of the United States in respect to tonnage and impost duties, in such a conjuncture as that was, when California was ceded by treaty to the United States, before Congress had authorized such duties to be collected there by a special act. We have received much assistance from the argument, and make the acknowledgment the more readily because it has enabled us to come to conclusions which we believe will be satisfactory, though adverse from the claim of the plaintiffs.*189 The purpose of the suit is to recover from the defendant certain tonnage duties and imposts which were paid to him by the plaintiffs upon ships which had arrived in San Francisco, and upon foreign merchandise landed there from them, between the 3d February, 1848, and the 13th November, 1849. Harrison had been appointed collector for the port of San Francisco by Colonel Mason, military governor of California. He told the plaintiffs, officially, that he would not permit them to land their goods without the payment of duties; stating if they attempted to do so, without having made an entry of them, that they would be seized and forfeited. He placed an inspector of the customs on board of the vessels of the plaintiffs, to prevent any merchandise from being landed from them without permits and entries, and when they complained that the duties which they were required to pay were illegal exactions, which they protested against, the collector refused to receive the duties under protest, and told the plaintiffs that they might enter their ships at some other port in the United States, and then discharge their goods at San Francisco. That he considered San Francisco a port in the United States at which foreign goods could not be landed without the payment of duties. It is as well to remark here, though the same fact appears in our statement of the case already given, that the duties for which the plaintiffs sue were paid by them between the 3d February, 1848, and the 12th November, 1849. They were paid, however, until some time in the fall of 1848, at the rate of the war tariff; which had been established early in the year before by the direction of the President of the United States.The authority for that purpose given to the commander-in-chief of our naval force on that station, was, to establish port regulations, to prescribe the conditions upon which American and foreign vessels were to be admitted into the ports of California, and to regulate import duties. That war tariff, however, was abandoned as soon as the military governor had received from Washington information of the exchange and ratification of the treaty with Mexico, and duties were afterwards levied in conformity with such as Congress had imposed upon foreign merchandise imported into the other ports of the United States, Upper California having been ceded by the treaty to the

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United States. This last was done with the assent of the Executive of the United States, or without any interference to prevent it. Indeed, from the letter of the then Secretary of State, and from that of the Secretary of the Treasury, we cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet. We think it was a rightful and correct *190 recognition under all the circumstances, and when we say rightful, we mean that it was constitutional, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California.California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward the United States had military possession of all of Upper California. Early in 1847 the President, as constitutional commander-in-chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government, and of the army which had the conquest in possession. We will add, by way of note to this opinion, references to all of the correspondence of the government upon this subject; now only referring to the letter of the Secretary at War to General Kearney, of the 10th of May, 1847, which was accompanied with a tariff of duties on imports and tonnage, which had been prepared by the Secretary of the Treasury, with forms of entry and permits for landing goods, all of which was reported by the Secretary to the President on the 30th of March, 1847. Senate Doc. No. 1, 1st session, 30th Congress, 1847, pp. 567, 583. No one can doubt that these orders of the President, and the action of our army and navy commander in California, in conformity with them, was according to the law of arms and the right of conquest, or that they were operative until the ratification and exchange of a treaty of peace. Such would be the case upon general principles in respect to war and peace between nations. In this instance it is recognized by the treaty itself. Nothing is stipulated in that treaty to be binding upon the parties to it, or from the date of the signature of the treaty, but that commissioners should be appointed by the general-in-chief of the forces of the United States, with such as might be appointed by the Mexican government, to make a provisional suspension of hostilities, that, in the places occupied by our arms, constitutional order might be reëstablished as regards the political, administrative, and judicial branches in those places, so far as that might be permitted by the circumstances of military occupation. All else was contingent until the ratifications of the treaty were exchanged, which was done on the 30th of May, 1848, at Queretaro; and there is in the 3d article of the treaty a full recognition by Mexico of the belligerent rights exercised by the United States during the war in its

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ports which had been conquered. In that article, besides other things provided for, it was stipulated that *191 the United States, upon the ratifications of the treaty by the two republics, should despatch orders to all persons in charge of the custom houses at all ports occupied by the forces of the United States, to deliver possession of the same to persons authorized by Mexico to receive them, together with all bonds and evidences of debts for duties on importations and exportations not yet fallen due, and that an exact account should be made out, showing the entire amount of all duties on imports and exports collected at such custom houses or elsewhere in Mexico by the authority of the United States after the ratification of the treaty by Mexico, with the cost of collection, all of which was to be paid to the Mexican government, at the city of Mexico, within three months after the exchange of ratifications, subject to a deduction of what had been the cost of collection.The plaintiffs therefore can have no right to the return of any moneys paid by them as duties on foreign merchandise in San Francisco up to that date. Until that time California had not been ceded, in fact, to the United States, but it was a conquered territory, within which the United States were exercising belligerent rights, and whatever sums were received for duties upon foreign merchandises, they were paid under them.But after the ratification of the treaty, California became a part of the United States, or a ceded, conquered territory. Our inquiry here is to be, whether or not the cession gave any right to the plaintiffs to have the duties restored to them, which they may have paid between the ratifications and exchange of the treaty and the notification of that fact by our government to the military governor of California. It was not received by him until two months after the ratification, and not then with any instructions or even remote intimation from the President that the civil and military government, which had been instituted during the war, was discontinued. Up to that time, whether such an intimation had or had not been given, duties had been collected under the war tariff, strictly in conformity with the instructions which had been received from Washington.It will certainly not be denied that those instructions were binding upon those who administered the civil government in California, until they had notice from their own government that a peace had been finally concluded. Or that those who were locally within its jurisdiction, or who had property there, were not bound to comply with those regulations of the government, which its functionaries were ordered to execute. Or that any one could claim a right to introduce into the territory of that government foreign merchandise, without the payment of duties which had been originally imposed under belligerent *192 rights, because the territory had been ceded by the original possessor and enemy to the conqueror. Or that the mere fact of a territory having been ceded by one sovereignty to another, opens it to a free commercial

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intercourse with all the world, as a matter of course, until the new possessor has legislated some terms upon which that may be done. There is no such commercial liberty known among nations, and the attempt to introduce it in this instance is resisted by all of those considerations which have made foreign commerce between nations conventional. 'The treaty that gives the right of commerce, is the measure and rule of that right.' Vattel, c. 8, § 93. The plaintiffs in this case could claim no privilege for the introduction of their goods into San Francisco between the ratifications of the treaty with Mexico and the official annunciation of it to the civil government in California, other than such as that government permitted under the instructions of the government of the United States.We must consider them as having paid the duties upon their importations voluntarily, notwithstanding that they protested against the right of the collector to exact them. Their protest was made from a misconception of the principles applicable to the circumstances under which those duties were claimed, and from their misapprehension of what were the commercial consequences resulting from the treaty of peace with Mexico and the cession of California to the United States. That treaty gave them no right to carry foreign goods there upon which duties had not been paid in one of our ports of entry. The best test of the correctness of what has just been said is this: that if such goods had been landed there duty free, they could not have been shipped to any other port in the United States without being liable to pay duty.Having considered and denied the claim of the plaintiffs to a restoration of the duties paid by them from the date of the treaty up to the time when official notice of its ratification and exchange were received in California, we pass on to the examination of their claim from that time until the revenue system in respect to tonnage and import duties had been put into practical operation in California, under the act of Congress passed for that purpose. The ratification of the treaty of peace was proclaimed in California, by Colonel Mason, on the 7th of August, 1848. Up to this time it must be remembered that Captain Folsom, of the quartermaster's department of the army, had been the collector of duties under the war tariff. On the 9th of August, he was informed by Lieutenant Halleck, of the engineer corps, who was the Secretary of State of the civil government of California, that he would be relieved as soon as *193 a suitable citizen could be found for his successor. He was also told that 'the tariff of duties for the collection of military contributions was immediately to cease, and that the revenue laws and tariff of the United States will be substituted in its place.' The view taken by Governor Mason, of his position, has been given in our statement. The result was to continue the existing government, as he had not received from Washington definite instructions in reference to the existing state of things in California.

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His position was unlike any thing that had preceded it in the history of our country. The view taken of it by himself has been given in the statement in the beginning of this opinion. It was not without its difficulties, both as regards the principle upon which he should act, and the actual state of affairs in California. He knew that the Mexican inhabitants of it had been remitted by the treaty of peace to those municipal laws and usages which prevailed among them before the territory had been ceded to the United States, but that a state of things and population had grown up during the war, and after the treaty of peace, which made some other authority necessary to maintain the rights of the ceded inhabitants and of immigrants, from misrule and violence. He may not have comprehended fully the principle applicable to what he might rightly do in such a case, but he felt rightly, and acted accordingly. He determined, in the absence of all instruction, to maintain the existing government. The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption *194 of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government. And the more so as it was continued until the people of the territory met in convention to form a State government, which was subsequently recognized by Congress under its power to admit new States into the Union.In confirmation of what has been said in respect to the power of Congress over this territory, and the continuance of the civil government established as a war right, until Congress acted upon the subject, we refer to two of the decisions of this court, in one of which it is said in respect to the treaty by which Florida was ceded to the United States: 'This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities, of the citizens of the United

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States. It is unnecessary to inquire whether this is not their condition, independently of stipulations. They do not however participate in political power--they do not share in the government until Florida shall become a State. In the mean time Florida continues to be a territory of the United States, guarded by virtue of that clause in the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States. 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 natural consequences of the right to acquire territory.' American Insurance Co. v. Canter, 1 Peters, 542, 543.The court, afterwards, in the case of the United States v. Gratiot, 14 Peters, 526, repeats what it said in the case of Canter in respect to that clause of the Constitution giving to Congress the power to make all needful rules and regulations respecting the territory or other property of the United States.Colonel Mason was fortunate in having his determination to continue the existing government sustained by the President of the United States and the Secretaries of his cabinet. And nothing but an almost willing misunderstanding of the circular of the Secretary of the Treasury, Mr. Walker, could have caused a doubt as to the liability of the importers of foreign goods into California to pay duties upon them. That part of the Secretary's circular relating to duties is in our statement of the case. It will show that the Secretary says no more than this: that as Congress had not brought California by law within the limits *195 of any collection district, or authorized the appointment of officers to collect the revenue accruing upon the importation of foreign dutiable goods into that territory, that his department may be unable to collect them. Revenue accruing upon the importation into California of foreign dutiable goods, means that the goods were liable to pay the duty. There is nothing uncertain in the Secretary's circular. It does not warrant in any way the declaration that it was his opinion that the goods were not dutiable, or that they might not be legally collected, though that could not be done by the instrumentality of officers of a collection district. Our conclusion, from what has been said, is, that the civil government of California, organized as it was from a right of conquest, did not cease or become defunct in consequence of the signature of the treaty or from its ratification. We think it was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, and that until Congress legislated for it, the duties upon foreign goods imported into San Francisco were legally demanded and lawfully received by Mr. Harrison, the collector of the port, who received his appointment, according to instructions from Washington,

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from Governor Mason.But it was assumed in the argument, and not without force and ingenuity, and with some appearance of authority, that duties did not accrue to the United States upon foreign goods brought into California between the 3d of February, 1848, and the 3d of March, 1849, and from the last date until the 12th of November, 1849; and that the exaction of them was illegal. The two first dates mentioned, comprehend the time between the date of the treaty and the date of the act of Congress which included California within one of the collection districts of the United States, and the other date comprehends the time from the date of the act of Congress until Mr. Collier, the collector, entered upon the duties of his office. It was also said by counsel, that as there was no treaty or law enjoining or permitting the collection of the duties, that the exaction of them by the defendant was illegal. It was said, that the duties were illegally exacted, because the laws of a ceded country, including those of trade, remained unchanged until the new sovereignty of it changed them, and that this Congress had not done. That the practice of the United States had been, not to collect duties upon importations upon goods brought into a ceded territory, until Congress passed an act for it to be done. Louisiana and Florida were the instances cited; and the ratification by North Carolina and Rhode Island of the Constitution of the United States, were also mentioned as having been the subjects of special legislation to bring them within the operation of the revenue laws which had been passed by Congress.*196 And it was said, that as Congress has the constitutional power to regulate commerce, and had not done so specifically in respect to tonnage and import duties in California, that none of the existing acts of Congress, for such purposes, could be applied there until Congress had passed an act giving to them operation, and had legislated California into a collection district, with denominated ports of entry.This last being the most important of the objections which were made, we will examine it first, and afterwards notice those which precede it. The objection assumes, that, under the laws then in force, duties could not be collected in California after the war with Mexico had been concluded by a treaty of peace; and that the President had no legal authority to order the collection of duties there upon foreign goods, or power to enforce any revenue regulations, or to prevent the landing of goods prior to the passage of the act, by which our revenue laws were extended to California, and before proper officers had been appointed to execute those laws. It has already been shown, that for seven months of the time the duties received were paid under the war tariff, and that the treaty, though signed in 1848, did not become operative until the ratifications and exchanges of it. And further, that it could not have any effect upon the existing government of California, until official information of those ratifications had been received there. The belligerent right of the United States to make a civil

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government in California when it was done, and to authorize it to collect tonnage and impost duties whilst the war continued, is admitted.It was urged, that our revenue laws covered only so much of the territory of the United States as had been divided into collection districts, and that out of them no authority had been given to prevent the landing of foreign goods or to charge duties upon them, though such landing had been made within the territorial limits of the United States. To this it may be successfully replied, that collection districts and ports of entry are no more than designated localities within and at which Congress had extended a liberty of commerce in the United States, and that so much of its territory as was not within any collection district, must be considered as having been withheld from that liberty. It is very well understood to be a part of the laws of nations, that each nation may designate, upon its own terms, the ports and places within its territory for foreign commerce, and that any attempt to introduce foreign goods elsewhere, within its jurisdiction, is a violation of its sovereignty. It is not necessary that such should be declared in terms, or by any decree or enactment, the expressed allowances being the limit of the liberty given to foreigners to trade with such nation. *197 Upon this principle, the plaintiffs had no right of trade with California with foreign goods, excepting from the permission given by the United States under the civil government and war tariff which had been established there. And when the country was ceded as a conquest, by a treaty of peace, no larger liberty to trade resulted. By the ratifications of the treaty, California became a part of the United States. And as there is nothing differently stipulated in the treaty with respect to commerce, it became instantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage. It was bound by the eighteenth section of the act of 2d of March, 1799. The fair interpretation of the second member of the first sentence of that section is, that ships coming from foreign ports into the United States were not to be permitted to land any part of their cargoes in any other than in a port of delivery, confined then to the ports mentioned in the act; afterward applicable to all other places which might be made ports of entry and delivery, and excluding all right to unlade in any part of the United States which had not been made a collection district with ports of entry or delivery. The ninety- second section of that act had four objects in view. First, to exclude foreign goods subject to the payment of duties from being brought into the United States, except in the localities stated, otherwise than by sea. Next, that they were not to be brought by sea in vessels of less than thirty tons burden. And third, to subject to forfeiture any foreign goods which might be landed at any other port or place in the United States than such as were designated by law. Fourth, to exclude the allowances of drawback of any duties on foreign goods exported from any district in the United States otherwise than

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by sea, and in vessels less than thirty tons burden. The sixty-third section also of that act, directing when tonnage duties were to be paid, became as operative in California after its cession to the United States, as it was in any collection district.The acts of the 20th July, 1790, (1 Stat. at Large, 130, c. 30,) and that of 2d March, 1799, (1 Stat. at Large, 627, c. 22,) were also of force in California without other special legislation declaring them to be so. It cannot very well be contended that the words 'entered in the United States,' give an exemption from them on account of the word entered, because a ship has been brought into a port in the United States where an entry cannot be made, as it may be done in a collection district. The goods must be entered before a permit for delivery can be given. Shall one then be permitted to land goods in any part of the United States not in a collection district, because he has voluntarily gone there with his vessel where an entry of his *198 goods cannot be made; or to say, I know that my goods cannot be entered where I am, and therefore claim the right to land them for sale and consumption free of duty?It has been sufficiently shown that the plaintiffs had no right to land their foreign goods in California at the times when their ships arrived with them, except by a compliance with the regulations which the civil government were authorized to enforce--first, under a war tariff, and afterward under the existing Tariff Act of the United States. By the last, foreign goods, as they are enumerated, are made dutiable--they are not so because they are brought into a collection district, but because they are imported into the United States. The Tariff Act of 1846 prescribes what that duty shall be. Can any reason be given for the exemption of foreign goods from duty because they have not been entered and collected at a port of delivery? The last become a part of the consumption of the country, as well as the others. They may be carried from the point of landing into collection districts within which duties have been paid upon the same kinds of goods; thus entering, by the retail sale of them, into competition with such goods, and with our own manufactures, and the products of our own farmers and planters. The right claimed to land foreign goods within the United States at any place out of a collection district, if allowed, would be a violation of that provision in the Constitution which enjoins that all duties, imposts, and excises, shall be uniform throughout the United States. Indeed, it must be very clear that no such right exists, and that there was nothing in the condition of California to exempt importers of foreign goods into it from the payment of the same duties which were chargeable in the other ports of the United States. As to the denial of the authority of the President to prevent the landing of foreign goods in the United States out of a collection district, it can only be necessary to say, if he did not do so, it would be a neglect of his constitutional obligation 'to take care that the laws be faithfully executed.'We will here briefly notice those objections which preceded that which has been

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discussed. The first of them, rather an assertion than an argument--that there was neither treaty nor law permitting the collection of duties--has been answered, it having been shown that the ratifications of the treaty made California a part of the United States, and that as soon as it became so, the territory became subject to the acts which were in force to regulate foreign commerce with the United States, after those had ceased which had been instituted for its regulation as a belligerent right.The second objection states a proposition larger than the case *199 admits, and more so than the principle is, which secures to the inhabitants of a ceded conquest the enjoyment of what had been their laws before, until they have been changed by the new sovereignty to which it has been transferred. In this case, foreign trade had been changed in virtue of a belligerent right before the territory was ceded as a conquest, and after that had been done by a treaty of peace, the inhabitants were not remitted to those regulations of trade under which it was carried on whilst they were under Mexican rule; because they had passed from that sovereignty to another, whose privilege it was to permit the existing regulations of trade to continue, and by which only they could be changed. We have said in a previous part of this opinion, that the sovereignty of a nation regulated trade with foreign nations, and that none could be carried on except as the sovereignty permits it to be done. In our situation, that sovereignty is the constitutional delegation to Congress of the power 'to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.'In respect to the suggestion that it has not been the practice of the United States to collect duties upon importations of foreign goods into a ceded territory until Congress had passed an act for that purpose, counsel cited the cases of Louisiana and Florida. The reply is, that the facts in respect to both have not been recollected. There was no forbearance in either instance, in respect to duties upon imports, until Congress had acted. Louisiana was ceded by a treaty bearing the date of the 30th of April, 1803, but the possession of it by the United States depended upon the terms of final ratifications by the parties to it, and upon the delivery of it by a commissioner to be appointed by the French government to receive the transfer from Spain to France, and by him to be immediately transferred to the United States. Articles 1, 2, 4, 5.The surrender from Spain to France was formally made on 30th of November, 1803, and that to the United States was done on the 20th of December, 1803. It was known in Washington, by a letter from the commissioner appointed to receive it, early in January. It is said, that from that time until the act of the 24th of February, or, as was provided for in the act, until thirty days after, Louisiana was not considered, in a fiscal sense, as a part of the United States; and that duties were not only not collected by the United States on importations into Louisiana, but that duties were charged on goods

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brought from Louisiana into the United States. It seems to have been forgotten that our commercial intercourse with Louisiana had been the subject of legislation by Congress in several *200 particulars from the year 1800; and that before the revenue system could be applied, it was necessary to repeal that special legislation. Mr. Gallatin, in his report of the 25th of October, 1803, (American State Papers, Finance, vol. 2, 48,) suggested that it should be done. Congress, however, did not do so until the act of the 24th of February, 1804, was passed, by the third section of which the repeal was effected. The postponement of the operation of the act for thirty days longer, was with the view to prevent any conflict of rights or interests between what would be the new regulations of commerce under the act, and those which had preceded them.It is only necessary to say as to Florida, that the treaty of the 22d February, 1819, was not ratified by the United States until the 19th February, 1821. In a few days afterward the act was passed extending our revenue system to it, subject to the stipulation in the 15th article of the treaty in favor of Spanish vessels and their cargoes. There was, then, no interval in either instance where duties were not collected upon foreign importations, because Congress had not legislated for it to be done.The application of the revenue acts to North Carolina and Rhode Island, when those States had ratified the Constitution of the United States, though that was not done until the Constitution had been ratified by eleven of the States, does not support the position taken by the counsel of the plaintiff in error. Those States had been parties to the Confederation, and North Carolina was represented in the convention which formed the Constitution. It was to become the government of the Union when ratified by nine States. It had been ratified by eleven States, and Congress declared that it should go into operation on the 4th day of March, 1789. The subsequent ratifications by North Carolina and Rhode Island made them parties in the government. It brought them in, without new forms or legislation, and their senators and representatives were admitted into Congress upon the presentation of their ratifications. Special acts were passed to apply to them the previous legislation of Congress, and that of the revenue acts, as a matter of course, because, previously to the ratification, those States had not been attached to any collection district. But it was not supposed by any one that after those States had ratified the Constitution, that foreign goods could have been imported into them without being subject to duty, or that it was necessary to make them collection districts to make such importations dutiable.But we do not hesitate to say, if the reasons given for our conclusions in this case were not sound, that other considerations *201 would bring us to the same results. The plaintiffs carried these goods voluntarily into California, knowing the state of things there. They knew that there was an existing civil government instituted by the

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authority of the President, as commander-in-chief of the army and naval forces of the United States, by the right of conquest; that it had not ceased when these first importations were made; that it was afterwards continued, and rightfully, as we have said, until California became a State; that they were not coerced to land their goods, however they may have been to pay duties upon them; that such duties were demanded by those who claimed the right to represent the United States--who did so, in fact, with most commmendable integrity and intelligence; that the money collected has been faithfully accounted for, and the unspent residue of it received into the treasury of the United States; and that the Congress has by two acts adopted and ratified all the acts of the government established in California upon the conquest of that territory, relative to the collection of imposts and tonnage from the commencement of the late war with Mexico to the 12th November, 1849, expressly including in such adoption the moneys raised and expended during that period for the support of the actual government of California after the ratification of the treaty of peace with Mexico. This adoption sanctions what the defendant did. It does more--it affirms that he had legal authority for his acts. It coincides with the views which we have expressed in respect to the legal liability of the plaintiffs for the duties paid by them, and the authority of the defendant to receive them as collector of the port of San Francisco.From these circumstances the law will not imply an assumpsit upon the part of the defendant to repay the money received by him from them for duties; the plaintiffs knew, when they paid him, that the defendant received them for the United States. The plaintiffs have no claim for damages against the defendant in justice or equity. They paid duties to which the United States had a rightful claim, and no more than the law required. The plaintiffs have paid no excess. The moneys were paid under no deceit, no mistake; the defendant has honestly paid them over to the United States, has been recognized as their agent when he acted as collector, and is not responsible to the plaintiffs in foro conscientiae. The moneys were paid from a portion of the funds in the treasury of the United States, subject to the constitutional restriction that no money shall be drawn from the treasury but in consequence of appropriations made by law for such purposes as the Constitution permits. Our conclusion is, that the rulings made in this case in *202 the Circuit Court are correct. We shall direct the judgment to be affirmed.

Order.This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court,

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that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

NOTE.The following are the documents referred to in the above opinion:1847, October 13. Mr. Marcy to Colonel Mason.1848, July 26. Colonel Mason's Custom House Regulations.1848, August 7. Colonel Mason's Proclamation, announcing the ratification of the Treaty of Peace.1848, October 7. Mr. Buchanan to W. B. Voorhees.1848, October 7. Mr. Walker's Circular.1848, October 9. Mr. Marcy to Colonel Mason.1849, March 15. Persifor F. Smith to Adjutant-General Jones.1849, April 1. Persifor F. Smith's Circular to Consuls.1849, April 3. Mr. Clayton to Thomas Butler King.1849, April 3. Mr. Meredith to James Collier, Collector.1849, April 5. Persifor F. Smith to Adjutant-General Jones.1849, June 20. Persifor F. Smith to Mr. Crawford, Secretary of War.1849, June 30. General Riley to Adjutant-General Jones.1849, August 30. General Riley to Adjutant-General Jones.1849, October 1. General Riley to Adjutant-General Jones.1849, October 20. Carr, Acting Deputy-Collector, to Mr. Meredith.1849, October 31. General Riley to Adjutant-General Jones.1849, November 13. Mr. Collier, Collector, to Mr. Meredith.U.S.,1853Cross et al. v. Harrison57 U.S. 164 (Mem), 16 How. 164, 14 L.Ed. 889END OF DOCUMENT

Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works

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Northwestern University Law ReviewWinter 2001

Article

*581 THE HOBBESIAN CONSTITUTION: GOVERNING WITHOUT AUTHORITY

Gary Lawson [FNa1]; & Guy Seidman [FNaa1]

Copyright © 2001 Northwestern University School of Law, NorthwesternUniversity Law Review; Gary Lawson; & Guy Seidman

One case in American legal history, perhaps more than any other, starkly presents in a single package many of the most fundamental issues of American structural constitutionalism: the principle of enumerated powers, the concept of limited government, and the place of the United States in a world of sovereign nations. It raises foundational questions about the powers of all major institutions of the national government and serves as an ideal acid test for differing conceptions of the Constitution--and indeed of the American nation-state. In terms of its theoretical scope and consequences, it is one of the most important cases ever decided by the United States Supreme Court. The case is Cross v. Harrison. [FN1]If you have never heard of Cross v. Harrison, you are in good company. The case is not even cited in the two leading treatises on constitutional law. [FN2] It does not appear in the Table of Cases of any of the eight Constitutional Law casebooks that we surveyed. [FN3] No modern law review article of which we are aware makes any significant use of Cross; the relatively few articles that mention Cross primarily cite it, often as part of a *582 string-citation, for very general propositions of law. [FN4] Indeed, it is fair to describe Cross v. Harrison as "obscure."Nonetheless, our description of its theoretical significance is not hyperbole. Cross involved the legality of the American government in California between May 30, 1848, when the United States acquired the territory, and September 9, 1850, when California was admitted as a state. [FN5] During that almost two-and-one-half year

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period, the American territory of California was "governed" by military authorities who acted without any statutory authorization from Congress. The Supreme Court in Cross upheld the constitutionality of this peculiar arrangement. The case raises fundamental questions about the powers of the principal institutions of the national government in times of war and peace--and about the constitutional line between *583 wartime and peacetime governance--that go to the very heart of the American constitutional enterprise. And although the Supreme Court has relied on Cross on only a few occasions, those sparing uses have had significant consequences. [FN6]A full treatment of the legal, political, and historical significance of Cross would require a book. [FN7] Our goal in this Article is more modest. We hope to introduce Cross to the mainstream of American constitutional discourse and to begin a dialogue on at least some of the many questions that are embedded in its facts. Part I presents a brief description of the facts and background of Cross and a quick introduction to some of the legal issues that it raises. Part II explains why certain modern doctrines of official immunity and de facto governmental authorization that contemporary lawyers would find critical to the disposition of a case like Cross played no role--and properly played no role--in the case when Cross was decided in 1854. [FN8] Part III critically examines the Supreme Court's disposition of Cross, with a special focus on some important issues that lurk in the background but that were either ignored or cavalierly cast aside by the Court's decision. In particular, Part III considers some very basic questions about the nature of sovereignty, the meaning of a constitution of limited and enumerated powers, and the relationship between congressional and presidential powers during and immediately after wartime. We identify the startling, and in many respects Hobbesian, [FN9] claims of power that were asserted and ultimately upheld by the Supreme Court in Cross. We then trace some of the consequences of those claims in subsequent legal and political events, most notably the so-called Insular Cases, which concerned the constitutional status of Pacific and Caribbean territories acquired by the United States at the beginning of the twentieth century. Part IV contains concluding remarks.Even if the reader does not ultimately share our assessment of Cross's importance, we trust that the reader will find the journey upon which it carries us to be enlightening, thought-provoking, and troubling. Few cases tell us as much about the true meaning of the American constitutional order.

*584 I. IntroductionCross v. Harrison was a suit brought by Cross, Hobson & Co., a trading firm, against Edward H. Harrison, a federal customs collector in California, for the recovery of

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tariff duties collected by Harrison between February 3, 1848 and November 12, 1849. The plaintiffs claimed that Harrison had no legal authority to collect the tariffs during all or part of that time. To understand the basis for the suit, one must understand the relevant chronology of events in California and the significance of Harrison's peculiar status.On May 13, 1846, the United States Congress declared war on Mexico. Shortly thereafter, American forces occupied the territory now known as California. By July 1846, American military commanders were proclaiming California as United States territory by virtue of military occupation. [FN10]Under universally accepted principles of international law, the successful occupation entitled the United States to set up a provisional military government in California. [FN11] In early 1847, President Polk instructed the military commanders in California to establish such a government and to collect duties on goods imported into California. [FN12] It is important to recognize that these "duties" are not the kind of duties referenced in Article I, Section 8, Clause 1 of the Constitution [FN13] or other constitutional clauses that discuss or limit the power to lay duties. [FN14] Wartime "duties" imposed in occupied territory are military exactions that are (within the limitations of international law) just as much a part of the war effort as the bombing of enemy positions. Their domestic constitutional authorization does not stem from the congressional taxing power in Article I but from the grant to the President in Article II of the power to act as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States .. . . .." [FN15] The commander-in-chief power clearly entails the power to wage war in accordance *585 with governing international norms, which include the right of the conqueror to impose "duties" on imported goods to help finance its war effort and to maintain its government in the occupied territory. [FN16] This latter purpose was especially important in California because the import fees were expected to be the military government's only source of revenue for quite some time. [FN17] These war tariffs collected by American military personnel in California during the actual hostilities with Mexico were obviously a valid exercise of the President's war powers, and no party involved in Cross v. Harrison ever suggested otherwise.On February 3, 1848, Mexico and the United States signed a treaty of peace that ended the formal hostilities between the nations and also permanently ceded a large territory, including California, to the United States. [FN18] Ratifications of the treaty were exchanged in Queretaro, Mexico, on May 30, 1848. The military governor of California formally announced the ratification of the peace treaty to the people of the territory on August 7, 1848. [FN19]

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Obviously, there could be no war tariff if there was no war. Any "duties" levied after the end of the war had to be imposed pursuant to the normal peacetime taxing powers of Congress. The military officials in California fully recognized this fact. On August 9, 1848, two days after the formal announcement in California of the peace treaty, the Secretary of State of the military government notified Harrison's predecessor as the customs collector in San Francisco that "the tariff of duties for the collection of military contributions will immediately cease, and the revenue laws and tariff of the United States will be substituted in its place." [FN20] The California government then applied the congressionally-enacted, generally applicable tariff schedules to goods imported into California.Harrison was appointed temporary collector by the governor of California on September 3, 1848. On February 23, 1849, Harrison demanded $105.62 in duties from Cross, Hobson & Co. in order for it to land its goods in San Francisco. The company paid the duties under protest. On March 3, *586 1849, Congress formally extended its tariff laws to California and authorized the appointment of a customs collector for San Francisco. [FN21] On November 13, 1849, Harrison was relieved as collector by James Collier, who, in the intriguing words of the Supreme Court, "had been regularly appointed." [FN22] No objection was made to any tariffs collected by Collier on or after November 13, 1849.During the fall of 1849, a convention was held in California to draft a constitution in anticipation of statehood. The constitution was ratified on December 12, 1849, and the military authorities at that point gave effective control of the territory to the civilian authorities acting under that constitution. [FN23] On September 9, 1850, Congress admitted California as a state. [FN24]In 1851, Cross, Hobson & Co. sued to recover all of the tariffs collected by Harrison and by his predecessor dating from February 3, 1848 to November 13, 1849, when Collier relieved Harrison as the customs collector.This simple time line omits some essential embellishments. Most significantly, Harrison was "appointed" as customs collector of San Francisco by Colonel R.B. Mason, who was governor of California during the military occupation. Mason held his position as "governor" solely by virtue of the President's power as commander-in-chief to administer occupied territory during wartime. [FN25] Harrison's "appointment" by Mason took place, however, more than three months after the exchange of treaty ratifications that ended the war. Even if one allows for the slowness of communications in the mid- nineteenth century, [FN26] Harrison was "appointed" by "Governor" Mason nearly a month after Mason had formally announced to the people of California, by proclamation, that the peace treaty had been ratified. Where did a military commander get the authority to appoint a military

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customs collector during a *587 time of peace? And where did a military officer get the authority to collect peacetime federal customs duties without congressional authorization?The constitutional answer would seem pretty clearly to be "nowhere." The constitutional authorization for a military government stems, as we have noted, from the President's power as commander-in-chief. Once the war is over, however, the occupied territory, in accordance with the treaty of peace, will either be ceded to the United States or not. If it is not, and the territory has been returned to its previous sovereign or has become an independent state, then the United States has no more power to govern it and to collect tariffs than it normally would in any foreign country. If the occupied territory is ceded to the United States, then it becomes territory belonging to the United States. At that point, the constitutional rules for governance shift.Article IV of the Constitution provides that "[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . ." [FN27] During peacetime, in other words, the Constitution seems to grant to Congress, not to the President, the power to govern American territory. [FN28] Importantly, the normal constitutional rules on delegation of legislative authority do not apply to the power to administer territories, [FN29] so Congress may choose to exercise its power by legislatively micro-managing territorial affairs, by giving executive officials virtually complete authority in the territory, or (under long-settled, if arguably erroneous, doctrine) by giving territories a substantial measure of self-governance through elected territorial legislatures. [FN30] But in any case, the power to govern, in whomever it is ultimately vested, must originate in a congressional statute enacted pursuant to Article IV. Similarly, the authority to impose customs duties in peacetime lies exclusively *588 with Congress; the President can no more impose a peacetime tariff than he or she can create a bankruptcy code or declare war.Congress, however, never passed a statute for the governance of California-- not even a statute that authorized the President to continue in place the wartime military government. On a more mundane doctrinal level, Colonel Mason, as the chief executive of a large federal territory, was surely a principal officer within the meaning of Article II's Appointments Clause, [FN31] which means that he could only validly serve as the civil governor if he was nominated by the President and confirmed by the Senate. [FN32] Mason, of course, was never formally nominated by the President and confirmed by the Senate for the post of governor of California. [FN33] Accordingly, after the termination of hostilities, there would appear to be no authority for "Governor" Mason or any of his subordinates to act as officials of California, and

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Harrison's appointment as "collector" is therefore equally suspect. [FN34] Indeed, there would appear to be no constitutional authority for any kind of American-led government in California in the absence of a congressionally-enacted organic statute.Colonel Mason worried about this problem as much as anyone. On August 19, 1848, he wrote a lengthy letter to the Department of War which read in part: For the past two years no civil government has existed here, save that controlled by the senior military or naval officer; and no civil officers exist in the country, save the alcades appointed or confirmed by myself. To throw off *589 upon them or the people at large the civil management and control of the country, would most probably lead to endless confusions, if not to absolute anarchy; and yet what right or authority have I to exercise civil control in time of peace in a Territory of the United States? . . . Yet . . . I feel compelled to exercise control over the alcades appointed, and to maintain order, if possible, in the country, until a civil governor arrive, armed with instructions and laws to guide his footsteps.In like manner, if all customs were withdrawn, and the ports thrown open free to the world, San Francisco would be made the depot of all the foreign goods in the north Pacific, to the injury of our revenue and the interests of our own merchants. To prevent this great influx of foreign goods into the country duty free, I feel it my duty to attempt the collection of duties according to the United States Tariff of 1846. This will render it necessary for me to appoint temporary collectors, &c., in the several ports of entry, for the military force is too much reduced to attend to those duties.I am fully aware that, in taking these steps, I have no further authority than that the existing government must necessarily continue until some other is organized to take its place, for I have been left without any definite instructions in reference to the existing state of affairs. But the calamities and disorders which would surely follow the absolute withdrawal of even a show of authority, impose on me, in my opinion, the imperative duty to pursue the course I have indicated, until the arrival of despatches from Washington (which I hope are already on their way) relative to the organization of a regular civil government. [FN35]On October 7, 1848, the Secretary of State of the United States directly addressed the problem of congressional inaction concerning a government for California. His remarkable comments (about which we will say much more in Part III) deserve to be quoted at length: The President, in his annual message, at the commencement of the next session, will recommend all these great measures to Congress in the strongest terms, and will use every effort, consistent with his duty, to insure their accomplishment.In the mean time, the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. By the conclusion

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of the Treaty of Peace, the military government which was established over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California? Are life, liberty, and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress *590 shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest.This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles the growth, produce, or manufacture of the United States,as no such duties can be imposed in any other part of our Union on the productions of California. Nor can new duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States. I shall not enlarge upon this subject, however, as the Secretary of the Treasury will perform that duty. [FN36]This was the backdrop of the lawsuit to recover the duties imposed by "Collector" Harrison. The trial court essentially instructed the jury to find for the government, [FN37] which it did, and the case went to the Supreme Court.

II. Avoiding AnachronismThe stakes in this case ran much higher than a year-and-a-half's worth of customs duties paid by Cross, Hobson & Co. Obviously, if Harrison had no legal authority to act in an official capacity, neither did anyone else in the California "government." If that "government" in fact had no legal authorization under the laws and Constitution of the United States, then all of the actions taken by its "officials" that amounted to ordinary private law violations could give rise to liability and private law remedies, such as damages. In addition, any actions of the military government that affected private rights, such as the adjudication of land titles, would come under a cloud. A

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holding that, for any relevant period of time, there was no legal authorization for the military government in California would have potentially staggering consequences.In similar circumstances today, lawyers would immediately hone in on the two following issues that might well dispose of the case in short order, or at least would severely mitigate the effects of a holding against the legality of the military government: (1) official immunity and (2) various doctrines that are used to legitimate the actions of de facto government officials. These doctrines permit judgment in favor of defendants even when the defendants act without legal authorization. If Cross were decided today, the question of the constitutionality vel non of the military regime *591 would clearly take a back seat to these "threshold" issues. Indeed, in all likelihood, the constitutional issues would never be reached.Such defenses were not decisive in 1854, however, because they did not then exist, at least not in the forms in which we are accustomed to them today. In order to understand the issues in Cross, one must avoid looking at the case through the lens of modern doctrines that had no applicability in 1854.

A. Official ImmunityCross v. Harrison was not a suit against the United States or the territorial government of California. Any suit against the United States or its instrumentalities would have been flatly barred by the doctrine of sovereign immunity, which was well established by 1848. [FN38] There were no statutes at that time generally waiving sovereign immunity for such claims. [FN39] Any relief from the government itself would have had to come from a private bill enacted by Congress specifically authorizing payment to the plaintiff.The plaintiff instead sued Harrison, the customs collector, in his personal capacity. The claim was a straightforward action of assumpsit for the return of moneys improperly collected. [FN40] If the plaintiff won, the judgment would run against Harrison personally, though the United States would be free, if it so wanted, to indemnify Harrison against damages either before or after the entry of judgment.Today, the first inquiry in such a case would be whether the defendant, a government official, was entitled to qualified immunity, meaning that liability could be imposed only if the defendant violated a "clearly established" legal norm. [FN41] Because the constitutionality of a peacetime military government had not been specifically settled before Cross, one can easily imagine a court holding that Mason, Harrison, and other officials did not violate a constitutional norm that was "clearly established" in 1848 within the meaning of the qualified immunity doctrine. [FN42] The doctrine of official immunity, however, *592 is a distinctly modern phenomenon. In the mid- nineteenth century, official status was no defense at all to a suit for damages. Official

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status only worked as a defense if the defendant was in fact validly authorized to take the action in question. In the absence of actual legal authorization, to be determined by a court, a jury, or both without deference to the views of the government, the defendant stood before the law as an ordinary person. A good faith belief in legal authorization counted for nothing.The full scope of the pre-modern view on immunity, which largely prevailed for the better part of two hundred years, is illustrated by the Supreme Court's 1804 decision in Little v. Barreme. [FN43] As a result of hostilities, which did not quite rise to the level of war, between the United States and France, Congress declared forfeit any vessel wholly or partly owned or hired by Americans that engaged in commerce with anyone subject to French jurisdiction. [FN44] Congress then authorized the President, as military commander-in- chief, to instruct naval officers to: stop and examine any ship or vessel of the United States on the high sea, which there may be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor hereof, and if, upon examination, it should appear that such ship is bound to or sailing to any place within the territory of the French republic or her dependencies, it is rendered lawful to seize such vessel, and send her into the United States for adjudication. [FN45]The statute contained a seeming loophole: it only authorized presidential seizures of vessels sailing to French ports but made no provision for the seizure of vessels sailing from French ports. [FN46] The President's instructions to the nation's naval officers nonetheless ordered the officers to seize vessels travelling either to or from French ports: A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France and her dependencies, where the vessels or cargoes are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you. [FN47]Acting under these orders from the President of the United States, Captain Little seized a ship travelling from a French to an American port and *593 brought it to Boston. The owner of the ship maintained that the seizure was unlawful and sued Captain Little, in his personal capacity, for damages to the ship resulting from the seizure. The circuit court awarded damages of $8,504--which was a considerable sum in 1804--and Captain Little appealed. Chief Justice Marshall issued this remarkable opinion for a unanimous Court:

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These orders given by the executive under the construction of the act of congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce a suspicion that the vessel was American, would excuse the captor from damages when the vessel appeared in fact to be neutral.

I confess the first bias of my mind was very strong in favour of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass. [FN48]Captain Little was an American naval officer acting pursuant to presidential orders during a time of hostilities. Nonetheless, because the presidential order exceeded the authorization of the underlying statute, Captain Little could not invoke the presidential order as an actual authorization for his action. Nor were his good faith belief in the validity of the order and the prospect of a court martial for disobeying a presidential directive sufficient to immunize him from ordinary tort liability. Without an actual authorization for his action, Captain Little stood in no better position before the law than would a random tortfeasor. Congress ultimately passed a private bill *594 indemnifying Captain Little for the award of damages, [FN49] but that was

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simply Captain Little's good fortune.Was Little v. Barreme correctly decided from an originalist perspective? The answer is yes, though that does not necessarily mean that modern law is wrong to extend immunity to people in Captain Little's situation. [FN50] To explain this cryptic and seemingly paradoxical answer would require a lengthy analysis, which we hope to provide in a future work. For now, all we can say is that official immunity must be viewed in the context of other doctrines that limit or permit recovery for governmental wrongs: a baseline of governmental accountability, which we think can be established on originalist grounds, [FN51] does not necessarily require any one specific mechanism of accountability. A relaxation of the doctrine of sovereign immunity, for example, might permit a concomitant tightening up of the doctrine of official immunity.But that is a story for another day. In 1804, and in 1854, the answer--and the correct originalist answer--;was that there was no official immunity [FN52] because there was no other formal mechanism of governmental accountability. A private lawsuit against the offending government officer was the only way to vindicate in court a private-law wrong that resulted from official action. Under this regime, Collector Harrison would have needed to show actual, valid legal authorization for his action. Otherwise, he had committed a simple act of extortion. Harrison's good faith belief in his legal authorization would surely shield him from criminal liability for his conduct, but because the action of assumpsit does not require a bad motive, nothing would shield him from civil liability for monies that he unlawfully took from the plaintiff. Perhaps the United States would indemnify Harrison for any judgment and perhaps not. But that would not be the concern of the law. Thus, Harrison did not raise an official immunity defense because the defense was unavailable.

*595 B. De Facto OfficerAnother obvious modern response to the lawsuit in Cross would be to say that even if the California government was unconstitutional, it was acting under color of law. People residing in California would reasonably believe that they were obliged to obey the government officials and were, therefore, entitled to rely on that obedience. Perhaps the government could, in some formal sense, be declared unconstitutional, but surely that should not undo everything that happened while it was acting with apparent authority. The formal expression for this commonsense view is the de facto officer doctrine.The de facto officer doctrine has existed for more than five-hundred years. [FN53] In its simplest form, it legally validates the acts of a government official who illegally holds office, provided that the officer "is in fact in the unobstructed possession of an

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office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper." [FN54] The doctrine prevents collateral attacks on an officer's qualifications through a challenge to the officer's actions. The effect, and purpose, is to prevent technical defects in an officer's title, such as a clerical error or a failure to post a required bond, from having potentially disastrous effects on settled legal rights. [FN55] For example, in McDowell v. United States, [FN56] a circuit judge had designated Augustus S. Seymour, a North Carolina district judge, to serve temporarily in the district of South Carolina. There were serious questions about the circuit judge's ability to make this designation under the relevant statutes. The plaintiff was convicted and sentenced by Judge Seymour while the judge was sitting in South Carolina, and the plaintiff challenged those rulings on the ground that Judge Seymour lacked authority to issue them. The Court held that, regardless of the formal legality of his designation, Judge Seymour was a de facto judge while serving in South Carolina and his decisions could not be challenged. [FN57] This de facto officer doctrine seems tailor-made for a case like Cross v. Harrison, in which persons with questionable authorization acted in the role of government officials.There are, however, several problems with applying the de facto officer doctrine to Cross. First, and most obviously, the Supreme Court had not formally recognized the doctrine in 1854. It had applied the doctrine in dictum in 1842, [FN58] but the doctrine was not developed in holdings until the late nineteenth century.*596 Second, and more fundamentally, even had the doctrine applied in 1854, Harrison would not have satisfied its formal requirements. The de facto officer doctrine is designed to address technical defects in officeholding. The problem with Harrison was not a technical defect in his appointment, such as, for example, the lack of a quorum during Senate confirmation, but the fact that his "office" was putatively illegal. There was no statute creating the office of customs collector in California until November 3, 1849, and there was certainly no statute creating the office of "person who calls himself a customs collector but who really is collecting military exactions under a military government, albeit one that is operating during peacetime." The real question in the case concerned the legitimacy of Harrison's office itself, not the specific qualifications of the officeholder. Indeed, within a few decades of Cross, the Supreme Court was to hold that the de facto officer doctrine cannot be applied when the statute creating the office in question is unconstitutional: there can be no de facto officer if there is no office to hold de facto. [FN59] That holding has been widely criticized, [FN60] but those criticisms are based on a conflation of the de facto officer doctrine with other, related concepts concerning de facto authority. One who seeks to defend Harrison on these general grounds needs to say not simply that one can have

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de facto officers, but that one can also have de facto offices, which is a very different claim. What is needed to make a case like Cross v. Harrison go away quietly is a doctrine of de facto government.

C. De Facto GovernmentIn his letter dated October 7, 1848, Secretary of State James Buchanan specifically referred to the California military authorities as a "de facto government." Was this label accurate and did it shield the actions of that government from legal scrutiny?As an introduction to these questions, it is useful to examine two cases that are sandwiched in time around Cross, and whose fame is as great as Cross's obscurity: Luther v. Borden [FN61] and Texas v. White. [FN62]Luther v. Borden was decided in 1849, just a few years before Cross. The case arose out of a civil war in Rhode Island in 1841-42. Rhode Island had been governed since 1663 by the charter granted by Charles II. In 1841, however, a group of Rhode Island citizens took it upon themselves to hold a constitutional convention and to form a new government under that *597 instrument. They declared the adoption and ratification of the new constitution, elected and appointed officers of the new government, and asked the charter government to step aside. The charter government instead declared martial law and effectively prevented the new "government" (henceforth called the "unsanctioned government") from exercising power. This state of affairs continued until May 1843, when the charter government voluntarily disbanded in favor of a government that was formed in accordance with a constitution adopted at a January 1842 convention sponsored and sanctioned by the charter government.The plaintiff was a supporter of the unsanctioned government. During the period of martial law, the defendants, purportedly acting under the authority of the charter government, entered the plaintiff's house without permission and sought to arrest him. The plaintiff sued for trespass. If the charter government had ceased to have any legal authority upon the formation of the unsanctioned government, then there was no actual authorization for the defendants' actions and, as was demonstrated in Little v. Barreme, there would be no obvious defense to the plaintiff's trespass action. [FN63] If the charter government continued to have authority, however, then the question would become whether that authority was sufficient to immunize the defendants' actions from civil liability. Thus, the Supreme Court was called upon to determine whether the charter government or the unsanctioned government was the rightful authority in Rhode Island in 1842.The Court was acutely aware of the potential stakes in the case: For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the

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period of time above mentioned,--if it had been annulled by the adoption of the opposing government,--then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals. [FN64]The Court sided with the charter government. Everyone agreed that the Rhode Island courts that held office under the May 1843 constitution were legally valid, and those courts had clearly treated the charter government as the valid authority by, inter alia, upholding convictions of persons who raised as a defense their purported authority under the unsanctioned government. [FN65] The Court held that the federal courts were bound by the determinations of state courts concerning the legitimacy of their own governments. [FN66] The Court was, however, worried enough about this question to *598 bolster its primary holding with a variety of other arguments, including perceived evidentiary problems, [FN67] the awkwardness of potentially differing pronouncements on governmental legitimacy from different courts, [FN68] and a lengthy dictum on the limited role of courts under Article IV's Guarantee Clause. [FN69] The Court was obviously uncomfortable deciding the issue of authority, but it reached a decision nonetheless.How, one might ask, could the Court have done anything other than decide the issue in one way or another? One can imagine the Court issuing the following opinion: We frankly don't care whether the charter government or the unsanctioned government was the "real" government in 1842. Whether or not the charter government was lawful, it was at least a de facto government. It existed, with unquestioned de jure authority, prior to 1842 and it never clearly relinquished power until 1843. Had the unsanctioned government succeeded in its attempted overthrow for some period of time, it would be an interesting question whether it could also qualify during that period as a de facto government, but the unsanctioned government never had enough power to pose that question. In any event, even if the unsanctioned government was the de jure government of Rhode Island, the actions of the charter government had enough appearance of authority to clothe its officials with whatever immunity governmental status provides. Our question is now whether that governmental status, under the state of martial law declared by the government, was enough to defeat the plaintiff's trespass action.Such a holding would have neatly solved all of the problems that the Court in Luther found so troubling. [FN70] Nonetheless, the Court did not adopt any theory of de facto governmental authorization to dispose of the case.

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Twenty years later, however, matters were a bit different. Prior to the outbreak of the Civil War, the State of Texas had acquired certain bonds from the United States. Texas law at that time required the endorsement of the state governor before the bonds could be negotiated. When the Confederate government took control in Texas during the war, it repealed the statute requiring the governor's endorsement and it used the bonds to acquire supplies. After the war, the State of Texas, through the Reconstruction government imposed by Congress and the President, sought recovery of the bonds on the ground that the absence of a proper endorsement from the governor rendered them non-negotiable and voided all transfers, including *599 the initial transfer from the state treasury. The suit was an original bill in the Supreme Court, pursuant to the clauses in Article III extending federal jurisdiction to "controversies . . . between a State and citizens of another State" [FN71] and granting the Supreme Court original jurisdiction over cases "in which a State shall be a Party." [FN72]In Texas v. White, decided fifteen years after Cross, the Court held that Texas was a "State" for purposes of these jurisdictional clauses, notwithstanding its purported secession, its governance by federal officials, and its lack of representation in the Congress and the electoral college. [FN73] We are not concerned here with whether that holding was correct. Our focus is on the action of the rebel government in purporting to alter the manner in which the bonds could be negotiated. If that statute was valid, then Texas should have lost on the merits. If the act of secession was, as the Court held, illegal, then the legislature of the rebel government was not a de jure legislative body. But could its enactments nonetheless have legal force as the acts of a de facto government? The Court acknowledged that the rebel government of Texas was "to some extent" [FN74] "a de facto government, and its acts, during the period of its existence as such, would be effectual, and, in almost all respects, valid." [FN75] The Court in 1869 thus expressly endorsed the concept of a de facto government whose actions could create binding legal rights even without de jure authority.Well, almost. An unqualified holding to this effect would, as noted, mean that Texas should have lost the case. The Court's next task was to explain why the repealing act was different from all other acts: It is not necessary to attempt any exact definitions, within which the acts of such a State government must be treated as valid, or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful

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government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void. [FN76]*600 In other words, good acts are valid and bad acts are not. Applying this standard, the Court held that allowing the negotiability of the bonds in order to finance the war effort was a bad act and therefore invalid. [FN77]Which view is right: the implicit view in Luther that only de jure authority will validate a government or the explicit view in White that de facto authority is generally, or at least often, good enough? The recognition of de facto authority, especially at the federal level, is very troubling. The whole point--the revolutionary point--of the federal Constitution was to create a government of limited and enumerated powers. No federal institution is supposed to be able to act without constitutional authorization. That scheme can be seriously undermined by the existence of a "shadow government" that exists without legal authorization but whose acts are nonetheless binding. A "de facto federal authority" is almost a contradiction in terms. Moreover, as Texas v. White demonstrates, after one lets in the notion of a de facto authority, that generates the unenviable task of discerning exactly how far that authority goes. Does de facto authority legitimate everything that the illegal government does? Everything that a legitimate government in the place of the illegitimate government would have done? This last, counterfactual alternative raises hopeless conceptual and practical problems. For example, although we have not researched the point, we are confident that the rebel government in Texas altered the tax structure in ways that helped the government finance the war effort. Were those laws therefore invalid under the test of Texas v. White because a loyalist state government would not have enacted them?On the other hand, the de facto government doctrine conforms to a powerful intuition that says that private rights, at least, should not be thrown into jeopardy because of political disputes beyond the control of most citizens. Should marriages and land titles be held invalid because the only government available to register them was not a legitimate de jure government? Should murderers go free because the judges who sentenced them did not have the proper legal authorization?A full answer, as is true with many of the themes addressed in this paper, would require a separate article. The key, however, is to place the de facto government doctrine where it belongs: as part of the law of remedies. No matter how one analyzes it, de facto authorization is not legal authorization, so the actions of a de facto authority, at least at the federal level, can never constitute a valid source of substantive law. The question is what legal consequences to attach to this fact when the absence of real authority affects legal rights. When the relief sought by a party is

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equitable, there is no conceptual problem with saying that the existence of de facto legal authorization for challenged governmental conduct could and should be relevant to the decision whether to grant relief. Equitable relief, after all, is normally discretionary, and it is natural to make concerns about de facto authorization *601 part of that equitable balance in an appropriate case. [FN78] The hard questions come when a party seeks damages in an ordinary action at law and the validity vel non of a governmental act is relevant to the claim. No act of discretionary balancing is required for an award of damages. Where, if anywhere, do courts get the remedial power to refuse to award damages because of essentially equitable concerns about reliance on de facto governmental acts?At the federal level, [FN79] the question reduces to: does "[t]he judicial Power of the United States" include some power to overlook de jure illegalities in cases seeking damages? Our very hesitant, and somewhat unsatisfying answer, turns on the currently unpopular distinction between public and private rights. Where an action for damages concerns essentially private rights, which the government merely administers, there is much to be said for overlooking technical defects in the administering authority under some circumstances. Where, however, the case involves public rights, which would not exist but for the machinery of government, de facto authority is irrelevant.The reasons for this distinction would have been clearer to an observer in 1789 than to an observer today. To a fully informed 1789 observer, [FN80] private rights, such as rights of property and contract, exist independently of the government; the government is there, if at all, only to facilitate and regularize transactions. As long as the governmental activity in question essentially formalizes the kinds of transactions that parties would otherwise engage in, it is not bizarrely counterfactual to presume that matters would have turned out much the same in the absence of the (assumedly) illegal governmental authority. That presumption could be overcome by showing, for example, that the illegal government changed the legal rules so dramatically that the assumption of a continuous baseline is no longer valid. But in the normal course of events, private rights should not suffer because a de facto authority signs the papers. No harm, no foul.Where the de facto authority acts in a public capacity and creates rather than enforces the legal rules, however, matters are different. We do not have the time or space here to detail exactly how far this category of public rights extends, [FN81] nor do we need to do so. The tariffs collected by Harrison *602 in Cross v. Harrison are clearly in this public category. Indeed, they are quintessentially the kind of action that exists only because of the presence of a governmental authority. Thus, even if one were inclined to apply a doctrine of de facto authority in Cross--and, judging by its decision in

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Luther v. Borden in 1849, the Court in the early 1850s was not so inclined--it would not obviate the need to decide Cross on the merits.One more point bears mentioning. In order to qualify as a de facto government on any theory, the government in question must be in a position to command and expect obedience from the public. That was clearly true of the rebel government in Texas in 1861. It was probably true of the charter government in Rhode Island in 1842. Whether it was true of the military government in California in 1848 is a different question altogether, which we will address later. [FN82]

III. Anarchy, State, and MyopiaThe Supreme Court affirmed the lower court's judgment in favor of Harrison, finding that all of the duties were properly collected. Because the case turns on the extent to which changes in events also change the legal status of various actors, it is best analyzed in terms of discrete time periods. The plaintiff broke down the case into two principal time periods: (1) between the date of the signing of the peace treaty between the United States and Mexico (February 3, 1848) and the enactment by Congress of a statute making San Francisco a collection district under the generally applicable tariff laws (March 3, 1849) and (2) between the latter date and the replacement of Harrison as a customs collector (November 13, 1849). This reflected the plaintiff's principal theory of the case: although it broadly challenged the power of the military government to collect even statutorily-imposed tariffs during peacetime, the plaintiff's principal contention was that tariff laws did not apply to California until Congress specifically extended them by statute. [FN83] The plaintiff's breakdown of the case to accommodate its statutory argument, however, obscures some of the most important constitutional issues. Accordingly, the Court broke down the relevant time periods along somewhat different lines, as do we. Because this case largely involves the consequences of war and peace, a better temporal breakdown focuses on the events surrounding the conduct and termination of the war.

*603 A. May 13, 1846--February 3, 1848: The War Is OnThe Court spent a fair amount of energy establishing the obvious: the war tariffs collected by the military government in California during the period of actual hostilities were valid. [FN84] No one ever claimed otherwise, least of all Cross, Hobson & Co. Its complaint only sought the return of tariffs collected after February 3, 1848, which marked the signing of the peace treaty between the United States and Mexico.

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B. February 3, 1848--May 30, 1848: The War Is Still OnThe first real question posed by the case was at what point did legal authorization for the wartime tariff end. As long as the wartime tariff was valid, Cross, Hobson & Co. clearly had no claim. So how long could the war tariff really last?There are at least five possible answers to that question as follows: the authority for the war tariff ended when (1) the treaty of peace was signed on February 3, 1848; (2) when ratifications of the treaty were formally exchanged between the United States and Mexico on May 30, 1848; (3) whenever the treaty itself declared a full end to the war and its legal consequences; (4) when official notification of the ratifications was actually given to American personnel in California; [FN85] or (5) when official notification of the ratifications should reasonably have been given to American personnel in California given the constraints of communications that existed in 1848.The plaintiff could prevail for the time period before May 30, 1848 only if the first answer was correct. The Court held that the terms of the peace treaty made clear that this answer was wrong and that authority for the war tariff therefore continued at least until ratifications of the treaty were exchanged on May 30, 1848: Nothing is stipulated in that treaty to be binding upon the parties to it, or from the date of the signature of the treaty, but that commissioners should be appointed by the general-in-chief of the forces of the United States, with such as might be appointed by the Mexican government, to make a provisional suspension of hostilities, that, in the places occupied by our arms, constitutional order might be reestablished as regards the political, administrative, and judicial branches in those places, so far as that might be permitted by the circumstances of military occupation. All else was contingent until the ratifications of the treaty were exchanged, which was done on the 30th of May, 1848, at Queretaro. [FN86]*604 The Court was entirely correct; the treaty itself stipulated that it would take full effect only upon ratification by both parties. [FN87] Accordingly, the war tariff remained in effect at least until May 30, 1848, and all "duties" collected before that date were legally valid as military exactions.

C. May 30, 1848--August 9, 1848: The War Is . . . ?The time period from May 30, 1848 to the notification to California officials and residents of the peace treaty in August 1848 is more problematic. The obvious answer is that peace means peace, so that the authority of the military government expired immediately upon the formal cessation of the state of war on May 30. That was clearly the magic moment under international law. California became the property of the United States on May 30, 1848, so as far as the world at large was concerned, California was no longer a site where war was being waged. At that point, the norms of international law concerning government of occupied territory ceased to apply to

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California because it was no longer occupied; it was thereafter subject to the full, undivided sovereignty of the United States.The pertinent question, however, is whether May 30, 1848 was the magic moment under domestic American law. The answer has great consequences. Channels of communication in 1848 were hardly instantaneous. It could take weeks or months for news of the termination (or commencement) of a war to reach across a continent. Even today, with near-instantaneous forms of communication, there will always be some time lag, however modest, between events and knowledge of those events. If the end of a war carries domestic legal consequences, can those consequences really take effect at the moment the war, as a matter of public international law, formally ends? Does it really make sense to say that constitutional authority operates, or disappears, instantaneously across the world, even where it is impossible for news of the relevant events to travel that fast? Put starkly, when did the Mexican- American "war," as a matter of domestic American law, really end?Nations had faced these problems for centuries before Cross v. Harrison, and their solutions are instructive. Although it is possible for a war to end, as a matter of international law, without a formal treaty of peace, [FN88] a treaty is the normal means of terminating a war. But ending a war via a peace treaty means more than simply signing a piece of paper declaring that fighting should stop. The news of the treaty needs to be sent to the troops that are actually engaged in combat. In the premodern era, this could easily take weeks or months. What happens during that transitional period? Are the soldiers who are still engaged in conflict reduced to the status of vandals and murderers-- or at the very least tortfeasors--because their authority to engage in war has formally ended?*605 In the normal course of events, these matters are handled in the peace treaty. A well-drafted treaty will include realistic timetables for notification and withdrawal of troops and will contain provisions for immunizing the soldiers and their governments from liability for damage inflicted before news of the peace can reach them; perhaps it will also contain provisions for compensation to the citizens and governments that suffer such damage. The end of the "war," in the extended sense that includes the post- treaty period of transition, will thus normally be determined by reference to the treaty. [FN89]The Treaty of Guadalupe Hidalgo, which terminated (or initiated the termination) of the Mexican-American War, paid very close attention to these issues. The treaty was signed on February 2, 1848 and ratifications were exchanged on May 30, 1848. The treaty was quite specific about the timetable for implementing the peace agreement. Article III of the treaty stipulated that "[i]mmediately" [FN90] upon the exchange of ratifications:

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orders shall be transmitted to the commanders of [the United States'] land and naval forces, requiring the latter . .. . immediately to desist from blockading any Mexican ports; and requiring the former . . . to commence, at the earliest moment practicable, withdrawing all troops of the United States then in the interior of the Mexican Republic, to points that shall be selected by common agreement, at a distance from the seaports not exceeding thirty leagues; and such evacuation of the interior of the Republic shall be completed with the least possible delay; the Mexican government hereby binding itself to afford every facility in its power for rendering the same convenient to the troops, on their march and in their new positions, and for promoting a good understanding between them and the inhabitants. [FN91]Orders were also supposed to go out immediately to all United States personnel in charge of customs houses to return control of the facilities to Mexican authorities and to provide an accounting of all duties collected after May 30, 1848, which--minus the costs of collection--were to be turned over to Mexico. [FN92] Even more specifically, removal of American troops from the capital of Mexico "shall be completed in one month after the orders there stipulated for shall have been received by the commander of said troops, or sooner if possible." [FN93] Article IV of the treaty further provided that "immediately after the exchange of ratifications of the present treaty all castles, forts, territories, places, and possessions, which have been taken or occupied by the forces of the United States during the present war, within the limits of the Mexican Republic .. . ., shall be definitively restored to the *606 said Republic . . . ." [FN94] Finally, and most significantly, Article IV specified that "[t]he final evacuation of the territory of the Mexican Republic, by the forces of the United States, shall be completed in three months from the said exchange of ratifications, or sooner if possible." [FN95] The treaty thus specified the time at which the final effects of the war, and therefore the war itself in its broadest sense, were to end: August 30, 1848 or sooner if the United States could get its troops out more quickly. Until that time, one could plausibly say that the state of war, and whatever powers flowed to various agencies of the United States government from that state of affairs, was still in existence.At least, one could say this with respect to issues concerning American troops in what was to remain Mexico after the treaty. But just as constitutions and statutes can become effective in stages, [FN96] there is no reason to assume that every provision of a treaty must take effect, or every aspect of a war must end, at the same moment in time. Article V of the treaty ceded to the United States a vast amount of territory, including the territory that now comprises the State of California. [FN97] The treaty said nothing specific about the timing of the transfer of sovereignty from Mexico to the United States, so the natural assumption is that the transfer was immediate upon

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completion of the ratifications. That is the standard rule at international law, and the Supreme Court had expressly applied that rule just a few years before Cross in United States v. Reynes, [FN98] in connection with the transfers of Louisiana from Spain to France and then to the United States. As the Court explained in refusing to give effect to a purported Spanish land grant within the territory made after the various treaties concerning Louisiana were exchanged: "In the construction of treaties, the same rules which govern other compacts properly apply. They must be considered as binding from the period of their execution; their operation must be understood to take effect from that period, unless it shall, by some condition or stipulation in the compact itself, be postponed." [FN99] Nothing in the Treaty of Guadalupe Hidalgo suggests any delay in the transfer of sovereignty over California. Quite to the contrary, provisions in the treaty dealing with the status of Mexican residents in the transferred territory [FN100] and with the United States' obligation to prevent Indian incursions into Mexico [FN101] seem to assume an immediate transfer. Secretary of State Buchanan flatly declared that "the *607 constitution of the United States, the safeguard of all our civil rights, was extended over California on the 30th May, 1848, the day on which our late treaty with Mexico was finally consummated. From that day its inhabitants became entitled to all the blessings and benefits resulting from the best form of civil government ever established amongst men." [FN102] The Supreme Court in Cross took it for granted that the cession of territory became effective upon the exchange of ratifications. [FN103] Thus, California became the property of the United States on May 30, 1848. The treaty did not have to provide for the removal of American troops from that territory because the territory no longer belonged to Mexico. Thus, the treaty's extension of some measure of American wartime authority into the territory of Mexico did not serve to extend American wartime authority into American territory.Does that mean that the war ended, as far as California is concerned, on May 30, 1848? If the answer is yes, then the authority for the military tariff in California ended on that date as well, though such authority held by military commanders on the Mexican mainland might well have continued for some time, subject to the treaty's requirement that the proceeds from such "tariffs" ultimately go to the Mexican government.That straightforward answer is hard to avoid. As noted above, the treaty contained careful terms for dealing with certain items beyond the May 30, 1848 exchange of ratifications but made no such time-specific provisions for the transfer of sovereignty of California. The inescapable conclusion is that, as far as California was concerned, the war was over on May 30, 1848.The Supreme Court escaped this conclusion nonetheless. Its discussion warrants quotation in full:

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[A]fter the ratification of the treaty, California became a part of the United States, or a ceded, conquered territory. Our inquiry here is to be, whether or not the cession gave any right to the plaintiffs to have the duties restored to them, which they may have paid between the ratifications and exchange of the treaty and the notification of that fact by our government to the military governor of California. It was not received by him until two months after the ratification, and not then with any instructions or even remote intimation from the President that the civil and military government, which had been instituted during the war, was discontinued. Up to that time, whether such an intimation had or had not been given, duties had been collected under the war tariff, strictly in conformity with the instructions which had been received from Washington.It will certainly not be denied that those instructions were binding upon those who administered the civil government in California, until they had notice *608 from their own government that a peace had been finally concluded. Or that those who were locally within its jurisdiction, or who had property there, were not bound to comply with those regulations of the government, which its functionaries were ordered to execute. Or that any one could claim a right to introduce into the territory of that government foreign merchandise, without the payment of duties which had been originally imposed under belligerent rights, because the territory had been ceded by the original possessor and enemy to the conqueror . .. . . The plaintiffs in this case could claim no privilege for the introduction of their goods into San Francisco between the ratifications of the treaty with Mexico and the official annunciation of it to the civil government in California, other than such as that government permitted under the instructions of the government of the United States. [FN104]With all due respect, the phrase "[i]t will certainly not be denied" is an unconvincing argument even when it is printed in the pages of the United States Reports. The plaintiff certainly denied it, and the force of reason seems entirely on the plaintiff's side. The authorities in California could not possibly have known on May 30, 1848 that their legal authority had just vanished, but, as the saying goes, ignorance of the law is no excuse. [FN105] And, in any event, ignorance of the law cannot create a valid tariff statute; only Congress and the President can do so pursuant to Article I.The correct analysis of the law may well expose persons like Harrison to liability that they could not reasonably avoid. Congress, however, could easily have saved the day by passing contingent legislation for the governance of California that took effect immediately upon ratification of the peace treaty, and the President and Senate could have made any constitutionally necessary appointments at the same time. Because the nondelegation doctrine does not apply to territorial legislation, [FN106] the statute could have been a simple authorization to the President to maintain the existing institutions of governance along with proper civilian appointments to the necessary

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offices. [FN107] Such a statute could have operated from the moment of its enactment, even if it took months for news of the statute to reach California. And because the private law liability of government officials depended on actual authorization rather than the officials' belief (or lack of belief) in authorization, this straightforward statutory solution would have neatly dealt with the myriad legal problems posed by the end of the authority for the war government.The officials in California clearly anticipated such a congressional response. In his August 7, 1848 announcement of the peace treaty to the people of California, Colonel/Governor Mason declared: *609 The Congress of the United States (to whom alone this power belongs) will soon confer upon the people of this country the constitutional rights of citizens of the United States; and, no doubt, in a few short months we shall have a regularly organized territorial government: indeed, there is every reason to believe that Congress has already passed the act, and that a civil government is now on its way to this country, to replace that which has been organized under the right of conquest. [FN108]Mason further declared that until there was firm word about congressional action, "the present civil officers of the country will continue in the exercise of their functions as heretofore . . . ." [FN109] Had Congress passed the appropriate kind of legislation, Mason's actions would have been lawful even if he did not know it.Congress, however, did not oblige. The reasons for Congress's inaction are not mysterious: the issue of slavery in California so deadlocked the Congress that it could not reach agreement on any legislation for the territory. [FN110] Regardless of the reason, however, the fact remains that the military authorities in California had no statutory authorization for their post-war governance. What, then, if anything, sustained the actions of the military officials after their wartime authority ran out?Perhaps one can construct an argument that will salvage the Court's holding at least with respect to the time period running into early August 1848. Here is the best that we can do: The Treaty of Guadalupe Hidalgo made no provision for the removal of Mexican soldiers from American soil because the war was rather one-sided. That does not mean, however, that no Mexican soldiers remained on the territory that was transferred as part of the peace treaty. Surely some small number of soldiers remained "behind the lines" even while American troops pressed into the Mexican mainland. We know that about two thousand Mexican nationals who resided in the ceded territories ultimately chose to return to Mexico [FN111]--the prospect of United States citizenship and potential riches from gold notwithstanding. It is natural to assume, therefore, that some portion of the indigenous California population posed a military threat to the American forces.

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The Constitution makes the President "Commander in Chief of the Army and Navy of the United States." [FN112] This is the domestic constitutional source of power for the operation of a military government. Perhaps one *610 could argue that, even though the international law consequences of a state of war ended with respect to California upon the exchange of ratifications and the cession of territory, the constitutional wartime powers of the President continued for some time even after the treaty became official and the international dispute was formally over. In other words, one can argue that the constitutional grant of power to the President carries a "penumbral force" that takes effect as a matter of domestic law once the cession of territory terminates any presidential authority that derives from the existence of war. This argument does not require any assertion of a generalized executive power to deal with perceived crises. The commander-in-chief power in this case was properly called into play by the formal existence of a war; the question is when the full legal force of that war power expires. Is it absurd to suggest that that power continues, as a matter of domestic constitutional law, for some period of time after the peace treaty has taken effect, at least long enough to ensure the public safety? If not, the next step is to determine how long after the formal entry of peace the effects of the presidential war power continue to linger. A plausible candidate would be: until a reasonable time has passed for notice of the formal peace to reach all of the potential combatants.This is not an argument that the California government was a legitimate de facto government. This is a claim for de jure authority, as a matter of domestic constitutional law, based on an asserted temporal relationship between physical events and constitutional authority. Under this line of argument, the de jure authority of Governor Mason and his tax collectors to impose military exactions would run until notice of the peace should reasonably have reached California. The actual period of notice was evidently two months, and from what we have gathered, that was not an unreasonable amount of time in 1848 for a message to travel from Queretaro, Mexico to Monterey, California. [FN113] Thus, let us assume for the moment that August 7, 1848--the date of Mason's announcement of the peace treaty to the people of California--was the constitutionally appropriate time for notice. On that date, the war tariff, even on the most generous assumptions that one can muster, was on its last legs.Colonel Mason evidently agreed with this assessment, for on August 9, 1848, H.W. Halleck, the Secretary of State in Mason's military government, [FN114] wrote to the San Francisco (military) customs collector that "the tariff of duties for the collection of military contributions will immediately cease . . . .." [FN115] If we assume that our penumbral presidential power implicitly allows some time for the news of peace to disseminate once it reaches *611 the California government, perhaps we can validate the military tariffs up to August 9, 1848. After that point, however, ingenuity is

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exhausted and the war tariffs are finished.Obviously, although this argument is more persuasive than the Supreme Court's ipse dixit, we do not think it is successful. The President, no less than Congress, can exercise only those powers granted to him or her by the Constitution. The doctrine of enumerated powers applies to all of the institutions of the national government. The President's enumerated powers are, in some respects, more general than Congress's: while Congress is granted only those "legislative Powers herein granted," [FN116] the President is vested with "[t]he Executive Power" [FN117] and the power of "Commander in Chief." [FN118] But a general power is not an unlimited power. [FN119] The power to impose and maintain a military government is not a small matter. However broadly one might construe "[t]he Executive Power," it surely does not stretch that far. [FN120] The President's war power as commander-in-chief does include such a power, but the whole problem in Cross is that the war power formally ceased to be a source of authority on May 30, 1848. And that formal cessation is the end of the matter. Constitutional powers operate from the moment of their effectiveness. Their operation is not delayed while news of their effectiveness travels the world--just as statutes take effect, unless Congress says otherwise, from the moment of enactment, not from the moment when knowledge of that enactment reaches the public. The central premise of this "penumbral" argument is simply false. [FN121] The President and Senate could, in principle, "preserve" the President's war power for some period of time by drafting the treaty to delay the transfer of sovereignty over California, but that was not done. Authority for the military tariffs ended on May 30, 1848.In any event, at the absolute maximum, under the most generous assumptions, that authority expired on August 9, 1848. Even the officials in California agreed that the war tariff must end once they were given notification of the peace treaty. And even the Supreme Court did not contend that the legitimacy of the war tariff "will certainly not be denied" after that date. *612 For the period beginning May 30, 1848, the military government's authority cannot be sustained even by the most elastic reading of the Constitution's war powers. How could Cross, Hobson & Co. possibly lose with respect to tariffs collected after August 9, 1848?

D. August 9, 1848--November 13, 1849: The War Is in the History BooksThe end of the military tariffs in California on August 9, 1848 did not mean the end of all tariffs. In the same breath in which he instructed the San Francisco customs collector to end the military tariff, Secretary of State Halleck added that "the revenue laws and tariff of the United States will be substituted in its place." [FN122] Cross, Hobson & Co. sought return of all monies paid through November 13, 1849, when a

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civilian collector was constitutionally appointed to administer the tariff laws at the congressionally-established collection district in San Francisco. War powers will not sustain any exactions after May 30, 1848, or at the very latest after August 9, 1848. What happened after that date that could possibly justify the actions of the military government? If not from the war powers, then from where did Colonel Mason and Collector Harrison get the authority to take money from the plaintiff?

1. Did Two Wrongs Make a Constitutional Right (At Least Until March 3, 1849)?One argument that would largely avoid the need to address broad constitutionalissues for at least part of the post-war time period should be dealt with rightaway. Congress did not designate San Francisco as a collection district--thatis, as a port in which imports may lawfully be landed upon proper payment ofduties--until March 3, 1849. The plaintiff argued that in the absence of sucha designation, there was no federal authority to collect duties. Strictlyspeaking, that may have been true, but the argument had a serious potentialboomerang effect against the plaintiff. A collection district is simply acongressionally designated port of entry. The specification of certain portsas collection districts reflects a corresponding congressional determinationthat goods may not lawfully be imported into the United States at any otherplace. Accordingly, the real consequence of the failure to make San Franciscoa collection district until March 3, 1849 was that, until that date, it wasflatly unlawful for the plaintiff to bring any goods into the United Statesthrough that port, with or without the payment of any "duties" to Harrison.Should that have saved Harrison from liability, at least until March 3, 1849? The Court intimated that it might, [FN123] but that argument is clearly wrong. The absence of legislation making San Francisco a collection district *613 meant that Harrison, or other federal authorities, might have been within their rights to refuse to allow the plaintiff to land its goods-- not in their capacities as officials of California but as officers of the United States enforcing federal statutory law. [FN124] It did not mean that the officers could allow the plaintiff to land goods in return for the payment of something that they labeled a "duty." Suppose that Congress authorizes operation of a gift shop in the Capitol building that sells miniature replicas of the Capitol. Tourists can leave with a replica if they pay the clerk at the desk ten dollars. If someone filches a replica and is caught outside by an officer of the Capitol police, it would not be proper for the officer to say, "Give me the ten dollars and go on your way," even if the officer then turned the money over to the clerk. It simply is not the officer's job to collect money for replicas, though it certainly is the officer's job to

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arrest shoplifters. In Cross, Harrison might have been able to tell the plaintiff, "Go land your goods at a designated port of entry or suffer the consequences of a violation of the customs laws," which would have been forfeiture of the offending ships and goods. [FN125] But Harrison did not have the legal right to permit the goods to land in return for payment of a sum equal to what would have been required under federal tariff law.The officials in California were very well aware of the true state of the law concerning entry of goods into California. On February 9, 1849, Harrison wrote to Secretary of State Halleck requesting guidance on how to handle ships that entered San Francisco. (Less than a month later, Congress would declare San Francisco a collection district, but Harrison and Halleck had no way to know this--and probably did not find out about the designation until the summer or fall of 1849.) On February 24, 1849, Halleck provided the following assessment of the situation: In the instructions just received from Washington, it is assumed that, by the treaty of peace with Mexico, California has become a part of the Union; that the constitution of the United States is extended over this Territory, and is in full force throughout its limits.The position of California, in her commercial relations, both with respect to foreign countries and to other parts of the Union is, therefore, the same as that of any other portion of the territory of the United States. There, however, being as yet no collection districts established by Congress in California, no foreign dutiable goods can be introduced here. Vessels having on board dutiable goods which they wish to land in California, must enter them in some regular port of entry of the United States, and there pay the duties prescribed by law. Any such vessels presenting themselves in a port of California, without having so entered their dutiable goods, ought properly to be warned away and refused admission; and when the goods are entered at a regular custom-*614 house, they can be brought here only in American bottoms. Such is the course required by a strict interpretation of the law . . . . [FN126]Halleck's analysis conforms precisely to the clear state of the law as we describe it above. His letter to Harrison, however, continues with the following remarkable passage: [B]ut, as this [strict interpretation of the law] would subject such vessels to great inconvenience and expense, the authorities having charge of this matter have resolved to present to them the following alternative: To pay here all duties and fees, and to execute all papers prescribed by the revenue laws of the United States; and, upon their doing so, their goods will be admitted. [FN127]The "authorities having charge of this matter" were, of course, the military officers in California. Indeed, the architect of this makeshift customs scheme appears to have

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been Brevet Major General Persifor F. Smith, who informed the Army's Adjutant General on April 5, 1849 that he: thought it proper that the parties should be allowed to deposite [sic] the amount of duties and land the goods; but, lest this should be construed as giving them a right for the future, and as the President may think proper to put an end even to this indulgence, I have addressed a circular to all our consuls on these seas, warning them of this possibility. [FN128] This "indulgence" may have been very generous to shippers like Cross, Hobson & Co., who otherwise would have had to enter their goods in ports on the Atlantic side of the continent, with no Panama Canal to ease the journey, and it may have been very important to Californians who badly needed the goods, [FN129] but that does not make it lawful. And without any such *615 authority, the sums collected by Harrison should have been returned to the plaintiff [FN130]-- unless Harrison, Mason, Halleck, Smith, and other military personnel in California had authority to take the money as officials of the territorial government of California.

2. The Legal Effect of a Collection District Without a Collector: March 3,1849--November 13, 1849. The plaintiff regarded enactment of the March 3, 1849statute that made San Francisco a collection district as a major event. Infact, however, until Collier, the properly appointed collector, assumed theduties of his office on November 13, 1849, the statute changed nothing. Acollection district is a place in which dutiable goods may be landed upon theproper payment of duties to (and the filing of appropriate documents with) theproper authorities. Harrison's "appointment" as customs collector restedsolely on his appointment by "Governor" Mason, whose status as governordepended throughout his tenure on the validity of the military government. Ifthat government's authority cannot be sustained as a matter of federalconstitutional law, the plaintiff should have been entitled to reimbursement.This brings us to the main event: the Court's validation of the military government's actions throughout its period of operation. The answers provided by the Court and the Executive Department to the questions arising from the governance of California represent some of the most astounding assertions of constitutional power ever advanced.

3. The Court Speaks. The Supreme Court validated the acts of the militarygovernment throughout its period of operation [FN131] in one critical

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paragraph, which reads in full:[Mason's] position was unlike any thing that had preceded it in the history of our country. The view taken of it by himself has been given in the statement in the beginning of this opinion. It was not without its difficulties, both as regards the principle upon which he should act, and the actual state of affairs in California. He knew that the Mexican inhabitants of it had been remitted by *616 the treaty of peace to those municipal laws and usages which prevailed among them before the territory had been ceded to the United States, but that a state of things and population had grown up during the war, and after the treaty of peace, which made some other authority necessary to maintain the rights of the ceded inhabitants and of immigrants, from misrule and violence. He may not have comprehended fully the principle applicable to what he might rightly do in such a case, but he felt rightly, and acted accordingly. He determined, in the absence of all instruction, to maintain the existing government. The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government. And the more so as it was continued until the people of the territory met in convention to form a State government, which was subsequently recognized by Congress under its power to admit new States into the Union. [FN132]Therefore, said the Court: the civil government of California, organized as it was from a right of conquest, did not cease or become defunct in consequence of the signature of the treaty or from its ratification. We think it was continued over a ceded conquest, without any violation of the Constitution or laws of the United States, and that until Congress legislated for it,

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the duties upon foreign goods imported into San Francisco were legally demanded and lawfully received by Mr. Harrison . . . . [FN133]In other words, as long as the President and Congress do not affirmatively stop an illegal act, their inaction will be considered valid legal ratification. At its narrowest, the Court's reasoning is that wartime powers carry over into peacetime as long as the President and Congress do not affirmatively end them. This is an absurd warping of the constitutional scheme of *617 limited government. Constitutionally, the President is a nonplayer in this story after May 30, 1848 (or at the very latest after August 9, 1848), except in his or her legislative role under Article I, section 7. [FN134] As the Court itself observes, Congress has the exclusive power of territorial governance during peacetime, so the President's failure to order the troops home is constitutionally irrelevant. As for Congress, it did nothing. This is not even a case of purported legislative ratification of the misconstruction of a statute through a failure to amend, which is enough of a stretch in its own right. Here there was no statute to fail to amend. There was no statute at all. Congress never took any action with respect to the governance of California beyond making San Francisco a collection district, which has nothing to do with the internal governance of the territory. Congress may well have wanted or intended to keep the military government in force, but its collective wishes are not a constitutional substitute for a statute. Congress cannot exercise its Article IV powers of governance by having hopes and wishes, holding a séance, or anything else short of enacting a statute. Congress's Article IV power is a legislative power that must be exercised in accordance with Article I's lawmaking procedures, including presentment to the President.All in all, the Court probably would have been better off simply to say, "It cannot be denied that . . . ."

4. Cross's Theory in Practice. The Court's validation of the government inCross has important ramifications. Military governments of occupied territoryduring wartime operate in accordance with the laws of war. They need notcomply with the procedural forms for governmental action prescribed in theConstitution; the courts that they establish during wartime need not conform tothe dictates of Article III; and the Bill of Rights does not, for instance,require soldiers in occupied territory to get warrants before they searchhouses for insurgents. There are, of course, limits to the powers of militarygovernments. As the Court held just two years before Cross in Mitchell v.Harmony, [FN135] military officials cannot seize private property, evenduring wartime, unless they can demonstrate that such seizure is in fact

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necessary; and (in an era before modern immunity doctrines) the officers willbe held personally liable for such seizures if a jury subsequently finds thatthe action was not justified by military necessity. But these limits are farfrom the limits imposed on civilian government by the Constitution. Whathappens if one of these wartime governments acquires, through judicial grace,some kind of legitimate existence after the war is over and the*618 occupied territory has been ceded to the United States? Does theongoing military government retain all of the powers that it had during thewar?If the answer is no, then one has the unwelcome task of determining exactly which constitutional restrictions do and do not bind wartime governments that somehow extend into peacetime. Although Cross has never been taken as far as its reasoning might permit, it has had enough precedential force to make the Supreme Court face some of these questions.The Insular Cases were a series of decisions, spanning the first quarter of the twentieth century, that dealt with the aftermath of yet another American war of territorial acquisition: the Spanish-American War. [FN136] That war ended in a treaty of peace whose ratifications were exchanged on April 11, 1899. The treaty ceded to the United States a number of island territories, including the Philippines and Puerto Rico. In the case of Puerto Rico, Congress enacted a statute providing for a civil government for the territory on April 12, 1900, with an effective date of May 1, 1900. For more than a year, therefore, Puerto Rico was an American possession without a statutory government. As happened in California in 1848, the American military government continued in operation until it was displaced by the statutory civilian authorities. And as happened in California, one of the military government's principal functions was to collect duties on goods imported into Puerto Rico. There was no question that the government had such power until the exchange of ratifications that formally ended the war with Spain, including the power to impose military exactions on goods imported into Puerto Rico from the continental United States. But what happened after Puerto Rico was ceded to the United States?The Court addressed this question in Dooley v. United States. [FN137] After the ratification of the peace treaty, the military government continued to collect exactions on goods imported to Puerto Rico, including goods imported from the continental United States. The Court held, on the authority of Cross, that the military government validly continued in operation until the congressionally-created civilian government took over on May 1, 1900. [FN138] But the Court further held that that authority did not include the *619 power to impose exactions, in the guise of tariffs or otherwise, on goods imported from the United States. While the power of a military commander,

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said the Court, "is necessarily despotic, this must be understood rather in an administrative than in a legislative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own." [FN139] The powers of a military government, said the Court, extend only to "the necessities of the case," [FN140] and in the Court's judgment those necessities did not include the need for tariffs on imported American goods. Thus, "the authority of the President as Commander-in-Chief to exact duties upon imports from the United States ceased with the ratification of the treaty of peace . . . ." [FN141]The Court's reasoning is, to say the least, obscure. At one point, the Court seems to infer the absence of presidential power from "the spirit as well as the letter of the tariff laws," [FN142] though because those laws are not the source of the power to impose military exactions, it is not clear why they are relevant. At another point, the Court indicates that a tariff on American imports "might have placed Porto Rico in a most embarrassing situation" [FN143] by damaging its economy, which may well have been true but seems like an odd basis for a constitutional limitation on the presidential war power. The remark that military governments are not always "above the laws" of their own countries is not explained; the rule that private rights can be infringed only if necessary is a principle of the law of war that needs no additional support in domestic law. Dooley provides little guidance about the extent to which peace limits what would otherwise be the powers of military government.The Court further elaborated on the peacetime powers of military governments in Santiago v. Nogueras. [FN144] The case again concerned the period in Puerto Rico between the cession to the United States on April 11, 1899 and the establishment of a civilian government on May 1, 1900. On June 27, 1899, the military authorities created the United States Provisional Court. The court's stated purpose was to deal with an increasing stream of business "that does not fall within the jurisdiction of the local insular courts," [FN145] but the court's jurisdiction was quite broad. The plaintiffs' land was sold to execute a judgment issued by the Provisional Court and was eventually acquired by the defendant. The plaintiffs sought recovery of the land on the ground that the provisional court was a legal nullity and had no power to enter the judgment for which the land was sold. The court had no trouble upholding the validity of the provisional Court. The military government *620 was valid on the authority of Cross, [FN146] and such a government clearly had the power to create courts. [FN147] The Court intriguingly observed, however, that "[t] he authority of a military government during the period between the cession and the action of Congress, like the authority of the same government before the cession, is of large, though it may not be of unlimited, extent." [FN148] The suggestion here, though it is not absolutely entailed by the statement, is that there is not much difference between a

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peacetime military government and a wartime military government, though Dooley precluded a holding that there were no differences at all. Because the establishment of courts was an easy case, the Court did not need to plumb the limits of this authority.These cases, of course, dealt only with the "interregnum" [FN149] between cession and the establishment of a civil government. Most of The Insular Cases dealt with the extent to which Congress's Article IV powers to govern territories are limited by the Constitution, and especially by the Bill of Rights provisions dealing with civil and criminal procedure. The Court's ultimate conclusion in those cases, which is still the law today, was even more bizarre, or at least more convoluted, than its resolution of Cross. With respect to territories that are fully "incorporated" into the United States, all provisions of the Constitution are immediately applicable of their own force, but with respect to territories that are not "incorporated" into the United States--meaning essentially that they are not regarded as near-term candidates for statehood--only "fundamental" constitutional provisions apply of their own force. [FN150] Nonfundamental provisions, which under this dichotomy include the rights to grand and petit criminal juries, [FN151] apply only if Congress so directs.There is a torrent of academic criticism of The Insular Cases [FN152] (to which one of us has contributed a few droplets [FN153]), but a few words here will be sufficient. The Constitution clearly contemplates a difference between the powers of the national government over people in the territories and in the states; the federal government has a general legislative power over the territories that is not limited to the subject matters enumerated in *621 Article I. It is possible that the scope of this general legislative power might be somewhat different in various territorial settings. [FN154] There are also potential differences between the constitutional power of the national government over territories before and after ratification of the Bill of Rights. [FN155] There is even a case to be made that federal power over territories in which the United States is the only sovereign is different than federal power over national enclaves within states, where the state and federal governments are potentially overlapping sovereigns. [FN156] And it may even be the case that there are some kinds of territories that the United States simply does not have the constitutional power to acquire. [FN157] But there is nothing in the Constitution that suggests that express constitutional limitations on national power apply differently to different territories once that territory is properly acquired. Nor is there anything in the Constitution that marks out certain categories of rights or powers as more or less "fundamental" than others--much less that rights to jury trial would fall on the "nonfundamental" side of the ledger. [FN158] The doctrine of "territorial incorporation" that emerged from The Insular Cases is transparently an invention designed to facilitate the felt needs of a particular moment in American history. Felt needs generally make bad law, and The Insular Cases are no

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exception.A detailed critique of The Insular Cases is beyond our present project. The salient point to extract is that Cross has served as a precedent for upholding actions by other military governments in peacetime. More generally, perhaps Cross helped pave the way for The Insular Cases by validating the notion of a peacetime government that did not operate under the full range of norms required by the Constitution. In either case, it represents an assertion of national power that has frightening implications.

5. The Executive Speaks. If the Supreme Court's assertion of national power tomaintain a peacetime military government seems extravagant, it is nothingcompared to the claim of power advanced by the executive arm of the UnitedStates government.*622 Colonel/Governor Mason was several months' distant from Washington, D.C. When he received news of the ratification of the Treaty of Guadalupe Hidalgo in August 1848, he had no instructions from anyone concerning the governance of California. He had no way to know whether Congress had passed any statutes, or whether those statutes authorized him or deprived him of authority to govern. Under the rule of Little v. Barreme, that meant that Mason simply had to make his best guess and live with the consequences. He chose to continue to govern, but with no illusions about his formal legal authority: I am fully aware that, in taking these steps [to continue the government and collect import duties], I have no further authority than that the existing government must necessarily continue until some other is organized to take its place, for I have been left without any definite instructions in reference to the existing state of affairs. But the calamities and disorders which would surely follow the absolute withdrawal of even a show of authority, impose on me, in my opinion, the imperative duty to pursue the course I have indicated, until the arrival of despatches from Washington (which I hope are already on their way) relative to the organization of a regular civil government. [FN159]That letter could be read as a plea from Mason for Congress to bail him out from any problems that his decision may cause in the future. (The Supreme Court's decision in Cross, of course, obviated any need for a private bill à la Captain Little.) The executive department in Washington, D.C., however, took a different view of Mason's authority. On October 7, 1848, Secretary of State James Buchanan wrote an astonishing letter concerning the governance of California and New Mexico. Buchanan acknowledged that "[b]y the conclusion of the Treaty of Peace, the military government which was established over [the people of California] under the laws of

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war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power." [FN160] Buchanan continued, however, by reasoning: But is there, for this reason, no government in California? Are life, liberty, and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire *623 to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. [FN161]Buchanan added that "[t]his government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land," [FN162] and that accordingly: [N]o import duties can be levied in California on articles the growth, produce, or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the productions of California. Nor can new duties be charged in California upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States. [FN163]President Polk expressly endorsed the substance of Mr. Buchanan's analysis in his state of the union message of December 5, 1848: The inhabitants [of California], by the transfer of their country, had become entitled to the benefits of our laws and Constitution, and yet were left without any regularly organized government. Since that time, the very limited power possessed by the Executive has been exercised to preserve and protect them from the inevitable consequences of a state of anarchy. The only government which remained was that established by the military authority during the war. Regarding this to be a de facto government, and that by the presumed consent of the inhabitants it might be continued temporarily, they were advised to conform and submit to it for the short intervening period before Congress would again assemble and could legislate on the subject. [FN164]Fairly read, this is a claim, put forward by the President and Secretary of State, that

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continuation of the military government in California was affirmatively legal, as a matter of domestic American law, even in the absence of congressional authorization. [FN165] The claim raises legal and factual issues.

*624 a. Madison, Hamilton, Jay . . . and Hobbes?--Let us assume for themoment that every sensible person would choose virtually any organizedgovernment over none at all--although many seemingly sensible people, includingone of the present authors, emphatically disagree with this assumption. [FN166] What does that mean, as a matter of domestic law, about the powersof the American national government? Does that mean that there isconstitutional authorization for the establishment of an American militarygovernment anywhere in the world where there is a governmental vacuum? Thatthe presumed consent of the people living in a state of governmentalinterregnum permits the President and military authorities, as a matter ofdomestic law, to fill the void? The claim is bizarre enough at the level ofabstract political theory. It is positively clinical in the context of theAmerican constitutional scheme, under which the national government is aninstitution of limited and enumerated powers. Perhaps a Hobbesian sovereignwould be able to claim the kind of legal authority that Polk and Buchananattributed to Colonel Mason (and that Colonel Mason never claimed for himself [FN167]), but neither the United States government nor its territorial armin California during 1848 meets that description.

b. A Government By Any Other Name . . .--The American government's position iseven more bizarre when one reflects on its central assumption: that in theabsence of American military rule, there would be anarchy, in the sense of nofunctioning institutions of order. [FN168] When the United States conqueredCalifornia during the Mexican-American War, it did not simply occupy aterritory that had no prior human inhabitants. Before the Presidentestablished a military government in 1847, the people of California did notlive without government. There were plenty of governmental institutions thatoperated under the sovereignties of Spain and Mexico. *625 Before theAmerican invasion, California "had a well-defined and relatively effectivelegal structure based largely on customary law and conflict resolution." [FN169] Indeed, as is typical in cases of conquest, the vast majority ofthe indigenous laws remained in force after the occupation; only those laws

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specifically displaced by the military government ceased to be effective. [FN170] Had the American military government disappeared on May 30, 1848,or any later date, the people of California could have fallen back on theirpre-occupation system of government. If those structures proved inadequate tothe changed circumstances of 1848, [FN171] the prior institutions could havebeen adapted or replaced without the intervention of the American military. Itis absurd to suggest that the only alternative to American military rule wascomplete lawlessness--unless, of course, the pre-existing Mexican institutionssimply did not count, in Mr. Buchanan's eyes, as a government.This last point suggests a deeper problem with the American government's assertion of power from implied consent. Who, exactly, are the "people of California" whose consent was being implied? Could Polk and Buchanan really have believed that the Mexican inhabitants of California, who had been operating their own institutions of government for some time before the American military took over, impliedly consented to the continued rule of the occupying forces in preference to the reinstitution of their own forms of government? This is not even an issue of suffrage, comparable to the kinds of familiar questions that one can raise about the authority of a constitutional ratification process that permits the participation of only a fraction of the population. [FN172] This is a question of implied consent. One can play the game of implied consent [FN173] independently of any questions of *626 voting rights because the purported authority results from an inference rather than from an actual election. [FN174]Accordingly, if one wants to invoke notions of implied consent, one needs to identify whose consent is being implied. It is very hard to get a handle on exactly who was in California during various times in 1848. In 1846, there were probably between 130,000 and 250,000 Native Americans in California and approximately 10,000 non-natives, [FN175] of whom about two-thirds were Latino. [FN176] Implied consent to an American military government in 1846 does not look promising. By 1848, however, matters had changed. Gold had been discovered in January 1848, [FN177] and people were flocking to the region, including hordes of white Americans. By the 1850 census, there were approximately 165,000 residents in California. [FN178] What, if anything, does this mean about the state of affairs in the summer of 1848? That is hard to say, though it is not at all clear that many of the new immigrants to California during the gold rush would have preferred the military government to their own private institutions of justice.But, of course, this is all silly speculation. It is doubtful that President Polk and Secretary of State Buchanan were engaging in deep political theory when they sought to justify the California military government during peacetime. No doubt they were

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simply expressing the "commonsense" view, implicit in the idea of a de facto government, that one should not lightly dissolve an existing mechanism for preserving order without a high degree of confidence that something equivalent or better is about to take its place.

c. Anarchy By Any Other Name . . .--Even on that modest level, however, thepost-war government in California does not fare well. The gold rush was underway, and among the rushers were many, if not most, of the soldiers who weresupposedly providing order. On August 14, 1848, less than two months beforeSecretary of State Buchanan sought to derive an extraconstitutional power togovern from the imperative need for a military government to maintain order,Captain (and Assistant Quartermaster) J.L. Folsom described the state ofaffairs in San Francisco:The most mortifying state of things prevails here at this time. Government, both civil and military, is abandoned. Offences are committed with impunity; and property, and lives even, are no longer safe . . . . Acts of disgraceful violence occur almost daily on board the shipping, and we have no *627 power to preserve order. Tomorrow morning the volunteers will be mustered out of service, and we shall be utterly without resource for the protection of public property. [FN179]As for what was happening in the rest of the state, we cannot do better than to quote Colonel Mason, who on November 24, 1848, between Buchanan's and Polk's stirring tributes to the order-preserving power of the military government, reported to his commander: The war being over, the soldiers nearly all deserted, and having now been from the States two years, I respectfully request to be ordered home. I feel the less hesitancy in making this request, as it is the second only that I recollect ever to have made, in more than thirty years' service, to be relieved from any duty upon which I have been placed: the first was asking to be relieved from the recruiting service, in 1832, that I might join my company in the Black Hawk war. [FN180]The problem continued into the next year, as was acknowledged by General Persifor F. Smith, who in a March 6, 1849 letter to Mason, who was still saddled with the unwanted duty of governing the territory until April 1849, pointed out that new soldiers "will require some additional inducements beyond their pay to prevent them from deserting." [FN181] The trick was to "keep them through the mining season"; [FN182] if that could be done, he hoped, "they will remain next winter; and in the spring circumstances may be altered." [FN183]The order that existed in California during the post-war period was not the product of

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the American military government. It was largely the product of private mechanisms for justice that evolved in mining colonies. As Professor Saunders has observed: [T]he military government exerted little, if any, control over the mining camps[.] [T]his effectively created a large number of completely independent townships functioning entirely under their own sets of rules, but often utilizing the Spanish-Mexican nomenclature. The local laws developed for protecting gold mine claims in the California mining camps became the foundation of United States mining law. [FN184]*628 Under Hobbesian assumptions, the sovereign's authority depends upon its ability to deliver on the promise of order. Even as a Hobbesian constitutional theory, the approach of President Polk and Secretary of State Buchanan fails to establish the authority of the California territorial government.

IV. ConclusionThere is really nothing to be said in favor of the constitutionality of the post-war California military government. Congress and the President could have avoided most, if not all, of the problems by the simple expedient of enacting a statute converting the military government into a genuine Article IV territorial government, provided that the President and Senate made whatever appointments and confirmations were necessary to complete the governmental structure. [FN185] But Congress was paralyzed by the debate over slavery. That, however, is not the Constitution's problem. If congressional paralysis is really a mandate for disregarding constitutional commands, then constitutionalism is a bad joke--as it surely was for California from May 30, 1848 until statehood.

[FNa1]. Professor, Boston University School of Law. Part of this Article was prepared while I was a professor at Northwestern University School of Law. I am profoundly grateful to both institutions for their support on this project.

[FNaa1]. Lecturer, Interdisciplinary Center, Herzliya, Israel.

[FN1]. 57 U.S. (16 How.) 164 (1854).

[FN2]. See Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure (3d ed. 1999); Laurence H. Tribe, American Constitutional Law (3d ed. 2000).

[FN3]. See Jerome A. Barron, C. Thomas Dienes, Wayne McCormack & Martin H.

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Redish, Constitutional Law: Principles and Policy (4th ed. 1992); Paul Brest & Sanford Levinson, Processes of Constitutional Decisionmaking (3d ed. 1992); Daniel A. Farber, William N. Eskrdige, Jr. & Philip P. Frickey, Constitutional Law: Themes for the Constitution's Third Century (2d ed. 1998); Gerald Gunther & Kathleen M. Sullivan, Constitutional Law (13th ed. 1997); Douglas W. Kmiec & Stephen B. Presser, The American Constitutional Order (1998); William B. Lockhart, Yale Kamisar, Jesse H. Choper, Steven H. Shiffrin & Richard H. Fallon, Jr., The American Constitution (8th ed. 1996); William B. Lockhart, Yale Kamisar, Jesse H. Choper, Steven H. Shiffrin & Richard H. Fallon, Jr., Constitutional Law (8th ed. 1996); Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein & Mark L. Tushnet, Constitutional Law (3d ed. 1996).

[FN4]. We have found 24 articles in the WESTLAW and LEXIS databases that cite Cross v. Harrison. One of those articles was written by one of the present authors. See Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 906 n.322 (1990). One author is very much aware of the events surrounding Cross but does not focus on their constitutional significance. See Myra K. Saunders, California Legal History: The Legal System Under the United States Military Government, 1846- 1849, 88 Law Libr. J. 488 (1996). Twenty-two of the articles simply cite Cross, without any substantive discussion, for general propositions of law. See Russel Lawrence Barsh & James Youngblood Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways Before and After Montana v. United States, 56 Wash. L. Rev. 627 (1981); David J. Bederman, Extraterritorial Domicile and the Constitution, 28 Va. J. Int'l L. 451 (1988); Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101 (1984); Carol Chomsky, The United States- Dakota War Trials: A Study in Military Injustice, 43 Stan. L. Rev. 13 (1990); Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "This Constitution," 72 Iowa L. Rev. 1177 (1987); David P. Currie, The Constitution in the Supreme Court: Article IV and Federal Powers, 1836-1864, 1983 Duke L.J. 695; David P. Currie, The Constitution in the Supreme Court: Full Faith and the Bill of Rights, 1889-1910, 52 U. Chi. L. Rev. 867 (1985); Jonathan C. Drimmer, The Nephews of Uncle Sam: The History, Evolution, and Application of Birthright Citizenship in the United States, 9 Geo. Immigr. L.J. 667 (1995); L. Benjamin Ederington, Property as a Natural Institution: The Separation of Property from Sovereignty in International Law, 13 Am. U. Int'l L. Rev. 263 (1997); David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. Rev. 1791 (1998); Sedgwick W. Green, Applicability of American Laws to Overseas Areas Controlled by the United States, 68 Harv. L. Rev. 781 (1955); Captain Timothy Guiden, Defending America's

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Cambodian Incursion, 11 Ariz. J. Int'l & Comp. L. 215 (1994); Deborah D. Herrera, Unincorporated and Exploited: Differential Treatment for Trust Territory Claimants--Why Doesn't the Constitution Follow the Flag?, 2 Seton Hall Const. L.J. 593 (1992); Karl Manheim & Edward P. Howard, A Structural Theory of the Initiative Power in California, 31 Loy. L.A. L. Rev. 1165 (1998); Major Scott R. Morris, The Laws of War: Rules by Warriors for Warriors, 1997 Army Law. 4; Gerald L. Neuman, Whose Constitution?, 100 Yale L.J. 909 (1991); Major Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 Mil. L. Rev. 1 (1996); Efren Rivera Ramos, The Legal Construction of American Colonialism: The Insular Cases (1901-1922), 65 Rev. Jur. U.P.R. 225 (1996); Captain Annamary Sullivan, The President's Power to Promulgate Death Penalty Standards, 125 Mil. L. Rev. 143 (1989); Roger M. Sullivan, The Power of Congress Under the Property Clause: A Potential Check on the Effect of the Chadha Decision on Public Land Legislation, 6 Pub. Land L. Rev. 65 (1985); David L. Roland, Case Note, 17 St. Mary's L.J. 1085 (1986); Paul S. Rosenzweig, Comment, Functional Equivalents of the Border, Sovereignty, and the Fourth Amendment, 52 U. Chi. L. Rev. 1119 (1985).

[FN5]. As we shall see, the facts of the case formally concerned a time period that ended approximately one year before California attained statehood, but the broad issues raised by the case implicate events up to September 9, 1850, the date of California's admission to the Union.

[FN6]. See infra section III.D.4.

[FN7]. We are planning such a book. Of course, one of the present authors has been planning this Article since 1990, see Lawson, supra note 4, at 906 n.322, so don't hold your breath.

[FN8]. Our approach in this Article is explicitly originalist. That identification, of course, raises as many questions as it answers. Because, however, to date there is no source that rigorously describes the mechanics of the kind of methodology that we employ, we must leave the description of our methodology at an uninformative level of generality. For some preliminary thoughts that outline the general direction of our approach, see Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 550-59 (1994); Gary Lawson, On Reading Recipes ... and Constitutions, 86 Geo. L. Rev. 1823 (1997).

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[FN9]. We use the term "Hobbesian" in a metaphorical rather than strictly historical sense to refer to theories that use claims of necessity and implied consent to justify sovereign authority outside of formal legal limits.

[FN10]. For an eminently readable discussion of the events leading up to and during the Mexican-American War, see Paul H. Bergeron, The Presidency of James K. Polk 65-113 (1987).

[FN11]. This uncontroversial principle had been repeatedly recognized by the Court prior to the decision in Cross v. Harrison. See, e.g., American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828); United States v. Rice, 17 U.S. (4 Wheat.) 246 (1819). Indeed, if the institutions in the occupied territory were sufficiently displaced by the conquest, international law probably obliged the conqueror to provide a government for the occupied territory.

[FN12]. See Letter from W.L. Marcy, Secretary of War, to Brigadier General S.W. Kearny or officer of the U.S. Army highest in rank in California, Mexico (Jan. 11, 1847), reprinted in S. Doc. No. 31-18, at 242-46 (1850).

[FN13]. U.S. Const. art. I, § 8, cl. 1 ("The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.").

[FN14]. Id. at art. I, § 9, cl. 5 (prohibiting federal duties from being laid on exports from states); id. (prohibiting States from laying duties on vessels traveling from one state to another); id. at art. I, § 10, cls. 2-3 (prohibiting the State, without congressional consent, from imposing duties except as "absolutely necessary" for executing inspection laws or in case of actual imminent invasion).

[FN15]. Id. at art. II, § 2, cl. 1.

[FN16]. Prior to Cross, the Supreme Court had expressly recognized this power, finding it applicable both when the United States occupies foreign territory, see Fleming v. Page, 50 U.S. (9 How.) 602 (1850), and when foreign nations occupy American soil, see United States v. Rice, 17 U.S. (4 Wheat.) 246 (1819).

[FN17]. The letter instructing the military authorities to impose the duties stated that

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the money collected was "to be applied to the purposes of the war, and among these purposes is the support of the temporary civil government." Letter from W.L. Marcy, supra note 12, reprinted in S. Doc. No. 31-18, supra note 12, at 245. Congress could, of course, have funded the government without recourse to such import fees, but according to Secretary Marcy, there was no reason to expect any money from Congress "much within a year from this time." Id. Thus, the military government was left to rely for its operation on import fees and any other internal sources of revenue that it could find.

[FN18]. Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Feb. 2, 1848, U.S.-Mex., 9 Stat. 922 [hereinafter Treaty].

[FN19]. Proclamation of R.B. Mason to the People of California (Aug. 7, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 566-67.

[FN20]. Letter from H.W. Halleck, Lieutenant, to Captain J.L. Folsom, Collector, San Francisco, CA (Aug. 9, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 568.

[FN21]. Act of Mar. 3, 1849, ch. 112, 9 Stat. 400.

[FN22]. Cross v. Harrison, 57 U.S. (16 How.) 164, 181 (1854). As opposed to Harrison's "irregular" appointment?

[FN23]. For a detailed account of the California constitutional convention, see Myra K. Saunders, California Legal History: The California Constitution of 1849, 90 Law Libr. J. 447 (1998).

[FN24]. Act of Sept. 9, 1850, ch. 50, 9 Stat. 452 (1850).

[FN25]. Mason took "office" as Governor on May 31, 1847. See Proclamation of R.B. Mason (May 31, 1847), reprinted in S. Doc. No. 31-18, supra note 12, at 313-14.

[FN26]. Messages had to be carried physically from the Eastern United States to California, and that was no small feat. Consider Collier's account of his journey to his new post: I am at last at my post. The delay attendant upon my arrival has been to me a great source of anxiety, and given me much trouble ..... I have suffered much of hardship, of privation, and toil, and encountered no little of peril. We were compelled, for several

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days in succession, to fight our way through hostile bands of Indians, but escaped without the loss of life on our part, and with but one man wounded, he having both bones of his arm broken. It is with great regret that I have to state, also, that in crossing the Colorado, four persons were drowned, and that one of the number was Captain Thorn, of New York, who was in command of the dragoons. At some future period I hope to give you some account of my pilgrimage, and of the miserable country we have passed over.Letter from J. Collier, Collector, to W.M. Meredith, Secretary of the Treasury (Nov. 13, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 24.

[FN27]. U.S. Const. art. IV, § 3, cl. 2 (emphasis added).

[FN28]. Similarly, the Constitution grants to Congress the power "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District ... as may ... become the Seat of the Government of the United States ...." U.S. Const. art. I, § 8, cl. 17.

[FN29]. The normal constitutional rules on delegation stem from the Sweeping Clause of Article I, which requires any laws that implement federal powers to be "necessary and proper." U.S. Const. art. I, § 8, cl. 18. See Gary Lawson, Federal Administrative Law 108-09 (1998); Gary Lawson, Who Legislates?, 1995 Pub. Int. L. Rev. 147, 150-51 [hereinafter Lawson, Who Legislates?]. The Territories Clause of Article IV, however, is a general grant of legislative authority to Congress. The same is true of the District Clause, which gives Congress power of "exclusive Legislation" over the District of Columbia and federal property within states. U.S. Const. art. I, § 8, cl. 17. When Congress is enacting legislation for the administration of territories or other federal property, it does not need to invoke the Sweeping Clause as part of its constitutional authorization. Accordingly, any limitations contained in the Sweeping Clause, including the prohibition on delegations of legislative authority, do not apply to legislation concerning territories or federal property. See Lawson, Who Legislates?, supra, at 154-55. The Supreme Court has long recognized that delegation principles do not apply to territorial governance. See Lawson, supra note 4, at 903-05.

[FN30]. This last alternative has long been the favorite of Congress, for obvious reasons. See Lawson, supra note 4, at 900. As an original matter, elected territorial legislatures raise serious problems under the Appointments Clause, see id. at 901, but those problems have been almost universally ignored.

[FN31]. U.S. Const. art. II, § 2, cl. 2 (stating that the President "shall nominate, and

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by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments").

[FN32]. Article II does not use the term "principal Officer." Instead, it authorizes Congress to permit the appointment of "inferior" officers through certain modes other than presidential nomination and Senate confirmation, which has the effect of requiring presidential nomination and Senate confirmation for non-"inferior" officers.

[FN33]. As a colonel in the military, of course, Mason had been properly appointed as an officer of the United States. But that office did not include, as part of its normal duties, serving as the peacetime governor of a federal territory. A new appointment was clearly needed for a post of that magnitude-- just as the Secretary of Defense could not be given authority to administer federal anti-pollution laws without a separate appointment. See generally Weiss v. United States, 510 U.S. 163, 173-76 (1994) (discussing when an officer's new duties require a separate appointment); id. at 196 (Scalia, J., concurring) (same).

[FN34]. The post of customs collector is undoubtedly an inferior office, so that if Mason was properly appointed as Governor, Congress could surely have permitted him, as one of the "Heads of Departments," to appoint customs collectors. But see Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 886 (1991) (stating, in a five to four decision, that the Chief Judge of the Tax Court cannot be one of the constitutional "Heads of Departments" because that term means only "executive divisions like the Cabinet-level departments"). Interestingly, however, when Congress finally authorized the appointment of a customs collector on March 3, 1849, it chose to employ presidential appointment with Senate confirmation. See 9 Stat. 400, § 2.

[FN35]. Letter from R.B. Mason, Colonel, to R. Jones, Adjutant General (Aug. 19, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 573-74 (emphasis added).

[FN36]. Letter from James Buchanan, Secretary of the United States of America, to William V. Vorhies (Oct. 7, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 7-8.

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[FN37]. See 57 U.S. (16 How.) 164, 186-88 (1854).

[FN38]. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12 (1821).

[FN39]. The Tucker Act, which waives sovereign immunity for claims against the United States founded on statutes, regulations, or the Constitution, was not enacted in anything resembling its present form until 1887. Act of Mar. 3, 1887, ch. 359, 24 Stat. 505.

[FN40]. Although it was a garden-variety common law suit, the case was initially heard in a federal trial court in the Southern District of New York. The defendant no doubt invoked a statutory removal provision pertaining to suits under, or under color of, the customs laws. See Act of Mar. 3, 1817, ch. 109, § 2, 3 Stat. 396.

[FN41]. See Harlow v. Fitzgerald, 457 U.S. 800, 813-19 (1982) (setting out the framework for the modern law of official immunity). For a useful summary of the ways in which qualified immunity poses a serious bar to official liability, see Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials' Individual Liability Under Bivens, 88 Geo. L.J. 65, 80-90 (1999).

[FN42]. One could, we suppose, also imagine a court saying that the unconstitutionality of the military government was so blatant that anyone could see it (as indeed did the military authorities in California). In that circumstance, application of the official immunity doctrine would not have helped Harrison.

[FN43]. 6 U.S. (2 Cranch) 170 (1804).

[FN44]. Act of Feb. 9, 1799, ch. 2, § 1, 1 Stat. 613, 613-14.

[FN45]. Id. § 5, 1 Stat. 615 (emphasis added).

[FN46]. The "loophole" might make sense if the purpose of the statute was to deny the entry of provisions into France rather than to prohibit trade altogether, though even in that case one would probably want to deny France the proceeds from exports.

[FN47]. 6 U.S. (2 Cranch) at 171 (emphasis altered).

[FN48]. Id. at 178-79.

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[FN49]. Act of Jan. 17, 1807, ch. 4, 6 Stat. 63.

[FN50]. The modern law of immunity may in fact be wrong in many, or even most, important respects, but that conclusion does not straightforwardly follow from Little v. Barreme's correctness in 1804.

[FN51]. For an extended argument in favor of governmental accountability, see James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Claims Against the Government, 91 Nw. U. L. Rev. 899 (1997). We have elsewhere criticized Professor Pfander's argument that the first amendment right to petition bears on the propriety of federal sovereign immunity, see Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739 (1999), but see James E. Pfander, Restoring the Right to Petition, 94 Nw. U. L. Rev. 219 (1999) (responding), but that dispute is separate from the question whether the Constitution mandates some form of accountability for official acts.

[FN52]. Indeed, the Supreme Court did not even craft a broad judicial immunity until 1871. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871).

[FN53]. See Clifford L. Pannam, Unconstitutional Statutes and De Facto Officers, 2 Fed. L. Rev. 37, 39-40 (1966).

[FN54]. Waite v. Santa Cruz, 184 U.S. 302, 323 (1902).

[FN55]. See Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case For Continued Application, 85 Colum. L. Rev. 1121, 1122 (1985).

[FN56]. 159 U.S. 596 (1895).

[FN57]. See id. at 601-02.

[FN58]. See Cocke v. Halsey, 41 U.S. (16 Pet.) 71, 84-88 (1842).

[FN59]. See Norton v. Shelby County, 118 U.S. 425, 440-42 (1886); see also McLaughry v. Deming, 186 U.S. 49, 63 (1902) (holding that the de facto officer doctrine cannot apply to an improperly constituted court martial).

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[FN60]. See George S. Harris, The Validity of Acts of Officers Occupying Offices Created Under Laws Declared Unconstitutional, 3 U. Newark L. Rev. 123, 125-31 (1938); Pannam, supra note 53, at 50-57; Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909, 914-15 (1963).

[FN61]. 48 U.S. (7 How.) 1 (1849).

[FN62]. 74 U.S. (7 Wall.) 700 (1869).

[FN63]. See supra subpart II.A.

[FN64]. 48 U.S. (7 How.) at 38-39.

[FN65]. Id. at 39.

[FN66]. Id. at 40-41.

[FN67]. Id. at 41-42.

[FN68]. Id. at 42.

[FN69]. See id. at 42-45. The Guarantee Clause provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government ...." U.S. Const. art. IV, § 4.

[FN70]. As an aside: The Court probably should have found more troubling than it did the question whether even governmental authorization could help the defendants in Luther. The Court assumed without much analysis that the state of martial law was enough justification for the defendants' actions to close off tort liability. See Luther, 48 U.S. (7 How.) at 45-46. That issue, however, was not as easily in the defendants' favor as the Court made it appear. See id. at 58-88 (Woodbury, J., dissenting).

[FN71]. U.S. Const. art. III, § 2, cl. 1.

[FN72]. Id. at art. III, § 2, cl. 2.

[FN73]. 74 U.S. (7 Wall.) 700, 720-31 (1869).

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[FN74]. Id. at 733.

[FN75]. Id.

[FN76]. Id.

[FN77]. Id. at 733-34.

[FN78]. Cf. Steven G. Calabresi & Gary Lawson, Equity and Hierarchy: Reflections on the Harris Execution, 102 Yale L.J. 255 (1992) (suggesting that federalism is an appropriate part of remedial balancing for federal courts).

[FN79]. These same inquiries can obviously arise at the state level, and each state can (within the broad guidelines of the federal constitution) authorize its own courts to resolve these issues in any manner that seems fit.

[FN80]. We argue that this hypothetical person, rather than any actual historical person, is the appropriate point of inquiry for originalism. A full explication and defense of this claim, however, must await another day.

[FN81]. It surely includes criminal law. Does de facto authority therefore mean a free ride for all criminals? The answer may depend on how clearly one can identify a category of malum in se offenses. On the other hand, the right answer may be simply that a criminal prosecuted by the federal government has a constitutional right to be prosecuted only in accordance with strictly enforced constitutional norms.

[FN82]. See infra subsection III.D.5.b.

[FN83]. This was not a surprising litigation strategy. If the statutory argument was successful, the plaintiff had a sure winner on all tariffs up to March 3, 1849. And the plaintiff was no doubt leery--and justifiably so--of its prospects of prevailing on a broad-based challenge to the authority of the California military government.

[FN84]. Cross v. Harrison, 57 U.S. (16 How.) 164, 189-91 (1854).

[FN85]. "Governor" Mason announced the ratifications by proclamation on August 7, 1848. He claimed to have received official notification on August 6, 1848 and there is no reason to doubt his veracity. See Letter from R.B. Mason to Brigadier General R.

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Jones (Aug. 23, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 577.

[FN86]. Cross, 57 U.S. (16 How.) at 190.

[FN87]. Treaty, supra note 18, at arts. III-IV, 9 Stat. at 923-26.

[FN88]. See Ingrid Detter De Lupis, The Law of War 297-98 (1988).

[FN89]. For general discussions of these propositions, see William Edward Hall, International Law 482-95 (J.B. Atlay ed., Oxford 5th ed. 1904); Coleman Phillipson, Termination of War and Treaties of Peace 185-98, 214-17 (1916).

[FN90]. Treaty, supra note 18, at art. III, 9 Stat. at 924.

[FN91]. Id.

[FN92]. Id.

[FN93]. Id.

[FN94]. Id. at art. IV, 9 Stat. at 924. The provision also called for the return to Mexico of all captured weapons and other property. Id.

[FN95]. Id. at art. IV, 9 Stat. at 925.

[FN96]. See Gary Lawson & Guy Seidman, When Did the Constitution Become Law? (2000) (unpublished manuscript, on file with authors).

[FN97]. Treaty, supra note 18, at art. V, 9 Stat. at 926, 927.

[FN98]. 50 U.S. (9 How.) 127 (1850).

[FN99]. Id. at 148.

[FN100]. See Treaty, supra note 18, at art. VIII, 9 Stat. at 929, 930.

[FN101]. See id. at art. XI, 9 Stat. at 930-32.

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[FN102]. Letter from James Buchanan, Secretary of the United States of America, to William V. Vorhies, supra note 36, reprinted in S. Doc. No. 31-18, supra note 12, at 9 (1850). We are not as certain as was Buchanan that Madison, Wilson, Hamilton and their contemporaries would have regarded a peacetime military government as "the best form of civil government ever established amongst men."

[FN103]. 57 U.S. (16 How.) 164, 190 (1854) ("But after the ratification of the treaty, California became a part of the United States, or a ceded, conquered territory.").

[FN104]. Id. at 190-91 (emphasis added).

[FN105]. As is often true of sayings, this one conceals some important subtleties. For an illuminating discussion of some of these subtleties, see Gerald Leonard, Rape, Murder, and Formalism: What Happens if We Define Mistake of Law? (2000) (unpublished manuscript, on file with authors).

[FN106]. See supra note 29 and accompanying text.

[FN107]. There is no constitutional reason why a military officer cannot also hold a civilian appointment.

[FN108]. Proclamation of R.B. Mason to the People of California (Aug. 7, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 566 (emphasis added).

[FN109]. Id.

[FN110]. See Saunders, supra note 23, at 456. On the role of slavery generally in debates over territorial governance, see Richard White, "It's Your Misfortune and None of My Own": A History of the American West 155-60 (1991).

[FN111]. See U.S. Comm'n on Civil Rights, Language, Rights, and New Mexico Statehood (2000), available at http:// ourworld.compuserve.com/homepages/JWCRAWFORD/nm-con.htm (last visited Oct. 20, 2000).

[FN112]. U.S. Const. art. II, § 2, cl. 1.

[FN113]. See supra note 85.

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[FN114]. Halleck, incidentally, went on to become President Lincoln's chief of staff during part of the Civil War, and he published a major treatise on international law. See Saunders, supra note 4, at 492 n.23.

[FN115]. Letter from H.W. Halleck to Captain J.L. Folsum (Aug. 9, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 632.

[FN116]. U.S. Const. art. I, § 1, cl. 1.

[FN117]. Id. art. II, § 1, cl. 1. Some scholars deny that this "vesting clause" is a grant of power at all, but the evidence to the contrary is overwhelming. See Steven G. Calabresi, The Vesting Clauses As Power Grants, 88 Nw. U. L. Rev. 1377 (1994).

[FN118]. U.S. Const. art. I, § 1, cl. 1.

[FN119]. See Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1282-84 (1996).

[FN120]. See generally Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993) (defending a minimalist understanding of "[t]he Executive Power"). Even if Professor Monaghan's conception of the executive power is too stingy, one would need to go very far in order to justify the kind of presidential authority necessary to make the "penumbral" argument work.

[FN121]. It would take a separate article to establish this proposition. Fortunately, we have written it. See Lawson & Seidman, supra note 96.

[FN122]. Letter from H.W. Halleck, Lieutenant, to Captain J.L. Folsum, supra note 20, reprinted in S. Doc. No. 31-18, supra note 12, at 568.

[FN123]. See Cross v. Harrison, 57 U.S. (16 How.) 164, 192 (1854).

[FN124]. This raises serious questions about the authority of United States military personnel to enforce federal civilian law, but let us assume that Harrison could have somehow finagled that one.

[FN125]. See Act of Mar. 2, 1799, ch. 22, §§ 27-28, 1 Stat. 627, 648.

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[FN126]. Letter from H.W. Halleck, Brevet Captain, to E.H. Harrison, U.S. Customs Collector (Feb. 24, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 670-71.

[FN127]. Id. at 671.

[FN128]. Letter from Persifor F. Smith, Brevet Major General, to R. Jones, Brigadier General (Apr. 5, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 694.

[FN129]. The need for imports into California was so great that the authorities permitted (upon the payment of "duties") entry of goods from foreign-owned ships, which was forbidden by the general customs laws. As the commander-in-chief of the Pacific naval forces explained to Collier upon his arrival in San Francisco: Mr. Harrison, your predecessor, will doubtless make you fully acquainted with all that has been done by the naval and military commanders on this station for the collection of duties, and for the relief of the suffering community, whose wants and necessities were of that urgent nature as to compel the ruling authorities to adopt their measures to meet the urgent wants of the in-pouring emigrants, rather than strict obedience to legislative enactment ....Letter from Thomas AP C. Jones, Commander-in-Chief of U.S. Naval Forces, to J. Collier, U.S. Customs Collector (Nov. 12, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 34. Collier ended the practice upon taking office: I am aware also of the necessity which seemed to justify the exercise of that discretion. It must be admitted, however, that it was in violation of the revenue laws. I should exceedingly regret that the strict enforcement of those laws should inflict injury upon any portion of my countrymen; but I am not vested with discretionary powers upon such subjects ..... [W]hile I may lament that any portion of our countrymen who are engaged in the mining district should feel the effects in the increased price of provisions, we have, on the other hand, the satisfaction of knowing that another class, that of the American ship- builders and ship-owners, will enjoy that protection which the law intended to give them, that the great interest of our own commerce will be promoted, and that the law of the land is respected and maintained. See Letter from J. Collier, U.S. Customs Collector, to Thomas AP C. Jones, Commander-in-Chief of U.S. Naval Forces (Nov. 15, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 35.

[FN130]. Of course, the plaintiff's ships that were involved in the illegal landing of goods would have been subject to forfeiture as well. The lack of authorization cuts in both directions. If Harrison did not have the power to collect customs duties, he also

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did not have the power to make legal an otherwise illegal entry of goods into San Francisco. But that would be a separate case that had no proper bearing on the disposition of the plaintiff's simple assumpsit action.

[FN131]. Technically, the case concerned only the period until November 13, 1849. From that point forward, there was valid legal authority for the collection of tariffs. The Court's argument, however, clearly sustains the validity of all of the military government's actions until the moment of statehood on September 9, 1850.

[FN132]. Cross v. Harrison, 57 U.S. (16 How.) 164, 193-94 (1854).

[FN133]. Id. at 195.

[FN134]. See U.S. Const. art. I, § 7, cl. 2 (describing the presentment requirement and veto power). The President can, of course, also recommend to Congress "such Measures as he shall judge necessary and expedient," id. at art. II, § 3, and if Congress is out of session when fast action is necessary, the President can "convene both Houses, or either of them." Id. But none of this gives the President the power to construct a military government during peacetime.

[FN135]. 54 U.S. (13 How.) 115 (1852).

[FN136]. Technically, the Insular Tariff Cases was the name given by the Supreme Court to a series of decisions in 1901 that dealt with the tariff status of the new territories acquired by the United States as a result of that war. See De Lima v. Bidwell, 182 U.S. 1, 2 (1901). For convenience, however, we use the term The Insular Cases to refer to the range of decisions, effectively ending in 1922 with Balzac v. Porto Rico, 258 U.S. 298 (1922), that discussed the applicability of various constitutional restrictions to the extracontinental "insular" territories. For an excellent and readable discussion of The Insular Cases, see Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 225-56 (1993).

[FN137]. 182 U.S. 222 (1901).

[FN138]. The Court's entire discussion of this point was: "We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty, and until further action by Congress. Cross v. Harrison, above cited." Id. at 234.

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Incidentally, the spelling of "Porto Rico" in this passage is not a misprint. That was the official spelling until it was changed by Congress to "Puerto Rico" in 1932. See Lawson, supra note 4, at 869 n.85.

[FN139]. Dooley, 182 U.S. at 234 .

[FN140]. Id.

[FN141]. Id. at 236.

[FN142]. Id. at 234.

[FN143]. Id. at 235-36.

[FN144]. 214 U.S. 260 (1909).

[FN145]. Id. at 264 (internal citations omitted).

[FN146]. Id. at 265.

[FN147]. Id. at 266.

[FN148]. Id.

[FN149]. Id. at 265.

[FN150]. See Lawson, supra note 4, at 873-74.

[FN151]. See Balzac v. Porto Rico, 258 U.S. 298 (1922) (holding that there is no constitutional right to petit jury in unincorporated territories); Ocampo v. United States, 234 U.S. 91 (1914) (holding that there is no constitutional right to indictment by grand jury in unincorporated territories).

[FN152]. See, e.g., Neuman, supra note 4; Ramos, supra note 4; Gabriel A. Terrasa, The United States, Puerto Rico, and the Territorial Incorporation Doctrine: Reaching a Century of Constitutional Authoritarianism, 31 J. Marshall L. Rev. 55 (1997).

[FN153]. See Gary Lawson, The Bill of Rights as an Exclamation Point, 33 U. Rich.

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L. Rev. 511, 518-19 (1999) (book review) [hereinafter Lawson, Bill of Rights]; Lawson, supra note 4, at 870-76.

[FN154]. The District Clause gives Congress the power of "exclusive Legislation" over the District and federal enclaves, U.S. Const. art. IV, § 3, cl. 2, while the Territories Clause gives Congress the power to enact "needful Rules and Regulations" concerning territories, U.S. Const. art. I, § 8, cl. 17. If the word "needful" limits the scope of Congress's general legislative jurisdiction, then Congress might have broader power over the District and federal enclaves than it has over territories, and what counts as a "needful" regulation could vary from one territory to another depending on local circumstances.

[FN155]. See Lawson, Bill of Rights, supra note 153, at 516-18.

[FN156]. See David E. Engdahl, State and Federal Power over Federal Property, 18 Ariz. L. Rev. 283 (1976).

[FN157]. Can the United States acquire territory that is never intended for statehood? The question was raised at the end of the nineteenth century and is more serious than it may first appear. But that is a topic for a separate article.

[FN158]. For an analysis of the fundamental (by any understanding of that term) role of juries in the American constitutional order, see Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 81-118 (1998).

[FN159]. Letter of R.B. Mason, Colonel, to R. Jones, Adjutant General (Aug. 19, 1848), reprinted in S. Doc. No. 18, supra note 12, at 574.

[FN160]. Letter from James Buchanan, Secretary of State, to William V. Vorhies (Oct. 7, 1848), reprinted in S. Doc. No. 18, supra note 12, at 7.

[FN161]. Id.

[FN162]. Id. at 8.

[FN163]. Id.

[FN164]. Cong. Globe, 30th Cong., 2d Sess. 5 (1848).

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[FN165]. It is interesting, in this light, to contrast the statement made on January 23, 1850 by President Zachary Taylor in response to a Senate resolution asking, inter alia, whether he had appointed anyone as civil or military governor of California since March 4, 1849: On coming into office, I found the military commandant of the department of California exercising the functions of civil governor in that Territory; and left, as I was, to act under the treaty of Guadalupe Hidalgo, without the aid of any legislative provision establishing a government in that Territory, I thought it best not to disturb that arrangement, made under my predecessor, until Congress should take some action on that subject. I therefore did not interfere with the powers of the military commandant, who continued to exercise the functions of civil governor as before; but I made no such appointment, conferred no such authority, and have allowed no increased compensation to the commandant for his services.S. Doc. No. 31-18, supra note 12, at 1.

[FN166]. There is a large literature defending forms of social organization without government. See, e.g., David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism (1973); Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (1978); Linda Tannehill, Morris Tannehill & Jarrett Wollstein, Society Without Government (1972).

[FN167]. Mason appears from this saga to have been an honest person with no pretensions of grandeur. Indeed, it is hard to study these events without feeling a great sadness, and some measure of admiration, for Colonel Mason. His comments after the conclusion of the treaty of peace demonstrate a keen awareness of the precariousness of his legal situation, and his comments during his wartime administration show a detailed and precise knowledge of the nature of military governance. See Letter of R.B. Mason, Colonel, to L.W. Boggs, Alcaide (June 2, 1847), reprinted in S. Doc. No. 31-18, supra note 12, at 305- 06 (describing correctly the legal origins and limits of military rule). He took the extraordinary step of asking to be relieved from his post. See infra note 180 and accompanying text. And when that day finally came, he died shortly after returning home. See Saunders, supra note 4, at 510 n.135.

[FN168]. There is a more limited sense of anarchy, in which it simply describes the absence of any government that claims and enforces a legitimate monopoly on the use of force in a given territory. Whether anarchy in this sense necessarily leads (or even tends to lead) to an absence of social order is a basic question of political theory on

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which reasonable people disagree. See supra note 166 and accompanying text.

[FN169]. Myra K. Saunders, California Legal History: A Review of Spanish and Mexican Legal Institutions, 87 Law Libr. J. 487, 506 (1996). For a detailed description of the Mexican institutions that were in place in 1846, see id. at 495-504.

[FN170]. This was acknowledged by State Department official John Clayton in a letter of April 3, 1849 giving instructions to a presidential agent being sent to California: The laws of California and New Mexico, as they existed at the conclusion of the treaty of Guadalupe Hidalgo, regulating the relations of the inhabitants with each other, will necessarily remain in force in those Territories. Their relations with their former government have been dissolved, and new relations created between them and the government of the United States; but the existing laws regulating the relations of the people with each other will continue until others, lawfully enacted, shall supersede them.Letter from John M. Clayton, State Department Official, to Hon. Thomas Butler King, Appointed Agent of the U.S. to California (Apr. 3, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 10.

[FN171]. Obviously, there was a much larger American population in California in 1848. See infra notes 175-78 and accompanying text. The Mexican legal institutions were less formal than the Anglo-American institutions, and were therefore unfamiliar and unattractive to American settlers. See Saunders, supra note 169, at 506. But that is a far cry from Hobbesian chaos.

[FN172]. See, e.g., Larry Simon, The Authority of the Constitution and Its Meaning: A Preface to a Theory of Constitutional Interpretation, 58 S. Cal. L. Rev. 603 (1985).

[FN173]. Implied consent is more a game than a theory. As one of us has written elsewhere, "[t]he problem with tacit consent is that it is almost always about one hundred parts tacit to one part consent." Gary S. Lawson, An Interpretivist Agenda, 15 Harv. J.L. & Pub. Pol'y 157, 160 n.9 (1992).

[FN174]. For instance, would slaves in 1789 have preferred the Constitution to the Articles of Confederation? One can ask the question as a matter of normative political theory without implicating any questions concerning the participation of blacks, free or slave, in the actual ratification of the Constitution.

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[FN175]. See Saunders, supra note 169, at 488.

[FN176]. See id.

[FN177]. Id.

[FN178]. See Kenneth C. Martis & Gregory A. Elmes, The Historical Atlas of State Power in Congress, 1790-1990, at 58 (1993).

[FN179]. Letter from J.L. Folsom, Captain, to W.T. Sherman, Lieutenant (Aug. 14, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 589.

[FN180]. Letter from R.B. Mason, Colonel, to R. Jones, Brigadier General (Nov. 24, 1848), reprinted in S. Doc. No. 31-18, supra note 12, at 625.

[FN181]. Letter from Persifor F. Smith, Brevet Major General, to R.B. Mason, Colonel (Mar. 6, 1849), reprinted in S. Doc. No. 31-18, supra note 12, at 691.

[FN182]. Id.

[FN183]. Id.

[FN184]. Saunders, supra note 4, at 489. For more details on the governance structure of mining colonies, see Rodman Wilson Paul, Mining Frontiers of the Far West, 1848-1880, at 22-25 (1963); Saunders, supra note 4, at 506-09.

[FN185]. As an original matter, this would not validate courts that did not conform to the dictates of Article III of the Constitution, see Lawson, supra note 4, at 878-93, but the Supreme Court had already covered that track in 1828 by declaring (in a case that did not squarely raise the point) that Article III did not apply to territorial tribunals. See American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828).END OF DOCUMENT

Copr. © West 2004 No Claim to Orig. U.S. Govt. Works

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NEXUS: A Journal of OpinionSpring, 2001

*3 POPULAR SOVEREIGNTY, THE RIGHT OF REVOLUTION, AND CALIFORNIA STATEHOOD

Herman Belz [FNa1]

Copyright © 2001 by Chapman University School of Law; Herman Belz

The history of California statehood in the 1840s illustrates the reciprocal relationship that exists between liberty and union as ends of American constitutionalism under the social contract theory of government. In the era of the American Revolution, the philosophy of social contract provided a language of mutual obligation between citizens and States in the American Union that obviated the traditional doctrine of government sovereignty. [FN1] After 1789, the conduct of federal-system politics produced rival free labor- and slave labor-based conceptions of popular self-government, which, by 1840, assumed the form of a sectional contest for control of the Federal Government. The Southern version of social contract and political community formed the basis of slaveholder opposition to the formation of the State of California under an anti-slavery constitution. When California was admitted into the Union in 1850, in the face of pro-slavery threats to secede from the Union, the Southern version of social contract theory was shown to be heretical and marked for extinction. California spoke for the nation in affirming liberty and union as the true meaning of the Constitution, informed by the principles of the Declaration of Independence.Abraham Lincoln's statement on the right of revolution, presented in a speech on the Mexican War in the House of Representatives, in January of 1848, guides this analysis of California statehood. [FN2] Examining the boundary dispute that was the ostensible cause of the war with Mexico, Lincoln said that the extent of Texas jurisdiction, and hence of American national territory, depended on revolution. Although it was not pertinent to his purpose of attacking President James K. Polk, Lincoln explained the nature of the right of revolution. "Any people anywhere," he said, "being inclined and having the power, have the right to rise up, and shake off the

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existing government, and form a new one that suits them better. This is a most valuable--a most sacred right--a right, which we hope and believe, is to liberate the world." [FN3] Lincoln also considered the conditions in which the right of revolution might be exercised. "Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much territory as they inhabit." [FN4]More than in Texas, which had revolted against Mexico in 1836, the right of revolution *4 in 1848 was directly pertinent to the attempt by the people of California to form a government for themselves. This fact, and the general significance of California statehood from the standpoint of the social contract philosophy of government, have not been properly understood. [FN5]The specific issue that triggered the sectional conflict leading to the Compromise of 1850 concerned the legitimacy of the political community organized by the people of California in the late 1840s. A significant, if not the dominant, historical interpretation of California statehood has generally focused on whether it was a genuinely democratic movement, based on a justifiable exercise of the right of revolution under the principles of the Declaration of Independence. Some writers deny the democratic legitimacy of the statehood movement, viewing it as a project of American Imperialism that imposed a government on a foreign people in disregard of the wishes of the majority of Californians. [FN6] This view receives support from the historio-graphical tradition deriving from Josiah Royce and Hubert Howe Bancroft. It depicts the Bear Flag Revolt of 1846--the first clear signal of popular demand for American home rule--as a foolish and fraudulent, if colorful and entertaining, political farce. Sarcastic criticism of the Bear Flag Men tends to corroborate the contemporary judgment of Southerners, that the people of California were not a legitimate people capable of governing themselves.In contrast to this view, it is the argument of this essay that the statehood movement initiated by the Sonoma Rebels had a better grasp of the real meaning of popular self-government than the national policy makers who started the Mexican War, occupied California after the conquest, and imposed military government on the territory. More reliable than the interpretation of the sarcastic school, is the view of Robert Glass Cleland: that without the Mexican War the Bear Flag Revolt would have brought California into the Union. [FN7]

IThat California was eligible country in which to exercise the right of revolution is

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implicit in the observation of New England Captain William Shaler in 1804: "It would be as easy to keep California in spite of the Spaniards, as it would be to win it from them in the first place." [FN8] Settled in 1769, California was transferred from Spanish imperial to Mexican republican rule in the Revolution of 1824. Scholarly opinion concurs that the change was nominal, and that government in the remote province remained that of "petty military despotism." [FN9] Mexican sovereignty was practically non-existent. The existing government was indistinguishable from chronic disorder and revolutions, where one set of rulers frequently replaced another. According to historian Frederick Merk, "[t]o the outside world California seemed a derelict on the Pacific ... considered likely to be towed soon into an American port." [FN10]Employing the concepts in a relational normative sense in respect of legal conditions, the inhabitants of California can be thought of as being in a state of nature toward each other, or in a state of war in relation to the Mexican California government. [FN11] In either view, a growing feeling of independence, based on the indifference (or hostility) of the Mexican government to their interests, was a reasonable response of many native Californians, and most of the American immigrant population that entered the country in the 1840s.The election of expansionist-minded, pro-slavery Democrat James K. Polk as president in 1844 brought California into American foreign policy planning. The annexation of Texas having been secured by the pro-southern Tyler administration in 1845, the Polk administration made acquisition of California and New Mexico its top foreign policy objective.The Polk administration intended to obtain California by one of three means. In descending order of preference, the methods to be used were: treaty purchase, popular *5 revolt against the Mexican government--leading to annexation on the Texas model--or military conquest. When one considers the relevant demographics--a Mexican California population of 7,000 inured to an authoritarian political culture comprising only 1,000 adult males, of whom 100 were literate--the option of waiting for an indigenous independence movement to develop seems far-fetched. This perception is not contradicted by the opinion of idealistic philosopher-historian Josiah Royce, that "California would have been ready to drop into our basket like a mellow apple" in a year or less if the Mexican War had been avoided. [FN12] Polk's problem was that the proslavery expansionist bias of his party discouraged--if it did not render impossible--the democratic statesmanship required to support a genuine exercise of the right of revolution in California--either by native Californians or (as proved to be the case) by American settlers who entered the province in large numbers in the 1840s.

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In the spring of 1846, the Polk administration, frustrated in its diplomatic maneuvers, tried to decide how to start a war with Mexico. It was at this time, June 1846, with U.S. Army explorer and potential military adventurer Captain John C. Frémont in California, that a small band of American settlers organized the military resistance known as the Bear Flag Revolt. With the exception of Robert Glass Cleland, the academy has generally regarded the Bear Flag Men with more ridicule than admiration. What perplexes scholars is that the Bear Flag rebels took the principles of the Declaration of Independence and the social contract philosophy of government so seriously! Their doing so is treated as a kind of pretentious impertinence, deserving of condemnation, but for its manifest folly. Bancroft, for example, judges the political rhetoric of William B. Ide, author of the proclamation declaring the existence of the California Republic, to be below that of the Mexican California leaders Castro and Pico in truthfulness, and midway between them in bombast and absurdity. [FN13] William Henry Ellison, a twentieth century historian, says the citizens of the United States who initially attempted to impose their institutions on California "were not greatly concerned with protecting the inalienable rights of life, liberty, and the pursuit of happiness by instituting a government deriving its consent from the consent of the governed." The Sonoma settlers' ideas of democracy "were as yet not developed sufficiently to make them feel obligated to respect the wishes of the majority, the Californians." [FN14]Against the tradition of sarcastic criticism, it seems more accurate to say that the instincts of the Bear Flag rebels were good. Their involvement with American Army officer and explorer John C. Frémont was expedient and reasonable, and their grasp of social contract theory and the right of revolution sound. Considered in historical context, Ide's famous proclamation cannot be dismissed as mere rhetorical boilerplate.Justification for the uprising lay in the fact that settlers had been invited to California by the promises of land and a republican government. Subsequently denied the right to buy or rent land, and feeling oppressed by military despotism, they believed themselves threatened with expulsion by the California government. The purpose of the revolt at Sonoma, according to Ide's proclamation, was to establish a republican government for the promotion of agriculture, commerce, and the mechanical arts, and for the encouragement of virtue and literature. Ide appealed to the bravery of men bound together by principles of self-preservation, love of truth, and hatred of tyranny, urging all persons and citizens of Sonoma to join in making a republican government. When asked by his compatriots to explain by what authority they had occupied General Vallejo's ranch, Ide declared: "We are robbers, or we must be conquerors!" [FN15] Like Tom Paine advising Americans that a declaration of independence would resolve the paradox of professing loyalty to the crown while engaging in

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revolutionary resistance, Ide recognized that a *6 proclamation of independence was needed to justify revolutionary action. In an otherwise acerbic account, Bancroft seems to concur, when he observes that the dignity of the revolt and proclamation of the Bear Flag Men consisted in their willingness to fight as well as to talk. [FN16]Criticized for their false description of Mexican California policies and for attempting, without justification, to overthrow a foreign government, the Bear Flaggers have been held to a high standard of probity. Their legacy is viewed as one of cultural resentment against Mexican-Californians. This criticism assumes that an effective and legitimate California government existed under Mexican rule. However, revolution was justified under social contract theory, because the condition of the country was that of a state of nature, or state of war.Southern politicians were so offended by what they saw as the ultimate outcome of the demand for self-government which the Bear Flag Revolt raised, that they would destroy the Union rather than see it augmented by a free state constitution. To understand the nature of the slaveholders' opposition, it is necessary to consider how the statehood movement developed as a form of resistance to the military government imposed on California by the Polk administration after the conquest.

IIIf the purpose of the Mexican War was to expand the area of the national domain which was dedicated to slavery, it would have been illogical for the Polk administration to permit a free-soil constitution to be adopted in the territory that was the principal object of foreign expansion. Yet, remarkably, this is what happened after the conquest of California. This outcome was not ordained by nature; it requires explanation in historical terms. Part of the answer, undoubtedly, lies in the fact that, after the annexation of Texas, the Democratic Party assumed that, under the rules of American politics, serious opposition to slavery was a practical impossibility. Most important in protecting slavery against political attack was the practice of maintaining an equilibrium between the slave and free states in the U.S. Senate. Although priding itself on its appeal to the sovereignty of the people, the Democratic Party lacked the political imagination to conceive of a popular free-soil movement emerging anywhere--especially in remote California--to challenge the slave power's invincibility.But slavery was a distracting after-thought in California statehood politics. The movement for self-government was not conceived as an anti- Southern project. In demanding a social compact government based on consent, American settlers in California put individual liberty and property rights first, placing them in categorical

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opposition to all forms of dependency and un-freedom. While this caused the movement to be anti-slavery by definition, in the mid-1840s it meant more specifically that Americans instinctively resisted the military government imposed by the Polk administration.The occupation government that existed from 1846 to 1850 has been made out to be a more complex phenomenon than it actually was. Confusion is said to have existed concerning whether the government was military or civil in nature. [FN17] A succession of commanders--Sloat, Stockton, Kearny, Frémont, Mason, Riley--spoke of creating a temporary civil government for the protection of life, liberty, and property, under forms allowing a degree of popular participation. They issued proclamations declaring civil government to be in existence, and assumed the title of civil governor. This was a conceit or a charade; unquestionably the government of occupation was military in nature. It was based on the laws of war under the law of nations, which was applied to conquered Mexican provinces by the executive authority of the President acting as Commander-in-Chief. [FN18] Military force, not consent based on popular *7 representation, was the means by which the government of occupation ruled the inhabitants of California.Under these circumstances, the spirit of resistance expressed in the uprising at Sonoma was revived. The philosophical cause of California statehood was the idea of introducing "home rule" based on American settlers' concept of "natural law." [FN19] Under social contract theory, as in the untutored way the people of California seem to have considered the matter, it was a category error for a military commander to simultaneously claim authority as a civil governor. Americans in California acted as though instructed in the Lockean doctrine that any government not civil in nature was ipso facto in a state of war with its people. [FN20]To appreciate Americans' objections to military government, it is helpful to examine the Polk administration's attempts to justify post-conquest imperial rule. Statements of executive branch officials expressed the relationship that existed in the Southern mind between national sovereignty and the slave power-- indeed, the slaveholders' reliance on the federal government--notwithstanding rhetorical appeals to state sovereignty, or popular sovereignty, depending on circumstance.In his annual message to Congress, in December 1846, President Polk asserted that under the law of nations, military conquest ended the Mexican civil government in California, conferring on the United States government the right and duty to provide for the maintenance of civil order and the rights of the inhabitants. Military and naval commanders were said to be in the process of "assimilating" conquered provinces "as far as practicable to the free institutions of our own country." [FN21] A year later, the conquest of California and New Mexico having been completed, President Polk

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recommended that Congress extend the civil jurisdiction and laws of the United States, and establish territorial governments over the former Mexican lands for the protection of person and property. Renewing his recommendation after conclusion of the peace treaty with Mexico, in July of 1848 the president acknowledged the controversy over extending slavery into the territories, which had been ignited by the Wilmot Proviso. Warning against geographical divisions and dissensions in organizing territorial governments, he urged Congress to invoke "that spirit of concession, conciliation, and compromise in your deliberations in which the Constitution was framed." [FN22]President Polk stressed the political, rather than economic, value of the conquered territories. He noted that "[t]he value of the public lands embraced within the limits of the ceded territory, is far less important to the people of the United States than the sovereignty over the country." [FN23] Although most states contained no public lands owned by the United States, the sovereignty and jurisdiction over them were of incalculable importance to the nation. Yet, while Mexican sovereignty transferred to the United States upon conclusion of the peace treaty, ambiguity and uncertainty about the locus of sovereignty within American government over the conquered territories threatened to immobilize Congress at the same time that it stimulated the statehood movement in California.In July 1848, Polk conceded that the executive branch had no constitutional ability to maintain temporary governments under military authority in California and New Mexico. With the end of the war, he said, "these temporary governments necessarily ceased to exist." [FN24] Authority to govern civil society by martial law could no longer be derived from the law of nations. Hoping for Congressional organization of territorial governments, however, Polk took a hard line against home rule by inhabitants of California and New Mexico, who though "entitled to the benefit of our laws and Constitution" were left without any regularly organized government. In this circumstance, in a gesture of constitutional prestidigitation, Polk proposed a new source of authority in the doctrine of "presumptive" popular consent. He claimed legitimacy *8 for the existing military government (which he admitted had legally ceased to exist) as "a de facto government" that might be continued temporarily "by the presumed consent of the inhabitants." He therefore "advised" the people of California "to conform and submit" to the de facto government until Congress could legislate a territorial government for them. [FN25]Secretary of State James Buchanan provided a more extensive justification of the doctrine of de facto legality. In October 1848, Buchanan, in an official communication, said that the military government left in existence at the end of the war would continue in full operation "with the presumed consent of the people."

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[FN26] "The great law of necessity" justified this conclusion, according to Buchanan. "The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest." [FN27] Royce's comment on this novel theory is apt: "the government of California is denied to be a discoverable actuality, is treated as a mere presumption, and is based upon the notion that California, being between the devil and the deep blue sea, must get out by the one road that providence has kindly opened: namely, the military government." [FN28]The theory of de facto government advanced by the Polk administration represented a significant extension of martial law into the regulation of civil society. [FN29] >From the standpoint of traditional limits on executive authority, there was much to criticize in this development, notwithstanding the conclusion of some historians that the people of California suffered no serious oppression or mistreatment under military rule. [FN30] In relation to the American political tradition, the relevant fact was "the natural odium felt against military authority by civilians." [FN31] This ingrained disposition produced popular agitation directed against the occupation government, and the retention of elements of Mexican law, most notably the alcalde system of local government. [FN32]Accounts of the period of military government establish beyond question that, far from the creature of the federal executive establishment, as Southern opponents of California statehood charged in 1850, the movement for self- government rested on a broad basis of popular support. From the outset there was protest against military rule. The first newspaper in California argued for the convening of a constitutional convention, election of a legislature, and establishment of a provisional government with a view toward sending a delegate to Congress. [FN33] After the California phase of the war ended in February 1847, friction increased between the people and a succession of military and naval commanders who, unable to communicate readily with their superiors in Washington, were operating substantially on their own. Facing civil unrest and army desertions in November of 1848, the American naval and military commanders agreed to recommend election of delegates to form a provisional constitution and government if Congress failed to create a territorial government for California. [FN34]News of Congress' inaction on the matter of territorial government, coinciding with the administration's advice to submit to the de facto government under the doctrine of presumptive popular consent, provoked the home rule movement into action. Throughout 1848, legislative councils and assemblies for the maintenance of civil

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order were spontaneously organized in the mining district, and in some towns. Additional local councils were formed and a number of mass meetings held in December 1848, and January 1849, demanding a constitutional convention and the establishment of a provisional government. The legislative assembly of San Francisco played a prominent role in the popular resistance. Abolishing the widely-resented alcalde's office, the assembly declared the people's *9 intention to withhold the presumed consent that military officials claimed in support of the de facto government. [FN35]The provisional government movement justified its action under the theory of social contract and the right of revolution. Peter H. Burnett, the leading theorist of popular self-government, picked up, as it were, where William B. Ide and the Bear Flag rebels left off in 1846, when the Sonoma Uprising was overtaken by the events of the Mexican War.Burnett was a lawyer, jurist, and politician recently arrived from Oregon, where he was active in forming a compact-based provisional government, the validity of which was confirmed by Congress in the Oregon Territorial Act of August 1848. As the basis of the home rule movement, Burnett asserted the fundamental principle of the Declaration of Independence that governments derive their just powers from the consent of the governed. The people of California had "the right to exercise the power inherent in human nature ... to institute government for the protection of life, liberty, and the right of property." Insisting that this question was beyond the jurisdiction of the president to decide, Burnett rejected the administration's doctrine of presumed popular consent to the de facto military government, contrary to the manifest will of the people. Declaring that the president could not "presume away the liberties of the people," Burnett argued that if the people had no power to dissent, they had no power to give their consent. They were and must be a free people, not passive instruments to be used by the government. [FN36]In May 1849, the home rule movement declared for the first time that its purpose was to form a provisional state, rather than a territorial government. [FN37] Affirmation of this constitutional objective was in part a response to Congressional paralysis blocking the organization of territorial governments for California and New Mexico. Congress saw fit, however, to enact legislation extending the revenue laws to California, designating San Francisco as a port of entry, and authorizing the appointment of customs collectors. [FN38] In an address to the people of California adopted by the San Francisco legislative council, Burnett attacked the congressional policy. "For the first time in the history of the 'model Republic' and perhaps in any civilized government in the world," he declared, "the Congress of the United States, representing a great nation of more than twenty millions of freemen, have assumed

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the right, not only to tax us without representation, but to tax us without giving us any government at all." [FN39] Not only did the people have a right to form their own government, Burnett asserted, but in writing a state constitution they must also settle the slavery question that Congress seemed incapable of resolving.Bereft of political, ideological, and material resources, U.S. military officials in California acceded to the statehood movement. Realizing the people were in a rebellious mood, newly appointed commander General Bennet Riley issued a proclamation in June 1849, calling for the election of officers to fill government vacancies, and delegates to a constitutional convention. Still refusing to recognize the authority of the people to form a government, and warning against the evils of "illegal local legislation," Riley cited Mexican California law as a basis for his action. [FN40] Although questioning Riley's authority, popular-sovereignty-minded settlers accepted the military governor's election timetable as expedient for their purposes.The Constitutional Convention met in Monterey in September, 1849. Forty-eight delegates were elected, including twenty-three from northern states, fifteen from southern, and eight native Californians. With respect to the congressional debate over California statehood in 1850, the most significant feature of the Constitution was its prohibition of slavery. [FN41]Discussion of the slavery question in the Constitutional Convention seems to have had an abstract quality. Notwithstanding *10 the sectional division in the delegates' political background, no debate over slavery occurred. Nevertheless, slavery was on everyone's mind; it had to be taken into account because of Congressional preoccupation with the subject of territorial slavery. The question of motive and purpose on an issue that threatened to divide the nation cannot be avoided. It is pertinent to ask whether adoption of the free soil principle in the California Convention was a matter of choice or of necessity. Did circumstances of geography, climate, culture, and history-- including the strange good fortune of discovering gold at the very moment when the country passed from Mexican to American rule--make the prohibition of slavery an inevitable and foregone conclusion? Or was there a real possibility that slave property could have been introduced into California, in which case adoption of the free soil principle was a matter of moral and political choice? The question is relevant because a free soil constitution based on necessity and inevitability could be seen as nothing more than an attempt to avoid insulting Southern sensibilities, rather than a deliberate moral choice of freedom over slavery.Slavery did not exist in California; it had been abolished in Mexico in 1829. To become part of California society, it would have to be imported from outside. In an attempt to defuse sectional hostility an argument was made at the time that natural conditions prohibited slave labor from being introduced into territories acquired from

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Mexico. [FN42] Against this speculation there is considerable evidence of Southern interest in extending slavery into California and New Mexico under the protection of a Congressionally organized territorial government. Southerners recognized that, historically, slave labor was suitable to mining operations. There were suggestions in the Southern press of plans by armed Southern companies to take their slaves to California. One proposed method of settlement was for slave owners to emancipate their slaves in their state of domicile, sign them to indentured labor contracts, and then transport them to California. Bancroft states that in 1849-50 many Blacks were brought in to work in the mines, were subsequently made free, and maintained their freedom by asserting their rights. [FN43] Southern interest in California focused not only on the moral offense to Southern values that exclusion from the territories signified, but also on strategic requirements of political and economic expansion to maintain parity with the North. [FN44]Cardinal Goodwin tells a fascinating story about a company of Texan slaveholders who unsuccessfully tried to move into the mining district. The incident offers a microcosm of the confrontation between free soil and proslavery conceptions of popular sovereignty that dominated the debate over California's admission in 1850. In the mining area, a system of self-government was created in which miners made rules prescribing district boundaries, and elected governing personnel to record the measurements of settlers' claims. The recorders of claims were authorized to settle disputes over claims, with a provision for appeal to the miners. In July 1849, a company of Texan slaveholders led by Colonel Thomas Jefferson Green entered the district with fifteen Negro slaves. Disregarding the rules for regulating claims, they occupied land and entered claims for themselves and their slaves. The miners objected that this action violated both local rules and federal law, which restricted occupation of public lands to U.S. citizens. Refusing to comply, the Texans threatened to resist by force, whereupon the miners voted to expel the "invaders," and resolved that no slaves or Negroes should own claims, or even work in the mines. The Texans left and their slaves disappeared. [FN45]Although it was known that Convention delegates from Southern States wanted to introduce slavery into California, under the circumstances they decided not to object to the Constitutional provision prohibiting slavery. Rather, Southerners anticipated a proslavery strategy in the *11 future, either by extending the eastern boundary to make an extremely large state that could be divided into one or more slave states, or by dividing the state as it then existed, if south California should prove adaptable to slave labor. The free soil interest being dominant, it was feared that a fight over slavery in the convention would harm the chances of Congress granting statehood. Far from a policy determined by pre-existing conditions, adoption of the free soil

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principle expressed both a moral choice of liberty for the sake of Union, and prudent recognition of the need for political unity in the home rule movement. [FN46]Of course, where slavery was an issue, the race question was also implicated. Since it was a matter of secondary importance, race relations could be debated. In California, as in other states where the free soil principle was upheld, opposition to slavery rested in part on self-interested motives that do not appear "idealistic" and "humanitarian" to twentieth century scholars. [FN47] Most miners who did not want Negro slaves living in the state also did not want free Negroes. In the Constitutional Convention a proposal to exclude free Blacks received support, but was rejected because it raised federal constitutional questions about the rights of citizens under the Privileges and Immunities Clause of the Constitution. The racial attitude described by the American alcalde Walter Colton, expressed in the observation that "free white diggers won't dig with slaves," confirms the perception that the fundamental issue was the conflict between conceptions of social contract philosophy based on freedom and slavery. [FN48] This became apparent in the controversy over the meaning of popular sovereignty that California statehood ignited in Congress.

IIIAnalysis of the debate over self-government in California requires a definition of popular sovereignty, as contemporaries understood it. This would be derived from the American political tradition, and be broad enough to comprehend the sectional points of view that shaped the Compromise of 1850. Abraham Lincoln provided such a definition at the time of the Lincoln-Douglas debates."What does Popular Sovereignty mean?" asked Lincoln. "Strictly and literally it means the sovereignty of the people over their own affairs--in other words the right of the people of every nation and community to govern themselves." [FN49] Lincoln said the idea of popular sovereignty was "floating around the world" for several centuries before it "took tangible form" in the words of the Declaration of Independence: We hold these truths to be self-evident: That all men are created equal; That they are endowed by their Creator with certain inalienable rights; That among these are life, liberty, and the pursuit of happiness; That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed ....' If that is not Popular Sovereignty, then I have no conception of the meaning of words. [FN50]Popular sovereignty was the right of self-government--the principle that each man, and every community of men, should do precisely as they please with all which is

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exclusively their own. [FN51] This definition was consistent with the view stated by Senator Lewis Cass, Democrat of Michigan, in the debate over California statehood. Cass said popular sovereignty was the right of internal legislation in a community, referred to in the Declaration of Independence as a power belonging to the people at large for their exercise, and incapable of annihilation. [FN52]The debate over popular sovereignty in relation to California statehood focused on two basic issues. First was the procedural-formal question of the particular political community within the federal system where the right of self-government was properly exercised. The second question *12 concerned the substantive matters of public policy upon which the popular sovereign could act.Four theories can be identified in contemporary debates concerning the locus of popular sovereignty in the American Union. One theory posited popular sovereignty exclusively at the State level, in the people as constituent power of the state governments. [FN53] A second view placed popular sovereignty in the people of the United States, considered as a national political community represented in and acting through the Federal Government. [FN54] A third concept held that popular sovereignty resided in the people of the United States as the constituent power of both the Federal and State governments under a system of divided sovereignty. [FN55] Still another concept of popular sovereignty identified it with self-government by inhabitants or citizens in national territories. [FN56]The second issue in the debate over Californian self-government concerned the things that, jurisdictionally speaking, belonged exclusively to the relevant popular sovereign. To contextualize, where in the Constitutional order as a whole did authority over the subject of slavery reside? More specifically in the circumstances of the Mexican War, which of the possible popular sovereigns identified in contemporary Constitutional theory had the authority to decide on the matter of slavery in the territories?Prior to 1846, several rules and practices of popular sovereignty were used to deal with the slavery question, depending on circumstance. A strong rule, universally accepted, was that the sovereign people of each State had authority to decide whether slavery should be recognized or prohibited within their jurisdiction, to the exclusion of claims of other popular sovereigns. A second rule, less universally recognized, was that Congress, as representative of the national popular sovereign, had the power to prohibit slavery in national territory, as in the Northwest Ordinance of 1787 (reenacted by Congress in 1789), [FN57] and the Missouri Compromise Act of 1820, [FN58] which prohibited slavery in Louisiana Purchase Territory north of the 36-30 line of latitude. Under this rule, Congress had an implied power to legislate the existence of slavery in national territory, although it had not exercised this power. A corollary practice under this rule was for the people in southerly territories, acting as a

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territorial popular sovereign, to recognize slavery in the course of forming a state government, as in the organization of the States of Louisiana (1812), Mississippi (1817), Alabama (1819), Missouri (1821), Arkansas (1836), and Florida (1845).In the Mexican War context, the Republic of Texas, a slave-holding country lying south of the Missouri Compromise line, was annexed to the United States in 1845, by a resolution of Congress which affirmed the 36-30 line and declared that States which might be formed with the consent of Texas were to be admitted into the Union with or without slavery as the people might desire. [FN59] In 1846 Representative David Wilmot, a Pennsylvania Democrat, introduced in Congress legislation to prohibit slavery in territories that might be acquired from Mexico, whether lying north or south of the 36-30 line. In 1848, Congress enacted a law organizing a territorial government and prohibiting slavery in Oregon, which confirmed the free soil principle adopted by the people of the territory in a provisional government. These measures offered precedents possibly relevant to the disposition of the California statehood question.The proposal to admit California into the Union raised a series of interrelated questions: what was California--a national territory, a conquered foreign territory, a State, or an independent republic? Whatever their political and governmental form, did the people of California possess the authority to legislate on the subject of slavery? In the sense of being a matter of exclusive concern to the people of California, did the principle of popular sovereignty have just application to the slavery issue?*13 Executive branch policy on slavery in the Mexican Cession shaped the political situation in which the California statehood question was considered. Seeking to augment the power of the slave states, Polk vacillated between extension of the Missouri line, and the Democrat party's position of territorial popular sovereignty, as means of achieving this end. [FN60] In August 1848, in a futile effort to gain support for extending the Missouri line inot new territory, Polk cited it as justification for approving the Oregon free soil territorial legislation. Finally, in December 1848, Polk, now a lame duck president, recommended popular sovereignty at the Constitutional Convention stage of territorial development in California and New Mexico. [FN61]General Zachary Taylor, a military hero of the Mexican War, was elected as a Whig in 1848, and he reversed executive branch policy by supporting California statehood. In May 1849, with the home rule movement well under way, Taylor sent to California a former Georgia congressman, Thomas Butler King, with advice to by-pass territorial government and to organize a State Constitution. In January 1850, Taylor said that since Congressional proposals to legislate on slavery in the territories had provoked controversy, it was his duty "to endeavor to put it in the power of Congress, by the

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admission of California and New Mexico as States, to remove all occasion for the unnecessary agitation of the public mind." [FN62] Affirming the constitutional principle that slavery in a state was a subject of concern exclusively to the people of the state, Taylor advised Congress against making admission to the Union conditional on acceptance of a provision concerning slavery contrary to the wishes of the people. To do so would be to treat the people of California, including many native citizens of the United States, as a conquered people required to submit to the will of their conquerors, rather than as a people possessing a right of self-government in a matter that peculiarly affected them. Such a measure would be regarded as "an invasion of their rights, and, upon the principles laid down in our own Declaration of Independence, they would certainly be sustained by the great mass of the American people." [FN63]

IVIn a growing state of alarm at the peril of Wilmot Provisoism, Southerners united in bipartisan condemnation of California statehood as an unconstitutional and unjust assault on Southern rights. Southern arguments revealed the corruption of social contract theory when subordinated to the political requirements of protecting slavery. Confronted with an authentic exercise of the right of revolution and popular self-government, Southerners repudiated the principle of State popular sovereignty. Denying that the principle had any just application in California, they said the people of California were not a people in the Constitutional sense required for admission into the Union as a State. Moreover, even assuming they were a people, slavery in California was not a matter of exclusive concern to the people of California."It can bring no soothing to me to say the act is that of the people," Mississippi Senator Jefferson Davis said of the California constitution. Objecting that "there was no organized permanent body of persons, such as constitute a people," Davis distinguished between the organized inhabitants of a territory and the unruly mass of adventurers who acted in California. [FN64] Senator John M. Berrien of Georgia viewed the inhabitants of California as an unorganized body of transient persons who were incompetent to form a constitution. The majority of the people were mere adventurers digging for gold who intended to return to domiciles in the United States. [FN65] Senator Jeremiah Clemens of Alabama attacked "the new doctrine of squatter sovereignty ... the right of a few individuals to seize upon the public domain and erect themselves into a sovereignty." [FN66]*14 Southerners viewed the people of California as revolutionists acting in defiance of legitimate authority. According to Davis, the people of an organized national

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territory could not form a State government without the consent of the United States. It was lawlessness compounded, he argued, for an unorganized band like the inhabitants of California to "set at naught the sovereignty of the United States, convert the public domain to their own use, and claim therefrom the right to be admitted into the Union." [FN67] "[T]his right of self-government," Berrien exclaimed, "of which we hear so much, is not a thing which a man can carry in his pocket, like a passport, or a certificate of citizenship, to be used and exercised upon any spot of earth on which he may tread." Sovereign power over the territory of the United States resided in Congress. The inhabitants of a territory possessed no right of self-government "except as it is given to them by the transfer of the sovereignty of the United States, and only to the extent that that sovereignty is transferred." Berrien concluded, since no right of self-government was conferred by act of Congress, California state makers occupied the public domain without legitimate authority. [FN68]Previously, the Southerners had argued that no Constitutional principle was more fundamental than the right of a State to determine the slavery question for itself. Yet when the people of California, denied a conventional territorial government through no fault of their own, in effect attempted to exercise this right, Southerners moved immediately to deny them membership in the Union. The slaveholder political class thus turned decisively down the road that led to the repudiation of liberty as the end of the American social compact. Scornful of Constitutional distinctions as metaphysical abstractions, the slaveholders could see nothing in California statehood but Wilmot Proviso- ism. Describing the California admission bill as the "Executive Proviso," Senator John C. Calhoun of South Carolina denounced it as a modification of the Wilmot Proviso that was even more unconstitutional than the original. The California bill assumed that sovereignty over the territory was vested in inhabitants claiming the same inherent right of self-government as the people in the States. On the contrary, Calhoun said, sovereignty over territories was vested in the several states composing the Union, to be exercised through Congressional legislative power that was limited by property rights guaranties. It followed that "the individuals of California who have undertaken to form a constitution and a State, and to exercise the power of legislating without the consent of Congress, have usurped the sovereignty of the State and the authority of Congress, and have acted in defiance of both of them." Calhoun concluded: "what they have done is revolutionary and rebellious in its character, anarchical in its tendency, and calculated to lead to the most dangerous consequences." [FN69]Jefferson Davis asked: "What matters it to me whether Congress has declared that within certain limits of the old territory of California slavery shall be prohibited, or whether Congress shall give validity to an act of an unauthorized people within that

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territory, and thus exclude us from it?" [FN70] The result in either case was injustice and oppression--permanently imposed on the South by giving the free states a majority in the Senate that destroyed the principle of sectional equality. California's admission would transform the voluntary compact of states into "a forced Union," with the North "coercing States at the point of a bayonet." Reflecting the concern for national power below the surface of states' rights dogma, Davis said Wilmot Provisoism direct from Congress was preferable to the precedent that California statehood would set. As a practical matter it would be easier to repeal an act of Congress than a provision of a State Constitution. More serious from a moral point of view, the admission of California under a free State Constitution presented "the outrage of a revolutionary seizure of public domain" justified by the assertion *15 of hostility to slavery. Wilmot Proviso-ism straight from Congress signified "the fraud or usurpation of an agent." Approval of California statehood was worse, because it amounted to "the seizure [of territory and political power] of another subsequently sustained and justified by the agent." It was infuriating to Southerners that the formation of a free State Constitution in California should hand victory to Wilmot Proviso partisans without them lifting a finger. Confident in their ability to carry the bill "by numerical force," complained Berrien, they "sit with folded arms ... call for the question," and do not deign to answer objections to California admission. [FN71]Slaveholder resentment against California statehood was further evident in resolutions adopted by the Southern Convention meeting in Nashville in July of 1850, to consider a united sectional strategy. Admission of California was seen as a form of Congressional exclusion of the South from national territory, in violation of the Constitution. The mode of legislation used to promote Wilmot Proviso-ism was irrelevant. The Nashville convention resolved: "When therefore Congress attempts to carry out and confirm the acts of these individuals, erecting California into a state and excluding slavery therefrom, it is the same thing as if Congress had originally passed a law to this effect, without the intervention of these individuals." In the southern view, "The constitution of California becomes the act of Congress; and the Wilmot proviso passed and enforced by the legislation of Congress." [FN72]Southerners proudly acknowledged slavery as the foundation of their conception of social contract and political society. Delegates to the Nashville Convention declared, "The one great difference--the greatest that can exist among a people, is the institution of slavery. This alone sets apart the Southern States as a peculiar people--with whom independence as to their internal policy, is the condition of their existence." [FN73] Slavery existed in the United States independent of the Constitution. It was recognized as property, as a domestic relation of service or labor under the law of a state, and "as a basis of political power." [FN74] Jefferson Davis said it was erroneous

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to regard property in slaves as local in nature and deriving its existence from municipal law alone. "Slavery existed before the formation of the Union," he said, and was given recognition in the Constitution which it would not otherwise have enjoyed. In joining the Union, non-slaveholding states placed themselves under an obligation to acknowledge a "species of property unknown to themselves." The Constitution caused slave property in the southern states to be recognized as property throughout the United States. [FN75]The California admission bill, to Southern eyes, destroyed this structure of national Constitutional protection for slavery. Senator Thomas G. Pratt of Maryland said the bill made "an odious discrimination ... against the property of the fifteen slaveholding States of the Union, who are thus deprived of that position of equality which the Constitution so manifestly designs." [FN76] Virginia Senator R. M. T. Hunter insisted that "[i]t is the constitutional right of the South either to have social possession of all the territory, or an equal division of it between the slaveholding and the non-slaveholding States. Either would satisfy the South." [FN77] Berrien of Georgia summarized the southern position in stating that submission to the California bill was "degrading to a freeman." [FN78]The situation warranted extreme action. While the hope of a Congressional adjustment prevented the Southern Convention from discussing specific methods "for a resistance to measures ... which might involve a dishonor to the Southern States," [FN79] delegates observed that the California bill enforced the exclusion from national territory by act of Congress that almost every southern state said she would not submit to. The Convention address admonished: "A sovereign State will disdain to inquire in what manner she is stripped *16 of her property, and degraded from an equality with her sister States." American slavery would be destroyed if the South came "under the dominion of the restless people of the Northern States." The slave states "must rule themselves or perish," the Convention declared. [FN80]As never before in a practical sense, Southerners could see the political and moral-philosophical relationship between State popular sovereignty and a "national democracy," governed by a Constitutional majority under the principles of the Declaration of Independence, to which free soil opinion appealed. [FN81] Secure in their dependence on slavery, Southerners unhesitatingly rejected the national libertarian conception of popular self- government. Confident of the moral and constitutional ground on which their claim to sovereignty rested, they began to seriously plan a revolutionary secession as an alternative to remaining in the Union.Social contract theory in general, and the Declaration of Independence in particular, posited the right of the people to alter or abolish any government when it became destructive of the end for which it was instituted--i.e., the protection of individual

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rights. Starting with the Kentucky and Virginia Resolutions of 1798, Northern and Southern states claimed a right of State interposition as a means of resisting unjust, abusive, and unconstitutional measures by the federal government. In the South Carolina nullification crisis of 1832, John C. Calhoun tried to upgrade and transform State interposition from a revolutionary into a Constitutional right, conferring legal immunity on disunionist political action. Yet Calhoun's project of Constitutional construction was less successful than he hoped. The controversy over California statehood showed that, despite the persistence of disunionist rhetoric and federal-state controversies, secession was not accepted as a legitimate constitutional claim. Opponents of secession, like critics of all forms of State interposition since 1798, viewed it as lawless rebellion. Southerners threatening to break up the Union reflected awareness of the revolutionary nature of secession as a form of State protest.From the Southern point of view, revolution was in the air with the introduction of the Wilmot Proviso. Contemplating a remedy for the proviso, Calhoun warned in 1847 that, should excluding the South from the territories destroy the balance between the sections, it would bring "political revolution, anarchy, civil war, and widespread disaster." [FN82] In the debate over California admission, many Southerners viewed secession through the prism of revolution. While disavowing any intent of violence or disunion, Jefferson Davis appealed to the example of the country's revolutionary patriots in warning that Southerners were loyal not merely to the form of Union, but to the spirit of Constitutional equality that held the states together. [FN83] Predicting that admission of California would "result in the disturbance of the public peace," Berrien of Georgia said the South was not interested in nullification, as some charged, but secession. Berrien was indifferent about whether secession was to be considered a right resulting from the nature of the federal compact, "or must be considered as revolutionary in its nature--the ultima ratio of an oppressed people; whether it result from the provisions of the Constitution, or belong to the principles of self-government." Whatever it was, Berrien asserted, whenever a number of states resolved to perform the act, "whether revolution, or constitutional and peaceful retirement from the Union," the Union would be at an end. [FN84] Clemens of Alabama said: "I do not know what Alabama may do ... [w]henever she commands I will obey. If she determines to resist this [California admission] law by force, by secession, by any means, I am at her service ... [i]f this be treason, I am a traitor--a traitor who glories in the name." [FN85]

To the Southern mind, the admission of California was an oppressive act justifying disunionist revolutionary violence--or *17 the threat of revolutionary violence--for the protection of slavery-based communities. Clemens issued a warning to Unionists: "If

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any State should secede, let him if he dare attempt to employ military force to compel her return." A seceding state would be supported by sister states, and the powers and resources of the federal government would be wholly inadequate in attempting to keep them in the Union against their will. Clemens was confident that "the denial of State sovereignty, either North or South, can bring to the executive nothing but contempt." While conceding he might be a traitor to the Union, Clemens gave notice that accusing political opponents of treason was a game that states could play too. [FN86]

VThe California question challenged lawmakers' epistemological and perceptual powers on two basic issues. Did a state exist in California, and did the attempt of the people of California to assume the identity of a state in the Union--paradoxical though it may appear--constitute a crisis that threatened to destroy the Union?According to the language and logic of the Constitution, a state must first actually exist in order to be admitted into the Union. [FN87] But the criteria for determining the existence of a valid state were in dispute. Southerners held a double-consent Congressional sovereignty doctrine; unless they already were an independent country, the people of a territory first needed the consent of Congress to govern themselves by their own consent under a State Constitution, and second, to be admitted into the Union. Asserting that Congressional consent had not been given, Calhoun asked: "Can you believe that there is such a State in reality as the State of California? No there is no such State. It has no legal or constitutional existence." [FN88] California had no validity as a government because it lacked the sanction of Congress. And it could not be admitted into the Union because the prerequisite to admission was existence as a state, independent of the sanction of Congress.Free soil-minded Whigs and Democrats were convinced that California was a State, the existence of which was justified both by the social contract principle of consent, and practical necessity. Whig Senator Jacob Miller of New Jersey said California "has taken the Wilmot Proviso in her own hands," settling the territorial slavery question "precisely in the way in which we all agree she has a right to settle it--by the formation of a State constitution in which her people had the right to admit or prohibit slavery." "You have, in fact, there--whether organized or not--a State." [FN89] Michigan Democrat Lewis Cass inquired: "... are we to be conducted through some politico- metaphysical process of reasoning, and asked to prove, step by step, the right of one hundred thousand American citizens to provide for their own social existence, and to apply for admission into this Union, as you would require proof to establish the

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ownership of a house?" By the principles of American institutions and human nature, Cass argued, California was "as truly a State as any one on the face of the earth." [FN90] Senator Sam Houston of Texas said it was necessary to organize a republican government in California when the necessity of military government ended. "I contend it is an inherent right in the American people, whenever they are thrown together in sufficient numbers, that they shall establish some government for themselves, provisional, territorial, or whatever they may please." [FN91] William Henry Seward, New York Whig, stated that the people of California, acting under the law of self- preservation, made a constitution to deal with the problem of anarchy. "California sprang from the head of the nation, not only complete in proportions and full armed, but ripe for affiliation with its members." [FN92]Whether, or in what sense, California statehood signified a crisis situation was a second issue on which political perceptions differed. Contemporary observers agreed *18 that California needed a legitimate civil government to deal with political and social conditions that could fairly be described as verging on anarchy. Ratification of the Constitution, and election of legislative and executive officers that, by April 1850, brought the State government into existence, went far toward alleviating the crisis in California. Meanwhile, the Californian Congressional delegation, arriving in Washington in February of 1850, found after initial encouragement that Southerners perceived their petition for admission into the Union as a threat to the existence of the Union. In a memorial to Congress, California Senators- and Representatives-elect defended the State. "The people of California," they wrote, "are neither rebels, usurpers, nor anarchists." They sought neither "to sow the seeds of revolution that they might reap in the harvest of discord," nor expected their admission to be made "the test question on which would hang the preservation of the American Union." [FN93]The prospect of losing parity in the Senate as a result of California's admission into the Union posed a long-range threat to the political power of the slave States. Slaveholders reacted, however, as though the destruction of slavery were imminent. To secure and stabilize their position in the Union, they threatened to destroy the Union by revolutionary secession. [FN94] California must be kept out until new legal protection was given to slavery, especially a guaranty of equal protection for slave property in national territories. This argument--if the threat of disunion can be called an argument in a deliberative sense--was persuasive to most of the Washington political establishment. [FN95] But it did not move President Zachary Taylor, military hero and Louisiana slaveholder, who rejected outright the slaveholders' assessment of the threat posed by free-state California. Southern perception of being under imminent attack was perhaps mainly an expression of alarm that the power of the executive

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branch might be used to discredit and obstruct the strategy of disunionist intimidation.A non-political military man, Taylor's policy for dealing with the sectional conflict over slavery was premised on a repudiation of partisan politics. Disregarding party allegiance and local political considerations, Taylor intended to create a patriotic, nonpartisan party that, by isolating and defusing the territorial slavery issue, would reassure the Southern mind of the permanent existence of slavery within its present boundaries. [FN96] A possible legislative vehicle for this purpose was suggested by a southern Whig proposal in 1849, based on the idea of natural limits to slavery's expansion, to extend the eastern boundary of California to include the entire Mexican cession, bringing it directly into the Union as a free state. [FN97] Taylor proposed to avoid the debate over territorial slavery by skipping the territorial stage, and admitting both California and New Mexico as free states. [FN98] Accordingly, he opposed the compromise bill prepared by Henry Clay and the Senate Committee of Thirteen, which would open Utah and New Mexico to slavery under territorial popular sovereignty, as the price of admitting California.The most important component of Taylor's policy was his declared willingness, as chief executive, to use military force to defend the Union against Southern threats of revolutionary secession. Referring in his annual message of December 1849 to the prospect of disunion, Taylor said: "Whatever dangers may threaten it, I shall stand by it and maintain it in its integrity to the full extent of the obligations imposed and the powers conferred upon me by the Constitution." [FN99] In discussions with political associates, he let it be known that he viewed secession as insurrection, and that as commander-in-chief he would personally take the field against any state that tried to withdraw from the Union. Like Andrew Jackson in the Nullification Controversy, he further specified that he would place an embargo on seceding states and blockade Southern harbors. Taylor was also determined to use force against Texas, should it *19 attempt to occupy the New Mexico territory. [FN100] To remove any doubt about his commitment to the Union, Taylor told Georgia Whigs Alexander Stephens and Robert Toombs that if they attempted to carry out disunionist action he would hang them as traitors. [FN101]The decisive event leading to resolution of the potential disunionist crisis occurred in July 1850, when President Taylor suddenly took ill and died. His death eliminated the near certainty of an executive veto of the comprehensive Senate compromise bill, and elevated compromise-minded Vice-President Millard Fillmore to the presidency. Thereafter the specific provisions of the Clay omnibus bill were enacted as separate measures.Taylor's policy for bringing free-soil California into the Union has been criticized as politically unrealistic, and lacking in national vision. The historical consensus is that a

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genuine crisis of the Union existed, which required a comprehensive settlement to give security to slavery and prevent secession. [FN102] In fact, devotion to the Union and the Constitution, and a firm grasp of the rightness and legitimacy of California statehood, based on the principles of the Declaration of Independence, gave Taylor's policy a prudence that confounded political contemporaries and later historians. The sound historical conclusion is that Taylor, correctly and realistically understanding the proslavery political mind, saw that needless compromise on behalf of slavery was more dangerous to liberty and Union than forthright defense against revolutionary secession.In the Compromise of 1850, Congress placated the South by offering recognition of moral equivalency with the free states, and the hope of perpetuating slavery through territorial popular sovereignty. Yet, not resting on the personal commitment and co-promising that mark genuine compromise, the sectional adjustment proved a temporary palliative, incapable of arresting the disintegrating force inherent in proslavery state sovereignty. [FN103] California statehood, an exercise of popular self-government under social contract theory, was decisive in clarifying the integrative force of the republican consent principle. The admission of California, observed Constitutional historian Andrew C. McLaughlin, "brought the slaveholders face to face with the weakness of their peculiar institution; they saw the need of the artificial aid of the national government if slavery was to maintain itself against the power of free labor and the mighty energy of the North." [FN104] California's admission broke the equilibrium rule of free and slave state parity in the government of the Union. Inducing a sense of impending doom, it caused slaveholders to commit their communities to a struggle for self- preservation for the sake of slavery. The people of California, claiming the right of self-preservation for the sake of liberty, affirmed the historical purpose and philosophical end of the consent principle under social contract theory. Hubert Howe Bancroft was right in concluding: "The truth will have to be acknowledged that the admission of California as a free state led to the war of the rebellion." [FN105]In the nation as a whole, as in the microcosm that California represented, a fundamental moral choice had to be made about the social organization of American society. Ambiguity about the moral basis of popular self-government, a necessary consequence of the compromise over slavery in the framing of the Constitution, could no longer be sustained. The people of California, antislavery by instinct as well as precept, were concerned that even a temporary incursion of slaveholders would discourage the formation of republican society based on free labor. [FN106] California statehood, an exercise of the right of revolution and popular self-government under social contract theory, showed the practically reciprocal, if not

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organically symbiotic, relationship between liberty and Union as principles of American nationality. We may conclude that the principle of popular sovereignty, which Lincoln said was given "tangible *20 form in the Declaration of Independence," found just application in the free state constitution movement that brought California into the Union.

[FNa1]. Professor of History, University of Maryland; Ph.D., University of Washington, 1966. Dr. Belz is the author of five books and numerous articles on Constitutional and civil rights issues, including EQUALITY TRANSFORMED: A QUARTER CENTURY OF AFFIRMATIVE ACTION (1991) and A LIVING CONSTITUTION OR FUNDAMENTAL LAW? AMERICAN CONSTITUTIONALISM IN HISTORICAL PERSPECTIVE (1998).

[FN1]. John T. Scott, The Sovereignless State and Locke's Language of Obligation, 94 AM POL. SCI. REV. 547-61 (2000).

[FN2]. Speech in United States House of Representatives: The War with Mexico, Jan. 12, 1848, in 1 COLLECTED WORKS OF ABRAHAM LINCOLN 431 (R. Basler ed., 1953).

[FN3]. Id. at 438.

[FN4]. Id.

[FN5]. See further Bayrd Still, California's First Constitution: A Reflection of the Political Philosophy of the Frontier, 4 PAC. HISTORICAL REV. 221-34 (1935).

[FN6]. See, e.g., GLENN W. PRICE, ORIGINS OF THE WAR WITH MEXICO: THE POLK- STOCKTON INTRIGUEE (1967); WILLIAM HENRY ELLISON, A SELF-GOVERNING DOMINION: CALIFORNIA 1849-1860 at 1-3 (1950).

[FN7]. See ROBERT GLASS CLELAND, A HISTORY OF CALIFORNIA: THE AMERICAN PERIOD 205 (1922)

[FN8]. WALTON BEAN, CALIFORNIA: AN INTERPRETIVE HISTORY 75 (2d ed. 1973).

[FN9]. Id. at 61.

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[FN10]. FREDERICK MERK, MANIFEST DESTINY AND MISSION: A REINTERPRETATION 72 (1963).

[FN11]. Scott, supra note 1 at 552.

[FN12]. JOSIAH ROYCE, CALIFORNIA: FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO, A STUDY OF AMERICAN CHARACTER 130 (1948).

[FN13]. See NEAL HARLOW, CALIFORNIA CONQUERED: WAR AND PEACE ON THE PACIFIC 1846-1850 at 103 (1982).

[FN14]. ELLISON, supra note 6, at 2-3.

[FN15]. ROYCE, supra note 12, at 56.

[FN16]. See HARLOW supra note 13, at 103.

[FN17]. BEAN, supra note 8, at 125.

[FN18]. THEODORE GRIVAS, MILITARY GOVERNMENTS IN CALIFORNIA 1846-1850 at 9- 10 (1963).

[FN19]. HARLOW, supra note 13, at 265.

[FN20]. See ROBERT FAULKNER, THE FIRST LIBERAL DEMOCRAT: LOCKE'S POPULAR GOVERNMENT (forthcoming) (manuscript at 14, on file with author). William Henry Ellison, critical of the American settlers, views in much the same terms the philosophical ground of the "home rule" movement that protested military government: "This was in the natural order of things, because Americans are prone to criticize authority, especially if it is military, for they reason that military government has no place in time of peace." ELLISON, supra note 6, at 15.

[FN21]. 4 MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1908 at 494 (James D. Richardson ed., 1909).

[FN22]. Id. at 589-90.

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[FN23]. Id. at 599.

[FN24]. Id. at 596.

[FN25]. Id. at 638.

[FN26]. See GRIVAS, supra note 18, at 205.

[FN27]. Letter from James Buchanan to W.B. Voorhees, Oct. 7, 1848, quoted in Cross v. Harrison, 16 How. (57 U.S.) 164, 184-185 (1850).

[FN28]. ROYCE, supra note 12, at 201.

[FN29]. See George M. Dennison, Martial Law: The Development of a Theory of Emergency Powers, 1776-1861, 18 Amer. J. Legal Hist. 52 (1974).

[FN30]. GRIVAS, supra note 18, at 224.

[FN31]. Id. at 222.

[FN32]. An alcalde was something of a combination between a mayor and a justice of the peace; an office which combined judicial and executive power in a manner offensive to American founding principles. See further Myra K. Saunders, California Legal History: The California Constitution of 1849, 90 LAW LIBR. J. 447, 448 (Summer, 1998) ("As the sole civil officer in the Spanish colonial scheme, the alcalde functioned in various roles: mayor, arbitrator, justice of the peace, trial judge, and legislator.")

[FN33]. HARLOW, supra note 13, at 326. Harlow provides the most thorough and balanced account of government and politics in the period of military rule.

[FN34]. Id. at 314-15.

[FN35]. CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA 66-71 (1914).

[FN36]. William E. Franklin, Peter H. Burnett and the Provisional Government

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Movement, 40 CAL. HIST. SOC. Q. 126-29 (1961).

[FN37]. Id. at 129.

[FN38]. ELLISON, supra note 6, at 17.

[FN39]. Franklin, supra note 36, at 132.

[FN40]. HARLOW, supra note 13, at 325; Franklin, supra note 36, at 130.

[FN41]. For more on the California Constitutional Convention of 1849, see Gordon Lloyd, Nature and Convention in the Creation of the 1849 California Constitution, 6 NEXUS 23 (2001).

[FN42]. President Polk stated in his annual message, December 5, 1848: The question is believed to be rather abstract than practical, whether slavery ever can or would exist in any portion of the acquired territory even if it were left to the option of the slaveholding States themselves. From the nature of the climate and productions in much the larger portion of it it is certain it could never exist, and in the remainder the probabilities are that it would not. RICHARDSON, supra note 21, at 640. Of course, this question had been central in the debate over annexing Texas, as well.

[FN43]. RICHARD H. SEWELL, BALLOTS FOR FREEDOM: ANTISLAVERY POLITICS IN THE UNITED STATES 1837-1860 at 193-94 (1976); 6 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA 313 (1890); GOODWIN, supra note 35, at 116-17.

[FN44]. Nathaniel Wright Stephenson, California and the Compromise of 1850, 4 PAC. HIST. REV. 114-22 (1935).

[FN45]. GOODWIN, supra note 35, at 110-12.

[FN46]. Id. at 132.

[FN47]. ELLISON, supra note 4, at 2 (Californians' "primary purpose was to govern, to promote and protect their own interests, without regard to the rights of men in general").

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[FN48]. See HARLOW, supra note 13, at 342.

[FN49]. Speech at Bloomington, Illinois (Sep. 4, 1848) in 3 BASLER, supra note 2 at 90.

[FN50]. Id. at 91.

[FN51]. Speech at Peoria, Illinois (Oct. 16, 1854) in 2 id. at 265.

[FN52]. CONG. GLOBE, 31st Cong., 1st Sess., App. 1531 (Aug. 12, 1850).

[FN53]. This view was most closely identified with Senator John C. Calhoun, who, during the Nullification Crisis of the 1830s, argued that the Constitution was a compact between the States, and, therefore, that states had the power to nullify federal laws they deemed unconstitutional. See generally WILLIAM W. FREEHLING, PRELUDE TO CIVIL WAR: THE NULLIFICATION CONTROVERSY IN SOUTH CAROLINA 1816-1836 (1966).

[FN54]. The most famous defender of this view was Daniel Webster, who explained it at length in his famous debate with Senator Robert Hayne. See 6 CONG. DEB. 35-41, 58-82, 92-93 (1830) ("The Constitution itself, in its very front ... declares that it is ordained and established by the people of the United States." Id. at 93).

[FN55]. James Madison was the leading advocate of this view. See, e.g., Speech in the Virginia Ratification Convention, (June 6, 1788), in Madison: Writings 362 (J. Rakove, ed., 1999); Letter to Edward Everett, Aug. 28, 1830, in MADISON: WRITINGS 842 (J. Rakove ed., 1999); DREW MCCOY, THE LAST OF THE FATHERS: JAMES MADISON AND THE REPUBLICAN LEGACY (1989).

[FN56]. It is important to distinguish territorial self-government from the popular sovereignty position adopted by Stephan A. Douglas and the Democrat party in the 1850s as a means of dealing with the slavery question. A legitimate concept of territorial self-government was grounded on the fact that from the beginning of the American Union national territories were never regarded as mere landed possessions, but rather as republican political communities in process of formation, whose end was admission into the Union as a state on the basis of equality with the original states. Inhabitants of territories described themselves as "citizens of the United States,

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resident in this Territory." According to constitutional historian Arthur Bestor: "In a very real and compelling though not easily definable sense, territories formed an integral part of the American Union, even though the latter was, by strict letter of the law, a Union of states." Arthur Bestor, Constitutionalism and the Settlement of the West: The Attainment of Consensus, 1754-1784, in THE AMERICAN TERRITORIAL SYSTEM 13, 44 (John Porter Bloom ed., 1973).

[FN57]. An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio, Art. 3, 1 Stat. 51, 53 n. a (July 13, 1787 re-enacted Aug. 7, 1787).

[FN58]. An Act to Authorize the People of Missouri Territory to Form a Constitution ..., Ch. 22, 3 Stat. 545 (Mar. 6, 1820).

[FN59]. DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 138 (1978).

[FN60]. DAVID M. POTTER, THE IMPENDING CRISIS 1848-1861 at 71 (1976).

[FN61]. RICHARDSON, supra note 21, at 641.

[FN62]. 5 RICHARDSON, supra note 21, at 27-29.

[FN63]. Id.

[FN64]. CONG. GLOBE, supra note 52, at 1534 (Aug. 13, 1850).

[FN65]. Id. at 1525 (Aug. 12, 1850).

[FN66]. Id. at 1535 (Aug. 13, 1850).

[FN67]. Id. at 1534.

[FN68]. Id. at 1523.

[FN69]. UNION AND LIBERTY: THE POLITICAL PHILOSOPHY OF JOHN C. CALHOUN 592- 94 (Ross M. Lence ed., 1992)

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[FN70]. CONG. GLOBE, supra note 52, at 1533.

[FN71]. Id. at 1522.

[FN72]. Resolutions and Address Adopted by the Southern Convention, Nashville, Tenn. 16 (June 3-12, 1850).

[FN73]. Id. at 8.

[FN74]. Id. at 13.

[FN75]. CONG. GLOBE, supra note 52, at 149 (Feb. 13, 1850).

[FN76]. Id. at 1550 (Aug. 15, 1850).

[FN77]. Id. at 1551.

[FN78]. Id. at 1522 (aug. 12, 1850).

[FN79]. Resolutions, supra note 72, at 13.

[FN80]. Id. at 16.

[FN81]. See CONG. GLOBE, supra note 52, at 263 (speech of Sen. Seward, March 11, 1850).

[FN82]. THE ESSENTIAL CALHOUN: SELECTIONS FROM WRITINGS, SPEECHES, AND LETTERS 385 (Clyde N. Wilson ed., 1992)

[FN83]. CONG. GLOBE, supra note 52, at 1534 (Aug. 13, 1850).

[FN84]. Id. at 1527 (Aug. 12, 1850).

[FN85]. Id. at 1535 (Aug. 13, 1850).

[FN86]. Id. at 1535.

[FN87]. U.S. Const., Art. IV, § 3 ("New States may be admitted into this Union; but

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no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.")

[FN88]. UNION AND LIBERTY, supra note 69, at 597-98.

[FN89]. CONG. GLOBE, supra note 46, at 313 (Feb. 25, 1850).

[FN90]. Id. at 1529-30 (Aug. 12, 1850).

[FN91]. Id. at 1536 (Aug. 13, 1850).

[FN92]. Id. at 261 (Mar. 11, 1850).

[FN93]. ELLISON, supra note 6, at 94-95.

[FN94]. POTTER, supra note 60, at 94.

[FN95]. Even Abraham Lincoln, who later described how California was "kept out of the Union, because she would not let slavery into her borders," felt at the time that "perhaps this was not wrong" because "the Union ... was thought to be in danger." Speech at Peoria, Illinois, (Oct. 16, 1854) in 2 BASLER, supra note 2, at 253.

[FN96]. WILLIAM J. COOPER, THE SOUTH AND THE POLITICS OF SLAVERY 1828-1856 at 275-79 (1978).

[FN97]. ELBERT B. SMITH, THE PRESIDENCIES OF ZACHARY TAYLOR AND MILLARD FILLMORE 129-30 (1988).

[FN98]. COOPER, supra, note 96, at 272.

[FN99]. 5 RICHARDSON, supra note 21, at 24.

[FN100]. K. JACK BAUER, ZACHARY TAYLOR: SOLDIER, PLANTER, STATESMAN OF THE OLD SOUTHWEST 303 (1985).

[FN101]. SMITH, supra note 97, at 104-05.

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[FN102]. See, e.g, 1 ALLAN NEVINS, ORDEAL OF THE UNION: FRUITS OF MANIFEST DESTINY 1847-1852 at 257 (1947); POTTER, supra note 60, at 96.

[FN103]. Cf. PETER B. KNUPFER, THE UNION AS IT IS: CONSTITUTIONAL UNIONISM AND SECTIONAL COMPROMISE 1787-1861 (1991).

[FN104]. ANDREW C. MCLAUGHLIN, LEWIS CASS 263 (1891).

[FN105]. BANCROFT, supra note 38, at 344.

[FN106]. DANIEL J. ELAZAR, BUILDING TOWARD CIVIL WAR: GENERATIONAL RHYTHMS IN AMERICAN POLITICS 14 (1992).END OF DOCUMENT

Law Library JournalFall, 1996

*488 CALIFORNIA LEGAL HISTORY: THE LEGAL SYSTEM UNDER THE UNITED STATESMILITARY GOVERNMENT, 1846-1849 [FNa1]

Myra K. Saunders [FNaa1]

Copyright © 1996 by the American Association of Law Libraries; Myra K.Saunders

WESTLAW LAWPRAC INDEXLIB -- Library Management & ResourcesProfessor Saunders examines the legal system implemented in California after its occupation by the United States in 1846, but prior to statehood, and reviews the

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materials available for researching the legal history of this period.

IntroductionThe legal system established by the early state legislators was not only a product of the Anglo-American legal culture in which those men were raised, but it was also a very pointed rejection of the legal systems, both Spanish-Mexican and military, that preceded statehood in California. This is the second in a series of articles that explore the legal framework of historic California and the materials available to research California legal history. The first article covered the period of Spanish and Mexican rule in California before its acquisition by the United States. [FN1] This paper examines the legal system implemented after the United States occupation in 1846. It includes an annotated bibliography of materials helpful to this research.

Historical BackgroundCalifornia was first identified by the Spanish in the mid-sixteenth century, but colonization of California did not occur for more than 125 years. Mexico (which.then included California) rebelled against Spain and gained its independence in 1821. The Mexican-American War began in 1846 and the United States occupied California in July of 1846. Gold was discovered in California *489 in January of 1848. California was ceded to the United States by the Treaty of Guadalupe Hidalgo in the spring of 1848. [FN2] The California Constitutional Convention was held in fall of 1849 and the government was turned over to civil officials in December of that year. California became a state on September 9, 1850. [FN3]California was thinly populated prior to its acquisition by the United States. Estimates of the non-native population do not exceed ten thousand in 1846, with well over two-thirds of that number being Latino. [FN4] Estimates of the Native American population prior to 1850 range from 130,000 to 250,000 (many Native Americans lived in areas unknown and unexplored by the early non- native settlers). [FN5] Once gold was discovered, the non-native population began to grow significantly: the non-native population of California had risen to over fifty thousand by the winter of 1849, [FN6] and had risen to over 150,000 by 1850. [FN7]Some of the difficulty that Anglo-Americans had in understanding the Spanish and Mexican system is attributable to the fact that the immigrants coming to California after 1846 never experienced it. Many immigrants confused the Spanish-Mexican system with that of the military regime. Despite articulated intentions to the contrary, the military governors of California and their civil officers dramatically altered the

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Spanish-Mexican legal system. Beyond this, the new immigrants' desire for land conflicted sharply with the military government's determination to respect Mexican land laws and to discourage the acquisition of property outside of pueblo (town) limits. The validity of claims to lands acquired during the Spanish, Mexican, and military periods was an important legal issue for the latter half of the nineteenth century. In addition, the discovery of gold in January 1848 had a profound effect on the governmental scheme, as the mining camps were located in areas largely not colonized by either the Spanish or Mexicans. Coupled with the fact that the military government exerted little, if any, control over the mining camps, this effectively created a large number of completely independent townships functioning entirely under their own sets of rules, but often utilizing the Spanish-Mexican nomenclature. The local laws developed for protecting gold mine claims in the California mining camps became the foundation of United States mining law.*490 It is hardly surprising that the Anglo-American immigrants' devotion to their own legal institutions, particularly the jury, and their unwavering pursuit of land, gold, and other profit prevented the civil authorities and the legal community from maintaining the existing Mexican system. In addition, the federal government's lack of clear direction to the military governors and its delay in implementing civil government after the war led to a number of problems. The military government's rigid, narrowly construed, and inconsistent interpretation of its own authority produced a system that did not respond adequately to the needs of a rapidly growing population. Moreover, the military government's failure to publish and distribute the text of Mexican laws was in no small part responsible for fostering hostility toward the legal system.

United States Acquisition of CaliforniaEven before the war with Mexico in 1846, the United States had been interested in acquiring California. This fact had been clumsily telegraphed in 1842, when United States troops led by Commodore Thomas Jones raised the United States flag in Monterey, erroneously believing that war between the United States and Mexico had broken out. Under instructions from President Polk, United States Consul Thomas Larkin, a U.S. citizen living in Monterey, worked actively toward California's secession from Mexico and its annexation by the United States. [FN8] Bancroft reports that the United States fleet had standing orders to occupy California immediately in the event of war between the United States and Mexico, or in the event of any attempt by European powers to occupy the area. [FN9] Bancroft observes, "California was to fulfil l its 'manifest destiny' and become a part of the

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United States." [FN10]War with Mexico was declared on May 13, 1846. In June of 1846, just before U.S. military occupation of California, the "Bear Flag Revolt," an insurrection against the Mexican Government led by disgruntled Anglo-American settlers, occurred. [FN11] This "revolt" was stymied when U.S. naval forces, under the command of Commodore Sloat, took possession of Monterey on July 7, 1846. Each time the United States occupied a pueblo, Sloat issued a proclamation promising Californians that "henceforth California will be a portion of the United States, and its peaceful inhabitants will enjoy the same *491 rights and privileges as the citizens of any other portion of that territory." [FN12] Sloat invited the existing civil officials to retain their offices until a new government could be implemented. [FN13] Permanent government under United States law seemed imminent.Commodore Sloat, who was ill, relinquished command to Commodore Robert Stockton on July 23, 1846, and sailed from California six days later. For a period of almost nine months following Sloat's departure there was a rebellion in Southern California; later, there was confusion concerning who was authorized by the federal government to act as military governor. [FN14] Both factors delayed the implementation of a new governmental scheme.While acting as military governor, Commodore Stockton declared California a territory of the United States. [FN15] He also produced a plan for the governance of California which seems closely modeled after the governmental structure set out in the Mexican laws of March 1837. [FN16] Stockton also reportedly drafted laws for the "territory" which were never published in California. [FN17] Stockton even made appointments to the legislative council called for in his plan. [FN18] While in office, Stockton appointed a number of Anglo-Americans to other civil offices and called for local elections which were held on September 15, 1846. [FN19]Stockton left California on January 19, 1847, and appointed General John Frémont governor of California, despite the presence of a more senior officer, Brigadier General Stephen Kearny. On February 12, 1847, Colonel Richard B. Mason arrived in California with clear orders from Washington authorizing Kearny to act as governor, and General Kearny began to assert control. [FN20] *492 Kearny issued a proclamation on March 1, 1847, that promised self-government was soon to come, but also made clear that California was not yet a part of the United States, that Mexican law would remain in force at least temporarily, and that the Stockton government would not be implemented. [FN21]On May 31, 1847, Colonel Richard Barnes Mason succeeded Kearny as military governor and he served until the spring of 1849. During his governorship, Mason was assisted by Lieutenant William Tecumseh Sherman. [FN22] He also appointed

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Lieutenant Henry Wager Halleck Secretary of the Territory [FN23] and William E. P. Hartnell official translator. [FN24] As governor during the greater part of the military regime, his administration established the bulk of the legal practices developed during this period and, consequently, his administration requires the closest scrutiny.Mason was succeeded by General Bennett Riley, who arrived in California in April of 1849. While governor, Riley convened a constitutional convention to permit the transfer of the government to civil authorities. Riley served as governor of California until mid-December of 1849, when the civil government began functioning.

The Legal Foundation of the Military GovernmentIn contemplating the various governmental schemes available for governing California, the United States government was limited by international law: "a military governor might suspend, but could not simply by virtue of his office, abolish any law of the country occupied by military authority." [FN25] Some years later, Halleck gave the following analysis of a conquering government's powers in his 1861 book on international law: *493 The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. Important changes of this kind are seldom made, as the conqueror had no interest in interfering in the municipal laws of the country which he holds by the temporary rights of military occupation. He nevertheless had all the powers of a de facto government, and can, at his pleasure, either change the existing laws, or make new ones. Such changes, however, are, in general, only of a temporary character, and end with the government which made them. On confirmation of the conquest by a treaty of peace, the inhabitants of such territory are, as a general rule, remitted to the municipal laws and usages which prevailed among them prior to the conquest. [FN26]This meant that any changes in the legal structure introduced by the military government would be temporary, with the permanent laws for California dependent upon the terms of any peace treaty and the subsequent actions of the legislature of the country (presumably the United States) that would permanently hold California.Earlier, in the fall of 1846, after occupying New Mexico, Kearny had issued a constitution and laws for the governance of the "territory" of New Mexico. President Polk, reacting to congressional criticism, declined to approve and recognize any "regulations" that attempted to establish a permanent territorial government for New Mexico while Mexico and the United States were still at war. [FN27] Polk, writing in reference to New Mexico, observed that:

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Such organized regulations as have been established in any of the conquered territories for the security of our conquest, for the preservation of order, for the protection of the rights of the inhabitants, and for depriving the enemy of the advantages of these territories while the military possession of them by the forces of the United States continue, will be recognized and approved. [FN28]The military leaders took a more conservative course in California and decided to continue the existing Mexican legal structure rather than implement a new temporary government and laws. [FN29] Mason, just days after assuming office, made it clear that civil government, as promised by Sloat and Stockton, would not be forthcoming: *494 No political rights can be conferred on the inhabitants thus situated, emanating from the Constitution of the United States. That instrument established a form of government for those who are within our limits, and owe voluntary allegiance to it, unless incorporated, with the assent of Congress, by ratified treaty or by legislative act, as in the case of Texas. Our rights over enemies' territories are only such as the laws of war confer, and theirs no more than are derived from the same authority. [FN30]The next day Mason demonstrated that he also understood that the Anglo- American settlers' very different expectations would place them in ongoing conflict with the military government: "[M]any of my countrymen in California labor under a mistake in believing that, because we are in possession of the country, we are under the constitution and laws of the United States." [FN31]Having decided to maintain the Mexican system, the next question for the Mason administration was which Mexican laws to enforce. The Mexican laws of 1837 (and the Spanish colonial laws) had provided the framework for a legal system that, if implemented, could have established a more sophisticated system for responding to the needs of California's growing population. [FN32] But Mason defined his role narrowly and was willing to carry forward only those laws that had actually been implemented in California at the time of the United States conquest. The court system and government offices outlined in the Mexican laws of 1837 had, for the most part, never been implemented in California, but alcaldes (mayors in the Spanish tradition, who also possessed judicial and other powers) had been functioning in California since the late eighteenth century. Consequently, Mason would recognize only the alcalde system and would not establish any of the other courts, or other governmental offices, called for in the Laws of 1837.The alcalde was the key, and in most areas the only, civil official in Spanish and Mexican California. [FN33] The office of the alcalde was a frontier office designed to function in remote, sparsely populated areas. As the sole civil officer, the alcalde could serve as mayor, arbitrator, justice of the peace, trial judge and, in some

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instances, legislator. This combination of powers in one official provoked much criticism from later settlers from the United States schooled in the separation of powers inherent in the United States government.In addition, the principal goal of the alcalde system was to maintain peace within the civilian population by resolving conflicts and disputes without litigation, to the satisfaction of both parties. For this reason, this system was not as focused on the written law or the strict enforcement of judgments as was the common-law system. These very characteristics set the Anglo-Americans *495 who encountered this system, particularly those who were merchants, against it. Even before United States occupation of California, most Anglo- Americans viewed the Spanish-Mexican legal system as inadequate, primitive, and unsuccessful in administering justice, but this sentiment intensified after the conquest.Despite these problems, continuation of the alcalde system appeared sound to the military leaders, who felt that it would be administratively convenient to enforce. [FN34] As it turned out, the unpopularity of the system probably created more problems for the military government than it solved. Stockton's earlier plan envisioned implementing a governmental structure (perhaps coincidentally modeled closely on the Mexican laws of 1837) that permitted more participation by the inhabitants and provided a fuller range of governmental services. Had Mason more fully implemented the laws of 1837, or introduced temporary but clearly "American" laws and structure early on, much conflict might have been avoided. [FN35]

The Legal System Under Military RuleDuring the tenure of the military government, the governor's office advised the alcaldes, other officials, and, less frequently, individuals on the law. [FN36] Much of the legal work was handled by Halleck, who had charge of the California archives, which included copies of many of the relevant Spanish and Mexican legal documents. [FN37] On occasion, Mason (and later Riley) or Halleck would supply the alcaldes with summaries or copies of relevant laws. [FN38] The government *496 had access to some common-law materials as well. [FN39] Documentation establishes that at least some of the Anglo- American alcaldes also had independent access to legal materials. [FN40]Mason narrowly defined the role of the alcaldes [FN41] and exerted fairly close scrutiny over them. [FN42] Even though alcaldes had been elected under Mexican law, Mason insisted upon appointing alcaldes himself and would not recognize elections unless specifically sanctioned by him or his predecessors. [FN43]Despite the government's official stance that Mexican laws were to remain in force,

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[FN44] much of the law immediately began to change, "stretching the poor powers of the alcalde of Spanish civil law beyond recognition." [FN45] The most significant factor in promoting change was quite simply that Anglo-Americans were being appointed as alcaldes. [FN46] In a system where the alcalde's own sense of justice and legal values were of paramount importance in resolving conflicts, it is hardly surprising that the Anglo-American alcaldes' common-law-inspired *497 legal values were immediately infused into the system. [FN47] Eight months into Mason's governorship, a letter to the editor was published in the San Francisco paper, the California Star, confirming that, in the absence of Mexican legal materials, the Anglo-Americans were looking to common-law sources for guidance. [FN48] By May of 1849, the government officially sanctioned this practice: In the absence of positive law, we must be governed by custom and general usage in this country, and in the absence of both law and precedent, the laws and usages of other States and Territories, in like cases, should be referred to, to guide our decisions. [FN49]The most highly revered value of the Anglo-American community was that of the right to a jury trial and, accordingly, juries were introduced at the earliest opportunity. [FN50] Alcalde Walter Colton of Monterey took credit for initiating the first jury trial on September 4, 1846. [FN51] By February of 1847, jury trials were considered almost routine. [FN52] Juries for civil trials became official government policy on December 29, 1847, when Mason issued a proclamation declaring that cases involving more than one hundred dollars should be decided by a jury of six men. [FN53] Similarly, he approved the use of twelve-man juries in criminal trials. [FN54] The first alcaldes of each district were given jurisdiction over criminal matters. [FN55] For particularly significant cases, Mason sometimes established special tribunals. [FN56] Later, after the signing of the treaty between the United States and Mexico, when any modifications to the Mexican legal system should have been revoked, government correspondence indicates an intent to continue this rather fundamental alteration of Mexican legal tradition: "The practice of trial by jury, in criminal cases, was introduced into California previous to the *498 treaty of peace, and it is believed that such practice is now in accordance with usage and not contrary to law, and when desired, should be permitted." [FN57]Under the laws of 1837, [FN58] capitals and coastal towns with populations of four thousand, and interior towns with populations of eight thousand (as well as towns which had ayuntamientos, or town councils, prior to 1808), were entitled to have an ayuntamiento, which was responsible for the policing, health, comfort, ornament, order, and security of their respective jurisdictions. The ayuntamientos were also authorized, subject to approval by the central authorities, to enact necessary

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legislation, and the alcalde was authorized to vote in the ayuntamientos. Within the pueblo, the alcalde also had executive, or mayoral, functions. [FN59] The alcalde had the duty of implementing legislative acts and orders of the regulations, laws, decrees, and orders issued by the central government and the local ayuntamiento. [FN60] In pueblos lacking an ayuntamiento, the alcalde also had the power to issue ordinances. [FN61] As the populations in various areas increased, Mason would permit town councils to convene. In July of 1847, for example, Mason authorized the establishment of a town council for San Francisco which was to promulgate local laws and legislation. However, Mason parted with the Spanish and Mexican practice and permitted the alcalde a vote only in the case of a tie. [FN62]

The Publication of Laws by the Military GovernmentDespite the de facto incorporation of common-law principles into the Mexican legal structure, immigrants continued to criticize the legal system. Many newcomers were troubled by the alcalde's combined role of jurist, legislator, and mayor. A series of overstated editorials in the California Star expressed the Anglo-American discomfort with a system that seemed to lack the checks and balances of the U.S. system. [FN63]In January 1847, the California Star issued an editorial that indicates the lack of published laws was a large part of the Anglo-Americans' objections to the system in force: The written laws of the country can easily be obtained and published, and for the convenience of the people, it ought to be done at once. The people are now in the situation of the subjects of the tyrant who had his laws written, but placed them so high *499 that they could not be read by the people, consequently many ignorantly violated them and lost their lives and property. [FN64]However, as another commentator has pointed out, "[t]he 'tyranny' of the alcalde was that he tended to protect the rights of the old settler, or confined the newcomer's activities to the old ways of doing business." [FN65]A later editorial, published in March of 1847, again strongly denounces the lack of access to written law. This editorial introduces the argument that the government's failure to publish the law was tantamount to a governmental admission that there was no law to publish. But a passage normally edited out by prior commentators makes it clear that the local laws and procedures were clearly known to and, more or less, followed by the Anglo-Americans: Both sides, however, seem to agree that the "former usages" have been in force from the fact that the two late Alcaldes, W. A. Bartlett and George Hyde, while they had the honor to occupy the HONORABLE BENCH of this place, adhered pretty closely to

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them. It is unnecessary for us to say what the former usages were, as they are so generally known." [FN66]A March 1848 California Star editorial reveals that the inconsistency of the government's formal position that Mexican laws must be enforced, and its simultaneous implementation of a number of changes, had not gone unnoticed by the inhabitants. Once again, the production of a code of laws better suited to local conditions was urged. [FN67]In the spring of 1848, rumors of a proposed code surfaced in the newspapers, [FN68] and a letter from Mason confirms that he had begun to work on upcoming publication of a code or set of laws to provide guidance to the alcaldes and the general populace. [FN69] In early May, other articles were published *500 announcing that Mason had abandoned these plans. [FN70] By late May, Mason apparently had revived his plan to issue a code, [FN71] but the lack of manpower due to the gold rush delayed the code's publication. In October, after news reached Mason that the war had ended (the Treaty of Guadalupe Hidalgo had been signed in February and ratified in May), he decided not to release the code he had produced. [FN72] Apparently, the code was completely suppressed and no copy was publicly available until 1923. [FN73]The full title of the code Mason drafted is: Laws for the Better Government of California, "the Preservation of Order, and the Protection of the Rights of the Inhabitants," during the Military Occupation of the Country by the Forces of the United States (hereinafter the Mason Code). [FN74] The title page is inscribed with the phrase: "Not published in consequence of the news of peace," which is signed by J. L. Folsom.Despite the fact that it was never implemented, the Mason Code is intriguing, for it offers insight into what Mason felt were the areas of law most needing clarification or modification. In contrast to what one might expect, [FN75] the Mason Code begins with a provision making it very clear that the code is not a translation of Mexican or Spanish statutes: "The laws and usages which have hitherto prevailed in California, that have not been abolished by this code , shall remain in force, so far as they are in conformity to, and do not conflict with these laws." [FN76] A closer examination of the text confirms that it is not a *501 translation of Mexican law. The provision for burglary, for example, is pure common law. [FN77]The promulgation of a non-Mexican code of laws was a clear reversal of Mason's official position that the prior laws and usages were to remain in force. The Mason Code is not a comprehensive document. It certainly does not alter the general governmental scheme, as it fails to establish a civil governor or state or local legislatures; neither does it provide a general civil code. The code does create a judicial system, including public prosecutors, jurors, sheriffs, jails, enforcement and

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probate proceedings, and a penal code. The code retains the use of alcaldes, but for minor matters more in keeping with the Mexican laws of 1837.As discussed earlier, both Mason's and Sherman's correspondence make reference to having access to the statutes of Missouri and a digest of the laws of Texas, [FN78] and the California Star reported the use of the Missouri statutes in an alcalde's court. [FN79] Kearny's transmittal accompanying the laws promulgated for New Mexico in 1846 specifically cites both Texas and Missouri statutes as sources of the New Mexico laws. [FN80] Although the Mason Code is much longer, its structure, as well as its language in many sections, is identical to corresponding sections in the "Laws for the Better Government of the Territory of New Mexico." [FN81] Given this, a comparison of the Mason Code's provisions with those of Missouri and Texas is called for. [FN82]The language of the penal provisions are quite close to those of Missouri, [FN83] not surprising when dealing with common-law crimes. At the same time, the *502 Mason Code, as one might expect, lists far fewer crimes and fewer distinctions in degree. The chapter and title wording is also close to that of the Missouri code. There is much less similarity to the text of the digests of Texas statutes. Given this, it would appear that the Missouri statutes served as the primary inspiration for the Mason Code. Even assuming that the provisions were directly modeled on the Missouri statutes, a fair amount of editing and reorganization would have been required just to produce the Mason Code's penal provisions. To produce the entire code, one would have needed to read through the provisions of all the other Missouri titles (a significant task by itself), rearrange the sections, and amend various sections to meet local needs. This would have been a major project.Given the complaints from inhabitants regarding the lack of access to Mexican laws, it is mystifying why Mason would produce a written code merely incorporating by reference the Spanish-Mexican laws and not providing access to translations or summaries of the Spanish texts to be continued in force. Since Mason apparently had intended to have the Mason Code translated into Spanish, [FN84] there seems little reason why relevant Spanish statutes could not have been translated into English. A year later, Halleck observed that the Louisiana Civil Code was essentially identical to the Spanish law. [FN85] To the extent that this is true, it would appear that, at the very least, Mason could have secured copies of the Louisiana Code, as he did for Missouri and Texas, and incorporated relevant sections into the Mason Code.Issuance of the Mason Code as "temporary regulations" for the governance of California during military occupation would clearly have been within Mason's power during the war with Mexico. Once Mason had received news of peace, his authority changed, and it became debatable whether he was any longer authorized to govern:

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"technically from the moment of ratification of the treaty the military rule was ended, and hence ceased to have obligatory authority." [FN86] Mason was mindful of this fact. He wrote to Adjutant General R. Jones on August 19, 1848, twelve days after issuing the proclamation announcing peace, and revealed his private misgivings about continuing to act as governor. [FN87] As it turns out, Mason's decision to continue the military government *503 after the war ended was later condoned by the United States Supreme Court. [FN88]Even given that Mason retained the authority to govern, Mason's power to alter the "existing laws and usages" diminished significantly after the war had ended. A letter written by Halleck in 1849 demonstrates the military regime's understanding of the limited power retained by that government once peace had been declared: Neither Governor Mason nor Governor Riley [Mason's successor] has claimed authority to make any new laws for California since the war, that power being vested in Congress alone..." [FN89]For guidance on this matter, the military government looked to a Supreme Court decision relating to the United States' acquisition of Florida, which held that upon transfer of a territory from another country to the United States upon ratification of a treaty of peace, the municipal law "remains in force until altered by the newly created power of the state." [FN90] Given this, it can be inferred that the news of peace led Mason to conclude that he had little legal choice but to suppress the code and hope that the federal government would soon provide a suitable governmental structure.The Mason Code must be viewed as the product of the high degree of frustration and anxiety he felt in governing a territory being overwhelmed with immigrants afflicted with both gold and land fever and loudly insisting upon their right of self-government. But the unpopularity of the alcalde system as implemented by the United States military government stems, at least in part, from its unsuitability for dealing with the more complex problems faced by California society after the large influx of settlers from the United States. Had Mason followed the plan developed by Stockton, and actually enforced by his successor Bennett Riley, and implemented the laws of 1837, many problems might have been avoided. [FN91] For someone insisting upon a conservative interpretation of the limits of his authority, this would have seemed to have been a safer path to follow.*504 Finally, ten months later, some Mexican laws were published by the military government. In July of 1849, in conjunction with implementing the governmental scheme set out in the Laws of 1837, Mason's successor Riley had the Halleck and Hartnell English translation of the 1837 Mexican laws published. [FN92] However, the government neglected to publish any substantive law translations, once again failing to meet the need for access to substantive Mexican law.

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Land Transfers During Military RuleGovernor Mason was generally disapproving of the transfer of land during the period of military rule. Both his and his successor's administrations refused to make any grants, [FN93] invalidated (or expressed grave doubt about the validity of) any transfers about which they were consulted, [FN94] and expressed a desire to respect the rights of the Mexican citizens in this regard: " e mmigrants coming into the country who wish their own rights respected should not violate the rights of others--the natives and adopted citizens." [FN95]Many settlers coming to California after United States acquisition expected to find free land available to them as had been the case in other frontier areas. [FN96] It was deeply irritating to these settlers to come to California only to find that much of the cultivatable land had already been distributed to huge ranches: Hundreds, yes, I may say thousands of our countrymen, are annually arriving in the country, and being generally farmers, their first object is to secure a tract of land, to do which, under existing circumstances, especially in the settlements, is utterly impossible; let them apply where ever they may, and to whomsoever they may and the result is invariably the same, they are repulsed with an indignant "this is mine." [FN97]*505 The difficulty in obtaining land undoubtedly influenced the newcomers' attitudes toward the existing legal structure. But despite claims that the Mexican legal system was invisible, these newcomers showed themselves quite capable of discovering the powers of the town council and alcaldes to make grants of pueblo properties and many Anglo-Americans attempted to manipulate the system to secure land. [FN98] Governor Mason was critical of alcaldes who helped newer immigrants obtain grants not in compliance with Mexican laws. [FN99]In March of 1849, at Mason's request, Halleck produced a report on Spanish and Mexican land grants, which was published in 1850. [FN100] The report had four major parts: public lands; mission property; lands of importance for strategic or governmental purposes; and translations of relevant Spanish and Mexican documents. [FN101] Much of the information of the secularization of the missions had been included in a letter from Halleck to Colonel J. D. Stevenson in July of 1848, making clear that Halleck had been studying this issue for some time. [FN102] Halleck doubted the validity of many of the transfers and his analysis presaged that of the United States government in confirming grants. [FN103]*506 In its civil correspondence, the government began to express a general policy position on the alienability of California lands:

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As questions are frequently asked respecting town lands, I am directed to say that the most recent law on the subject that can be found in the government archives gives to the council (Ayuntamiento) power to sell out in building lots (solares) the municipal lands (proprios) which have been regularly granted to the town; but the common lands (egidos) so granted cannot be sold without special authority. All public lands without the limits of the town form a part of the public domain, and can be disposed of only by authority of Congress. [FN104]The military government had an excellent understanding of the Spanish and Mexican land law, but the military government's determination to respect those laws placed the administration in ongoing conflict with many of the newer settlers. At the same time, it would seem that many of the government's problems with inhabitants might have been significantly reduced had the government disseminated general information about Mexican law to the public early on, giving the public opportunities, however limited, to acquire land legitimately.

Law in the Mining CampsGold was discovered outside of Sacramento in January 1848 (just before the signing of the treaty with Mexico ceding California to the United States). By the end of 1848, a strip two hundred miles long in the foothills of the Sierra Nevada mountains (along the eastern border of California) was being mined. [FN105] In 1848 over five million dollars' worth of gold dust was taken from California gold fields; that output increased to fifty million dollars in 1850. [FN106] Between 1848 and end of the mining season of 1849, the non- native population in California quadrupled to over fifty thousand [FN107] and virtually every immigrant had come seeking gold: The discovery of these vast deposits of gold has entirely changed the character of Upper California. Its people, before engaged in cultivating their small patches of ground and guarding their herds of cattle and horses, have all gone to the mines, or are on their way thither; laborers of every trade have left their work-benches, and tradesmen their shops; sailors desert their ships as fast as they arrive on the coast, and several vessels have gone to sea with hardly enough hands to spread a sail; two or three are now at anchor in San Francisco with no crews on board. [FN108]The mining area was hundreds of miles from the capital, then at Monterey. Servicemen were not immune to gold fever, and soldiers began deserting to *507 pan for gold themselves, leaving the military government with little enforcement power anywhere in California. [FN109] Consequently, the military government made little effort to govern the gold country. [FN110]In addition, at the time that gold was discovered in California, there was no developed

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mining law in the United States. [FN111] On February 12, 1848, just after the discovery of gold, Mason abolished the "Mexican laws and customs now prevailing in California, relative to the denouncement of mines ..." [FN112] As a result, the miners were left with neither Mexican nor United States laws to regulate the mining of gold.In more populated mining areas, the need for effective management of mining claims coupled with concerns about personal safety to produce local solutions: miners began to form associations and rules. [FN113] All in all, close to five hundred mining camps (each with its own camp rules) were organized in the California gold region. [FN114]Conflicts and crimes in the mining camps were dealt with by company meetings or mining courts, similar to town meetings, where every man had a vote and the majority ruled. [FN115] The miners elected officers they called alcaldes [FN116] to serve as judges; they also elected sheriffs to enforce their judgments. *508 A significant factor in the military's acceptance of local control of the mining districts was the perceived effectiveness of the camps' officers in keeping order, [FN117] but it is clear that, in doing so, basic rights and procedural safeguards were often ignored. More than one author reviewed accounts of mining camp governments' handling of criminal matters and concluded that mining camp criminal law was often little more than "lynch law." [FN118]In contrast, the law developed in the mining camps of California for regulating mining claims became the foundation of United States mining law. [FN119] Some authors have viewed the camp laws as highly original: "In matters such as those relating to mining claims and water rights, the customs, usages and practices at the diggings were developing a whole new structure of positive law, referring for its origin to neither the civil law of Spain nor the common law of England." [FN120] In fact, the mining camp laws were derivative and drew heavily on both European and Spanish colonial mining practices, [FN121] reflecting the miners' own values and backgrounds. [FN122]The California state government was to continue the military government's hands-off policy toward mining claims: "[t]hus a body of self-established [mining] law grew, side by side, with the Constitution of 1849 and its governmental institutions." [FN123] The Civil Practices Act in 1851 [FN124] specifically incorporated local mining camp laws. [FN125]Most of the western states adopted laws modeled on California mining laws in their own legislative schemes. [FN126] In 1866, when the federal government began to legislate in this area, the Congress also legally recognized the claims established by local regulations: This bill [of 1866] is nothing more or less than putting into the form of a congressional act those local laws, which practical experience of sixteen years has

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induced the miners of the Pacific Slope to adopt as the "Rules and Regulations" by which they have almost unanimously agreed among themselves to be governed, in the absence of all legislative enactments. [FN127]*509 Thus the mining laws of the Gold Rush Era stand as the only laws of the period that survived into statehood.

The Post-War Military Government and the Transition to Civil RuleWhen the war with Mexico ended, the United States government took the position that: [t]he termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. [FN128]The Anglo-American settlers were not convinced by this argument and their reluctance to submit to military rule increased significantly after peace was declared. As a result, the "Provisional Government Movement" developed and its followers took part in large and vocal open meetings in various settlements (which were heavily reported by the press). The thrust of the movement's argument was that the military government's right to rule under international law ceased upon ratification of the Treaty of Guadalupe Hidalgo. Since Congress (stalled by the debate over slavery in the territories) had failed to implement a territorial government, the military government was the de facto government, but it could lead only at the will of the people. Should the people withdraw that support (and the protest meetings and repeated complaints against military rule were cited as evidence that support had been withdrawn), the inhabitants were themselves empowered to implement temporary government while awaiting Congressional action. [FN129] An inflammatory letter from U.S. Senator Thomas H. Benton of Missouri appeared in the Alta Californian and endorsed the Provisional Government Movement's position: "Having no lawful government, nor lawful officers, you can get none except by your own act; you can have none that can have authority over you except by your own consent. Its sanction must be in the will of the majority." [FN130] Yet even Benton *510 advised against changing the present legal system: "Avoid new codes of law until introduced by permanent authority." [FN131]

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Resistance to the continuation of the military government culminated with the establishment of committees throughout Northern California for the purpose of establishing a provisional civil government. [FN132] Inhabitants of San Francisco went one step further and established a legislative assembly which began passing laws [FN133] that did not "conflict with the constitution of the United States," and that were not "repugnant to the common law." [FN134]In April of 1849, General Bennett Riley arrived in California to relieve Mason as governor. [FN135] On June 3, 1849, Riley issued a proclamation in which he defined his authority: "In the absence of a properly-appointed civil governor, the commanding officer of the department is, by the laws of California, ex officio civil governor of the country..." [FN136] This proclamation emphasized the need for the population to respect the laws in force at the time of conquest. [FN137] Recognizing that the inhabitants would insist upon some changes, but unwilling to exceed the bounds of his authority, Riley *511 went on to announce the implementation of the governmental structure set out in the Mexican laws of 1837. [FN138]However, the continued failure of Congress to act, combined with the increasing Anglo-American frustration with the alcalde system, created a volatile situation. This state of affairs prompted Riley to make a further concession. Riley closed the proclamation with the announcement of his plan to call for a convention to "frame a State constitution, or a territorial organization, to be submitted to the people for their ratification, and then proposed to Congress for their approval." [FN139] He announced a general election on August 1, 1849, for the purpose of electing civil officers called for in the Mexican laws as well as delegates to the constitutional convention. [FN140] By the time Riley submitted a report to Washington on June 30, 1849, he was able to report that most of the unrest had been quieted. [FN141]Elections were held and executive appointments made to fill the offices of the civil government. Once having implemented the civil government so sought by the Anglo-Americans, Riley was careful to require that those offices not be circumvented. [FN142] Transition to civil rule had begun.

ConclusionAs the United States had intended to acquire California for some time, one of the more puzzling aspects of the conquest is the apparent lack of thought given to how the territory would be governed until civil government could be implemented. Had more thought been given to this issue in Washington, and clearer orders delivered to the military governors, many of the problems encountered by the transitional military governments might have been avoided, despite the fact that the debate in Congress

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over slavery prevented the implementation *512 of a permanent civil government. Even absent better planning by the federal government, had the population and demographics of the conquered territory remained more static, the transitional military government might have been more successful. But the discovery of gold changed California forever, bringing with it a huge increase in population, who expected and demanded an American government and legal system, and the concomitant need for a legal framework that lent itself to the governing of a rapidly developing, commercial society. While the military government maintained that it sought to preserve the legal status quo, it was in fact responding to the changing demographics by developing a hybrid system that clung to Spanish colonial nomenclature and structure, but largely engrafted upon it Anglo-American legal values and traditions.Although brief in its duration, the consequences of the military government's rule, if not efficacious, were enduring. The issue of land rights in California would dominate for decades to come, and future courts relied heavily upon the military government's examinations of the issue. Further, as we have seen, the structure developed for protecting mining claims in California helped to form the foundation of United States mining law. And the hostility developed by the Anglo-American toward the military government and the Mexican legal system it was thought to be enforcing helped to guarantee the rejection of Spanish and Mexican legal values in the state governmental scheme. [FN143]

*513 California's Military Government, 1846-1849: A Selected Bibliography ofSources

General Research OverviewLegal researchers willing to dig a bit can discover a great deal of material that assists in understanding not only the military government and its legal structure, but also that of the early state government.The records of the United States military government are, naturally, central to understanding this period. Of these, the most helpful is California and New Mexico, [FN144] which covers the period from February 1847 through October 1849. While a number of secondary sources cite to individual items in these collections, they rarely reproduce complete documents. Those who seek a more thorough and unfiltered understanding of the military regime would do well to read through the numerous individual documents available in the military records.

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Just as the population of California grew exponentially after the Gold Rush, so did the number of visitors and immigrants who wrote reminiscences of their experiences. [FN145] Some of these can be very helpful to understanding the period. Collections of the papers and correspondence of prominent residents can also be useful. [FN146]Insight into the concerns of the Anglo-American community can be gleaned from the editorials and letters published in the local Anglo-American newspapers of the time. References to many articles and editorials can be located through secondary sources, but again, since only excerpts of documents are normally reproduced in secondary tools, it is helpful to read through the papers themselves (most issues are quite brief) to gain a fuller understanding of the American perspective. Most of these newspapers are available on microfilm.An excellent guide to secondary sources, as well as archival collections, is A Guide to the History of California. [FN147] This text contains introductory bibliographic essays on various eras in California history, including two essays that cover the period of military rule: "Hispanic California, 1542-1848" and "Early American California, 1848-1880." Both are quite thorough and can be used to direct researchers to most of the significant literature for this period. *514 This text also includes essays describing the major special collections of California historical materials. Consulting this text early in the research process will streamline the process considerably.General California histories are helpful in developing a broader understanding of the period, for locating information relating to specific issues or events, and for references to source materials. At the same time, researchers need to keep in mind the clear Anglo-American biases of many of these works, particularly older texts.A number of works focus on the transition from Mexican to United States government in California. The most useful for studying legal issues are Military Governments in California 1846-1850; [FN148] and "The Legal Status of California 1846-49." [FN149] Both of these works are invaluable for the access they provide to primary materials and secondary authorities. Land grant and mining claims remained concerns well after California entered the Union. Several sources concentrate on the special issues relating to land ownership and mining rights and these are included in this bibliography.

Bibliographic AidsCowan, Robert Ernest. "Bibliographic Note," 2 California Historical Society Quarterly 75-76 (1923). This is the first widely distributed announcement of the acquisition of the Mason Code by Huntington Library. This short article contains only a brief

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description of the code.E. Engstrand, Iris H. W. and Daniel Tyler, "Hispanic California, 1542-1848" (at 3-19) and John E. Baur, "Early American California, 1848-1880" (at 21-33), in A Guide to the History of California, edited by Doyce B. Nunis, Jr., and Gloria Ricci Lothrop. New York: Greenwood Press, 1989. While not totally comprehensive for legal materials, these bibliographic essays are so thorough that they are the logical starting point for research into this period.Kemble, Edward C., A History of California Newspapers 1846-1858, edited by Helen Harding Bretnor. Los Gatos: The Talisman Press, 1962. Useful for identifying relevant publications and their dates of publication.

Primary Source Materials

Reports and RecordsDwinelle, John W., The Colonial History of the City of San Francisco. San Francisco: Towne & Bacon, 1863; reprinted under the direction of the City Attorney of San Diego (San Diego: Frye & Smith, 1924). *515 Less easy to read than the Halleck report listed below, Dwinelle's successful brief filed in support of San Francisco's claim for pueblo status (and therefore four square leagues of land) nonetheless contains valuable information.Halleck, H.W., "Report on the Laws and Regulations Relative to Grants or Sales of Public Lands in California," in U.S. Congress. House. Presidential Message Transmitting Information on California and New Mexico, 31st Cong., 1st Sess., House. Ex. Doc. No. 17 (1849) Serial No.573. Washington, D.C.: 1850. CIS No.: 573 H.exdoc.17 (Serial-Set). A clear analysis of the issues surrounding the recognition of Spanish and Mexican land grants.Hoffman's Reports of Land Cases Determined in the District Court for the Northern District of California. San Francisco: Numa Hubert Publisher, 1862. Includes reports of many California land grant cases. Also includes a helpful finding tool called the "Table of Land Claims." Volume II of this set was never published. All of the land grant cases were also published in Federal Cases. [FN150][Jones, William Carey], Report of Special Agent to Examine Land Titles in California, in U.S. Congress. Senate. Ex. Doc. No. 18, 31-2, 31st Cong., 1st Sess., Serial No. 589, Washington, D.C.: 1850. CIS No.: 589 S.exdoc.18 (Serial- Set). In addition to examining the archives in Monterey, Jones went to Mexico to research

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this report. Less critical of the condition of land titles than the Halleck report, it was not as well received in Congress. [FN151]U.S. Congress. House. Occupation of Mexican Territory, 29th Cong., 2d Sess., House Ex. Doc. No. 19, Serial No. 499 [1846, 1847]. CIS No.: 499 H.doc. 19 (Serial-Set). The second compilation of the records of the occupation of New Mexico and California includes correspondence and proclamations of Stockton, as well as Kearny's reports on the occupation of New Mexico.U.S. Congress. House. Presidential Message Transmitting Information on California and New Mexico, 31st Cong., 1st Sess., House. Ex. Doc. No. 17 (1849), Serial No. 573. Washington, D.C.: 1850. CIS No.: 573 H.exdoc.17 (Serial-Set). The major compilation of official government papers for the military government of California. This compilation covers the period from approximately February 1847 through October 1849 and includes the Kearny and Mason governorships. While lengthy, unindexed, and poorly paginated, this *516 is a critical document to understanding the United States' perspective relating to the acquisition of California and the U.S. government's understanding of Spanish and California law. Includes the Halleck report on Spanish and Mexican land laws and the constitution developed at the 1849 Constitutional Convention in Monterey.U.S. Congress. Senate. Documents from State Department on Relations with Mexico, 29th Cong., 2d Sess., Senate Ex. Doc. 1/2 , Serial No. 493, Washington, D.C.: 1850. CIS No.: 493 S.doc. 1/2 (Serial-Set). The first compilation of the Military Government records, this document contains the earliest records of the occupation of New Mexico and California from 1846, including the correspondence and proclamations of General Shute.U.S. Congress. Senate. Presidential Message Communicating Further Information on Formation of State Government in California, and also on Civil Affairs in Oregon, 31st Cong., 1st Sess., Senate Ex. Doc. No. 52 (1849), Serial No. 561, Washington, D.C.: 1850. CIS No.: 561 S.exdoc. 52 (Serial-Set). The document contains the later records of the military government. Includes General Riley's civil correspondence from the end of October 1849 through mid-December, when the government was turned over to civil authorities.U.S. Congress. Senate. Message From the President of the United States Communicating Information Called for by a Resolution of the Senate of the 17th Instant, in Relation to California and New Mexico, 31st Cong., 1st Sess., Senate. Ex. Doc. No. 18 (1849), Serial No. 557, Washington, D.C.: 1850. CIS No.: 557 S.exdoc.18 (Serial-Set). Not as comprehensive a collection of documents as House Executive Document 17, this volume is not as rare (and therefore more available), and contains many important

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documents such as the Halleck report on Spanish and Mexican land laws. It also includes Jones' Report of the Special Agent to Examine Land Titles in California, which is not included in HR Exec. Doc. No. 17.

CodesHalleck, Jabez, and William E. P. Hartnell. Translation and Digest of Such Portions of the Mexican Law of March 20 and May 23, 1837 as Are Supposed to Be Still in Force as Adapted to Present Conditions. San Francisco: Office of the ALTA CALIFORNIAN, 1849; reprinted in the appendix of Report of Debates in the Convention of California on the Formation of the State Constitution in September and October, 1849, XXIV-XL, J. Ross Browne, Reporter. Washington, D.C.: John T. Towers, 1850. The translation of the Mexican Laws of 1837 that was published by General *517 Bennett Riley in July of 1849 and which stands as the only compilation of Spanish or Mexican laws published by the military government.Mason, R. B. Laws for the Better Government of California, "the Preservation of Order, and the Protection of the Rights of the Inhabitants," during the Military Occupation of the Country by the Forces of the United States. San Francisco: Brannan, 1848. The code of laws developed for General Mason that was intended for publication in the summer of 1848, but was never released. The original is held by the Huntington Library and copies are available at various libraries.

MemoirsBurnett, Peter H. Recollections and Opinions of an Old Pioneer. New York: D. Appleton & Company, 1880; reprint, New York: Da Capo Press, 1969. Burnett was the first civil governor after United States acquisition of California. Burnett was also very active in the Provisional Government Movement, and he gives a good, first-hand account of the movement and its goals.Colton, Walter. Three Years in California. New York: A.S. Barnes & Co., 1850; reprint, Stanford, Calif.: Stanford University Press, 1949. The Reverend Colton, the first alcalde in Monterey appointed by U.S. officials, provides a readable description of life in California just after United States conquest. While most useful for his first-hand descriptions of Spanish and Mexican legal materials and the role of alcalde, his description of searching for gold early in the Gold Rush is even more fascinating.

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M'Collum, William M. D. California As I Saw It: Its New Cities and Villages, Its Rapid Accession of Population, Its Soil, Climate and Productions: Penciling by Way of Its Gold Diggers! and Incidents of Travel by Land and Water. Buffalo, N.Y.: G. H. Derby, 1850; reprint, Los Gatos, Calif.: The Talisman Press, 1960. Useful for the author's first-hand account of mining camp laws and other gold rush recollections.Sherman, William Tecumseh. Recollections of California 1846-1861. Oakland, Calif.: BioBooks, 1945. This volume was excerpted verbatim from the first four chapters of volume 1 of Sherman's two-volume autobiography, Memoirs of General William T. Sherman (New York: D. Appleton & Co., 1875). Sherman wrote well and his assignment to the governor's office provided him with a unique perspective on the military government's activities.

NewspapersAlta Californian (weekly edition). San Francisco: January 4-December 29, 1849. Continued by Alta Californian (triweekly edition), December 10, *518 1949-January 18, 1850; followed by the Daily Alta Californian. Available in microfilm.California Star. San Francisco: January 9, 1847-December 23, 1848; suspended June 10-November 18, 1848. United with The Californian to form The California Star and Californian; followed by the Alta Californian. Available in microfilm. A facsimile version of the first volume was published by Howell- North Books of Berkeley, California, in 1965.The Californian. Monterey, Calif.: August 15, 1846-May 6, 1847. Continued by the San Francisco Californian; united with California Star to form California Star and Californian; followed by the Alta Californian. The rarest of the three newspapers. A facsimile version of the first volume was published by J. Howell Books in 1971. A microfilm copy is available at the Bancroft Library, University of California, Berkeley.

Secondary MaterialsBancroft, Hubert Howe. History of California. 7 vols. San Francisco: The History Company, 1884-1890; facsimile edition of the first American edition, Santa Barbara, Calif.: W. Hebberd, 1963-1970. The classic California history that provides critical references to source materials.Bynum, Lindley. "Laws for the Better Government of California, 1848," 2 Pacific

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Historical Review 279-91 (1933). Includes a fairly in-depth review of the events leading to the suppression of the Mason Code and briefly reviews the arrangement and content of the code.Cate, Chester March. "The First California Laws Printed in English." In Bibliographic Essays: A Tribute to Wilberforce Eames 330-336. Cambridge, Mass.: Harvard University Press, 1924. Cate, then the Assistant Librarian at the Huntington Library, provides a good summary of the newspaper reports and official correspondence referring to the development and ultimate suppression of the Mason Code.Cosgrave, George. Early California Justice, edited by Roy Vernon Sowers. San Francisco: Grabhorn Press, 1948. This series of articles by a former federal district court judge attempts to chronicle the history of the federal district court in California, but also provides useful information on general California legal history.Cushing, Charles S. "The Acquisition of California, Its Influence and Development Under American Rule," 8 California Law Review 67-85 (1920). Despite its title, this transcript of a California Bar Association speech deals largely with the development of law after statehood. However, this piece does briefly summarize gold rush mining law issues.*519 Eldredge, Zoeth S. History of California. 5 vols. New York: The Century History Co., 1915. Another classic California history. Quite readable, but the scarcity of notes to source documents reduces its usefulness.Ellison, Joseph. "The Struggle for Civil Government in California, 1846- 1850," 10 California Historical Society Quarterly 4-26; 129-64; 226-44 (1931). While highly sympathetic to the Anglo-American settlers' complaints, this multiple-part article is heavily noted and provides access to numerous primary materials. Part I contains chapter 1, "American Beginnings in California" and chapter 2, "Promises and Disappointments"; part II contains chapter 3, "Conflict of Theories" and chapter 4, "The Constitutional Convention and the Organization of a State Government"; part III contains chapter 5, "Admission of California into the Union" and a bibliography. Chapters 2 and 3 deal with the period of military government. Includes a bibliography at pages 243-44.Franklin, William E. "Peter H. Burnett and the Provisional Government Movement," 40 California Historical Society Quarterly 123-36 (1961). A detailed look at the Provisional Government Movement and the role that Peter Burnett (California's first "American" civil governor) played in the push for civil government after United States acquisition of California.

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Goodwin, Cardinal. The Establishment of State Government in California, 1846- 1850. New York: The Macmillan Company, 1914. While focusing on the Constitutional Convention of 1849, the first legislature, and admission into the union, this text does review the military government. Indexed and well noted, this text does not include a bibliography.Grivas, Theodore. Military Governments in California 1846-1850. Glendale, Calif.: Arthur H. Clark Company, 1963. The chapter "Alcalde Rule" is essentially a reprint of an earlier article: Grivas, Theodore, "Alcalde Rule: the Nature of Local Government in Spanish and Mexican California," 40 California Historical Society Quarterly 11-32 (March 1961). Grivas' book includes close study of the military records and an extensive bibliography, the only one to include serial-set volume information in its citations to congressional documents--a small, but exceedingly helpful, feature. This is an essential tool for studying the period.Halleck, Henry Wager. International Law; or, Rules Regulating the Intercourse of States in Peace and War. New York: D. Van Nostrand, 1861. It is helpful to have the relevant international law provisions regulating the governance of conquered territory set out by one of the key officers of the military administration.Hansen, Woodrow. The Search for Authority in California. Oakland, Calif.: BioBooks, 1960. Less concerned with this period than with the Spanish and Mexican period or the 1849 constitutional convention, this work is still helpful, and the *520 chapter notes are full of references to a wide variety of materials. The Appendix includes a helpful bibliography.Harlow, Neal. California Conquered. Berkeley: University of California Press, 1982. Harlow, who was a special collections librarian throughout his career, provides a more modern reading of the source material relating to the United States acquisition of California. Includes an index and an extensive bibliography.Hittell, Theodore H. History of California. 4 vols. San Francisco: N.J. Stone & Co., 1885-1897. Heavily noted and clearly written, this multi-volume history provides access to source materials other than the Bancroft Collection [FN152] and remains a valuable research tool.Hunt, Rockwell D. "Legal Status of California 1846-49." In Annals of the American Academy of Political and Social Science 63-84 (1898). While relying perhaps too heavily on the rhetoric of the Anglo-American press, this article draws upon a wide variety of sources to survey the important issues facing the

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military government. An essential tool.Kari, Douglas. "Once Upon a Time in the West," 19 Los Angeles Lawyer 40-44, 68 (July/Aug. 1996). An engagingly written survey of the legal issues facing frontier California.Morrow, William W. "Introduction," 1 California Jurisprudence xi-1. San Francisco: Bancroft-Whitney, 1920; reprinted in 1 California Jurisprudence, 2d ed., xix-lvii. San Francisco: Bancroft-Whitney, 1952. A survey of the development of law in California, this piece deals with California legal issues before the implementation of United States civil government only in passing.Palmer, William J., and Paul P. Selvin. "The Development of Law in California." In California Constitution, Art. 1-4-1. St. Paul, Minn.: West Publishing Company, 1954; reprinted 1983. This often cited source oversimplifies the issues surrounding the military government, but is helpful as an introduction to the issues facing the postmilitary, early civil government.Paul, Rodman W. California Gold: The Beginning of Mining in the Far West. Lincoln, Neb.: University of Nebraska Press, 1947. A very helpful and easy-to-read source covering the gold rush period. While not a legal text, the author has read the legal texts, highlighted the legal issues, and provided appropriate references. Appendix C includes a thorough, annotated bibliography of sources.Paul, Rodman W. Mining Frontiers of the Far West 1848-1880. New York: Holt, *521 Rinehart and Wilson, 1963. While not as helpful as Paul's California Gold, this text examines the impact of mining activities on the westward migration in frontier America. Includes some useful maps indicating the locations of major deposits of gold and silver in the west.Powell, Richard R. Compromises of Conflicting Claims: A Century of California Law, 1760-1860. Dobbs Ferry, N.Y.: Oceana, 1977. Powell devotes only six pages to the period from 1846 up to the constitutional convention in September of 1849, but the notes provide helpful references.Robertson, James R. "From Alcalde to Mayor: A History of the Change from the Mexican to the American Local Institutions in California." Ph.D. diss., University of California at Berkeley, 1909. Less helpful for this era than for the Spanish and Mexican period, this work continues to provide useful information relating to the transition of the civil government to United States rule. An unpublished dissertation, it is available at both the Main and the Bancroft libraries of the University of California at Berkeley.

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Robinson, W.W. Land in California. Berkeley: University of California Press, 1948. This classic study of California land law also provides a chapter, "Titles in El Dorado," which discusses mining claims and titles. Includes an evaluative bibliographic essay.Royce, Josiah. California From the Conquest in 1846 to the Second Vigilance Committee in San Francisco, a Study of the American Character. Boston and New York: Houghton, Mifflin & Co., 1886; other editions published by Knopf in 1948 and Peregine Publishers in 1970. In addition to general historical information, this work provides an extensive and highly critical review of the handling of criminal matters in the mining camps.Shinn, Charles Howard. Mining Camps; A Study in American Frontier Government. Baltimore, Md.: Johns Hopkins University, 1884; reprint Glouscester, Mass.: Peter Smith, 1970. One of the seminal studies of California mining camp law, Shinn's study includes helpful information on Spanish and Mexican law as well. Includes a bibliography of sources consulted.Stevenson, Noel C. "The Glorious Uncertainty of the Law 1846-1851," 28 Journal of the State Bar of California 374-80 (1953). A discussion of the scarcity of both Spanish-language and Anglo-American legal materials in California after United States occupation.Umbeck, John R. A Theory of Property Rights, with Application to the California Gold Rush. Ames, Iowa: Iowa State University Press, 1981. In testing his theory of the development of property rights, the author *522 studied the terms of 180 mining camp associations in Gold Rush California in detail. Includes a bibliography of mining sources.Van Alstyne, Arvo. "The California Civil Code." In California Civil Code 1-43. St. Paul, Minn.: West Publishing Company, 1954. This often-cited essay gives a good outline of the development of civil law in California, including the transition to state government.Wilson, R. A. "The Alcalde System of California," 1 California Reports 559, 560-66 (1850). Primarily a collection of translated excerpts of the laws of March 20, 1837, and May 23, 1837. The narrative is highly biased and unappreciative of the alcalde system under both the Mexican and military governments, but this piece does provide a survey of the important legal issues of this period. [FN153]Wright, Flora Alice. "Richard Barnes Mason, Governor of California." M.A. thesis, University of California at Berkeley, (1919). This typewritten manuscript does a good job of identifying relevant documents in

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collections of primary materials. It is available at both the Main and Bancroft Libraries of the University of California at Berkeley.Yale, Gregory. Legal Titles to Mining Claims and Water Rights in California. San Francisco: A. Roman, 1867. Difficult to read in part and not as clearly organized as one might wish, this text is the earliest and most often cited legal reference dealing with California mining law.

[FNa1]. (c) Myra K. Saunders, 1996. I would like to thank Susan Westerberg Prager, Clyde Spillinger and Ward Saunders for their comments, advice, and encouragement. I would also like to thank Lori Duperon for her research assistance and all of my colleagues at the UCLA School of Law for their support of this project.

[FNaa1]. Law Librarian and Assistant Professor of Law in Residence, UCLA School of Law, Los Angeles, California.

[FN1]. Myra K. Saunders, California Legal History: A Review of California's Spanish and Mexican Legal Institutions, 87 L. LIBR. J. 487 (1995). There is naturally some overlap between the two periods: to reduce repetition, readers will be referred to the earlier article as appropriate.

[FN2]. Treaty of Peace, Friendship, Limits and Settlement with the Republic of Mexico, March 10-May 30, 1848, U.S.-Mex., 9 Stat. 922, 926 (1851).

[FN3]. An Act for the Admission of the State of California into the Union, ch. L, 9 Stat. 452 (1850).

[FN4]. See DAVID J. LANGUM, LAW AND COMMUNITY OF THE MEXICAN CALIFORNIA FRONTIER: ANGLO-AMERICAN EXPATRIATES AND THE CLASH OF LEGAL TRADITIONS, 1821- 1846, at 22-23 (1987).

[FN5]. See RICHARD R. POWELL, COMPROMISES OF CONFLICTING CLAIMS: A CENTURY OF CALIFORNIA LAW, 1760-1860, at 8 (1977).

[FN6]. See CHARLES HOWARD SHINN, MINING CAMPS: A STUDY IN AMERICAN FRONTIER GOVERNMENT 132 (Rodman Wilson Paul ed., Peter Smith 1970) (1884).

[FN7]. See POWELL, supra note 5, at 207.

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[FN8]. See WALTON BEAN, CALIFORNIA, AN INTERPRETATIVE HISTORY 94 (1968).

[FN9]. 5 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA 194-99 (Wallace Hebberd 1963-1970) (1884-1890).

[FN10]. 5 Id. at 198-99.

[FN11]. See 5 Id. at 101-90; WOODROW HANSEN, THE SEARCH FOR AUTHORITY IN CALIFORNIA 59 (1960) (citing Letter from John Sutter to John Marsh (Mar. 9, 1846) (Sutter Collection, California State Library)).

[FN12]. Proclamation of John D. Sloat (July 7, 1846), in DOCUMENTS FROM THE STATE DEPARTMENT ON RELATIONS WITH MEXICO, S. EXEC. DOC. NO. 1, 29th Cong., 2d Sess., at 644 (1850).

[FN13]. Id. at 644-45.

[FN14]. See THEODORE GRIVAS, MILITARY GOVERNMENTS IN CALIFORNIA 1846-1850, at 50-78 (1963).

[FN15]. See CARDINAL GOODWIN, THE ESTABLISHMENT OF STATE GOVERNMENT IN CALIFORNIA, 1846-1850, at 30 (1914) (citing OCCUPATION OF MEXICAN TERRITORY, H.R. EXEC. DOC. NO. 19, 29th Cong., 2d Sess., at 109-10 (1847).

[FN16]. There was to be a governor (who was the commander-in-chief of the army) and a legislative council consisting of seven members. The municipal officers of cities, towns and departments, and districts formerly existing in the territory were to be continued, and all their proceedings were to be regulated by the laws of Mexico, until other provisions were made by the governor and legislative council. H.R. EXEC. DOC. NO. 19, supra note 15, at 109-10. See also JABEZ HALLECK & WILLIAM E. P. HARTNELL, TRANSLATION AND DIGEST OF SUCH PORTIONS OF THE MEXICAN LAWS OF MARCH 20 AND MAY 23, 1837 AS ARE SUPPOSED TO BE STILL IN FORCE AS ADAPTED TO PRESENT CONDITIONS, pt.1, § 5, art. 1, at 13 (San Franciso, Office of The Alta Californian, 1849) [hereinafter HALLECK TRANSLATION]. For more information on the Mexican Laws of 1837 and their

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provisions, see SAUNDERS, supra note 1, at 498-504.

[FN17]. See NEAL HARLOW, CALIFORNIA CONQUERED 154 (1982); 5 BANCROFT, supra note 9, at 284-85.

[FN18]. Grivas says that after the departure of Stockton, council members declined to serve, but Robertson indicates that the decision not to call the council was made by Kearny. GRIVAS, supra note 14, at 95; James R. Robertson, From Alcalde to Mayor: A History of the Change from the Mexican to the American Local Institutions in California 111 (1909) (unpublished Ph.D. diss., University of California, Berkeley) (on file with the Main and Bancroft Libraries at the University of California at Berkeley).

[FN19]. See H.R. EXEC. DOC. 19, supra note 15, at 108; GRIVAS, supra note 14, at 89.

[FN20]. See GRIVAS, supra note 14, at 99-101.

[FN21]. Proclamation to the People of California from S. W. Kearny (Mar. 1, 1847), in PRESIDENTIAL MESSAGE TRANSMITTING INFORMATION ON CALIFORNIA AND NEW MEXICO, H.R. EXEC. DOC. NO. 17, 31st Cong., 1st Sess., at 288-289 (1849).

[FN22]. Sherman, who later played a significant role in the Civil War, was stationed in California from 1847 until 1850. Sherman again visited California in 1852 and, after resigning his commission, returned to California as a private citizen to pursue an unsuccessful business venture from late 1853 through May of 1857. GENERAL WILLIAM TECUMSEH SHERMAN, RECOLLECTIONS OF CALIFORNIA 1846-1861 (1945).

[FN23]. Proclamation of R.B. Mason (Aug. 13, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 377. Halleck served as Secretary from August of 1847 until the dismantlement of the military government in December of 1849. Halleck put his experience in the military government to good use. After California achieved statehood, Halleck launched a successful San Francisco law practice, Halleck, Peachy, and Billings, which specialized in defending Spanish and Mexican land-grant claims. In 1861, he published a text entitled International Law, or, Rules Regulating the Intercourse of States in Peace and War. Later, he served as President Lincoln's Chief

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of Staff for two years during the Civil War. Milton H. Shutes, Henry Wager Halleck, Lincoln's Chief of Staff, 16 CAL. HIST. Q. 195 (1937).

[FN24]. Proclamation of R.B. Mason (Mar. 10, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 291.

[FN25]. GREGORY YALE, LEGAL TITLES TO MINING CLAIMS AND WATER RIGHTS IN CALIFORNIA 17 (San Francisco, A. Roman & Co. 1867).

[FN26]. HENRY WAGER HALLECK, HALLECK'S INTERNATIONAL LAW, OR, RULES REGULATING THE INTERCOURSE OF STATES IN PEACE AND WAR 450 (Sir Sherston Baker ed., C. Kegan Paul & Co. 1861).

[FN27]. Message from the President of the United States (Dec. 22, 1846), in H.R. EXEC. DOC. NO. 19, supra note 15, at 1-2. Originally Polk seemed to have sanctioned establishment of a territorial government, but revised his position after reaction from Congress. For a discussion of the Congressional debate over the proper handling of Mexican lands held by conquest, see GOODWIN; supra note 15, at 20-34 and Joseph Ellison, The Struggle for Civil Government in California 1846-1850 (pt. 1), 10 CAL. HIST. SOC'Y Q. 20-22 (1931).

[FN28]. Message from the President of the United States (Dec. 22, 1846), supra note 27, at 2.

[FN29]. Proclamation to the People of California from S. W. Kearny (Mar. 1, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 288-89.

[FN30]. Letter from R.B. Mason to L.W. Boggs (June 2, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 317-18.

[FN31]. Letter from R.B. Mason to John Grisby (June 2, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 318-19.

[FN32]. See HALLECK TRANSLATION, supra note 16.

[FN33]. For a fuller discussion of the alcalde's functions in Spanish and Mexican California, see SAUNDERS, supra note 1, at 498-502, and GRIVAS, supra note 14, at 150-65.

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[FN34]. "It was expedient for the military commanders of the United States to continue the office of alcalde and to retain as many loyal Californians in the office as was practicable. The combination of legislative, executive, and judicial duties in one man, although odious to many American immigrants in California, was nonetheless advantageous to the military governors in California. The conflicts that would necessarily arise with the division of these functions in separate individuals was prevented by the adoption of the alcalde system by the Americans." Grivas, supra note 14, at 165 (footnotes omitted).

[FN35]. The Laws of 1837 were finally implemented in July of 1849. Hansen postulates that the implementation of the 1837 laws might have satisfied the demand for self-government, had it been done earlier. HANSEN, supra note 11, at 92-94.

[FN36]. See, e.g., Letter from R.B. Mason to Alcalde John Burton (July 13, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 321-22; Letter from R.B. Mason to W.D.M. Howard (July 28, 1847), id. at 581; Letter from W.T. Sherman to Captain F.J. Lippett (Aug. 25, 1847), id. at 351-52; Letter from H.W. Halleck to Alcalde Ignacio Escquer (May 9, 1849), id. at 761; Letter from H.W. Halleck to Captain Simmons, Mr. Harrison and others (Sept. 20, 1849), id. at 831; Letter from H.W. Halleck to Prefect David Spence (Nov. 20, 1849), in PRESIDENTIAL MESSAGE COMMUNICATING FURTHER INFORMATION ON FORMATION OF STATE GOVERNMENT IN CALIFORNIA, AND ALSO IN RELATION TO THE CONDITIONS OF CIVIL AFFAIRS IN OREGON, S. EXEC. DOC. NO. 52, at 27-8, 31st Cong., 1st Sess. (1850); Letter to T.H. Green from H.W. Halleck (Nov. 20, 1849), id. at 27-8.

[FN37]. For a detailed description of the California Archives, see J.N. Bowman, History of the Provincial Archives of California, 64 S. CAL. Q. iv-97 (1982). For more information on the types of legal materials available in Spanish and Mexican California, see Saunders, supra note 1, at 504-06.

[FN38]. See, e.g., Letter from R.B. Mason to W.D.M. Howard (July 28, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 581; Letter from R.B. Mason to Captain J.L. Folsom (Jan. 5, 1848), id. at 453-54; Letter from R.B. Mason to Messrs. Alrigo and Larkin (May 6, 1848), id. at 547; Letter from H.W. Halleck to Alcalde J.G. Majors (June 2, 1849), id. at 772; Letter from H.W. Halleck to P.M. Foley (Dec. 1, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 29-30.

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[FN39]. The governor's office had a copy of Gordon's Digest of the Laws of the United States. Letter from R.B. Mason to Captain J.L. Folsom (Jan. 5, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 453-54. Both Mason's and Sherman's correspondence make reference to having access to the statutes of Missouri and a digest of the laws of Texas. Letter from to J.S. Griffen (Oct. 20, 1847), id. at 403; Letter from R.B. Mason to L.W. Boggs and M.G. Vallejo (Nov. 11, 1847), id. at 419. Riley, Mason's successor, requested and was sent copies of Kent's and Blackstone's commentaries, as well as Wheaton's Elements of International Law. Letter from W. L. Marcy to R.B. Mason (Oct. 13, 1848), id. at 263-64. The California Star also reported the use of the Missouri statutes in an alcalde's court. The Power of Making Laws, CAL. STAR (San Francisco), Jan. 23, 1847, at 2. Halleck indicated that he sometimes borrowed legal materials found in the libraries of visiting ships of war. HALLECK, supra note 26, at iii.

[FN40]. See EDWIN BRYANT, WHAT I SAW IN CALIFORNIA 436 (New York: D. Appleton & Co. 1848); REV. WALTER COLTON, THREE YEARS IN CALIFORNIA 47-48, 55, 200, 232 (1949). But cf. Noel C. Stevenson, The Glorious Uncertainty of the Law 1846-1851, 28 J. ST. BAR CAL. 374 (1953) (discussing the scarcity of common-law legal materials, mostly in the gold-rush area).

[FN41]. Letter from R.B. Mason to Alcaldes Don Pablo de la Guerra and Don Luis Carillo (June 14, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 321- 22.

[FN42]. See GRIVAS, supra note 14, at 176-77.

[FN43]. Letter from R.B. Mason to J. Maria Bonilla (Jan. 25, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 462-63. For a description of an incident that took place in Sonoma (the home of the Bear Flag Revolt) shortly after Mason assumed office relating the refusal of the locally elected alcalde to relinquish his office to the alcalde appointed by Mason, see SHERMAN, supra note 25, at 20-7 and Letter from R.B. Mason to Alcalde L.W. Boggs (July 22, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 377-78.

[FN44]. "[B]e governed by the customs and laws of the country as far as you can ascertain them, and by your own good sense and sound discretion." Letter from R.B. Mason to Alcalde L.W. Boggs (June 2, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 317-18 (1850); see also Letter from R.B. Mason to 2d Alcalde Don Luis Carillo (June 2, 1847), id. at 354.

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[FN45]. HANSEN, supra note 11, at 82 (in specific reference to the activities Alcalde L. W. Boggs).

[FN46]. "Previous to 1846 an American occasionally held a position of the Ayuntamiento [town council], served as a Sindico [trustee], or even held the office of Alcalde, but incumbents of office were mainly of Mexican or Spanish descent. After 1846 however the lists of officials are filled with Americans and occasionally a foreigner of some other nationality than Spanish or Mexican.... It had been the intention at the time of the American occupation that the two should be placed together in the offices and that the Mexican population should be admitted to the offices so far as safe. As the period passed however the proportion of Spanish and Mexican incumbents decreased. Only those who were known to be favorable to the United States were desired and [sic] especially in the southern part of California. In many cases military men were selected." Robertson, supra note 18, at 198-99 (descriptions added).

[FN47]. See Rockwell D. Hunt, Legal Status of California 1846-49, 12 ANNALS AM. ACAD. POL. & SOC. SCI. 387, 391-92 (1898); HARLOW, supra note 17, at 266 (citing JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 201-02 (Boston and New York: Houghton Mifflin, 1886)).

[FN48]. "I heard it frequently asserted in San Francisco by some, who were enumerating the various codes, statutes, kinds and descriptions of law administered or rather pretended to be administered in California, that our Alcalde here, had adopted for his district the Missouri statutes. This is not exactly true, but being about the only law book the court could lay hands on, has served as a sort of guide, text and form to go by, our judge, like others in California, having no particular constitution, statutes or usages to govern his course..." Letter from "Pacific" to the Editor, CAL. STAR (San Francisco), Jan. 22, 1848, at 2.

[FN49]. Letter from H.W. Halleck to Major J.C. Graham (May 11, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 762.

[FN50]. See Hunt, supra note 47, at 392.

[FN51]. See COLTON, supra note 40, at 47.

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[FN52]. See GRIVAS, supra note 14, at 175.

[FN53]. Proclamation of R.B. Mason (Dec. 29, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 452.

[FN54]. Letter from R.B. Mason to Alcalde Charles White (Mar. 2, 1848), id. at 487; Letter from R.B. Mason to Don Pedro C. Carillo (Apr. 5, 1848), id. at 505.

[FN55]. Letter from H.W. Halleck to Major J.C. Graham (May 11, 1849), id. at 762.

[FN56]. See GRIVAS, supra note 14, at 112-13 (citing Letter from R.B. Mason to J.L. Folsom (Nov. 11, 1847) and Letter from H.W. Halleck to J.D. Stevenson (July 20, 1848)).

[FN57]. Letter from H.W. Halleck to Major J.C. Graham (May 11, 1849) in H.R. EXEC. DOC. NO. 17, supra note 21, at 762.

[FN58]. HALLECK TRANSLATION, supra note 16, pt. 1, § 5, art. 1, at 13.

[FN59]. Id. pt. 1, § 6, art. 2, at 15-16.

[FN60]. Id. pt. 1, § 6, art. 2, at 15.

[FN61]. See Robertson, supra note 18, at 239.

[FN62]. Letter from R.B. Mason to Alcalde George Hyde (July 15-Aug. 13, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 378-79.

[FN63]. See, e.g., The Power of Making Laws, CAL. STAR (San Francisco), Jan. 23, 1847, at 2.

[FN64]. The Laws of California, CAL. STAR (San Francisco), Jan. 9, 1847, at 2.

[FN65]. HANSEN, supra note 11, at 77.

[FN66]. The Laws in Force, CAL. STAR (San Francisco), Mar. 27, 1847, at 2.

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[FN67]. "It has not been satisfactorily taught us, yet, why that 'limited authority,' which is nevertheless unrestricted in the abolishment of the Mexican 'laws in force' when they are deemed conflicting with the general interest and hurtful to our common welfare; cannot, upon as safe footing, adopt and immediately execute, laws, whereby the general good so vigilantly guarded may be promoted." Civil Government, CAL. STAR (San Francisco), May 20, 1848, at 2.

[FN68]. See, e.g., CAL. STAR (San Francisco), Apr. 22 1848; CALIFORNIAN (Monterey), Apr. 26, 1848. The newspaper articles discussing the code are excerpted or summarized in Chester March Cate, The First California Laws Printed in English, in BIBLIOGRAPHIC ESSAYS: A TRIBUTE TO WILBERFORCE EAMES 330-36 (1924), and in Lindley Bynum, Laws for the Better Government of California, 1848, 2 PAC. HIST. REV. 279-91 (1933).

[FN69]. "I sent to you but a few days ago, upon the recommendation of Mr. Sutter, the appointment of alcalde, and am sorry to learn, by one of your letters of the 15th ultimo, that you do not wish it. I am well aware of the difficulties that the alcalde as heretofore labored under. Those difficulties will soon be removed by the duties of alcaldes, prefects, judges, etc., being clearly defined and published, and the ways and means prescribed for raising the necessary funds to defray all proper civil funds." Letter from R.B. Mason to John Sinclair (Mar. 5, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 489.

[FN70]. See CALIFORNIAN (Monterey), May 3, 1848; CALIFORNIAN (Monterey), May 17, 1848; CAL. STAR (San Francisco), May 20, 1848; CALIFORNIAN (Monterey), Aug. 14, 1848; ALTA CALIFORNIAN (San Francisco), June 14, 1849. See also Cate, supra note 68, at 333; Bynum, supra note 68, at 285.

[FN71]. Letter from R.B. Mason to Captain J.L. Folsom (May 21, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21 at 555; Letter from R.B. Mason to Alcalde Stephen Foster (May 31, 1848), id. at 558; Letter from R.B. Mason to Alcalde John Townsend (June 1, 1848), id. at 559; Letter from R.B. Mason to W.D.M. Howard (July 28, 1848), id. at 581; Letter from H.W. Halleck to Major James A. Hardie (Aug. 1, 1848), id. at 581.

[FN72]. "I had prepared a code of laws, and a judicial organization; and, although they were sent to the press in due season, I did not succeed in getting them printed before I received official notification of the ratification of the treaty of peace between

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the two republics, owing to the stopping of the presses upon the discovery of the gold mines." Letter from R.B. Mason to L.W. Hastings (Oct. 24, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 677.

[FN73]. The code was discovered at the sale of the personal library of the former librarian of the New York Law Institute and was acquired in 1923 by the Huntington Library in San Marino, California. Bynum, supra note 68, at 279.

[FN74]. R.B. MASON, LAWS FOR THE BETTER GOVERNMENT OF CALIFORNIA, "THE PRESERVATION OF ORDER, AND THE PROTECTION OF THE RIGHTS OF THE INHABITANTS," DURING THE MILITARY OCCUPATION OF THE COUNTRY BY THE FORCES OF THE UNITED STATES (San Francisco, S. Brannan 1848) [hereinafter cited as MASON CODE].

[FN75]. See, e.g., the assumption of one author (writing before the copy of the Mason Code was discovered): "Meanwhile he [Mason] set about discovering and formulating the 'principal features of Mexican law applicable to the country at the time of the conquest."' Hunt, supra note 47, at 396.

[FN76]. MASON CODE, supra note 74, Administration, § 1.

[FN77]. "Every person who shall be convicted of breaking into and entering in the night time, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein, either, "First, By [sic] forcibly bursting or breaking the wall, or any outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, "Second, By [sic] breaking in, in any other manner, being armed with such dangerous weapon, or with the assistance or aid of one or more confederates, then actually present, aiding or assisting; or "Third, By [sic] unlocking an outer door by means of false keys, or by picking the lock, thereof, shall be adjudged guilty of burglary in the first degree." Id., Crimes & Punishments, § 32.

[FN78]. See supra notes 37-40 and accompanying text.

[FN79]. The Power of Making Laws, CAL. STAR (San Francisco), Jan. 23, 1847, at 2.

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[FN80]. Letter from S. W. Kearny to the Adjutant General (Sept. 22, 1846), in H.R. EXEC. DOC. NO. 19, supra note 15, at 26.

[FN81]. Laws for the Better Government of the Territory of New Mexico, in H.R. EXEC. DOC. NO. 19, supra note 15, at 32-73.

[FN82]. For the purposes of this discussion, the MASON CODE, supra note 74, was compared with JAMES WILMER DALLAM, DIGEST OF THE LAWS OF TEXAS (Baltimore, John D. Toy 1845), OLIVER C. HARTLEY, A DIGEST OF THE LAWS OF TEXAS (Philadelphia, Thomas, Cowperwaite & Co. 1850) and THE REVISED STATUTES OF THE STATE OF MISSOURI (St. Louis, Chambers and Knapp 1845).

[FN83]. Coincidentally, Missouri had also been a Spanish possession. It became a United States territory in 1804, but did not adopt the common law until 1816. Kathianne Knaup, The Transition from Spanish Civil Law to English Common Law in Missouri, 16 ST. LOUIS U.L.J. 218, 219 & 225 (1971).

[FN84]. Although Mason's correspondence indicates that he was also arranging to have the code translated into Spanish, no Spanish version has been identified: "I send Mr. Hartnell, the government interpreter, to San Francisco, to attend to the correctly [sic] printing of the Spanish translation of some laws etc., that I intend to publish." Letter from R.B. Mason to Captain J.L. Folsom (May 21, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 555. This translation was also reported in the local press: "Governor Mason has had printed both in the English and Spanish languages, a code of laws for the better government..." HANSEN, supra note 11, at 84 (citing Laws, CALIFORNIAN (Monterey), Aug. 14, 1848.)

[FN85]. HALLECK TRANSLATION, supra note 16, at 4.

[FN86]. Hunt, supra note 47, at 74.

[FN87]. Letter from R.B. Mason to Adjutant General R. Jones (Aug. 19, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 597.

[FN88]. "The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of the belligerent right over a conquered territory. It had been instituted during the war at the command of the President of the United States. It was

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the government when the territory was ceded as conquest, and did not cease, as a matter of course, or a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was meant to be continued until it had been legislatively changed." Cross v. Harrison, 57 U.S. (16 How.) 164, 193 (1853).

[FN89]. Letter from H.W. Halleck to the Reverened F. Jose Maria de Jesus Gonzales, Governor of the Bishopric of California (Aug. 13, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 801.

[FN90]. HALLECK TRANSLATION, supra note 16, at 3 (quoting The American Insurance Company v. Canter, 26 U.S. (1 Pet.) 511, 541 (1828)).

[FN91]. An earlier study indicates that the proposal to implement the Laws of 1837 came from Halleck. HANSEN, supra note 11, at 92-94.

[FN92]. HALLECK TRANSLATION, supra note 16.

[FN93]. See, e.g., Letter from R.B. Mason to Nathan Spear (June 3, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 319; Letter from R.B. Mason to Gabriel Abbisu (June 3, 1847), id. at 319; Letter from R.B. Mason to Alcalde L.W. Boggs (June 7, 1847), id. at 321; Letter from R.B. Mason to Messrs. James and Carolan Mathews (Apr. 1, 1848), id. at 505; Letter from H.W. Helleck to the Reverend F. Jose Maria de Jesus Gonzales (Dec. 3, 1849); in S. EXEC. DOC. NO. 52, supra note 36, at 31-2; Letter from H.W. Halleck to Messrs. Charles Gray, Abram P. De Witt (Dec. 6, 1849), id. at 36; Letter from H.W. Halleck to Benjamin Brewster (Dec. 6, 1849); id. at 36.

[FN94]. See, e.g., Letter from R.B. Mason to Alcalde L.W. Boggs (June 7, 1847), in H.R. EXEC. DOC. NO. 17, supra note 21, at 231; Letter from R.B. Mason to the Rev. Padre Fr. Jose Ma. R. S. del Real (June 3, 1847), id. at 453; Letter from R.B. Mason to Alcalde Charles White (Mar. 10, 1848), id. at 492- 93; Letter from J. W. Halleck to Alcalde Don Ignacio Esquer (Mar. 10, 1848), id. at 761; Letter from J. W. Halleck to Alcalde J. L. Majors (July 1, 1849), id. at 794.

[FN95]. Letter from R.B. Mason to Alcalde William Blackburn (June 21, 1847), in

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H.R. EXEC. DOC. NO. 17, supra note 21, at 332-33. See also Letter from H.W. Halleck to Prefect A. M. Pico (Dec. 4, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 33-34. For a discussion of Native American land claims in California, see Donald G. Shanahan, Jr., Compensation for the Loss of Aboriginal Lands of the California Indians, 75 HIST. SOC'Y SO. CAL. Q. 297-320 (1975).

[FN96]. See, e.g., GEORGE COSGRAVE, THE LAND GRANT IN EARLY CALIFORNIA JUSTICE 25-32 (1948); HANSEN, supra note 11, at 81; ROYCE, supra note 47, at 467-80.

[FN97]. Letter from Paisano to the Editor, CAL. STAR (San Francisco), Mar. 13, 1847.

[FN98]. See Robertson, supra note 18, at 245-50; HARLOW, supra note 47, at 289-90; HANSEN, supra note 11, at 83-84. Even the military officers took part: "A naval officer, Lieutenant Washington A. Bartlett, its [San Francisco's] first alcalde, had caused it to be surveyed and laid out in to blocks and lots, which were being sold at sixteen dollars a lot of fifty varas (yards) square; the understanding being that no single person could purchase of the alcaldes more than one in-lot of fifty varas, and one lot of out-lot of one hundred varas. Folsom, however, had got his clerks, orderlies, etc., to buy lots, and they, for a small consideration, conveyed them to him, so that he was nominally the owner of a good many lots. Lieutenant Halleck had both one of each kind, and so had Warner. Many naval officers had also invested, and Captain Folsom advised me to buy some, but I felt actually insulted that he should think me such a fool as to pay money for property in such a horrid place as Yerba Buena [San Francisco]..." SHERMAN, supra note 22, at 23 [descriptions added].

[FN99]. Alcalde Walter Colton, in particular, was criticized: "Neither Governor Kearny nor Governor Mason gave to alcalde Colton any power to sell lands. Governor Mason directly questioned the power of the alcalde to make such sales, and demanded of this his authority for doing so ..." Letter from H.W. Halleck to Alcalde Ignacio Escquer (May 9, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21 at 761. Gardner Quincy Colton, Walter Colton's brother, became an alcalde in San Francisco in 1849. He was also active in selling municipal lands, but it is unclear whether the proceeds of sales were turned over to the pueblo treasury, or kept by Colton. G.Q. Colton's grants were declared void by the San Francisco ayuntamiento in late 1849 and an 1851 state statute recognizing those claims was repealed in 1853. Kenneth M. Johnson, The Judges Colton, 57 HIST. SOC'Y SO. CAL. Q. 349, 355-59 (1975).

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[FN100]. H.W. Halleck, Report on the Laws and Regulations Relative to Grants or Sales of Public Lands in California, in H.R. EXEC. DOC. NO. 17, supra note 21, at 118-80.

[FN101]. The translations contained in the appendices to the report included the DeNeve Regulations (Appendix 2), the Colonization Act and implementing regulations (Appendices 4 and 5). In addition to the texts of official documents contained in the archives, Halleck makes reference to having certain translations made from the 1844 edition of the Ordenanzas de Tieras y Aguas ed. by Marianos Galván (Appendix 9). Id.

[FN102]. Letter from H.W. Halleck to Colonel J. D. Stevenson (July 25, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 576.

[FN103]. Paul W. Gates, Adjudication of Spanish-Mexican Land Claims in California, in LAND AND LAW IN CALIFORNIA 9 (1991). For further discussion on and sources for researching Spanish and Mexican Land Grants, see SAUNDERS, supra note 1, at 490-91, 496-98, 507-14.

[FN104]. Letter from H.W. Halleck to the Judges and Inspectors of San Francisco (June 5, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 775.

[FN105]. See SHINN, supra note 6, at 122.

[FN106]. In 1849, $23 million in gold had been mined. Gold revenues peaked in 1853 and within a decade had receded below the 1849 levels. Id. at 109, 146, 157.

[FN107]. Id. at 132.

[FN108]. Letter from R.B. Mason to Adjutant General R. Jones (Aug. 17, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 528-36.

[FN109]. Letter from R.B. Mason to Adjutant General R. Jones (Aug. 17, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 533; Letter from R.B. Mason to Adjutant General R. Jones (Nov. 24, 1848), id. at 648; SHERMAN, supra note 22, at 44-45.

[FN110]. See YALE, supra note 25, at 19; SHINN, supra note 6, at 117; GRIVAS,

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supra note 14, at 134 (citing WILLIAM S. M'COLLUM, CALIFORNIA AS I SAW IT 51-52 (Talisman Press 1960) (1850); Letter from R.B. Mason to Adjutant General R. Jones (Aug. 30, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 785-92, 788-98.

[FN111]. See RODMAN W. PAUL, CALIFORNIA GOLD: THE BEGINNING OF MINING IN THE FAR WEST 210 (1947); Charles S. Cushing, The Acquisition of California, Its Influence and Development Under American Rule, 8 CAL. L. REV. 67, 76 (1920); JOHN R. UMBECK, A THEORY OF PROPERTY RIGHTS 69-70 (1981).

[FN112]. Proclamation of R.B. Mason (Feb. 12, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 452. The term "denouncement" referred to a procedure used to reclaim abandoned or unused claims, but by this action Mason is thought to have meant to abolish the Mexican laws pertaining to the establishment of rights in new and old mines. UMBECK, supra note 111, at 69 n.6. See also YALE, supra note 25, at 12. Apparently, Halleck disapproved of this action and, for this reason, did not countersign this proclamation as he would normally have done. Id. at 17.

[FN113]. See SHINN, supra note 6, at 113; PAUL, supra note 111, at 197-209. M'COLLUM, supra note 110, at 147.

[FN114]. See POWELL, supra note 5, at 89.

[FN115]. See SHINN, supra note 6, at 123-31.

[FN116]. One mining region "alcalde" was future United States Supreme Court Justice Stephen J. Field. Field's own description of the office has been frequently quoted: "Under the Mexican law, alcaldes had, as already stated, a very limited jurisdiction. But in the anomalous conditions of affairs under the American occupation, they exercised almost unlimited powers. They were, in fact, regarded as magistrates elected by the people for the sake of preserving public order and settling disputes of all kinds. In my own case, and with the approval of the community, I took jurisdiction of every case brought before me. I knew nothing of Mexican laws; did not pretend to know anything of them; but I knew that the people had elected me to act as magistrate and looked to me for the preservation of order and the settlement of disputes; and I did my best that they should not be disappointed." STEPHEN J. FIELD, PERSONAL REMINISCENCE OF EARLY DAYS IN CALIFORNIA 19-22 (Da Capo Press 1968) (1893). Field was elected alcalde in January 1850, before

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statehood, but after the first constitutional convention and the transfer of the government from the military to a civil regime. Accordingly, Field took care to have himself confirmed as a justice of the peace by California's first governor. Id. at 19. Whatever Field's title, he was alcalde neither under Mexican nor military rule and his remarks should not be used to assess the office of the alcalde in either system.

[FN117]. See Letter from R.B. Mason to Adjutant General R. Jones (Aug. 17, 1848), in H.R. EXEC. DOC. NO. 17, supra note 17, at 528-36; Letter from R.B. Mason to Adjutant General R. Jones (Nov. 24, 1848), id. at 648.

[FN118]. See, e.g., ROYCE, supra note 47, at 271-376; PAUL, supra note 111, at 204-09.

[FN119]. See PAUL, supra note 111, at 233.

[FN120]. Arvo Van Alstyne, The California Civil Code, in CAL. CIV. CODE 1, 1 (West 1954).

[FN121]. See PAUL, supra note 111, at 212-13; YALE, supra note 25, at 58.

[FN122]. See YALE, supra note 25, at 59.

[FN123]. POWELL, supra note 5, at 89.

[FN124]. The Criminal and Civil Practice Codes drafted by Stephen Field in the second legislative session were based closely on the acts drafted by his brother, David Dudley Field, for the New York legislature. CARL BRENT SWISHER, STEPHEN J. FIELD, CRAFTSMAN OF THE LAW 54 (1969).

[FN125]. "In actions respecting 'Mining Claims' proof shall be admitted of the customs, usages, or regulations established or in force at the bar, or diggings, embracing such claim; and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the actions." An Act to Regulate Proceedings in Civil Cases, in the Courts of Justice of this State, ch. 5, § 621, 1851 Cal. Stat. 149.

[FN126]. See PAUL, supra note 111, at 226-27.

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[FN127]. Id. at 233 (quoting MINING & SCIENTIFIC PRESS, July 14, 1866) [descriptions added].

[FN128]. Letter from James Buchanan to William Vorhies (Oct. 7, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 7-8; see also Letter from Brevet Major General Persifor F. Smith to Messrs. James Creighton, George Hyde, Henry A. Harrison, Thomas J. Roach, Talbot H. Green (Mar. 10, 1849), id. at 732- 36 (discussing the status of the military government).

[FN129]. See HUNT, supra note 47, at 64-84; 80-81; William E. Franklin, Peter H. Burnett and the Provisional Government Movement, 40 CAL. HIST. SOC'Y Q. 123-36 (1961).

[FN130]. Thomas H. Benton, United States, ALTA CALIFORNIAN (San Francisco), Jan. 11, 1849, at 2.

[FN131]. Id.

[FN132]. See, e.g., PETER H. BURNETT, RECOLLECTIONS AND OPINIONS OF AN OLD PIONEER 294 (Da Capo Press 1969) (1880) (The full text of the resolutions passed in Sacramento appear at 296-98); Provisional Government, ALTA CALIFORNIAN (San Francisco), Jan. 4, 1849, at 2; Provisional Government, ALTA CALIFORNIAN (San Francisco), Jan. 25, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Feb. 22, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Mar. 1, 1849; Provisional Government, ALTA CALIFORNIAN (San Francisco), Mar. 22, 1849.

[FN133]. The Legislative Assembly--The Alcalde--The Military and the De Facto Government, ALTA CALIFORNIAN (San Francisco), Mar. 29, 1849.

[FN134]. Public Meeting, ALTA CALIFORNIAN (San Francisco), Feb. 15, 1849), at 2.

[FN135]. In November 1848, a clearly discouraged Mason had asked to be reassigned: "The war being over, the soldiers nearly all deserted, and having now been from the States two years, I respectfully request to be ordered home." Letter from R. B. Mason to Adjutant General R. Jones (Nov. 24, 1848), in H.R. EXEC. DOC. NO. 17, supra note 21, at 649. Mason died of cholera in St. Louis in the summer of 1849,

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shortly after leaving California. 6 BANCROFT, supra note 9, at 274.

[FN136]. Proclamation of B. Riley (June 3, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 776. Harlow claims that Riley was relying on Mexican law for precedent, but that is not clear from the text of the proclamation. HARLOW, supra note 47, at 325 and accompanying notes.

[FN137]. "Whatever may be thought of the right of the people to temporarily replace the officers of the existing government by others appointed by a provisional territorial legislature, there can be no question that the existing laws of the country must continue in force till replaced by others made and enacted by competent power. That power, by the treaty of peace, as well as from the nature of the case, is vested in Congress.... The situation of California in this respect is very different from that of Oregon. The latter was without laws, while the former has a system of laws, which, although somewhat defective and requiring many changes and amendments, must continue in force till repealed by competent legislative power. The situation of California is almost identical with that of Louisiana; and the decisions of the Supreme Court in recognizing the validity of the laws which existed in that country previous to its annexation to the United States, where not inconsistent with the constitution and laws of the United States, or repealed by legitimate legislative enactments, furnish us a clear and safe guide in our present situation." Proclamation of B. Riley, supra note 136, at 777.

[FN138]. "As Congress has failed to organize a new territorial government, it becomes our imperative duty to take some active means to provide for the existing wants of the country. This, it is thought, may be best accomplished by putting in full vigor the administration of the laws as they now exist, and completing the organization of the civil government by the election and appointment of all officers recognized by law." Id.

[FN139]. Id.

[FN140]. Id. at 778.

[FN141]. Letter from B. Riley to Adjutant General R. Jones (June 30, 1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 749.

[FN142]. See, e.g., Letter from B. Riley to Governor [sic] L.W. Boggs (Aug. 10,

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1849), in H.R. EXEC. DOC. NO. 17, supra note 21, at 807; Letter from H.W. Halleck to J. E. Brackett (Aug. 17, 1849), id. at 809; Letter from H.W. Halleck to Judge Wm. B. Almond (Oct. 3, 1849), id. at 836; Letter from H.W. Halleck to Judge J.W. Geary (Oct. 3, 1849), id. at 836; Letter from H.W. Halleck to Captain J.E. Brackett (Oct. 3, 1849), id. at 837; Letter from H.W. Halleck to J.B. Donalen and Francis J. Russell (Oct. 4, 1849), id. at 839; Letter from H.W. Halleck to P.M. Foley (Nov. 3, 1849), in S. EXEC. DOC. NO. 52, supra note 36, at 22; Letter from H.W. Halleck to Prefect David Spence (Nov. 5, 1849), id. at 22; Notice from H.W. Halleck (Nov. 17, 1849), id. at 28; Letter from H.W. Halleck to E.O. Crosby (Dec. 4, 1849), id. at 34.

[FN143]. The first constitution did adopt the principle of community property. CAL. CONST. art. XI, § 14 (1849). For a discussion of whether the civil law concept of community property was ever actually implemented in California, see Susan Westerberg Prager, The Persistence of Separate Property Concepts in California's Community Property System, 1849-1975, 24 UCLA L. REV. 1 (1976).

[FN144]. H.R. EXEC. DOC. NO. 17, supra note 21.

[FN145]. One author has identified more than two hundred printed memoirs. John E. Baur, Early American California, 1848-1880, in A GUIDE TO THE HISTORY OF CALIFORNIA 22 (Doyce B. Nunis, Jr. & Gloria Ricci Lothrop eds., 1989).

[FN146]. See, e.g., THE LARKIN PAPERS; PERSONAL, BUSINESS, AND OFFICIAL CORRESPONDENCE OF THOMAS OLIVER LARKIN, BUSINESSMAN AND UNITED STATES COUNSEL IN CALIFORNIA (George P. Hammond ed., 1951-1968).

[FN147]. A GUIDE TO THE HISTORY OF CALIFORNIA, supra note 145.

[FN148]. GRIVAS, supra note 14.

[FN149]. HUNT, supra note 47.

[FN150]. BOWMAN, supra note 37, at 66.

[FN151]. GATES, supra note 102, at 8-9 and accompanying notes.

[FN152]. See CHARLES CHAPMAN, A HISTORY OF THE SPANISH PERIOD:

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THE SPANISH PERIOD 500 (1921).

[FN153]. Professor Langum advises against relying too much on the accuracy of this translation: "The problems with the translation are that the sections have been renumbered, not all sections of the statute are translated, and those sections that are translated are not all complete." LANGUM, supra note 4, at 35-7 nn.21-22.END OF DOCUMENT


California Law ReviewJuly, 1990

*853 TERRITORIAL GOVERNMENTS AND THE LIMITS OF FORMALISM

Gary Lawson [FNa]

Copyright 1990 by the California Law Review, Inc.; Gary Lawson

INTRODUCTIONFor much of this nation's history, the governance of American territories, such as the island of Guam, was one of the most significant and oft-litigated problems of American constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation of powers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of separation of powers. He then critically discusses the constitutional histor of these territorial institutions-a history that represents the Supreme Court's most consistent, and perhaps earliest, rejection of

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formalist methodology. Finally, he argues that the political consequences of applying formalism to territorial administration need not be as profound as a straightforward analysis might suggest.The 1980s were eventful times for separation of powers enthusiasts. The decade yielded an uncommonly large number of important Supreme Court decisions concerning the Constitution's internal allocation of federal governmental authority; [FN1] all told, the Court decided ten major *854 cases, [FN2] plus a few minor ones, [FN3] in which such issues of constitutional structure played a central role. These often sharply divided decisions employed a bewildering array of inconsistent methodologies, alternately raising and dashing the hopes both of formalists (such as myself) who advocate strict adherence to the Constitution's particular tripartite structure and of functionalists who urge flexibility to accommodate the modern administrative state. [FN4] The lower federal courts also dealt with a substantial number of separation of powers questions, ranging from *855 whether the President can exercise a pocket veto [FN5] when an agent of Congress is available to receive the return of a bill [FN6] to whether the appointments clause [FN7] applies to officials of an interstate compact agency. [FN8] Moreover, many of these cases were instigated or welcomed by important actors in the executive branch, whose frequent and forceful pronouncements-both in and out of court-on numerous controversial separation of powers matters helped give the subject an uncommon public visibility. [FN9] In all, the decade witnessed the most varied and sustained assault on the institutional structure of the federal government in half a century.There were several near misses as well. [FN10] One case in particular stands out as the proverbial big one that got away, and it escaped with virtually no recognition that it was ever on the hook. In 1985, the Ninth *856 Circuit Court of Appeals decided Sakamoto v. Duty Free Shoppers, Ltd., [FN11] ending a lengthy squabble among gift merchants in the American territory of Guam. The facts of the case presented the unlikely but intriguing constitutional question of whether the appointments clause applies to the chief executive of the Guamanian territorial government. As it turns out, however, the question was so unlikely that none of the parties or courts thought to ask it at any stage of the proceedings, and the case quietly faded into obscurity.From the standpoint of formalists, who are generally unhappy with the federal courts' recent track record in separation of powers cases, [FN12] this oversight may be something of a blessing. The questions lurking behind Sakamoto, however, are too important-both substantively and historically-to be left unasked. Formalists who reflect carefully on the relationship between territories and the Constitution are likely to find themselves doubting, if they did not already doubt, the constitutional validity of institutions of territorial governance that have existed since the nation's founding.

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Moreover, the list of potentially troubling institutions includes the principal administrative devices that Congress has employed over the years to provide territorial inhabitants with some measure of self-determination-a goal whose normative appeal today goes unquestioned in polite company. Thus, formalists must seriously entertain the no doubt unappetizing possibility that democratic self-governance in the territories is unconstitutional. [FN13]The subject of territorial governance has an important historical dimension as well. Those who inquire into the applicability of the Constitution's structural provisions to territorial officials will find themselves embarked on a long and arduous, but richly rewarding, journey through some long-forgotten crevasses of constitutional history. Although the question of the proper relationship between territories and the Constitution has largely disappeared from the legal scene in modern times, it occupied much of the energy of the courts in the nineteenth and early twentieth centuries. [FN14] Participants in and observers of the modern *857 revival of interest in separation of powers do themselves a disservice if they overlook this oft-ignored chapter of American constitutional history. Its lessons are consistently enlightening, often discomfiting, and more than occasionally entertaining.My goal here is to bring forth both the analytical and historical insights that emerge from a close investigation of the peculiar institution of American territorial governance. Part I of this Article, however, opens the discussion on a somewhat discordant theoretical note by setting forth my conception of formalism. Readers who are numbed by the prospect of a conceptual analysis of formalism can-and should-simply skip directly to the more sprightly historical narrative beginning in Part II. Part II uses the peculiar facts of Sakamoto to introduce and illustrate the complex separation of powers issues raised by questions of territorial status. The discussion then highlights the unbridgeable distance between the formalist approach to these issues and the dominant historical and current doctrinal understandings of the respective roles of the political branches and the Constitution in structuring territorial governments. Part III pursues the historical enterprise in earnest, surveying and critically discussing the explicitly antiformalist constitutional history of the principal organs of territorial governance. This survey reveals that formalism's demise was the product of default as much as design; historically, formalism has not been so much rejected as ignored. Part IV then reflects on the consequences of formalism for territorial administration, suggesting that they need not be quite as dramatic-or threatening-as they may seem at first glance.

I

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A TERMINOLOGICAL PROLOGUEWhatever "formalism" and "functionalism" might mean in the abstract, [FN15] they have become terms of art in discourse concerning separation of powers. [FN16] Formalists treat the Constitution's three "vesting" *858 clauses [FN17] as effecting a complete division of otherwise unallocated federal governmental authority among the constitutionally specified legislative, executive, and judicial institutions. Any exercise of governmental power, and any governmental institution exercising that power, must either fit within one of the three formal categories thus established or find explicit constitutional authorization for such deviation. [FN18] The separation of powers principle is violated whenever the categorizations of the exercised power and the exercising institution do not match and the Constitution does not specifically permit such blending. [FN19]The formalist method is concededly easier to describe than to apply, because not all governmental activities are associated with only one particular institution. For example, Congress can resolve disputes concerning government contracts by passing private bills or by entrusting the dispute resolution to courts. The activity can thus be either legislative or *859 judicial, depending upon which institution performs it. [FN20] Similarly, certain political bodies can be simultaneously part of more than one governmental institution. One can imagine-and Congress has on occasion created-bodies that perform both judicial and executive functions, enjoying independence in the exercise of the former but answering to the President for the performance of the latter. [FN21] The formalist, however, views these areas of overlap among the three constitutional functions and institutions as limited. Outside of these areas, and absent constitutional authorization to the contrary, formalism maintains that each institution must exercise its correlative power and no others, without regard to the pragmatic usefulness or harmlessness of having the "wrong" institution exercise a power.As I employ the term (and others are free to employ it differently), formalism is inextricably tied to both textualism and originalism, although the three concepts are logically distinct. Textualism declares that the meaning of the Constitution is to be found exclusively in the document's text and structure, and any inferences to be drawn therefrom. [FN22] Originalism specifies the point in time and space at which the values of the relevant interpretative variables are to be determined; for purposes of this discussion, it is sufficient to fix that time and space as "the late eighteenth century in America." [FN23] Formalism, at least in my hands, is an application of originalist textualism to questions of constitutional *860 structure. Defined more precisely, formalism consists of a substantive principle of interpretation ("Resolve separation of

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powers questions using only the text, structure, and background of the Constitution, applying late eighteenth-century America as the locus of meaning for those interpretative variables") and a primary inference ("The vesting clauses divide otherwise unallocated federal governmental authority into three kinds of functions and fully distribute it among three distinct sets of institutions").Formalism can usefully be contrasted with functionalism, its principal methodological competitor in the separation of powers arena. [FN24] In its simplest formulation, functionalism asks "whether the exercise of the contested function by one branch impermissibly intrudes into the core function or domain of another branch." [FN25] In other words, the question of blending is treated as one of degree rather than, as with formalism, one of kind. A different strand of functionalism begins with the (correct) observation that " t he constitutional text addresses the powers only of the elected members of Congress, of the President as an individual, and of the federal courts ." [FN26] The Constitution does not speak of "branches" as such, nor does it discuss the institutions of government subordinate to the three named heads of authority. The functionalist thus infers that Congress is free to allocate authority as it pleases among subordinate institutions (however formalists would characterize them), as long as the "overall character or quality" [FN27] of the relationships between those institutions and the named heads of government is consistent with the latters' performance of their core functions. [FN28]Functionalism is not the only possible alternative to formalism. [FN29] In *861 particular, the antiformalist decisions catalogued in Parts II and III do not necessarily embrace functionalism, at least not as functionalism is understood by its most prominent adherents. This Article does not attempt to defend formalism either as a descriptive theory of interpretation or as a normative theory of governmental decisionmaking. My reasons for avoiding any such tasks are straightforward: I do not do the former because I believe that an adequate account of any interpretative theory must be embedded in a more general treatment of epistemology, and I do not do the latter because I believe that any normative proposition must be derived from a foundationally sound moral theory. [FN30] Accordingly, my aims here are descriptive and historical. I seek to examine the consequences of applying formalism to the governance of territories and to bring to light some important (or at least interesting) aspects of the history of the Supreme Court's rejection of formalism in this area. Persons who are looking for reasons to become formalists will, at least for now, have to look elsewhere.

II

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FORMALISM AND TERRITORIAL STRUCTUREThe constitutional status of territories has been at the center of some of the most famous and contentious cases in American constitutional history, such as the Insular Tariff Cases, [FN31] Dred Scott v. Sandford, [FN32] and Marbury v. Madison. [FN33] This is improbable company for Sakamoto v. *862 Duty Free Shoppers, Ltd. [FN34] This is not to say that Sakamoto was unimportant. It was in fact the culmination of a hard-fought struggle over the Guamanian macadamia nut candy monopoly. But while the struggle was (in its own way) epic, none of the participants saw the case as raising any questions of separation of powers, much less any momentous ones. Nonetheless, the questions implicit in Sakamoto make the case an ideal vehicle for airing some significant issues of constitutional structure.

A. Of Monopolies and Macadamia NutsGuam, one of the Mariana Islands, has been an American possession since it was ceded to the United States by Spain in 1899. [FN35] Since 1950, it has been administered by a civilian territorial government enjoying considerable local autonomy granted by Congress, [FN36] including specifically the power to impose "royalties for franchises, privileges, and concessions." [FN37] The territorial government has used that power to raise revenues for airport improvements by auctioning off monopolies on the sale and delivery of goods at the Guam International Airport. [FN38]Plaintiff Sakamoto and defendant Duty Free Shoppers, Limited ("DFS") sold gift merchandise in Guam, with Sakamoto's principal product evidently being Hawaiian Host macadamia nut candies. [FN39] The rival gift merchants competed primarily for the business of Japanese tourists, "who purchase gifts or 'omiyage' to carry back to Japan." [FN40] The Japanese are an exigent clientele who "expect and demand that their gift purchases be delivered to them at the airport so that they will not be inconvenienced during their vacation." [FN41] Hence, the right to deliver goods sold elsewhere on the island to departing passengers at the Guam International Airport Terminal is of great importance to merchants competing for this vital segment of the tourist trade.*863 Since 1975, the airport terminal has been under the direct control of the Guam Airport Authority ("GAA"), an instrumentality of the territorial Government of Guam. [FN42] In 1978, the GAA publicly sought bids on a fifteen-year exclusive concession for the sale and delivery of gift items at the terminal. [FN43] DFS demonstrated the

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importance of airport delivery rights by submitting a winning bid of more than $140,000,000. [FN44]Following an impressive series of attempts by Sakamoto to circumvent the exclusive concession, which led to an equally impressive series of warning letters from the GAA, [FN45] Sakamoto filed suit against DFS, the GAA, and the Government of Guam, seeking invalidation of the franchise provision granting exclusive terminal delivery rights to DFS. When the case reached the Ninth Circuit Court of Appeals, the challenge to the provision was essentially twofold. First, Sakamoto argued that the delivery restriction violated the dormant commerce clause, [FN46] a claim that was correctly rejected by the Ninth Circuit for reasons that are of only tangential concern here. [FN47] Second, Sakamoto alleged that the concession *864 agreement violated the federal antitrust laws. [FN48] The principal defense proffered against this claim was the antitrust immunity typically enjoyed by agencies or instrumentalities of the federal government. And thereby hangs our tale.It is well-settled that the antitrust laws do not apply to federal agencies or instrumentalities. [FN49] It is also well-settled that territorial governments like Guam's are "entirely the creation of Congress," [FN50] which has "general and plenary" [FN51] authority over the territories. Congress has passed statutes granting Guam substantial powers of self- government, [FN52] but that is purely a matter of legislative grace; the territory "'has no inherent right to govern itself."' [FN53] Given this dependence on congressional authorization, the Supreme Court has characterized territorial governments as "'agenc ies of the federal government."' [FN54] The defendants in Sakamoto had no trouble completing the syllogism: If the Government of Guam is a federal agency, and if federal agencies are entitled to immunity from the antitrust laws, then the Guamanian government's creation of an exclusive franchise must enjoy antitrust immunity. The District Court, [FN55] the Court of Appeals, [FN56] and the Solicitor General [FN57] all readily accepted this syllogism. The Supreme Court denied certiorari, [FN58] and the case disappeared.*865 When it disappeared, it took with it an unposed problem of remarkable dimension. The appointments clause of the Constitution provides that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [FN59]The Constitution does not tell us which of the millions of federal employees rise to the level of "officers of the United States," [FN60] whose appointments must conform

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to this clause. [FN61] The Supreme Court in Buckley v. Valeo [FN62] was surely nonetheless correct to include as officers "any appointee s exercising significant authority pursuant to the laws of the United States." [FN63] Theresponsibilities of the territorial governor of Guam include "the faithful execution of the laws of Guam and the laws of the United States applicable in Guam." [FN64] By any reasonable definition, that makes him an "officer of the United States," [FN65] who thus must be appointed in full conformity with the appointments clause. The point was recognized by the 1950 Organic Act creating the Government of Guam, [FN66] which originally provided that the governor would be "appointed by the President, by and with the advice and consent of the Senate." [FN67]In 1968, however, the Organic Act was amended by the Guam Elective Governor Act, which provided that the office of governor (and the newly created office of lieutenant governor) was to be filled through popular *866 election. [FN68] Since this election procedure does not conform to the appointments clause, it seems that the governor of Guam-and by necessary implication his subordinates-can no longer properly be charged with executing the laws of the United States. But if no Guamanian officials are empowered to execute the laws of the United States, how can the Government of Guam be a federal agency? Since the antitrust immunity of the GAA's grant of an exclusive concession was upheld by the court of appeals solely on the strength of an agencies-are-immune-and- Guam-is-an-agency syllogism, a full assessment of the validity of DFS's monopoly on airport macadamia nut candy deliveries requires an inquiry into the application of the appointments clause to Guamanian officials. [FN69]

B. Territorial Executives and the Appointments Clause

1. The Formalist AnswerTo a formalist, it seems obvious that the appointments clause applies to territorial officials. The clause itself is perfectly general: its plain meaning is that anyone who is an officer of the United States must take office through one of the specified modes of appointment. [FN70] Territorial officials charged with executing federal law in their federally governed territories seem indisputably to be federal officers.Of course, not all persons playing a significant role in the enforcement of federal statutes must necessarily be officers of the United States. From the time of the nation's founding, state officials have often been called upon to implement federal statutes, [FN71] but those officials are not by virtue of that fact subject to the appointments clause. State officials, however, draw their powers from an independent sovereign

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entity within a system of dual governmental sovereignty; their authority is part of the background against which all federal authority is exercised. Just as state judges can adjudicate federal causes of action without becoming constitutional "judges of inferior courts," [FN72] state officials can execute federal law *867 without becoming "officers of the United States." [FN73] Not so with territorial officials, who owe their existence to and derive all their powers from federal law. [FN74] Territorial officials appear unmistakably to be officers of the United States, who must be appointed in accordance with the terms of the appointments clause.No other provision of the Constitution casts doubt on this straight-forward analysis. While the Constitution specifically authorizes Congress to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States," [FN75] this power no more trumps the appointments clause than do any of Congress' other plenary powers, such as its power to regulate federal elections [FN76] or to pass all laws "necessary and proper" to execute its enumerated powers. [FN77] All are subject to the Constitution's structural constraints. [FN78] One could argue that the congressional power to admit new states [FN79] implies the power to cr ate "probationary" governments in the territories, but this at *868 most would establish that the territories clause [FN80] is superfluous, not that territorial governments are immune from constitutional prohibitions.The First Congress appears to have shared this formalist understanding of the appointments clause. The Northwest Ordinance of 1787 [FN81] provided for appointment and removal by Congress of various territorial officials, including a governor. [FN82] One of the first acts of Congress following ratification of the Constitution was to amend the Northwest Ordinance "so as to adapt the same to the present Constitution of the United States." [FN83] One of the four amendments declared that "the President shall nominate, and by and with the advice and consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled." [FN84] Thus, the First Congress evidently felt the need to ensure that the appointment of territorial officials complied with the commands of the appointments clause in order to "adapt" the Northwest Ordinance to the Constitution.This construction of the appointments clause reigned for more than 150 years in practice and has never been explicitly repudiated in theory. Prior to 1947, every statute creating a territorial government provided for direct control by the executive branch, usually through a presidentially appointed governor. [FN85] The first clear deviation from this practice *869 was a 1947 amendment to the Organic Act of Puerto Rico authorizing popular gubernatorial elections [FN86]-a practice extended by statute in 1968 to Guam [FN87] and to the Virgin Islands, [FN88] and by

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administrative order in 1977 to Samoa. [FN89] None of these amendments were accompanied by *870 explicit discussion-nor, evidently, by congressional recognition-of their constitutional implications for the appointments clause. [FN90]Case law, if one is concerned about such things, also does not specifically hold that the appointment of territorial officials need not comport with the appointments clause; [FN91] at least, I am not aware of any case directly addressing the issue. [FN92] Nonetheless, while the federal courts have not ruled on the precise issue posed by Sakamoto, the Supreme Court has described at length its views on the proper approach to questions of territorial governance. Here the formalist juggernaut comes to a crashing halt, as the Court's chosen approach is far removed from formalism-and indeed from any other recognizable constitutional theory.

*871 2. Enter the Supreme CourtTo make a long story at least a bit shorter, [FN93] present doctrine concerning the applicability of the Constitution to territories grew out of a series of cases precipitated by America's acquisition of far-flung, noncontiguous island territories during and shortly after the Spanish-American War of 1898. [FN94] These so-called "Insular Tariff Cases," [FN95] decided in 1901, concerned duties levied on goods imported from Puerto Rico into the continental United States. [FN96] In Downes v. Bidwell, [FN97] the most significant of the Insular Tariff Cases, the Court held that a tariff imposed by Congress on goods imported from Puerto Rico into the continental United States [FN98] did not violate the constitutional requirement that "all Duties, Imposts and Excises shall be uniform throughout the United States." [FN99] Although the Justices in the majority in Downes could not agree on a rationale for the decision, [FN100] the case produced a square *872 holding that at least one provision of the Constitution, which is plainly phrased as a limitation on congressional power, does not apply to congressional legislation respecting the territories in the same way that it must apply to the same or similar legislation respecting the states. [FN101]Although the Insular Tariff Cases raised only the seemingly dry question of the territories' tariff status, it is clear from a full reading of the several opinions, the arguments of counsel, [FN102] and the historical context [FN103] that these cases were generally understood to be a broad referendum on the freedom of Congress to deal with the island territories in ways at least facially prohibited by the Constitution. More specifically, the larger question lurking in the background was whether all the provisions in the Bill of Rights concerning civil and criminal procedure had to be fully extended to territories populated, in the pointed and revealing words of Justice Henry Brown, "by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought." [FN104] In 1903, two years after Downes, the

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Court explicitly addressed that question, refusing to apply certain of the Constitution's criminal procedure *873 provisions to trials in the island territories, [FN105] though again the Court reached no clear agreement on a rationale.By 1922, however, after two decades of litigation, [FN106] the Court could unanimously treat as settled law [FN107] a theory-first advanced by Justice Edward White in a concurring opinion in Downes, [FN108] and first seemingly adopted by a majority of the Court in 1904 [FN109]-that has come to be known as the "doctrine of territorial incorporation." [FN110] The doctrine turns upon a none-too-clear distinction between territories that have and territories that have not been "incorporated into the Union," [FN111] a decidedly murky phrase originated by Justice White [FN112] that probably has something to do with a territory's perceived suitability as a candidate for statehood. [FN113] If a territory is incorporated, then all provisions of the *874 Constitution are said to be "applicable" [FN114] to that territory of their own force, or ex proprio vigore. If a territory is unincorporated, then only those provisions of the Constitution that are "fundamental" [FN115] are applicable in that territory ex proprio vigore; the rest are applicable only if and to the extent that Congress has so directed. [FN116] The decisions do not explain how to distinguish fundamental from non-fundamental constitutional provisions, but the holdings indicate that the former category does not include the right to jury trial in criminal cases [FN117] or the right to indictment by grand jury. [FN118]

3. Much Ado About Nothing?While the incorporation doctrine has seemed on shaky ground in the Court on several recent occasions, [FN119] it is still at least nominally applied as the governing test to determine which constitutional provisions apply in particular territorial settings. [FN120] The doctrine, however, disintegrates-*875 not that it was ever especially coherent-as soon as one tries applying it to a provision like the appointments clause. Since Guam is an unincorporated territory [FN121] to which Congress has not specifically extended the appointments clause by statute, [FN122] if the appointments clause applies to Guamanian territorial officials, it must be by virtue of the fact that the clause is "fundamental." But it makes no sense even to consider the "fundamentality" of such a provision in the abstract, divorced from the Constitution's overall structure. One can ask whether a particular system of separation of powers is "fundamental," but it is profoundly wrong to ask the question of individual clauses. It seems likely that the incorporation doctrine was devised solely with the Constitution's direct guarantees of personal rights in mind. [FN123]Moreover, readers well versed in the law of federal jurisdiction will have noticed that the full and immediate application of the Constitution in incorporated territories is at

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odds with the long-established view, typically traced back to American Insurance Co. v. 356 Bales of Cotton, [FN124] *876 that territorial courts need not satisfy the structural requirements of article III, even in territories that post-1901 jurisprudence would regard as incorporated. [FN125] Yet the first case in which a majority of the Court purportedly accepted the territorial incorporation doctrine treated American Insurance Co. as a leading authority. [FN126]The reason for this evident lack of concern about the problem of separation of powers in territorial governance is not difficult to discern: at the time the Insular Tariff Cases were decided, considerable authority suggested that the Constitution imposed few, if any, restraints on the composition of territorial governments. In his concurring opinion in Downes v. Bidwell, [FN127] which spawned the incorporation doctrine, Justice White set forth a number of principles which he took to be either uncontroversial or clearly established by settled authority. One such principle is that Congress has essentially a free hand with respect to the structure of the territorial governments it creates: The Constitution has undoubtedly conferred on Congress the right to create such municipal organizations as it may deem best for all the territories of the United States whether they have been incorporated or not, to give to the inhabitants as respects the local governments such degree of representation as may be conducive to the public well-being, to deprive such territory of representative government if it is considered just to do so, and to change such local governments at discretion. The plenitude of the power of Congress as just stated is conceded by both sides to this controversy. It has been manifest from the earliest days and so many examples are afforded of it that to refer to them seems superfluous. [FN128]Justice White's view was, as he suggested, supported by powerful authorities, though not the ones he invoked. [FN129] Joseph Story, for example,*877 had thought it obvious that "the form of government established in the territories depends exclusively upon the discretion of congress. Having a right to erect a territorial government, they may confer on it such powers, legislative, judicial, and executive, as they may deem best." [FN130] A unanimous Court had expressed the same view in dictum in 1850. [FN131] And although the majority and dissenting Justices in the Dred Scott case [FN132] could agree on virtually nothing else, they had been united in believing that " t he form of government to be established in acquired territories necessarily rested in the discretion of Congress." [FN133]These authorities suggest a simple answer to the problem posed by the facts of Sakamoto: If Congress wants to create territorial governments with elected governors, it may do so, since it is a question of governmental structure committed entirely to its discretion. On this reasoning, the fact that all the territories were run by presidentially

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appointed officials for 150 years was due to legislative choice, not constitutional compulsion. If the First Congress thought otherwise, it was simply mistaken.The formalist analysis based on strict separation of powers thus runs counter not only to the rather vague modern case law on the Constitution's applicability to territories, but also to a clearer, more venerable tradition specifically pertaining to territorial governmental structure. It is therefore worthwhile to look closely and critically at the constitutional history of the principal organs of American territorial governance giving rise to this tradition. The history can perhaps help test the limits of formalism, and formalism-to the extent that it is viewed as a legitimate, even if nonexclusive, constitutional value-can perhaps help define the appropriate limits of the history.

III

CONSTITUTIONAL HISTORY AND TERRITORIAL STRUCTUREAlmost no one would be surprised to discover that some of our long- *878 established, long-upheld institutions of territorial governance are inconsistent with a formalist understanding of the Constitution. What may be surprising is the extent of that inconsistency. From a formalist perspective, serious constitutional problems have pervaded nearly every institution of territorial government since the nation's founding. More pointedly, a persistent, if not consistent, theme of territorial administration has been to try to afford territories as much opportunity for self-government as Congress deems conditions will permit, either as a prelude to statehood or simply as a reflection of a general commitment to democratic political theory. While the notion that territories must be governed autocratically as colonies is unlikely to have much normative appeal in this day and age, semidemocratic institutions of self-government, such as the elected Guamanian governor, are among the features of our territorial structure that raise the most serious constitutional problems for formalists. The rest of Part III explains why.

A. Article III and Territorial JudgesThe territorial institution best known to legal scholars-and whose demise would likely cause formalists the least distress-is the territorial court. Territorial judges neither "hold their offices during good behaviour" [FN134] nor "receive for their services, a compensation, which shall not be diminished during their continuance in office," [FN135] as article III of the Constitution requires for "judges, both of the supreme and

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inferior courts." [FN136] For example, Congress has created a District Court of Guam with "the jurisdiction of a district court of the United States ... and that of a bankruptcy court of the United States." [FN137] Unlike regular, life- tenured district judges, the District Judge of Guam is appointed for "the term of ten years ... unless sooner removed by the President for cause." [FN138] Although the judge's pay is pegged by statute to the salary of article III district court judges, [FN139] the federal courts will not recognize any article III barrier to a diminution of his salary. [FN140] The court system in Guam is clearly far removed from the article III model. [FN141]*879 The absence of article III guarantees makes these territorial judges vulnerable to both direct and indirect control by the political branches through threatened or actual salary reductions, removals, or denials of reappointment. More to the point for formalists, since the activities of these judges cannot plausibly be considered legislative or executive, they must be either untenured judicial officers, in violation of the plain terms of article III, or officers of no particular branch, in violation of the equally plain tripartite constitutional structure. The Constitution could not be clearer on this point: it vests "the judicial Power of the United States"- all of it, every last scrap-in courts staffed by judges who enjoy tenure during "good Behaviour" and assurances that their compensation "shall not be diminished during their Continuance in Office." [FN142] One can argue about whether certain governmental functions are exercises of judicial power, executive power, or both, but once an activity is deemed judicial, the Constitution makes unmistakably clear the kinds of officers who must perform it. The story of how the federal courts avoided this seemingly obvious conclusion is among the most mysterious in American constitutional history.

1. The Golden AgeThe odyssey of territorial tribunals in the federal courts dates back to Marbury v. Madison [FN143] in 1803. Marbury was a mandamus action to compel Secretary of State James Madison to deliver to William Marbury his signed commission as a justice of the peace for the District of Columbia, an office created by Congress in 1801 [FN144] pursuant to its authority " t o exercise exclusive Legislation in all Cases whatsoever, over the District of Columbia ." [FN145] The statute creating Marbury's office gave the District of Columbia justices of the peace the same judicial powers and duties as their counterparts in Maryland or Virginia, [FN146] but prescribed that the appointees should only "continue in office five years." [FN147] Thus, despite their adjudicative functions, the District of *880 Columbia justices of the peace were neither regarded nor constituted by Congress as life-tenured "judges of inferior courts" within the meaning of article III. [FN148]In the course of opining that Marbury had a vested right to his office and commission,

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Chief Justice Marshall declared on no fewer than five occasions that Marbury was not removable at the will of the President once Madison had signed and sealed the commission, thus legally appointing him. [FN149] This dictum on Marbury's tenure was consistent with two propositions of very different breadth. It might simply have reflected the idea that Congress could limit the President's removal power over at least some officers by giving them a fixed term of office, which is clearly what Marshall had in mind. [FN150] But the President's inability to remove Marbury would also follow from the view that Marbury, as a judicial officer, was constitutionally entitled by article III to tenure during good behavior, regardless of the terms of the statute creating his office. [FN151] The latter proposition, if it had been adopted in the nation's formative years as the Supreme Court's holding, could have had a profound influence on the course of American territorial governance.Less than a year after the Court decided Marbury, a holding of precisely such magnitude emerged from a circuit court in United States v. More. [FN152] Like Marbury, Benjamin More was appointed a justice of the peace for the District of Columbia. Unlike Marbury, he took office without incident, although the tranquility was short-lived. The 1801 statute creating More's office contained a clause entitling District of Columbia *881 justices of the peace to charge litigants for the performance of judicial services. [FN153] More was appointed to his office while this fees-for-services provision was in effect. [FN154] In 1802, however, Congress declared that so much of the 1801 statute "as provides for the compensation to be made to certain justices of the peace thereby created ... shall be, and is hereby repealed." [FN155] Seven months after this repealing statute took effect, More was criminally indicted for demanding and receiving a fee of twelve and one-half cents for adjudicating a minor debt action. [FN156] In a demurrer to the indictment, More contended that the statute purporting to repeal his authority to collect fees was an unconstitutional attempt to reduce the salary of a federal judge and was thus without legal effect. [FN157]The Circuit Court of the District of Columbia, in a split decision, agreed with More and dismissed the indictment in an overtly formalist opinion. [FN158] Writing for the majority, Judge Cranch rejected out of hand the government's suggestion that Congress, in legislating for the District of Columbia, is not subject to any constitutional limitations. [FN159] For Judge Cranch, as for formalists generally, the correct interpretation of the provision in article I empowering Congress "'to exercise exclusive legislation in all cases whatsoever, over the District "' [FN160] is that Congress may legislate for the District "in all cases where they are not prohibited by other parts of the constitution." [FN161] That being so, Judge Cranch proceeded directly to an article III analysis. [FN162] It did not occur to Judge Cranch, as it would not occur to a formalist, to try to distinguish provisions like article III's

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guaranty of judicial independence from provisions like article I's guaranty of freedom from bills of attainder or ex post facto laws. [FN163] In his view, if Congress was bound by the Constitution, it was bound by the Constitution as a whole, not simply the parts of the Constitution whose application was the least inconvenient.Judge Cranch had a similarly easy time deciding whether More was a judge of an inferior court within the meaning of article III: It is difficult to conceive how a magistrate can lawfully sit in judgment, exercising judicial powers, and enforcing his judgments by process *882 of law, without holding a court. I consider such a court, thus exercising a part of the judicial power of the United States, as an inferior court, and the justice of the peace as the judge of that court. [FN164]In a somewhat extravagant, if admirable, display of judicial restraint, Judge Cranch noted that it was unnecessary to decide whether More had a constitutional right to hold his office during good behavior. [FN165] " B ut that his compensation shall not be diminished during his continuance in office, seems to follow as a necessary consequence from the provisions of the constitution." [FN166]Judge Kilty dissented at some length, in language starkly prescient of the territorial incorporation doctrine that would emerge almost a century later: "[T]he provisions of the constitution, which are applicable particularly to the relative situation of the United States and the several states, are not applicable to this district." [FN167] Congress, he stated, is prohibited from passing bills of attainder or ex post facto laws in the District of Columbia, [FN168] but laws concerning the judiciary "cannot be tested by a provision in the constitution, evidently applicable to the judicial power of the whole United States." [FN169]John T. Mason, United States Attorney for the District of Columbia, sought review by writ of error in the Supreme Court, where he and More's counsel, Samuel Jones, resumed the argument. Jones defended the judgment below by echoing Judge Cranch's formalistic reasoning: the Constitution guards the salaries of federal judges, and More's federal office was as judicial as they come. [FN170] Jones also invoked the discussion of judicial tenure in Marbury v. Madison, where Chief Justice Marshall declared that District of Columbia justices of the peace did not *883 serve at the pleasure of the President. [FN171] That discussion was decisive, Jones argued, because Congress has no power to limit the removal of presidentially appointed officers [FN172] "unless in the case of a judge under the constitution." [FN173] Thus, he reasoned, Marshall's statements in Marbury that the President could not remove District of Columbia justices of the peace at will must have rested on the understanding that article III applies fully to those justices. Given the full applicability of article III, it would also be unconstitutional to diminish More's salary. [FN174]

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In response, Mason advanced the arguments from Judge Kilty's dissenting opinion, and more besides. Judge Kilty thought that at least some provisions of the Constitution bind Congress in legislating for the District. [FN175] Not so Mason, who averred that "Congress are under no controul in legislating for the district of Columbia. Their power, in this *884 respect, is unlimited." [FN176] Marbury, he argued, was not to the contrary, having determined only that Marbury had held office "during good behaviour for five years under the law; and not generally during good behaviour, under the constitution." [FN177] Mason also denied that More's exercise of concededly judicial power necessarily brought him within article III. Mason argued that since the judicial power in the District of Columbia extended to cases not within the various heads of federal jurisdiction set forth in article III, it was not the judicial power of the United States. [FN178] In other words, More's power may well have been judicial, but it was territorial judicial power, springing not from article III but from article I's grant of power to Congress to legislate for the District.Jones' rebuttal to this last argument speaks for itself: The executive power exercised within the district of Columbia is the executive power of the United States. The legislative power exercised in the district is the legislative power of the United States. And what reason can be given why the judicial power exercised in the district should not be the judicial power of the United States? If it be not the judicial power of the United States, of what nation, state or political society is it the judicial power? All the officers in the district are officers of the United States. By the 2d section of the third article of the constitution, the judicial power of the United States is to extend to all cases arising under the laws of the United States. All the laws in force in the district are laws of the United States, and no case can arise which is not to be decided by those laws. [FN179]Although More was concerned with the District of Columbia, it is hard to imagine a case more clearly raising the key issues concerning the constitutional status of territorial tribunals generally. [FN180] The Supreme Court never reached the merits in More, however, because Chief Justice Marshall sua sponte raised a decisive jurisdictional problem. [FN181] Accordingly, *885 the Court dismissed the writ of error for lack of jurisdiction; More got away scot-free; and a decision on the status of territorial tribunals had to await another day.Less than a year after the Supreme Court's decision in United States v. More, the Court decided Wise v. Withers. [FN182] Plaintiff-in-error Wise was, once again, a justice of the peace for the District of Columbia, who evidently did not report when called for militia duty. He was fined by a military court-martial, which sent the defendant Withers to collect the fine. Withers entered Wise's home and seized some of his goods, whereupon Wise brought an action for trespass vi et armis. [FN183]

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The case turned upon whether Wise, as a justice of the peace, was exempt from service in the militia. The law governing the organization of the militia in the District of Columbia provided for the enrollment of all nonexempt, resident, able-bodied white males between the ages of eighteen and forty-five. [FN184] Included among the categories of exempt persons were "the officers judicial and executive of the government of the United States." [FN185] The Court held that Wise was within this exemption. According to Chief Justice Marshall, the Court had already decided (presumably in Marbury v. Madison) that justices of the peace were "officers." [FN186] Withers had suggested that a distinction be drawn between officers of the United States, within the meaning of the Constitution, and officers "of the government of the United States," within the meaning of the exemption statute. [FN187] Marshall, however, would have none of it. In an eerie echo of Samuel Jones' formalistic argument in More, [FN188] he held that Wise "must be an officer under the government of the United States. Deriving all his authority from the legislature and president of the United States, he certainly is not the officer of any other government." [FN189] That left only the question whether Wise's office was either "executive" *886 or "judicial" within the meaning of the exemption statute. Marshall's affirmative answer was strikingly formalistic: "If a justice of the peace is an officer of the government of the United States, he must be either a judicial or an executive officer." [FN190] Since the case did not require the Court to assign Wise specifically to the executive or judicial branch, but merely to decide that he was necessarily within one of the two, Marshall added only that Wise's powers "seem partly judicial, and partly executive," [FN191] which was enough to exempt him from military service.Though it did not address territorial tribunals, one other early decision deserves mention, as it suggests that territories are a constitutionally integrated part of the American polity, and thus are (or so one could argue) at least presumptively within the scope of the Constitution's structural provisions. In 1815, Congress had imposed a direct tax on the states for general revenue purposes, [FN192] which it shortly thereafter extended to the District of Columbia. [FN193] In Loughborough v. Blake, [FN194] the Court upheld Congress' power to levy a direct tax on the District, invoking the authority in article I to "lay and collect Taxes, Duties, Imposts and Excises." [FN195] Chief Justice Marshall reasoned that because this grant of power was general, it extended to "all places over which the government extends." [FN196] He reinforced this conclusion by reference to the constitutional requirement that duties, imposts, and excises be "uniform throughout the United States." [FN197] Since this modification of the taxing power was plainly coextensive with the original grant of power, [FN198] the taxing power must extend throughout the United States. [FN199] The question was thus whether "the United States" includes the District of

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Columbia. Marshall thought the answer clear: " The United States is the name given to our great republic, which is composed of states and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania ....." [FN200] According to Marshall, Congress therefore had the power to extend a direct tax to the District of Columbia, but the *887 effect of the "uniformity clause" [FN201] was the requirement that any such tax be apportioned in accordance with the census, [FN202] as was then required of direct taxes imposed in the states. [FN203] One could then fairly ask: If a structural provision like the uniformity clause applies to the territories, why not other structural provisions as well? [FN204]As the first quarter of the nineteenth century closed, formalists could survey the scene with some satisfaction. United States v. More, the one square holding on the status of territorial tribunals (albeit issuing from a lower court), clearly held that territorial judges were fully federal judges under article III and were thus entitled to the guarantees of judicial independence found in the Constitution. The reasoning in both Marbury v. Madison and Wise v. Withers was consistent with this view. Loughborough v. Blake suggested, albeit ambiguously, that the territories were at least not wholly beyond the reach of the Constitution's structural provisions. And, as will be discussed later, [FN205] Marshall's famous opinion in Osborn v. Bank of the United States, [FN206] holding that all activities of a federally created corporation "arise under" federal law for purposes of article III, [FN207] seemed in precise harmony with Samuel Jones' argument in More that all activity in the District of Columbia, including the exercise of judicial power, was necessarily federal. [FN208] The conclusion that territorial judges exercised federal judicial power, and were thus entitled to the tenure and salary guarantees of article III, seemed inescapable.

2. The Fall of the Formalist EmpireIn 1828, however, formalism received a blow from which it has never recovered. In American Insurance Co. v. 356 Bales ofCotton, [FN209] *888 the Supreme Court, per Chief Justice Marshall, appeared to uphold the constitutional validity of territorial tribunals not conforming to article III. I say "appeared" because it is clear upon careful examination of the opinion that its discussion of the status of territorial courts was dictum, responding to an argument advanced by neither party. Moreover, the Court made no attempt to reconcile this dictum with its prior, and at least arguably inconsistent, case law: Marshall's murky opinion did not cite a single prior decision. Nevertheless, the opinion has been a cornerstone of all subsequent case law on territorial governance, and it both deserves and requires close scrutiny.The case involved the distribution of authority among the territorial courts of Florida

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in 1825. Congress had vested "the judicial power of the territory of Florida ... in three superior courts, and in such inferior courts, and justices of the peace as the legislative council of the territory may, from time to time, establish." [FN210] The superior courts were given broad original and appellate jurisdiction over territorial matters; [FN211] and "in all cases arising under the laws and Constitution of the United States," [FN212] they were vested with "the same jurisdiction" [FN213] that had been vested in the District Court of Kentucky by the Judiciary Act of 1789. [FN214] The Judiciary Act, in turn, gave federal district courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," [FN215] among other powers.In 1823, the Florida legislative council responded to the frequent shipwrecks off the Florida coast by creating salvage courts to be administered by local officials inferior to the congressionally created superior court judges. Specifically, the statute provided that whenever wrecked property was brought into the territory, the salvors, owners, or other responsible persons were required to report the fact "to such justice of the Peace, or Notary Public as may reside next adjacent to the place of *889 arrival." [FN216] The justice or notary [FN217] would then summon a five-person jury, which would determine the disposition of the salvaged property. [FN218] All judicial officers of the territory were limited by the Florida Organic Act to four-year terms of office. [FN219]Trouble began on February 7, 1825, when the good ship Point à Petre foundered on a reef off the coast of Florida while carrying a load of cotton, much of which was insured by the American Insurance Company and the Ocean Insurance Company. [FN220] A portion of the cargo was saved by rescue ships and brought to Key West, where a notary and five jurors held court in accordance with Florida's salvage statute. The jurors awarded seventy-six percent of the value of the rescued cotton-an unusually large amount-to the salvors. The presiding notary then conducted (and served as auctioneer at) a judicial sale, at which David Canter purchased 356 bales of the salvaged cotton. [FN221] Canter took the cotton, or at least 300 bales of it, to Charleston, South Carolina, [FN222] where he sold it to a broker who in turn resold it at auction. [FN223] The insurance companies, which had acquired by abandonment the original shipper's interest in the cotton, filed a libel (as complaints in admiralty were then called) in the District Court of South Carolina, claiming that the judicial sale in Key West was invalid and had not transferred ownership to Canter. [FN224] The district judge agreed with the insurance companies that the Key West tribunal was incompetent to adjudicate salvage cases, on the ground that admiralty jurisdiction-which he took to include salvage-*890 could not be exercised by state or territorial courts. [FN225] On cross-appeals, [FN226] Justice Johnson, sitting on circuit, reversed the judgment in favor of the insurance companies, holding the Key West sale valid and awarding all the cotton to Canter. [FN227]

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The insurance companies appealed to the Supreme Court, advancing two significant arguments. [FN228] Neither argument questioned the general constitutional validity of territorial tribunals, nor even the ability of territorial tribunals to adjudicate salvage cases. Rather, the insurance companies maintained in both arguments simply that the case had been brought in the wrong territorial court. The first argument was purely statutory. As noted earlier, the Judiciary Act of 1789 had given federal district courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," [FN229] and the territorial organic act gave the congressionally created Florida superior courts "the same jurisdiction ... in all cases arising under the laws and Constitution of the United States" as was vested in the federal District Court of Kentucky. [FN230] The insurance companies argued that if the jurisdiction of the two courts was "the same," then the admiralty jurisdiction of the superior courts must be "exclusive," and the territorial legislature was not free to confer such jurisdiction on locally created courts. [FN231] The Supreme Court correctly rejected this argument for reasons that are of little concern here. [FN232]*891 Unfortunately for posterity's sake, the insurance companies also had a constitutional argument against the jurisdiction of the Key West salvage court. The Constitution, they said, extends the judicial power of the United States "to all Cases of admiralty and maritime jurisdiction." [FN233] Moreover, the judicial power is vested "in a Supreme Court, and such inferior Courts as Congress may from time to time establish." [FN234] Thus, they argued, admiralty jurisdiction could be exercised in Florida only by congressionally created courts-namely, the superior courts. To the extent that Congress sought to authorize the territorial legislature to create courts with admiralty jurisdiction, it was prevented from doing so by article III. [FN235]Marshall's response to this argument must be read to be disbelieved: [Article III] declares, that "the Judges both of the Supreme and inferior Courts, shall hold their offices during good behaviour." The Judges of the Superior Courts of Florida hold their offices for four years. These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of the judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those Courts, only, which are established in pursuance of the 3d article of the

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Constitution; the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general, and of a state government. [FN236]This discussion extends far beyond the issues raised by the parties. The insurance companies had assumed throughout their argument that a *892 salvage action could have been brought in the territorial superior courts; at no time did they claim that admiralty jurisdiction in the territories could be vested only in federal district courts imbued with tenure and salary guarantees. [FN237] This was certainly an unwise concession for the insurance companies to have made, for if territorial courts need not conform to all of article III, it is difficult to explain why they should have to conform to the portions invoked by the insurers. As the parties had framed the case, however, the constitutional validity of the territorial superior courts was simply not at issue, and Marshall's discussion of the point was gratuitous.It was also fatuous. [FN238] Marshall offered no substantial support for his assertion that article III does not apply to the territories; the undenied fact that Congress possesses "the combined powers of the general, and of a state government" when legislating for the territories does not establish that it can exercise those powers without constitutional constraint. [FN239] Apart from that assertion, Marshall's argument amounts to the claim that because the superior court judges were not afforded article III's tenure guaranty, we might as well let those courts violate article III's jurisdictional provisions for good measure. [FN240]Notwithstanding its analytic defects, American Insurance Co. was taken without discussion by the Court nearly half a century later as a general validation of territorial tribunals operating outside the limits of article III, [FN241] and the case ever since has wreaked havoc with much of *893 the law of federal jurisdiction. [FN242] Its culmination-or, if you prefer, reductio ad absurdum-came in 1973 in Palmore v. United States, [FN243] which held that District of Columbia courts that did not conform to article III could nonetheless adjudicate criminal cases. [FN244] That is quite a distance to travel from the argument and lower court opinion in United States v. More. [FN245]*894 This odyssey has clear implications for the problem that Sakamoto presents to formalists: If Congress can create queer-duck territorial judges who need not conform to the structural requirements of article III, why can't it also create queer-duck territorial executives who need not conform to the structural requirements of article II? Or, to turn the question around, doesn't a claim that queer-duck territorial executives are unconstitutional simply ignore at least 160, and perhaps 200, years of constitutional history concerning territorial tribunals?

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B. Article II and Territorial ExecutivesI suspect that most formalists would find the prospect of ignoring 200 years of constitutional history concerning territorial tribunals quite appealing. They may, however, be less enthusiastic about the logical consequences of applying formalism to the elected officials in the executive branches of territorial governments. Consider again the elected governor of Guam, who formalists would say is disabled from executing the laws of the United States. The Organic Act of Guam charges the governor with the faithful execution of federal laws and "the laws of Guam" [FN246] enacted by the territorial legislature. Are these two distinct charges, or one? If Guamanian laws are in fact federal laws, then even territorial laws of a purely local character, enacted by local legislatures, must be administered by presidential appointees rather than by democratically elected or locally appointed and responsive officials.The question whether territorial laws are necessarily laws of the United States under article II is starkly reminiscent of the battle fought over the authority of the second Bank of the United States to sue in federal court, which the Supreme Court resolved in the Bank's favor in the companion cases of Osborn v. Bank of the United States [FN247] and Bank of *895 the United States v. Planters' Bank. [FN248] Congress created the Bank with the authority "to sue and be sued ... in any Circuit Court of the United States." [FN249] In Osborn, the Court concluded that this statute conferred subject matter jurisdiction on the federal courts, [FN250] even for simple contract actions brought by the Bank. [FN251] The next question was whether any of the sources of federal jurisdiction specified in article III could sustain so expansive a statutory grant. The only possible candidate was article III's "arising under" clause. [FN252] Chief Justice Marshall found this source adequate, employing reasoning that could be used almost verbatim in connection with territorial governments: The [bank's] charter of incorporation not only creates it, but gives it every faculty which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being, thus constituted, have a case which does not arise literally, as well as substantially, under the law? [FN253]Marshall's reasoning, while far from compelling, is nonetheless persuasive, at least when limited to federal instrumentalities. While the text of article III can sustain a

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narrower reading, [FN254] it can also sustain Marshall's, which better fits the text's evident purposes. As Osborn itself demonstrates, federal instrumentalities can receive rough treatment at the hands of the states, [FN255] and in order to protect them it may be necessary to provide a hospitable judicial forum for resolving even the most mundane common law questions. [FN256]*896 If all cases involving federal instrumentalities necessarily "arise under" the laws of the United States, so must all cases involving territorial governments-as Samuel Jones maintained in United States v. More. [FN257] Like the Bank of the United States, territorial governments are "entirely the creation of Congress." [FN258] All their powers flow from the relevant organic statutes; they cannot so much as enter into contracts without congressional authorization. It would seem that all their laws-indeed, all their acts and decisions-arise under the laws of the United States. [FN259]The Osborn Court's interpretation of article III, if correct, has implications for article II as well. If cases arising under territorial statutes *897 enacted by local legislatures are within the constitutional jurisdiction of the federal courts under article III, by implication one could conclude that the execution of those statutes is within the constitutional jurisdiction of the President under article II. [FN260] If rules promulgated by federal administrative agencies can be enforced only by appropriately appointed "officers of the United States," [FN261] it seems obvious that territorial statutes can be enforced only by properly appointed officers of the United States, not by locally elected or appointed officials. [FN262]This issue was raised by the facts of Snow v. United States ex rel. Hempstead, [FN263] though neither the parties nor the Court directly addressed it. The 1850 Organic Act creating the Utah territorial government directed the President to appoint an attorney for the territory, [FN264] but did not specify that officer's duties. The statute also created an elected territorial legislature [FN265] with power over "all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of the organic act .." [FN266] Pursuant to this authority, the Utah Legislature in 1852 provided for an attorney general for the territory, to be elected by the legislative assembly. [FN267] The attorney general was given authority, among other things, to prosecute persons accused of crimes "in cases arising under the laws of the Territory." [FN268] The territorial statute obviously contemplated a division of authority between the presidentially appointed and territorially elected attorneys: the latter would handle purely territorial affairs, such as prosecuting violations of territorial criminal laws; the former would attend to "cases in which the government of the United States is concerned," [FN269] such as those involving federal crimes.This two-tiered prosecutorial system worked without incident for twenty years, as it had in other territories. [FN270] In 1870, however, Charles Hempstead, the

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presidentially appointed United States Attorney, brought a quo warranto action against Zerubbabel Snow, the territorial attorney general, claiming exclusive authority to prosecute all criminal actions brought in the courts of the territory, whether the actions *898 involved congressional or territorial laws. [FN271] Snow conceded Hempstead's exclusive prosecutorial authority "in any case wherein the United States of America is a party, or wherein the offence is against the laws of the United States," [FN272] but he insisted on his "right and ... duty of conducting the business in the courts in cases where the Territory is a party or is interested." [FN273] The Utah Supreme Court ruled in favor of Hempstead, for reasons that remain unclear. [FN274] The United States Supreme Court reversed, construing the organic act to permit locally appointed officials to prosecute local crimes. [FN275]Although the opinion in Snow contains an offhand reference to the Constitution, [FN276] it is clear that the Court and the parties thought the case presented only an issue of statutory interpretation. [FN277] As so often happens in territorial cases, however, the Court danced on the edge of more important questions. The United States represented "that there ha d been a very common, if not a universal, custom in Territories to create Territorial prosecuting officers to prosecute ... local offences." [FN278] The Court accepted that representation, and its reading of the organic act was clearly influenced by its perception of a "long usage" of a dual prosecutorial system in the territories. [FN279] Along the way, it made some observations about this tradition that are-apart from their conclusion-strikingly reminiscent of Samuel Jones' irrepressible formalistic argument in United States v. More that all territorial actions are in truth the actions of the federal government. [FN280] It must be confessed that this [dual prosecutorial] practice exhibits *899 somewhat of an anomaly. Strictly speaking, there is no sovereignty in a Territory of the United States but that of the United States itself. Crimes committed therein are committed against the government and dignity of the United States. It would seem that indictments and writs should regularly be in the name of the United States, and that the attorney of the United States was the proper officer to prosecute all offences. But the practice has been otherwise, not only in Utah, but in other Territories organized upon the same type. [FN281]One can readily imagine a formalist nodding in approval at the first four sentences of this discussion, expecting it to end with something like, "Because the United States is the only true sovereign in the territories, the execution of territorial laws must be treated like execution of any other laws of that sovereign, and can therefore be undertaken only by properly appointed officers of the United States." No such luck: "The practice has been otherwise."This Article's starting point was the evident unconstitutionality of conferring authority

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to execute federal laws on popularly elected territorial officials. While the long tradition of presidential appointment of territorial governors [FN282] minimized these problems for much of the nation's history, it is clear from Snow that cracks in the structure of territorial executive activity had appeared even before the first election of a territorial governor was authorized in 1947. Elected officials have had important executive functions in the territories for a long time. If one were to conclude that territorial officials cannot be elected but rather must be appointed in accordance with article II in order constitutionally to exercise their authority, it would be a conclusion of no small moment. Furthermore, the conclusion does not seem to have occurred to any litigants: to the best of my knowledge, the constitutionality of having locally elected or appointed prosecutors enforce territorial laws has never been challenged. Yet if formalists are correct that territorial laws are laws of the United States and thus should be executed by persons appointed in conformity with the appointments clause, then for many decades persons in the territories have been imprisoned-and even executed-for alleged crimes prosecuted by usurpers, [FN283] and Congress' laudable desire to bring *900 some measure of democracy and self-government to the territories through local elections is constitutionally forbidden.

C. Article I and Territorial LegislaturesThe modern statutes permitting territorial citizens to elect their own governors reflect a general American commitment to democratic self-government. That commitment has influenced policy concerning the territorial lawmaking power since the nation's founding. The Northwest Ordinance of 1787 provided for a (partially) elective legislative assembly as soon as the territorial population was large enough to make an election practicable, [FN284] and elected legislatures with broad power over local affairs ever since have been a staple of territorial administration. [FN285] The reasons for this practice are obvious. In territories viewed as candidates for statehood, self- government through an elected legislature helps prepare the population for the responsibilities of statehood and establishes laws and institutions to serve as foundations for the new order upon admission to the Union. In territories with no prospects of achieving statehood, limited self-government can prepare the people for nationhood if the territory is ultimately granted full independence, as happened with the Philippines. Finally, even if self-government serves no further purpose, democratic theory suggests that some measure of self- government through a representative assembly is distinctly preferable to rule by a distant Congress, President, or cabinet secretary.To a formalist, however, locally elected legislatures are even more clearly

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unconstitutional than are elected governors. The enactment of territorial laws looks for all the world like the exercise of legislative power. If territorial laws are laws of the United States for purposes of articles III and II, there is no evident reason why they should not also be considered laws of the United States for purposes of article I. In other words, since territorial governments are wholly the creations of the federal sovereign, the legislative power they exercise must be, as Samuel *901 Jones argued in United States v. More, [FN286] the legislative power of the United States. The federal legislative power, however, is "vested in a Congress of the United States" [FN287] and cannot be delegated to other actors. [FN288] Thus, a statute granting a territorial legislature power over "all subjects of legislation of local application" [FN289] is a blatant violation of the nondelegation principle. [FN290]Even if elected territorial legislatures do not exercise legislative power as defined in the Constitution, they are unconstitutional for other reasons. If their power is not legislative, the only other plausible conclusion is that they exercise executive power by effectuating their congressionally enacted organic statutes. Remember, though, that any federal officials who execute congressional statutes must be constitutionally appointed officers of the United States, and elected territorial legislators are clearly not so appointed. Hence, whether their powers are viewed as legislative or executive, territorial legislatures cannot constitutionally be elected by the people of their territory. If they can properly exist at all, they must be subject to appointment and direction by appropriate officials of the federal government.The only evident response to this analysis is to concede the point with respect to the District of Columbia but to argue that the peculiar phrasing of the territories clause permits a different result with respect to other territories. The District clause empowers Congress to "exercise exclusive legislation in all Cases whatsoever" [FN291] concerning the District of Columbia. The territories clause, by contrast, speaks of Congress' *902 power to "make all needful rules and regulations respecting" [FN292] the territories. Conceivably, one could argue that because the latter language plainly contemplates the enactment of framework statutes for the territories rather than detailed congressional legislation, it is an explicit authorization for the delegation of power to territorial administrators.The conclusion, however, does not follow from the premise. One must remember that the "territories clause" is actually the "territory or other property" clause, authorizing Congress to enact rules and regulations "respecting the territory or other property belonging to the United States." [FN293] The inclusion of "other property" in the clause is a critical element of context. Congress surely need not enact a detailed legislative code for the purchase, use, and disposition of every item of property owned or utilized by the federal government, from public lands to office supplies.

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Framework statutes suffice for this purpose, allowing administrators the discretion to fill the necessarily large gaps in the resulting statutory scheme. This arrangement, though, is constitutionally permissible with respect to public lands and office supplies not because article IV somehow trumps the nondelegation doctrine, but because gap-filling in this context is execution rather than legislation. Hence, the most to be drawn from the language of article IV is that appointed territorial legislatures might be permissible (though even this is doubtful); [FN294] elected territorial legislatures are clearly impermissible.While the constitutional defects of elected territorial legislatures may be apparent to formalists, they did not trouble the framers or early constitutional scholars. James Madison took it for granted in The Federalist that the inhabitants of the District of Columbia would be given the power of local self-government. [FN295] Although St. George Tucker, writing in 1803, disputed Madison's assumption that a local legislature for the District of Columbia would not offend the Constitution, [FN296] his doubts did not gain currency, and Joseph Story was able to *903 dismiss them cavalierly thirty years later. [FN297]Nor has the Supreme Court been troubled by the apparent constitutional defects of territorial legislatures. The first serious constitutional challenge to the authority of a territorial legislature [FN298] reached the Court in 1904 in Dorr v. United States. [FN299] The Philippines at that time were governed by the United States Philippine Commission, a presidentially directed body exercising local legislative authority. [FN300] The Commission had enacted a criminal libel statute, [FN301] under which Dorr was prosecuted and convicted. Dorr's principal constitutional challenge to his conviction was the fact that he had been denied a jury trial. [FN302] The Supreme Court invoked the territorial incorporation doctrine [FN303] and held that the right to jury trial did not of its own force extend to the Philippines. [FN304] Dorr also argued that the libel statute was invalid because Congress could not delegate legislative authority to the Philippine Commission that had enacted it. The Court brushed this claim aside in its concluding paragraph: The [libel statute] was one of the laws of the Philippine Commission, passed by that body by virtue of the authority given the President under ... [the governing organic statute]. The right of Congress to authorize a temporary government of this character is not open to question at this day. The power has been frequently exercised and is too well settled to *904 require further discussion. [FN305]That was the full extent of the Court's discussion; it settled the matter by history, not analysis.The issue surfaced twice more in this century, in connection with elected rather than appointed legislatures, and each time led to the same result as in Dorr. In Cincinnati

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Soap Co. v. United States, [FN306] soap manufacturers challenged the validity of a tax on domestic processing of coconut oil produced in the Philippines. All funds collected under the tax were to be paid over to the Philippine treasury, [FN307] with no congressional restrictions on or instructions concerning their use. The soap manufacturers argued that Congress could not delegate its authority to determine spending priorities to the (by that time elective) Philippine legislature. [FN308] The manufacturers protested, on general nondelegation grounds, the absence of standards to guide the conduct of the delegate. [FN309] They also argued, albeit in a wholly conclusory fashion, that even with proper standards the Philippine government could not receive a delegation of the spending power. [FN310] The Court upheld the tax, flatly denying that Congress is required to provide standards to govern the use of general, lump-sum appropriations. [FN311] More significantly, the Court turned the soap companies' second argument on its head, declaring that even if an appropriation without standards for its expenditure would ordinarily be unlawful, it is permissible when Congress delegates authority to a territorial government. [FN312] "In dealing with the territories," the Court wrote, "Congress ... is not subject to the same restrictions which are imposed in respect of laws for the United States considered as a political body of states in union." [FN313] If Congress can create local legislatures with the power to tax, as the Court assumed it could, it must also be able to create them with the power to spend. [FN314]The last challenge to a territory's legislative power came in 1953 in District of Columbia v. John R. Thompson Co. [FN315] The defendant company was criminally prosecuted in the District of Columbia for violating *905 a local ordinance prohibiting racial discrimination by restaurateurs. By 1953, a frontal challenge to the District of Columbia's legislative power clearly would have been futile. As a result, the defendant sought to distinguish between the power to enact municipal and police regulations, which it conceded Congress could delegate to the District, and the power to enact legislation, which the defendant maintained was exclusively vested in Congress. [FN316] The Court rejected the distinction, holding that Congress could delegate to the District, and to other territories, all lawmaking powers that it could itself exercise. [FN317]The final tally concerning the three branches of territorial government is thus a rout: history 3, formalism 0.

D. Postscript: Article IV and the Power to Govern TerritoriesThe discussion thus far has assumed that the federal government's power to administer territories is vested in Congress by specific clauses of the Constitution: in

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the case of the District of Columbia, the pertinent clause authorizes Congress "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District"; [FN318] in the case of other territories, the relevant clause empowers Congress to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." [FN319] Other clauses may come into play, however. Consider a military occupation of foreign soil during wartime. Congress does not pass statutes for the administration of the conquered territory, whose boundaries may fluctuate from day to day. Rather, the President, through military commanders, administers the occupied territory as part of the war effort. In one sense, the occupied ground is plainly "territory" of the United States, in that American governmental officers will claim rightful authority to govern or administer that occupied land, [FN320] even if only for a short time. It is less clear whether the occupied land is "territory belonging to the United States" within the meaning of article IV of the Constitution, granting Congress the power to govern such lands. Even in the absence of congressional authority to govern, however, some power of administration seems to be constitutionally vested in the executive branch by virtue of the President's article II function as *906 "Commander in Chief of the Army and Navy of the United States." [FN321] Thus, a formalist would probably conclude that the power to administer territories is twofold: during United States military occupation of territories, the President's war powers provide authorization for territorial governance under article II, while the regular administration of territories belongs to Congress under the territories clause of article IV. [FN322]The federal courts have never accepted this analysis, although they have had considerable trouble articulating an alternative one. The issue was first discussed by the Supreme Court in 1810 in Seré v. Pitot, [FN323] in which the Court unqualifiedly affirmed the power of Congress to establish territorial governments. [FN324] The Court was less forthcoming, however, about the source of that power: The power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the constitution of the United States declares that "congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." [FN325]This passage implies that the power to govern territories would exist even in the absence of the territories clause, based on a necessary inference from the power of territorial acquisition. The problem is that the Constitution does not contain an explicit power of territorial acquisition, a fact that much concerned President Jefferson and members of Congress when they were considering the Louisiana Purchase. [FN326] In American Insurance Co. v. 356 Bales of Cotton, [FN327] Chief

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Justice Marshall nonetheless found a source for the "right to acquire and to hold territory," repeating his view that the power to govern territories could flow from *907 either the territories clause or the right to acquire territory, [FN328] and locating the latter right in the war and treaty powers. [FN329]In 1840, the Court in dictum appeared to ground the power to govern territories squarely in article IV. [FN330] Less than twenty years later, however, in Dred Scott v. Sandford, [FN331] a plurality of the Court in dictum grounded the power to govern acquired territories solely in the right of acquisition, [FN332] concluding that the territories clause applied only to the territory held in common by the states immediately prior to ratification of the Constitution. [FN333] That resolution, if it could ever have been called that, did not last long. In National Bank v. County of Yankton [FN334] in 1880, the Court summed up the situation by declaring, "It is certainly now too late to doubt the power of Congress to govern the Territories. There have been some differences of opinion as to the particular clause of the Constitution from which the power is derived, but that it exists has always been conceded." [FN335]It makes no difference to any of the arguments advanced in this Article whether the power to govern territories stems from the District clause, the territories clause, the power to acquire territory, or any combination of the three. As far as formalists are concerned, the power in any case must be exercised in a manner consistent with the Constitution and all its vital structural provisions.

IV

WHERE TO GO FROM HERE?The formalist vision of a constitutional territorial regime is vastly *908 different from the regime that has been in place for the past two hundred years. According to the formalist, all territorial laws, even those pertaining strictly to local affairs, must be enacted by the national political branches. Those laws must then be executed by officers of the United States who are appointed in conformity with the appointments clause. All judicial proceedings in the territories, whether involving national or local law, must take place before tribunals whose judges satisfy the tenure and salary provisions of article III. If Congress and the President want to have local judges with temporary appointments, that's just too bad. If the people of the territories want a participatory share in their governments, that's also too bad. And if Congress and the President share this desire for some measure of local autonomy for the territory, either

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to prepare the population for independence or simply to express a preference for democracy over autocracy, that seems to be too bad as well. The picture, in sum, appears one of constitutionally mandated colonialism, which is not likely to go over well at cocktail parties, legal symposia, or congressional committee hearings. [FN336]

So what are the options for formalists? I can envision five options, some of which raise issues far beyond the scope of this Article, but all of which deserve brief mention.The first option for formalists is to embrace colonialism with, if not normative fervor, then at least equanimity. This was in fact the position of no less a figure than Gouverneur Morris, the drafter of the territories clause of article IV. In a letter written in 1803, he explained his efforts to write colonialism into the Constitution: "I always thought that when we should acquire Canada and Louisiana, it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief, that had it been more pointedly expressed, a strong opposition would have been made." [FN337]He did a fine job. The territories clause empowers Congress to enact rules and regulations respecting "the Territory or other Property belonging to the United States." [FN338] As noted earlier, [FN339] the territories are thus lumped together with, and treated exactly like, "other property," such as *909 staplers and paper clips, which suggests that article IV is structured to facilitate their treatment as colonies. This alternative is, however, unlikely to generate much enthusiasm among today's formalists.A more plausible response, and the option that I would be inclined to adopt, is to look for political substitutes for strict self-governance. One of the often overlooked virtues of formalism is that it is ... well, formalistic. Once you know the rules, you can work around them, and quite often achieve your substantive goals without any constitutional monkey business. For example, the Constitution may forbid the outright election of territorial governors, but it does not prohibit the President and Senate from announcing, as a matter of policy, that they will appoint as governor whomever the territorial population chooses in a free, albeit formalistically nonbinding, election. Similarly, Congress could agree simply to rubber-stamp the proposals of territorial "legislatures," perhaps by adopting rules affording fast-track, no-debate treatment to bills of local concern "enacted" by elected territorial bodies. [FN340] Since such territorial legislation would in fact comply with all of the formalities of article I, the letter of the Constitution would be satisfied, and so would I.

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It is true that these substitute mechanisms place territorial self-governance at the mercy of the national political branches, but that is true in any event: no one (or at least no one who takes the Constitution at all seriously) maintains that Congress is constitutionally required to permit territories to govern themselves. Thus, while it is possible that, for example, Congress could choose not to adopt particular items of legislation "enacted" by territorial governing bodies, that would not differ significantly from the present situation, where Congress always has the option of nullifying locally enacted laws. [FN341] Perhaps there is a symbolic difference between requiring Congress to enact territorial laws and permitting it to repeal them, but that is hardly a consequence startling enough to make formalists lose any sleep.A third possible response is interpretative. The evidence is overwhelming that at the time of the framing, many of the Constitution's framers and ratifiers expected, or intended, that territories would be largely self-governing, at least to the extent of having elected legislatures. [FN342] While my analysis has linked formalism to textualism, that is a product of my perhaps idiosyncratic definition of formalism. [FN343] *910 Another formalist could maintain that my limited boundaries of formalism need to be expanded at this point to include "intentionalists," who might wish to argue that the available evidence of original intentions must color our view of the relationship between the District and the territories clauses on the one hand and the Constitution's structural provisions on the other.One might respond to this argument by invoking the plainly contrary intentions of the person who drafted the territories clause, [FN344] but given the evident consensus concerning territorial self-governance in 1787, this would be quibbling. If the task of constitutional interpretation is indeed to discover the intentions of some group of persons-the framers, the ratifiers, or both-with respect to specific questions, then at least much of the foregoing analysis is plainly misconceived. Thus, the need to distinguish carefully between textualism and intentionalism is superbly illustrated by the problems of territorial governance. A strict reading of the text and structure of the Constitution-my formalist approach-leads to conclusions almost certainly at odds with the intentions of most of the relevant participants in the Constitution's framing and adoption. To justify my view that the strict reading should prevail over the intentions, however, would require a comparative assessment of textualism and intentionalism. [FN345] For now, this interpretative response can only be noted, not evaluated.As a fourth response, formalists who are unhappy with the consequences of formalism can advocate changing the Constitution through the amendment processes that it prescribes: the procedures of article V [FN346] or direct national referenda. [FN347] Or a fifth and final response could simply be to abandon formalism on the grounds that it is morally unacceptable. Without meaning to endorse, even by implication, this

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kind of "bottom-line" approach to constitutional theory, I would simply remind those who find this last move tempting that departures from formalism have led to the doctrine of territorial incorporation, the adjudication of cases in territories by politically dependent tribunals, and some of the worst-reasoned opinions ever to blight the pages of the United States Reports. Given the relative ease with which mechanisms of territorial *911 self-governance, if desired, can be established within a formalist framework, the price of abandoning formalism seems very high indeed.

[FNa] Assistant Professor, Northwestern University School of Law. B.A. 1980, Claremont Men's College; J.D. 1983, Yale Law School. I have benefited from the questions and comments of many people, most notably Akhil Amar, John Harrison, Lee Liberman, Mike Rappaport, Marty Redish, and Judith Resnik. Special thanks are due to Herman Marcuse, who has been an institution at the United States Department of Justice during six different decades, and who first brought to my attention the peculiar problems posed by the Guamanian governor. I am grateful to the Civil Liability Program at Yale Law School and the Julius Rosenthal Fund for support during various stages of this Article's production.

[FN1]. "Separation of powers" is a term often used but seldom defined. If the statement in the text is taken as a formal definition, then there were actually far more "separation of powers" cases decided in the 1980s than I suggest below. For example, judicial deference to administrative decisionmaking is sometimes thought to raise constitutional as well as statutory questions concerning inter-branch allocations of authority. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 864-66 (1984) (dictum) (suggesting that the Constitution may require judicial deference to reasonable agency interpretations of statutes, at least where such interpretations involve the exercise of policymaking discretion); Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989) (critically discussing Chevron's purported constitutional underpinnings). More sweepingly, every statutory or constitutional case invoking an incorrect precedent implicates "separation of powers" in an important sense. See infra note 91. Applying the term "separation of powers" to these usages, however, involves too great a departure from the ordinary understanding of the term. Its usual meaning corresponds reasonably well to the range of issues represented by the cases cited at infra notes 2 & 3.

[FN2]. Mistretta v. United States, 488 U.S. 361 (1989) (upholding United States Sentencing Commission's authority to promulgate binding sentencing guidelines);

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Morrison v. Olson, 487 U.S. 654 (1988) (sustaining prosecutorial authority of an independent counsel appointed by a special court and removable only for cause); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) (plurality opinion) (endorsing a federal court's power to appoint attorneys to prosecute contempt actions); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986) (permitting) adjudication of state law counterclaims by an administrative agency); Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating conferral of executive budgetary authority on the congressionally removable Comptroller General); Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568 (1985) (approving mandatory arbitration, with limited court review, of disputes under the Federal Insecticide, Fungicide, and Rodenticide Act concerning the compensation due from "follow-on" registrants to prior registrants of similar products, for the use of the latter's research data provided to the Environmental Protection Agency); INS v. Chadha, 462 U.S. 919 (1983) (invalidating a one-house legislative veto); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (invalidating adjudication of state law contract claims by bankruptcy judges); Dames & Moore v. Regan, 453 U.S. 654 (1981) (giving effect to an executive order nullifying attachments of Iranian property and halting pending judicial proceedings against Iran); United States v. Raddatz, 447 U.S. 667 (1980) (permitting federal magistrates to preside over suppression hearings, subject to district courts' de novo redetermination of the findings).

[FN3]. Skinner v. Mid-America Pipeline Co., 109 S. Ct. 1726 (1989) (upholding congressional delegation of authority to the Secretary of Transportation to impose fees on regulated gas pipeline companies); United States Senate v. FTC, 463 U.S. 1216 (1983), mem. aff'g Consumers Union of U.S., Inc. v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (invalidating a two-house legislative veto); United States House of Representatives v. FTC, 463 U.S. 1216 (1983) (same case). Compare Public Citizen v. United States Dep't of Justice, 109 S. Ct. 2558, 2572-73 (1989) (avoiding separation of powers problem by construing the Federal Advisory Committee Act (FACA) to be inapplicable to consultations concerning judicial nominees between the Department of Justice and private groups) with id. at 2573-74 (Kennedy, J., concurring) (concluding that the FACA applies to such consultations and is an unconstitutional interference with the President's appointment power); compare also Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980) (plurality opinion) (avoiding consideration of constitutional problems with delegation of power by narrowly construing the Occupational Safety and Health Act (OSHA) of 1970) with id. at 671 (Rehnquist, J., concurring) (construing the statute more broadly and finding it unconstitutional on delegation grounds).

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[FN4]. By my reckoning, Synar and Chadha were predominantly formalist decisions; Mistretta, Morrison, Vuitton, Schor, Thomas, and Dames & Moore were functionalist; Raddatz was consistent with either approach; and Marathon was consistent with neither. For discussion of formalism and functionalism, see infra text accompanying notes 15-28.

[FN5]. See U.S. CONST. art. I, § 7, cl. 2 ("If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."). "Pocket veto" is the common term applied to the presidential practice of holding a bill without signing it in the last ten days before Congress adjourns. See J. WILSON, AMERICAN GOVERNMENT 343 (1989).

[FN6]. See Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984), vacated as moot, 479 U.S. 361 (1987).

[FN7]. U.S. CONST. art. II, § 2, cl. 2, quoted at infra text accompanying note 59.

[FN8]. See Seattle Master Builders Ass'n v. Pacific N.W. Elec. Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987). For a sampling of cases in which a decision on the merits was reached at some stage, see Ameron, Inc. v. United States Army Corps of Eng'rs, 809 F.2d 979 (3d Cir. 1986) (upholding a provision of the Competition in Contracting Act automatically staying execution on challenged government contracts until the congressionally removable Comptroller General issues recommendations on the challenge), cert. dismissed, 488 U.S. 918 (1988); Melcher v. Federal Open Mkt. Comm., 644 F. Supp. 510 (D.D.C. 1986) (holding that members of the Federal Reserve Board's Federal Open Market Committee are not federal officers subject to the appointments clause), aff'd on other grounds, 836 F.2d 561 (D.C. Cir. 1987), cert. denied, 486 U.S. 1042 (1988); Borders v. Reagan, 518 F. Supp. 250 (D.D.C. 1981) (holding that the President cannot remove a member of the District of Columbia Judicial Nomination Commission), vacated as moot, 732 F.2d 181 (D.C. Cir. 1984).

[FN9]. For a partial listing of positions publicly taken by the Reagan administration, see Rosenberg, Congress's Prerogative Over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration's Theory of the Unitary

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Executive, 57 GEO. WASH. L. REV. 627, 629-30 (1989). The most conspicuous omission from Mr. Rosenberg's list-an omission no doubt attributable to his focus on executive-legislative relations-is the Reagan administration's eminently correct suggestion that Supreme Court decisions do not and should not always bind the executive branch. See Meese, The Law of the Constitution, 61 TUL. L. REV. 979 (1987); see also Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371 (1988).

[FN10]. For example, the question of the constitutionality of law enforcement by "independent" agencies-that is, agencies whose top officials are not removable at the will of the President-never reached the Supreme Court, and received only perfunctory treatment in the lower courts before 1988. See FTC v. American Nat'l Cellular, Inc., 810 F.2d 1511, 1513-14 (9th Cir. 1987) (permitting FTC commissioners to enforce federal law); SEC v. Warner, 652 F. Supp. 647, 648-49 (S.D. Fla. 1987) (allowing civil enforcement actions by the SEC). In 1988, the decision in Morrison v. Olson, 487 U.S. 654 (1988), validated by implication the prosecutorial activities of most of these agencies as they are presently constituted. See SEC v. Blinder, Robinson & Co., 855 F.2d 677, 681-82 (10th Cir. 1988) (invoking Morrison as authority for upholding the SEC's power to commence civil enforcement actions in federal court), cert. denied, 109 S. Ct. 1172 (1989).

[FN11]. 764 F.2d 1285 (9th Cir. 1985), cert. denied, 475 U.S. 1081 (1986).

[FN12]. This is not to say that formalists did not have their moments in the sun. The Supreme Court's approach to separation of powers issues in the 1980s was inconsistent enough to please no one fully, see supra notes 1-4, and the executive branch was mostly on the formalists' side. Nonetheless, the functionalists clearly won the decade, at least in the courts and Congress, by TKO.

[FN13]. I do not find the conclusion especially troubling, but I doubt whether my reaction is representative of formalists as a class. For me, the problem with "self-governance" is that the "self" performing the "governance" is invariably a collective entity or polity. In reality, this means that some selves are governing other selves. Nonetheless, I will continue to use the term "self-governance" in its conventional sense, with all its positive modern connotations, notwithstanding my libertarian qualms.

[FN14]. "The status of American territories was once the premier constitutional

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question facing the Supreme Court, if interest in both legal circles and the general public is taken as a measure." Laughlin, The Application of the Constitution in United States Territories: American Samoa, A Case Study, 2 U. HAW. L. REV. 337, 343 (1980-81) [hereinafter Laughlin, American Samoa]. In fact, one could fairly say that twice it was the premier constitutional question facing the Court: once at the turn of this century, when debate centered on the applicability of the Constitution to possessions acquired in the "imperialist" era, see Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 COLUM. L. REV. 823, 823 (1926), and once just prior to the Civil War, when debate concerned the power of Congress to prohibit slavery in the territories, see Dred Scott v. Sandford, 60 U.S. (19 HOW.) 393 (1857).

[FN15]. For an intriguing discussion of the former, see Schauer, Formalism, 97 YALE L.J. 509 (1988).

[FN16]. Other terms with much the same meanings are sometimes employed. Professor Carter distinguishes between "evolutionary" and "de-evolutionary" approaches to the separation of powers, corresponding roughly to the distinction between functionalism and (originalist) formalism set forth below. See Carter, >From Sick Chicken to Synar: The Evolution and Subsequent De- Evolution of the Separation of Powers, 1987 B.Y.U. L. REV. 719, 719-21. Professor Miller's distinction between pragmatic (functionalist) and neoclassical (formalist) approaches captures essentially the same ideas. See Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 52-54. I do not suggest that Professors Carter and Miller, or anyone else, would subscribe wholly to my particular version of the dichotomy, but we are all at least in the same ballpark.

[FN17]. U.S. CONST. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States ...."); id. art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America."); id. art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").

[FN18]. See, e.g., Liberman, Morrison v. Olson: A Formalistic Perspective on Why The Court Was Wrong, 38 AM. U.L. REV. 313, 343 (1989) ("A formalist decision uses a syllogistic, definitional approach to determining whether a particular exercise of power is legislative, executive, or judicial. It assumes that all exercises of power must fall into one of these categories ....").

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[FN19]. It bears emphasizing that formalism does not call for adherence to some theoretically pure separation of legislative, executive, and judicial functions. Rather, it calls for adherence to the particular, theoretically "impure" structure of separation specified in the Constitution, with the three traditional categories of functions and institutions used to answer questions not specifically addressed by the text. See generally Burns & Markman, Understanding Separation of Powers, 7 PACE L. REV. 575, 578-85 (1987) (describing a formalist conception of separation of powers, with reference to explicit powers that do not fit neatly within the tripartite scheme). The Senate's power to try impeachments, U.S. CONST. art. I, § 3, cl. 6, is perhaps the most conspicuous example of constitutionally sanctioned blending of functions and institutions: the power seems clearly judicial, but the Constitution specifically permits its exercise by a legislative organ. The President's role in the lawmaking process may be an example of an explicitly authorized power that is neither legislative, executive, nor judicial. The American President's power to sign or veto legislation, id. § 7, cl. 2, is not unique among chief executives, but it is not readily classified as an "executive" power. Lawmaking is, after all, the quintessential legislative activity. Thus, the Constitution's grant of lawmaking power to the President looks at first glance like a straightforward example of executive-legislative blending. The Constitution, however, vests "[a]ll legislative powers herein granted ... in a Congress of the United States." Id. § 1 (emphasis added). Hence, the Constitution has declared, by definitional fiat, that no power vested in a federal institution other than Congress can be considered legislative. The President's lawmaking power thus appears to defy tripartite classification. (I am indebted to Bob Bennett for this insight.) Formalists can either stretch the definition of executive power to encompass the signing or vetoing of legislation, or, as I have done, simply acknowledge that the Constitution determines when its own rules do and do not apply.

[FN20]. Cf. Bowsher v. Synar, 478 U.S. 714, 749 (1986) (Stevens, J., concurring) ("[A]s our cases demonstrate, a particular function, like a chameleon, will often take on the aspect of the office to which it is assigned ...."); INS v. Chadha, 462 U.S. 919, 953 n.16 (1983) (Though his actions might "resemble 'legislative' action in some respects," "the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act.").

[FN21]. See O'Donoghue v. United States, 289 U.S. 516, 545-51 (1933) (Congress has the power to impose nonjudicial administrative functions on the District of Columbia courts). Note that while the Constitution specifically forbids legislative

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officials from simultaneously serving in other branches, U.S. CONST. art. I, § 6, cl. 2, it contains no equivalent restriction on judicial officers who wish to serve also in the executive branch.

[FN22]. One can perfectly well imagine a self-proclaimed "formalist" insisting that the intentions of the framers or ratifiers of the Constitution should be added to-or substituted for-this litany. It is indeed possible to come up with broader definitions of formalism that leave room for textualists and "intentionalists" alike. I have used a narrower definition purely for reasons of convenience. I am a textualist, not an intentionalist, and am understandably interested principally in describing and applying my own theory. To discuss my theory within the framework of a wider definition of formalism would require me to speak of "formalism wedded to a textualist jurisprudence of original semantic meaning," which seems to me reason enough not to do so.

[FN23]. I doubt whether public understanding of the language relevant to constitutional interpretation shifted significantly between 1787 and 1789. There may, however, have been quite substantial shifts in the meanings or understandings of words between, for example, 1787 and 1987. That is why textualism and originalism are distinct concepts. There is, in short, an inescapable temporal dimension to interpretation; a complete interpretative theory must not only specify the operable variables for the interpretative enterprise, but must also specify the point in time and space at which the values of those variables will be set. See generally Lawson, In Praise of Woodenness, 11 GEO. MASON U.L. REV. 21, 22 & n.8 (Winter 1988).

[FN24]. It is possible (as evidenced by the fact that some people do it) to advocate formalism with regard to separation of powers questions, while adopting entirely different approaches to other kinds of constitutional issues. See M. PERRY, MORALITY, POLITICS, AND LAW 141 (1988) (arguing that a nonoriginalist approach may be applied to some constitutional provisions while an originalist approach is applied to others); Carter, The Supreme Court, 1987 Term-Comment: The Independent Counsel Mess, 102 HARV. L. REV. 105, 119-21 (1988) (distinguishing between the interpretative theories to be applied to the "Political Constitution" and to the "Natural Rights Constitution"). I have dealt with this problem by limiting formalism by definition to the sphere of separation of powers. Thus, in my lexicon, the phrase "formalism with regard to separation of powers questions" is redundant.

[FN25]. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA.

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L. REV. 1253, 1255 (1988).

[FN26]. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions-A Foolish Inconsistency?, 72 CORNELL L. REV. 488, 493 (1987).

[FN27]. Id. at 494.

[FN28]. See generally id. at 492-96 (Professor Strauss defending his version of functionalism); Liberman, supra note 18, at 343 (explaining Strauss' position); Rosenberg, supra note 9, at 636-37 (advocating a position similar to Strauss').

[FN29]. For example, one might believe that the Constitution should be read in whatever manner best accords with the current platform of one's favorite political party-a position that cynics might suggest is somewhat better represented among scholars than many of them are prepared to admit.

[FN30]. I have elsewhere described at length some of the devices that legal scholars typically employ to avoid facing hard foundational questions of moral theory, see Lawson, The Ethics of Insider Trading, 11 HARV. J.L. & PUB. POL'Y 727, 775-81 (1988), and could easily give an equally lengthy description of the devices typically used to avoid hard foundational questions of interpretative theory. I prefer to avoid such questions openly and directly.

[FN31]. For a fuller discussion of these cases, see infra text accompanying notes 93-118.

[FN32]. 60 U.S. (19 How.) 393 (1857).

[FN33]. 5 U.S. (1 Cranch) 137 (1803). Marbury is discussed at infra text accompanying notes 143-51. Marbury raised questions about the constitutional status of judges in the District of Columbia, which might not readily be thought of as a territory. Indeed, the constitutional status of the District of Columbia is determined by a different clause of the Constitution than is the status of other "territories." Compare U.S. Const. art. I, § 8, cl. 17 (giving Congress the power "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District ... as may ... become the Seat of the Government of the United States" and over federal enclaves within states) with id. art. IV, § 3, cl. 2 (giving Congress "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United

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States"). The differing language of these clauses could conceivably have some significance with respect to the legitimacy of local legislatures, see infra text accompanying notes 284-317, but I know of no reason to think that it otherwise matters. If anything, the formalist case against the traditional institutions of territorial (self-) governance is strongest with respect to the District of Columbia, since, unlike the original territories for whom statehood was imminent, the District cannot attain statehood absent a constitutional amendment. (Note that the Constitution does not distinguish-as Congress currently does-among territories, trust territories, and commonwealths. The document provides for only four categories of political entities: the federal government, state governments, territories, and the District of Columbia. The congressional designations thus have international law consequences, but no domestic constitutional significance.)

[FN34]. 475 U.S. 1081 (1986), denying cert. to 764 F.2d 1285 (9th Cir. 1985).

[FN35]. See 48 U.S.C. § 1421 (1988) (defining the territory to be known as "Guam"); Ngiraingas v. Sanchez, 110 S. Ct. 1737, 1740 (1990) (citing Treaty of Paris, Dec. 10, 1898, United States-Spain, art. II, 30 Stat. 1754, 1755, reprinted in 11 Treaties and Other International Agreements of the United States of America 1776-1949, at 615, 616 (C. Bevans ed. 1974)).

[FN36]. The legislative power of the Guamanian government extends "to all subjects of legislation of local application." 48 U.S.C. § 1423a (1988).

[FN37]. Id.

[FN38]. See infra note 43.

[FN39]. Brief for Respondents Guam Airport Authority and Duty Free Shoppers, Ltd. in Opposition to Petition for Writ of Certiorari at A-19, Sakamoto v. Duty Free Shoppers, Ltd., 475 U.S. 1081 (1986) (No. 85-552).

[FN40]. Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1286 (9th Cir. 1985), cert denied, 475 U.S. 1081 (1986).

[FN41]. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit at 3, Sakamoto, 475 U.S. 1081 (No. 85-552).

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[FN42]. Sakamoto v. Duty Free Shoppers, Ltd., 613 F. Supp. 381, 384 (D. Guam 1983), aff'd, 764 F.2d 1285 (9th Cir. 1985), cert. denied, 475 U.S. 1081 (1986). Prior to 1975, the terminal was directly operated by the Government of Guam. Id.

[FN43]. Id. at 384-85. The government of Guam firs granted an exclusive concession in 1967, id. at 384, covering airport sales but not deliveries of goods, Brief for Plaintiffs-Appellants at 4, Sakamoto, 764 F.2d 1285 (No. 84-1587). Exclusive delivery rights were added when the concession was assigned to DFS by the original grantee in 1972. Id.

[FN44]. See Sakamoto, 613 F. Supp. at 385.

[FN45]. Initially, the procedure was as follows: Sakamoto sold the merchandise, accepted payment, and then checked it in for the customer at the airport. The airlines discontinued this practice in 1976 when DFS pointed out that the practice violated Federal Aviation Administration regulations. Sakamoto then had his employees simply deliver the merchandise to customers at the airport check-in counters, in open defiance of the exclusive franchise. The GAA put a halt to this operation in 1977. Next, Sakamoto tried delivering the goods to the departing customers' hotels, loading the goods onto tour buses, and then having his employees carry the goods from the buses to the check-in counters. In 1979 the GAA again instructed Sakamoto to stop making terminal deliveries. Sakamoto's last-ditch effort was to pay the tour agents and bus drivers to carry the merchandise into the terminal for the customers. The GAA was not amused and in 1980 issued what became the final warning letter. Id. at 385-86.

[FN46]. Try as I might, I cannot find a dormant commerce clause in the Constitution. Cf. U.S. CONST. art. I, § 8, cl. 3 ("The Congress shall have Power .... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ...."). The Supreme Court is either more perceptive or less fastidious than I. See generally Tyler Pipe Indus., Inc. v. Washington State Dep't of Revenue, 483 U.S. 232, 259-65 (1987) (Scalia, J., concurring in part and dissenting in part) (criticizing the Court's "negative commerce clause" jurisprudence); Redish & Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569 (arguing that the dormant commerce clause has no textual basis in the Constitution and is also unsupported by nontextual theory).

[FN47]. The majority held that the dormant commerce clause has no application to

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acts of the Guamanian government. Sakamoto, 764 F.2d at 1286-88. This holding is correct. The dormant commerce clause doctrine was invented by courts because of the perceived tension between congressional power to regulate interstate commerce and the independent regulatory authority of state governments. Guam, unlike the states, has only the regulatory authority specifically conferred on it by Congress. See United States v. Wheeler, 435 U.S. 313, 321 (1978). It makes no more sense to apply the dormant commerce clause to Guam than it does to apply it to the Federal Reserve Board or the Securities and Exchange Commission. Nor has Congress declared by statute that the dormant commerce clause doctrine is applicable to Guam. See 48 U.S.C. § 1421b(u) (1988) (listing constitutional provisions applicable to Guam, but not mentioning the commerce clause).

[FN48]. See 15 U.S.C. §§ 1-3 (1988).

[FN49]. See United States v. Cooper Corp., 312 U.S. 600, 606 (1941) (dictum); Jet Courier Servs., Inc. v. Federal Reserve Bank, 713 F.2d 1221, 1228 (6th Cir. 1983); Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 246 (D.C. Cir. 1981), cert. denied, 455 U.S. 919 (1982).

[FN50]. Wheeler, 435 U.S. at 321.

[FN51]. Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890).

[FN52]. See Organic Act of Guam, ch. 512, 64 Stat. 384 (1950) (codified as amended at 48 U.S.C. §§ 1421-24 (1988)); Guam Elective Governor Act, Pub. L. No. 90-497, 82 Stat. 842 (1968) (codified as amended at 10 U.S.C. § 335 (1988), 48 U.S.C. §§ 1421a-1421d, 1421f, 1422- 1422d, 1423b, 1423h-1423i (1988)). Congress has also authorized adoption of a Guamanian constitution. See Act of Oct. 21, 1976, Pub. L. No. 94-584, 90 Stat. 2899 (codified as amended at 48 U.S.C. § 1391 note (1988)).

[FN53]. Ngiraingas v. Sanchez, 858 F.2d 1368, 1371 n.1 (9th Cir. 1988) (quoting Commonwealth of N. Mariana Islands v. Atalig, 723 F.2d 682, 687 (9th Cir.), cert. denied, 467 U.S. 1244 (1984)), aff'd, 110 S. Ct. 1737 (1990). Congress retains both the statutory and inherent power to annul legislative acts of the territorial government. See 48 U.S.C. § 1423i (1988); National Bank v. County of Yankton, 101 U.S. 129, 133 (1880) (Congress has "full and complete legislative authority over the people of the territories and all the departments of the territorial governments").

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[FN54]. Wheeler, 435 U.S. at 321 (quoting Domenech v. National City Bank of New York, 294 U.S. 199, 204-05 (1935)).

[FN55]. See Sakamoto, 613 F. Supp. at 386-88.

[FN56]. See Sakamoto, 764 F.2d at 1288-89.

[FN57]. See Brief for the United States as Amicus Curiae at 10-12, Sakamoto, 475 U.S. 1081 (No. 85-552).

[FN58]. Sakamoto, 475 U.S. 1081.

[FN59]. U.S. CONST. art. II, § 2, cl. 2. The only officers whose appointments are "otherwise provided for" are the Vice President, see id. amend. XII, the officers of the militia, see id. art. I, § 8, cl. 16, and (if they are properly viewed as "Officers of the United States") the officers of the House and Senate, see id. § 2, cl. 5; id. § 3, cl. 5.

[FN60]. Cf. Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976) (per curiam) ("'Officers of the United States' does not include all employees of the United States .... Employees are lesser functionaries subordinate to officers of the United States.").

[FN61]. Cf. United States v. Germaine, 99 U.S. 508, 510 (1879) ("That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.").

[FN62]. 424 U.S. 1 (1976).

[FN63]. Id. at 126. In other words, an employee of the United States is an officer subject to the appointments clause if she is important enough to be subject to the appointments clause. Circular, perhaps, but serviceable nonetheless.

[FN64]. 48 U.S.C. § 1422 (1988) (emphasis added).

[FN65]. See text accompanying notes 70-74.

[FN66]. Organic Act of Guam, ch. 512, 64 Stat. 384 (1950) (codified as amended at

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48 U.S.C. §§ 1421-24 (1988)).

[FN67]. Id. § 6(a), 64 Stat. at 386.

[FN68]. Pub. L. No. 90-497, § 1, 82 Stat. 842, 842 (1968) (codified as amended at 48 U.S.C. § 1422 (1988)).

[FN69]. One could, of course, decide Sakamoto without making this inquiry by reasoning that even if Guam is not technically a federal agency, it is sufficiently agency-like to escape the coverage of the antitrust laws. But that would be cheating.

[FN70]. The applicable mode depends upon the status of the officer. Inferior officers can be appointed by the President, courts, or department heads without Senate confirmation, while principal officers must be appointed by the President with the Senate's advice and consent. U.S. CONST. art. II, § 2, cl. 2. Determining whether the Guamanian governor is a principal or inferior officer is unnecessary, as he is not presently appointed in conformity with any of the prescribed modes.

[FN71]. See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV. 545, 554 (1925).

[FN72]. The phrase is taken from article III of the Constitution: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior ....." U.S. CONST. art. III, § 1.

[FN73]. The phrase is from the appointments clause. See supra note 59.

[FN74]. This is true even when the relevant federal law is the organic legislation permitting their election. In a sense, officials in states admitted subsequent to ratification of the Constitution also owe their existence to federal legislation-namely, the congressional statutes authorizing the admission of new states. See generally U.S. Const. art. IV, § 3, cl. 1 (authorizing Congress to admit new states). However, under the Constitution's system of dual sovereignty, the creation of a new state has different consequences than the creation of a new territory. States are independent constitutional sovereigns; their status as states may depend on congressional legislation but their sovereign powers after formation do not. Territories, by contrast, have no independent sovereignty; their status and powers derive solely from federal law. See Cincinnati Soap Co. v. United States, 301 U.S. 308, 317 (1937); Grafton v.

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United States, 206 U.S. 333, 354-55 (1907); supra text accompanying notes 50-54. The place of Native American tribes in this constitutional scheme is a fascinating question that I am unequipped to answer. For an illuminating exploration of some of the important issues raised around tribal status, see Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. CHI. L. REV. 671 (1989). The most difficult problem for formalists in this area is the execution of federal law through private lawsuits. Where the relevant statute creates a recognizably private right, its enforcement through citizen suits does not constitute execution of the laws in the constitutional sense. But where the "right" being enforced is not plausibly private, then it seems at least worthy of discussion whether Congress can constitutionally confer enforcement authority on private parties, thereby making them "private attorneys general." A clear example of (on formalist premises) unconstitutional public enforcement by private parties is qui tam litigation, in which private parties are authorized by statute to bring civil penalty actions on behalf of the United States. But see Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341, 374-80 (1989) (offering a functionalist defense of qui tam statutes against the formalist appointments clause challenge).

[FN75]. U.S. CONST. art. IV, § 3, cl. 2 (the "territories clause").

[FN76]. See id. art. I, § 4, cl. 1; id. art. II, § 1, cl. 4.

[FN77]. Id. art. I, § 8, cl. 18.

[FN78]. See Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam) ("We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well established constitutional restrictions stemming from the separation of powers."); see also infra text accompanying notes 292-94.

[FN79]. See U.S. CONST. art. IV, § 3, cl. 1.


[FN81]. An Ordinance for the Government of the Territory of the United States north-west of the river Ohio (1787), reprinted at 1 Stat. 50, 51 n. (a) (1789).

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[FN82]. Id.

[FN83]. Act of August 7, 1789, ch.8, 1 Stat. 50, 51.

[FN84]. Id. § 1, 1 Stat. at 53. Other amendments specified that the territorial secretary was to act in the governor's absence, id. § 2, 1 Stat. at 53, all required reports were to be filed with the President, id. § 1, 1 Stat. at 52-53, and the President rather than Congress was to exercise the removal power, id. § 1, 1 Stat. at 53.

[FN85]. See Act of May 26, 1790, ch. 14, 1 Stat. 123 (Tennessee, then known only as the Territory of the United States, south of the river Ohio); Act of Apr. 7, 1798, ch. 28, § 3, 1 Stat. 549, 550 (Mississippi); Act of May 7, 1800, ch. 41, § 3, 2 Stat. 58, 59 (Indiana); Act of Mar. 26, 1804, ch. 38, §§ 2, 12, 2 Stat. 283, 283, 287 (Orleans and Louisiana); Act of Jan. 11, 1805, ch. 5, § 3, 2 Stat. 309, 309 (Michigan); Act of Feb. 3, 1809, ch. 13, § 3, 2 Stat. 514, 515 (Illinois); Act of June 4, 1812, ch. 95, §§ 2, 12, 2 Stat. 743, 744, 746 (Missouri); Act of Mar. 3, 1817, ch. 59, § 2, 3 Stat. 371, 372 (Alabama); Act of Mar. 2, 1819, ch. 49, §§ 3, 9, 3 Stat. 493, 494, 495 (Arkansas); Act of Mar. 30, 1822, ch. 13, §§ 2, 8, 3 Stat. 654, 655, 657 (Florida); Act of Mar. 3, 1823, ch. 28, §§ 2, 10, 3 Stat. 750, 750-51, 753 (Florida); Act of Apr. 20, 1836, ch. 54, §§ 2, 11, 5 Stat. 10, 11, 14 (Wisconsin); Act of June 12, 1838, ch. 96, §§ 2, 11, 5 Stat. 235, 236, 238 (Iowa); Act of Aug. 14, 1848, ch. 177, §§ 2, 11, 9 Stat. 323, 324, 327 (Oregon); Act of Mar. 3, 1849, ch. 121, §§ 2, 11, 9 Stat. 403, 404, 407 (Minnesota); Act of Sept. 9, 1850, ch. 49, §§ 3, 12, 9 Stat. 446, 447, 450 (New Mexico); Act of Sept. 9, 1850, ch. 51, §§ 2, 11, 9 Stat. 453, 453, 456 (Utah); Act of Mar. 2, 1853, ch. 90, §§ 2, 11, 10 Stat. 172, 173, 176 (Washington); Act of May 30, 1854, ch. 59, §§ 2, 12, 20, 30, 10 Stat. 277, 278, 281, 284, 288 (Nebraska and Kansas); Act of Feb. 28, 1861, ch. 59, §§ 2, 11, 12 Stat. 172, 172, 175 (Colorado); Act of Mar. 2, 1861, ch. 83, §§ 2, 11, 12 Stat. 209, 210, 213 (Nevada); Act of Mar. 2, 1861, ch. 86, §§ 2, 11, 12 Stat. 239, 239-40, 242 (Dakota); Act of Feb. 24, 1863, ch. 56, § 2, 12 Stat. 664, 665 (Arizona); Act of Mar. 3, 1863, ch. 117, §§ 2, 11, 12 Stat. 808, 809, 812 (Idaho); Act of May 26, 1864, ch. 95, §§ 2, 11, 13 Stat. 85, 86, 90 (Montana); Act of July 25, 1868, ch. 235, §§ 2, 11, 15 Stat. 178, 178, 181-82 (Wyoming); Act of May 17, 1884, ch. 53, §§ 2, 9, 23 Stat. 24, 24, 26 (Alaska); Act of May 2, 1890, ch. 182, §§ 2, 14, 26 Stat. 81, 82, 88 (Oklahoma); Act of Apr. 12, 1900, ch. 191, § 17, 31 Stat. 77, 81 (temporary civil government for Puerto Rico); Act of Apr. 30, 1900, ch. 339, §§ 66, 67, 31 Stat. 141, 153 (Hawaii); Act of June 6, 1900, ch. 786, §§ 2, 10, 31 Stat. 321, 321- 322, 325 (Alaska); Act of Mar. 2, 1901, ch. 803, 31 Stat. 895, 910 (military government for the Philippines); Act of July 1, 1902, ch. 1369, § 1, 32 Stat. 691, 691-92 (temporary civil

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government for the Philippines); Panama Canal Act, ch. 390, §§ 4, 7, 37 Stat. 560, 561, 564 (1912) (Panama Canal Zone); Act of Aug. 29, 1916, ch. 416, § 21, 39 Stat. 545, 552 (permanent government for the Philippines); Act of Mar. 2, 1917, ch. 145, § 12, 39 Stat. 951, 955 (permanent government for Puerto Rico); Act of Feb. 20, 1929, ch. 281, § (c), 45 Stat. 1253, 1253 (codified at 48 U.S.C. § 1661(c) (1988)) (Eastern Samoa); Organic Act of the Virgin Islands of the United States, ch. 699, § 20, 49 Stat. 1807, 1812 (1936) (Virgin Islands); see also Act of June 30, 1954, ch. 423, § 1, 68 Stat. 330, 330 (codified at 48 U.S.C. § 1681(a) (1988)) (Trust Territory of the Pacific Islands). The one possible exception during this period was the District of Columbia government from 1812 through 1871. When Congress initially incorporated the city of Washington, Congress provided for a presidentially appointed mayor. See Act of May 3, 1802, ch. 53, § 5, 2 Stat. 195, 196. The city's charter was amended in 1812 to provide for the election of the mayor by the popularly elected members of local boards, see Act of May 4, 1812, ch. 75, §§ 1, 3, 2 Stat. 721, 721-23, and amended again in 1820 to provide for direct popular election of the mayor, see Act of May 15, 1820, ch. 104, § 3, 3 Stat. 583, 584. This regime lasted until 1871, when the city was reconstituted as a territory with a presidentially appointed governor. See Act of Feb. 21, 1871, ch. 62, § 2, 16 Stat. 419, 419. Note, however, that the 1812 statute only authorized the elected mayor to "see that the laws of the corporation be duly executed." Act of May 4, 1812, ch. 75, § 3, 2 Stat. 721, 723 (emphasis added). This wording stands in marked contrast to the typical nineteenth-century charge to territorial governors to "take care that the laws be faithfully executed," see, e.g., Act of Mar. 26, 1804, ch. 38, § 2, 2 Stat. 283, 283 (Orleans and Louisiana) (emphasis added), presumably meaning all locally applicable federal laws, and the more explicit typical twentieth-century charge to "be responsible for the faithful execution of the laws of Porto Rico and of the United States applicable in Porto Rico." Act of Mar. 2, 1917, ch. 145, § 12, 39 Stat. 951, 955 (emphasis added). (The 1820 charter amendment contained no general declaration of the mayor's executive power.) Thus, Congress may not have thought it was giving the elected mayor of the District of Columbia the authority to execute the laws of the United States. But see text accompanying notes 258-59 (arguing that all territorial laws are laws of the United States for purposes of article II). The reader may have noticed the unusual spelling of Puerto Rico ("Porto Rico") in portions of the previous paragraph. This was the original spelling, which Congress changed to its current form in 1932. See Act of May 17, 1932, ch. 190, 47 Stat. 158; Laughlin, American Samoa, supra note 14, at 343 n.26. Similarly, Arkansas was called "Arkansaw" when it first became a territory. In this Article, I use the archaic spellings

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only when quoting material that employs them.

[FN86]. See Act of Aug. 5, 1947, ch. 490, § 1, 61 Stat. 770, 770-71. This provision was repealed when Puerto Rico's constitution took effect. See Act of July 3, 1950, ch. 446, § 5, 64 Stat. 319, 320; see also P.R. CONST. art. IV, § 1 (providing for an elected governor).

[FN87]. See Guam Elective Governor Act, Pub. L. No. 90-497, § 1, 82 Stat. 842, 842 (1968) (codified as amended at 48 U.S.C. § 1422 (1988)).

[FN88]. See Virgin Islands Elective Governor Act, Pub. L. No. 90-496, § 4, 82 Stat. 837, 837 (1968) (codified as amended at 48 U.S.C. § 1591 (1988)).

[FN89]. See Am. Samoa Rev. Const. art. IV, § 2. Samoa is governed administratively by the Secretary of the Interior, see 48 U.S.C. § 1661(c) (1988); Exec. Order No. 10,264, 16 Fed. Reg. 6419 (1951), reprinted in 48 U.S.C. § 1662 note (1988), who approved and promulgated a Samoan constitution effective as of July 1, 1967. See Am. Samoa Rev. Const. art. V, § 11. The constitutional provision mandating an elected governor (who has authority to execute United States laws, see Am. Samoa Code Ann. § 4.0111(a) (1981)), was promulgated by the Secretary in 1977. See Order No. 3009, 42 Fed. Reg. 48,398 (1977).

[FN90]. The legislative histories of the statutes pertaining to Puerto Rico, Guam, and the Virgin Islands do not mention the issue. See S. REP. NO. 422, 80th Cong., 1st Sess. (1947) (Puerto Rico); H.R. REP. NO. 455, 80th Cong., 1st Sess. (1947) (Puerto Rico); 93 CONG. REC. 7076-79, 10,402-03 (1947) (Puerto Rico); H.R. REP. NO. 1521, 90th Cong., 2d Sess. (1968) (Guam); S. REP. NO. 1704, 89th Cong., 2d Sess. (1966) (Guam); H.R. REP. NO. 1520, 89th Cong., 2d Sess. (1966) (Guam); 114 CONG. REC. 17,438-45, 23,044-47 (1968) (Guam); 112 CONG. REC. 10,545-51, 25,977-79 (1966) (Guam); H.R. REP. NO. 1522, 90th Cong., 2d Sess. (1968) (Virgin Islands); S. REP. NO. 1705, 89th Cong., 2d Sess. (1966) (Virgin Islands); H.R. REP. NO. 1519, 89th Cong., 2d Sess. (1966) (Virgin Islands); 114 CONG. REC. 17,445-50, 23,047-50, 23,692 (1968) (Virgin Islands); 112 CONG. REC. 10,551-53, 25,979-81 (1966) (Virgin Islands).

[FN91]. The relevance of precedent depends upon the question asked. If the object is to predict how courts will decide cases or to influence their decisions, then precedent is an important factor to consider. If the goal is to determine what the Constitution

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actually says about territorial governance, however, then court decisions-like executive and congressional decisions (including those of the First Congress)-must stand or fall on their merits. Cf. Lawson, AIDS, Astrology, and Arline: Towards a Causal Interpretation of Section 504, 17 HOFSTRA L. REV. 237, 313 (1989) (making the same point regarding statutory interpretation). A more difficult question is whether and to what extent case law is relevant if the goal is to prescribe correct constitutional decisions. Any time a court (or other government actor) relies on an incorrect precedent in statutory or constitutional cases, it in essence allows a past judicial decision to amend the relevant text. Theconstitutionally specified procedures for passing (and, impliedly, amending) statutes, see U.S. CONST. art. I, § 7, cl. 2, or amending the Constitution itself, either through the procedures of article V, see id. art. V, or direct national referenda, see Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988), do not give an explicit role to the judiciary. Thus, such a use of precedent arguably usurps the structural prerogatives of the President, the Congress, the states, and the people. On the other hand, it is possible that "[t]he judicial Power of the United States," U.S. CONST. art. III, § 1, vested in the federal courts, includes some power to give determinative effect to prior decisions. See R. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 157 (1990); Amar, Our Forgotten Constitution: A Bicentennial Comment, 97 YALE L.J. 281, 294 n.51 (1987). With this view, while a judicial decision contrary to the governing text might be illegitimate, the error once made acquires an authoritative status "by a sort of intellectual adverse possession." Tyler Pipe Indus. v. Washington State Dep't of Revenue, 483 U.S. 232, 265 (1987) (Scalia, J., concurring in part and dissenting in part).

[FN92]. The removal of territorial judges has been the subject of some discussion. See McAllister v. United States, 141 U.S. 174, 179-85, 189-90 (1891); United States ex rel. Goodrich v. Guthrie, 58 U.S. (17 How.) 284, 285-92, 294-99 (1854) (argument of counsel); id. at 305-12 (McLean, J., dissenting); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162 (1803) (dictum).

[FN93]. For longer versions of the story, see Coudert, supra note 14; Laughlin, The Burger Court and the United States Territories, 36 U. FLA. L. REV. 755, 762-74 (1984) [hereinafter Laughlin, The Burger Court]; Laughlin, American Samoa, supra note 14, at 343-55.

[FN94]. See, e.g., Laughlin, The Burger Court, supra note 93, at 762-63 (discussing

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acquisition of the Hawaiian Islands, Puerto Rico, Guam, the Philippines, and part of the Samoan archipelago).

[FN95]. See De Lima v. Bidwell, 182 U.S. 1, 2 (1901). The Court itself employed the term.

[FN96]. De Lima was the first-and least important-of these cases. In De Lima, the Court held that, as a matter of statutory construction, Puerto Rico ceased to be a "foreign country" within the meaning of the generally applicable tariff law, Dingley Act, ch. 11, 30 Stat. 151, 151 (1897), upon its cession to the United States by Spain. De Lima, 182 U.S. at 200. The Court applied the same reasoning in the other Insular Tariff Cases. See Goetze v. United States, 182 U.S. 221 (1901) (Hawaiian Islands); Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901) (Philippines); cf. Dooley v. United States, 182 U.S. 222 (1901) (presidentially imposed war tariff on goods imported from the continental United States into Puerto Rico ended upon ratification of the treaty of peace); Armstrong v. United States, 182 U.S. 243 (1901) (same).

[FN97]. 182 U.S. 244 (1901).

[FN98]. See Foraker Act, ch. 191, § 3, 31 Stat. 77, 77 (1900) (goods brought from Puerto Rico into the continental United States and vice versa are dutiable at fifteen percent of the generally applicable tariff rates).

[FN99]. U.S. CONST. art. I, § 8, cl. 1. This statement of the holding in Downes requires some explanation. The Constitution flatly forbids the imposition of tariffs on goods brought from one state to another. See U.S. CONST. art. I, § 9, cl. 6 ("nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another"). It also requires, as previously noted, that all tariffs "shall be uniform throughout the United States." Id. § 8, cl. 1. Thus, if Puerto Rico is part of the United States for purposes of this uniformity provision, then goods travelling between Puerto Rico and any of the states must be treated exactly like goods moving from state to state, which means that they cannot be subject to duty. Hence, the alleged uniformity problem in Downes was not that the Foraker Act provided for duties at fifteen percent rather than one hundred percent of the regular tariff rate, but that it imposed any duties at all on goods imported from Puerto Rico into the rest of the United States.

[FN100]. Compare Downes, 182 U.S. at 279, 282 (dictum) (opinion of Brown, J.)

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("[T]he Constitution is applicable to territories ... only when and so far as Congress shall so direct," at least with respect to "what may be termed artificial or remedial rights, which are peculiar to our own system of jurisprudence.") and id. at 342 (White, Shiras, & McKenna, JJ., concurring) (the uniformity clause did not bind Congress in legislating for Puerto Rico "because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession") with id. at 345 (Gray, J., concurring) (agreeing "in substance" with the concurring opinion of Justice White).

[FN101]. See also Dooley v. United States, 183 U.S. 151 (1901) (upholding a duty on goods brought into Puerto Rico from the continental United States, notwithstanding the Constitution's prohibition on taxes or duties "on Articles exported from any State") (quoting U.S. Const. art. I, § 9, cl. 5).

[FN102]. See generally THE INSULAR CASES, COMPRISING THE RECORDS, BRIEFS, AND ARGUMENTS OF COUNSEL IN THE INSULAR CASES OF THE OCTOBER TERM, 1900, IN THE SUPREME COURT OF THE UNITED STATES, INCLUDING THE APPENDIXES THERETO, H.R. DOC. NO. 509, 56th Cong., 2d Sess. (A. Howe ed. 1901) [hereinafter THE INSULAR CASES] (reprinting the lower court record, briefs and arguments of counsel).

[FN103]. For a brief summary of the historical context, see Coudert, supra note 14, at 823 ("It is difficult to realize how fervent a controversy raged [at the turn of the century] over the question of whether the Constitution follows the flag.... It led B to a bitterness which almost threatened to resemble the controversies over the Fugitive Slave Law and the Missouri Compromise.").

[FN104]. Downes, 182 U.S. at 287. The sentiments voiced by Justice Brown found expression in other Supreme Court opinions over the next twenty years: The jury system needs citizens trained to the exercise of the responsibilities of jurors.... Congress has thought that a people like the Filipinos or the Puerto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when. Balzac v. Puerto Rico, 258 U.S. 298, 310 (1922); If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the United States extends ... it would follow that, no matter what the

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needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice. Dorr v. United States, 195 U.S. 138, 148 (1904).

[FN105]. See Hawaii v. Mankichi, 190 U.S. 197 (1903) (5-4 decision, with two Justices concurring specially) (no constitutional or statutory right to indictment by grand jury or conviction by a unanimous petit jury in the Hawaiian Islands).

[FN106]. See Ocampo v. United States, 234 U.S. 91 (1914) (9-0 decision) (no constitutional or statutory right to indictment by grand jury in the Philippines); Dowdell v. United States, 221 U.S. 325 (1911) (8-1 decision) (no statutory right-and by implication no constitutional right-to indictment by grand jury in the Philippines); Dorr v. United States, 195 U.S. 138 (1904) (8-1 decision, with three concurring Justices specifically repudiating much of the majority's reasoning) (no constitutional or statutory right to jury trial in the Philippines); cf. Grafton v. United States, 206 U.S. 333 (1907) (while the same offense may be tried in federal and state courts without raising double jeopardy problems, that is not true when the same offense is sought to be tried in federal and territorial courts, since the latter derive their powers from the United States rather than from an independent source of sovereignty); Gonzalez v. Williams, 192 U.S. 1 (1904) (citizens of Puerto Rico are not aliens within the meaning of the immigration laws); Kepner v. United States, 195 U.S. 100 (1904) (prohibition on double jeopardy applies to the Philippines by statute); Mendezona v. United States, 195 U.S. 158 (1904) (following holding in Kepner). Compare Rasmussen v. United States, 197 U.S. 516 (1905) (constitutional right to jury trial applies in Alaska because the territory was incorporated into the United States by treaty manifesting the intention to grant citizenship to the inhabitants) with id. at 528 (Harlan, J., concurring) (constitutional right to jury trial applies in Alaska because it applies in all territories) and id. at 531 (Brown, J., concurring) (constitutional right to jury trial applies in Alaska because Congress so said).

[FN107]. See Balzac v. Puerto Rico, 258 U.S. 298 (1922) (9-0 decision) (no constitutional or statutory right to jury trial in Puerto Rico for misdemeanors).

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[FN108]. See Downes, 182 U.S. at 287 (White, J., concurring).

[FN109]. See Dorr, 195 U.S. at 148-49 (five justices held that only fundamental provisions of the Constitution extend to territories not made part of the United States).

[FN110]. See generally Coudert, supra note 14, at 823.

[FN111]. Balzac, 258 U.S. at 305.

[FN112]. See Downes, 182 U.S. at 299 (White, J., concurring): The sole and only issue ... is, whether the ... [special tariff on goods imported from Puerto Rico] was levied in such form as to cause it to be repugnant to the Constitution. This is to be resolved by answering the inquiry, Had Puerto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?

[FN113]. See United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 1062 (1990) (describing unincorporated territories as possessions "not clearly destined for statehood"); Granville-Smith v. Granville-Smith, 349 U.S. 1, 5 (1955) (referring to unincorporated territories as "possessions of the United States not thought of as future States"); see also Coudert, supra note 14, at 834 ("I surmise, although it is not wholly clear, that Mr. Justice White thought incorporation as a Territory implied a promise of ultimate statehood."). As a description of the original intendment of the incorporation doctrine, this at least has the virtue of explaining why, at the turn of the century, Alaska was regarded as incorporated, see Rasmussen v. United States, 197 U.S. 516, 525 (1905), while the distant islands teeming with "alien races," Downes, 182 U.S. at 287, were not. The vices of the incorporation doctrine in other respects are too numerous to mention. I take comfort in the evident inability of anyone else to define incorporation more precisely. See, e.g., Balzac, 258 U.S. at 305-13; Laughlin, The Burger Court, supra note 93, at 766-74; see also Downes, 182 U.S. at 391 (Harlan, J., dissenting) ("I am constrained to say that this idea of 'incorporation' has some occult meaning which my mind does not apprehend. It is enveloped in some mystery which I am unable to unravel.").

[FN114]. Downes, 182 U.S. at 292 (White, J., concurring).

[FN115]. Balzac, 258 U.S. at 312.

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[FN116]. The Court's most lucid description of the incorporation doctrine is found in Balzac. The Court explained why "the legislative recognition that federal constitutional questions may arise in litigation in Puerto Rico," Balzac, 258 U.S. at 312, did not establish that Puerto Rico was an incorporated territory: The Constitution of the United States is in force in Puerto Rico as it is wherever and whenever the sovereign power of that government is exerted. This has not only been admitted but emphasized by this court in all its authoritative expressions upon the issues arising in the Insular Tariff Cases, especially in the Downes v. Bidwell and the Dorr Cases. The Constitution, however, contains grants of power and limitations which in the nature of things are not always and everywhere applicable, and the real issue in the Insular Tariff Cases was not whether the Constitution extended to the Philippines or Puerto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements. The guarantees of certain fundamental personal rights declared in the Constitution, as for instance that no person could be deprived of life, liberty or property without due process of law, had from the beginning full application in the Philippines and Puerto Rico, and, as this guaranty is one of the most fruitful in causing litigation in our own country, provision was naturally made for similar controversy in Puerto Rico. Id. at 312-13.

[FN117]. See supra note 106 (Dorr case); supra note 105 (Mankichi case).

[FN118]. See supra note 106 (Ocampo case); supra note 105 (Mankichi case).

[FN119]. See Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion) ("[I]t is our judgment that neither the [Insular Tariff] cases nor their reasoning should be given any further expansion."); Torres v. Puerto Rico, 442 U.S. 465, 475-76 (1979) (Brennan, Stewart, Marshall & Blackmun, JJ., concurring) (agreeing with, and citing, the plurality sentiment expressed in Reid v. Covert).

[FN120]. See United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 1062 (1990); Torres, 442 U.S. at 468-71. Professor Laughlin approvingly describes the modern understanding of the incorporation doctrine, exemplified by King v. Morton, 520 F.2d 1140 (D.C. Cir. 1975), as "the rule that there is a presumption of constitutional applicability in the territories which can be rebutted only by a clear and convincing showing that the application of a specific constitutional provision in a particular context would be impractical or anomalous." Laughlin, The Burger Court, supra note

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93, at 780.

[FN121]. See 48 U.S.C. § 1421a (1988) (identifying Guam as "an unincorporated territory of the United States").

[FN122]. See id. § 1421b (specifying a lengthy list of constitutional provisions-and slightly altered versions of provisions-applicable to Guam, but not including the appointments clause).

[FN123]. This is somewhat ironic, as the provision for uniform tariffs specifically at issue in Downes is a structural rather than a directly personal protection. Of course, since the object of structural constraints is the (indirect) protection of personal liberty, the personal/structural dichotomy cannot be pressed too far.

[FN124]. 26 U.S. (1 Pet.) 511 (1828). From the date of its issuance, the decision has generally been cited as American Insurance Co. v. Canter. See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64 (1982) (plurality opinion); id. at 106 (White, J., dissenting); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872); Benner v. Porter, 50 U.S. (9 How.) 235, 240 (1850); M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 36 (1980); C. WRIGHT, THE LAW OF FEDERAL COURTS 40 (4th ed. 1983); Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CHI. L. REV. 646, 716 (1982); Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 916, 916 n.2 (1988). But see Ngiraingas v. Sanchez, 110 S. Ct. 1737, 1749 (1990) (Brennan, J., dissenting) (citing the case as American Ins. Co. v. 356 Bales of Cotton); United States v. Dalcour, 203 U.S. 408, 427 (1906) (same). Compare United States v. Coe, 155 U.S. 76, 80 (1894) (argument of counsel citing the case as American Insurance Co. v. 356 Bales of Cotton); with id. at 85 (opinion of the Court citing the case as American Insurance Co. v. Canter). With all due respect, I join the dissenters. Although process was issued against Canter in personam, see American Insurance Co. 26 U.S. (1 Pet.) at 513, the case was primarily an action in rem for possession of specific bales of cotton (or their proceeds upon sale). See id.; Canter v. American Ins. Co., 28 U.S. (3 Pet.) 307, 315 (1830); see also infra text accompanying notes 209-27. The captions in the record, see Record at 1, American Insurance Co., 26 U.S. (1 Pet.) 511 (No. 1415) (available on microfilm, U.S. Nat'l Archives Microfilm Publications, Microcopy No. 214, Roll 74 at frame no. 667), and in the United States Reports, see American Insurance Co., 26 U.S. (1 Pet.) at 511, reflects this view, to which I will stubbornly

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cling with my expiring breath.

[FN125]. Given that it has been assumed since American Insurance Co. that one does not have a right in the territories-whether incorporated-to have trials conducted by judges enjoying the tenure and salary guarantees of article III, see infra note 241 and accompanying text, one could argue that it follows a fortiori that the "right" to be governed by a presidential appointee rather than an elected official cannot possibly be fundamental. On the other hand, one could argue that separation of powers is a critical bulwark of liberty that is more important in its own way than specific guarantees of particular rights. See Morrison v. Olson, 487 U.S. 654, 708-15, 727, 732- 34 (1988) (Scalia, J., dissenting). Accordingly, exceptions to the application of the Constitution's separation of powers provisions to the territories should be strictly construed, if not overruled outright. In particular, this argument would continue, the fact that territorial courts are permitted outside article III should be treated as an anomaly, justified (if at all) by the belief that life tenure is inappropriate for officials in territories in which the United States' presence may be transitory. See O'Donoghue v. United States, 289 U.S. 536-37 (1933).

[FN126]. See Dorr v. United States, 195 U.S. 138, 141-42 (1904).

[FN127]. 182 U.S. 244, 287 (1901) (White, J., concurring).

[FN128]. Id. at 289-90 (footnote omitted).

[FN129]. Justice White's opinion cited only United States v. Kagama, 118 U.S. 375, 378 (1886), and Shively v. Bowlby, 152 U.S. 1, 48 (1894). Downes, 182 U.S. at 290 n.1 (White, J., concurring). Neither case is strictly on point. The latter stated only "that Congress has the power to make grants of land below high water mark of navigable waters in any Territory of the United States." Shively, 152 U.S. at 48 (dictum). The former held only that Congress has power to legislate concerning the relations among Indians on reservations, see Kagama, 118 U.S. at 384-85, though it did contain some broad dicta (on pages not cited by Justice White) regarding Congress' power to create territorial governments. See id. at 379-80.

[FN130]. J. Story, Commentaries on the Constitution of the United States § 667 (Boston 1833).

[FN131]. See Benner v. Porter, 50 U.S. (9 How.) 235, 242 (1850) (territorial

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governments are not subject to the Constitution's "complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control").

[FN132]. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

[FN133]. Id. at 448-49 (opinion of the Court); cf. id. at 623 (Curtis, J., dissenting) (agreeing with majority).

[FN134]. U.S. CONST. art. III, § 1.

[FN135]. Id.

[FN136]. Id.

[FN137]. 48 U.S.C. § 1424(b) (1988); see also id. § 1612(a) (same provision for a district court of the Virgin Islands).

[FN138]. Id. § 1424b(a); see also id. § 1614(a) (same provision for a district judges of the Virgin Islands).

[FN139]. See id. § 1424b(a); see also id. § 1614(a) (same in the Virgin Islands).

[FN140]. See McAllister v. United States, 141 U.S. 174, 180 (1891) (Alaska district court judge could be removed by President); United States v. Fisher, 109 U.S. 143, 145 (1883) (Congress could prescribe a lower salary for a territorial justice than was fixed in a prior statute).

[FN141]. The Samoan courts, which have general civil and criminal jurisdiction, see AM. SAMOA CODE ANN. § 3.0103 (1981), are even further removed from the article III model. The chief justice and an associate justice are appointed for indefinite terms by the Secretary of the Interior, Am. Samoa Rev. Const. art III, § 3 (1967), who may remove them for cause, Am. Samoa Code Ann. § 3.1001(a) (1981). As in Guam, the justices' salaries are not constitutionally guaranteed. See supra note 140.

[FN142]. U.S. CONST. art. III, § 1.

[FN143]. 5 U.S. (1 Cranch) 137 (1803).

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[FN144]. See Act of Feb. 27, 1801, ch. 15, § 11, 2 Stat. 103, 107.

[FN145]. U.S. CONST. art. 1, § 8, cl. 17.

[FN146]. See Act of Feb. 27, 1801, § 11, 2 Stat. at 107: [S]uch justices .... shall, in all matters, civil and criminal ... have all the powers vested in, and shall perform all the duties required of, justices of the peace, as individual magistrates, by the laws herein before continued in force in those parts of said district, for which they shall have been respectively appointed; and they shall have cognizance in personal demands to the value of twenty dollars, exclusive of costs ....

[FN147]. Id.

[FN148]. U.S. CONST. art. III, § 1; see supra note 72. This appears to have been the first time that territorial judges were given a term of years rather than tenure during good behavior. Cf. Act of May 7, 1800, ch. 41, § 3, 2 Stat. 58, 59 (Indiana) (providing for tenure during good behavior); Act of May 26, 1790, ch. 14, § 1, 1 Stat. 123, 123 (Tennessee) (same); Act of Apr. 7, 1798, ch. 28, § 3, 1 Stat. 549, 550 (Mississippi) (same); An Ordinance for the Government of the Territory of the United States north-west of the river Ohio (1787), reprinted at 1 Stat. 51 n.(a) (same). Terms of years, however, quickly became commonplace. See Act of Mar. 2, 1819, ch. 49, § 7, 3 Stat. 493, 495 (Arkansas) (term of four years, and providing for removal by the President); Act of June 4, 1812, ch. 95, § 10, 2 Stat. 743, 746 (Missouri) (term of four years, and providing for removal); Act of Mar. 26, 1804, ch. 38, § 5, 2 Stat. 283, 284 (Orleans and Louisiana) (territorial judges "shall hold their offices for the term of four years").

[FN149]. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 157, 162, 167, 172. If Marbury had in fact held his office at the President's pleasure, then President Jefferson's instructions to Madison to refuse to deliver Marbury's commission could be seen as a tacit exercise of the removal power, leaving Marbury with no claim on the office, commission, or salary, and leaving Marshall with no opportunity to side with Marbury on the merits before reaching the decisive jurisdictional issue.

[FN150]. Chief Justice Taft interpreted Marshall's comments this way in Myers v. United States, 272 U.S. 52 (1926), when he sought to establish the President's unlimited removal power over executive officers. See id. at 139-44.

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[FN151]. This reading of Marbury was later argued to the Court. See infra text accompanying notes 171-73.

[FN152]. See United States v. More, 7 U.S. (3 Cranch) 159, 160 n.* (1805) (circuit court opinions, 1803).


[FN154]. More, 7 U.S. (3 Cranch) at 165-66 (argument of Jones, counsel for More).

[FN155]. Act of May 3, 1802, ch. 52, § 8, 2 Stat. 193, 195.

[FN156]. More, 7 U.S. (3 Cranch) at 159.

[FN157]. Id. at 165-66 (argument of Jones).

[FN158]. Id. at 159, 160 n.* (circuit court opinions, 1803).

[FN159]. Id. at 160-62 n.* (circuit court opinion of Cranch, J.).

[FN160]. Id. (quoting U.S. Const. art. I, § 8, cl. 17) (emphasis added by circuit court in More).

[FN161]. Id.

[FN162]. Id. at 161 n.*.

[FN163]. U.S. CONST. art. I, § 9, cl. 3 (prohibition against ex post facto laws and bills of attainder); cf. More, 7 U.S. (3 Cranch) at 160 n.* (Cranch, J., asking rhetorically whether Congress is bound by various article I provisions with respect to the District of Columbia).

[FN164]. More, 7 U.S. (3 Cranch) at 161 n.*.

[FN165]. See id.

[FN166]. Id. The government suggested that the fees-for-services provision was not a provision for compensation "at stated Times," U.S. CONST. art. III, § 1, and could

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thus be reduced without violating the terms of article III. See More, 7 U.S. (3 Cranch) at 161 n.*. Judge Cranch, however, held that the phrase "at stated times" could include something like "when the service is rendered." Id. "And," he added, "we are rather to incline to this construction, than to suppose the command of the Constitution to have been disobeyed." Id. The "command" he had in mind was presumably the requirement that judges receive some"Compensation," U.S. CONST. art. III, § 1, which would have been violated if More's fees were unlawful.

[FN167]. Id. at 164 n.* (opinion of Kilty, C.J.).

[FN168]. Id.

[FN169]. Id. at 165 n.*. In what may or may not have been intended as a separate argument, Judge Kilty also suggested without elaboration that a comparison of the jurisdiction conferred by statute on District of Columbia justices of the peace with that conferred by the Constitution on federal courts, see U.S. CONST. art. III, § 2, cl. 1, demonstrated that any judicial power exercised by More was not "the judicial power of the United States," and hence was not the power provided for in article III. More, 7 U.S. (3 Cranch) at 163 n.* (quoting U.S. Const. art III, § 1) (emphasis in original).

[FN170]. See More, 7 U.S. (3 Cranch) at 167 (argument of Jones).

[FN171]. Id. at 166; see supra text accompanying note 149.

[FN172]. See More, 7 U.S. (3 Cranch) at 166. The courts had not squarely addressed the removal issue by that time. A definitive holding that the President has untrammeled removal power at least with respect to certain executive officers did not come until 1926, see Myers v. United States, 272 U.S. 52 (1926) (a law requiring Senate to consent to presidential attempts to remove postal officers held unconstitutional), and it lasted for less than a decade, see Humphrey's Ex'r v. United States, 295 U.S. 602, 631-32 (1935) (upholding certain restrictions on the President's removal power over Federal Trade Commissioners). For a summary of the incomprehensible state of current removal doctrine, see Morrison v. Olson, 487 U.S. 654, 685-93 (1988); id. at 723-27 (Scalia, J., dissenting); Liberman, supra note 18, at 335-42. The correct formalist view of the President's removal power is that "it depends." The only mode of removal discussed by the Constitution is impeachment, see U.S. CONST. art. II, § 4; any other mode must be established by inference. One

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could well infer, as did Hamilton, that whenever the Senate advises and consents to the appointment of an officer, it must advise and consent to that officer's removal as well. See THE FEDERALIST No. 77, at 459 (A. Hamilton) (C. Rossiter ed. 1961). One could also believe that Congress' power to create offices under the "necessary and proper" clause, U.S. CONST. art. I, § 8, cl. 18, carries with it the power to set the terms of removal, or one could believe that the removal power rests exclusively with the President. Whether any or none of these inferences is correct depends upon the answer to a question that has not, to my mind, been satisfactorily resolved. The executive power is vested by the Constitution "in a President of the United States of America," id. art. II, § 1, cl. 1, who plainly must have the capability to execute the laws or to control and direct their execution. See Liberman, supra note 18, at 315, 353. If the President cannot exercise his constitutional power directly by personally making any discretionary decisions committed by statute to subordinate officers (or at a minimum by issuing orders that invalidate contrary actions by subordinates), then we must infer an absolute presidential removal power in order to provide an indirect mechanism of executive control and direction. If the President does have the power to make all of the executive branch's discretionary decisions, an inference of a removal power becomes more difficult, and perhaps even untenable. See id. Does the President have such power? Like Ms. Liberman, I believe that the President does, though how far that power goes, and how it interacts with Congress' power under the "necessary and proper" clause, are questions that do not yet have satisfactory answers, notwithstanding Ms. Liberman's heroic attempt to provide them. See id. at 352-58.

[FN173]. More, 7 U.S. (3 Cranch) at 166 (argument of Jones).

[FN174]. See id. In response to the objection that More's office was not governed by article III under the 1801 statute because the office had a limited term of five years (instead of having a term for "good behavior"), Jones responded that "[i]t is not the tenure, but the essence and nature of the office which is to decide this question," and that "[i]f the limitation to five years makes a difference, it would be an evasion of the constitution." Id. at 167.

[FN175]. See supra text accompanying note 168.

[FN176]. More, 7 U.S. (3 Cranch) at 168 (argument of Mason, counsel for the United States) (emphasis in original).

[FN177]. Id.

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[FN178]. Id.

[FN179]. Id. at 168-69 (argument of Jones).

[FN180]. Any arguments made concerning Congress' power under article I to legislate for the District could equally be made concerning Congress' power under article IV (or whatever other sources of power there may be) to legislate for the territories.

[FN181]. That problem is of considerable interest in its own right. The same act of Congress that created More's office, Act of Feb. 27, 1801, ch. 15, § 11, 2 Stat. 103, 106, also created the District of Columbia Circuit Court that decided his case. See id. § 3, 2 Stat. at 105. The act provided for Supreme Court review of "any final judgment, order or decree in said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars." Id. § 8, 2 Stat. at 106. Marshall construed this language, and in particular the words "matter in dispute," to refer exclusively to civil cases. See More, 7 U.S. (3 Cranch) at 173-74. Marshall reasoned that an affirmative statutory description of the Supreme Court's appellate jurisdiction must be read to prohibit the exercise of powers other than those described, see id. at 173, and that Congress had therefore implicitly used its power to define exceptions to the Supreme Court's appellate jurisdiction in order to preclude the Court from reviewing criminal cases decided by the Circuit Court of the District. See U.S. CONST. art. III, § 2, cl. 2 (In all cases in which the Supreme Court does not have original jurisdiction, it "shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.").

[FN182]. 7 U.S. (3 Cranch) 331 (1806).

[FN183]. See id. at 331.

[FN184]. Act of Mar. 3, 1803, ch. 20, § 6, 2 Stat. 215, 216.

[FN185]. Act of May 8, 1792, ch. 33, § 2, 1 Stat. 271, 272.

[FN186]. See Wise, 7 U.S. (3 Cranch) at 336. Marshall nevertheless indicated that he would also reach that conclusion as an original matter in view of the fact that Wise was appointed by the President subject to Senate confirmation. See id.

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[FN187]. See id. (emphasis in original).

[FN188]. See supra text accompanying note 179. The echo is eerie partly because of Marshall's subsequent abandonment of this argument in American Insurance Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828), but mostly because apparently none other than Samuel Jones forcefully advanced the contrary position as counsel for Withers. See Wise, 7 U.S. (3 Cranch) at 333 (argument of Jones).

[FN189]. Wise, 7 U.S. (3 Cranch) at 336.

[FN190]. Id. This assumes, of course, that Congress was using the terms "executive" and "judicial" in their constitutional senses-an assumption that seems wholly justified.

[FN191]. Id.

[FN192]. See Act of Jan. 9, 1815, ch. 21, § 1, 3 Stat. 164, 164-65.


[FN194]. 18 U.S. (5 Wheat.) 317 (1820).

[FN195]. U.S. CONST. art. I, § 8, cl. 1. By locating the power to tax in this clause, rather than in Congress' legislative power over the District, Marshall avoided the potentially thorny question of whether the power over the District authorizes taxes for general revenues or only for local purposes. See Loughborough, 18 U.S. (5 Wheat.) at 318.

[FN196]. Loughborough, 18 U.S. (5 Wheat.) at 318-19.

[FN197]. U.S. CONST. art. I, § 8, cl. 1 (the "uniformity clause").

[FN198]. Loughborough, 18 U.S. (5 Wheat) at 319.

[FN199]. Id.

[FN200]. Id.


243

[FN202]. See Loughborough, 18 U.S. (5 Wheat) at 321-22, 325.

[FN203]. See U.S. CONST. art. I, § 9, cl. 4.

[FN204]. The reasoning, if not the holding, of Loughborough is flatly inconsistent with the result in Downes v. Bidwell, 182 U.S. 244 (1901). Compare Loughborough, 18 U.S. (5 Wheat.) at 319 ("it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in the [territories], than in the [states]") with supra text accompanying notes 97-99 (discussing holding in Downes that the uniformity clause did not invalidate a tariff imposed by Congress on goods imported from Puerto Rico into the continental United States).

[FN205]. See infra text accompanying notes 247-53.

[FN206]. 22 U.S. (9 Wheat.) 738 (1824).

[FN207]. See id. at 823; U.S. CONST. art. III, § 2, cl. 1 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under ... the Laws of the United States ...." (emphasis added).

[FN208]. See supra text accompanying note 179. Osborn also smoothed over the period's one rough spot for formalists. In Seré v. Pitot, 10 U.S. (6 Cranch) 332 (1810), Chief Justice Marshall suggested in dicta that territorial tribunals could hear cases which were outside the cognizance of the federal courts under article III. See id. at 337. Seré's reasoning was substantially, if not totally, undermined by Osborn's expansive interpretation of article III's "arising under" language. See infra note 245; text accompanying notes 247-59.

[FN209]. 26 U.S. (1 Pet.) 511 (1828).

[FN210]. Act of May 26, 1824, ch. 163, § 1, 4 Stat. 45, 45. This statute amended the territory's organic act, which originally provided for only two superior courts. See Act of Mar. 3, 1823, ch. 28, § 7, 3 Stat. 750, 752. The organic act also created the territorial legislative council referred to in the text, which consisted of the governor plus thirteen presidentially appointed "fit and discreet persons of the territory," id. § 5, 3 Stat. at 751, and which had power "over all rightful subjects of legislation." Id.

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[FN211]. See Act of May 26, 1824, ch. 163, § 1, 4 Stat. 45, 45 (description of jurisdiction over territorial matters).

[FN212]. Id. § 2, 4 Stat. at 45.

[FN213]. Id.

[FN214]. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73.

[FN215]. Id. § 9, 1 Stat. at 77. The Kentucky and Maine district courts had, in addition to the jurisdiction conferred generally on federal district courts, all the original jurisdiction of a circuit court. See id. § 10, 1 Stat. at 77-78. That additional jurisdiction was not relevant to any issue in American Insurance Co.

[FN216]. Record at 7, American Ins. Co., 26 U.S. (1 Pet.) 511 (No. 1415) [hereinafter Record] (available on microfilm, U.S. Nat'l Archives Microfilm Publications, Microcopy No. 214, Roll 74 at frame no. 667; two frames per page) (quoting Florida Territorial Legislative Council Act of July 4, 1823, § 1, repealed by Florida Territorial Legislative Council Act of Nov. 23, 1828, reprinted in PUBLIC ACTS OF THE LEGISLATIVE COUNCIL OF THE TERRITORY OF FLORIDA 259 (J. Duval ed. 1839)). The record in this case is handwritten, so my reproduction of its punctuation and capitalization may not be entirely accurate.

[FN217]. A number of differences existed between the duties of justices of the peace and notaries public in Florida in the 1820s, cf. Florida Territorial Legislative Council Act of Feb. 15, 1834 (establishing schedule of fees for justices of the peace, notaries public, and others), reprinted in PUBLIC ACTS OF THE LEGISLATIVE COUNCIL OF THE TERRITORY OF FLORIDA 212-13 (J. Duval ed. 1839), but as far as the salvage statute was concerned, their duties were identical. Cf. Record, supra note 216, at 13, 17-18 (indicating that notaries were generally regarded as judges of some sort).

[FN218]. See Record, supra note 216, at 7 (quoting Florida Territorial Legislative Council Act of July 4, 1823, §§ 2-4).

[FN219]. Act of Mar. 3, 1823, ch. 28, § 10, 3 Stat. 750, 753. The full text of the statute makes clear that this limitation applied to territorially created as well as congressionally created local judges.

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[FN220]. The two companies taken together had insured 684 of the 891 bales of cotton carried on the vessel, at a total value of $47,244.00. See American Insurance Co., 26 U.S. (1 Pet.) at 514; Record, supra note 216, at 1, 15.

[FN221]. See American Insurance Co., 26 U.S. (1 Pet.) at 514, 541.

[FN222]. The record states only that between 300 and 356 bales of cotton showed up in Charleston under the control of Canter. See Record, supra note 216, at 2.

[FN223]. American Insurance Co., 26 U.S. (1 Pet.) at 513; Record, supra note 216, at 2.

[FN224]. See American Insurance Co., 26 U.S. (1 Pet.) at 541.

[FN225]. See Record, supra note 216, at 32. The judge also doubted whether Congress intended to permit territorial courts to exercise admiralty jurisdiction. See id. at 34.

[FN226]. The insurance companies appealed because the district court awarded them only 39 of the 356 bales they sought, citing as its reason the companies' inability to prove ownership of most of the cotton due to the obliteration of its identifying marks. See American Insurance Co., 26 U.S. (1 Pet.) at 513- 14; Record, supra note 216, at 2.

[FN227]. See American Insurance Co., 26 U.S. (1 Pet.) at 514, 515 n.* (circuit court opinion of Johnson, J.).

[FN228]. They advanced two insignificant arguments as well. First, they made an ill-defined challenge to the power of the Florida legislature to establish salvage courts. See id. at 515. Second, they argued that jurisdiction was appropriate only in the superior courts because of the provision of the organic act giving those courts original jurisdiction in all civil actions arising under territorial laws and involving more than $100. See id.; Act of May 26, 1824, ch. 162, § 1, 4 Stat. 45, 45. As Justice Johnson pointed out in his opinion on circuit, see American Insurance Co., 26 U.S. (1 Pet.) at 522 n.*, nothing in this provision (apart from the arguments discussed in the text) foreclosed concurrent original jurisdiction over such actions in inferior territorial courts.

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[FN229]. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (emphasis added).

[FN230]. Act of May 26, 1824, ch. 163, § 1, 4 Stat. 45, 45-46.

[FN231]. See American Insurance Co., 26 U.S. (1 Pet.) at 528-29 (argument of Mr. Ogden, counsel for appellants).

[FN232]. The Court pointed out that the jurisdiction of the Florida superior courts tracked that of the Kentucky district court only in cases "arising under the laws and Constitution of the United States," id. at 545, which article III makes clear are jurisdictionally distinct from admiralty. See id. at 545-46. Hence, the provision giving the two courts "the same jurisdiction" in cases arising under federal law did not establish that in admiralty cases Congress had vested exclusive territorial jurisdiction in the superior courts. Counsel for the insurance companies, anticipating this obvious problem, argued that all cases involving territorial tribunals necessarily arise under federal law within the meaning of article III, citing Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See American Insurance Co., 26 U.S. (1 Pet.) at 536 (argument of Mr. Whipple, counsel for claimants); see also infra text accompanying notes 247-53 (discussing Osborn). The Court did not even mention, much less respond to, this argument, which the insurance companies plainly viewed as the backbone of their statutory claim. Perhaps the Court felt (correctly) that Justice Johnson's opinion on circuit had dealt adequately with this argument. See infra note 259. In any event, the issue was resolved by Congress in 1826 in favor of exclusive superior court admiralty jurisdiction-one year too late to do the insurance companies any good. See Act of May 15, 1826, ch. 46, § 1, 4 Stat. 164, 164 (the Florida superior courts "shall have original and exclusive cognisance of all civil causes of admiralty and maritime jurisdiction").

[FN233]. American Insurance Co., 26 U.S. (1 Pet.) at 528 (argument of Mr. Ogden) (emphasis in original); see also U.S. Const. art. III, § 2, cl. 1.

[FN234]. American Insurance Co., 26 U.S. (1 Pet.) at 528 (argument of Mr. Ogden) (emphasis added); see also U.S. Const. art III, § 1, cl. 1.

[FN235]. See American Insurance Co., 26 U.S. (1 Pet.) at 529 (argument of Mr Ogden).

[FN236]. Id. at 546.

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[FN237]. Perhaps I am rash to claim that the insurance companies "at no time" made such an argument, as the record of the case does not contain the parties' briefs. Nonetheless, if any such argument had even been alluded to, one would expect some mention of it in the record (which included both lower court opinions), the summary of the arguments of counsel in the United States Reports, or the Court's opinion. There is none, other than the district court's somewhat cryptic holding that neither state nor territorial courts can exercise admiralty jurisdiction. See Record, supra note 216, at 32.

[FN238]. See M. REDISH, supra note 124, at 36-39 (criticizing American Insurance Co.); C. WRIGHT, supra note 124, at 41 (describing the doctrine that territorial courts are created outside of article III as "of doubtful soundness"); Currie, supra note 124, at 719 (calling the discussion in American Insurance Co. "poorly explained" and "difficult to reconcile with the purposes of article III").

[FN239]. See Currie, supra note 124, at 719.

[FN240]. See id. at 717 ("Marshall viewed the fact that the territorial judges did not hold their offices during 'good Behaviour' as a factor supporting the constitutionality of their jurisdiction: article III did not apply because the judges had only four-year terms."). Moreover, if Marshall was going to address the constitutional status of the Florida superior courts, he should have given the parties an opportunity to brief the issue. The insurance companies, after all, did not have to concede that the superior courts were constitutionally proper. They would have been delighted by a ruling that neither the Key West court nor any other Florida territorial court had jurisdiction to preside over the sale of their cotton. If alerted to Marshall's plan to address the point, they surely would have resuscitated Samuel Jones' and Judge Cranch's old arguments on the applicability of article III to territorial tribunals. See supra text accompanying notes 159-66, 179.

[FN241]. See Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872) (The status of territorial courts as other than constitutional courts of the United States "was decided long since in The American Insurance Company v. Canter, and in the later case of Benner v. Porter.") (footnotes omitted). Benner dealt with the status of territorial tribunals after their home territory became a state, holding that statehood automatically abolishes all territorial institutions. See 50 U.S. (9 How.) 235, 244-45

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(1850). Its discussion of the status of such tribunals during the period of territoriality was thus clearly dictum.

[FN242]. The idea that Congress, without complying with article III, can create institutions to exercise what is arguably, if not plainly, judicial power has returned from the territories to roost in the republic. See generally Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 847-57 (1986) (validating CFTC reparations proceeding conducted by administrative law judge); M. REDISH, supra note 124, at 36-51 (discussing wide range of adjudication by administrative bodies outside article III under modern administrative statutes); C. WRIGHT, supra note 124, at 39-49 (same); Fallon, supra note 124 (same); Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 DUKE L.J. 197 (same). American Insurance Co. may also have helped spawn the territorial incorporation doctrine. See supra text accompanying notes 107-18. As Professor Currie has sagely observed, "The first small step down the road to perdition may prove to be irreversible." Currie, supra note 124, at 719.

[FN243]. 411 U.S. 389 (1973).

[FN244]. Id. at 410. For a criticism of Palmore, see M. REDISH, supra note 124, at 47-49.

[FN245]. 7 U.S. (3 Cranch) 159 n.* (1805) (reprinting circuit court opinion). See supra text accompanying notes 152-66, 179. Professor Neuman has defended the operation of territorial courts outside the limits of article III by pointing to the anomalous gap in federal court jurisdiction which would otherwise result. See Neuman, Whose Constitution?, 100 Yale L.J. (forthcoming 1991). When American Insurance Co. was decided in 1828, the Court had already held-correctly-in Corporation of New-Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816), that citizens of territories were not citizens of any state for purposes of diversity jurisdiction in the article III circuit courts. Cf. National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949) (revisiting the issue with respect to District of Columbia citizens). As is explained below, that result could lead to the conclusion that Congress does not have the power under article III to authorize territorial tribunals to hear claims by or against territorial citizens that are substantively founded on state law. If true, the result is interesting, and perhaps unfortunate, but results alone are of course not decisive for formalists. They were, however, apparently decisive for Chief Justice Marshall. In Seré v. Pitot,

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10 U.S. (6 Cranch) 332 (1810), Marshall declared that a territorial court in Orleans was capable of hearing a simple debt action brought by aliens against citizens of Orleans, despite the fact that article III provides for federal court jurisdiction over controversies between state citizens and foreign subjects but not between territorial citizens and foreign subjects. See U.S. CONST. art. III, § 2, cl. 1 ("[t]he judicial Power shall extend ... to Controversies ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects"). "[T]he idea," said Marshall, "that the constitution restrains congress from giving the court of the territory jurisdiction over a case brought by or against a citizen of the territory ... is most clearly not to be sustained ...." Seré, 10 U.S. (6 Cranch) at 337. Marshall's reasoning was terse, conclusory, and alarmist: Let us inquire what would be the jurisdiction of the [territorial] court, on this restricted construction [limiting its jurisdiction to the nine heads specified in article III]? It would have no jurisdiction over a suit brought by or against a citizen of the territory, although an alien, or a citizen of another state might be a party. It would have no jurisdiction over a suit brought by a citizen of one state, against a citizen of another state, because neither party would be a citizen of the "state" in which the court sat. Of what civil causes, then, between private individuals, would it have jurisdiction? Only of suits between an alien and a citizen of another state, who should be found in Orleans. Id. As was often his wont, Marshall clearly overstated his case. The suits that concerned him could all be entertained by article III courts in the territories whenever the claim is substantively founded on territorial law (as was evidently true of the claim in Seré), since the case would then "arise under" the laws of the United States. See infra text accompanying notes 257-69 (explaining why territorial laws are federal laws for purposes of article III). A jurisdictional gap is possible only with respect to claims founded on state law. And even in such cases, the territorial court must at least apply a territorial choice of law rule in order to establish that state law governs the claim, which is arguably enough to satisfy the Constitution's "arising under" language. Marshall's conclusion that the jurisdiction of territorial courts is not limited by the terms of article III was perhaps the one clear precursor of American Insurance Co. in the first quarter of the nineteenth century. As in the latter case, the constitutional discussion in Seré was dictum, as Marshall had earlier held that Seré's claim was in any event excluded from the territorial court's jurisdiction by statute. See Seré, 10 U.S. (6 Cranch) at 334-36.

[FN246]. 48 U.S.C. § 1422 (1988).

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[FN247]. 22 U.S. (9 Wheat.) 738 (1824).

[FN248]. 22 U.S. (9 Wheat.) 904 (1824).

[FN249]. Act of Apr. 10, 1816, ch. 44, § 7, 3 Stat. 266, 269.

[FN250]. See Osborn, 22 U.S. (9 Wheat.) at 817-18. That conclusion was not inevitable, though its correctness is of no concern here. See Currie, supra note 124, at 695 n.302 (noting the Court's earlier contrary conclusion in Bank of the United States v. Devaux, 9 U.S. (5 Cranch) 61, 85-86 (1809)).

[FN251]. This was precisely the question at issue in Planters' Bank, though Chief Justice Marshall addressed it in Osborn. See Osborn, 22 U.S. (9 Wheat.) at 823-26.

[FN252]. U.S. CONST. art. III, § 2, cl. 1 (extension of federal judicial power to "all Cases, in Law and Equity, arising under ... the Laws of the United States").

[FN253]. Osborn, 22 U.S. (9 Wheat.) at 823.

[FN254]. Courts have in fact read the "arising under" language in the general federal question statute, 28 U.S.C. § 1331 (1988), more narrowly than Marshall read the Constitution in Osborn. See M. REDISH, supra note 124, at 64. This narrow reading can be correct as a matter of statutory interpretation without calling into question Marshall's constitutional analysis.

[FN255]. In Osborn, the state of Ohio had soaked the Bank of the United States for $100,000 in taxes, at a time when that was real money (both literally and figuratively). See Osborn, 22 U.S. (9 Wheat.) at 740-41.

[FN256]. See Currie, supra note 124, at 697.


[FN258]. United States v. Wheeler, 435 U.S. 313, 321 (1978).

[FN259]. This conclusion led to one of the more entertaining aspects of American Insurance Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828). The insurance

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companies' statutory arguments against the jurisdiction of the salvage court, see supra text accompanying notes 228-32, turned in large measure on whether the cause was one "arising under" the laws of the United States within the meaning of the statute establishing the jurisdiction of the Florida superior courts. If the cause did "arise under" federal law, then the provision of the Organic Act giving the superior courts the same jurisdiction as federal district courts in such cases would apply. Additionally, since the district courts had exclusive jurisdiction over admiralty cases, it could then at least be argued that the territorial admiralty jurisdiction was vested exclusively in the superior courts. The insurance companies cited Osborn and argued to Justice Johnson in the circuit court that all activities of the Florida courts indeed presented cases arising under federal law, just as did all activities of the Bank of the United States. See American Insurance Co., 26 U.S. (1 Pet.) at 520 n.*. Justice Johnson, who had been the lone dissenter in Osborn, see 22 U.S. (9 Wheat.) at 871 (Johnson, J., dissenting), gave the following memorable response: I have taken a week to reflect upon this question alone, and I cannot withhold from the gentleman, who argued the cause for the libelants, an acknowledgment, that I have not been able to draw any line of discrimination, between this and the decided cause, which satisfies my mind. Yet, I am thoroughly persuaded that the learned men who decided that cause, never contemplated that such an application would have been given of their decision. I am happy in the prospect that this cause will finally be disposed of elsewhere, not doubting, that the mental acumen of those who decided the other, will be found fully adequate to distinguish or reconcile the two cases, on grounds which have escaped my reflections. At present, I must content myself with observing, that it is too much to require of a Court, upon mere analogy, to sustain an argument, that not only proves too much, if it proves any thing, but which leads, in fact, to positive absurdity. American Insurance Co., 26 U.S. (1 Pet.) at 521-22 n.* (circuit court opinion of Johnson, J.). In fact, Justice Johnson did have, and indeed relied upon, a perfectly good basis for distinguishing American Insurance Co. from Osborn; he simply could not pass up an opportunity to tweak the Osborn majority. (The majority did not respond to this challenge, or indeed to the insurance companies' argument, when American Insurance Co. reached the Supreme Court.) Osborn involved the interpretation of article III, while American Insurance Co. involved the interpretation of a statute. If the statute vesting jurisdiction in the superior courts of Florida had used the words "arising under" in their full constitutional sense (as construed by Osborn), then it would have been meaningless for that statute also either to grant or to limit the jurisdiction of the Florida territorial courts by reference to the jurisdiction of the Kentucky court. Each

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and every case arising in the Florida territory would have arisen under federal law, which is a most implausible interpretation of the terms of the organic act. See American Insurance Co., 26 U.S. (1 Pet.) at 520 n.*. The same reasoning supports the result in Puerto Rico v. Russell & Co., 288 U.S. 476, 483-85 (1933) (despite holding in Osborn with regard to federal corporations, suit held not to arise under United States law merely because it involves a territorial government whose existence derives from an act of Congress).

[FN260]. U.S. CONST. art. II, § 3 ("[The President] shall take Care that the Laws be faithfully executed ....").

[FN261]. See Buckley v. Valeo, 424 U.S. 1, 138-39 (1976) (per curiam).

[FN262]. See supra text accompanying notes 59-63.

[FN263]. 85 U.S. (18 Wall.) 317 (1873).

[FN264]. See Act of Sept. 9, 1850, ch. 51, §§ 10-11, 9 Stat. 453, 456.

[FN265]. See id. § 4, 9 Stat. at 454.

[FN266]. Id. § 6, 9 Stat. at 454.

[FN267]. Snow, 85 U.S. (18 Wall.) at 321.

[FN268]. Id. at 318 (emphasis in original). The territorial statute also provided for the election of district attorneys with similar authority over crimes in their districts. See id.

[FN269]. Id. at 322.

[FN270]. See id. at 321.

[FN271]. See Transcript of Record at 5, Snow, 85 U.S. (18 Wall.) 317 (No. 424).

[FN272]. Id. at 6.

[FN273]. Id. at 7.

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[FN274]. I have been unable to locate the Utah Supreme Court's opinion. The statement of the case in the United States Reports says only that "[t]he Supreme Court of the Territory, assuming that the Supreme Court and the District Courts of Utah were courts of the United States, were of the opinion that the attorney of the United States was the proper person; and adjudged accordingly." Snow, 85 U.S. (18 Wall.) at 319. The sparse record before the United States Supreme Court provides no elaboration. Whatever the Utah Supreme Court might have meant, its assumption that Utah's territorial courts were courts of the United States was rejected in Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872). Snow's counsel, in a one-paragraph brief, sought what amounted to summary reversal on the strength of Clinton. See Brief for Plaintiff in Error, Snow, 85 U.S. (18 Wall.) 317 (No. 424). The United States filed a three-page brief which made no reference to the status of the Utah territorial courts. See Brief for the United States, Snow (No. 424).

[FN275]. See Snow, 85 U.S. (18 Wall.) at 322.

[FN276]. See id. ("The power given to the [Territorial] legislature ... extends to all rightful subjects of legislation consistent with the Constitution and the organic act itself. And there seems to be nothing in either of these instruments which directly conflicts with the Territorial law.").

[FN277]. See id. at 321 ("The question is ... whether the act of the Territorial legislature was authorized by the organic act."); Brief for the United States at 2, Snow (No. 424) (characterizing the case strictly in statutory terms).

[FN278]. Brief for the United States at 3, Snow (No. 424).

[FN279]. See Snow, 85 U.S. (18 Wall.) at 322.


[FN281]. Snow, 85 U.S. (18 Wall.) at 321.


[FN283]. This calls to mind the comments of Justice Catron in Dred Scott, affirming the power of Congress to govern territories under article IV:

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It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution [that Congress has power under article IV to govern territories], inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as an usurper. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 522-23 (1857) (Catron, J., concurring).

[FN284]. An Ordinance for the Government of the Territory of the United States north-west of the river Ohio (1787), reprinted at 1 Stat. 50, 51 n. (a) (1789).

[FN285]. See Snow, 85 U.S. (18 Wall.) at 320 ("It is, indeed, the practice of the government to invest these dependencies with a limited power of self-government as soon as they have sufficient population for the purpose."); Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441 (1872) ("The theory upon which the various governments for portions of the territory of the United States have been organized, has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of National authority ...."). Nonetheless, the practice of allowing self-government has not been uniform. See Act of May 17, 1884, ch. 53, § 9, 23 Stat. 24, 26-27 (explicitly forbidding a legislative assembly in Alaska); Act of Mar. 3, 1823, ch. 28, § 5, 3 Stat. 750, 751 (providing for a legislature in Florida to be appointed by the President); Act of Mar. 26, 1804, ch. 38, § 4, 2 Stat. 283, 284 (providing for a legislature in Orleans to be appointed by the President).


[FN287]. U.S. CONST. art. I, § 1 (emphasis added).

[FN288]. A full defense of this principle would require a separate article. The burden of proof, however, should be on those who maintain that delegation is permissible. The Constitution prescribes in great detail the processes for electing legislators, see U.S. CONST. art. I, § 2, cl. 1-4; id. § 3, cl. 1-3; id. § 4, cl. 1; id. § 5, cl. 1, and for enacting legislation, see id. § 4, cl. 2; id. §§ 5, 7. Little reason would remain to pay such careful attention to the selection and operation of the legislative branch if Congress could simply shift responsibilities to other actors through delegation. There remains the formidable task of distinguishing the legislative from the executive

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power, but I am satisfied that anything fairly characterized as the former must be exercised exclusively by the constitutionally prescribed legislative institutions.

[FN289]. 48 U.S.C. § 1423a (1988) (describing power of Guamanian legislature).

[FN290]. Such a statute would seemingly fail even the Supreme Court's highly deferential test for delegation of power. See Skinner v. Mid-America Pipeline Co., 109 S. Ct. 1726, 1731 (1989) ("[S]o long as Congress provides an administrative agency with standards guiding its actions such that a court could 'ascertain whether the will of Congress has been obeyed,' no delegation of legislative authority trenching on the principle of separation of powers has occurred.") (quoting Yakus v. United States, 321 U.S. 414, 426 (1944)). Confining the authority of a territorial legislature to subjects of "local application" no more constitutes a "standard" than would confining the otherwise unconstrained rulemaking authority of an administrative agency to matters involving interstate commerce.

[FN291]. U.S. CONST. art. I, § 8, cl. 17 (emphasis added).

[FN292]. Id. art. IV, § 3, cl. 2 (emphasis added).

[FN293]. Id.

[FN294]. Appointed legislatures remain questionable, because territorial lawmaking looks much more like legislation than does the promulgation of regulations governing purchases of pads and pencils. But the point is concededly open to debate.

[FN295]. See THE FEDERALIST No. 43, at 272-73 (J. Madison) (C. Rossiter ed. 1961) ("[A] municipal legislature for local purposes, derived from their own suffrages, will of course be allowed [the citizens of the district] ...."). The example of the District of Columbia is instructive, because Congress' legislative power over the District is specifically designated by the Constitution as "exclusive." See U.S. CONST. art. I, § 8, cl. 17. If Congress can nonetheless delegate legislative authority to a District of Columbia legislature, there cannot possibly be a valid objection to similar delegations to other territorial governments.

[FN296]. See 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES App. 278 (Philadelphia 1803), reprinted in 3 The Founders' Constitution 230 (P. Kurland & R. Lerner eds. 1987) [hereinafter Founders' Constitution]:

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It has been said, that it was in contemplation to establish a subordinate legislature, with a governor to preside over the district. But it seems highly questionable whether such a substitution of leg slative authority is compatible with the constitution; unless it be supposed that a power to exercise exclusive legislation in all cases whatsoever, comprehends an authority to delegate that power to another subordinate body. If the maxim be sound, that a delegated authority cannot be transferred to another to exercise, the project here spoken of will probably never take effect.

[FN297]. See 3 J. Story, Commentaries on the Constitution § 1218 (Boston 1833), reprinted in 3 Founders' Constitution, supra note 296, at 237 ("the corporations of the three cities within [the District of Columbia's] limits possess and exercise a delegated power of legislation under their charters, granted by congress, to the full extent of their municipal wants, without any constitutional scruple, or surmise of doubt").

[FN298]. The words "serious" and "constitutional" are both important qualifiers. A less serious constitutional challenge was advanced in American Insurance Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828). In the course of arguing that admiralty jurisdiction in the territories could only be vested in courts created by Congress, counsel for the insurance companies observed, "It is said that Congress has given to the territorial legislature all the rights of legislation they have. Legislative powers cannot be delegated. Delegatus non potest delegare." Id. at 540. There were no prior or subsequent mentions of this argument, and it seems to have been regarded by all concerned as a make-weight, at best. On the other hand, serious statutory challenges to particular exercises of territorial legislative authority were common prior to 1904. See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 106 & n.5 (1953) (collecting cases).

[FN299]. 195 U.S. 138 (1904).

[FN300]. See Act of July 1, 1902, ch. 1369, § 1, 32 Stat. 691, 691-92.

[FN301]. See Dorr, 195 U.S. at 150-51 (reproducing the entire statute).

[FN302]. See id. at 139.

[FN303]. See id. at 144, 148; see also supra text accompanying notes 93- 120 (discussing development and application of the incorporation doctrine).

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[FN304]. Dorr, 195 U.S. at 148-49.

[FN305]. Id. at 153 (citation omitted).

[FN306]. 301 U.S. 308 (1937).

[FN307]. Revenue Act of 1934, ch. 277, § 602 1/2, 48 Stat. 680, 763- 64. By this time, Congress had granted the Philippines a very substantial degree of local autonomy. See generally Philippine Independence Act, ch. 84, 48 Stat. 456 (1934).

[FN308]. Cincinnati Soap Co., 301 U.S. at 321.

[FN309]. Brief of Petitioner Cincinnati Soap Co. at 58-59, Cincinnati Soap Co. (No. 659); Brief for Petitioner Haskins Bros. & Co. at 48-49, Cincinnati Soap Co. (No. 687); Reply Brief for Petitioner Haskins Bros. & Co. at 15-16, Cincinnati Soap Co. (No. 687).

[FN310]. Brief for Petitioner Haskins Bros. & Co. at 47, 49, 52, Cincinnati Soap Co. (No. 687).

[FN311]. Cincinnati Soap Co., 301 U.S. at 321-22.

[FN312]. Id. at 322-23.

[FN313]. Id. at 323 (citing Dorr v. United States, 195 U.S. 138, 140, 142 (1904)).

[FN314]. See id.

[FN315]. 346 U.S. 100 (1953).

[FN316]. Brief for Respondent at 22, District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953) (No. 617) ("It is settled that while the Congress may delegate to the Government of the District of Columbia the power to make municipal and police regulations, Congress, under the Constitution having exclusive legislative power over the District of Columbia, cannot delegate to the District the power to enact legislation.").

[FN317]. See John R. Thompson Co., 346 U.S. at 106-09.

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[FN318]. U.S. CONST. art. I, § 8, cl. 17.

[FN319]. Id. art. IV, § 3, cl. 2.

[FN320]. See Fleming v. Page, 50 U.S. (9 HOW.) 603, 615-17 (1850) (military occupation of a foreign territory does not make that territory part of the United States without congressional action, but the President can administer the occupied land as part of the war effort).

[FN321]. U.S. CONST. art. II, § 2, cl. 1. Whether Congress could, if it so desired, participate in the administration of occupied territory under the "necessary and proper" clause, id. art. I, § 8, cl. 18, is a question for another time.

[FN322]. The interplay between these powers raises fascinating questions when one considers the possibility of an interregnum. Suppose that the President is administering occupied territory during wartime. Then the war ends, the countries sign a treaty of peace, and the occupied territory is formally ceded to the United States. Under a formalist analysis, responsibility for governance now shifts to Congress under the territories clause. But what if Congress does not act? Does the executive branch-or perhaps the territorial population-have some residual or inherent governing authority? Or do we have a state (or territory) of anarchy? This precise question actually arose and was litigated to a final judgment in connection with California, in Cross v. Harrison, 57 U.S. (16 HOW.) 164 (1854) (civil government established by President continued to function until Congress legislated otherwise). See also Santiago v. Nogueras, 214 U.S. 260, 265-66 (1909) (same). I plan to explore the legal and political issues raised by Cross v. Harrison in a subsequent article.

[FN323]. 10 U.S. (6 Cranch) 332 (1810).

[FN324]. See id. at 337 ("[W]e find congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans.").

[FN325]. Id. at 336-37 (quoting U.S. Const. art. IV, § 3, cl. 2).

[FN326]. See THE INSULAR CASES, supra note 102, at 125-30, 152-64.

[FN327]. 26 U.S. (1 Pet.) 511 (1828).

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[FN328]. Id. at 542-43.

[FN329]. Id. at 542 ("The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."); U.S. CONST. art. I, § 8, cl. 11; id. art. II, § 2, cl. 2. The Court subsequently held that the government could also exercise a measure of dominion over territory that was discovered or otherwise acquired by American citizens. See Jones v. United States, 137 U.S. 202, 212 (1890).

[FN330]. See United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537-38 (1840).

[FN331]. 60 U.S. (19 How.) 393 (1857).

[FN332]. See id. at 443, 448-49. For a painstaking breakdown of the various justices' positions on this question, see Currie, The Constitution in the Supreme Court: Article IV and Federal Powers, 1836-64, 1983 DUKE L.J. 695, 732 & n.242.

[FN333]. See Dred Scott, 60 U.S. (19 How.) at 432-42. The conclusion is difficult to defend. It is true enough, as the opinion in Dred Scott argues, that the principal-and perhaps even thesole-purpose of the territories clause was to provide for the temporary management of the Northwest Territory until it could be formed into new states. The language of the clause is general however: as long as something is "the territory or other property" of the United States, it comes within the terms of the provision, whatever its purpose or intendment may have been.

[FN334]. 101 U.S. 129 (1880).

[FN335]. Id. at 132. For a summary of the various constitutional sources in which the Court has grounded a power to acquire territory, see Reno, The Power of the President to Acquire and Govern Territory, 9 GEO. WASH. L. REV. 251, 256 & n.21 (1941).

[FN336]. It is therefore interesting to note that America's turn-of-the- century colonialists were fervent antiformalists. The debate at that time concerned, in substance, whether the Bill of Rights had to be extended to our newly acquired overseas territories. See supra notes 103-04 and accompanying text. An affirmative answer, it was thought, would make governance-and hence possession-of those

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territories impossible, thus preventing America from becoming an overseas empire.

[FN337]. Letter from Gouverneur Morris to Henry W. Livingston (Dec. 4, 1803), quoted in De Lima v. Bidwell, 182 U.S. 1, 63 (1901) (A gument for Plaintiffs in Error).

[FN338]. U.S. CONST. art. IV, § 3, cl. 2.


[FN340]. Cf. Breyer, The Legislative Veto After Chadha, 72 GEO. L.J. 785, 792-95 (1984) (suggesting that Congress could largely duplicate the legislative veto that was held unconstitutional in Chadha through similar procedural machinations).

[FN341]. See supra note 53. Similarly, if Congress today disapproves of the outcome of a territorial election, it can simply abolish the office.

[FN342]. See supra text accompanying notes 295-97. The evidence on elected governors is far more equivocal. See supra text accompanying notes 81-90.

[FN343]. See supra text accompanying notes 22-23.

[FN344]. See, e.g., supra text accompanying note 337.

[FN345]. See supra note 22. It would be convenient if I could cite to an extended discussion of the subject elsewhere, but unfortunately my reasons for embracing textualism-or what I have elsewhere called "wooden originalism," Lawson, supra note 23, at 22-rest on epistemological and moral premises that differ radically from those of my fellow travellers.

[FN346]. U.S. CONST. art. V.

[FN347]. This mode of amendment may sound bizarre, especially coming from a formalist. It struck me as bizarre as well when Professor Amar first Proposed it to me. He was right and I was wrong. See Amar, supra note 91 (arguing that the people of the United States have an unenumerated right to amend the Constitution by direct referendum).END OF DOCUMENT

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Harvard Law ReviewMarch, 1955

*781 APPLICABILITY OF AMERICAN LAWS TO OVERSEAS AREAS CONTROLLED BY THE UNITED STATES

Sedgwick W. Green [FNa1]

Copyright © 1955 by the Harvard Law Review Association; Sedgwick W. Green

EXPANSION of the number and variety of United States interests overseas [FN1] since the start of World War II [FN2] has vastly increased the difficulty of determining what federal laws are applicable to these areas. [FN3] Litigation concerning this problem has arisen primarily in the areas of regulation of labor conditions, tort claims against the Government, and voting by American citizens abroad. [FN4] Since the end of World War II there have been *782 three Supreme Court decisions facing the issue. [FN5] While they have delineated some of the criteria that will be applied in determining the territorial scope of statutes, these decisions have fallen far short of settling the law in this field; indeed one of them has had the effect of creating considerable uncertainty in what had been, at least in the eyes of the executive departments concerned, an untroubled area. [FN6]Vermilya-Brown Co. v. Connell [FN7] was an action by a United States citizen who had been employed on a government contract on a leased base in Bermuda [FN8] for damages resulting from failure to pay a premium rate for overtime in accordance with section 7 of the Fair Labor Standards Act. [FN9] That act was at the time applicable to commerce "among the several States or from any State to any place outside thereof." [FN10] "State" was in turn defined *783 as including "any Territory or possession." [FN11] Defendant moved for summary judgment on the ground that applicability of the statute depended on the "sovereign jurisdiction" of the United States, that the executive and legislative branches of the Government had indicated that such leased areas were not under the sovereign jurisdiction of the United States, and that this was

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a political question beyond the judicial power. [FN12] The district court granted the motion. The court of appeals reversed. [FN13] The Supreme Court, by a five to four vote, affirmed the court of appeals. In so doing, it determined that it was not bound by the executive determinations [FN14] that the Bermuda base was not a possession, [FN15] and that the base was a possession for purposes of applying the Fair Labor Standards Act. [FN16]In Foley Bros., Inc. v. Filardo, [FN17] plaintiff served as a cook on a government contract for the construction of roads, buildings, and bases held by the United States without a formal lease agreement in Iran and Iraq during World War II. He was paid a flat weekly salary and received no premium pay for time worked in excess of eight hours per day. The Eight-Hour Law [FN18] permits government contractors to work their employees more than eight hours per day only on payment of time-and-one-half for the overtime hours. [FN19] The statute purports to be applicable (with numerous exceptions) to "every contract made to which the United States ... is a party." [FN20] Plaintiff got judgment in the New York supreme court; [FN21] the appellate division reversed on the ground that the Eight-Hour Law created no right of action in a wronged individual; [FN22] the court of appeals reversed the appellate division. *784 [ FN23] The Supreme Court unanimously reversed; the opinion stated that in the absence of any language to the contrary Congress must be presumed to intend to limit statutory applicability to the "territorial jurisdiction" of the United States, [FN24] and that the Eight-Hour Law therefore did not apply to bases in Iraq and Iran.In United States v. Spelar, [FN25] plaintiff's husband was killed in an accident at the American base in Newfoundland. This base was leased to the United States as part of the transaction [FN26] by which the United States acquired the Bermuda base involved in the Vermilya-Brown case. In an action for wrongful death under the Federal Tort Claims Act [FN27] the district court dismissed for lack of jurisdiction. [FN28] The Second Circuit reversed. [FN29] The court noted that, as originally passed, the Tort Claims Act conferred jurisdiction on the district court where the plaintiff was resident or where the injury occurred, "including the United States district courts for the Territories and possessions of the United States," [FN30] and from this inferred a congressional intent to include torts occurring in possessions within the scope of the act. Recodification of this section to specify the district courts of Alaska, the Canal Zone, and the Virgin Islands [FN31] was considered by the court as not intended to reduce the act's scope. Holding that the Newfoundland base must be considered a possession under the Vermilya-Brown decision, the court found it "difficult to believe that an air base which is a possession under one Act is a foreign country, no less, under another" and felt that it was "on the whole fantastic to consider this territory a foreign country" for the purposes of the Federal Tort Claims Act.

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[FN32] As a result, the court held that the district court had jurisdiction despite the provision of the act denying it jurisdiction over claims arising in a foreign country. [FN33] The Supreme Court reversed unanimously, holding that though the Newfoundland base was a possession, it was also a foreign country, since the United States was not sovereign.*785 Reading these three decisions together, it appears that a base leased for ninety-nine years is a "possession," but is also "foreign," that nonleased bases are not within the "territorial jurisdiction" of the United States, and that a statute that does not contain words of geographical applicability will not be considered as extending beyond such "territorial jurisdiction." Of these points, by far the most important is the interpretation of the word "possessions," since that word is the most prevalent statutory language describing geographical applicability. [FN34] However, it is unclear precisely how far Vermilya-Brown extends the term "possession," nor did Filardo and Spelar establish precise bounds for "territorial jurisdiction" and "foreign." [FN35] Since the decision in any particular case depends at least in part on a fictional "congressional intent" in selecting the language of geographical applicability used (or in failing to include any such language), analysis in any particular case must consider both the American interest in the area concerned *786 and its historical relationship with the United States. [FN36] The following kinds of holdings will therefore be considered as separate categories: (1) areas (except for guano islands) over which the United States had sovereignty in 1939, which will, for convenience, be referred to herein as the "historical possessions," (2) guano islands, (3) the Canal Zone and Guantanamo Bay, (4) hostilely occupied territory, (5) trust territory, and (6) leased bases and other forms of friendly occupation.

I. HISTORICAL POSSESSIONSAny statute using words like "possession" or "jurisdiction of the United States" without qualification will encompass all the historical possessions, apparently even where Congress has not considered the problems of the particular areas so covered. Therefore the Fair Labor Standards Act contains numerous provisions making special arrangements for Puerto Rico and the Virgin Islands because of their peculiar economic situations. [FN37] However, *787 no such special arrangements are made for American Samoa, in which a 75-cents-an-hour minimum wage would be completely out of line with the native economy and quite disruptive should there develop substantial commerce or production of goods for commerce within the meaning of the act. [FN38] The Act of February 20, 1929, [FN39] relating to the government of American Samoa, strongly implies that the area is beyond the purview

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of prior legislation, and this view is reinforced by the legislative history. [FN40] However, the Act of June 14, 1934, [FN41] removing American Samoa from the coverage of coastwise shipping provisions as extended by the Merchant Marine Act of 1920, shows clear congressional recognition that American Samoa is covered under general language of geographical applicability, since coverage of the Merchant Marine Act was in terms of "island Territories and possessions." [FN42] Coupled with Vermilya-Brown, this would appear to leave no doubt that all the historical possessions are covered by statutes referring to "possessions." [FN43]However, in other respects, there have been sharp distinctions drawn in the past among the historical possessions on the basis of whether or not they have been "incorporated" into the United States. This problem has generally arisen in connection with the applicability of constitutional provisions. In Balzac v. Porto Rico, the Court said: "It is well settled that these provisions for jury trial in criminal and civil cases apply to the Territories of the United States.... But it is just as clearly settled that they do *788 not apply to territory belonging to the United States which has not been incorporated into the Union." [FN44] In that case, the Court declined to consider Puerto Rico incorporated even though its residents were American citizens [FN45] and a district court had been established, [FN46] indicating that it would in the future look for some specific statutory evidence of incorporation. [FN47] The only areas which have been incorporated under this test appear to be Alaska [FN48] and Hawaii. [FN49] There has, however, been strong Supreme Court dictum to the effect that portions of the Constitution intrinsic to protection of civil rights are applicable despite the "incorporation" doctrine, [FN50] and the Third Circuit has so held. [FN51] This doctrine has not been considered by the Supreme Court in its post-World War II decisions on statutory applicability, and probably is limited to constitutional questions.

II. GUANO ISLANDSGuano islands are uninhabited islands covered with valuable deposits of the droppings of seafowl. Such an island, on being discovered and taken into "possession" by a citizen, "may, at the discretion of the President, be considered as appertaining to the United States." [FN52] While the effect of the word "appertaining" is not altogether clear, and while at one time the Department of State held that the United States lacked sovereignty over guano *789 islands [FN53] in the absence of annexation by legislative action, [FN54] both the Department of State and the Attorney General now hold to the contrary. [FN55] Coupled with the fact that the statute specifically provides that "possession" is taken in the name of the United States, these rulings

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would indicate that statutes drawn in terms of "possession" or "jurisdiction" would be applicable. These rulings would also appear to have superseded past expressions of the possibility that possession of a guano island lapses when the guano has been removed. [FN56]

III. THE CANAL ZONE AND GUANTANAMO BAYThese two pre-1940 leased areas are quite similar in status, since in both the United States has a permanent lease but lacks sovereignty. The Canal Zone was established by the Hay-Bunau Varilla Treaty of 1903, [FN57] in article III of which the Republic of Panama granted to the United States in the Canal Zone "all the rights, power and authority ... which the United States would possess and exercise if it were the sovereign." These rights, power and authority were substantially reduced by the General Treaty of Friendship and Cooperation with Panama in 1936, [FN58] and further *790 modifications appear in a proposed new treaty. [FN59]The statute law indicates an absence of fixed congressional intent as to the status of the Canal Zone; one statute reads: "Every common carrier ... in the .... Panama Canal Zone, or other possessions," [FN60] clearly implying a possession status; another reads: "'State' means any .... possession ... and the Canal Zone," [FN61] clearly implying the contrary. [FN62] However, the permanent tenure of the United States in the Canal Zone, [FN63] as compared with a ninety-nine-year lease in Bermuda, [FN64] in view of the otherwise quite similar statuses of the two regions, makes the Canal Zone an even stronger case than the Bermuda base for classification as a "possession." Statutory language directed only to the Canal Zone to the effect that it is "to be held, treated and governed as an adjunct of the Canal" [FN65] and that when the United States is at war or war is imminent the President may designate an army officer to have "entire control and government of the Canal Zone" [FN66] arguably indicates an intent to exclude the Canal Zone from statutes with only general language of geographical applicability. Tariff laws and the 1936 treaty rebut an otherwise strong policy argument for applying an act like the Fair Labor Standards *791 Act, since no businesses may be established there other than those connected with the Canal, and imports are dutiable. [FN67] Nevertheless, even Justice Jackson's dissent in Vermilya-Brown treats the Canal Zone as a "possession," [FN68] and it very probably should be so treated. [FN69]In Luckenbach S.S. Co. v. United States, [FN70] the Supreme Court treated the Canal Zone as a "foreign" port for purposes of compensation to be allowed for transportation of the mails. In view of the Spelar case, [FN71] this holding is hardly compelling as to whether the Canal Zone is a possession, although the Court cited

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with approval an opinion of the Attorney General [FN72] holding that it was not. [FN73] Furthermore, it seems unlikely that even the Luckenbach holding that the Canal Zone is "foreign" should be considered as of current general applicability. The Federal Tort Claims Act excludes claims arising in a "foreign" country, [FN74] yet authorizes the district court of the Canal Zone to hear cases under the act when the offense complained of occurs within its general jurisdiction. [FN75] Hence it would appear that the more recent congressional intent is to consider the Canal Zone as not "foreign." [FN76]*792 The American holding in Guantanamo Bay, Cuba, is in substance identical with that in the Canal Zone. By the Agreement of February 16-23, 1903, [FN77] Cuba leased the area to the United States for such time as the United States required it for a coaling or naval station. The United States may use the area for no other purpose. The United States recognizes Cuba's "ultimate sovereignty," but for the duration of the occupation has "complete jurisdiction and control." The limited interest of the United States is further elaborated by the Agreement of July 2, 1903, [FN78] in which the United States agrees to exclude commercial, industrial, *793 and other enterprises. [FN79] Noting the virtual identity of the arrangements concerning Guantanamo Bay with those concerning the Canal Zone, the Attorney General ruled Guantanamo Bay not a "possession" for tariff purposes. [FN80] That such a determination is not conclusive as to the status of an area in other regards has already been seen in the case of the Canal Zone. [FN81] In view of the virtual identity of the kinds of holdings involved in Guantanamo Bay and the Canal Zone, it would appear that, in the absence of clear statutory authority to the contrary in any particular case, [FN82] Guantanamo Bay should be treated like the Canal Zone both as a possession and as not foreign, despite the absence of a district court for Guantanamo Bay. [FN83]

IV. HOSTILELY OCCUPIED TERRITORYThe status of hostilely occupied territory has been considered by the Supreme Court in a large number of cases, culminating in the celebrated and confusing Insular Cases. [FN84] Following the War of 1812, the Court held in United States v. Rice that no duty was due the United States on goods imported into Maine during the British occupation. [FN85] Hostile military occupation was said to give "firm possession" and "fullest rights of sovereignty" [FN86] to the occupying power, while suspending the sovereignty of the power whose land was occupied. When the shoe was on the other foot following the Mexican War, the Court gave the question a more *794 searching analysis in Fleming v. Page, holding, without overruling Rice, that goods might not be imported duty- free into the United States from areas in Mexico

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occupied by the United States. [FN87] The Court acknowledged that the United States had "sovereignty and dominion" over the occupied territory, and also referred to United States "possession" of it. However, the Court, foreshadowing Spelar, felt that the area did not cease to be "a foreign country," and that the actions of the military commander were not designed to give the inhabitants "the benefits of commerce with the United States" but were "a measure of hostility." [FN88]These results, although they put territory of the United States occupied by a foreign country outside the customs territory of the United States, while declining to put within it territory hostilely occupied by the United States, are not necessarily inconsistent. They could be, and indeed subsequently were, construed to require both possession and annexation to bring a region within the customs territory of the United States. [FN89] With this construction, Fleming v. Page was the principal reliance of the Court in the Insular Cases in determining that Puerto Rico remained a "foreign country" after United States occupation of the island [FN90] but ceased to be a "foreign country" upon ratification of the peace treaty with Spain, which ceded it to the United States. [FN91] It should be noted that although the holdings applied only to tariff problems, the Court strongly implied that the same rule applied to other laws of the United States, since it looked with disfavor on the *795 argument "that a country may be domestic for one purpose and foreign for another." [FN92]However, in determining after World War II whether the Federal Tort Claims Act applied to an accident in Okinawa, the Ninth Circuit in Cobb v. United States [FN93] did not rely on the Insular Cases, even though applicability of the Tort Claims Act depends on whether the locus of the tort is "foreign." [FN94] Instead, the court initially decided that article 43 of the Hague Convention of 1907, [FN95] which requires occupying powers to respect the laws in force in a region prior to its occupation, unless absolutely prevented, barred application of the Tort Claims Act, since such application would require imposition of American tort rules in place of local tort rules [FN96] in defiance of article 43. On denial of a petition for rehearing, the court appeared to accept an administrative ruling that unconditional surrender made parts of the Hague Convention not literally applicable, [FN97] but determined that, in the absence of article 43, general international law compelled regard for the spirit and traditions of the pre-existing law in an occupied territory, and therefore reached the same result. [FN98]Even this rule, however, would not bar application of a procedural statute like the Federal Tort Claims Act unless, as the court assumed in the Cobb case, this would impose new tort rules on the occupied area. Even in an area whose tort law is substantially different from that of the United States such need not be the *796 case. In United States v. Praylou, [FN99] the law of South Carolina, the situs of the

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accident, providing for liability without fault for injuries to those on land from the fall of an airplane, was held to determine the liability of the United States under the Tort Claims Act. Should this interpretation stand, it could be argued that government liability should be determined by the local law of the occupied territory, [FN100] resulting in no breach of article 43 or general international law. However, the Praylou result has been strongly criticized [FN101] as violating the language of the Tort Claims Act, which requires a "negligent or wrongful" act as the basis of liability. [FN102] And the dangers of subjecting the United States to strange foreign laws must surely have been one of the reasons for excluding from the act torts occurring in foreign countries. These objections could be overcome, while meeting the complaint of the court in Praylou that it would be "absurd" not to permit a recovery for negligence comprehended within a strict liability statute while permitting it in other cases, [FN103] by requiring that there be a ground for recovery under the local law and also that the act be negligent or wrongful. Applied to hostilely occupied territory, such a resolution of the problem would also meet the article 43 or international law objections, since it would not create liabilities unknown to the local law. [FN104]There is another way in which the Tort Claims Act could be *797 applied in occupied territory without violating article 43 or general principles of international law, as long as the act's current venue requirements are maintained and no district court is established for the occupied area. In referring to "the law of the place where the act or omission occurred," [FN105] the American court could look to conflicts law, adopt a choice of law rule for federal torts in American-occupied territory of reference to the injured party's residence, and accept the renvoi to American tort law. [FN106] The act currently waives sovereign immunity only as to suits in the federal district court of the district where the plaintiff is resident or where the act complained of occurred. [FN107] In the absence of a district court for the occupied territory, only residents of the United States (including possessions within the jurisdiction of a district court) can recover under the Tort Claims Act; since neither the plaintiff nor the United States can expect to have been governed by the local law, the choice of plaintiff's residence, though unusual for tort purposes, seems justified by the peculiar circumstances involved. This solution would result in no imposition of unfamiliar laws on residents of the occupied area, and therefore no violation of article 43 or of general international law, and would satisfy the rule of Fleming v. Page, [FN108] in that no benefit would be conferred on the local populace by the occupation. On the other hand, it would prevent residents of the United States from being denied recovery merely because none was available under some peculiar local law.However, this approach might be considered foreclosed by Chicago, R.I. & Pac. Ry. v. McGlinn, [FN109] in which the Supreme Court held that on transfer of a region from

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one government to another, rules of tort liability remain in effect. In that case, a Kansas statute imposed absolute liability for injury to cattle on railroads whose tracks were not properly enclosed by fences. The *798 Court held that such laws as to private rights remained in effect after cession of exclusive jurisdiction over Fort Leavenworth from Kansas to the United States. However, the case involved rights as between local parties, who had been and expected to be governed by the local law, whereas Tort Claims Act cases will almost invariably involve people who are in the area as a result of the occupation. It is therefore readily distinguishable from a case between the United States and a nonresident of an occupied area in a case not involving local land use. [FN110]Though the foregoing analysis meets the objection raised in the Cobb case to application of the Tort Claims Act to hostilely occupied territory, it does not surmount the holdings of two district courts that the act is inapplicable to such territory because it is "foreign." [FN111] However, these holdings lose some force because, unlike the Cobb decision, they came before Vermilya- Brown, [FN112] which gave impetus to a more liberal view of geographical applicability. Thus the court in Brunell v. United States [FN113] relied primarily on a letter from the Legal Adviser of the Department of State to the effect that an occupied territory is foreign, and Vermilya-Brown made it clear that State Department interpretations are not determinative in this field. [FN114] In Brewer v. United States [FN115] the court suggested that the act applied only to torts committed within the jurisdiction of the district courts. Though the *799 result is different, the reasoning is similar to that of the Second Circuit in Spelar, [FN116] where it was held that the grant of jurisdiction in the original act to the district court of the territory or "possession" wherein the act or omission complained of occurred was also intended to extend (or, from the Brewer point of view, to limit) the applicability of the act to possessions. Since the court in the Brewer case did not anticipate the broad definition of "possession" subsequently given in Vermilya-Brown, it found no problem in deciding that occupied territory was not covered by the act. [FN117] But since the act provides alternative jurisdiction in the district where plaintiff resides, the jurisdictional language should not be relied upon to determine the geographical limits of the act with respect to situs of the tort; only the exclusion of claims arising in foreign countries would seem relevant on this question.A substantial number of cases have raised the question whether an American who votes in an election in a hostilely occupied country will lose his citizenship on the ground that it is a "foreign state." [FN118] Two circuits have decided that Japan and Germany during the American occupation were foreign states for this purpose, [FN119] overruling the prevailing opinion in the district courts within those circuits. [FN120] These court of appeals decisions relied on the fact that the occupations were

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transitory in intent, and that therefore the bulk of the residents in the areas could continue to owe allegiance to a country other than the United States. Two district courts remain unreversed in their circuits in the view that occupied Japan and Germany are not foreign. [FN121] The majority of the district court opinions to this effect rely on the theory, expressed *800 in Cherokee Nation v. Georgia, [FN122] that to be considered foreign a nation must be outside the sovereignty of the United States as well as having an existence of its own. It should be noted, however, that in Cherokee Nation the Court emphasized that the Cherokees' land was "within" the United States and that the United States claimed this land on a permanent basis. Furthermore, the case turned to a large extent on the distinction in the commerce clause of the Constitution between "foreign nations" and "Indian tribes," the Court being unwilling to consider an Indian tribe a foreign nation for the purpose of jurisdiction under article III. [FN123] That the first of these limitations on Cherokee Nation is pertinent is shown by Neely v. Henkel, [FN124] in which occupied Cuba was considered "foreign," and a prisoner thus held extraditable from the United States to it, even though the demanding authority was the United States military government. The Court noted that Congress had by joint resolution disclaimed any intent to control Cuba permanently, [FN125] and that though as between the United States and other countries Cuba was occupied, the territory was held "in trust" to be turned over to a Cuban government. This would seem to indicate that a lack of intent to remain in a hostilely occupied area renders it foreign. There is some question, however, whether this case is a true example of hostile occupation. Though the occupation was hostile as against Spain, the joint resolution recognized the independence of Cuba from Spain (although it did not recognize any particular government for Cuba) and the occupation might therefore be said to be nonhostile as far as Cuba was concerned. Nonetheless, in view of the nonrecognition of a Cuban government [FN126] and seizure of the area from a hostile power, the case seems rather one of a hostile occupation than of the presence of troops by permission of a friendly foreign government. Thus it would appear that where hostile occupation aims at creation of a native government which will resume full sovereignty in a few years, the area should be considered foreign. [FN127]*801 It remains to be considered whether hostilely occupied areas are to be classed as possessions or within the jurisdiction of the United States. The lack of intent to remain permanently would not rule such areas out as possessions, since the leased Bermuda base was considered a possession in Vermilya-Brown although the lease was only for ninety-nine years. However, the very much shorter period involved in a hostile occupation, in which there is usually an expectation of withdrawing in a few years after establishment of a friendly government, argues against possession status.

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Finally, the rule in Fleming v. Page [FN128] that military occupation is not intended to confer on the residents of the occupied area the benefits of intercourse with the United States would argue against considering such areas as possessions or as within the jurisdiction of the United States for the purposes of laws regulating domestic commerce or commerce between the United States (and possessions or areas within its jurisdiction) and points outside of it, or in applying social welfare legislation.A more difficult problem arises when the occupation policy is not aimed at establishment of a government to which the area may be restored. Such a situation is currently presented by the status of Okinawa, which has changed since the Cobb and Brewer cases arose. By article 3 of the Treaty of Peace with Japan, [FN129] the United States has "the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants" of Okinawa and other occupied islands pending a proposal by the United States to place the islands under American trusteeship and acceptance thereof by the United Nations. In Vermilya-Brown, the Court, in applying the Fair Labor Standards Act, made much of an implied grant of authority by Great Britain to the United States to prescribe labor conditions, [FN130] and here the peace treaty explicitly grants such authority. However, the treaty appears to make no final disposition of the status of Okinawa. While the mere fact that the American interest is nonpermanent would not keep the area from being a "possession" under the Vermilya-Brown test, the effect of the peace treaty appears to be *802 continuation of the occupied status of Okinawa [FN131] pending a final disposition of the region, rather than bestowal of the benefits of intercourse with the United States. Thus Okinawa apparently continues to lack possession status, and, a fortiori, to be foreign and not within the jurisdiction of the United States. [FN132] The case is, however, much more doubtful than one in which it is intended to set up a government and depart in a few years, particularly since the form of disposition apparently contemplated, American trusteeship, would continue the American interest in the area. However, since that form of disposition is not mandatory, this factor should not alter the result.

V. TRUST TERRITORYThe United States government of the Trust Territory of the Pacific Islands operates under a trusteeship agreement with the United Nations approved by the President pursuant to a joint resolution of Congress. [FN133] Article 3 of this agreement provides that the United States "may apply to the trust territory, subject to any modifications which the administering authority may consider desirable, such of the laws of the United States as it may deem appropriate to local conditions and

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requirements." Although immediate administrative authority over the trust territory is exercised by the Secretary of the Interior, [FN134] it is not clear whether all American laws are effective without further ado, or whether legislative or administrative action is necessary to put them into effect. The resolution of this question in turn depends on the relation of the trust territory to the United States.Since the language of the agreement creating the trust is unclear, the authority under which the trust was established must be *803 examined to determine its status. Pertinent portions of article 76 of the United Nations Charter, the article establishing the basic objectives of the trusteeship system, state that trusts are designed "to promote ... progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement" and "to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals, and also equal treatment for the latter in the administration of justice."The objective of equal treatment in commercial and economic matters for all members argues against including the trust territory within the "customs territory" of the United States, since such inclusion would result in imposition of tariffs on exports to the trust territory from all nations except the United States. However, this portion of the Charter appears to be purely precatory, and the permission given the United States by the trust agreement to apply such of its laws "as it may deem appropriate" contains no exception for tariff laws. Nonetheless, the presence of article 76 might deter a court from finding a congressional intent to include the trust territory within the scope of a given act, such as was found in Vermilya-Brown. [FN135]The provision for equal treatment of nationals of United Nations members in the administration of justice raises an interesting question with respect to the Tort Claims Act. This act gives jurisdiction to the district court for the district where the act complained of occurred or where the plaintiff is resident. [FN136] Since there is no district court with jurisdiction over the trust territory, it might be argued that the act should not apply because most nationals of members of the United Nations would not be able to recover under the Tort Claims Act, whereas most United States citizens would. However, a national of any United Nations member who is resident within a district court's jurisdiction does get the benefit of the act, while an American who is not so resident does not get the act's benefit, so that there is conceptual, if not statistical, equality of treatment.In regard to applicability of federal legislation in general, the *804 status of trust territories has been a matter of some dispute. [FN137] Since the Trust Territory of the Pacific is classed as a strategic area, action with respect to it in the United Nations

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must be taken by the Security Council rather than the General Assembly. [FN138] As a permanent member of the Security Council, [FN139] the United States could veto any proposed Security Council action with respect to the trust territory. [FN140] Therefore the United States has absolute control over the territory, and could be considered sovereign for all purposes. By this line of reasoning, all federal laws applicable in "possessions" or the "jurisdiction" of the United States would be applicable to the trust territory, and it could not be considered "foreign." Some support for this view is found in the report of the House Committee on Foreign Affairs on the joint resolution accepting the trusteeship agreement, which states: "In substance, the United States can administer the territory as if it were a colonial possession ....." [FN141] However, since the goal of trusteeship is "self-government or independence," [FN142] there is an implication of nonpermanence in the American holding there. [FN143]Regardless of the locus of sovereignty, the trust territory appears to qualify as a "possession," since the potentially nonpermanent nature of the United States interest compares with that in Bermuda. [FN144] Furthermore, even after Congress had set limitations on the exercise of American power in the Philippines preparatory to the freeing of that area, the Supreme Court held the United States to be sovereign and the Philippines not to be foreign. [FN145] The permissive nature of the language in the trust *805 agreement regarding applicability of American law, to be sure, indicates no congressional intent to apply those laws without further legislative or administrative action. And the language in the committee report to the effect that the area may be governed "as if it were a colonial possession" may imply that the trust territory is not a possession -- or perhaps only that it is not a colony. But Vermilya-Brown, involving as it did an area acquired by executive agreement, makes it clear that no congressional action is needed to make an area a "possession" if it meets the standard of a certain quantum of American control. And since it would take an extremely strained reading of the trust agreement to find in it any expression of intent that the trust territory was not to be covered by American statutes applicable to possessions, it must be concluded that under the Vermilya- Brown doctrine the trust territory is a possession. Vermilya-Brown was based on an implied grant of legislative power over labor standards by Britain to the United States, [FN146] a grant which is clearly spelled out in the trust agreement.There is dictum in Brunell v. United States to the effect that the trust territory is "foreign," [FN147] based on a State Department opinion which rested on lack of "sovereignty." [FN148] It is true that the Supreme Court used a sovereignty test in Dooley v. United States [FN149] and in Spelar [FN150] to decide whether a country was foreign. However, even assuming that the United States lacks technical

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sovereignty over the trust territory, recent cases have criticized the use of technical concepts of sovereignty in determining whether an area is a foreign country. [FN151] In practice, the policies sought to be effected by statutory reference to "foreign" areas would not *806 apply to a trust territory, over which the United States has complete control and over which it can exercise that control without violation of international law or treaties barring alteration of local law. [FN152] For example, one apparent reason for the exemption in the Federal Tort Claims Act for torts occurring in foreign countries, the risk of subjecting the United States to liability under peculiar foreign tort laws, is absent in the case of trust territories.The question remains whether the trust territory is within the "jurisdiction" of the United States. If "jurisdiction" is synonymous with "possession," a possible reading of the Filardo case, the question is governed by the foregoing discussion as to whether the trust territory is a possession; however, the term is very possibly of narrower application. [FN153] The possibly nonpermanent nature of the United States interest, in view of the United Nations Charter objectives of eventual self-government or independence for trust territories, is a factor against considering this area within the jurisdiction of the United States; it may, in this respect, be less closely held than the Canal Zone or Guantanamo Bay. However, the right of the United States to apply its own laws, subject to precatory language in the United Nations Charter [FN154] and with such modifications as may appear desirable, makes the trust territory more closely held in this regard than either the Bermuda base [FN155] or the Canal Zone. [FN156] This present right and ability to control exclusively the government of the area should be sufficient to bring the trust territory within United States "jurisdiction."

VI. LEASED BASES AND OTHER FORMS OF FRIENDLY OCCUPATIONIf the Court adheres to the Vermilya-Brown decision, leased bases, or at least those leased for a substantial period, will continue to be classified as possessions. However, the main impact of Vermilya-Brown -- the requirement that local labor be employed under Fair Labor Standards Act conditions [FN157] -- has been avoided *807 in subsequent situations by including in the agreement regarding the presence of American troops a stipulation that the United States will not employ local labor at higher than local standards. [FN158] When such a reference is included in a treaty, it is probable, though the case authority is scanty, that the treaty will supersede the Fair Labor Standards Act. [FN159] The situation is less clear should the stipulation be included in an executive agreement. It seems unlikely, though again on the basis of exceedingly scanty case authority, that an executive agreement can normally alter a preexisting statute; [FN160] however, this rule may not apply to executive agreements

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concerned solely with areas in which the United States lacks sovereignty, and entered into at least in part under the President's power as commander-in-chief of the armed forces. More determinative, with respect both to treaties and executive agreements, is the argument that the executive agreement does not modify the legislation but is instead part of the data from which the determination should be made whether the area is a "possession" for the purpose of the legislation in question. This analysis is strongly supported by the language of the Vermilya-Brown decision, which found the Bermuda base a possession under the Fair Labor Standards Act because of an implied "voluntary grant of the authority by the sovereign lessor to legislate upon maximum hours and minimum wages." [FN161] Reservation of control with respect to local labor in leased base agreements would negate such a grant of authority.There remains, however, the possibility that the typical reservation of control with respect to local labor would still permit application of the Fair Labor Standards Act to employees at a leased base who are not resident in the locality. [FN162] This would create a situation -- odd at first glance -- by which the base would be a *808 "possession" under an act with respect to some persons but not others. [FN163] However, the theory of Vermilya-Brown that there has been a voluntary grant of authority by the sovereign lessor with respect to the particular item involved carries with it the implication that on other points there may be no such grant of authority, [FN164] so that an area may be a "possession" for the purpose of one statute but not for the purpose of another. Accordingly, there is less novelty in duality of status with respect to persons covered. However, since the Vermilya-Brown inference of a grant of authority to legislate on labor matters rests on no particular language, [FN165] but is drawn merely from the general spirit of the lease agreement, the reservation of authority by the lessor with respect to local residents might prevent the Court, in the absence of a specific grant of authority as to others, from finding any intent to grant authority in the field of labor standards; on the other hand, of course, it might be considered an implied grant of authority as to nonresidents.As a result of the Spelar decision, [FN166] it is clear that leased bases are "foreign."Whether leased bases are within the "jurisdiction" of the United States (or its "territorial jurisdiction" [FN167] or "legislative control" [FN168]) is a critical problem under the Buy American Act. [FN169] This act, setting out the situations in which the Government must buy only goods produced in the United States, does "not apply ... to articles ... for use outside the United States." [FN170] The *809 "United States," in a geographical sense, is defined in the act to include "any place subject to the jurisdiction thereof." [FN171] "Jurisdiction" was used as a word of geographical limitation in the Filardo decision, in which the Supreme Court declared that, in the absence of specific language of geographical limitation, Congress is to be presumed

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to limit the exercise of its legislative powers to the "territorial jurisdiction" of the United States; therefore the Eight-Hour Law, [FN172] applicable to "every contract made to which the United States ... is a party," [FN173] was not applicable to nonleased bases in Iran and Iraq. The holding is, on the facts, limited to nonleased bases, as a footnote in Spelar points out; [FN174] however, this distinction is not clearly drawn in Filardo, and it is conceivable that the Court would not apply the Eight-Hour Law to a leased base, particularly since, in Filardo, it considered open, and indeed seemed to question, the applicability of the Eight-Hour Law to the Canal Zone. [FN175] A state court, however, has ruled the Eight-Hour Law applicable to a leased base. [FN176]The legislative history casts some light on the meaning of "jurisdiction" in the Buy American Act. During the debates on the act, the geographically excluded areas were referred to as "foreign countries," [FN177] a categorization which, under Spelar, would exclude nonpermanently leased bases from the "jurisdiction" of the United States. A prior version of the act, applicable only to a War Department appropriation, was limited to the continental United States; [FN178] the debates indicate that only a moderate expansion to include, inter alia, the Canal Zone, was intended. [FN179] This history appears to justify exclusion of nonpermanently leased areas from the term "jurisdiction." [FN180]*810 That nonleased areas under friendly occupation [FN181] are not within the "jurisdiction" of the United States is established by Filardo, and that they are "foreign" follows a fortiori from Spelar. [FN182] The problem remains whether they are "possessions" within the meaning of Vermilya-Brown. Though the concurring opinions in the Filardo case seemed to assume that the Vermilya-Brown result would apply to nonleased areas, and the opinion of the Court does not draw a sharp distinction between leased and nonleased areas, the absence of any formal transfer of the area in question, even for limited purposes, argues against the implication of a grant of authority to the United States to legislate for it. Since such an implied grant was fundamental to the Vermilya-Brown result, [FN183] it would seem that nonleased areas should not be considered "possessions." [FN184]

CONCLUSIONThe foregoing exposition of the status under Vermilya-Brown and related decisions of the diverse areas in which the United States has an interest indicates the many problems that have resulted primarily from the impetus given by the Vermilya-Brown decision to liberal interpretation of the geographical applicability of United States statutes, despite the limits established by Filardo and Spelar. The fact that Congress

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could not conceivably have anticipated the Bermuda base lease when the Fair Labor Standards Act was passed in 1938 should not ipso facto bar the Court from applying the act to that base. However, in deciding whether to *811 embark on a course of applying American laws to the rapidly increasing number of overseas areas in which the United States has an interest, when the status of such areas is often novel and ambiguous, the Court should have considered whether the issues presented could better be disposed of by judicial or by legislative lawmaking.In deciding in Vermilya-Brown to extend the Fair Labor Standards Act to leased bases the Court seems to have been motivated at least in part by a desire to protect American workers at such bases. [FN185] This is a laudable motive, and might even be thought to overbalance the disruption to local economies that would result if the law were enforced with respect to non- American labor. [FN186] But the primary difficulty with Vermilya-Brown is that it throws the applicability of so many statutes [FN187] into doubt with respect to so many areas. The judicial process is ill equipped to dispose of this multitude of questions with sufficient celerity to provide a useful guide for the current large-scale American activities overseas; and the guidelines provided by existing case law are still too vague to support authoritative administrative interpretations, particularly since the Vermilya-Brown decision resulted in the overthrow of all prior administrative thinking concerning the problem. Because of the delicate questions involving the international relations of the United States which are involved, the participation of the executive branch in lawmaking in this field is particularly desirable. Finally, Congress' explicit coverage of overseas bases and other areas in the Defense Bases Act [FN188] indicates its cognizance of the problems raised by overseas bases and may also imply that its inaction with respect to other statutes indicated an intent not to apply them to America's new overseas holdings. For these reasons, the Vermilya-Brown case should be *812 overruled, and the word "possessions," when not otherwise defined in a statute, should be limited to the historical possessions, the Canal Zone, Guantanamo Bay, and the guano islands, the areas over which the United States has indicated an intent to exercise permanent control. In view of the closeness of the vote in Vermilya-Brown [FN189] and the continued protests of the dissenters, [FN190] such a result is not too much to be hoped for.In the absence of, or pending, such a reversal by the Supreme Court, it behooves Congress to solve the problems created by the Vermilya-Brown decision. The Overseas Fair Labor Standards Amendments, introduced with administration support towards the end of the last Congress, [FN191] would undo the holding in Vermilya-Brown by limiting the Fair Labor Standards Act to the continental United States, Alaska, Hawaii, Puerto Rico, the Virgin Islands, Guam, Wake, and American Samoa.

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[FN192] With respect to the last three, the act would be inapplicable until such time as the Secretary of Labor by administrative process invoked it; in so doing he could set rates for each of these areas lower than the minimum otherwise provided by the act and also provide tolerances as to overtime and child labor. This measure represents a conscious and realistic attempt to deal with America's overseas holdings, and should be enacted.Furthermore, in view of the general confusion now existing, legislation similar to the Overseas Fair Labor Standards Amendments should be prepared for other statutes that are particularly important in dealing with American overseas holdings, pending a general review of legislative policy towards each kind of area involved. In particular, the geographical scope of the Federal Tort Claims Act, [FN193] the Eight-Hour Law, [FN194] and the Buy American Act [FN195] are in need of prompt and precise delineation.

[FNa1]. Member of the New York and District of Columbia Bars. First Lieutenant, Industrial Relations Branch, Procurement Law Division, Office of the Judge Advocate General, United States Army. A.B., Harvard, 1950, LL.B., 1953. The opinions contained herein are those of the author, and do not necessarily reflect the views of the Department of the Army or the Office of the Judge Advocate General.

[FN1]. One recent tally showed the United States with soldiers in 49 countries and with 109 major military installations abroad. Bess, Here's Where Your "Foreign Aid" Taxes Go, Saturday Evening Post, July 24, 1954, pp. 26, 72.

[FN2]. That the acquisition of leased bases under the "destroyers for bases" agreement with Great Britain marked a turning point in the nature of United States overseas holdings is recognized by § 1 of the Defense Bases Act of 1941, 55 STAT. 622, as amended, 42 U.S.C. § 1651 (1952), which specifically distinguishes "military, air, or naval base[s] acquired after January 1, 1940, by the United States from any foreign government."

[FN3]. Past litigation has been limited almost exclusively to occupied territory, see pp. 793-802 infra, and to Indian lands, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

[FN4]. This article is concerned with the applicability of statutes based on some form of United States control over the area involved. Despite occasional statements that statutes are confined to "the territorial limits over which the lawmaker has general and

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legitimate power," American Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909), there are many other bases of applicability, such as citizenship, Blackmer v. United States, 284 U.S. 421 (1932) (American citizen punishable in U.S. courts for failure to heed U.S. subpoena served on him abroad), and the admiralty jurisdiction, United States v. Flores, 289 U.S. 137 (1933) (admiralty and maritime jurisdiction extends into territorial waters of another country). In United States v. Bowman, 260 U.S. 94 (1922), the perpetrator of a criminal fraud against the United States was found guilty though he was abroad at the time of the acts involved. By setting terms of contracts to be performed abroad legislation can also extend beyond United States territorial control. See, e.g., Defense Bases Act of 1941, supra note 2, covering "contract[s] entered into with the United States ... where such contract is to be performed outside the continental United States and at places not within [certain military bases or any territory or possession]." Though the dictum in Best v. United States, 184 F.2d 131, 138 (1st Cir.), cert. denied, 340 U.S. 939 (1950), that the fourth amendment to the Constitution applies to a search by Army officers in Vienna is limited by its terms to occupied territory, the reasoning, that lack of a judicial officer authorized to issue a search warrant does not render the fourth amendment inapplicable, would also be applicable to a foreign area not under United States control. But see In re Ross, 140 U.S. 453, 464 (1891) ("The Constitution can have no operation in another country."). See also Balzac v. Porto Rico, 258 U.S. 298 (1922) (no right to trial by jury in Puerto Rico because it had not been incorporated into the United States). Perhaps those parts of the Bill of Rights which go sufficiently to the heart of civil liberties to be carried over to the states by the fourteenth amendment govern United States conduct abroad, Turney v. United States, 126 Ct. Cl. 202, 115 F. Supp. 457 (1953), or perhaps they only govern in areas over which the United States has some form of territorial control. Cf. Downes v. Bidwell, 182 U.S. 244, 283 (1901); Seery v. United States, No. 340-52, Ct. Cl., Jan. 11, 1955.

[FN5]. Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948), rehearing denied, 336 U.S. 928 (1949) (Fair Labor Standards Act applicable to leased base in Bermuda); Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) (Eight- Hour Law not applicable to bases in Iraq and Iran); United States v. Spelar, 338 U.S. 217 (1949) (Federal Tort Claims Act not applicable to leased base in Newfoundland).

[FN6]. Vermilya-Brown Co. v. Connell, supra note 5. See, e.g., Memorandum for the United States in Support of Petition for Rehearing passim (Departments of State, Army, Navy, and Labor oppose decision and fear its effects). See also Notes, 44 ILL.

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L. REV. 247, 97 U. PA. L. REV. 866 (1949).

[FN7]. 335 U.S. 377 (1948), rehearing denied, 336 U.S. 928 (1949).

[FN8]. For terms of the lease, see Arrangement Between the United States of America and Great Britain, Sept. 2, 1940, 54 STAT. 2405, E.A.S. No. 181, and Agreement with Great Britain Respecting Leased Bases, March 27, 1941, 55 STAT. 1560, E.A.S. No. 235.

[FN9]. 52 STAT. 1063 (1938), as amended, 29 U.S.C. § 207 (1952).

[FN10]. § 3(b), 52 STAT. 1060 (1938). This subsection has since been amended to read "among the several States or between any State and any place outside thereof." 63 STAT. 911 (1949), 29 U.S.C. § 203(b) (1952).

[FN11]. § 3(c), 52 STAT. 1060 (1938), as amended, 29 U.S.C. § 203(c) (1952).

[FN12]. 335 U.S. at 379.

[FN13]. Connell v. Vermilya-Brown Co., 164 F.2d 924 (2d Cir. 1947).

[FN14]. E.g., Letter from Legal Adviser, Department of State, to Attorney General, Jan. 30, 1948, Brief for the United States as Amicus Curiae, app. A, pp. 49-54, Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948).

[FN15]. See 335 U.S. at 405 (Jackson, J., dissenting); Fuchs, Administrative Determinations and Personal Rights in the Present Supreme Court, 24 IND. L.J. 163 (1949).

[FN16]. 335 U.S. at 390.

[FN17]. 336 U.S. 281 (1949).

[FN18]. 27 STAT. 340 (1892), as amended, 40 U.S.C. §§ 321-26 (1952).

[FN19]. 54 STAT. 884 (1940), 40 U.S.C. § 325a (1952).

[FN20]. 37 STAT. 137 (1912), 40 U.S.C.A. § 324 (1952). This language is omitted,

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apparently inadvertently, from 40 U.S.C. § 324 (1952).

[FN21]. No. 547, N.Y. Sup. Ct., Trial Term, Ready Jury Calendar, N.Y. County, Jan. 8, 1947.

[FN22]. 272 App. Div. 446, 71 N.Y.S.2d 592 (1st Dep't 1947).

[FN23]. 297 N.Y. 217, 78 N.E.2d 480 (1948).

[FN24]. 336 U.S. at 285.

[FN25]. 338 U.S. 217 (1949).

[FN26]. See note 8 supra.

[FN27]. 28 U.S.C. §§ 2671-80 (1952).

[FN28]. 75 F. Supp. 967 (E.D.N.Y. 1948).

[FN29]. 171 F.2d 208 (2d Cir. 1948).

[FN30]. § 410(a), 60 STAT. 843 (1946).

[FN31]. 28 U.S.C. § 1346(b) (1952), recodified by 62 STAT. 933 (1948).

[FN32]. 171 F.2d at 209-10.

[FN33]. 28 U.S.C. § 2680(k) (1952).

[FN34]. In his dissent in Vermilya-Brown, Justice Jackson listed 66 statutes using the term "possessions" in the phrase "States, Territories, and Possessions" or the like, and 11 others in which the term was qualified, usually in a similar phrase, by the word "island" or "insular." 335 U.S. at 398 n.11. Slight variations in language in particular cases may determine whether a given area is covered. E.g., Federal Communications Act § 3(g), 48 STAT. 1064 (1934), as amended, 47 U.S.C. § 153(g) (1952) ("'United States' means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include the Canal Zone.").

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[FN35]. The reference to "territorial jurisdiction" in the Filardo case is similar to the language of the Buy American Act § 1(a), 47 STAT. 1520 (1933), 41 U.S.C. § 10c(a) (1952) ("The term 'United States,' when used in a geographical sense, includes the United States and any place subject to the jurisdiction thereof."). The Armed Services Procurement Regulations (hereinafter cited as ASPR) state that the act is inapplicable to "supplies for use outside the United States," ASPR 7-103.14, 32 C.F.R. § 406.103-14 (1952), and define "United States" for this purpose as including "the United States, its territories and possessions," ASPR 6-103.3, 32 C.F.R. § 405.103- 3 (1952), thus apparently equating "any place subject to the jurisdiction" of the United States with "territories and possessions." However, the Eight-Hour Law is said by ASPR 12-302, 32 C.F.R. § 411.302 (Supp. 1954), to be inapplicable to contracts "in a foreign country over which the United States has no direct legislative control," thus apparently equating "territorial jurisdiction" and "legislative control." Should the latter two be equated with "jurisdiction," the ASPR would be construing Filardo and Vermilya-Brown as making "legislative control" and the various forms of "jurisdiction" identical with "possession," as a result of which nonleased bases would not be considered possessions. Further, leased bases would be within United States "jurisdiction" or "legislative control." The latter conclusion is suggested by a footnote in the Spelar opinion. 338 U.S. at 222 n.12. However, it is possible that nonleased bases may nonetheless be "possesions," see p. 810 infra, whereas leased bases may not be within United States "jurisdiction," see p. 809 infra. The foregoing illustrates just a few of the problems created by the Supreme Court decisions.

[FN36]. That historical relationship as well as terms of tenure may influence the determination of congressional intent can be seen from the fact that prior to the initiation of litigation over the status of the Bermuda base, the Department of Labor considered the Fair Labor Standards Act applicable to the Canal Zone, but not to the Bermuda base. Yet the restrictions on economic activity are equally severe in both cases. Compare General Treaty of Friendship and Cooperation with Panama, March 2, 1936, arts. III, V, 53 STAT. 1810, 1815, T.S. No. 945, with Agreement with Great Britain Respecting Leased Bases, March 27, 1941, 55 STAT. 1560, E.A.S. No. 235. While the difference between the 99- year tenure in Bermuda and the permanent leasehold in the Canal Zone could be a basis of distinction, the real reason for the differing attitudes toward the two areas may well be found in their history. Article III of the Hay-Bunau Varilla Treaty, Convention with Panama, Nov. 18, 1903, art. III, 33 STAT. 2235, T.S. No. 431, gave to the United States in the Canal Zone "all the rights, power and authority ... which the United States would possess and exercise if it were the sovereign ...." Though articles III and V of the 1936 treaty, supra, 53 STAT. 1810,

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1815, clearly restrict the rights, power, and authority of the United States in the Canal Zone, article XI of that treaty asserts that the 1936 treaty does not affect rights created by the 1903 treaty, see 53 STAT. 1825. Because of this historical background, there appears to be a tendency to consider the Canal Zone as adhering closely to the United States, whereas there is considerable solicitude for British interests in the Bermuda base area. See Letter from Acting Legal Adviser, Department of State, to the Attorney General, Dec. 16, 1948, included as Appendix A in Memorandum for the United States in Support of Petition for Rehearing, pp. 8-9, Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948). This probably stems from the fact that the Canal Zone was obtained by "big stick" diplomacy, whereas the Bermuda base was acquired in arm's length bargaining.

[FN37]. §§ 5, 6, 8, 52 STAT. 1062, 1064 (1938), as amended, 29 U.S.C. §§ 205, 206, 208 (1952).

[FN38]. S. 2981 and H.R. 8333, 83d Cong., 2d Sess. (1954), recognizing this problem, were designed to limit applicability of the Fair Labor Standards Act to the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands. The Administration subsequently sponsored S. 3831, 83d Cong., 2d Sess. (1954), see p. 812 infra, which is similar in its geographical coverage but permits the Secretary of State to set special rates for Guam, Wake, and American Samoa.

[FN39]. 45 STAT. 1253 (1929), as amended, 48 U.S.C. § 1431a (1952).

[FN40]. Both Senate and House reports assert that "supreme executive, legislative, and judicial power" was vested in a naval officer prior to the act, and that the act grants full governmental power to the President until Congress provides laws for the area. H.R. Rep. No. 2451, 70th Cong., 2d Sess. 2, 3 (1929); S. Rep. No. 984, 70th Cong., 1st Sess. 2, 3 (1928).

[FN41]. 48 STAT. 963 (1934), 48 U.S.C. § 1433 (1952).

[FN42]. 41 STAT. 997 (1920), 46 U.S.C. § 877 (1952).

[FN43]. Only for Guam has any precise study been made as to which statutes are applicable; at the time of establishment of a territorial government for Guam Congress directed the making of such a study. 64 STAT. 391 (1950). The results are set forth in H.R. DOC. NO. 812, 82d Cong., 1st Sess. (1951). Such a study has now been required

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for the Virgin Islands. Revised Organic Act of the Virgin Islands, § 8(d), 68 STAT. 500, 48 U.S.C.A. § 1574(d) (Supp. 1954).

[FN44]. 258 U.S. 298, 304-05 (1922). For other expressions of this doctrine, see Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi, 190 U.S. 197 (1903).

[FN45]. 258 U.S. at 307-09.

[FN46]. Id. at 311-12.

[FN47]. Id. at 306.

[FN48]. 37 STAT. 512 (1912), 48 U.S.C. § 23 (1952).

[FN49]. 31 STAT. 141 (1900), as amended, 48 U.S.C. § 495 (1952). These statutes also extend federal statute law to Alaska and Hawaii. REV. STAT. § 1891 (1875), which applied the Constitution and laws of the United States within all organized territories and all territories thereafter organized, was repealed as obsolete in 1933. 47 STAT. 1429.

[FN50]. Chicago, R.I. & Pac. Ry. v. McGlinn, 114 U.S. 542, 546 (1885); Ortega v. Lara, 202 U.S. 339, 342 (1906); Vilas v. Manila, 220 U.S. 345, 357 (1911); Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922).

[FN51]. Soto v. United States, 273 Fed. 628 (3d Cir. 1921) (conviction following trial in the Virgin Islands in which defendant could not confront or cross-examine opposing witnesses violates Constitution). The court drew a distinction between "natural or personal rights" and "artificial or remedial rights," perhaps paralleling that drawn between parts of the Bill of Rights that are and are not imposed on the states by the fourteenth amendment. See Palko v. Connecticut, 302 U.S. 319 (1937).

[FN52]. REV. STAT. § 5570 (1875), 48 U.S.C. § 1411 (1952).

[FN53]. Letter of Assistant Secretary of State, Jan. 3, 1907, quoted in 1 HACKWORTH, DIGEST OF INTERNATIONAL LAW 502 (1940) (hereinafter cited as HACKWORTH).

[FN54]. Opinion of Solicitor for Department of State, Sept. 25, 1907, quoted in 1

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HACKWORTH 503. Insofar as this opinion stated that jurisdiction is lacking over guano islands, it was overruled by a presidential proclamation of Jan. 17, 1916. 39 STAT. 1763.

[FN55]. 34 OPS. ATT'Y GEN. 507 (1925); Telegram from Secretary of State to Minister to Honduras, March 1, 1929, quoted in 1 HACKWORTH 519-20.

[FN56]. Letter of Assistant Secretary of State, Jan. 3, 1907, quoted in 1 HACKWORTH 512; Letter from Secretary of State to President, May 22, 1924, 1 HACKWORTH 484; Telegram from Acting Secretary of State to Secretary of Commerce and Labor, Aug. 4, 1909, 1 HACKWORTH 504. The diplomatic history of the guano islands is set forth in 1 HACKWORTH 502-24.

[FN57]. 33 STAT. 2234, T.S. No. 431.

[FN58]. General Treaty of Friendship and Cooperation with Panama, March 2, 1936, 53 STAT. 1807, T.S. No. 945. Most noteworthy are article III(2), which limits residence in the Canal Zone in substance to the households of those directly connected with the operations and defense of the canal and of the Canal Zone Government, and article III(5), which limits business enterprises in the Canal Zone to those directly connected with the canal and a limited number of truck farmers who had established their farms prior to the treaty. The 1936 treaty also states in article XI that it does not affect rights created by the 1903 treaty; however, such saving language does not alter the practical effect of the limitations imposed on the United States by the 1936 treaty in leaving the United States very much less than full sovereignty in the area, and also a very much reduced legislative interest in what occurs in the Canal Zone. Thus one compelling reason for applying the Fair Labor Standards Act to an area in which the United States truly had all the rights, power, and authority which it would have were it sovereign -- the threat to domestic labor and industry of duty-free goods produced in the area by low-cost labor -- is effectively removed in the case of the Canal Zone by the limitations on business enterprises contained in article III(5) of the 1936 treaty. Even prior to the 1936 treaty, goods imported from the Canal Zone had been made dutiable. 33 STAT. 843 (1905), 19 U.S.C. § 126 (1952).

[FN59]. The treaty would, inter alia, withdraw coverage of the Buy American Act, based on the word "jurisdiction," 47 STAT. 1520 (1933), 41 U.S.C. § 10c(a) (1952), from purchases in Panama for use in the Canal Zone. N.Y. Times, Dec. 23, 1954, p. 8,

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col. 8.

[FN60]. Federal Employers' Liability Act § 2, 35 STAT. 65 (1908), 45 U.S.C. § 52 (1952).

[FN61]. Bank Conservation Act § 202, 48 STAT. 2 (1933), 12 U.S.C. § 202 (1952).

[FN62]. That this method of analysis has its limitations is shown by 41 C.F.R. § 201.603(b) (Supp. 1954), excluding from the operation of the Walsh- Healey Public Contracts Act, 49 STAT. 2036 (1936), as amended, 41 U.S.C. § 35 (1952), goods not manufactured or furnished in "the continental United States ... or the District of Columbia," which would, with an extreme states' rights interpretation, exclude the District of Columbia from the continental United States.

[FN63]. Convention with Panama, Nov. 18, 1903, art. II, 33 STAT. 2234, T.S. No. 431.

[FN64]. Arrangement Between the United States of America and Great Britain, Sept. 2, 1940, 54 STAT. 2405, E.A.S. No. 181.

[FN65]. CANAL ZONE CODE tit. 2, § 7 (1934).

[FN66]. Id. tit. 2, § 8.


[FN68]. 335 U.S. at 402. As for administrative determinations, the Department of Labor claimed jurisdiction over the Canal Zone under the Fair Labor Standards Act in Interpretative Bulletin No. 2 (1938), and continued this claim in 29 C.F.R. § 776.1(c) (1949). The State Department, in a letter of Dec. 16, 1948, to the Attorney General, referred to the Canal Zone as one of a number of areas "long known as 'possessions."' Memorandum of the United States in Support of Petition for Rehearing, p. 9, Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948). However, a memorandum dated Jan. 29, 1954, from the Deputy Secretary of State to the Bureau of the Budget states that the Canal Zone is not a territory or possession. While Vermilya-Brown appears to stand for the proposition that the Supreme Court will not consider itself bound by determinations by the State Department as to the status of holdings of the United States, at least in cases involving purely domestic litigants, see Fuchs,

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Administrative Determinations and Personal Rights in the Present Supreme Court, 24 IND. L.J. 163 (1949), the Court nowhere clearly states this proposition.

[FN69]. But see note 76 infra.

[FN70]. 280 U.S. 173 (1930).

[FN71]. See p. 784 supra.

[FN72]. 27 OPS. ATT'Y GEN. 594 (1909).

[FN73]. 280 U.S. at 178.

[FN74]. 28 U.S.C. § 2680(k) (1952).

[FN75]. 28 U.S.C. § 1346(b) (1952).

[FN76]. In 25 OPS. ATT'Y GEN. 441 (1905), Attorney General Moody said, in discussing the Eight-Hour Law, that the Panama Canal Zone was within the "sovereign jurisdiction of the United States," a test, though not a result, closely akin to the "territorial jurisdiction" test used by the Supreme Court in Filardo, supra pp. 783-84. The strength of Moody's opinion as authority is questionable, in view of the fact that Congress shortly reversed it as to work being done on the canal, 34 STAT. 669 (1906), and in view of the criticism of the opinion in 34 OPS. ATT'Y GEN. 257, 260 (1924), in which Attorney General Stone held that the Eight-Hour Law was not applicable to alien laborers engaged in alteration of the American Embassy in London. Further, in Filardo, the Court cast doubt on the applicability of the Eight-Hour Law to the Canal Zone. 336 U.S. at 289. Finally, the Moody opinion was based primarily on the theory that the "every contract" language of the law made it universally applicable, the opinion stating that though the Canal Zone was within congressional legislative power, it had not been made generally subject to American law. However, 20 OPS. COMP. GEN. 890 (1941) sub silentio applies the Eight-Hour Law to the Canal Zone. See also 30 OPS. ATT'Y GEN. 271 (1914) (territory under control or jurisdiction of the United States includes the Canal Zone). 41 C.F.R. § 201.603(b) (1949), limiting coverage of the Walsh-Healey Public Contracts Act, 49 STAT. 2036 (1936), as amended, 41 U.S.C. §§ 35-45 (1952), to continental United States, Alaska, Hawaii, Puerto Rico, the Virgin Islands, and the District of Columbia, is, by the very

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language of § 201.603, to be considered an exercise of the Secretary of Labor's power to grant exemptions under § 6 of the act, rather than an interpretation of the language "any contract made" in § 1 of the act. The Attorney General's ruling that the Canal Zone is not a "possession," as that term is used in the Tariff Act of 1909, but a place subject to "use, occupation, and control .... for a particular purpose," 27 OPS. ATT'Y GEN. 594, 595 (1909), led him to hold that one can import goods into the Canal Zone without paying the United States duty. Similarly, 33 STAT. 843 (1905), 19 U.S.C. § 126 (1952), provides that all laws affecting imports from foreign countries shall apply to goods being brought from the Canal Zone into any state or territory of the United States or the District of Columbia. Hence, though the Canal Zone may be considered a "possession" generally, for special purposes it may be treated otherwise. Such special tariff treatment is also provided for several historical possessions by 46 STAT. 590 (1930), as amended, 19 U.S.C. § 1001 (1952); such areas are described in 19 C.F.R. § 7.8 n.14 (1953) as being outside the "customs territory" of the United States. Section 1(a) of the Buy American Act, 47 STAT. 1520 (1933), 41 U.S.C. § 10c(a) (1952), referring to jurisdiction, includes the Canal Zone. See remarks of Senator King, 76 CONG. REC. 3171 (1933); cf. § 1(b), specifically covering it. But see note 59 supra.

[FN77]. 1 MALLOY, TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS AND AGREEMENTS 358 (1910).

[FN78]. Id. at 360.

[FN79]. These relationships are continued in effect by the Treaty Between the United States and Cuba, May 29, 1934, art. III, 48 STAT. 1683, T.S. No. 866.

[FN80]. 35 OPS. ATT'Y GEN. 536 (1929).


[FN82]. The statutory provision removing the Canal Zone from the "customs territory" of the United States, see note 76 supra, would appear to provide some authority for the administrative determination to treat Guantanamo Bay in like fashion. See 19 C.F.R. § 7.11 (1953).

289

[FN83]. Whether Guantanamo Bay is within the "jurisdiction" of the United States is a problem similar to that presented with respect to the Canal Zone in note 76 supra. It should be noted that the Agreement of Feb. 16-23, 1903, supra note 77, specially grants the United States "complete jurisdiction and control."

[FN84]. Concerning one of which, Downes v. Bidwell, 182 U.S. 244 (1901), Justice Peckham later commented: That case is authority only for the proposition that the plaintiff therein was not entitled to recover the amount of duties he had paid under protest upon the importation into the city of New York of certain oranges from the port of San Juan, in the Island of Porto Rico, in November, 1900. Dorr v. United States, 195 U.S. 138, 154 (1904) (concurring opinion).

[FN85]. 17 U.S. (4 Wheat.) 246 (1819).

[FN86]. Id. at 254.

[FN87]. 50 U.S. (9 How.) 603 (1850). The result was foreshadowed by dictum in American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828).

[FN88]. 50 U.S. (9 How.) at 614, 616. As an alternate ground for its decision the Court suggested that the occupied Mexican area should not be treated as within the customs territory of the United States because no collector had been appointed for the area. This ground was, however, rejected in Cross v. Harrison, 57 U.S. (16 How.) 164, 196-97 (1852). See De Lima v. Bidwell, 182 U.S. 1, 184-86 (1901). It should be noted, although subsequent opinions do not consider this distinction, that Rice and Fleming v. Page both represent situations in which actual hostilities were continuing and in which the occupier's control must therefore be accounted somewhat less secure than when actual hostilities have ceased. Subsequent cases involve situations in which actual hostilities had ceased. A possible exception is Straneri v. United States, 77 F. Supp. 240 (E.D. Pa. 1948) (no Tort Claims Act liability for tort in Belgium during World War II), see note 111 infra, but that case probably should not be considered as involving a hostile occupation.

[FN89]. De Lima v. Bidwell, 182 U.S. 1, 184, 194 (1901).

[FN90]. Dooley v. United States, 182 U.S. 222, 233 (1901).

290

[FN91]. De Lima v. Bidwell, 182 U.S. 1, 196 (1901).

[FN92]. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

[FN93]. 191 F.2d 604 (9th Cir. 1951), cert. denied, 342 U.S. 913 (1952).

[FN94]. 28 U.S.C. § 2680(k) (1952).

[FN95]. 36 STAT. 2306, T.S. No. 539. The United States, Japan, and Germany were all parties to this convention. 36 STAT. 2277.

[FN96]. The court did not indulge the usual presumption that the law of another jurisdiction is the same as that of the forum unless proved different. In fact, the basic Japanese tort law, which would govern Okinawa, is entirely Western in content. See Act of April 27, 1896, Law No. 89, CIVIL CODE OF JAPAN bk. III, c. V (U.S. Att'y Gen.'s ed. 1951). E.g., art. 709: "A person who violates intentionally or negligently the right of another is bound to make compensation for damage arising therefrom."

[FN97]. 7 SELECTED OPINIONS OF THE OFFICE OF MILITARY GOVERNMENT FOR GERMANY (U.S.)) 115 (1947); cf. Rheinstein, The Legal Status of Occupied Germany, 47 MICH. L. REV. 23, 27 (1948). But does it serve the purpose of article 43 to permit a waiver of its requirements, in view of the unequal bargaining power of the parties which will be typical?

[FN98]. 191 F.2d at 611. But if article 43 can be and is waived, cannot the general principle of international law be waived, and does it not stand to reason that it has been if there has been waiver of article 43?

[FN99]. 208 F.2d 291 (4th Cir. 1953), cert. denied, 347 U.S. 934 (1954). But cf. Dalehite v. United States, 346 U.S. 15 (1953).

[FN100]. Though it might also be argued that the Praylou result should obtain only in common-law jurisdictions.

[FN101]. See Seavey, "Liberal Construction" and the Tort Liability of the Federal Government, 67 HARV. L. REV. 994, 996-1001 (1954).

[FN102]. 28 U.S.C. § 1346(b) (1952).

291

[FN103]. 208 F.2d at 295.

[FN104]. Such a rule would serve the same function as the analogous English choice of law rule that the act complained of must be such that it would have been tortious had it been committed in the forum and must further be "not justifiable" where actually committed. Machado v. Fontes, [1897] 2 Q.B. 231. By requiring that the act must be tortious in the eyes of both jurisdictions, cf. Story v. Stratford Mill Bldg. Co., 30 Ont. L.R. 271, 18 D.L.R. 309 (App. Div. 1913), the suggested rule meets the criticism of the English rule that it allows recovery for an act giving rise to no rights in the injured party where it occurred. See GOODRICH, CONFLICT OF LAWS 262 (3d ed. 1949). Japanese conflicts law provides that the law of the place where the tort is committed controls, but that the obligation is valid only insofar as the act is unlawful under Japanese law, Law Concerning the Application of Laws in General, Act of June 21, 1898, Law No. 10, art. 11, printed in CIVIL CODE OF JAPAN (U.S. Att'y Gen.'s ed. 1951), so that reference to the whole law, including the conflicts law, of occupied Japanese areas would achieve the desired result.

[FN105]. 28 U.S.C. § 1346(b) (1952).

[FN106]. Quaere whether the applicable law in such a case would be that governing torts committed in the state where plaintiff resided or some "general common law." Japanese law does not support such a proposition, either as to choice of law, see note 104 supra, or renvoi, Law Concerning the Application of Laws in General, supra note 104, art. 29 (renvoi permitted in cases where "the law of the home country is to be followed," which apparently includes only those cases in which it is specifically provided that the law of "the home country" be applied, e.g., succession, in art. 25). However, does article 43 compel recognition of an occupied area's conflicts law? In any case, it would not appear to do so where a resident of the occupied area could not be involved.

[FN107]. 28 U.S.C. § 1402(b) (1952).


[FN109]. 114 U.S. 542 (1885).

[FN110]. The succeeding cases in this line also involve local parties, and cession and

292

annexation. Ortega v. Lara, 202 U.S. 339 (1906); Vilas v. Manila, 220 U.S. 345 (1911).

[FN111]. Brunell v. United States, 77 F. Supp. 68 (S.D.N.Y. 1948) (Saipan before trusteeship); Brewer v. United States, 79 F. Supp. 405 (S.D. Cal. 1948) (Okinawa). There is also strong dictum to this effect in Straneri v. United States, 77 F. Supp. 240, 241 (E.D. Pa. 1948), based on Fleming v. Page, supra p. 794, and De Lima v. Bidwell, supra pp. 794-95. The opinion suggests that although the executive has control of occupied areas, there is no congressional authority without an affirmative act of Congress to bring the area under United States sovereignty. After Vermilya-Brown, it seems clear either that such a sovereignty test does not apply to statutes referring to "possessions," or perhaps that extension of a statute to "possessions" constitutes an affirmative act of Congress as to all areas which meet, or may in the future meet, the criteria for "possessions." Spelar may, however, support a sovereignty test with respect to statutes using the word "foreign." This is not, however, too useful a test with respect to occupied territory, since Fleming v. Page made it clear that at least in some senses the occupier has sovereignty in hostilely occupied territory.

[FN112]. Brewer was decided on February 18, 1948, Brunell on April 9, 1948, and Vermilya-Brown on December 6, 1948.

[FN113]. 77 F. Supp. 68 (S.D.N.Y. 1948).


[FN115]. 79 F. Supp. 405 (S.D. Cal. 1948).

[FN116]. P. 784 supra.

[FN117]. The court also relied on a statement in Fleming v. Page, supra p. 794, that hostilely occupied territory is foreign.

[FN118]. 54 STAT. 1169 (1940), as amended, 8 U.S.C. § 1481(5) (1952).

[FN119]. Acheson v. Wohlmuth, 196 F.2d 866 (D.C. Cir.), cert. denied, 344 U.S. 833 (1952); Acheson v. Kuniyuki, 189 F.2d 741 (9th Cir.), rehearing denied, 190 F.2d 897 (1951), cert. denied, 342 U.S. 942 (1952). Accord, Uyeno v. Acheson, 96 F. Supp. 510 (W.D. Wash. 1951).

293

[FN120]. These decisions are collected in Fujiko Furusho v. Acheson, 94 F. Supp. 1021, 1022 n.1 (D. Hawaii 1951), motion to dismiss appeal denied, 212 F.2d 284 (9th Cir. 1954); see also Acheson v. Droesse, 197 F.2d 574 (D.C. Cir. 1952) (case moot; district court had ruled occupied Germany not foreign). Some of the district courts seemed to rely on the fact that the occupied area was not a "state," as well as that it was not "foreign."

[FN121]. Brehm v. Acheson, 90 F. Supp. 662 (S.D. Tex. 1950); In re Riedner, 94 F. Supp. 289 (E.D. Wis. 1950).

[FN122]. 30 U.S. (5 Pet.) 1 (1831).

[FN123]. U.S. Const. art. I, § 8, art. III, § 2; see also id. amend. XI.

[FN124]. 180 U.S. 109 (1901).

[FN125]. H.R.J. RES. 24, 30 STAT. 738 (1898).

[FN126]. Thus distinguishing the factual situation from that presented by the Straneri case, notes 88, 111 supra.

[FN127]. However, the intention to establish an independent government in a historical possession and relinquishment of some powers to a local government in preparation for independence do not impair pre-existing United States sovereignty in the area or render it foreign. Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937) (Philippine Islands).

[FN128]. P. 794 supra.

[FN129]. Treaty of Peace with Japan, Sept. 8, 1951, T.I.A.S. No. 2490.

[FN130]. 335 U.S. at 383.

[FN131]. Okinawa is still governed by a military government, the United States Civil Administration, Ryukyu Islands. This administration has established a local government over which it maintains veto powers. There has, however, been no decision that this local government is to ripen into an independent national state.

294

[FN132]. This is true since the language used in the Filardo case, supra pp. 783-84, indicates that "jurisdiction" is no broader than "possession" and may be narrower, see note 35 supra and pp. 809-10 infra, and since Spelar, supra p. 784, clearly makes "nonforeign" narrower than "possession."

[FN133]. Trusteeship Agreement for Former Japanese Mandated Islands, July 18, 1947, 61 STAT. 3301, T.I.A.S. No. 1665; H.R.J. RES. 233, 61 STAT. 397 (1947).

[FN134]. Exec. Order No. 10265, 16 FED. REG. 6419 (1951). In this respect the trust territory is treated like several of America's "historical possessions" in the Pacific. See, e.g., Exec. Order No. 10071, 14 FED. REG. 5533 (1949), as amended, Exec. Order No. 10137, 15 FED. REG. 4241 (1950) (Guam).

[FN135]. 335 U.S. at 383.

[FN136]. 28 U.S.C. § 1402(b) (1952).

[FN137]. Compare KELSEN, PRINCIPLES OF INTERNATIONAL LAW 167 (1952) ("The actually existing trust territories are under the territorial sovereignty of the states which, in the exercise of their right to dispose of these territories, placed them under trusteeship by agreements entered into with the United Nations, and have become administering authorities ...."), with Letter from Legal Adviser, Department of State, to the Attorney General, Dec. 16, 1947, quoted in Brunell v. United States, 77 F. Supp. 68, 70 (S.D.N.Y. 1948) (United States has acquired no sovereignty over trust territory by virtue of trust agreement).

[FN138]. U.N. CHARTER art. 83.

[FN139]. Id. art. 23, ¶ 1.

[FN140]. Id. art. 27, ¶ 3.

[FN141]. H.R. Rep. No. 889, 80th Cong., 1st Sess. 4 (1947).

[FN142]. U.N. CHARTER art. 76.

[FN143]. Although if the goal could be attained by eventual annexation of the trust

295

territory to Hawaii (assuming admission of Hawaii to the Union), rather than by making it independent, it might be possible to consider the American holding permanent.

[FN144]. See Vermilya-Brown Co. v. Connell, supra pp. 782-83.

[FN145]. Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). The case of a short-run hostile occupation, see p. 801 supra, should be distinguished from this situation.

[FN146]. 335 U.S. at 383.

[FN147]. 77 F. Supp. 68, 72 (S.D.N.Y. 1948).

[FN148]. Id. at 70.

[FN149]. 182 U.S. 222 (1901). See also De Lima v. Bidwell, 182 U.S. 1, 180 (1901).

[FN150]. 338 U.S. at 219. Spelar can be distinguished from the trust territory situation by the very limited purpose of the American use of the Newfoundland base, with the corresponding limit on its rights in the area. See note 8 supra. The discussion of the preratification status of Puerto Rico in the Insular Cases, supra pp. 794-95, is distinguishable because questions with regard to the trust territories involve a situation in which Congress has already acted to establish American control over the area.

[FN151]. E.g., Uyeno v. Acheson, 96 F. Supp. 510, 515-16 (W.D. Wash. 1951); cf. Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932). As early as Fleming v. Page the Supreme Court had to back away from the strict sovereignty test it had enunciated in United States v. Rice for dealing with problems concerning occupied territories. See p. 794 supra.


[FN153]. See note 35 supra and pp. 808-10 infra.

[FN154]. See pp. 802-03 supra.

296

[FN155]. Agreement with Great Britain Respecting Leased Bases, March 27, 1941, 55 STAT. 1560, E.A.S. No. 235.

[FN156]. General Treaty of Friendship and Cooperation with Panama, March 2, 1936, 53 STAT. 1807, T.S. No. 945.

[FN157]. Letter from Secretary of the Army to Attorney General, Dec. 11, 1948, quoted in Memorandum for the United States in Support of Petition for Rehearing, pp. 11, 14-16, Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948).

[FN158]. E.g., Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty art. IX, § 4, T.I.A.S. No. 2846 (1953).

[FN159]. See Foster v. Nielson, 27 U.S. (2 Pet.) 253, 314-15 (1829).

[FN160]. United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), aff'd on other grounds, 23 U.S.L. WEEK 4085 (U.S. Feb. 7, 1955); see Sutherland, The Bricker Amendment, Executive Agreements, and Imported Potatoes, 67 HARV. L. REV. 281 (1953).

[FN161]. 335 U.S. at 389.

[FN162]. E.g., a Belgian on a base in France. The problem is even more acute as to Americans working at such a leased base, in view of the language in Vermilya-Brown that since "citizens of [the United States] ... would be numerous among employees on the bases, the natural legislative impulse would be to give these employees the same protection that was given those similarly employed on the [American] islands of the Pacific." 335 U.S. at 389.

[FN163]. Compare the criticism in De Lima v. Bidwell, 182 U.S. 1, 198 (1901), of the view "that a country may be domestic for one purpose and foreign for another."

[FN164]. For example, the Bermuda lease particularly reserves British rights in maritime matters. Agreement with Great Britain Respecting Leased Bases, March 27, 1941, art. XI, 55 STAT. 1564, E.A.S. No. 235.

[FN165]. The inference is all the more striking in that it was made over the opposition

297

of that member of the Court who had the best opportunity to know the intent of the lease agreement, Justice Jackson, who was Attorney General at the time of the lease and was active in arranging the transaction. See 39 OPS. ATT'Y GEN. 484, 485 (1940) ("Our government assumes no responsibility for civil administration of any territory"); Jackson, J., dissenting in Vermilya- Brown, 355 U.S. at 392-96.

[FN166]. P. 784 supra.

[FN167]. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949).

[FN168]. See ASPR 12-302, 32 C.F.R. § 411.302 (Supp. 1954).

[FN169]. 47 STAT. 1520 (1933), as amended, 41 U.S.C. §§ 10a-d (1952).

[FN170]. § 2, 47 STAT. 1520 (1933), 41 U.S.C. § 10a (1952).

[FN171]. § 1, 47 STAT. 1520 (1933), 41 U.S.C. § 10c (1952).


[FN173]. 37 STAT. 137 (1912), 40 U.S.C.A. § 324 (1952). See note 20 supra.

[FN174]. 338 U.S. at 222 n.12.

[FN175]. 336 U.S. at 289. See note 76 supra.

[FN176]. Finnan v. Elmhurst Contracting Co., 199 Misc. 1016, 107 N.Y.S.2d 497 (Sup. Ct. 1950) (British Guiana). Cf. Exec. Order No. 8623, 6 FED. REG. 13 (1940), suspending the Eight-Hour Law's application to bases leased from Britain, and thus indicating an executive belief that the act applied to leased bases.

[FN177]. Remarks of Senator King, 76 CONG. REC. 3171 (1933).

[FN178]. 47 STAT. 62 (1932).

[FN179]. 76 CONG. REC. 3173 (1933). Note that this would be changed by a proposed new treaty. See note 59 supra.

298

[FN180]. Areas which the United States has an option to occupy indefinitely are a closer question. See note 76 supra on the applicability of the Eight-Hour Law to the Canal Zone. For an older view on the question of whether nonpermanent leases give jurisdiction, see Memorandum for Office of the Solicitor, Department of State, Jan. 27, 1900, quoted in NAVAL WAR COLLEGE, 1907 INTERNATIONAL LAW SITUATIONS 14. See notes 76, 83 supra.

[FN181]. Although the Supreme Court has noted a distinction between leased and nonleased areas, see p. 809 and note 174 supra, there is no clear line between them. The difference may depend on the formality of the arrangement (a treaty as compared with an agreement by the local army commander) or the permanence of the anticipated presence in the area (troops in transit as compared with a base).

[FN182]. This would appear to be the true holding of Straneri v. United States, 77 F. Supp. 240 (E.D. Pa. 1948). See note 88 supra.


[FN184]. The status of American troops in Korea is worthy of special attention. Does their status as agents of the United Nations, see Military Armistice in Korea, July 27, 1953, art. I, § 10, T.I.A.S. No. 2782, deprive the United States of any interest in the areas they occupy? It would at least seem to support the view that such areas should not be considered as appertaining in any sense to the United States. Cf. Hirota v. MacArthur, 338 U.S. 197 (1948) (war crimes tribunal an agent of allied powers, not a tribunal of the United States).


[FN186]. The Secretary of Labor has admitted that even on Guam, which is clearly covered by the Fair Labor Standards Act, the act has not been enforced. Remarks of Secretary of Labor Mitchell, National Press Club, Sept. 14, 1954, as reported at [1954] Daily Labor Report No. 178, pp. A-2, A-3.


[FN188]. 55 STAT. 622 (1941), as amended, 42 U.S.C. § 1651 (1952). The act covers "any military, air, or naval base acquired after January 1, 1940, by the United States from any foreign government" (quaere whether this section alone would include

299

hostilely occupied areas, bases retained under a peace treaty, or bases in trust territories) and contracts "entered into with the United States ... where such contract is to be performed outside the continental United States and at places not within the areas" described by previous sections relating to geographical coverage. See also Act of March 27, 1942, c. 198, § 5(g), 56 STAT. 174.

[FN189]. The original vote was five to four. For affirmance: Reed, Black, Douglas, Murphy, and Rutledge; for reversal: Jackson, Vinson, Frankfurter, and Burton.

[FN190]. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 291 (1949) (Frankfurter, J., concurring); United States v. Spelar, 338 U.S. 217, 223 (1949) (Frankfurter, J., concurring); id. at 224 (Jackson, J., concurring).

[FN191]. S. 3831, 83d Cong., 2d Sess. (1954), reintroduced as H.R. 209, 84th Cong., 1st Sess. (1955).

[FN192]. A rather roundabout method of spelling out coverage was used to preserve current Department of Labor administrative rulings regarding workers on, under, or over the high seas.

[FN193]. 28 U.S.C. §§ 2671-80 (1952).


[FN195]. 47 STAT. 1520 (1933), as amended, 41 U.S.C. §§ 10a-d (1952).END OF DOCUMENT

Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works 9 How. 602, 13 L.Ed. 276

APPLICATION OF THE US CONSTITUTION IN INSULAR AREAShttp://www.gao.gov/archive/1998/og98005.pdf

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-- MISCELLANEOUS --

Supreme Court of the United StatesSMITH HOGAN, ARTHUR S. HOGAN, AND RICHARD Y. REYNOLDS, PLAINTIFFS IN ERROR,v.AARON ROSS, WHO SUES FOR THE USE OF ROBERT PATTERSON.January Term, 1850

THIS case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.*603 The order of the court explains the ground of its dismissal, upon the motion of Mr. Coxe.Where no citation had been issued or served upon the defendant in error, the cause must be dismissed on motion.

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170B Federal Courts 170BVII Supreme Court 170BVII(C) Review of Decisions of District Courts 170Bk471 k. Decisions Directly Appealable in General. Most Cited Cases (Formerly 30k396)

Except in cases of appeals allowed in open court during the term at which the decree appealed from was rendered, a citation returnable at the same term with the appeal or writ of error is necessary to perfect jurisdiction of the appeal or the writ, unless it has been waived.

Order.This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Mississippi, and on the motion of Richard S. Coxe, Esquire, of counsel for the defendant in error, stating that no citation had been issued or served upon the defendant in error, was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this

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cause be, and the same is hereby, dismissed, with costs.U.S.,1850Hogan et al. v. Ross50 U.S. 602 (Mem), 9 How. 602, 13 L.Ed. 276END OF DOCUMENT


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Result- 76 Documents Result Options

1. U.S. v. Tiede,86 F.R.D. 227, U.S.Ct.Berlin, Mar 14, 1979 ...S.Ct. 2, 87 L.Ed. 3 (1942). FN71. Madsen v. Kinsella, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988 (1952); Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L.Ed. 889 (1853); Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891 (1857). FN72. See Allied...

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2. U.S. v. Brown,384 F.Supp. 1151, E.D.Mich., Nov 05, 1974 ...Clause is equivalent to word 'land'; Congress has same power over territories as any other property belonging to United States); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 14 L.Ed.2d 889 (1853) (Congress has power to govern acquisition of Mexico). ...

302

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3. Rose v. McNamara,375 F.2d 924, 126 U.S.App.D.C. 179, D.C.Cir., Mar 23, 1967 ... L.Ed. 448; Burke v. Miltenberger, 19 Wall. 519, 22 L.Ed. 158; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L.Ed. 889.' Madsen v. Kinsella, 343 U.S. at 360, 72 S.Ct. at 710. ...

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4. Rose v. McNamara,252 F.Supp. 111, D.D.C, Mar 21, 1966 ...& Traders Bank v. Union Bank, 22 Wall. 276, 22 L.Ed. 871; The Grapeshot, 9 Wall. 129, 19 L.Ed. 651; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L.Ed. 889. Plaintiff's counsel relies upon Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1...

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5. U.S. v. Vierra,1963 WL 4848, 33 C.M.R. 260, 14 USCMA 48, CMA, May 24, 1963 ... Dooley v United States, 182 US 222, 234, 45 L ed 1074, 1082, 21 S Ct 762 (1901); see also Search Term Begin Cross v Harrison Search Term End , 16 Howard 164 (U.

303

S. 1853); Santiago v Nogueras, 214 US 260, 265, 53 L ed 989, 29 S Ct...

...for the establishment of a legislative body, with authority to promulgate laws for the government of the local community. Search Term Begin Cross v Harrison Search Term End , supra; Leitensdorfer v Webb, 20 Howard 176 (U.S. 1858). Assuming, without deciding, that a legislative body of this kind is,...

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6. People v. Sidener,58 Cal.2d 645, 375 P.2d 641, 25 Cal.Rptr. 697, Cal., Oct 25, 1962 ...newly created power of the state.' (American Insurance Co. v. Canter (1828) 26 U.S. (1 Pet.) 511, 542 (Louisiana); accord, Search Term Begin Cross v. Harrison Search Term End (1853) 57 U.S. (16 How.) 164, 198 (California).) The fact that existing Mexican municipal law remained in force in California...

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7. U.S. v. Biagini,1953 WL 1926, 10 C.M.R. 682, AFBR, May 18, 1953 ...it is apparent that the accused was subject to trial by court-martial. (Citing Madsen v. Kinsella, 188 F2d 272; Search Term Begin Cross v. Harrison Search Term End , 16 How 164, 192, 14 L ed 889; Neely v. Hankel, 180 US 109, 45 L ed 448, 21 S...

...with Mexico, but prior to legislation by Congress establishing a civil government in the area, the Supreme Court, in Search Term Begin Cross v. Harrison Search Term End , 16 How 164, stated at page 192: "The territory had been ceded as a conquest and was to be preserved...

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8. Madsen v. Kinsella,343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988, U.S.W.Va., Apr 28, 1952 ...v. Union Bank, 22 Wall. 276, 279 note, 22 L.Ed. 871; The Grapeshot, 9 Wall. 129, 132, 19 L.Ed. 651; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 190, 14 L.Ed. 889; II Halleck, International Law (3d ed. 1893), 444--445. For an example of the ...

...448; Burke v. Miltenberger, 19 Wall. 519, 22 L.Ed. 158; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L.Ed. 889. FN13. See Article 43 of The Hague Regulations respecting the laws and customs of...

...448; Burke v. Miltenberger, 19 Wall. 519, 22 L.Ed. 158; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L.Ed. 889. [FN27] FN27. '* * * The status of military government continues from the inception...

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9. Aboitiz & Co v. Price,99 F.Supp. 602, D.Utah, Jun 16, 1951 ...for the support of the government, and of the army which had the conquest in possession. The court held in Search Term Begin Cross v. Harrison Search Term End , [FN61] that the government of California set up by right of belligerent occupation continued until Congress otherwise terminated it, and...

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10. Cobb v. U.S.,191 F.2d 604, 9th Cir.(Cal.), Jun 11, 1951 ...317, 57 S.Ct. 216, 81 L.Ed. 255. FN15. Cf. Thorington v. Smith, 1868, 8 Wall. 1, 19 L.Ed. 361; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 189, 14 L.Ed. 889; Fleming v. Page, 1850, 9 How. 603, 614, 13 L.Ed. 276; United States...

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11. Madsen v. Kinsella,188 F.2d 272, 4th Cir.(W.Va.), Apr 02, 1951 ...53 L.Ed. 989; The Grapeshot, 9 Wall. 129, 19 L.Ed. 651; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 189, 14 L.Ed. 889. [3] We think it entirely immaterial that the President at the time of...

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12. Duncan v. Kahanamoku,327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688, U.S.Hawai'i, Feb 25, 1946 ...10 U.S.C.A. ss 1553, 1554. See also cases and statutes collected and discussed in Underhill, supra, 12 Cal.L.Rev. 81--98. FN9 Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L.Ed. 889; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; The Prize Cases, The Amy...

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13. 25 C.J.S. Customs Duties § 77 Corpus Juris Secundum Database updated June 2003 Customs Duties By Stephen Lease, J.D. VI. Arrival, Manifest, Entry, Appraisement, Ascertainment of Duty, Liquidation, Bonds, and Warehouses B. Entry 1. In General § 77. TIME OF MAKING ENTRY ...in the United States. U.S.--De Lima v. Bidwell, 182 U.S. 1, 21 S. Ct. 743, 45 L. Ed. 1041 (1901); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. 164, 16 How. 164, 14 L. Ed. 889 (1853). [FN5]. U.S.--U.S. v. Edwin S. Hartwell Lumber Co., 142...

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14. 78 Am. Jur. 2d War § 124 American Jurisprudence, Second Edition Database updated May 2003 War VI. Conquest and Occupation of Enemy Territory A. In General § 124. GOVERNMENT OF OCCUPIED TERRITORY ...129, 19 L. Ed. 651 (1869); Leitensdorfer v. Webb, 61 U.S. 176, 20 How. 176, 15 L. Ed. 891 (1857); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. 164, 16 How. 164, 14 L. Ed. 889 (1853); U.S. v. Rice, 17 U.S. 246, 4 L. Ed....

...354 (1874). [FN12]. Dooley v. U.S., 182 U.S. 222, 21 S. Ct. 762, 45 L. Ed. 1074 (1901). [FN13]. Search Term Begin Cross v. Harrison Search Term End , 57 U.S. 164, 16 How. 164, 14 L. Ed. 889 (1853). [FN14]. Dooley v. U.S., 182 U.S. 222, 21 S....

...Ed. 889 (1853). [FN14]. Dooley v. U.S., 182 U.S. 222, 21 S. Ct. 762, 45 L. Ed. 1074 (1901); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. 164, 16 How. 164, 14 L. Ed. 889 (1853). [FN15]. Santiago v. Nogueras, 214 U.S. 260, 29 S....

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15. 78 Am. Jur. 2d War § 126 American Jurisprudence, Second Edition Database updated May 2003 War VI. Conquest and Occupation of Enemy Territory A. In General § 126. IMPOSITION AND COLLECTION OF TAXES AND DUTIES ...L. Ed. 349 (1907). [FN4]. Dooley v. U.S., 182 U.S. 222, 21 S. Ct. 762, 45 L. Ed. 1074 (1901); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. 164, 16 How. 164, 14 L. Ed. 889 (1853). [FN5]. Dooley v. U.S., 182 U.S. 222, 21 S....

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16. 2 Sutherland Statutory Construction § 33:6 (6th ed.) Sutherland Statutes and Statutory Construction Norman J. Singer Database updated February 2004 Part IV. Legislative Applicability Chapter 33. Time of Taking Effect § 33:6. TIME OF TAKING EFFECT NOT PROVIDED--DATE OF PASSAGE ...not judicially reviewable, but courts enforce the mandatory constitutional requirements by which legislatures must declare an emergency). [FN14]. United States. Search Term Begin Cross v. Harrison Search Term End , 57 U.S. 164, 16 How. 164, 196, 14 L. Ed. 889 (1853). Pennsylvania. Price v. Watkins, 1 U.S. 8, 1...

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17. 8 Tex. Rev. L. & Pol. 79 Texas Review of Law and Politics Fall 2003 Articles INTERNATIONAL LAW AND THE LIBERATION OF IRAQ James C. Ho [FNa1]

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...the President's domestic constitutional authority as Commander in Chief. See, e.g., Fleming v. Page, 50 U.S. (9 How.) 603 (1850); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164 (1853); New Orleans v. The Steamship Co., 87 U.S. (20 Wall.) 387 (1874); Dooley v....

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18. 88 Iowa L. Rev. 343 Iowa Law Review January, 2003 Articles THE BALANCE OF FORCES AND THE EMPIRE OF LIBERTY: STATES' RIGHTS AND THE LOUISIANA PURCHASE Robert Knowles [FNa1] ...& Guy Seidman, Our Hobbesian Constitution: Governing Without Authority, 95 Nw. U. L. Rev. 581 (2001) (discussing the case of Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164 (1854), which involved the legality of the American military government in California between May 30,...

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19. 35 N.Y.U. J. Int'l L. & Pol. 363 New York University Journal of International Law and Politics Winter 2003 Conference: International Law And Justice In The Twenty-First Century: The Enduring Contributions Of Thomas M. Franck MILITARY TRIBUNALS, INTERNATIONAL LAW, AND THE CONSTITUTION: A FRANCKIAN-MADISONIAN APPROACH David Golove [FNa1] ...President's duty to comply with the laws of war was reflected, among other things, in several Supreme Court decisions. In Search Term Begin Cross v. Harrison Search Term End , [FN67] for example, at issue was the collection of tariffs on goods imported into California during the period that began...

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20. 78 Notre Dame L. Rev. 35 Notre Dame Law Review December, 2002 Essay WHEN DID THE ARTICLES OF CONFEDERATION CEASE TO BE LAW? Vasan Kesavan [FNa1] ... obscure case with fascinating implications for constitutional law, see Lawson & Seidman, The Hobbesian Constitution, supra note 1 (discussing Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164 (1854)). [FN14]. In this regard, Professor Ackerman also deserves a lot of credit for asking...

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21. 81 Tex. L. Rev. 1 Texas Law Review November, 2002 Article POWERS INHERENT IN SOVEREIGNTY: INDIANS, ALIENS, TERRITORIES, AND THE NINETEENTH CENTURY ORIGINS OF PLENARY POWER OVER FOREIGN AFFAIRS Sarah H.

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Cleveland [FNa1] ... 1. American Insurance Co. v. Canter............................. 183 2. Fleming v. Page.............................................. 187 D. Slavery and the Territories ................................... 189 1. Search Term Begin Cross v. Harrison Search Term End ............................................ 191 2. Scott v. Sandford............................................ 193 E. Post-Civil War Consensus ...................................... 197 F. The Early Inherent Powers Era200 ...

...Oregon settlement, and the 1848 Treaty of Guadalupe Hidalgo with Mexico. Two Supreme Court decisions handed down in the 1850s-- Search Term Begin Cross v. Harrison Search Term End and Scott v. Sandford--supported the proposition that the Constitution applied, fully and immediately, to the later acquired territories. ...

... 1. Search Term Begin Cross v. Harrison Search Term End .--The cession of California to the United States following the treaty of peace with Mexico provoked a bitter dispute in...

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22. 63 U. Pitt. L. Rev. 487 University of Pittsburgh Law Review Spring, 2002 Articles PREEMPTIVE OPINIONS: THE SECRET HISTORY OF WORCESTER V. GEORGIA AND DRED SCOTT Gerard N. Magliocca [FNa1] ... [FN475]. Dred Scott, 60 U.S. (19 How.) at 444. [FN476]. Id. [FN477]. Id. [FN478]. Id. [FN479]. See, e.g., Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 194 (1853); 356 Bales of Cotton, 26 U.S. (1 Pet.) at 541; Sere v. Pitot,...

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23. 2002-MAR Army Law. 19 Army Lawyer March, 2002 Article MILITARY COMMISSIONS AND COURTS-MARTIAL: A BRIEF DISCUSSION OF THE CONSTITUTIONAL AND JURISDICTIONAL DISTINCTIONS BETWEEN THE TWO COURTS Major Timothy C. MacDonnell ...U.S. civilians or others are subjected to these same courts outside of the United States. As early as 1853, in Search Term Begin Cross v. Harrison Search Term End , [FN213] the Supreme Court announced its acceptance of the principle that military governments in occupied territories had the right to...

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24. 86 Minn. L. Rev. 1 Minnesota Law Review November, 2001 Article THE POWER OF CONGRESS "WITHOUT LIMITATION": THE PROPERTY CLAUSE AND FEDERAL REGULATION OF PRIVATE PROPERTY Peter A. Appel [FNd1] ...Purchase (where Scott's owner had taken him), or Florida (where American Insurance Co. v. Canter [FN185] arose), or California (where Search Term Begin Cross v. Harrison Search Term End [FN186] arose). Taney reached this conclusion based on his reading of the plain language of the Clause. The Clause "does...

...of the right to acquire territory"). [FN132]. Id. at 546. [FN133]. Id. [FN134]. See id. at 542-43. [FN135]. See Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 193 (1853). This case involved the establishment of a temporary customs collection system for California...

...as United States v. Gratiot, and the broad language in such decisions as American Insurance Co. v. Canter and Search Term Begin Cross v. Harrison Search Term End in which the Court ratified broad power of Congress over federal property and the territories. Whether Graber is correct that,...

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25. 23 Mich. J. Int'l L. 1 Michigan Journal of International Law Fall 2001 Articles ANTITERRORISM MILITARY COMMISSIONS: COURTING ILLEGALITY Jordan J. Paust [FNa1] ...recognized by treaty or proclamation of the political branch of the Government."); Ex parte Quirin, 317 U.S. 1, 28 (1942); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 190 (1853); 24 Op. Att'y Gen. 570, 571 (1903); Int'l Criminal Law, supra note 12,...

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26. 6-SPG NEXUS: J. Opinion 3 NEXUS: A Journal of Opinion Spring, 2001 POPULAR SOVEREIGNTY, THE RIGHT OF REVOLUTION, AND CALIFORNIA STATEHOOD Herman Belz [FNa1] ...See GRIVAS, supra note 18, at 205. [FN27]. Letter from James Buchanan to W.B. Voorhees, Oct. 7, 1848, quoted in Search Term Begin Cross v. Harrison Search Term End , 16 How. (57 U.S.) 164, 184-185 (1850). [FN28]. ROYCE, supra note 12, at 201. [FN29]. See George M. Dennison, Martial...

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27. 95 Nw. U. L. Rev. 581 Northwestern University Law Review Winter 2001 Article THE HOBBESIAN CONSTITUTION: GOVERNING WITHOUT AUTHORITY Gary Lawson [FNa1]; & Guy Seidman [FNaa1]

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...consequences, it is one of the most important cases ever decided by the United States Supreme Court. The case is Search Term Begin Cross v. Harrison Search Term End . [FN1] If you have never heard of Search Term Begin Cross v. Harrison Search Term End , you are in good company. The case is not even...

...often as part of a string-citation, for very general propositions of law. [FN4] Indeed, it is fair to describe Search Term Begin Cross v. Harrison Search Term End as "obscure." Nonetheless, our description of its theoretical significance is not hyperbole. Cross involved the legality of the American government...

...and troubling. Few cases tell us as much about the true meaning of the American constitutional order. I. Introduction Search Term Begin Cross v. Harrison Search Term End was a suit brought by Cross, Hobson & Co., a trading firm, against Edward H. Harrison, a federal customs collector...

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28. 73 N.Y.U. L. Rev. 1791 New York University Law Review December, 1998 Articles AGAINST FREE-FORM FORMALISM David M. Golove [FNa1] ...v. Kinsella, 343 U.S. 341, 348 (1952) (acknowledging President's power to establish and regulate tribunals in territory under military occupation); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 189-90 (1853) (affirming President's authority to form civil government, establish port regulations, and impose duties...

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29. 31 Loy. L.A. L. Rev. 1165 Loyola of Los Angeles Law Review June, 1998 Symposium on the California Initiative Process A STRUCTURAL THEORY OF THE INITIATIVE POWER IN

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CALIFORNIA Karl Manheim [FNa1] Edward P. Howard [FNaa1] ...whom were Anglos, began looking to the common law for substance. See Saunders, supra note 53, at 494. [FN91]. See Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 193 (1853) (validating de facto rule by existing military governor because of inaction by President...

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30. 1997-DEC Army Law. 4 Army Lawyer December, 1997 Department of the Army Pamphlet 27-50-301 THE LAWS OF WAR: RULES BY WARRIORS FOR WARRIORS Major Scott R. Morris ...approved by the U.S. Supreme Court in Leitensdorfer v. Webb, 20 How. 176, 15 L. Ed. 891 (1858). See also Search Term Begin Cross v. Harrison Search Term End , 16 How. 164, 14 L. Ed. 889 (1853). After placing California in firm U.S. control, General Kearny returned and became...

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31. 13 Am. U. Int'l L. Rev. 263 American University International Law Review 1997 PROPERTY AS A NATURAL INSTITUTION: THE SEPARATION OF PROPERTY FROM SOVEREIGNTY IN INTERNATIONAL LAW L. Benjamin Ederington [FNa1] ...v. United States, 182 U.S. 222 (1901); City of New Orleans v. Steamship Co., 87 U.S. (20 Wall.) 387 (1874); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164 (1853); Fleming v. Page, 50 U.S. (9 How.) 603 (1850)) (emphasis added). [FN217]. See Sayre,...

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...arts. 49, 52; see also 7 Moore, supra note 98, at 280-87; 1 Moore, supra note 98, at 47 (citing Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 190 (1853); Dooley v. United States, 182 U.S. 222, 230 (1901). [FN219]. See Hague Convention,...

...Fiore, Nouveau Droit International Public 302-04 (1869)). [FN227]. Leitensdorfer v. Houghton, 61 U.S. (20 How.) 176, 177-78; see also Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 190 (1853). In Ochoa v. Hernandez y Morales, 230 U.S. 139 (1913), a case arising...

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32. 88 Law Libr. J. 488 Law Library Journal Fall, 1996 CALIFORNIA LEGAL HISTORY: THE LEGAL SYSTEM UNDER THE UNITED STATES MILITARY GOVERNMENT, 1846-1849 [FNa1] Myra K. Saunders [FNaa1] ...inference from the inaction of both is that it was meant to be continued until it had been legislatively changed." Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 193 (1853). [FN89]. Letter from H.W. Halleck to the Reverened F. Jose Maria de Jesus ...

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33. 153 Mil. L. Rev. 1 Military Law Reivew Summer, 1996 CONTINUUM CRIMES: MILITARY JURISDICTION OVER FOREIGN NATIONALS WHO COMMIT INTERNATIONAL CRIMES Major Michael A. Newton [FNa1] ...Bank v. Union Bank, 89 U.S. (22 Wall.) 276, 295-97 (1874); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 189-90. [FN64]. See WINTHROP, supra note 47, at

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833-34. Congress provided that murder, manslaughter, robbery,...

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34. 65 Rev. Jur. U.P.R. 225 Revista Juridica Universidad de Puerto Rico 1996 THE LEGAL CONSTRUCTION OF AMERICAN COLONIALISM: THE INSULAR CASES (1901-1922) [FNa] Efrén Rivera Ramos [FNaa] ... [FN65]. Goetze, 182 U.S. at 221-22. [FN66]. Dooley I, 182 U.S. at 230-31, quoting Justice Wayne in Search Term Begin Cross v. Harrison Search Term End 16 How. 164. [FN67]. Id. at 236. [FN68]. Downes, 182 U.S. 244. [FN69]. Id. at 376. ...

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35. 9 Geo. Immigr. L.J. 667 Georgetown Immigration Law Journal Fall, 1995 THE NEPHEWS OF UNCLE SAM: THE HISTORY, EVOLUTION, AND APPLICATION OF BIRTHRIGHT CITIZENSHIP IN THE UNITED STATES Jonathan C. Drimmer [FNa1] ...(1812). [FN121]. Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820); see also Dred Scott, 60 U.S. at 449; Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 191 (1853) ("after the ratification of the treaty [of Guadalupe-Hidalgo], California became a part of...

...discipline their troops). The occupying government can legislate for the seized territory until a peace treaty is signed. See Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 190 (1853). If the occupying nation relinquishes control of the occupied territory, allegiance reverts to...

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36. 11 Ariz. J. Int'l & Comp. L. 215 Arizona Journal of International and Comparative Law 1994 DEFENDING AMERICA'S CAMBODIAN INCURSION Captain Timothy Guiden [FNa] ...added). See also II Watson, supra note 232, at 915-16, citing Fleming v. Page, 50 U.S. (9 How.) 603-15 (1850); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 190 (1853); Leitensdorfer v. Webb, 61 U.S. (20 How.) 176 (1857); and The Grapeshot, 76...

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37. 2 Seton Hall Const. L.J. 593 Seton Hall Constitutional Law Journal Spring, 1992 UNINCORPORATED AND EXPLOITED: DIFFERENTIAL TREATMENT FOR TRUST TERRITORY CLAIMANTS -- WHY DOESN'T THE CONSTITUTION FOLLOW THE FLAG? Deborah D. Herrera [FNa1] ...also New Orleans v. Steamship Co., 87 U.S. (20 Wall.) 387 (1874) (military government over New Orleans after its conquest); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164 (1853) (validity of duties exacted by military commander of California upon imports from foreign countries). ...

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38. 100 Yale L.J. 909 Yale Law Journal January, 1991 WHOSE CONSTITUTION? Gerald L Neuman [FNd] ...note 193. [FN254]. See Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (denying congressional power over slavery in territories); Search Term Begin Cross v. Harrison

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Search Term End , 57 U.S. (16 How.) 164 (1854) (sorting out customs consequences of acquisition of California); United States v. Dawson, 56 U.S....

-------------------------------------------------------------------------------- 39. 43 Stan. L. Rev. 13 Stanford Law Review November, 1990 THE UNITED STATES-DAKOTA WAR TRIALS: A STUDY IN MILITARY INJUSTICE Carol Chomsky [FNa1] ...Bank v. Union Bank, 89 U.S. (22 Wall.) 276, 295-97 (1874); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869); Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 How.) 164, 189-90 (1853). But see Jecker v. Montgomery, 54 U.S. (13 How.) 498, 515 (1851) ("neither...

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40. 78 Cal. L. Rev. 853 California Law Review July, 1990 TERRITORIAL GOVERNMENTS AND THE LIMITS OF FORMALISM Gary Lawson [FNa] ...territory) of anarchy? This precise question actually arose and was litigated to a final judgment in connection with California, in Search Term Begin Cross v. Harrison Search Term End , 57 U.S. (16 HOW.) 164 (1854) (civil government established by President continued to function until Congress legislated otherwise). See also...

...v. Nogueras, 214 U.S. 260, 265-66 (1909) (same). I plan to explore the legal and political issues raised by Search Term Begin Cross v. Harrison Search Term End in a subsequent article. [FN323]. 10 U.S. (6 Cranch) 332 (1810). [FN324]. See id. at 337 ("[W]e find congress possessing...

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