Our Government of Newly Acquired Territory

THE acquisition of Porto Rico and the probable acquisition of the Philippine Islands, or of part of them, have called attention to our machinery for governing territories outside the Union. The United States has already had considerable experience in the government of territories acquired from foreign powers. Eight times, by purchase, by conquest, or by voluntary cession, it has enlarged its boundaries. In 1803 Louisiana was purchased from France. In 1819 Florida was obtained from Spain, and in 1845 Texas was annexed. In 1848 the conquest of Mexico resulted in the cession of provinces richer than any that she retained, and in 1853 another tract of land was purchased from her. In 1867 Russia sold us Alaska, and in 1898 Hawaii has been received after the manner of Texas, while territories the extent of which is not at this time determined are exacted of Spain.

Of these additions to our territory, Texas and Hawaii had been recognized as independent states, both by the United States and by other governments. Texas became at once a member of the Union. For other annexed territory. Congress thought it necessary to provide a form of government not based upon the principle of local autonomy, and in which the ultimate control rested in the hands of the authorities at Washington. Local circumstances, such as sparsity of population or the presence of a preponderant foreign element, were the reasons for keeping these territories in tutelage.

In making provision for our first accession of foreign territory, Congress was guided by the “Ordinance for the government of the territory of the United States northwest of the river Ohio,” — a measure more popularly known as the Ordinance of 1787. When the government under the Constitution came into existence, it found the Union in possession of a vast tract of country which was not organized into states, but which was held and administered as the common property of all the members of the Union. As the life of the old Continental Congress slowly drew to a close, it brought to an end its deliberations upon the disposition of the Northwest, and enacted the great Ordinance which has had a profound influence in many directions. It is usually recalled as the measure that kept slavery out of the Northwest; but it has been no less important in its influence upon our institutional history, for it was this Ordinance which served for many years as the model for the organization of government in the territories. The Congress which was first called upon to deal with the government of foreign acquisitions naturally turned to it as a guide. Indeed, it was used as a guide even before any annexations were made. In 1790, when Congress organized into a territory the area now included in the states of Kentucky and Tennessee, it provided that “the government of the said territory south of the Ohio shall be similar to that which is now exercised in the territory northwest of the Ohio.” Later, in 1798. the same provision was made for the government of Mississippi Territory. And the governments established in the territories of Indiana, Michigan, and Illinois, formed by the division of the old Northwest Territory, were all copies of the government formulated in the Ordinance of 1787.

The government of the Northwest Territory was as undemocratic as can well be imagined. It was divided into two grades ; the first grade to cease when the territory should contain five thousand free male inhabitants of full age. While the territory remained under the first grade of government, the inhabitants had absolutely no voice in their political affairs. The executive power was vested in a governor, who was appointed hy the President for a term of three years, and who was assisted by a secretary, similarly appointed for a term of four years. The judicial power was vested in three judges appointed by the President to hold office during good behavior. Besides their judicial functions, the three judges, with the governor, constituted the territorial legislature. But here their power was subject to severe limitations. Far from possessing a free hand in legislation subject to the supervision of Congress, they were merely empowered to adopt such statutes of the original states as they deemed applicable to the local needs of the territory. As the situation in the territory was radically different from that which led to legislation in the states, it is easy to see that suitable statutes were hard to find. To obviate this difficulty, the judges resorted to the expedient of adopting parts of statutes from several states, and combining them into a new statute. The governor of the Northwest, St. Clair, protested against this practice as being beyond their competence ; but, since the territory would have been without laws had not this method been adopted, he finally yielded to the necessities of the situation.

This state of affairs was relieved somewhat when the territory attained a population of five thousand free male inhabitants of full age, for then a legislature came into existence, one house of which was elected by the people. At the first meeting of the elective house it chose ten persons, whose names were sent to the President, and from these ten the President appointed five, who constituted the legislative council, or upper house of the legislature. The election of the lower house was the full extent of the people’s participation in the territorial government under the Ordinance of 1787.

The dread of a strong executive which had been manifested in the colonies so many times seems not to have prevailed when the Ordinance of 1787 was adopted, for the executive office then created was almost autocratic in its power. The governor was made commander-in-chief of the militia, all the officers of which below the grade of general officer were appointed by him. He also appointed all the other territorial officers except the secretary and the judges. He was to establish such magistracies and other civil offices as he thought necessary for the preservation of order, and he was empowered to lay out counties and townships in those parts of the country in which the Indian title had been extinguished, and to organize local government therein according to his discretion. He could summon, prorogue, and dissolve the legislature, and he had an absolute veto upon its proceedings. When we add that the incumbent in the office of governor, General Arthur St. Clair, was inclined to push his power to the utmost, it is easy to see why the state of Ohio, in its first constitution, and in the later constitution of 1851, which is still in force, deprived the chief executive of almost all the usual functions of his office.

In the formation of this territorial government, many of the cardinal political principles in support of which the colonies had gone to war with Great Britain were entirely disregarded. Here was government without the consent of the governed. Here was taxation without representation. Here was such a mingling of the three departments of government, and such a concentration of power in the hands of the executive, as was not to be found in any other part of the United States. The explanation is that the authors of the government of the Northwest were making provision for the administration of a territory which might properly be called a colony, and the principles applied at that time to the government of colonies were applied here. The inhabitants were not consulted about the form of government, their laws, or the selection of their officers. Their delegate in Congress, chosen not by the people, but by the territorial legislature, could debate, but he had no vote. He held a position not unlike that formerly held by the agents maintained by the colonies in London. Indeed, it was not unusual to hear the Northwest referred to as a colony. In 1786 Monroe sent to Jefferson a description of the government proposed for the Northwest, and said, “ It is, in effect, to be a colonial government, similar to that which prevailed in these states previous to the Revolution.”A few weeks later he wrote, “ It hath been proposed and supported by our state to have a colonial government established over the western districts, to cease at the time they shall be admitted into the Confederacy.” This was the government which was to serve as a model for the government of territory newly acquired by the United States.

Our first annexation of foreign territory was the Louisiana purchase, of which the United States took possession December 20, 1803. By Article III. of the treaty of cession, it was stipulated that the inhabitants of the ceded territory should be incorporated in the Union, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States. Pending the arrangement of a temporary government for the territory, all the military, civil, and judicial powers exercised by the old French officers were to be vested in persons appointed by the President, and exercised as he might direct. By virtue of this provision, practically all the functions of government became vested for a few months in the hands of one man, Governor Claiborn, of Mississippi Territory, who was appointed governor of Louisiana. Alexander Johnston has said of this government, “ It was in effect a military despotism over Louisiana, and may suffice as an example of the extent to which the sovereign power over the territories might go, if a wiser policy were not the rule.”

In the following year, 1804, Congress worked out a plan of government for the French purchase. The whole area was divided into two parts by a line drawn along the thirty-third parallel, which is now the northern boundary of the state of Louisiana. That portion south of the line was called the territory of Orleans. All the rest of the area ceded by France was organized into the district of Louisiana. In neither of these divisions did Congress see fit to allow the people any great share in their government : in one case because the population, though considerable, was almost exclusively French and Spanish ; and in the other, because there were few civilized people of any race.

In the more populous division, the territory of Orleans, a government modeled after that of the Northwest Territory, but with some radical differences, was organized. The constitution of the executive was the same as in the Northwest, but in the structure of the other two departments there were noteworthy changes. Instead of a legislature composed of the governor and judges, the law-making power was vested in a legislative council composed of thirteen of the most fit and discreet persons of the territory, whom the President was to appoint annually from among those holding real estate therein. With the consent of a majority of the legislative council, the governor was empowered to alter, modify, or repeal any laws of the territory which were in force at the time of this territorial organization. The law provided that " their legislative powers shall also extend to all rightful subjects of legislation ; but no law shall be valid which is inconsistent with the Constitution and laws of the United States, or which shall lay any person under restraint, burden, or disability, on account of his religious opinions, professions, or worship ; in all which he shall be free to maintain his own, and not burdened for those of another.” The governor and council were further restricted in that they had no power over the primary disposal of the soil, nor could they tax the lands of the United States, or interfere with any claims to land in the territory. All legislative acts were of course subject to the approval of Congress. Instead of the three judges appointed by the President, there was to be a superior court, and such inferior courts and justices of the peace as the territorial legislature should from time to time establish. Trial by jury was secured to the inhabitants in all cases of capital crime, and they were also guaranteed certain other legal protections, such as the writ of habeas corpus, bail for offenses, and freedom from cruel or unusual punishments. These provisions are of importance, as an attempt to engraft certain institutions of the English law upon a people accustomed to the forms of the Roman law. The United States was represented in the territory by a district judge, who was required to reside in the city of New Orleans, and hold therein four sessions annually. He was to exercise the same jurisdiction and powers as were exercised by the judge of the Kentucky district. An attorney for the United States, and a marshal, both of whom were appointed by the President, completed the organization of the federal court.

The district of Louisiana, which comprised all the rest of the French purchase, — an area so vast that ten states have since been created out of it, — was placed under the government of the officers of Indiana Territory. The executive power vested in the governor of Indiana was extended over the district. The governor and the judges of Indiana were empowered to establish inferior courts, and to define their jurisdiction. They had also a general legislative power; but the right of trial by jury was reserved in all criminal cases, and in civil cases in which more than one hundred dollars was involved, and either of the parties required it. The Indiana governor and judges had a much wider legislative power in the district than they had in their own territory. The laws made by the governor and judges for the territory had no force in the district, unless it was expressly so provided, and likewise those made for the district had no force in the territory.

These provisions for the government of the territory of Orleans and the district of Louisiana continued in force for about a year. They were then superseded by acts which converted the district of Louisiana into the territory of Louisiana, and established both in that territory and in the territory of Orleans a government analogous to the second grade of government in the Northwest Territory. They remained thus without change until the territory of Orleans was admitted to the Union as the state of Louisiana in 1812. In the same year the name of the territory of Louisiana was changed to Missouri, but the same form of government was retained until 1816, when provision was made for the organization of a legislature both houses of which were elected by the people of the territory. This change marks the transition from the colonial state.

Our next accession of territory was Florida, which was acquired from Spain by the treaty of February 22, 1819. Article VI. of this treaty, like Article III. of the treaty of Paris of 1803, provided that the inhabitants should be incorporated in the Union as soon as might be consistent with the principles of the Federal Constitution, and admitted to all the rights and immunities of citizens of the United States. There was a delay of two years between the signing of the treaty and the exchange of ratifications, and more than another year elapsed before Congress provided a government for the Spanish cession. The territorial government of Florida was fashioned after that of the territory of Orleans. Here again we find an executive department consisting of a governor and a secretary appointed by the President, while the legislative power was vested in the governor and “ in thirteen of the most fit and discreet persons of the territory,”who were to be appointed by the President from among the citizens of the United States residing in Florida. The ownership of real estate in the territory, which was made a requisite for membership in the legislature of Orleans, was not required for appointment to the legislature of Florida. The judicial organization of Florida was almost an exact copy of that of Orleans.

The next extension of our boundaries was by the admission of Texas, which was annexed to the United States and admitted to the Union by the same act. In consequence of this arrangement it was never governed as a territory. The war in which the United States was involved because of this annexation resulted in the acquisition of Upper California and New Mexico. In the case of California, the debates in Congress on the Wilmot Proviso delayed so long the organization of a territorial government to supplant the military government established during the war with Mexico, that the discovery of gold and the consequent immigration made a state government necessary at once. This the people proceeded to form without any authorization from Congress ; and when formed it was accepted by Congress, and the state was admitted to the Union September 9, 1850. By the same act New Mexico was endowed with a territorial organization more liberal than any yet accorded to newly acquired provinces. Its government comprised the usual governor and secretary appointed by the President. The legislature, however, consisted of two houses, both of which were elected by the people of the territory ; but the federal government kept a check upon it by giving the governor an absolute veto. The qualifications for voting at the first election were very liberal, every free white male citizen of full age residing in the territory being a duly qualified elector. After the first election, the territorial legislature was empowered to fix the qualifications for suffrage. When the Gadsden purchase was added to the United States in 1853, it was incorporated in the territory of New Mexico, which then included an area greater in extent than the whole of the present German Empire.

In 1807 Mr. Seward effected the purchase of Alaska. Unlike our other annexations, Alaska offered little or no prospect of ever becoming fit for admission to the Union on an equal footing with the states. It must remain in a colonial condition for an indefinite length of time. Owing to the character and situation of its inhabitants, self-government was out of the question, and government of any kind was almost impossible. Until 1884 Congress took no action with reference to the matter, but in that year a civil organization of the most rudimentary description was established. Alaska was made a civil and judicial district, and the President was authorized to appoint a governor therein. A district court and four commissioners who exercise the powers of justices of the peace according to the laws of Oregon complete the government. In the absence of all legislative authority, the laws of Oregon, in so far as they are applicable and not in conflict with the laws of the United States, are extended over the district.

The joint resolution for the annexation of Hawaii, which received the approval of the President July 7, 1898, contains some provisions regarding the temporary government of the islands quite similar to the articles of the treaty of Paris relating to the government of Louisiana. Until Congress shall otherwise direct, all the civil, judicial, and military powers exercised by the officers of the Hawaiian Republic shall be vested in such person or persons as the President may appoint, and exercised in such manner as he may direct. Such municipal legislation as does not conflict with its new relations nor with the Constitution or laws of the United States is to remain in force until altered by Congress. With a view to future legislation regarding the islands, the President was directed to appoint a commission of five, at least two of whom should be residents of Hawaii, who should recommend to Congress such measures as seemed necessary and proper. This commission has studied the problem on the spot, and will lay before Congress a plan for the government of the islands.

From the foregoing recital of facts it is possible to draw certain general conclusions. First it is to be noted that all the lands hitherto annexed by the United States were sparsely populated, or else the population was predominantly American. The inhabitants of Louisiana and California were very few as compared with the vast extent of territory. In Texas the American element predominated, while Florida and Alaska had few people of any race. It is this characteristic of our former annexations — that they consisted chiefly of vacant lands — which has made them so important to the United States. They contained few persons who had to unlearn old habits and be trained in new political ideas. They offered an outlet to immigration from the older states and from Europe. Since the pioneers in almost all the new states have been largely of native American stock, they have been a leaven in the European immigration which followed them, and the two elements acting together have built up communities capable of taking a place in the sisterhood of self-governing states.

With the exception of Alaska, all the territorial governments hitherto organized have been avowedly of a temporary character. Their object has been to provide a government which would be sufficient for the needs of a sparse population, and which would at the same time encourage the development of the territory into a state. Admission to the Union was the goal from the beginning. The territorial status was merely one of transition. Indeed, in the case of two of our most important annexations, Louisiana and Florida, it was stipulated in the treaties of cession that the ceded areas should be admitted to the Union as soon as was consistent with the principles of the Federal Constitution. This characteristic of our territorial system is not found in the colonial policy of any other nation.

If now we attempt to apply these general conclusions to our acquisitions in the West Indies and the Pacific, we are at once impressed with differences which must influence our governmental policy in dealing with them; for these islands differ radically from any territory hitherto annexed. Instead of vast areas with a comparatively small population, and offering tempting fields for settlement, we have in Porto Rico an island situated in the tropics, with an area one third less than that of the state of Connecticut, and a population one third greater,—a population, moreover, unlike that of the United States in language, laws, and political experience and ideas. In the Philippines a similar situation exists, except that the contrast is even greater. The United States has thus far dealt with problems of government in connection with the negro, with the Indian, and with numerous branches of the Caucasian race. In the Philippines it will meet with a race radically different from any of these, one which has shown considerable ability in resisting the established order, and, what is of greatest importance, one which shows little inclination to submit to the authority of the United States. The problem is further complicated by the existence of a rival government, to which a considerable number of the natives have given their allegiance.

To these conditions none of the forms of colonial government heretofore established in the United States seems to be applicable, except perhaps the autocratic government of Louisiana in 1804, and the military government which prevailed in California while Congress was debating what should be done with that province. Our problem, therefore, is to develop a new form to meet the peculiar necessities of the case. It is probably safe to start with the general proposition that such territories as Porto Rico and the Philippines will have to be actively governed by the authorities at Washington. The degree of local self-control that can safely be granted must be exceedingly small, at least for many years; for the growth of any considerable American population in either place will be a very slow process. Commerce, it is true, is a strong potential influence, but in the case of well-established populations its effects are seen only after the lapse of a long time. English and Dutch experience with Asiatics has shown that only the constant presence of European garrisons is sufficient to insure safety and good order.

In the second place, whatever form of government is adopted for our new possessions must have a degree of permanence not found in our territorial organizations. Porto Rico, for example, will not be ready for admission to the Union for many years, if it will ever be. A more permanent form of rule in this case must necessarily mean a permanent civil service. The government of colonies is not an art to be learned in a day. Our lack of experience must be cured by years of practice, in which we shall make costly mistakes, but as a result of which a body of men will emerge capable of handling the problems intrusted to them. And these men must constitute a permanent staff both for administration and for the training of other men to succeed them. We may expect from these accessions of territory an indirect gain more important than any commercial or political advantages that may accrue to us. The cause of good government in America rests largely upon the principle of an independent civil service, appointment to which shall be based upon merit alone. A striking example of its successful application held constantly and conspicuously before the eyes of the people will do much to convince them of its inherent soundness ; and once they are convinced, the struggle for good government at home will be more nearly won.

Carl Evans Boyd.