** Index to this file **
CROSS v. HARRISON, US Supreme Court, 57 US 164 (1853)
pages 3 - 41
THE HOBBESIAN CONSTITUTION: GOVERNING WITHOUT AUTHORITY
Northwestern 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, 2001
Herman 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 1996
Myra K. Saunders (Law Librarian and Assistant Professor of Law in Residence,
UCLA School of Law, Los Angeles, California)
pages 133 - 179
1
TERRITORIAL GOVERNMENTS AND THE LIMITS OF FORMALISM
California 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 1955
Sedgwick 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 AREAS
http://www.gao.gov/archive/1998/og98005.pdf
page 300
MISCELLANEOUS
pages 301 - 319
2
16 How. 164, 14 L.Ed. 889
Supreme Court of the United States
ALEXANDER CROSS, WILLIAM L. HOBSON, AND WILLIAM HOOPER,
TRADING UNDER THE NAME
AND 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
3
regular collector appointed by the president under the act of congress making San
Francisco a port of entry, were properly levied.
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
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
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
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
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
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.
4
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
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
5
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)
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
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)
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.
6
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
7
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
8
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.
9
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.
10
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 &
11
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
12
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
13
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
14
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
15
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
16
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,
17
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.
18
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,
19
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
20
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
21
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. And
13th of November, 1849, when Collector Collier entered upon the duties of his office.
22
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,
23
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.
24
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.
25
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.
26
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
27
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
28
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
29
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 ports which had been conquered. In that article,
30
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
31
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.
32
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
33
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,
34
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
35
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
36
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.'
37
We will here briefly notice those objections which preceded that which has been
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
38
United States on importations into Louisiana, but that duties were charged on goods
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
39
things there. They knew that there was an existing civil government instituted by the
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.
40
On consideration whereof it is now here ordered and adjudged by this court, 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.,1853
Cross et al. v. Harrison
57 U.S. 164 (Mem), 16 How. 164, 14 L.Ed. 889
END OF DOCUMENT
Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works
41
Northwestern University Law Review
Winter 2001
Article
*581 THE HOBBESIAN CONSTITUTION: GOVERNING WITHOUT
AUTHORITY
Gary Lawson [FNa1]; & Guy Seidman [FNaa1]
Copyright © 2001 Northwestern University School of Law, Northwestern
University 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
42
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. Introduction
Cross 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
43
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]
44
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
45
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
46
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
47
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 Anachronism
The 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
48
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 Immunity
Cross 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 midnineteenth century, official status was no defense at all to a suit for damages. Official
49
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:
50
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
51
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 Officer
Another 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
52
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
53
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 Government
In 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
54
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.
55
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
56
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
equitable, there is no conceptual problem with saying that the existence of de facto
57
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
Luther v. Borden in 1849, the Court in the early 1850s was not so inclined--it would
58
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 Myopia
The 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 On
The 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.
B. February 3, 1848--May 30, 1848: The War Is Still On
59
The 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
California because it was no longer occupied; it was thereafter subject to the full,
60
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:
orders shall be transmitted to the commanders of [the United States'] land and naval
61
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
completion of the ratifications. That is the standard rule at international law, and the
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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:
[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
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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
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
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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.
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
65
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
exhausted and the war tariffs are finished.
Obviously, although this argument is more persuasive than the Supreme Court's ipse
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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 Books
The 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
civilian collector was constitutionally appointed to administer the tariff laws at the
congressionally-established collection district in San Francisco. War powers will not
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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 constitutional
issues for at least part of the post-war time period should be dealt with right
away. Congress did not designate San Francisco as a collection district--that
is, as a port in which imports may lawfully be landed upon proper payment of
duties--until March 3, 1849. The plaintiff argued that in the absence of such
a designation, there was no federal authority to collect duties. Strictly
speaking, that may have been true, but the argument had a serious potential
boomerang effect against the plaintiff. A collection district is simply a
congressionally designated port of entry. The specification of certain ports
as collection districts reflects a corresponding congressional determination
that goods may not lawfully be imported into the United States at any other
place. Accordingly, the real consequence of the failure to make San Francisco
a collection district until March 3, 1849 was that, until that date, it was
flatly unlawful for the plaintiff to bring any goods into the United States
through 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
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
68
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
been Brevet Major General Persifor F. Smith, who informed the Army's Adjutant
General on April 5, 1849 that he:
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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, 1849
statute that made San Francisco a collection district as a major event. In
fact, however, until Collier, the properly appointed collector, assumed the
duties of his office on November 13, 1849, the statute changed nothing. A
collection district is a place in which dutiable goods may be landed upon the
proper payment of duties to (and the filing of appropriate documents with) the
proper authorities. Harrison's "appointment" as customs collector rested
solely on his appointment by "Governor" Mason, whose status as governor
depended throughout his tenure on the validity of the military government. If
that government's authority cannot be sustained as a matter of federal
constitutional 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 military
government throughout its period of operation [FN131] in one critical
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
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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,
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
71
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 in
Cross has important ramifications. Military governments of occupied territory
during wartime operate in accordance with the laws of war. They need not
comply with the procedural forms for governmental action prescribed in the
Constitution; the courts that they establish during wartime need not conform to
the dictates of Article III; and the Bill of Rights does not, for instance,
require soldiers in occupied territory to get warrants before they search
houses for insurgents. There are, of course, limits to the powers of military
governments. As the Court held just two years before Cross in Mitchell v.
Harmony, [FN135] military officials cannot seize private property, even
during wartime, unless they can demonstrate that such seizure is in fact
necessary; and (in an era before modern immunity doctrines) the officers will
be held personally liable for such seizures if a jury subsequently finds that
the action was not justified by military necessity. But these limits are far
72
from the limits imposed on civilian government by the Constitution. What
happens 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 the
ongoing military government retain all of the powers that it had during the
war?
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,
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
73
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
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.
74
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
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
75
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 to
maintain a peacetime military government seems extravagant, it is nothing
compared to the claim of power advanced by the executive arm of the United
States 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
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:
76
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
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.
77
*624 a. Madison, Hamilton, Jay . . . and Hobbes?--Let us assume for the
moment that every sensible person would choose virtually any organized
government over none at all--although many seemingly sensible people, including
one of the present authors, emphatically disagree with this assumption.
[FN166] What does that mean, as a matter of domestic law, about the powers
of the American national government? Does that mean that there is
constitutional authorization for the establishment of an American military
government anywhere in the world where there is a governmental vacuum? That
the presumed consent of the people living in a state of governmental
interregnum permits the President and military authorities, as a matter of
domestic law, to fill the void? The claim is bizarre enough at the level of
abstract political theory. It is positively clinical in the context of the
American constitutional scheme, under which the national government is an
institution of limited and enumerated powers. Perhaps a Hobbesian sovereign
would be able to claim the kind of legal authority that Polk and Buchanan
attributed to Colonel Mason (and that Colonel Mason never claimed for himself
[FN167]), but neither the United States government nor its territorial arm
in California during 1848 meets that description.
b. A Government By Any Other Name . . .--The American government's position is
even more bizarre when one reflects on its central assumption: that in the
absence of American military rule, there would be anarchy, in the sense of no
functioning institutions of order. [FN168] When the United States conquered
California during the Mexican-American War, it did not simply occupy a
territory that had no prior human inhabitants. Before the President
established a military government in 1847, the people of California did not
live without government. There were plenty of governmental institutions that
operated under the sovereignties of Spain and Mexico. *625 Before the
American invasion, California "had a well-defined and relatively effective
legal structure based largely on customary law and conflict resolution."
[FN169] Indeed, as is typical in cases of conquest, the vast majority of
the indigenous laws remained in force after the occupation; only those laws
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 their
78
pre-occupation system of government. If those structures proved inadequate to
the changed circumstances of 1848, [FN171] the prior institutions could have
been adapted or replaced without the intervention of the American military. It
is absurd to suggest that the only alternative to American military rule was
complete lawlessness--unless, of course, the pre-existing Mexican institutions
simply 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
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
79
to take its place.
c. Anarchy By Any Other Name . . .--Even on that modest level, however, the
post-war government in California does not fare well. The gold rush was under
way, and among the rushers were many, if not most, of the soldiers who were
supposedly providing order. On August 14, 1848, less than two months before
Secretary of State Buchanan sought to derive an extraconstitutional power to
govern from the imperative need for a military government to maintain order,
Captain (and Assistant Quartermaster) J.L. Folsom described the state of
affairs 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
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[.]
80
[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. Conclusion
There 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.
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
81
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
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.
82
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).
[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.
83
[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
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,
84
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
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
85
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
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
86
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.
[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).
87
[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.
[FN49]. Act of Jan. 17, 1807, ch. 4, 6 Stat. 63.
88
[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).
[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
89
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).
[FN74]. Id. at 733.
[FN75]. Id.
90
[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.
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.
91
[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.
[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
92
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.
[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.
93
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.
[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.
94
[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
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.
95
[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.
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.
96
[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.
L. Rev. 511, 518-19 (1999) (book review) [hereinafter Lawson, Bill of Rights];
Lawson, supra note 4, at 870-76.
97
[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).
[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,
98
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
which reasonable people disagree. See supra note 166 and accompanying text.
[FN169]. Myra K. Saunders, California Legal History: A Review of Spanish and
99
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.
[FN175]. See Saunders, supra note 169, at 488.
[FN176]. See id.
100
[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
101
NEXUS: A Journal of Opinion
Spring, 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
102
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]
I
That California was eligible country in which to exercise the right of revolution is
103
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 pro- slavery 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.
104
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
105
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.
II
If 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
106
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
107
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." [FN26] "The
great law of necessity" justified this conclusion, according to Buchanan. "The consent
108
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
order were spontaneously organized in the mining district, and in some towns.
109
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
the right, not only to tax us without representation, but to tax us without giving us any
110
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
Mexico. [FN42] Against this speculation there is considerable evidence of Southern
111
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 pro- slavery 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
principle expressed both a moral choice of liberty for the sake of Union, and prudent
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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.
III
Analysis 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
exclusively their own. [FN51] This definition was consistent with the view stated by
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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
territorial popular sovereign, to recognize slavery in the course of forming a state
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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
admission of California and New Mexico as States, to remove all occasion for the
unnecessary agitation of the public mind." [FN62] Affirming the constitutional
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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]
IV
In 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
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
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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
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
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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
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
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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
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,
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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
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
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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]
V
The 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
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."
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[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
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
122
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
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
123
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
organically symbiotic, relationship between liberty and Union as principles of
American nationality. We may conclude that the principle of popular sovereignty,
124
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.
[FN10]. FREDERICK MERK, MANIFEST DESTINY AND MISSION: A
125
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.
[FN23]. Id. at 599.
126
[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
Movement, 40 CAL. HIST. SOC. Q. 126-29 (1961).
127
[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").
[FN48]. See HARLOW, supra note 13, at 342.
128
[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,
resident in this Territory." According to constitutional historian Arthur Bestor: "In a
very real and compelling though not easily definable sense, territories formed an
129
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)
[FN70]. CONG. GLOBE, supra note 52, at 1533.
130
[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
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
131
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.
[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.
132
[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 Journal
Fall, 1996
*488 CALIFORNIA LEGAL HISTORY: THE LEGAL SYSTEM UNDER THE
UNITED STATES
MILITARY GOVERNMENT, 1846-1849 [FNa1]
Myra K. Saunders [FNaa1]
Copyright © 1996 by the American Association of Law Libraries; Myra K.
Saunders
WESTLAW LAWPRAC INDEX
LIB -- Library Management & Resources
Professor Saunders examines the legal system implemented in California after its
occupation by the United States in 1846, but prior to statehood, and reviews the
materials available for researching the legal history of this period.
133
Introduction
The 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 Background
California 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
Spanish-Mexican legal system. Beyond this, the new immigrants' desire for land
conflicted sharply with the military government's determination to respect Mexican
134
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 California
Even 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
United States." [FN10]
War with Mexico was declared on May 13, 1846. In June of 1846, just before U.S.
135
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
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
136
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 Government
In 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:
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
137
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
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.
138
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 Rule
During 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,
[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
139
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
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,
140
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 Government
Despite 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
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
141
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
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
142
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:
"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
143
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.
Land Transfers During Military Rule
144
Governor 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:
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
145
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 Camps
Gold 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
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
146
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
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]
147
*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 Rule
When 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]
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
148
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.
Conclusion
As 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
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
149
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 of
Sources
General Research Overview
Legal 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.
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
150
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 Aids
Cowan, 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
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
151
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 Records
Dwinelle, 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
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
152
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
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.
153
Codes
Halleck, 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.
Memoirs
Burnett, 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.
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.
154
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.
Newspapers
Alta 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 Materials
Bancroft, 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
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.
155
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.
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
156
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
military government. An essential tool.
Kari, Douglas. "Once Upon a Time in the West," 19 Los Angeles Lawyer 40-44, 68
(July/Aug. 1996).
157
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.
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
158
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
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
159
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.
[FN8]. See WALTON BEAN, CALIFORNIA, AN INTERPRETATIVE HISTORY 94
(1968).
160
[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
provisions, see SAUNDERS, supra note 1, at 498-504.
[FN17]. See NEAL HARLOW, CALIFORNIA CONQUERED 154 (1982); 5
161
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
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).
162
[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.
[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
163
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.
[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
164
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.
[FN45]. HANSEN, supra note 11, at 82 (in specific reference to the activities Alcalde
L. W. Boggs).
165
[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.
[FN52]. See GRIVAS, supra note 14, at 175.
166
[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.
[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
167
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
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.
168
[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.
[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.
169
[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
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
170
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
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
171
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).
[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
172
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,
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,
173
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
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.
174
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.
[FN127]. Id. at 233 (quoting MINING & SCIENTIFIC PRESS, July 14, 1866)
[descriptions added].
175
[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, 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,
176
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,
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
177
(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:
THE SPANISH PERIOD 500 (1921).
[FN153]. Professor Langum advises against relying too much on the accuracy of this
178
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
Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works
California Law Review
July, 1990
*853 TERRITORIAL GOVERNMENTS AND THE LIMITS OF FORMALISM
Gary Lawson [FNa]
Copyright 1990 by the California Law Review, Inc.; Gary Lawson
INTRODUCTION
For 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
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.
179
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.
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
180
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
A TERMINOLOGICAL PROLOGUE
181
Whatever "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
powers questions using only the text, structure, and background of the Constitution,
applying late eighteenth-century America as the locus of meaning for those
182
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
183
FORMALISM AND TERRITORIAL STRUCTURE
The 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 Nuts
Guam, 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
importance of airport delivery rights by submitting a winning bid of more than
$140,000,000. [FN44]
184
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
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
185
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 Answer
To 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
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
186
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
administrative order in 1977 to Samoa. [FN89] None of these amendments were
accompanied by *870 explicit discussion-nor, evidently, by congressional
187
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 Court
To 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
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
188
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
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
189
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
appointed officials for 150 years was due to legislative choice, not constitutional
compulsion. If the First Congress thought otherwise, it was simply mistaken.
190
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 STRUCTURE
Almost 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 Judges
The 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
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
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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 Age
The 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,
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
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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
guaranty of judicial independence from provisions like article I's guaranty of freedom
193
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]
In response, Mason advanced the arguments from Judge Kilty's dissenting opinion,
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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]
The case turned upon whether Wise, as a justice of the peace, was exempt from
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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
Columbia. Marshall thought the answer clear: " The United States is the name given
196
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 Empire
In 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
in 1825. Congress had vested "the judicial power of the territory of Florida ... in three
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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]
The insurance companies appealed to the Supreme Court, advancing two significant
198
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
Constitution; the same limitation does not extend to the territories. In legislating for
199
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?
200
B. Article II and Territorial Executives
I 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
narrower reading, [FN254] it can also sustain Marshall's, which better fits the text's
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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
presidentially appointed United States Attorney, brought a quo warranto action against
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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
to execute federal laws on popularly elected territorial officials. While the long
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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 Legislatures
The 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, selfgovernment 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
unconstitutional than are elected governors. The enactment of territorial laws looks
204
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.
Framework statutes suffice for this purpose, allowing administrators the discretion to
205
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
Soap Co. v. United States, [FN306] soap manufacturers challenged the validity of a
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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 Territories
The 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
the case of the District of Columbia, the pertinent clause authorizes Congress "[t]o
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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
Justice Marshall nonetheless found a source for the "right to acquire and to hold
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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
to prepare the population for independence or simply to express a preference for
209
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.
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
210
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
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
211
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);
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);
212
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).
[FN4]. By my reckoning, Synar and Chadha were predominantly formalist decisions;
213
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 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
214
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
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
215
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 ....").
[FN19]. It bears emphasizing that formalism does not call for adherence to some
theoretically pure separation of legislative, executive, and judicial functions. Rather, it
216
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
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.
217
[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.
L. REV. 1253, 1255 (1988).
[FN26]. Strauss, Formal and Functional Approaches to Separation-of-Powers
218
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
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
219
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).
[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.
220
[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
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
221
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").
[FN54]. Wheeler, 435 U.S. at 321 (quoting Domenech v. National City Bank of New
York, 294 U.S. 199, 204-05 (1935)).
222
[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
48 U.S.C. §§ 1421-24 (1988)).
[FN67]. Id. § 6(a), 64 Stat. at 386.
223
[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.
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
224
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.
[FN80]. See supra note 75 and accompanying text.
[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).
[FN82]. Id.
[FN83]. Act of August 7, 1789, ch.8, 1 Stat. 50, 51.
225
[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
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, §
226
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
only when quoting material that employs them.
[FN86]. See Act of Aug. 5, 1947, ch. 490, § 1, 61 Stat. 770, 770-71. This provision
227
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
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
228
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
acquisition of the Hawaiian Islands, Puerto Rico, Guam, the Philippines, and part of
the Samoan archipelago).
229
[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.)
("[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,
230
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
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
231
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).
[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
232
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.
[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
233
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
93, at 780.
[FN121]. See 48 U.S.C. § 1421a (1988) (identifying Guam as "an unincorporated
234
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 cling with my expiring
breath.
[FN125]. Given that it has been assumed since American Insurance Co. that one does
235
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
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").
236
[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).
[FN144]. See Act of Feb. 27, 1801, ch. 15, § 11, 2 Stat. 103, 107.
237
[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.
[FN151]. This reading of Marbury was later argued to the Court. See infra text
accompanying notes 171-73.
238
[FN152]. See United States v. More, 7 U.S. (3 Cranch) 159, 160 n.* (1805) (circuit
court opinions, 1803).
[FN153]. See Act of Feb. 27, 1801, ch. 15, § 11, 2 Stat. 103, 107.
[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
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
239
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
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
240
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.
[FN178]. Id.
241
[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.
[FN187]. See id. (emphasis in original).
242
[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.
[FN193]. See Act of Feb. 27, 1815, ch. 60, § 1, 3 Stat. 216, 216.
[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.
[FN201]. See supra note 197 and accompanying text.
[FN202]. See Loughborough, 18 U.S. (5 Wheat) at 321-22, 325.
243
[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.
[FN211]. See Act of May 26, 1824, ch. 163, § 1, 4 Stat. 45, 45 (description of
244
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.
[FN220]. The two companies taken together had insured 684 of the 891 bales of
245
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.
[FN229]. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (emphasis added).
246
[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.
[FN237]. Perhaps I am rash to claim that the insurance companies "at no time" made
247
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
(1850). Its discussion of the status of such tribunals during the period of territoriality
was thus clearly dictum.
248
[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,
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
249
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).
[FN247]. 22 U.S. (9 Wheat.) 738 (1824).
250
[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.
[FN257]. See supra text accompanying note 179.
[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
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
251
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
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
252
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.
[FN274]. I have been unable to locate the Utah Supreme Court's opinion. The
253
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.
[FN280]. See supra text accompanying note 179.
[FN281]. Snow, 85 U.S. (18 Wall.) at 321.
[FN282]. See supra text accompanying note 85.
[FN283]. This calls to mind the comments of Justice Catron in Dred Scott, affirming
the power of Congress to govern territories under article IV:
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
254
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).
[FN286]. See supra text accompanying note 179.
[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 power,
but I am satisfied that anything fairly characterized as the former must be exercised
exclusively by the constitutionally prescribed legislative institutions.
255
[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]:
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
256
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).
[FN304]. Dorr, 195 U.S. at 148-49.
257
[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.
[FN318]. U.S. CONST. art. I, § 8, cl. 17.
258
[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).
[FN328]. Id. at 542-43.
259
[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
territories impossible, thus preventing America from becoming an overseas empire.
260
[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.
[FN339]. See supra text accompanying note 293.
[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
Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works
261
Harvard Law Review
March, 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
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
262
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.
[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.
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[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 POSSESSIONS
Any 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
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
264
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 ISLANDS
Guano 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
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
265
the possibility that possession of a guano island lapses when the guano has been
removed. [FN56]
III. THE CANAL ZONE AND GUANTANAMO BAY
These 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
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
266
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 TERRITORY
The 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
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
267
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
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
268
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
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
269
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
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
270
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. 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
271
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 TERRITORY
The 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
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
272
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
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
273
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
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]
274
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 OCCUPATION
If 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
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
275
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
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
276
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]
CONCLUSION
The 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
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
277
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. [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
278
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
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.
279
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.
L. REV. 247, 97 U. PA. L. REV. 866 (1949).
280
[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,
apparently inadvertently, from 40 U.S.C. § 324 (1952).
281
[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.").
[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)
282
(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,
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
283
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 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).
284
[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
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
285
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,
col. 8.
286
[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.
[FN67]. See note 58 supra.
[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,
Administrative Determinations and Personal Rights in the Present Supreme Court, 24
IND. L.J. 163 (1949), the Court nowhere clearly states this proposition.
287
[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
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.
288
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).
[FN81]. See note 76 supra.
[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).
[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
289
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).
[FN91]. De Lima v. Bidwell, 182 U.S. 1, 196 (1901).
[FN92]. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).
290
[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).
[FN103]. 208 F.2d at 295.
291
[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).
[FN108]. See p. 794 supra.
[FN109]. 114 U.S. 542 (1885).
[FN110]. The succeeding cases in this line also involve local parties, and cession and
annexation. Ortega v. Lara, 202 U.S. 339 (1906); Vilas v. Manila, 220 U.S. 345
(1911).
292
[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).
[FN114]. See note 68 supra.
[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).
[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
293
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.
[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
294
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
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.
295
[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.
[FN152]. See p. 802 supra.
[FN153]. See note 35 supra and pp. 808-10 infra.
[FN154]. See pp. 802-03 supra.
[FN155]. Agreement with Great Britain Respecting Leased Bases, March 27, 1941, 55
STAT. 1560, E.A.S. No. 235.
296
[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
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)
297
("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).
[FN172]. 27 STAT. 340 (1892), as amended, 40 U.S.C. §§ 321-26 (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.
[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
298
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.
[FN183]. See p. 807 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).
[FN185]. See note 162 supra.
[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.
[FN187]. See note 34 supra.
[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
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
299
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).
[FN194]. 27 STAT. 340 (1892), as amended, 40 U.S.C. §§ 321-26 (1952).
[FN195]. 47 STAT. 1520 (1933), as amended, 41 U.S.C. §§ 10a-d (1952).
END OF DOCUMENT
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-- MISCELLANEOUS -Supreme Court of the United States
SMITH 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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170Bk471 k. Decisions Directly Appealable in General. Most Cited Cases
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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
301
cause be, and the same is hereby, dismissed, with costs.
U.S.,1850
Hogan et al. v. Ross
50 U.S. 602 (Mem), 9 How. 602, 13 L.Ed. 276
END OF DOCUMENT
Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works
Copr. © West 2004 No Claim to Orig. U.S. Govt. Works
Search: "cross v. harrison"
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...
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
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. ...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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. S.
303
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,...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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...
304
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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...
-------------------------------------------------------------------------------305
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...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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...
306
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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....
307
--------------------------------------------------------------------------------
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....
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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]
308
...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....
--------------------------------------------------------------------------------
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,...
--------------------------------------------------------------------------------
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...
309
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
Next 20
Clear all | Clear 1-20
Search: "cross v. harrison"
Result- 76 Documents Result Options
21-40
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.
Cleveland [FNa1]
310
... 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...
--------------------------------------------------------------------------------
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,...
--------------------------------------------------------------------------------
23.
2002-MAR Army Law. 19
311
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...
--------------------------------------------------------------------------------
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,...
-------------------------------------------------------------------------------312
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,...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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]
313
...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...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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
CALIFORNIA Karl Manheim [FNa1] Edward P. Howard [FNaa1]
314
...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...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
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,...
...arts. 49, 52; see also 7 Moore, supra note 98, at 280-87; 1 Moore, supra note 98, at
315
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...
--------------------------------------------------------------------------------
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 ...
--------------------------------------------------------------------------------
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 833-34.
Congress provided that murder, manslaughter, robbery,...
316
--------------------------------------------------------------------------------
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. ...
--------------------------------------------------------------------------------
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...
--------------------------------------------------------------------------------
317
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...
--------------------------------------------------------------------------------
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). ...
-------------------------------------------------------------------------------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
Search Term End , 57 U.S. (16 How.) 164 (1854) (sorting out customs consequences
318
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...
-------------------------------------------------------------------------------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...
319