THE STATUS OF OUR NEW TERRITORIES
What extent of territory do the United States of America
comprise? In order to answer this question intelligently, it
is necessary to ascertain the meaning of the term "United
States."
[Definition
3 in Hooven & Allison above] First. -- It is the collective name of the States which are
united together by and under the Constitution of the United States;
and, prior to the adoption of that Constitution, and subsequently to
the Declaration of Independence, it was the collective name of the
thirteen States which made that declaration, and which from the time
of the adoption of the Articles of Confederation to that of the
adoption of the Constitution, were united together by and under the
former. This, moreover, is the original, natural, and literal
meaning of the term. Between the time of the first meeting of
the Continental Congress, and that of the Declaration of
Independence, the term "United Colonies" came into general
use, and, upon independence being declared, as the thirteen colonies
became the thirteen States, the term was of course changed to
"United States." In the declaration of Independence
both terms are used. When the articles of Confederation were
framed, "United States of America" was declared to be the
name and style of the confederation created by those articles.
This, however, had no other effect than to confirm the existing
practice, and to increase the use of the term in the sense which it
had already acquired; and accordingly, during the whole period of
Confederation, "United States" meant the same as "the
thirteen United States," and the primary reason for using
either term was to save the necessity of enumerating the thirteen
States by name.
Indeed, the Articles of Confederation were merely an agreement
between the thirteen States in their corporate capacity, or, more
correctly, an agreement by each of the thirteen States with all the
others. There were, therefore, thirteen parties to the
confederation, and no more, and the people of the different States
as individuals had directly no relations with it. Accordingly,
it was the States in their corporate capacity that voted in the
Continental Congress, and not the individual members of the
Congress; and hence the voting power of a State did not at all
depend upon the number of its delegates in Congress, and in fact
each State was left to determine for itself, within certain limits,
how many delegates it would send. Hence also each State had
the same voting power. Even the style of the Continental
Congress was "The United States in Congress assembled," --
not (as the present style would suggest) "The Delegates of the
United States in Congress assembled"; and if the style had been
"The Thirteen United States in Congress assembled," the
meaning would have been precisely the same.
Evidence to the same effect, as to the sense in which the term
"United States" was used prior to the time of the adoption
of the Constitution, is furnished by the treaties made during the
period of the Confederation. Thus, the Treaty of Alliance made
with France, February 6, 1778, begins: "The Most Christian King
and the United States of North America, New Hampshire," etc.
So the Treaty of Amity and Commerce made with Holland, October 8,
1782, begins: "Their High Mightinesses, the States-General of
the United Netherlands, and the United States of America, namely,
New Hampshire," etc. Sot the Treaty of Amity and Commerce
made with Sweden, April 3, 1783, begins: "The King of Sweden
and the thirteen United States of North America, namely, New
Hampshire," etc. Lastly, the Definitive Treaty of Peace
with England, September 3, 1783, by which our independence was
established, after a recital, proceeds thus: "Art. I. His
Britannic Majesty acknowledges the said United States, namely, New
Hampshire, &c., to be free, sovereign and independent States;
that he treats with them as such; and relinquishes all clams to the
government, propriety, and territorial rights."
With the adoption of the Constitution there came a great
change; for the Constitution was not an agreement, but a law, -- a
law, too, superior to all other laws, coming as it did from the
ultimate source of all laws, namely, the people, and being expressly
declared by them to be the supreme law of the land. At the
same time, however, it neither destroyed not consolidated the
States, nor even affected their integrity; and though it was
established by the people of the United States; yet it was not
established by them as one people, nor was its establishment a
single act; but on the contrary, its establishment in each State was
the act of the people of that State; and if the people of any State
had finally refused to ratify and adopt it, the consequence would
have been that that State would have ceased to be one of the United
States. Indeed, the Constitution and the Articles of
Confederation differ from each other, in respect to the source of
their authority, in one particular only, namely, that, while the
former proceeded from the people of each State, the latter proceeded
from the Legislature of each State. In respect to their effect
and operation also, the two instruments differ from each other in
one particular way only, namely, that, while the Articles of
Confederation merely imposed an obligation upon each State, in its
corporate and sovereign capacity, in favor of the twelve other
States, the Constitution binds as a law, not each State, but all
persons and property in each State. These differences,
moreover, fundamental and important as they undoubtedly are, do not,
nor does either of them , at all affect either the meaning or use of
the term "United States"; and therefore, the conclusion is
that the meaning or the use of the term had the day after
Independence was declared, it still retains, and that this is its
natural and literal meaning.
Regarded, then, as simply the collective names of the States,
do the United States comprise territory? Directly, they
certainly do not; indirectly, they do comprise the territory of the
forty-five States, and no more. That they comprise this
territory only indirectly, appears from the fact that such territory
will always be identified with the territory of all the States in
the aggregate, -- will increase as that increases, and diminish as
that diminishes.
[Definition
1 in Hooven & Allison above] Secondly. -- Since the adoption of the Constitution,
the term "United States" has been the name of the
sovereign, and that sovereign occupies a position analogous to
that of the personal sovereignties of most European countries.
Indeed the analogy between them is close, at least in one respect,
than at first sight appears; for a natural person who is also a
sovereign has two personalities, one natural, the other artificial
and legal, and it is the latter that is sovereign. It is as
true, therefore, of England (for example) as it is of this country,
that her sovereign is an artificial and legal person (i.e., a body
politic and corporate), and, therefore, never dies. The
difference between the two sovereigns is, that, while the former
consists of a single person, the latter consists of many persons,
each of whom is a member of the body politic. In short, while
the former is a corporation sole, the latter is a corporation
aggregate.
Who, then, are those persons of whom the United States as a
body politic consists, and who constitute its members?
Clearly, they must be either the States in their corporate capacity,
i.e., artificial and legal persons, or the citizens of all the
States in the aggregate; and it is not difficult to see that they
are the former. Indeed, the latter do not form a political
unit for any purpose. The citizens of each State form the body
politic of that State, and the States form the body politic of the
United States. The latter, therefore, consisted at first of
the original thirteen States, just as the Confederation did; but, as
often as a new State was admitted, a new member was received into
the body politic, -- which, therefore, now consists of forty-five
members. It will be seen, therefore, that, while the United
States, in its second sense, signifies the body politic created by
the Constitution, in its first sense it signifies the members of
that body politic in the aggregate. A consequence is that,
while in its first sense the term "United States" is
always plural, in its second sense it is in strictness always
singular.
The State of New York furnishes a good illustration of the two
senses in which the term "United States" is used under the
Constitution; for the style of that State, as a body politic, is
"The People of the State of New York," and the members of
that body politic are the citizens of the State. The term
"people," therefore, in that State, means, first, all the
citizens of the State in the aggregate (i.e., the members of the
body politic), and secondly, the body politic itself; and while in
the former sense it is plural, in the latter sense it is singular.
The term "United States" is used in its second sense
whenever it is used for the purpose of expressing legal or political
relations between the United States and the particular States, or
between the former and foreign sovereigns or states, or legal
relations between the former and private persons, while it is used
in its first and original sense whenever it is desired to designate
the particular States collectively, either as such or as members of
the body politic of the United States It is also used in that
sense whenever it is used to designate the territory of all the
States in the aggregate.
As a substitute for the term "United States,"
when used in its second sense, the term "Union" is often
employed. The original difference between "United
States" and "Union" was that, while the former was
concrete, the latter was abstract; and hence it is that the latter
cannot be substituted for the former when used in its original
sense.
When used in its second sense, it is plain that the term
"United States" has no reference to extent of territory,
either directly or indirectly. Regarded as a body politic, the
United States may and does own territory, and may be and is a
sovereign over territory, but to speak of its constituting or
comprising territory would be no less absurd than to predicate the
same thing of a personal sovereign, though the absurdity would be
less obvious.
[Definition
2 in Hooven & Allison above] Thirdly. -- Since the treaty with England of
September 3, 1783, the term "United States" has often been
used to designate all territory over which the
sovereignty of the
United States extended
[under Article
1, Section 8, Clause 17 of the federal Constitution]. The occasion for so using the term
could not of course arise until the United States acquired the
sovereignty over territory outside the limits of any State, and they
first acquired such territory by the treaty just referred to
.
For although, as has been said, that treaty was made with each of
the thirteen States, yet, in fixing the boundaries, the thirteen
States were treated as constituting one country, England not being
interested in the question how that country should be divided among
the several States. Moreover, the boundaries established by
the treaty embraced a considerable amount of territory in the
Northwest to which no State had any separate claim, and which,
therefore, belonged to the united States; and the territory thus
acquired was enlarged from time to time by cessions from different
States, until at length it embraced the entire region within the
limits of the treaty, and west of Pennsylvania, Virginia, North
Carolina, and Georgia, as the western boundaries of those States
were afterwards established, with the exception of the territory now
constituting the States of Kentucky. Then followed in
succession the acquisitions from France, Spain, Texas, and Mexico.
Out of all the territory thus acquired, twenty-eight great States
have been from time to time carved; and yet there has never been a
time, since the date of the treaty before referred to, when the
United States had not a considerable amount of territory outside the
limits of the any State.
It is plain, therefore, that for one hundred and fifteen years
there has been more or less need of some word or term by which to
designate as well the territories of the United States as the States
themselves; and such word or term ought, moreover to have been
one signifying directly not territory, but sovereignty,
sovereignty
being the only thing that can be predicated alike of States and
territories. The same need was long since
felt by England as well as by other European countries, and the word
"empire" was adopted to satisfy it; and perhaps we should
have adopted the same word, if we had felt the need of a new word or
term more strongly. Two peculiarities have, however, hitherto
characterized the territory held by the United States outside the
limits of any State: first, such territory has been a virtual
wilderness; secondly, it has been looked upon merely as material out
of which new States were to be carved just as soon as there was
sufficient population to warrant the taking of such a step; and
hence the need of a single term which would embrace territories as
well as States has not been greatly felt. At all events, no
such term has been adopted; and hence "United States"
is the only term we have had to designate collectively either the
States alone, or the States and territories; and accordingly,
while it has always been used for the former of these two purposes,
it has also been used for the latter.
It is very important, however, to understand that the use
of the term "United States" to designate all territory
over which the United States is sovereign, is, like the similar use
of the word "empire" in England and other European
countries, purely conventional; and that it has, therefore, no legal
or constitutional significance. Indeed, this use of the
term has no connection whatever with the Constitution of the United
States, and the occasion for it would have been precisely the same
if the Articles of Confederation had remained in force to the
present day, assuming that, in other respects, our history had been
what is has been.
The conclusion, therefore, is that, while the term
"United States" has three meanings, only the first and
second of these are known to the Constitution; and that is
equivalent to saying that the Constitution of the United States as
such does not extend beyond the limits of the States which are
united by and under it, -- a proposition the truth of which will, it
is believed, be placed beyond doubt by an examination of the
instances in which the term "United States" is used in the
Constitution.
Its use first occurs in the preamble, in which it is used
twice. The first time it is plainly used in its original
sense, i.e., as the collective name of the States which should adopt
it. If the words had been "We, the people of the thirteen
United States respectively," the sense in which "United
States" was used would have been precisely the same. Nor
is there any doubt that it is used in the same sense at the end of
the preamble. Of course there is a very strong presumption
that when a constitution is made by a sovereign people, it is made
exclusively for the country inhabited by that people, and
exclusively for that people regarded as a body politic, and so
having perpetual succession; and the same is true, mutatis mutandis,
of a constitution made by the people of the several sovereign States
united together for that purpose. The preamble, however, does
not leave it to presumption to determine for what regions of country
and what people the Constitution of the United States was made; for
it expressly declares that its purposes and objects are, first, to
form a more perfect union (i.e., among the thirteen States, or as
many of them as shall adopt it). The follow four other objects
which, though in terms indefinite as to their territorial scope, are
by clear implication limited to the same States; and lastly its
purpose and object are declared to be to secure the blessings of
liberty to the people by whom it is ordained and established, and
their successors; for though the word is "posterity," it
is clearly not used with literal accuracy, but in the sense of
"successors." According to the preamble, therefore,
the Constitution is limited to the thirteen States which were united
under the Articles of Confederation; and it is by virtue of Art. 4,
sect. 3, subsect. I, and in spite of the preamble, that new States
have been admitted upon an equal footing with the original thirteen.
In the phrases, "Congress of the United States,"
"Senate of the United States," "President of the
United States," or "Vice president of the United
States," "office under the United States,"
"officers of the United States," "on the credit of
the United States," "securities and current coin of the
United States," "service of the United States,"
"government of the United States," "granted by the
United States," "Treasury of the United States,"
"Constitution of the United States," "army and navy
of the United States," "offences against the United
States," "judicial power of the United States,"
"laws of the United States," "controversies to which
the United States shall be a party," "treason against the
United States," "territory or other property belonging to
the United States," "claims of the United States,"
"the United States shall guarantee," "shall be valid
against the United States," "under the authority of the
United States," "court of the United States,"
"delegated to the United States," "public debt of the
United States," "insurrection or rebellion against the
United States," "shall not be denied or abridged by the
United States," "neither the United States nor any State
shall assume or pay," the term "United States is used in
its second sense [as the name of the sovereign.] It seems also
to be used in the same sense in the phrase "citizen of the
United States;" for it is only as a unit, a body politic, and a
sovereign, that the United States can have citizens, - not as the
collective name of forty-five States. In the phrase,
"common defence and general welfare of the United States,"
it seems to be used in its first or original sense, [the States
united under the Constitution] especially as "common defence"
and "general welfare" are taken from the preamble.
Certainly there is no pretence for saying it is used in its third
sense [territory over which the sovereignty of the United States
extends.] In the phrase "throughout the United
States," there is believed to be no doubt that it is used in
its original sense, though it may be claimed that it is used
in the third sense. That it is used in its original sense in
one instance is certain; and when the phrase is used in different
parts of the Constitution, a strong presumption arises that it is
always used in the same sense.
In the phrase, "resident within the United States,"
there can be no doubt that "United States" is used in its
original sense, the meaning being the same as if the words had been,
"resident in one or more of the United States."
The phrase, "one of the United States," affords a
good instance of the use of the "United States" in its
original sense.
In the phrase, "shall not receive any other emolument
from the United States or any one of them," it is certain that
"United States" is used in its second sense, though it is
also certain that the draughtsman supposed he was using it in its
original sense.
In the phrase, "all persons born or naturalized in the
United States," it seems clear that "United States"
is used in its original sense; for, first, it is either used in that
sense, or in its third sense, and as the latter is not a
constitutional or legal sense, there is a presumption that the term
is not used in that sense in an amendment of the Constitution;
secondly, it is declared that the same persons shall be citizens of
the State in which they reside, and this shows that the authors of
the amendment contemplated only States, for, if they would have
contemplated Territories as well, they would have said "citizen
of the State or Territory in which they reside"; thirdly, the
whole of the 14th Amendment had reference exclusively to the then
late war, and was designed to secure its results, - in particular to
secure to persons of African descent certain political rights, and
to take from the States respectively in they might reside the power
to deprive them of those rights. Moreover, the amendment
consists mainly of prohibitions, and these are all (with a single
exception which need not be mentioned) aimed exclusively against the
States. It was no part of the object of the amendment to
restrain the power of Congress (which its authors did not distrust),
and hence there was no practical reason for extending its operations
to the Territories, in which all the power resided in Congress.
What is the true meaning of the "United States" in the
phrase under consideration is certainly a question of great moment,
for on its answer depends the question whether all persons hereafter
born in any of our recently acquired islands will be by birth
citizens of the United States.
The foregoing comprise all the instances but one in which the
term "United States" is used either in the original
Constitution, or in any of its amendments. The other instance
is found in the 13th Amendment, - in which "United States"
is plainly used in its original sense, if the words which follow it
are to have any meaning; and yet, if the authors of that amendment
had understood the term "United States," when used in the
Constitution to express extent of territory, had its third meaning,
they would have omitted the words, "or any place subject to
their jurisdiction."
Harvard Law Review - Vol. XII, NO. 6 - January 25, 1899