territory which belonged to or was claimed by the United States when the constitution was adopted, but had no application to territory afterwards acquired. As to such latter territory the power of Congress to govern was, the court said, an incident of the power to acquire. In the case of National Bank vs. County of Yankton,1 the court declared that the power of Congress over annexed territory had always been conceded, but expressed no opinion as to the source of such power; while in the latest case, that of Mormon Church vs. United States,2 both the possible sources were recognized, and the power was said to be derived from the territorial clause in the constitution, and also to be incident to the right to acquire territory.

As to the scope of Congressional power over annexed territory, there is an irreconcilable difference between the views of the legislature and of the judiciary. From the cases cited it is clear that the supreme court has uniformly held that the power of Congress is subject to the limitations on its powers imposed by the constitution. But from the several territorial acts above cited it is equally clear that Congress has assumed to exercise unlimited power.

That the government of acquired territory between the date of the cession and that of legislation by Congress is vested in the president, is one of the points decided in the case of Cross vs. Harrison. In that case the court held that the military government of California had lawful authority to collect duties between the time at which it received notice of the treaty of annexation and the date of legislation by Congress. How chary the administration of that day was in exercising power is curiously shown by the following dispatch of Mr. Buchanan, Secretary of State under President Polk, dated October 7, 1848:

In the meantime, 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 2 136 U. S. 42.

1 101 U. S. 129.

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 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.

It will thus be seen that Mr. Jefferson doubted his power to annex territory, and Mr. Polk his power to govern it when annexed. In the affair of annexation they acted to this extent alike, that each did what he believed he had no right to do. They differed only in this, that the former assumed without hesitation a power which was doubtful, and the latter exercised hesitatingly a power which seems to be beyond question.

From the above review of the decisions of the supreme court it appears that the law applicable to annexed territory can scarcely be said to be settled in this country. The commonlaw rule seems to have been displaced without comment, and a new one adopted without discussion; but there is good ground for the contention that many of the opinions cited are rather dicta than decisions. It is possible that events will arise which will make the above change politically inconvenient, and render it desirable to treat the whole question as still open.

WASHINGTON, D.C.

JAMES LOWNDES.

THE CORPORATION AS A FORM OF COLONIAL

GOVERNMENT. III.

III. The Corporate Colony (continued).

CARDINAL fact in the early history of Anglo-American

institutions is the assumption of power by the actual settlers in the colonies.1 This is a phenomenon which to a marked degree distinguishes the colonies founded by the English from those of Dutch, French or Spanish origin. In the colonies of the last-named peoples no new political forms originated, and those which were established underwent little development. But among the English the capacity for political initiative was greater, while the control exercised by the home government was much less complete and repressive. Among the colonists of the better class, too, the spirit of enterprise and innovation was at least as strong as among the people of similar social position who remained at home. Hence, as soon as they were settled on the new continent, physical surroundings combined with national traditions and political theories to lure them into the paths of experiment and independent action. They at once began devising, both consciously and unconsciously, political systems adapted to their immediate and local needs. As a relatively high degree of social equality existed in the small communities which settled the colonies, there was in these systems a democratic element, which was much strengthened by the independent action made necessary by their remoteness from Europe. As will appear in the sequel, the tendency of the people to assume power was continuously operative in the American provinces, and its effect was gradually to democratize this form of colonial

1 Robertson was to some extent aware of this fact. — History of America, edition of 1822, IV, 268, 279, 286. It is prominent in Chalmers's treatment of the subject. — Annals, pp. 87, 151, 153, 157, 161, etc. It underlies Story's account of the New England Colonies. - Commentaries, 4th ed., I, 30 et seq.

government. The corporation, moreover, intimately connected as it was with the burgher class and the incipient democracy of the European cities, lent itself with peculiar ease to the development of this tendency. When skillfully manipulated by the leaders of the Massachusetts enterprise, the corporation became transformed, as we have seen, by easy and natural stages into a democratic commonwealth. A governmental form thus came into existence which was unlike any that existed in Europe or in the colonies of other nations. If we reflect upon this process, it appears to have been effected through a notable assumption of power. A use was made of the powers granted by the royal charter of 1629, of which neither precedent nor the language of the patent itself give any hint. As there were no provisions in the charter which prohibited the removal of the corporation into New England, so there were none which authorized it. That the result reached was as far as possible from anything intended by the grantor is proved not only by the whole career of Charles I, but also by his specific declaration in 1625 that he intended that his dominions, as well as the realm, should be organized upon the monarchical pattern.1

The course pursued by the Massachusetts patentees was, however, extra-legal rather than definitely illegal. It was made possible by the brief and indefinite terms in which the grant of powers was made, and by the omission from the patent of any express statement concerning the residence of the corporation. By the grant of governmental powers in that document, as in the other corporate charters, the grantees were authorized to prescribe forms and ceremonies of government for the plantation, to devise titles for all plantation officials, to set forth and limit the duties and powers of such officials and to prepare oaths to be administered to them, to order and regulate elections, to administer oaths, to impose such fines and penalties as did other corporations in England, and to do all things which were necessary for the peaceable and orderly government of the colony, provided that the ordinances for these purposes Rymer, Fœdera, XVIII, 72.

should not be inconsistent with the laws of England. Further, the officials of the company, acting under its orders and instructions, were to have full authority "to correct, punishe, pardon, governe and rule" the subjects of the crown on their way to and from New England and during their residence there.

This, with the exception of the provision concerning defense, is all the charter contains on the subject of governmental powers, so far as they were necessarily to affect the colonists. It will thus be seen that it was left to the company to determine how and under what forms the colony should be governed. The only specific provisions in the charter concerning forms of government refer to the organization of the company itself. Political rights were in no sense guaranteed to the colonists. It was not necessary that an election should ever be held in the colony, or that an assembly should come into existence there. The officials of the colony might all have been elected in the court of the company in England; and that would probably have been the practice, at least for an indefinite period, had the company continued resident in England. There was a wealth of meaning in the words "correct, punishe, pardon, governe and rule," and it was left to the company to determine what that meaning should be. The company began by assuming power to choose a place of residence, and through that fact, rather than because of any guarantees contained in the charter itself, the settlers came into the possession of political rights.

This initial act was followed, as has been shown, by further assumptions of power, which became evident at every stage in the evolution of the general court, and in the development of the judicial, financial and ecclesiastical systems of Massachusetts. The ignoring of the crown in all public acts, the form of enactment "(namely, It is ordered by this Court and the authority thereof)," the form of the freeman's oath and of the resident's oath, the infliction of capital punishment, the denial of the right of appeal, the attempt to substitute the Mosaic code in part for the laws of England-all these and many more facts which might be cited indicate the truth of the