vided that a majority of Congress wishes to prevent them in the country at large.

§ 254. Prohibitions upon the exercise of Federal powers. In various parts of the Constitution, notably in Article I, section 9, and in the amendments there are various general prohibitions upon the Federal government. These prohibitions limit the exercise of all powers to which they are applicable. Thus, while the United States has, as against the states, full power over the postoffice and interstate commerce, yet these powers must be so exercised as not to violate these general prohibitions, like those forbidding unreasonable searches and seizures and the taking of property without due process of law in the Fourth and Fifth Amendments. The scope of these general prohibitions or guarantees is fully considered in Chapters V to X, above.

§ 255. Reserved powers of the states. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people” (12).

From the nature of the Federal government, being one of delegated powers, it is not likely that this provision places any additional constitutional limitation upon Federal action. Some authority, express or implied, must be found in the Constitution for all Federal activities. In a considerable number of instances acts of Congress have been held invalid because not falling fairly within any grant of the Constitution.

(12) Const., Amend. X.

Thus Congress has no power to forbid the sale in a state of dangerous illuminating oil; or to forbid the wrongful use, in the internal commerce of a state, of registered trade-marks; or to regulate the liability of railroad employees for accidents occurring in the internal commerce of a state; or to forbid persons in a state from harboring alien prostitutes, when not done in connection with their coming into the United States (13). In none of these cases was there anything to be found in the Constitution expressly or impliedly authorizing Congress to deal with the subject matter in question.

It thus appears that acts of Congress may be invalid either (a) because, although in the exercise of a granted power, they exercise it in a forbidden way; or (b) because they are not in the exercise of any granted power.

(13)

United States v. DeWitt, 9 Wall., 41; Trade Mark Cases, 100 U. S., 25; Howard v. Illinois Central Railroad, 207 U. S., 463; Keller v. United States, 213 U. S., 138.

CHAPTER XIII.

TERRITORIES, DEPENDENCIES, AND NEW STATES.

§ 256. Cession of western lands to United States. When the Constitution was adopted there had already been ceded to the United States a great expanse of territory between the Mississippi river and the western boundary of the thirteen original states. This territory had been previously claimed, to a various extent, by several of the states, and its cession to the general government was required as a condition to the accession of the smaller states to the Confederation. They felt that such great additions to the bulk of their larger neighbors would make relations between them upon anything like equal terms impossible; hence their insistence, particularly that of Maryland, that the larger states cede their claims to the western land to Congress.

'Article IV, section 3, of the Constitution contains provisions concerning this territory and the mode in which new states may be admitted to the Union. These provisions are quoted below in their proper places.

§ 257. Implied powers to annex territory. The Constitution contains no express grant of power to Congress to annex new territory to the country, and when the great Louisiana purchase was so suddenly made in 1803 there was much discussion of its constitutionality. Whatever

doubts were then felt have long since disappeared, and whenever our courts have referred to the matter they have declared that the power of the United States to make war and to make treaties included the power to acquire territory in either of these ways (1). The right of the United States to acquire territory by discovery and occupation has also been judicially affirmed (2). This is to be implied from the complete control over our (external relations given to Congress by the Constitution. The power over these relations is denied to the states and now rests in the United States, except is so far as the exercise of particular powers may be expressly prohibited.

Moreover, it is for the political departments of the government, the legislative and executive, to determine who is the sovereign of any territory whatever, and their decision is binding upon the courts. If these departments recognize certain territory as under the jurisdiction of the United States, the political rights of the United States there can not be discussed in American courts. The same is true if some other nation is thus recognized as entitled to jurisdiction. Recent decisions illustrating this have been rendered concerning the Panama Canal Zone and the Isle of Pines (3).

§ 258. Federal sovereignty in territories. The Constitution, Article IV, section 3, §2, provides:

(1) American Insurance Co. v. Canter, 1 Pet., 511, 542.

(3)

Wilson v. Shaw, 204 U. S., 24; Pearcy v. Stranahan, 205 U. S.,

"The 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; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state."

It was early held that the United States had full governmental power over the territories, implied from the power to acquire the territory itself, as well as expressly conferred in the clause above quoted (4). In the states, the national government is sovereign only in regard to subjects committed to it by the Constitution. On all other matters the state governments are sovereign. In the territories the United States unites the powers of both national and state governments. Congress may govern the territories by its own direct legislation, or it may delegate all or part of this legislative power to territorial legislatures, commissions, or even executives and judges (5).

§ 259. Application in territories of constitutional prohibitions. The only serious questions concerning Federal power over the territories have been as to the applicability there of certain constitutional limitations upon the powers of the United States. In various parts of the Constitution, particularly in the first ten amendments,

(4) American Insurance Co. v. Canter, 1 Pet. 511; Mormon Church v. United States, 136 U. S., 1.

(5) Dorr v. United States, 195 U. S., 138. A full history of the government of United States territories before 1871 is given in Clinton v. Englebrecht, 13 Wall., 434.