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of this living example by a brief reference to the difference between the Nationality which the new territory and its inhabitants have acquired, and that Citizenship which wields the political franchise and which alone gives a voice in the affairs of State.

When a territory is ceded by a treaty, it becomes part of the nation to which it is annexed. The people owe to it their allegiance; their relation to their ancient sovereign is dissolved; the same act which transfers the country transfers the allegiance of those who remain in it (Am. Ins. Co. v. Canter, 1 Pet., 542).

We have, then, the Spanish Territory and we have the allegiance of its inhabitants. In return for this allegiance the Government owes them protection. It is as yet

under no obligation to confer upon them the political franchise. This territory is, as Chief Justice Marshall said, in "a state of infancy advancing to manhood, looking forward to complete equality, as soon as that state of manhood shall be attained" (5 Wheat., 334).

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Territories acquired by Congress, whether by deed of cession from the original States or by treaty with a foreign country, are held with the object, as soon as their population and condition justify, of being admitted into the Union upon an equal footing with the original States in all respects" (Shively v. Bowlby, 152 U. S., 49).

Congress is the judge under the Constitution as to when it is reasonable and proper to admit these new accessions to the exercise of the franchise and to the dignity and power of Statehood. This distinction between Nationals, as persons owing allegiance and entitled to protection, and Citizens possessing political rights, admits of no discussion. It has been pointed out again and again, and the two most recent and notable cases will be sufficient for reference (Miner v. Happersett, 21 Wall., 162; Wong Kim Ark, 169 U. S., 167). And it is equally established that this first stage of the "national" is conferred by the mere cession and transfer of territory (Halleck, page 824; Phillimore I, page 449).

We are unable, therefore, to find any obstacle in the prescriptions of the Constitution to the complete and proper government of the new territories which we have acquired at the cost of so much blood and treasure, and it may, per

haps, be added, of so much conservative and invaluable tradition. It is earnestly to be hoped that this tradition will not be further shattered by the constant endeavor to set aside the Constitution in the administration of the affairs of these new citizens.

It is time to discard the idea that we owe no duties to the inhabitants of the newly acquired territory and that Congress is vested with absolute authority to dispose of their personal and civil rights as well as to determine their political status.

There are certain civil rights which not even a Treaty can vest Congress with the power of refusing, for, as we have already seen, the territory acquired must be governed in accordance with the principles of our Constitution, which no treaty can override.

This pretense that the Constitution does not protect anything outside the boundaries of the States is not new. It has repeatedly been endeavored to apply that rule to our organized territories, and as repeatedly has our Supreme Court rejected the claim. "The personal and civil rights of the inhabitants of the territories are secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government, state or national. Their political rights are franchises which they hold as privileges in the legislative discretion of the Congress of the United States" (Murphy v. Ramsey, 114 U. S., 44).

This subjection of Congress in dealing with personal and civil rights arises from "the general spirit of the Constitution from which Congress derives all its powers" (Mormon Church, 136 U. S., 67).

Even Mr. Webster contending against the slave power which claimed that the Constitution protected its property rights in the new Territories, and endeavoring to show that the Territories were not of right entitled to any of its immunities was forced to this admission: "I do not say that while we sit here to make laws for these territories, we are not bound by every one of the great principles which are intended as securities for public liberty" (Curtis' Life, II, 366).

As Mr. Carlisle has said, "the constitutional question is

the same here as it was there; but the contestants have changed places. Then the unlimited power of Congress over the territories was denied by the advocates of slavery, and now it is denied by the advocates of freedom. It is a strange transformation that has made the arguments in support of constitutional slavery in the territories the most powerful weapon in the hands of those who are contending for constitutional liberty in every part of the land where the civil authority or military power of the United States is exercised for the government of the people."

In order to support the restricted application of the Constitution now contended for, the fundamental character of the government established by the people when the Constitution was adopted must be weakened and distorted, and it must be assumed that such government was not intended to carry out the principles of the Declaration, and to create everywhere within its jurisdiction complete self-government, but rather that its purpose was the creation of a dual system, a constitutional self-government for the original States and a congressional extra constitutional government for every other part of the national domain.

This is to construe the Constitution as narrowly as a criminal statute, and to deny it that broad interpretation to which it is entitled as the greatest "enabling act" of modern times whose protective scope should always be amplified and never restricted. Protection of all personal and civil rights was its paramount purpose, and that purpose should be put into execution by such an interpretation as will always aid and never hamper it.

The misconception of the situation is due largely to the loose and general use of the misleading expression "extending the Constitution to outlying territory."

This is an inapt use of terms and it is equally a misuse of terms to speak of new peoples and new possessions coming under the Constitution. The Constitution has no direct relation with new peoples or new possessions. It has a direct relation only with the agencies of government which it creates and which it regulates, on the one side, and with the people who ordain it on the other. It endows certain functionaries of the Government with certain authority; it lays down rules and principles which must be

observed in the government which it establishes; it grants powers, privileges and immunities, and it enacts prohibitions and definite limitations which may not be overlooked or evaded by the agencies of the Government which it establishes. As Mr. Webster said, "while we sit here to make laws, we are bound by every one of the great principles which are intended as securities for public liberty."

That these powers are sufficient and these restrictions not an obstacle to government of the new territories is certain, unless it is desired to have unequal taxation, unequal burdens, unequal opportunities of development, and such a radically different application of the modern principles of freedom as would make our recent acquisitions subject and abject dependencies.

PAUL FULLER.

COLUMBIA LAW REVIEW.

Published monthly during the Academic Year by Columbia Law Students

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The election to the Board of Editors of the COLUMBIA LAW REVIEW of William E. Baird, Bridgham Curtis and John W. Parks is announced.

NOTES.

ABSTRACTION OF SUBSURFACE WATER FROM ANOTHER'S LAND.— The right to have the water flowing in a well-defined natural stream -whether on the surface, or not-continue so to flow has long been recognized as one of the natural incidents of the ownership of land. A riparian proprietor may lawfully take from the stream as much water as he may need on his land for agricultural, domestic, or manufacturing purposes not inconsistent with a similar right in the owners of the land above and below. That the law of water courses is not applicable to water percolating underground was decided in the leading case of Acton v. Blundell, 12 M. & W., 324 (1843). The Court declared that one may appropriate water coming naturally upon his land, if its course be invisible and undefined, not only to the same extent, and for the same purposes as he would be entitled to use that flowing in a stream, but, in addition may intercept or

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