(2) that the trial should be in the presence and under the superintendence of a judge having power to instruct then as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous. 11. (Patton v. United States, 281 U.S. 276, 288, Apr. 14, 1930.)

"As this court has often recognized, it was not the purpose or effect of § 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future, *** but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right." (Ex parte Quirin et al., 317 U.S. 1, 39, July 31, 1942.)

"The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, § 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article." (Ex parte Quirin et al., supra, at-39.)

"In the light of this long-continued and consistent interpretation we must conclude that § 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts. (Ex parte Quirin et al., supra, at 40.)

EDITORIAL NOTE

The statutory definition of treason is contained in the Criminal Code, act of Mar. 4, 1909, ch. 321, sec. 1, 35 Stat. 1088.

CASE NOTES

Nature of offense.- "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed." Ex parte Bollman, 4 Cr. 75, 126, Feb. Term, 1807.)

On

"It is not the intention of the court to say, that no individual can be guilty of this crime, who has not appeared in arms against his country. the contrary, if war be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war. (Ex parte Bollman, supra, at 126.)

"As a foreigner domiciled in the country, he was bound to obey all the laws of the United States not immediately relating to citizenship, and was equally amenable with citizens to the penalties prescribed for their infraction. He owed allegience to the government of the country so long as he resided within its limits, and can claim no exemption from

"The

Evidence required to convict for treason. constitutional requirement of two Witnesses to the same overt Act' forms no part of the definition of the offense. It relates solely to the proof required before a conviction can be had. The crime itself may be established in the same manner as any other crime, but before there can be a conviction, an act in its promotion must be established by two witnesses. In other words, the two-witness provision of the Constitution is an evidential prerequisite to conviction. Moreover the constitutional requirement, 'of two Witnesses to the same overt Act' appears to be an implied recognition that there may be more than one act committed in the execution of the offense. Otherwise, use of the word 'same' would seem to be superfluous." (United States v. Haupt, 136 F.2d 661, 665, June 29, 1943.)

EDITORIAL NOTE

Punishment of treason is provided for by the Criminal Code, act of Mar. 4, 1909, ch. 321, sec. 2, 35 Stat. 1088.

EDITORIAL NOTE

Sec. 905, R. S., which was derived from an act of May 26, 1790, ch. 11, 1 Stat. 122, and an act of Mar. 27, 1804, ch. 56, sec. 2, 2 Stat. 299, is based in part upon this section. In this connection, see Embry v. Palmer, 107 U.S. 3, 9-10, Oct. Term, 1882.

CASE NOTE

Purpose of clause. - "The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign

sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin." (Milwaukee County v. M. E. White Co., 296 U.S. 268, 276-277, Dec. 9, 1935.)

Section. 2.

CASE NOTES

I. POWER OF CONGRESS TO GOVERN TERRITORY.

In general.- "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.' cordingly, we find congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans." (Sere v. Pitot, 6 Cr. 332, 336-337, Feb. Term, 1810. See also American Ins. Co. v. Canter, 1 Pet. 511, 542, Jan. Term, 1828.)

Ac

The term territory, as here used, is merely descriptive of one kind of property; and is equivalent to the word lands. And congress has the same por over it as over any other property belonging to the United States; and this power is vested in Congress without limitation; and has been considered the foundation upon which the territorial governments rest." (United States v. Gratiot, 14 Pet. 526, 537, Jan. Term, 1840.)

"By that clause Art. IV, sec. 3, cl. 2, of the Constitution Congress is given power 'to dispose of

and make all needful rules and regulations respecting the territory or other property belonging to the United States.' Literally, the word 'territory, ' as there used, signifies property, since the language is not 'territory or property,' but 'territory or other property.' There thus arises an evident difference between the words 'the territory and 'a territory' of the United States. The former merely designates a particular part or parts of the earth's surface--the imperially extensive real estate holdings of the nation; the latter is a governmental subdivision which happened to be called a 'territory, ' but which quite as well could have been called a 'colony' or a 'province'. 'The Territories,' it was said in National Bank v. County of Yankton, 101 U.S. 129, 133, 'are but political subdivisions of the outlying dominion of the United States. "" (O'Donoghue v. United States, 289 U.S. 516, 537, May 29, 1933.)

"The people of the United States, as sovereign owners of the National Territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion, they are represented by the government of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms, or in the purposes and objects of the power itself; for it may well be admitted in respect to this, as to every power of

Society over its members, that it is not absolute and unlimited. But in ordaining government for the Territories, and the people who inhabit them, all the discretion which belongs to the legislative power is vested in Congress; and that extends, beyond all controversy, to determining by law, from time to time, the form of the local government in a particular Territory, and the qualification of those who shall administer it." (Murphy v. Ramsey, 114 U.S. 15, 44, Mar. 23, 1885.)

"But this power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations concerning the Territory and other property of the United States, as from the ownership of the country in which the Territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else." (United States v. Kagama, 118 U.S. 375, 380, May 10, 1886.)

"The power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the Territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the Territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory, and no power to govern it when acquired. The power to acquire territory, other than the territory northwest of the Ohio River, (which belonged to the United States at the adoption of the Constitution,) is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty and by cession is an incident of national sovereignty. The territory of Louisiana, when acquired from France, and the territories west of the Rocky Mountains, when acquired from Mexico, became the absolute property and domain of the United States, subject to such conditions as the government, in its diplomatic negotiations, had seen fit to accept relating to the rights of the people then inhabiting those territories. Having rightfully acquired said territories, the United States government was the only one which could impose laws upon them, and its sovereignty over them was complete. No State of the Union had any such right of sovereignty over them; no other country or government had any such right." (The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42-43, .May 19, 1890.)

"But whatever be the source of this power over territory, its uninterrupted exercise by Congress for a century, and the repeated declarations of this court, have settled the law that the right to acquire territory involves the right to govern and dispose of it. *** Indeed, it is scarcely too much to say that there has not been a session of Congress since the Territory of Louisiana was purchased, that that body has not enacted legislation based upon the assumed authority to govern and control the Territories. It is an authority which arises, not necessarily from the territorial clause of the Constitution, but from the necessities of the case, and from the inability of the States to act upon the subject. Under this power Congress may deal with territory acquired by treaty; may administer its government as it does that of the District of Columbia; it may organize a local territorial government; it may admit it as a State upon an equality with

other States; it may sell its public lands to individual citizens or may donate them as homesteads to actual settlers. In short, when once acquired by treaty, it belongs to the United States, and is subject to the disposition of Congress. (De Lima v. Bidwell, 182 U.S. 1, 196-197, May 27, 1901.)

Where the Constitution "has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith." (Downes v. Bidwell, 182 U.S. 244, 271, May 27, 1901.)

"We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in Article IV, § 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." (Dorr v. United States, 195 U.S. 138, 149, May 31, 1904. See also Rassmussen v. United States, 197 U.S. 516, Apr. 10, 1905.)

"The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words 'territory or other property.' It is true it has been referred to in some decisions as granting political and legislative control over the Territories as distinguished from the States of the Union. It is unnecessary in the present case to consider whether the language justifies this construction. Certainly we have no disposition to limit or qualify the expressions which have heretofore fallen from this court in respect thereto. But clearly it does not grant to Congress any legislative control over the States, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits." (Kansas v. Colorado, 206 U.S. 46, 89, May 13, 1907.)

"In view of the plenary power of Congress under the Constitution over the Territories of the United States, subject only to certain limitations and prohibitions not necessary to notice now, there can be no doubt that an act of Congress undertaking to regulate commerce in the District of Columbia and the territories of the United States would necessarily supersede the territorial law regulating the same subject." (El Paso & Northeastern Railway Company v. Gutierrez, 215 U.S. 87, 93, Nov. 15, 1909.)

The right of Congress to regulate the commerce of Puerto Rico is founded on the constitutional power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, and the power is in no direct sense dependent upon the commerce clause of the Constitution. (Sancho v. Bacardi Corporation of America, 109 F. 2d 57, Jan. 12, 1940.)

Administration of civil justice.- "It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to the other, but private property remains as before, and

with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power--and the latter is involved in the former--to the United States, the laws of the country in support of an established religion or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting the possession, use and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general, that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed." (Chicago, Rock Island & Pacific Railroad Company v. McGlinn, 114 U.S. 542, 546-547, May 4, 1885. See also: American Ins. Co. v. Canter, 1 Pet. 511, 542, Jan. Term, 1828; United States v. Percheman, 7 Pet. 51, 86-87, Jan. Term, 1833; Leitensdorfer v. Webb, 20 How. 176, 177, Dec. Term, 1857; Downes v. Bidwell, 182 U.S. 244, 298, May 27, 1901; Hawaii v. Mankichi, 190 U.S. 197, June 1, 1903; Vilas v. City of Manila, 220 U.S. 345, 357-358, Apr. 3, 1911; In re Chavez, 149 F. 73, 75, Nov. 5, 1906; Fordham v. Marrero, 273 F. 61, May 13, 1921; 25 Op. Atty. Gen. 59, 61, Sept. 22, 1903.)

II. PROTECTION OF GOVERNMENT PROPERTY.

In general.- "Not only does the Constitution (Art. IV, § 3, cl. 2) commit to Congress the power 'to dispose of and make all needful rules and regulations respecting' the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court have gone upon the theory that the power of Congress is exclusive and that only through its exercise in some form can rights in lands belonging to the United States be acquired. True, for many purposes a State has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them. Thus while the State may punish public offenses, such as murder or larceny, committed on such lands, and may tax private property, such as livestock, located thereon, it may not tax the lands themselves or invest others with any right whatever in them. *** From the earliest times Congress by its legislation, applicable alike in the States and Territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of rights of way over them for highways, railroads, canals, ditches, telegraph lines and the like. The States and the public have almost uniformly accepted this legislation as controlling, and in the instances where it has been questioned in this court its validity has been upheld and its supremacy over state enactments sustained. *** And so we are of opinion that the inclusion within a State of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them, even

though this may involve the exercise in some measure of what commonly is known as the police power." (Utah Power & Light Co. v. United States, 243 U.S. 389, 404-405, Mar. 19, 1917. See also: Camfield v. United States, 167 U.S. 518, May 24, 1897; Light v. United States, 220 U.S. 523, May 1, 1911; United States v. Alford, 274 U.S. 264, May 16, 1927; Hunt v. United States, 278 U.S. 96, Nov. 19, 1928.)

"It is beyond dispute that the United States has the power to exclude the public from the land and works of which it is the proprietor." (United States v. Moody, 164 F. 269, 272, Aug. 10, 1908.)

III. DISPOSITION OF GOVERNMENT PROPERTY.

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In general. "The occasion for the grant of power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States was the obvious necessity of making provision for the government of the vast territory acquired by the United States. The power to govern and to dispose of that territory was deemed to be indispensable to the purposes of the cessions made by the States. And yet it was a matter of grave concern because of the fear that the sale and disposal' might become 'a source of such immense revenue to the national government, to make it independent of and formidable to the people.' Story on the Constitution, §§ 1325, 1326. The grant was made in broad terms, and the power of regulation and disposition was not confirmed to territory, but extended to 'other property belonging to the United States, so that the power may be applied, as Story says, 'to the due regulation of all other personal and real property rightfully belonging to the United States.' And so, he adds, has been constantly understood and acted upon. Id. " (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 331, Feb. 17, 1936.)

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"It has been said, that the state of Illinois has a right to declare by law, that a title derived from the United States, which, by their laws, is only inchoate and imperfect, shall be deemed as perfect a title as if a patent had issued from the United States; and the construction of her own courts seems to give that effect to her statute. That state has an undoubted right to legislate as she may please, in regard to the remedies to be prosecuted in her courts, and to regulate the disposition of the property of her citizens, by descent, devise or alienation. But the property in question was a part of the public domain of the United States; congress is invested by the constitution with the power of disposing of, and making needful rules and regulations respecting it. Congress has declared, as we have said, by its legislation, that in such a case as this, a patent is necessary to complete the title. But in this case, no patent has issued; and therefore, by the laws of the United States the legal title has not passed, but remains in the United States. Now, if it were competent for a state legislature to say, that notwithstanding this, the title shall be deemed to have passed; the effect of this would be, not that congress had the power of disposing of the public land, and prescribing the rules and regulations concerning that disposition, but that Illinois possessed it. That would be to make the laws of Illinois paramount to those of congress, in relation to a subject confided by the constitution to congress only. And the practical result in this very case would be, by force of state legislation, to take from the United States their own land, against their own will, and against their own laws. We hold the true principle to be this, that whenever the question in any court, state or federal. is, whether a title to land which had once been the

property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to the state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States." (Wilcox v. Jackson, 13 Pet. 498, 516-517, Jan. Term, 1839.)

"The Constitution vests in Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' And this implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise.' (Wisconsin Central Railroad Co. v. Price County, 133 U.S. 496, 504, Mar. 3, 1890.)

"Authority to dispose of property constitutionally acquired by the United States is expressly granted to the Congress by § 3 of Article IV of the Constitution. This section provides: '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. To the extent that the power of disposition is thus expressly conferred, it is manifest that the Tenth Amendment is not applicable. And the Ninth Amendment (which petitioners also invoke) in insuring the maintenance of the rights retained by the people does not withdraw the rights which are expressly granted to the Federal Government." (Ashwander v. Tennessee Valley Authority, supra, at 330. See also Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 143-144, Jan. 30, 1939.)

"Power to release or otherwise dispose of the rights and property of the United States is lodged in the Congress by the Constitution. Art. IV, sec. 3, cl. 2. Subordinate officers of the United States are without that power, save only as it has been conferred upon them by Act of Congress or is to be implied from other powers so granted. (Royal Indemnity Co. v. United States, 313 U.S. 289, 294, May 26, 1941. See also Sinclair v. United States, 279 U.S. 263, 294, Apr. 8, 1929.)

"It follows, then, that property once acquired by the Government may not be sold, or title other wise disposed of, except under the authority of Congress, and in the manner provided by law, and this prohibition extends to any attempt to alienate a part of the property, or in general, in any manner to limit or restrict the full and exclusive ownership of the United States therein. * * * The United States has a right to dispose of realty acquired under the law as it has of personality, including patent rights; but it has been fully established that Congress is the only authority to be invoked, where there is, in fact, an alienation or what amounts to a transfer or surrender of Government property, by which the title, control or possession of the Government is lost, reduced, or abridged. This authority may be generally expressed, or may be specifically granted to permit the disposition in whole or in part of particular property rights. But until that power is given by Congress, expressly or impliedly,

the Executive is without power to act." (34 Op. Atty. Gen. 320, 322-323, Oct. 28, 1924. See also: 20 Op. Atty. Gen. 93, 96, May 8, 1891; 33 Op. Atty. Gen. 570, 572, Sept. 19, 1923; 34 Op. Atty. Gen. 42, 46, Dec. 3, 1923; 38 Op. Atty. Gen. 474, 475, May 22, 1936; File 3768-933:1S, July 30, 1925, C.M.O. 8-1925, p. 6; File NY9/N4-1(5) (310813), Sept. 22, 1931, C.M.0. 91931, p. 26. Compare: File KP94/N26-6(290812), Apr. 11, 1930, C.M.O. 4-1930, p. 17.)

"The constitution declares (article 4, § 3) 'that congress shall have power to dispose of, and make all needful rules and regulations respecting the territory, and other property belonging to the United States.' No public property can therefore be disposed of without the authority of law, either by an express act of congress for that purpose, or by giving the authority to some department of the government, or subordinate agent. (United States v. Nicoll, 27 Fed. Cas. 149, 150, No. 15,879, Oct. Term, 1826.)

"By Art. 4, Sec. 3, Clause 2, of the Constitution, Congress is given the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. This restriction upon the right of the executive or other departments to dispose of public property has. been jealously guarded; and the concern of Congress has been particularly manifested with reference to mineral lands of the government." (United States v. 16,572 Acres of Land, More or Less, 45 F. Supp. 23, 27, Jan. 9, 1942.)