There has never been any question as to the power of the United States to govern the territories possessed or acquired by it and not included within the limits of any of the individual States. The only question has been as to the source and extent of this power. This federal authority to govern has been derived from three sources: (1) The express power given to Congress " to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;" (2) The implied power to govern derived from the right to acquire territory; and (3) The power implied from the fact that the States admittedly not having the power, and the power having to exist somewhere, it must rest in the Federal Government.

All three of these sources of authority have been, at different times, recognized by the Supreme Court.

The earliest case is that of Sere v. Pitot,1 decided in 1810, with reference to the Territory of Orleans. In his opinion Marshall says: "The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and hold property. Could this position be contested, the Constitution of the United States declares that 'Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States.' Accordingly, we find Congress possessing and exercising the absolute and undisputed power of governing and legislating for the Territory of Orleans. Congress has given them a legislature, an executive, and a judiciary, with such powers as it has been their will to assign to those departments respectively."

1 6 Cr. 332; 3 L. ed. 240.

From this it will be seen that both the first and second sources of authority mentioned above are relied upon. Marshall himself is plainly of the opinion that the power to govern is a necessary incident to the power to acquire, but indicates that this view may possibly be contested.

In American Insurance Co. v. Canter,2 decided in 1828, with reference to the government of Florida, Marshall uses the following language: "In the meantime [until it is admitted as a State] Florida continues to be a Territory of the United States: governed by virtue of that clause which empowers Congress ' to make all needful rules and regulations, respecting the territory, or other property belonging to the United States.' " He adds, however: "Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. "Whichever may be the source whence the power is derived, the possession of it is unquestioned."

Here, then, all three of the possible sources of the authority of Congress to govern acquired territory are referred to, though the two latter are only suggested as possible sources.

In United States v. Gratiot,3 decided in 1840, it is declared: "The term territory as here used [Art. TV, Section III] is merely descriptive of one kind of property; and is equivalent to the word lands. And Congress has the same power 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."

In Cross v. Harrison,4 decided in 1853, with reference to territory acquired from Mexico, the court say: " The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting territory and other property belonging to the United States."

2 1 Pet. 511; 7 L. ed. 242.

3 14 Pet. 526: 10 L. ed. 573.

4 16 How. 164; 14 L, ed. 889.

In United States v. Guthrie,5 decided in 1854, Justice McLean. in a dissenting opinion declared: "The power under which the territorial governments are organized is a matter of some controversy. ... It seems to me that the power to govern a territory is a necessary consequence of the power given 'to make all needful rules and regulations respecting the territory or other property belonging to the United States.' No one doubts the power of Congress to sell the public lands beyond the limits of any State; and this renders necessary the organization of a government for the protection of the persons and property of the purchasers. This is an implied power, hut it necessarily results from the power to sell the public lands." 6