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chapter 47: The Territories - Viscount James Bryce, The American Commonwealth, vol. 1 [1888]

Edition used:

The American Commonwealth, with an Introduction by Gary L. McDowell, 2 vols (Indianapolis: Liberty Fund, 1995).

Part of: The American Commonwealth, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


chapter 47

The Territories

The national government has ever since its establishment possessed a vast area of land outside the limits of the several states, the larger part of which long remained wild, inhabited only by Indian tribes. When, with the westward advance of the whites, any particular region became sufficiently settled to require a regular government and be capable of some form of self-government, its boundaries were set, and it was erected into what is called a Territory. Most of the states admitted subsequently to the original thirteen were for a time Territories, and became states when they reached a certain population. The process went on till all the continental area of the United States was thus, after passing through the Territorial stage, distributed into states, and there now remains in that area only one region still called a Territory. This is Alaska. Outside the continent there is another Territory, viz., the Hawaiian Islands, of which I shall speak in a later chapter. Besides these two regions there is one part of the country which is not a state and has no self-governing institutions. The District of Columbia is a piece of land set apart to contain the city of Washington, which is the seat of the federal government. It is governed by three commissioners appointed by the president, and has no local legislature nor municipal government, the only legislative authority being Congress, in which it is not represented. Being well administered, it is held up by unfriendly critics of democracy as a model of the happy results of an enlightened despotism.

Alaska (area 590,884 square miles, population in 1910, 64,356, of whom half were Indians1 ) was under the direct authority of officers appointed by the president and of laws passed by Congress, until 1912, when Congress provided for a local legislature. Its population has grown with the discovery of valuable minerals, but it is hardly likely for a long time to come to receive complete self-governing institutions.

Although the Territorial form of government has now ceased on the North American continent, it seems to deserve some description, not only because it still exists in Hawaii, and may possibly be applied elsewhere in the dominions of the United States, but also because it was so long in force over a vast area that some knowledge of it is needed to understand the phases through which the country passed.

Until 1889, the Organized Territories, eight in number, formed a broad belt extending from Canada on the north to Mexico on the south, and separating the states of the Mississippi Valley from those of the Pacific slope. In that year Congress passed acts under which three of them, Dakota (which divided itself into North Dakota and South Dakota), Montana, and Washington became entitled to be admitted as states; while in 1890 two others (Idaho and Wyoming) were similarly permitted to become states. Then the Territory of Utah was admitted and became a state (1894). Finally in 1910 an act was passed providing for the admission of Arizona and New Mexico so soon as they should give themselves proper constitutions. The Territory of Oklahoma and the region called Indian Territory, united to form the state of Oklahoma, were admitted in 1907. The Territorial form of government had some interesting features, for it differed from that which exists in the several states, and was in some points more akin to that of the self-governing colonies of Great Britain. This form was in each Territory created by federal statutes, beginning with the great Ordinance for the Government of the Territory of the United States northwest of the River Ohio, passed by the Congress of the Confederation in 1787. Since that year different statutes, not always similar in their provisions, were enacted for creating particular Territories, under the general power conferred upon Congress by the federal Constitution (art. IV, § 3).

The fundamental law of every Territory, as of every state, is the federal Constitution; but whereas every state has also its own popularly enacted state constitution, the Territories are not regulated by any similar instruments, which for them are replaced by the federal statutes establishing their government and prescribing its form.

In a Territory, as in every state, the executive, legislative, and judicial departments were kept distinct. At first local legislative power was vested in the governor and the judges; it was afterwards conferred on an elective legislature. In the later form, the executive consisted of a governor appointed for four years by the president of the United States, with the consent of the Senate, and removable by the president, together with a secretary, treasurer, auditor, and usually also a superintendent of public instruction and a librarian. The governor commanded the militia, and had a veto upon the acts of the legislature, which, however, was (in most Territories) capable of being overriden by a two-thirds majority in each house. He was responsible to the federal government, and reported yearly to the president on the condition of the Territory, often making his report a sort of prospectus in which the advantages which his dominions offered to intending immigrants were fondly set forth. He also sent a message to the legislature at the beginning of each session. Important as was the post of governor, it was often bestowed as a mere piece of party patronage, with no great regard to the fitness of the appointee.

The Territorial legislature was composed of two houses, a council of twelve persons, and a house of representatives of twenty-four persons, elected by districts. The session was limited (by federal statutes) to sixty days, and the salary of a member fixed at $4 per day. The houses worked much like those in the states, doing the bulk of their business by standing committees, and frequently suspending their rules to run measures through with little or no debate. The electoral franchise was left to be fixed by Territorial statute, but federal statutes prescribed that every member should be resident in the district he represented. The sphere of legislation allowed to the legislature was wide, indeed practically as wide as that enjoyed by the legislature of a state, but subject to certain federal restrictions.2 It was subject also to the still more important right of Congress to annul or modify by its own statutes any Territorial act. In some Territories every act was directed to be submitted to Congress for its approval, and, if disapproved, to be of no effect; in others submission was not required. But in all Congress could exercise without stint its power to override the statutes passed by a Territorial legislature, as the British Parliament may override those of a self-governing colony. This power was not largely or often exercised. The most remarkable instance was furnished by Utah, where congressional legislation has had a hard fight in breaking down polygamy, finding it necessary even to impose a test oath upon voters.

The judiciary consisted of three or more judges of a supreme court, appointed for four years by the president, with the consent of the Senate, together with a U.S. district attorney and a U.S. marshal. The law administered was partly federal, all federal statutes being construed to take effect, where properly applicable, in the Territories, partly local, created in each Territory by its own statutes; and appeals, where the sum in dispute was above a certain value, went to the Supreme Federal Court. Although these courts were created by Congress in pursuance of its general sovereignty—they did not fall within the provisions of the Constitution for a federal judiciary—the Territorial legislature regulated their practice and procedure. The expenses of Territorial governments are borne by the federal treasury.

The Territories sent neither senators nor representatives to Congress, nor did they take part in presidential elections. The House of Representatives, under a statute, admitted a delegate from each of them to sit and speak, but of course not to vote, because the right of voting in Congress depends on the federal Constitution. The position of a citizen in a Territory therefore was, and is, a peculiar one.3 What may be called his private or passive citizenship is complete: he has all the immunities and benefits which any other American citizen enjoys. But the public or active side is wanting, so far as the national government is concerned, although complete for local purposes.4 He is in the position of an Australian subject of the British Crown, who has full British citizenship as respects private civil rights, and a share in the government of his own colony, but does not participate in the government of the British Empire at large, although personally eligible for any political office in the United Kingdom or any other part of the empire. It may seem inconsistent with principle that citizens should be taxed by a government in whose legislature they were not represented; but the practical objections to giving the full rights of states to these comparatively rude communities outweight any such theoretical difficulties. It must moreover be remembered that a Territory, which may be called an inchoate or rudimentary state, looks forward to becoming a complete state. When its population reached that of an average congressional district, its claim to be admitted as a state was strong, and in the absence of specific objections was granted. Congress, however, having absolute discretion in the matter, often used its discretion under the influence of partisan motives. Nevada was admitted to be a state when its population was only about 20,000, mainly for the sake of getting its vote for the Thirteenth Constitutional Amendment. After it rose to 62,266 it declined in 1890 to 45,000 but by 1910 had risen again to 81,875. Utah was long refused admission, because deemed, on account of the strength and peculiar institutions of the Mormon Church, not fit for that emancipation from the tutelage of Congress which its erection into a state would confer. When Congress resolved to turn a Territory into a state, it either (as happened in the cases of Idaho and Wyoming) passed an act accepting and ratifying a constitution already made for themselves by the people, and forthwith admitting the community as a state, or else passed what is called an Enabling Act, under which the inhabitants elected a constitutional convention, empowered to frame a draft constitution. When this constitution had been submitted to and accepted by the voters of the Territory, the act of Congress took effect; the Territory was transformed into a state, and proceeded to send its senators and representatives to Congress in the usual way. The enabling act might prescribe conditions to be fulfilled by the state constitution, but did not usually attempt to narrow the right to be enjoyed by the citizens of the newly-formed state of subsequently modifying that instrument in any way not inconsistent with the provisions of the federal Constitution. However, in the case of the Dakotas, Montana, Washington, Idaho, and Wyoming, the enabling act required the conventions to make “by ordinance irrevocable without the consent of the United States and the people of the said States” certain provisions, including one for perfect religious toleration and another for the maintenance of public schools free from sectarian control. This the six states did accordingly. But whether this requirement of the consent of Congress would be held binding if the people of the state should hereafter repeal the ordinance, quaere.

The arrangements above described worked well. Self-government was practically enjoyed by the Territories, despite the supreme authority of Congress, just as it is enjoyed by Canada, Australia, New Zealand, and South Africa despite the legal right of the British Parliament to legislate for every part of the king’s dominions. The want of a voice in Congress and presidential elections, and the fact that the governor was set over them by an external power, were not felt to be practical grievances, partly of course because these young communities were too small and too much absorbed in the work of developing the country to be keenly interested in national politics. Their local political life resembled that of the newer Western states. Both Democrats and Republicans had their regular party organizations, but the business of a Territorial legislature gave little opportunity for any real political controversies, though abundant opportunities for local jobbing.

Before we pass away from the Territories, it may be proper to say a few words regarding the character and probable future of those which have passed into states since 1889.

The largest, the most populous, and in every way the most advanced was Dakota (now the two states of North Dakota and South Dakota) which lies west of Minnesota, and south of the Canadian province of Manitoba. Its area is 147,700 square miles, greater than that of Prussia, and much greater than that of the United Kingdom (120,500 square miles). Its eastern and southern parts are becoming filled, though less rapidly now than was the case some years back, by an intelligent farming population, largely Scandinavian in blood. Possessing a vast area of undulating prairie land, well fitted for wheat crops, and at least the eastern part of which receives enough rain to make tillage easy without irrigation, the two Dakotas may be ultimately destined to stand among the wealthiest and most powerful commonwealths in the Union.

Montana has an enormus area (145,310 square miles), but much of it consists of bare mountains or thin and scarcely profitable forest. There are, however, so many rich valleys and such an abundance of ranching land, together with some fine woodland, not to speak of the valuable mines, that the still scanty population will soon be large in some districts. In others, however, it must long remain sparse. But here, as in the western parts of Dakota, the introduction of irrigation, and of the dry farming methods, promises to increase largely the area of cultivable soil.

Washington, situated on the shores of the Pacific between Oregon and British Columbia, had a stronger claim than Montana, and was fully fit for the rank of a self-governing state. That part of it which lies west of the Cascade Range has a moist and equable climate, resembling the climate of western England, though somewhat less variable. Many of the familiar genera and even species of British plants reappear on its hillsides. The forests are by far the finest which the United States possess, and will, though they are being sadly squandered, remain a source of wealth for a century or more to come. I have travelled through many miles of woodland where nearly every tree was over 250 feet high. The eastern half of the state, lying on the inland side of the mountains, is very much drier, and with greater extremes of heat and cold; but it is in parts extremely fertile. Washington, which had in 1870 a population of only 23,955, had, in 1890, 349,390 inhabitants, and in 1910, 1,141,990.

The states of Wyoming and Idaho, which lie to the south and southwest of Montana and are traversed by a number of lofty ranges belonging to the Rocky Mountain system, have comparatively little argicultural land, and even their wide pastoral tracts suffer somewhat from the dryness of the climate. There are, however, rich mineral deposits, especially in Idaho; there are in some places extensive forests, though of trees inferior in size to those of the Pacific coast. The population of these states will therefore continue to increase rapidly, especially when the fertile lands of Dakota have been filled up. But that population seemed likely to remain for some time to come less dense, and less stable in its character, than the Dakotan; so it was doubted whether their admission, which was mainly due to party political motives, was a prudent act at a time when Wyoming had only 60,589 inhabitants (census of 1890) and Idaho only 84,229.

Utah was, before the arrival of the Mormons in 1848, a desert, and indeed an arid desert, whose lower grounds were convered with that growth of alkaline plants which the Americans call sagebrush.5 The patient labour of the Saints, directed, at least during the pontificate of Brigham Young, by an able and vigilant autocracy, has transformed the tracts lying along the banks of streams into fertile grain, vegetable, and fruit farms. The water which descends from the mountains is turned over the level ground; the alkaline substances are soon washed out of the soil, and nothing more than irrigation is needed to produce excellent crops. After this process had advanced some way the discovery of rich silver mines drew in a swarm of Gentile colonists, and the non-Mormon population of some districts is now considerable. As Utah had, in 1890, 207,000 inhabitants, it would long before 1894 have been admitted as a state but for the desire of Congress to retain complete legislative control, and thereby to stamp out polygamy. That object seemed, however, at last likely to be attained, as at the latest Territorial election before 1894 the Gentiles proved to be in a majority. Although much of its surface is likely to remain barren and uninhabited, enough is fit for tillage and for dairy farming to give it a prospect of supporting a large settled population, and of late years many tracts have been rendered productive by irrigation.

Oklahoma (Indian: “beautiful lands”) was the name of the Territory which a statute of 1890 created out of the central and almost unoccupied parts of the Indian Territory, which lay west of Arkansas and south of Kansas. The rest of that Indian Territory was united with it to form the new state of Oklahoma admitted in 1907. It is a rolling prairie country, diversified by ranges of picturesque hills, the eastern and central parts of it fit for agriculture without irrigation, and producing cotton and tobacco as well as wheat and maize. The soil, though sandy in parts, is generally fertile. Besides coal, zinc, and other minerals, there are oil-bearing tracts of great value. The population, which in 1890 was 61,834, and had in 1910 reached 1,657,155,6 consists of recent immigrants, the northern counties having been occupied by men from Kansas, the southern by Texans and Arkansans, both of whom flooded it in a sudden wave, seeking to seize the land when it was thrown open to settlement. There are about 68,433 Indians, nearly all settled as landholding citizens, and each has a land allotment from the United States varying from forty acres to several thousand, according to value. The five civilized Indian nations (Cherokees, Creeks, Seminoles, Choctaws, and Chickasaws) have retained a certain measure of local organization and self-government, but they are also qualified voters. Most of them speak English, and most have settled down to agriculture or other industrial pursuits. All the Cherokees can read and write. There are also other Indian tribes, of whom the most numerous are the Osages. Of the 111,969 persons of colour some are descended from Negroes who before the Civil War were slaves of the Indians.

New Mexico, with an area larger than the United Kingdom (population in 1910, 327,301), is still largely peopled by Indo-Spanish Mexicans, who speak Spanish, and was, until 1910, deemed to be scarcely qualified for the self-government which organization as a state implies.7 Over a large part of the country water is still too scarce and the soil too hilly to make tillage possible. The same remark applies to Arizona, in the southern part of which the sides of the splendid mountain groups are barren, and the plains support only a scanty vegetation. There are however fine forests in the more northerly tracts, and in some places irrigation enables the soil to be cultivated. Both Territories are rich in minerals, but a mining population is not only apt to be disorderly, but is fluctuating, moving from camp to camp as richer deposits are discovered or old veins worked out. Ranching and mining are pursuits which do not draw in many permanent settlers. Still the time must come when the increase of population in the region immediately to the east of the Rocky Mountains will turn a fuller stream of immigration into these less promising regions, and bring under irrigation culture large tracts which are now not worth working. No one can yet say when that time will arrive. Many, including not a few of the more sober minded residents, thought that it was for the benefit of these two Territories themselves that they should remain content with that limited and qualified form of self-government which they had been enjoying. Congress has, however, thought otherwise; and now that statehood has been conferred upon them there remain no more Territories of the organized type on the American continent.

Europeans may ask why the theory of American democracy, which deems all citizens entitled to a voice in the national government, was not allowed to prevail at least so far as to give the inhabitants of the Territories the right of suffrage in congressional and presidential elections.

The question is a fair one. Were it possible under the federal Constitution to admit Territorial residents to active federal citizenship—i.e., to federal suffrage—admitted they would be. But the Union is a union of states. It knows no representatives in Congress, no electors for the presidency, except those chosen in states by state voters. The only means of granting federal suffrage to citizens in a Territory would be to turn the Territory into a state. To do this is to confer a power of self-government, guaranteed by the federal Constitution, for which the Territory may be still unfit, and therewith entitle this possibly small and rude community to send two senators to the federal Senate who have there as much weight as the two senators from New York with its nine millions of people. And a practical illustration of the evils to be feared has been afforded by the case of Nevada, a state whose inhabitants number only about 81,000, and which is really a group of mining camps, some of them already abandoned. Its population is obviously unworthy of the privilege of sending two men to the Senate, and did in fact allow itself to sink forthwith, for political purposes, into a sort of rotten borough which could be controlled or purchased by the leaders of a Silver Ring. It would evidently have been better to allow Nevada to remain in the condition of a Territory till a large settled and orderly community had occupied her surface, which is at present a parched and dismal desert, where the streams that descend from the eastern slope of the Sierra Nevada soon lose themselves in lakes or marshes.

On a review of the whole matter it may safely be said that the American scheme of Territorial government, though it suffered from the occasional incompetence of the governor, and is inconsistent with democratic theory, worked well in practice, and gave little ground for discontent to the inhabitants of the Territories themselves.

[1] The total number of Indians in the United States (excluding Alaska) was returned in 1890 at 248,253, and in 1912 at 327,348.

[2] Revised Statutes of U.S. of 1878, § 1854: “The legislative power of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. But no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed on the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents.”

§ 1889: “The legislative assemblies of the several Territories shall not grant private charters or especial privileges, but they may, by general incorporation acts, permit persons to associate themselves together” for various industrial and benevolent purposes specified. Other restrictions have been imposed by subsequent statutes.

[3] This applies to persons resident in Alaska and Hawaii.

[4] The Romans drew a somewhat similar distinction between the private rights of citizenship and the public rights, which included the suffrage and eligibility to office, but with them the distinction attached to the person; in the United States and the British Empire it is an affair of residence, and affects the suffrage only, not competence to fill an office. In the British general election of 1892 a distinguished Canadian statesman and a Parsi gentleman from Bombay were elected to the House of Commons, the former by an Irish and the latter by a London constituency, and other Canadians have sat in subsequent Parliaments.

[5] The so-called sagebrush plants are not species of what in England is called sage (Salvia) but mostly belong to the order Compositae, which is unusually strong in America. Something like a third of the total phaenogamous genera of the United States have been estimated to belong to it.

[6] A part of this large increase is of course due to the union of Oklahoma and Indian Territories in 1907.

[7] There were, in 1900, 13,000 and in 1910, 20,000 Indians, some of them settled and comparatively civilized. Of these, many inhabit the so-called “pueblos,” villages built on or excavated in rocks. They have preserved more traces of the primitive American culture than any other Indians in the United States.