Bisbee daily review., 1905-12-24

| WI uo Iiiet IS tudl II would be un
 just to compel such junction without
 the assent of the people concerned
 In short. it is not unjust because the
 Constitution inhibits il. but the Con.
 Stitution inhibits it because, it is con fessedly unjust. And in proportion as We lose sight of and ignore this dis junction we are apt to depart from the
 correct theory and practice of just
 and wise government. T. doubtless will be argued at once that the consti tutional inhibition cited is not appli-
 cable to the Territories. that. in terms. it applies only tO States. That it does
 or does not apply to Territories by
 strict construction is not important.
 The broad doctrine that the just DOW CTS Of the government must be derived
 From the consent of the governed finds
 in this constitutional provision a spe- cif;c anpliCGtiOn-that is. that the separate people of two States shall lnot be subjected to a government t9
 which they do not separately consent. And that doctrine has no rational cr just limitation by any refined dis
 tincuOn between a State" and Ter.
 ritory" may import different of govern
 ment. but they are both distinciivcIy and essentially American. with all lha; term implies
 That under American institutions and in accord with American notions Iof government every power of govern
 ment resides primarily in the people will hardly be disputed; at any rate. ! it will not be here admitted to be a subject of argument. It was the pes ' ple of the United States that ordained and established the Federal Coustitu- { tiQn. and it was the people of the va rious States separately and without interference by other States or by the General Government, that framed and adopted the fundamental laws of those States. That there may be a differ ence between a State and the people inhabiting it-that they may constitute different entities-is not a matter of consideration here. If there be diff ference. and if they are different en. titles, the State in any event must be the creation of the people and existing only by their will II can not be con ceived that a State has any power or can exercise any function except the will of the people, in whom the ului- mate power is vested What a State" Is might be very interesting subject of academic discussion, but we do not see it's importance here In the par ucuiar clause of the Federal Conssi- tuition to which I have referred-that inhibiting the junction of two States the work State" in its singular or plural form is used six times. IL is not probable that the framers of the Constitution intended it to have as many meanings. or that it should have more than one. That in any of it's uses there the meaning of the word State should be taken to be q people or community inhabiting a defined ex- tent of territory over which the laws enacted by that people have validity and force would be sufficiently defipi- tive. at least for our purpose. seems obvious. That new States may be ad- mitted into the Union presupposes the existence of the State prior to admis Sion-that is. existence of a people inhabiting defined extent of territo- " over which the laws enacted by that people have validity and force.
 It is certain that Congress is not au- thorized to make or create a State. The State must have it's existence it's beginnings, it's creation. otherwise than by any act of Congress. and doubtless it is inherent in the people inhabiting the defined extent of terri. tory. What does a Territory lack of being a State? There are States that are not States of this Union. or of any union. The Constitution recuy- nIzes this fact repeatedly. as where it guarantees to "any State in this Uuion' republican form of govern ment, etc. The term is not peculiar to republics or unions of republics. What is there in the situation of a people inhabiting an organized Terri tory that withdraws them from the ap- plcauon of the fundamental American doctrine that the just powers Of gov ernment must be derived from the con- sent of the governed? Is it because Congress has full power to make all needful rules and regulations respect ing the territory and other property of the United States, or that the power of Congress to govern the Territories is incident to the power to acquire new territory by conquest. purchase. cession, or otherwise?
 But whatever the source of that pow CT so far at least as it relates to Ari- zona and New Mexico or the people of those Territories, it is purely temporal ". As a mere expedient, possibly from necessity, and until the people Of the Territory shall have attained numbers and wealth sufficient to take upon themselves an independent local government, the power to govern them IS assumed and exercised by the Fed eral Government. But the power of such temporary government certainly did not include the power to create or compel the creation of a permanent government against the will of the peO- pie of the Territory. It certainly will not be denied that there is no right guaranteed to the people of the United States or to the people of any State of the Union by the Federal Constitu- tion that is not by that same instru- ment guaranteed to the people of Ari- ZOna In every right incident t0 Amer