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evidently nothing contradictory between the first of these provisions and the general restrictions of the Bill of Rights. In the second, the phrase "exclusive legislation" simply desig nates Congress as the only law-making body, without indicating in the least what laws may be made. The words, “in all cases whatsoever," are the only ones which even appear to limit the general mandates of the first eight amendments; and here the contradiction is in appearance merely. The "all cases whatsoever" must be construed to mean all cases in which any legislation is possible. In fact, this affirmative grant of general legislative power is limited by the same negative mandates which affect all the other affirmative grants to the national government. Whatever laws may be passed, —and any may be enacted that are not forbidden by the express or the implied negative restrictions of the Constitution, -- Congress is the sole body from which they must issue.

$493. These conclusions are strengthened by another consideration, drawn from implied limitations upon the power of Congress to legislate for the District of Columbia and for the territories. The whole scheme of the national government implies the existence of some organized states, and the sole action of these states in constructing and carrying on the government. Thus Congress is composed of Representatives and Senators from the states; the President and Vice-President are chosen by electors appointed by the states. It is universally conceded that Congress cannot, by virtue of any power of legislation over the District of Columbia or the territories, change this constituted order, and provide for Representatives, Senators, or Presidential electors from the district or the territories. If Congress be thus confessedly limited in the exercise of its exclusive legislative function, by implied restraints of the Constitution, much more is it limited by those restraints which are express, and which are directed to it in terms which contain no exception.

§ 494. The Territories. - That Congress possesses the power to legislate for the territories; that this power is exclusive: that it may be exercised directly, or delegated to local governments set up by Congress and retained under its supervision,

are propositions of constitutional construction settled by the uniform practice of the government and by the unvarying decisions of the Supreme Court. The contrary dogma, that the inhabitants of a territory have the entire control of their own local concerns, and may form their governments independently of the national legislature, never rose above the level of a mere party cry; it never obtained the assent of any department of the government, and has been distinctly repudiated by the Supreme Court.

The power of Congress to govern the territories being thus conceded to exist, to what source is it to be referred? Does it flow from the express clause which declares that "Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States"; or is it necessarily implied in, and a result of, the capacity to acquire and hold new territory by conquest or cession? I believe that this question is unimportant; that from whatever source the power is derived, it is ample to meet. all the necessities of the case; that the legislative attributes and functions, proceeding from either origin, are the same in kind and degree. That Congress has legislated in respect to the government of the territories, from the period immediately after the adoption of the Constitution to the present time; and that its legislation, however varying in form, has been adequate, are facts which cannot be disturbed. And in a recent case before the Supreme Court of the United States,1 it was expressly held that, "subject to the limitations expressly or by implication imposed by the Constitution, Congress has full and complete authority over a territory, and may directly legislate for the government thereof. It may declare a valid enactment of the territorial legislature void, or a void enactment valid, although it reserved in the organic act no such power."

§ 495. The subject was judicially examined for the first time in the American Insurance Company v. Canter.2 In 1823 Congress passed "an act for the establishment of a territorial government in Florida," which created a territorial 1 National Bank v. County of Yankton, 101 U. S. 129.

2 1 Pet. 511.

legislature with certain defined powers. This legislature erected a local court, and the validity of a judgment rendered by this tribunal was called in question. Chief Justice Marshall delivered the opinion, from which the following extract will be instructive: "The treaty is the law of the land and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition independent of stipulation. They do not however participate in political power; they do not share in the government till Florida shall become a state. In the mean time Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States. Perhaps the power of governing the 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." Again, he remarks: "In legislating for them [the territories] Congress exercises the combined powers of the general and of a state government."

§ 496. In the celebrated case of Dred Scott v. Sandford,2 the power of Congress to legislate for the territories was discussed at great length. The complicated facts of this case need not now be stated. It is enough to say that in the year 1820 Congress passed a statute which declares that slavery shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. The court considered itself called upon to determine whether Congress was authorized to pass this law. They pronounced the act

1 1 Pet. 542.

2 19 How. 393.

null and void. The judgment of the court and the opinions of the individual judges are too long to be quoted or condensed. My purpose will be attained by stating the course of argument pursued by Chief Justice Taney, in which all the judges concurred, except Justices McLean and Curtis who dissented from the reasoning and from the conclusions, and Mr. Justice Nelson, who expressed no opinion upon the validity of the law in question.

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§ 497. The following propositions are discussed and maintained in this judgment of the Chief Justice: The government has an unlimited authority to acquire territory by treaty or conquest, for the purpose of having the same formed into new states, but not for the purpose of holding the same as colonies. The power to govern such territory is then examined. By a very elaborate argument, which, it must be conceded, is extremely artificial, the conclusion is reached that the clause in Article IV. was intended to apply solely to the unoccupied lands which had belonged to the Crown prior to the Declaration of Independence, and which had been surrendered by the states during the Confederation. The ordinance of 1787, passed by the Confederate legislature, and reënacted by the national Congress, which established local governments for this territory, and prohibited slavery therein, could not, therefore, be taken as a precedent for similar legislation in reference to regions subsequently acquired. Ample power to legislate for the new territories does, however, exist; and it results from the necessities of the case, from the antecedent capacity to acquire and hold additional domain, and from the fact that Congress, as the agent of the whole nation, is the only body which can make laws for the government of communities not organized into states. As the districts acquired by treaty or conquest belong to the whole country, the legislation in respect to them must be for the common benefit, and cannot discriminate in favor of or against the inhabitants or institutions of any particular portion of the United States. In making laws for these territories, Congress is restrained by the negative clauses of the first eight amendments to the Constitution; it cannot deprive a person within their boundaries of life, liberty,

or property without due process of law, or do therein any other of the acts inhibited by the Bill of Rights. Property in slaves is recognized and protected by the Constitution; it is of as high a character as property in any other things; Congress cannot discriminate against it. A statute prohibiting slavery in the territories where all citizens have a common right to go and to carry the things owned by them, deprives such citizens of their property without due process of law, and is therefore forbidden by the Bill of Rights, and is void.

§ 498. Such is an outline of the judgment to which a majority of the court assented. I will very briefly examine its positions.

The declaration that the United States may acquire territory to be formed into states, but not to be indefinitely held as colonies, is a proposition clearly without any practical value; it is a rule which cannot by any possibility be enforced. Territory may be acquired, and must be governed by Congress. How long it shall remain in its condition of dependence, or when it shall be erected into a state, is a matter to be determined exclusively by the national legislature. Congress cannot be compelled to act; nor can the territories be clothed with the attributes of states without the action of Congress. "New states may be admitted by the Congress into this Union." This language is simply permissive. When the admission shall be effected, and how long it shall be delayed, are matters residing entirely within the Congressional discretion.

The very elaborate argument to show that the special clause of Article IV. applies only to the territory which belonged to the United States at the adoption of the Constitution, and that the power to govern the domain subsequently annexed must be referred to the general capacity to acquire and hold additional soil, seems at best to have been an unnecessary labor. The power to make all needful rules and regulations respecting the territory" cannot be any more comprehensive, cannot include any greater variety of particular measures, than the undefined power of legislation which is conceded to belong to Congress by virtue of the nation's proprietorship in the re

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