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tions of territory have been made by the United States, by the purchase of Louisiana and Florida, and by the cession of Georgia, which have greatly increased the contemplated number of States. The constitutionality of the two former acquisitions, though formerly much questioned, is now considered settled beyond any practical doubt.1

§ 1321. At the time when the preliminary measures were taken for the admission of the State of Missouri into the Union, an attempt was made to include a restriction, prohibiting the introduction of slavery into that State, as a condition of the admission. On that occasion the question was largely discussed, whether Congress possessed a constitutional authority to impose such a restriction, upon the ground that the prescribing of such a condition is inconsistent with the sovereignty of the State to be admitted, and its equality with the other States. The final result of the vote. which authorized the erection of that State seems to establish the rightful authority of Congress to impose such a restriction, although it was not then applied. In the act passed for this purpose, there is an express clause, that in all the territory ceded by France to the United States under the name of Louisiana, which lies north of 36° 30' N. lat., not included within the limits of the State of Missouri, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby for ever prohibited.2 An objec tion of a similar character was taken to the compact between Virginia and Kentucky, upon the ground that it was a restriction upon State sovereignty. But the Supreme Court had no hesitation in overruling it, considering it as opposed by the theory of all free governments, and especially of those which constitute the American Republic.3

1 See ante, § 1278 to § 1283; American Insurance Company v. Canter, 1 Peters's Sup. R. 511, 542.

2 Act 6 March, 1820, ch. 20. The same subject was immediately afterwards much discussed in the State legislatures; and opposite opinions were expressed by different States in the form of solemn resolutions.

3 Green v. Biddle, 8 Wheat. R. 1, 87, 88. [The prohibition of slavery in all territory north of 36° 30′ contained in the Missouri Act was unsatisfactory to many southern statesmen at the time, and became more and more so as the result proved the free States likely to acquire a decided preponderance in the Union. Finally, in the case of Dred Scott v. Sandford, 19 How. 395, decided in 1867, the majority of the Supreme Court declared its opinion that Congress had no constitutional power to

impose any such restriction. This declaration, however, was obiter, and not generally acquiesced in by the people of the northern States; and though the influence of Mr. Buchanan's administration was cast in its favor, it continued to be vigorously opposed until an administration succeeded, which had been chosen by those who opposed it, and which disregarded it altogether. During that administration came the civil war, and as the result of that the entire abolition of slavery, By the complete emancipation of slaves, the declaration in the Dred Scott case here alluded to became of little importance, except as a very significant event in the history of the times. The opinions delivered in that case were very able, and were ably reviewed by Mr. Thomas H. Benton, among others].

CHAPTER XXXI.

POWERS OF CONGRESS-TERRITORIAL GOVERNMENTS.

§ 1322. THE next clause of the same article is, "The 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; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." The proviso thus annexed to the power is certainly proper in itself, and was probably rendered necessary by the jealousies and questions concerning the western territory, which have been already alluded to under the preceding head.1 It was perhaps suggested by the clause in the ninth article of the confederation, which contained a proviso, "that no State shall be deprived of territory for the benefit of the United States."

§ 1323. The power itself was obviously proper, in order to escape from the constitutional objection already stated to the power of Congress over the territory ceded to the United States under the confederation. The clause was not in the original draft of the Constitution; but was added by the vote of ten States against one.2

§ 1324. As the general government possesses the right to acquire territory, either by conquest or by treaty, it would seem to follow, as an inevitable consequence, that it possesses the power to govern what it has so acquired. The territory does not, when so acquired, become entitled to self-government, and it is not subject to the jurisdiction of any State. It must, consequently, be under the dominion and jurisdiction of the Union, or it would be without any government at all. In cases of conquest, the usage of the

1 The Federalist, No. 43; ante, ch. 30.

2 Journal of Convention, p. 228, 310, 311, 365.

3 American Insurance Co. v. Canter, 1 Peters's Sup. R. 511, 542, 543; Id. 517, Mr. Justice Johnson's opinion. [Within a few years the doctrine has been maintained by some statesmen, notably by Mr. Cass and Mr. Douglass, that the people of the territories were entitled of right to govern themselves, and at the proper time to originate and organize State governments. This doctrine will be found very fully presented

world is, if a nation is not wholly subdued, to consider the conquered territory as merely held by military occupation, until its fate shall be determined by a treaty of peace. But during this intermediate period it is exclusively subject to the government of the conqueror. In cases of confirmation or cession by treaty, the acquisition becomes firm and stable; and the ceded territory becomes a part of the nation to which it is annexed, either on terms stipulated in the treaty, or on such as its new master shall impose. The relations of the inhabitants with each other do not change; but their relations with their former sovereign are dissolved; and new relations are created between them and their new sovereign. The act transferring the country transfers the allegiance of its inhabitants. But the general laws, not strictly political, remain as they were, until altered by the new sovereign. If the treaty stipulates that they shall enjoy the privileges, rights, and immunities of citizens of the United States, the treaty, as a part of the law of the land, becomes obligatory in these respects. Whether the same effects would result from the mere fact of their becoming inhabitants and citizens by the cession, without any express stipulation, may deserve inquiry, if the question should ever occur. But they do not participate in political power; nor can they share in the powers of the general government, until they become a State, and are admitted into the Union, as such. Until that period, the territory remains subject to be governed in such manner as Congress shall direct, under the clause of the Constitution now under consideration.1

§ 1325. No one has ever doubted the authority of Congress to erect territorial governments within the territory of the United States, under the general language of the clause, "to make all needful rules and regulations." 2 Indeed, with the ordinance of 1787 in the very view of the framers, as well as of the people of by Mr. Douglass, in "Harper's Magazine" for 1859, under the title, " Popular Sovereignty in the Territories." See Political Text Book for 1860, p. 132. See also, Cutts's Party Questions, and the Nicholson Letter in Smith's Life of Cass, 607, which presents the views of Mr. Cass].

1 American Insurance Company v. Canter, I Peters's Sup. R. 511, 542, 543.

2 [This was denied by Mr. Cass in his letter to Nicholson (1847), and by Mr. Douglass in his essay on Popular Sovereignty in "Harper's Magazine" (1859). Both these gentlemen insisted that the word territory in this clause of the Constitution was used to designate the unappropriated lands which the United States owned, and not the people who might become organized into political communities outside the limits of States].

the States, it is impossible to doubt that such a power was deemed indispensable to the purposes of the cessions made by the States. So that, notwithstanding the generality of the objection (already examined), that Congress have no power to erect corporations, and that in the convention the power was refused, we see that the very power is an incident to that of regulating the territory of the United States; that is, it is an appropriate means of carrying the power into effect. What shall be the form of government established in the territories depends exclusively upon the discretion of Congress. Having a right to erect a territorial government, they may confer on it such powers, legislative, judicial, and executive, as they may deem best. They may confer upon it general legislative powers, subject only to the laws and Constitution of the United States. If the power to create courts is given to the territorial legislature, those courts are to be deemed strictly territorial; and in no just sense constitutional courts, in which the judicial power conferred by the Constitution can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory of the United States.2 The power is not confined to the territory of the United States, but extends to "other property belonging to the United States;" so that it may be applied to the due regulation of all other personal and real property rightfully belonging to the United States. so it has been constantly understood and acted upon.

And

§ 1326. As if it were not possible to confer a single power upon the national government, which ought not to be a source of jealousy, the present has not been without objection. It has been suggested, that the sale and disposal of the western territory may become a source of such immense revenue to the national government, as to make it independent of and formidable to the people. To amass immense riches (it has been said) to defray the expenses of ambition, when occasion may prompt, without seeming to oppress the people, has uniformly been the policy of tyrants. Should such a policy creep into our government, and the sales of the public

1 See ante, § 1265, 1266; 4 Jefferson's Corresp. 523, 525; Hamilton on the Bank of U. S., 1 Hamilton's Works, 121, 127 to 131; Id. 135, 147, 151; Id. 114, 115; Act of Congress, 7th Aug. 1789, ch. 8.

2 American Insurance Company v. Canter, 1 Peters's Sup. R. 511, 546.

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