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 re

cent 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. 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.

§ 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

gions to be governed. If there be any difference in the extent of the attributes flowing from these two sources, it would seem that those proceeding from the latter are the greater and the more efficient. But to whichever of these origins the power to legislate for the new territories be referred, its existence is unquestioned, and the limitations upon it are the same.

That the territories are acquired and held for the whole nation, and that legislation in respect thereto should be for the common benefit, are truisms. To exactly the same extent, and in exactly the same manner, all the legislation of Congress should be for the general welfare of the United States. But of the particular means which tend to produce this general welfare, Congress is the only judge.

The position assumed by the court, that Congress, in the exercise of its legislative function for the territories, is bound by the restrictive clauses of the Bill of Rights, cannot be successfully attacked. Indeed, it can make no difference whether that body proceeds under the express grant of Article IV., or under its power implied in the capacity to acquire and hold additional soil; in either case it is equally hedged round and trammelled by the safeguards of individual rights that are contained in the first eight amendments. No American citizen in whose veins flow any drops of Saxon blood, and who inherits the results of the glorious struggle which his English forefathers maintained with power and prerogative, can deny or question this doctrine.

§ 499. While the doctrines thus far considered are either entirely correct, or entirely harmless, the concluding and substantial portion of this celebrated judgment has rendered the Dred Scott case a by-word and a hissing. It more than any thing else strengthened the convictions and intensified the feelings of the North against the institution of slavery; it shook the confidence of the country in the Supreme Court as the ultimate and authoritative interpreter of the Constitution, and n one day undid the good work which a steady devotion for more than sixty years to the cause of nationality had accomplished. I mean that portion of the judgment which pronounced property in slaves to be equal in character and degree to prop