as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting territory and other property belonging to the United States."

In United States v. Guthrie, decided in 1854, Justice McLean in a dissenting opinion declared: "The power under which the territorial governments are organized is a matter of some controversy. . It seems to me that the power to govern a territory is a necessary consequence of the power given to make all needful rules and regulations respecting the territory or other property belonging to the United States.' No one doubts the power of Congress to sell the public lands beyond the limits of any State; and this renders necessary the organization of a government for the protection of the persons and property of the purchasers. This is an implied power, but it necessarily results from the power to sell the public lands." "

§ 157. Doctrines of the Dred Scott Case.

This review of decisions brings us chronologically to the Dred Scott case. Up to this time, it must be observed, that the chief reliance for the power to govern the territories had been the grant of authority contained in Article IV, Section III. It is further to be observed that recourse to this source of authority is subject to the possible limitation that it applies only to territories possessed by the United States at the time the Constitution was adopted, and, therefore, that it cannot be appealed to for authority to govern areas acquired since that time; also that, over such territories as it is applicable to, it does not grant to the Government general governing powers, but only such as are necessary and proper for disposing of and regulating the public lands as prop

5 17 How. 284; 15 L. ed. 102.

6 It is worthy of note, that, though McLean relies upon an express grant of power given Congress in Article IV, Section III, he construes this to be not a direct grant of governing power, but of a power to dispose of lands which carries with it the implied power to govern.

erty, and preparing them and their inhabitants for admission to the Union as States.

This was the position assumed by the majority of the court in the great case of Scott v. Sandford, decided in 1857.

This case we have already discussed with reference to its bearing upon citizenship in the United States. We have now to examine it in its bearing upon the status of territories.

This suit, it will be remembered, was one brought by Dred Scott, a negro, who had been owned and held as a slave in the State of Missouri, had been carried by his master first to the State of Illinois, where slavery did not exist, where he remained for two years; then to the Territory then known as Upper Louisiana, from which slavery had been excluded by the Missouri Compromise Act of 1820; and finally brought back to Missouri. Scott alleged that by being carried by his master voluntarily into the free State of Illinois and the free Territory he became a free man. He thereupon brought suit in the nature of an action of trespass against his master for restraining his liberty. The suit was brought in a federal court, the jurisdiction of the federal court being based upon a diversity of citizenship, Scott claiming to be a citizen of the State of Missouri, and Sandford, the defendant, being a citizen of the State of New York. The plea in abatement that Scott was not a citizen of a State within the constitutional sense, has already been considered in Chapter XVII.

A plea in bar was filed which set up that Scott was still a slave, and that, therefore, no legal injury had been done him by the defendant; that when he was taken into Illinois as a slave and held there as such, and brought back by his master tò Missouri, his status as fixed by the laws of Missouri was not changed; and that, as for his being carried into the free Territory of Upper Louisiana, Congress had had no constitutional power to exclude slavery therefrom, as it had attempted to do by the Act of 1820. It was in passing upon this last point that the court found it necessary to examine as to the constitutional power of the United States to acquire foreign territory and to govern it when acquired.

719 How. 393; 15 L. ed. 691.

The case was first argued in 1856 and at that time the majority of the court were of the opinion that it would not be necessary to consider the question whether or not Scott was a citizen, but that the case could be decided upon its merits, namely, that Scott, being originally a slave, his being carried into Illinois and Upper Louisiana did not affect his status after his return to Missouri; that, in other words, the law of Missouri as determined by the highest courts of that State should govern the Supreme Court in its disposition of the case. This decision, it will be observed, made it unnecessary for the court to pass upon either the question as to whether a free negro could become a citizen of a State in the constitutional sense of the term, or the question as to the power of Congress to prohibit slavery in the Territories. To Justice Nelson was assigned the preparation, upon this basis, of the opinion of the court, and the individual opinion which he finally read was the one prepared for this purpose. In this opinion he said: "In the view we have taken of the case, it will not be necessary to pass upon this question [of citizenship], and we shall therefore pass at once to an examination of the case on its merits." Justice Nelson does later say, however: "It is perhaps not unfit to notice in this connection that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the Act of Congress [of 1820], even within the Territory to which it relates, was not authorized by any power under the Constitution." But he goes on to say that whether it was valid or not, the act could have no operation or effect within the limits of the State of Missouri, and could not, therefore, affect the status of the plaintiff after his return thither.

A second argument of the case having been asked for and had, five justices agreed that the plea in abatement was not properly before the court and that, therefore, the case would have to be decided upon the merits.

With the judgment of the court as to the effect of the laws of Congress governing the Territory of Upper Louisiana and of the State of Illinois upon the status of Scott after his return to Missouri we are not here concerned. That which does concern

us is that six of the nine justices held that the power of Congress over the Territories was of such a limited character as to render unconstitutional an attempt to exclude slavery from them.

The Chief Justice, who was among those who took this position, argued as follows: "The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,' but in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the Treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign government. It was a special provision for a known and particular Territory, and to meet a present emergency, and nothing more. A brief summary of the history of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition." 8

8 After reviewing the circumstances leading up to the cession by the individual States to the Confederacy of their claims to western lands, and after adverting to the fact that the Confederacy had no constitutional power to accept the grant or to enact the Northwest Ordinance of 1787 for its government, he says: "This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common property, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of the cession. They were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this government was to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instru ment, and the objects it was intended to accomplish; and as this league of States would, upon the adoption of the new government, cease to have any power over the territory, and the ordinance they had agreed upon be incapable of execution, and a mere nullity, it was obvious that some provision was necessary to give the new government sufficient power to enable it to carry

It has often been stated that in this case Chief Justice Taney and all those Justices who agreed with him, held that the United States might increase its territory only by the admission of new States. This is not quite correct. These justices did, indeed, hold that foreign territory might be acquired only for the purpose of admitting new States; but its annexation of areas with this end in view they agreed might be effected by an exercise of the treaty into effect the objects for which it was ceded, and the compacts and agreements which the States had made each other in the exercise of their power of sovereignty. It was necessary that the lands should be sold to pay the war debt; that a government and system of jurisprudence should be maintained in it; to protect the citizens of the United States, who would migrate to the Territory, in their rights of person and of property. It was also necessary that the new government, about to be adopted, should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military stores, munitions, and ships of war, which were the common property of the States when acting in their independent characters as confederates, which neither the new government nor any one else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new government the property then held in common by the States, and to give to that government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire. The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses, when it speaks of the political power to be exercised in the government of the Territory, all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any Territory, nor of Territories, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to the territory of the United States—that is, to a Territory then in existence, and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing in other words, making sale of lands, or raising money