making or other powers. Upon this point Taney declared: “There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State, and the citizens of the State, and the Federal Government. But no

power is given to acquire a Territory to be held and governed permanently in that character. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the government, it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the government, and not from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposition and sale of the lands- that is, the power of making needful rules and regulations respecting the Territory. And whatsoever construction may now be given to these words, every one, we think, must admit that they are not the words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new government might afterwards itself obtain by cession from a State, either for its seat of government, or for forts, magazines, arsenals, dockyards, and other needful buildings. . . . This view of the subject is confirmed by the manner in which the present Government of the United States dealt with the subject as soon as it came into existence."

the judicial; and whatever the political department of the government shall recognize as within the limits of the United States the judicial department is also bound to recognize, and to administer in it the laws of the United States, so far as they apply, and to maintain in the territory the authority and rights of the government; and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed."

With the exception of Justice Curtis, none of the other justices discussed at length the source of the power to acquire territory. Five of the other justices, however, concurred with the Chief Justice in holding the Act of 1820 unconstitutional, and, therefore, where they do not expressly say so, may be presumed to have agreed with him as to the source whence and the purpose for which foreign territory might be acquired, and as to the restriction of the authority granted by Congress by Article IV, Section III, to the territories possessed by the United States in 1787.

Justice Curtis in his dissenting opinion declared that whatever doubt there may have been as to the power of the United States to acquire additional territory, four precedents and several judicial sanctions had established its existence beyond doubt. The power to govern this acquired territory Curtis found in Article IV, Section III.10

9 Citing American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; and Sere v. Pitot, 6 Cr. 332; 3 L. ed. 240.

10 He said: "There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all Territory of

The arguments and opinions in the Dred Scott case revealed the difficulties involved in a recourse to Article IV, Section III, for the power to govern acquired territories, and, accordingly, since that date we find the Supreme Court emphasizing the doctrine that the power is implied in the right to acquire, as well as arguable from the fact that inasmuch as the States have no authority in the premises the Federal Government must have it. Thus in United States v. Kagama11 the court say: "The power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations conthe United States and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purpose of the instrument, as it is with its language, and I can have no hesitation in rejecting it. I construe this clause, therefore, as if it had read, Congress shall have the power to make all needful rules and regulations respecting those tracts of country out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions as well as of the jurisdictions as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it. It has been argued that the words 'rules and regulations' are not appropriate terms in which to convey authority to make laws for the government of the Territory. But it must be remembered that this is a grant of power to the Congress-that it is, therefore, necessarily a grant of power to legislate- and certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a legislature to make all needful rules and regulations respecting the Territory, is a power to pass all needful laws respecting it . . . Without government and social order there can be no property; for without law, its ownership, its use and the power of disposing of it cease to exist, in the sense in which those words are used and understood in all civilized States. Since, then, this power was manifestly conferred to enable the United States to dispose of its publie lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that government is indispensable to provide for those needs, and the power is, to make all needful rules and regulations respecting the Territory, I cannot doubt that this is a power to govern the inhabitants of the Territory, by such laws as Congress deems needful, until they obtain admission as States."

11 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

cerning the territory and other property of the United States, as from the ownership of the country in which its territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else." In the Late Corporation of the Church of Jesus Christ v. United States12 the court say: "The power of Congress over the Territories of the United States is general and plenary, arising from

and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property of the United States, it would be absurd to hold that the United States has the power to acquire territory, and no power to govern it when acquired." Here, though Section III of Article IV is indeed referred to, the power to acquire is clearly emphasized as the source of the power to govern. Finally in De Lima v. Bidwell,13 one of the so-called "Insular Cases," the court say: "It [the power to govern] is an authority which arises not necessarily from the territorial clause of the Constitution, but from the necessities of the case, and from the inability of the States to act on the subject."

12 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478. 13 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.

CHAPTER XXV.

THE EXTENT OF THE POWER OF CONGRESS TO GOVERN THE

TERRITORIES.

$158. Power to Govern Absolute.

Since the time when the necessity for the exercise of the an thority arose, there has been almost no question as to the absolute power of Congress to determine the form of political and administrative control to be erected over the Territories, and to fix the extent to which their inhabitants shall be admitted to a participation in their own government. Both by legislative practice and by judicial sanction, the principle has been from the first asserted that upon this matter the judgment of Congress is absolute. This, however, has not been construed to carry with it the absolute control of the federal legislature over the civil rights — the private rights of person and property of the inhabitants of the Territories. The extent of the power of Congress with respect to these will be discussed in the next chapter.

The first act for the government of Territories, the "Ordinance for the Government of the Territory of the United States Northwest of the Ohio River," implied the doctrine that to Congress is given the complete discretion as to the form of government to be supplied, and that the inhabitants of this region are not, except by congressional grant, entitled to local self-government. The act provides that "as soon as there shall be five thousand free male inhabitants, of full age, in the district" they shall receive authority to elect a representative legislative assembly, and that as soon "as may be consistent with the general interest," the territory is to be subdivided into States, which are to be admitted into the Union on an equal footing with the original States. Until, however, the Assembly is established, all governing power vested in a governor, a secretary and a court of three judges, all nominated by the President and appointed by and with the consent

is

1 By Act of August 7, 1789, the first Congress under the Constitution reenacted the ordinance of 1787, with the necessary change that the officers provided for by it should be nominated by the President and appointed by and with the advice and consent of the Senate.