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Govern

ment to be ral safe

under gen

§ 464. Congress has power, as we have seen, to make "all needful rules and regulations" for the territories. We are not to infer from this that congress is absolute in this relation. The rules it makes for the government of the territories must be (1) needful; Constitu and (2) in accordance with the general system of tion. safeguards which the constitution has established. The very fact that territories are infant states, to be admitted into the Union on maturity, shows that they are to be governed on the same general principles, as far as is applicable, as are states, just as infants mutatis mutandis are governed on the same general principles, so far as concerns safeguards, as are adults. In this sense we are to understand the remark of Marshall, C. J., that "in legislating for them (the territories) congress exercises the combined powers of the general and a state government." Upon this position was in part rested the ruling in a celebrated case which, on the eve of the late civil war, contributed materially to precipitate the rupture. In that case the following positions were laid down by the court: (1) The clause of the fourth article of the constitution, above quoted, applies exclusively to the territory surrendered by the states during the confederation, and consequently the ordinance of 1787, restricting slavery, applies only to such territory. (2) As to the other territory subsequently acquired by the United States, the legislation of congress must be in trust for the whole Union, and in subordination to the first eight amendments to the constitution, which forbid the deprivation of life, liberty, or property without due process of law, and establish in other respects restraints on governmental power. (3) As the constitution recognizes property in slaves, and as the territories are to be held in trust for the whole Union, no legislation of congress is constitutional which precludes the owners of slaves from carrying such property into the new territories.-The first of these conclusions was sustained by reasoning too highly artificial to be generally accepted, and may be regarded as no longer authoritative.

1 Am. Ins. Co. v. Canter, 1 Pet. 542.. 393. See supra, § 389, as to history of 2 Dred Scott v. Sandford, 19 How this case?

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The third is rendered nugatory by the thirteenth amendment to the constitution. The second establishes an important principle by which liberal institutions in the territories are permanently insured. As a general rule, however, the power of congress over the territories is limited only by the constitution, and in congress is as to the territories the residuum of Sovereignty.'

Form of govern

ment at discretion of congress.

§ 465. By the ordinance of 1787, the governor and judges appointed for the northwest territory, or a majority of them, were authorized to adopt for the territory such laws of the states then in the confederation as might be best for the territory, reporting these laws to congress from time to time, congress having the right to disapprove of them. As soon as there should be a population of five thousand free male inhabitants of full age in the territory, they were to be empowered to elect a territorial legislature. This legislature was to have ordinary legislative power subject to the supervision of congress. After the adoption of the Federal constitution, statutes directing the formation of territorial governments have, in most cases, authorized the election of territorial legislatures, reserving the appointment of governor and judges to the president and senate. In some cases the governor and judges have been invested with provisional legislative powers. But in all cases congress reserves a supervisory legislative authority.3

1 National Bank v Yankton, 101 U. S. 129; Reynolds v. U. S., 98 U. S. 145. In National Bank v. Yankton, 101 U. S. 133, Waite, C. J., said: "All territory within the jurisdiction of the United States, not included in any state, must necessarily be governed by or under the authority of congress. The territories are but political subdivisions of the outlying dominion of the United States. Their relations to

534

the general government are much the same as that which counties bear to the respective states, and congress may legislate for them, as a state does for its municipal organizations. The organic law of a territory takes the place of a constitution as the fundamental law of the local government.”

2 Miner's Bank v. Iowa, 12 How. 1; Vincennes v. Indiana, 14 How. 268. 3 See Reynolds v. U. S., 98 U. S. 145.

XIV. TREASON.

Treason

works no

forfeiture

except for

life.

§ 467. Treason,, as a criminal offence, is elsewhere discussed at large. Congress, it is provided, is empowered "to declare the punishment of treason; but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." By this provision there can be no forfeiture nor confiscation of property after conviction of treason, beyond the life of the person convicted. Confiscation, as a procedure of the civil government, can only be by act of congress and in subordination to the limitations of the constitution. As a war measure it can be exercised, as we have seen, as to the property of such insurgents as have been recognized as belligerents. But a loyal citizen, temporarily residing among such insurgents, is entitled to have granted to him a reasonable time to close up his business engagements and give up such residence."

XV. INCIDENTAL POWERS.

Congress may make

laws to carry into

effect

enumer

§ 468. After enumerating the powers above specified, this section of the constitution concludes with empowering congress" to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or office thereof." It has been argued that the effect of this clause is to strip the preceding enumerations of all their restrictive features, and to make the government of the United States practically absolute.

1 Whart. Crim. Law, 8th ed., §§ 1782 et seq.; see infra, § 471. As to confiscation of belligerent property, see supra, §§ 217, 455.

See Bigelow v. Forrest, 9 Wall. 339; U. S. v. Greathouse, 2 Abb. U. S. 364; Wallach v. Van Riswick, 92 U. S. 202; Pike v. Wassell, 94 U. S. 711; French v. Wade, 102 U. S. 132; see as

ated

powers.

to confiscation as a war measure, supra, § 217.

3 Supra, §§ 217, 455.

Alexander's Cotton, 2 Wall. 404; Flying Scud, 6 Wall. 263; Miller v. U. S., 11 Wall. 268; U. S. v. Padelford, 9 Wall. 531.

5 The William Bagaley, 5 Wall. 377; The Gray Jacket, 5 Wall. 342, 570. 6 Const., art. I., § 8, cl. 18.

But this is not the case. The clause before us simply recapitulates the common law rule that the grant of a power carries with it the right to use all the means necessary to carry such power into effect. Without the clause before us, the government of the United States would have been authorized to have done whatever was necessary and proper to carry into effect any one of the powers specifically given to it by the constitution. The power, for instance, to establish post-offices, would have enabled it to do whatever is usual and proper to make such post-offices effective; the power to regulate commerce includes the power to pass whatever laws are necessary to make such regulation effective. Without this clause, however, there might have been ground, before the adoption of the amendment reciting that rights not granted are reserved to the states or the people, to argue that the enumerated powers were merely samples of a general mass of jurisdiction thrown on the government of the United States. The clause before us effectually excludes this hypothesis. The power of general legislation given to congress is limited to the "carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department thereof." This provision, taken in connection with the amendment as to reserved powers above noticed, draws a fixed line of demarcation between the sovereignty of the United States and that of the particular states. No legislation by congress that is not necessary or proper to carry out an enumerated power is constitutional.

1 Hence, a statute prescribing penalties for offences against Federal elections is constitutional; Siebold, ex parte, 100 U. S. 371; Clarke, ex parte, 100 U. S. 399; U. S. v. Gale, 109 U. S. 65; supra, § 396.

As congress has authority under section 4, article 1, of the constitution to regulate Federal elections, section 5506 of the revised statutes, passed in pursuance of such authority, and 536

for that purpose, is constitutional and valid as to such elections, but has no application to state or municipal elections; United States v. Reese, 92 U. S. 214, distinguished. U. S. Cir. Ct., E. D. Virginia, April 12, 1883; U. S. v. Munford. As to " reconstruction" measures, see infra, §§ 584–593. 2 See Kilbourn v. Thompson, 103 U.S. 168.

XVI. BILLS OF ATTAINDer.

prohibited.

§ 471. We have next to consider the limitations imposed by the constitution on legislation, beginning with those Bills of which apply to congress as well as to state legisla- attainder tures. The first restriction of this class to be mentioned is that which prohibits bills of attainder. "Bill of attainder" is a procedure with which the framers of the constitution had cause to be familiar. Both parties, in the revolutionary struggle, had used bills of attainder to inflict sometimes gross injustice on their antagonists; and by this process had been brought to the block in England, not merely some of the most dangerous opponents of free institutions, but some of their most illustrious defenders. A bill of attainder is an act by which the legislature, unshackled, as it assumes in such cases to be by strict rules of law, declares an accused party to be guilty of an offence with which he is charged, and assigns to him what is deemed a suitable punishment. This method of procedure is prohibited by the constitution, and provisions are afterwards introduced granting all necessary safeguards in cases of prosecution for crime, and requiring that these prosecutions shall take place before an impartial jury. In England bills of attainder have been generally employed to inflict capital punishment upon individuals whose life parliament considers to be a public danger. In this country the term has a wider signification; and the supreme court of the United States has held that statutes prescribing that clergymen and lawyers shall not exercise their profession until they take oath that they have not been concerned in rebellion, are unconstitutional, as being virtually bills of attainder.1

of attainder were passed by the colonies during the American Revolution, see Story, Com. Const., § 1338; Sedgw.Stat.

1 Cummings v. Missouri, 4 Wall. 277; Garland, ex parte, 4 Wall. 333; Pierce v. Carskadon, 16 Wall. 234. As to confiscation, see supra, §§ 217, Law, 557; Jackson v. Catlin, 2 Johns. 455, 467. R. 248. See case of attainder and exe

As to the reckless way in which bills cution stated in 3 Elliott's Debates, 66. 537

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