Let us pause at this point for a moment, and inquire whether it be just to those illustrious patriots and sages who formed the Constitution of the United States to assume that they intended to confer upon Congress that unlimited and arbitrary power over the people of the American territories, which they had resisted with their blood when claimed by the British Parliament over British colonies in America? Did they confer upon Congress the right to bind the people of the American territories in all cases whatsoever, after having fought the battles of the Revolution against a "Preamble" declaring the right of Parliament "to bind the colonies in all cases whatsoever ?"

If, as they contended before the Revolution, it was the birth-right of all Englishmen, inalienable when formed into political communities, to exercise exclusive power of legislation in their local Legislatures in respect to all things affecting their internal polity-slavery not excepted-did not the same right, after the Revolution, and by virtue of it, become the birth-right of all Americans, in like manner inalienable when organized into political communities-no matter by what name, whether colonies, territories, provinces, or new states?

Names often deceive persons in respect to the nature and substance of things. A single instance of this kind is to be found in that clause of the Constitution which says:

"Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States."

This being the only clause of the Constitution in which the word "territory" appears, that fact alone has doubtless led many persons to suppose that the right of Congress to establish temporary governments for the territories, in the sense in which the word is now used, must be derived from it, overlooking the important and controlling facts that at the time the Constitution was formed the word "territory" had never been used or understood to designate a political community or government of any kind in any law, compact, deed of cession, or public document; but had invariably been used either in its geographical sense to describe the superficial area of a State or district of country, as in the Virginia deed of cession of the "territory or tract of country" northwest of the river Ohio; or as meaning land in its character as property, in which latter sense it appears in the clause of the Constitution referred to, when providing for the disposition of the "territory or other property belonging to the United States." These facts, taking in connection with the kindred one that during the whole period of the confederation and the formation of the Constitution the temporary governments which we now call "territories," were invariably referred to in the deeds of cession, laws, compacts, plans of government, resolutions of Congress, public records, and authentic documents as "states," or 66 new states," conclusively show that the words "territory and other property" in the Constitution were used to designate the unappropriated lands and other property which the United States owned, and not the people who might become residents on those lands, and be organized into political communities after the United States had parted with their title.

It is from this clause of the Constitution alone that Congress derives the power to provide for the surveys and sale of the public lands and all other property belonging to the United States, not only in the territories, but also in the several states of the Union. But for this provision Congress would have no power to authorize the sale of the public lands, military sites, old ships, cannon, muskets, or other property, real or personal, which belong to the United States and are no longer needed for any public purpose. It refers exclusively to property in contradistinction to persons and communi

ties. It confers the same power "to make all needful rules and regulations" in the states as in the territories, and extends wherever there may be any land or other property belonging to the United States to be regulated or disposed of; but does not authorize Congress to control or interfere with the domestic institutions and internal polity of the people (either in the states or the territories) who may reside upon lands which the United States once owned. Such a power, had it been vested in Congress, would annihilate the sovereignty and freedom of the states as well as the great principle of self-gov. ernment in the territories, wherever the United States happen to own a portion of the public land within their respective limits, as, at present, in the States of Alabama, Florida, Mississippi, Louisiana, Arkansas, Missouri, Illinois, Indiana, Ohio, Michigan, Wisconsin, Iowa, Minnesota, California, and Oregon, and in the Territories of Washington, Nebraska, Kansas, Utah, and New Mexico. The idea is repugnant to the spirit and genius of our complex system of government; because it effectually blots out the dividing line between federal and local authority, which forms an essential barrier for the defense of the independence of the states and the liberties of the people against federal invasion. With one anomalous exception, all the powers conferred on Congress are federal, and not municipal, in their character-affecting the general welfare of the whole country without interfering with the internal polity of the people-and can be carried into effect by laws which apply alike to states and territories. The exception, being in derogation of one of the fundamental principles of our political system (because it authorizes the federal government to control the municipal affairs and internal polity of the people in certain specified, limited localities), was not left to vague inference or loose construction, nor expressed in dubious or equivocal language; but is found plainly written in that section of the Constitution which says:

"Congress shall have power to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."

No such power "to exercise exclusive legislation in all cases whatsoever," nor indeed any legislation in any case whatsoever, is conferred on Congress in respect to the municipal affairs and internal polity, either of the states or of the territories. On the contrary, after the Constitution had been finally adopted, with its federal power delegated, enumerated, and defined, in order to guard in all future time against any possible infringement of the reserved rights of the states, or of the people, an amendment was incorporated into the Constitution which marks the dividing line between federal and local authority so directly and indelibly that no lapse of time, no partisan prejudice, no sectional aggrandizement, no frenzied fanaticism can efface it. The amendment is in these words:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

This view of the subject is confirmed, if indeed any corroborative evidence is required, by reference to the proceedings and debates of the Federal Convention, as reported by Mr. Madison. On the 18th of August, after a series of resolutions had been adopted as the basis of the proposed Constitution and referred to the Committee of Detail for the purpose of being put in proper form, the record says:

"Mr. Madison submitted, in order to be referred to the Committee of De

tail, the following powers, as proper to be added to those of the general Legislature (Congress):

"To dispose of the unappropriated lands of the United States.

"To institute temporary governments for the new states arising therein. "To regulate affairs with the Indians, as well within as without the limits of the United States.

"To exercise exclusively legislative authority at the seat of the general government, and over a district around the same not exceeding――square miles, the consent of the Legislature of the state or states comprising the same being first obtained."

Here we find the original and rough draft of these several powers as they now exist, in their revised form, in the Constitution. The provision empowering Congress "to dispose of the unappropriated lands of the United States" was modified and enlarged so as to include "other property belonging to the United States," and to authorize Congress to "make all needful rules and regulations" for the preservation, management, and sale of the same.

The provision empowering Congress "to institute temporary governments for the new states arising in the unappropriated lands of the United States," taken in connection with the one empowering Congress "to exercise exclusively legislative authority at the seat of the general government, and over a district of country around the same," clearly shows the difference in the extent and nature of the powers intended to be conferred in the new states or territories on the one hand, and in the District of Columbia on the other. In the one case it was proposed to authorize Congress "to institute temporary governments for the new states," or territories, as they are now called, just as our Revolutionary fathers recognized the right of the British crown to institute local governments for the colonies, by issuing charters, under which the people of the colonies were "entitled (according to the Bill of Rights adopted by the Continental Congress) to a free and exclusive power of legislation, in their several Provincial Legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity;" while, in the other case, it was proposed to authorize Congress to exercise, exclusively, legislative authority over the municipal and internal polity of the people residing within the district which should be ceded for that purpose as the seat of the general government.

Each of these provisions was modified and perfected by the Committees of Detail and Revision, as will appear by comparing them with the corresponding clauses as finally incorporated into the Constitution. The provision to authorize Congress to institute temporary governments for the new states or territories, and to provide for their admission into the Union, appears in the Constitution in this form:

"New states may be admitted by the Congress into this Union."

The power to admit "new states," and "to make all laws which shall be necessary and proper" to that end, may fairly be construed to include the right to institute temporary governments for such new states or territories, the same as Great Britain could rightfully institute similar governments for the colonies; but certainly not to authorize Congress to legislate in respect to their municipal affairs and internal concerns, without violating that great fundamental principle in defense of which the battles of the Revolution were fought.

If judicial authority were deemed necessary to give force to principles so eminently just in themselves, and which form the basis of our entire political system, such authority may be found in the opinion of the Supreme Court of the United States, in the Dred Scott case. In that case the Court say:

"This brings us to examine by what provision of the Constitution the present Federal government, under its delegated and restricted powers, is authorized

to acquire territory outside of the original limits of the United States, and what powers may exercise therein over the person or property of a citizen of the United States, while it remains a territory, and until it shall be admitted as one of the States of the Union.

"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... "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."

Having determined the question that the power to acquire territory for the purpose of enlarging our territorial limits and increasing the number of states is included within the power to admit new states and conferred by the same clause of the Constitution, the Court proceeded to say that "the power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired." And again, referring to a former decision of the same Court in respect to the power of Congress to institute governments for the territories, the Court say:

"The power stands firmly on the latter alternative put by the Court-that is, as the inevitable consequence of the right to acquire territory."

The power to acquire territory, as well as the right, in the language of Mr. Madison, "to institute temporary governments for the new states arising therein" (or territorial governments, as they are now called), having been traced to that provision of the Constitution which provides for the admission of "new states," the Court proceed to consider the nature and extent of the power of Congress over the people of the territories:

"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.

Taking this rule to guide us, it may be safely assumed that citizens of the United States, who emigrate to a territory belonging to the people of the United States, can not be ruled as mere colonists, dependent upon the will of the general government, and to be governed by any laws it may think proper to impose. The territory being a part of the United States, the government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the federal government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved."

Hence, inasmuch as the Constitution has conferred on the Federal government no right to interfere with the property, domestic relations, police regulations, or internal polity of the people of the territories, it necessarily follows, under the authority of the Court, that Congress can rightfully exercise no such power over the people of the territories. For this reason alone,

the Supreme Court were authorized and compelled to pronounce the eighth section of the act approved March 6, 1820 (commonly called the Missouri Compromise), inoperative and void-there being no power delegated to Congress in the Constitution authorizing Congress to prohibit slavery in the territories.

In the course of the discussion of this question the Court gave an elaborate exposition of the structure, principles, and powers of the Federal government; showing that it possesses no powers except those which are delegated, enumerated, and defined in the Constitution; and that all other powers are either prohibited altogether or are reserved to the states, or to the people. In order to show that the prohibited as well as the delegated powers are enumerated and defined in the Constitution, the Court enumerated certain powers which can not be exercised either by Congress or by the territorial Legislatures, or by any other authority whatever, for the simple reason that they are forbidden by the Constitution.

Some persons, who have not examined critically the opinion of the Court in this respect, have been induced to believe that the slavery question was included in this class of prohibited powers, and that the Court had decided in the Dread Scott case that the territorial Legislature could not legislate in respect to slave property the same as all other property in the territories. A few extracts from the opinin of the Court will correct this error, and show clearly the class of powers to which the Court referred, as being forbidden alike to the Federal government, to the states, and to the territories. The Court say:

"A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the territory peaceably to assemble, and to petition the government for the redress of grievances.

"Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a territory without the consent of the owner in a time of peace; nor in time of war but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a territory who was convicted of treason, for a longer period than the life of the person convicted, nor take private property for public use without just compensation.

"The powers over persons and property, of which we speak, are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the states, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under territorial governments, as well as that covered by states.

"It is a total absence of power, everywhere within the dominion of the United States, and places the citizens of a territory, so far as these rights are concerned, on the same footing with citizens of the states, and guards them as firmly and plainly against any inroads which the general government might attempt, under the plea of implied or incidental powers. And if Congress itself can not do this-if it is beyond the powers conferred on the Federal government-it will be admitted, we presume, that it could not authorize a territorial government, established by its authority, to violate the provisions of the Constitution."

Nothing can be more certain than that the Court where here speaking only of forbidden powers, which were denied alike to Congress, to the state legisla