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The general sovereignty existing in the government of the United States over its territories is founded on the Constitution, which declared (d) that Congress" should have power to dispose of and make all needful rules and regulations respecting the territories, or other property belonging to the United States." (e)

(d) Art. 4, sec. 3.

(e) It was held, in the case of The Canal Company v. Railroad Company, 4 Gill & Johns. 1, by the Court of Appeals in Maryland, that Congress acted in the government of the District of Columbia and other districts, not as a local legislature, but as the legislature of the Union; and in the case of The State v. New Orleans N. Company, 11 Martin, 38, 309, it was held, that the legislature of the Orleans territory could grant a charter binding on the future state of Louisiana. So, in the case of Williams v. The Bank of Michigan, 7 Wend. 539, the New York Court of Errors adjudged, that the power to incorporate a bank was within the scope of the general powers of territorial legislation, conferred upon the Michigan territory by the act of Congress of January 11th, 1805. The government of the United States, which can lawfully acquire territory by conquest or treaty, must, as an inevitable consequence, possess the power to govern it. The territories must be under the dominion and jurisdiction of the Union, or be without any government; for the territories do not, when acquired, become entitled to self government, and they are not subject to the jurisdiction of any state. They fall under the power given to Congress by the Constitution. This was the doctrine and decision of the Supreme Court in the case of The American Ins. Company v. Canter, 1 Peters, 511; and see, also, 3 Story's Comm. 193–198, 536. In a case submitted to the Supreme Judicial Court of Massachusetts, in 1841 (1 Met. 580), it was held, that in places ceded to the United States for navy yards, arsenals, &c. and where there is no other reservation of jurisdiction to the state than that of a right to serve civil and criminal process on such lands, the persons residing there were not entitled to the benefit of the common schools of the town, nor liable to any tax assessments, nor acquired any town settlement by a residence therein, nor any elective franchise, as inhabitants of the town.1

1 [In respect to the district containing the site of the national government, the grant of power to Congress is "to exercise exclusive legislation in all cases." In respect to the territories the grant is "to make all needful rules and regulations concerning the territory and other property belonging to the United States." The nature of, and the limitations upon the sovereignty of the Union over the territories and the people thereof have become the subjects of angry and dangerous political discussion. In the celebrated case of Dred Scott, 19 How. 393, a majority of the judges of the Supreme Court were of opinion that the last mentioned clause of the Constitution applies only to territory within the original states at the time the

VOL. I.

Constitution was adopted, and that it did not apply to future territory acquired by treaty or conquest from foreign nations. They were also of opinion that the power of Congress over such future territorial acquisitions was not unlimited, that the citizens of the states migrating to a territory were not to be regarded as colonists subject to absolute power in Congress, but as citizens of the United States, with all the rights of citizenship guaranteed by the Constitution, and that no legislation was constitutional which attempted to deprive a citizen of his property on his becoming a resident of a territory. The question arose under an act of Congress prohibiting slavery in the territory of Upper Louisiana, acquired from France.] [433]

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In the territories northwest of the river Ohio, and as separate territories were successively formed, Congress adopted and applied the principles of the ordinance of the confederation Congress of the date of the 13th of July, 1787. That ordinance was framed upon sound and enlightened maxims of civil jurisprudence. The organized territories belonging to the United States, and governed under the superintendence of Congress, at present consists of the territory of Columbia. The territories of Michigan and Arkansas were admitted into the Union as states, and upon an equality with the other states, by acts of Congress of June 15th, 1836, and January 26th, 1837; and the territories of Iowa and Florida were admitted into the Union as states, and upon an equality with the other states, by acts of Congress of March 3d, 1845, c. 48, and of December 28th, 1846, c. 1; and the territory of Wisconsin was admitted into the Union, on like equality, by acts of Congress of August 6th, 1846, c. 89, and March 3d, 1847, c. 53; and the republic of Texas, by a joint resolution of Congress of March 1st, 1845, and of December 29th, 1845.2

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*It would seem, from these various congressional regulations of the territories belonging to the United States, that Congress have supreme power in the government of them, depending on the exercise of their sound discretion. That discretion has hitherto been exercised in wisdom and good faith, and with an anxious regard for the security of the rights and privileges of the inhabitants, as defined and declared in the ordinance of July, 1787, and in the Constitution of the United States. "All admit," said Chief Justice Marshall, (a) "the constitutionality of a territorial government." But neither the District of Columbia, nor a territory, is a state, within the meaning of the Constitution, or entitled to claim the privileges secured to the members of the Union. This has been so adjudged by the Supreme Court. (b) Nor will a writ of error or appeal lie

(a) 4 Wheaton, 422.

(b) Hepburn v. Ellzey, 2 Cranch, 445; Corporation of New Orleans v. Winter, 1 Wheaton, 91; [ante, 326, n. 1.]

2 States since admitted are California, by act of Sept. 9, 1850; Minnesota, by act of May 11, 1858; Oregon, by act of Feb. 14, 1859; Kansas, by act of Jan. 29,

1861; West Virginia, by act of Dec. 31 1862; Nevada, by act of March 21, 1864. Nebraska, by act of Feb. 9, 1867.

from a territorial court to the Supreme Court, unless there be a special statute provision for the purpose. (c) If, therefore, the government of the United States should carry into execution the project of colonizing the great valley of the Columbia or Oregon River, to the west of the Rocky Mountains, it would afford a *subject of grave consideration, what would be *386 the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent states; and in the mean time, upon the doctrine taught by the acts of Congress, and even by the judicial decisions of the Supreme Court, the colonists would be in a state of the most complete subordination, and as dependent upon the will of Congress as the people of this country would have been upon the king and parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions; and the establishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression. (a)

(c) Clarke v. Bazadone, 1 Cranch, 212; United States v. More, 3 id. 159.

(a) Cicero in his Oration for the Manilian Law, c. 14, describes, in glowing colors, the oppressions and abuses committed by Roman magistrates, exercising civil and military power in the distant provinces.

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LECTURE XVIII.

OF THE CONCURRENT JURISDICTION OF THE STATE GOVERNMENTS.

THE question, how far the state governments have concurrent powers, either legislative or judicial, over cases within the jurisdiction of the government of the United States, has been much discussed. It will be my endeavor, in the course of the present lecture, to ascertain the just doctrine and settled distinctions applicable to this great and important constitutional subject.

1. Of Concurrent Powers of Legislation. It was observed in the Federalist, (a) that the state governments would clearly retain all those rights of sovereignty which they had before the adoption of the Constitution of the United States, and which were not by that Constitution exclusively delegated to the Union. The alienation of state power or sovereignty would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant.

In the judicial construction given from time to time to the Constitution, there is no very essential variation from the *388 * contemporary exposition which was here laid down by

the high authority of the Federalist. Judge Chase, in the case of Calder v. Bull, (a) declared that the state legislatures retained all the powers of legislation which were not expressly taken away by the Constitution of the United States; and he held, that no constructive powers could be exercised by the federal government. Subsequent judges have not expressed themselves quite so strongly in favor of state rights, and iu (a) No. 32. (a) 3 Dallas, 386.

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restriction of the powers of the national government. ges v. Crowninshield, (b) the Chief Justice of the United States. observed, that the powers of the states remained, after the adoption of the Constitution, what they were before, except so far as they had been abridged by that instrument. The mere grant of a power by Congress did not imply a prohibition on the states to exercise the same power. Thus, Congress are authorized to establish uniform laws on the subject of bankruptcy, but the states may pass bankrupt laws, provided there be no acts of Congress in force establishing a uniform law on that subject. (c) The states may legislate in the absence of congressional regulations. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states. But the concurrent power of legislation in the states did not extend to every case in which the exercise of it by the states had not been expressly prohibited. The correct principle was, that whenever the terms in which the power was granted to Congress, or the nature of the power *389 required that it should be exercised exclusively by Congress, the subject was as completely taken from the state legislatures, as if they had been expressly forbidden to act on it. In Houston v. Moore, (a) the same principles were laid down by Judge Washington, in delivering the opinion of the court. He observed, that the power of the state governments to legislate on the subject of the state militia, having existed prior to the formation of the Constitution, and not being prohibited by that instrument, it remained with the states, subordinate, nevertheless, to the paramount power of the general government, operating upon the same subject. If Congress, for instance, did not exercise the power of providing for organizing, arming, and disciplining the militia, it was competent for the states to do it; but as Congress had exercised its constitutional powers upon the subject of the militia as fully as was thought proper, the power of legisla(b) 4 Wheaton, 193.

*

(c) In Golden v. Prince, 3 Wash. 313, Judge Washington had previously held, in the Circuit Court of the United States for Pennsylvania, that Congress had the exclusive power to pass bankrupt laws; but this opinion was subsequently corrected, and qualified according to the doctrine in the text.

(a) 5 Wheaton, 1.

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