What is the power over of Nebraska, to the fundamental principle, that there should be no 14 [2.] The Congress shall have power to dispose of the territory and make all needful rules and regulations respecting public prop- the territory or other property belonging to the Uni and other erty of the States? United ted States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. 471-473. What is "to 231. "TO DISPOSE OF."-In other words, to make sale of the dispose of"? lands, or to raise money from them. Scott v. Sandford, 19 How. 615; S. C. 2 Story's Const. 3 ed. p. 196. How limited? Define 138. 2S, 29, 129. 85, 98, 99, 100. 211. Define 222-228. The power of Congress to dispose of" the public lands, is not limited to making sales; they may be leased. United States v. Gratiot, 1 McLean, 454: 14 Pet. 526; 4 Opin. 487. But no property belonging to the United States can be disposed of except by the authority of an act of Congress. United States v. Nicol, 1 Paine, 646. "AND MAKE ALL NEEDFUL RULES AND REGULATIONS.". Needful." here may well be compared with "necessary and proper." in the 18th clause of Art. I. Sec. 8. And as Congress can only authorize dispositions by legislative enactments, so the "needful rules," must mean the appropriate legislation touching the subject-matter. See Justice Curtis in Scott v. Sandford, 19 How. 615; 2 Story's Const. 3d ed. p. 213. The words "RULES AND REGULATIONS," are usually employed in the Constitution in speaking of some particular specified power which it means to confer on the government, and rot, as we have seen, when granting general powers of legislation. As to make "rules" for the government and regulation of the land and naval forces; to "regulate commerce:" "to establish an uniform rule of naturalization:" "to coin money and regulate the value thereof." In all these, as in respect to the Territories, the words are used in a restricted sense. (Scott v. Sandiord, 19 How. 437.) 2 Story's Const 3d ed. pp. 196, 213. "RESPECTING THE TERRITORY."-TERRITORY. [Fr. Territoire "territory"? It. and Sp. Territorio; Lat. Territorium; from terra, land.] 1. The extent, or compass of land within the bounds, or belonging to the jurisdiction, of any State, city, or other body. 2. A tract of land belonging to or under the dominion of a prince or State, at a distance from the parent country or the seat of government, &c. Webster's Dic.. TERRITORY. Called by Pomponius in the Digests, the whole amount of the lands within the limits of any State (universitas aro rum intra fines cujusque civitatis). (Dig. 50, 16, 239, 8.) Burrill's Law Dic., TERRITORIUM; United States v. Bevans, 3 Wheat. 386; Justice Curtis in Scott v. Sindford, 19 How. 615; 2 Story's Const. p. 211. It applied only to the "property" which the States held in common at that time, and had no reference whatever to any "territory," or other property which the new sovereignty might after 472. ward itself acquire. Scott v. Sandford, 19 How. 615; S C. 2 Story's Const. 3d ed. p. 196. The term "territory," as here used, To what is is merely descriptive of one kind of property, and is equivalent to the word the word "lands." United States v. Gratiot, 14 Pet. 537. This equivalent? clause applies only to territory within the chartered limits of some one of the States, when they were colonies of Great Britain. It does not apply to territory acquired by the present federal government, by treaty or conquest, from a foreign nation. Scott v. Sandford. 19 How. 395; S. C., Story's Const. § 1318, 3d ed. p. 193. But see Justice Curtis' Opinion, 2 Story, 3d ed. p. 211. 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 territory then in existence, and then known or claimed as the territory of the United States. Scott v. Sandford, 19 How. 436; S. C. 2 Story's Const. 3d ed. p. 196. sult from 233. The power of governing a territory belonging to the United Does the States, which has not, by becoming a State, acquired the means of power to self-government, has been said to result necessarily from the facts govern rethat it is not within the jurisdiction of any particular State, and the power to is within the power and jurisdiction of the United States. The acquire? power to govern seems to be the inevitable consequence of the right to acquire territory. American Insurance Co. v. Canter, 1 Pet. 542-3; United States v. Gratiot, 14 Id. 537; Cross v. Harrison. 16 How. 194; Whiting, 331. Congress has the constitutional power to pass laws punishing Indians (within their territory) for crimes and offenses committed against the United States. The Indian tribes are not so far independent nations as to be exempt from this kind of legislation. United States v. Cha-to-kah-na-pesha, Hemp. 27. The United States, under the present Constitution, cannot acquire territory to be held as a colony, to be governed at its will and pleasure. But it may acquire territory which, at the time, has not the population that fits it to become a State, and may govern it as a territory until it has population which, in the judgment of Congress, entitles it to be admitted as a State of the Union. During the time it remains a territory, Congress 220–228. may legislate over it within the scope of its constitutional powers, in relation to citizens of the United States, and may establish a territorial government; and the form of this local government must be regulated by the discretion of Congress, but with power not exceeding those which Congress itself. by the Constitution, is authorized to exercise over citizens of the United States, in respect to their rights of person or rights of property. The territory thus acquired, is acquired by the people of the United States, for their common and equal benefit; and every citizen has a right to take with him into the territory any article of property, including his slaves, which the Constitution recognizes as property, and pledges the federal government for its protection. Scott v. Sandford, 19 How. 395. The country dedicated to Indian purposes still re- What is the mains a part of the territory of the United States, subject to its power over laws. The United States v. Rogers, 4 How. 567. And the power territory exists to punish crimes committed in that country, whether perpetrated by Indians or whites. Id. And see 6 Op. the Indian What is the general rule? It will be seen that the principle stated by Chief-Justice Taney, in United States v. Rogers, 4 How. 567, recognizes the plenary power of Congress to legislate for the Territories-that is, as stated in the American Insurance Co. v. Canter, 1 Pet. 542, all the powers which both Congress and the State legislatures combined, possess in the States. But in the Dred Scott Case he limits the power, and contines its exercise to the country ceded before the adoption of the Constitution. But in the case of the United States v. Rogers, 4 How. 567, the territory under discussion was part of that acquired from Louisiana. In reference to this territory, as well as that acquired from Georgia. Spain, Mexico, and Russia, there has been no distinction in regard to the character of legislation. Congress has exercised porer both as to crimes and civil and political rights. The organized territorial governments have been treated as inchoate States for some purposes. Slavery has been tolerated or prohibited, according to circumstances. And now that the agitating question of slavery is out of the way, the author would venture to suggest that the country will settle down upon the principle that organized "Territory" carries along the idea of power and jurisdiction; and that Congress has the right to organize governments there, "making rules" which shall not be inconsistent with the Constitution of the United States; and exercising all the power over the inhabitants, no more, no less, which may be exercised over the States; not exclusive legislation as in the District, and forts, and arsenals; but all the legislation which may be necessary 188, 221, 222. and proper to guarantee the principles of republican gov rument; and to insure the erection and admission of new States, with Define "all" ful"? those principles. The failure has been in observing, that an organized territorial government is for all purposes of municipal legislation, a State, and has been so recognized in many ways. And the supervision of Congress over such legislation is no greater than the national supervision over unconstitutional legislation by the States. The only difference is in the mode of revision and redress. See Scott v. Sandford, 19 How. 395-633; 2 Story's Const. pp. 205, 214-218. In Scott v. Sandford, Mr. Justice Curtis insisted that "ALL" and need meant all; that Congress alone could judge of what was "NEEDFUL." But the majority denied that "ALL" included the right to make a rule excluding slavery; or rather, it was denied that a cession of territory cedes the legislative jurisdiction for any other purpose than to dispose of the property in the land. See 19 How. pp. 615, 616; Story's Const. 3d ed. p. 214. The difference of opinion cannot be more strongly stated than in these words :"I construe this clause, as if it read: Congress shall have 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 of the jurisdiction 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." Justice Curtis, 2 Story's Const. 3d ed. p. 213. The opposite view was expressed in these words:- 2. The Congress shall have power to dispose of and make all needful rules and regulations concerning the property of the Con- Confederate federate States, including the lands thereof. States. Constitution 3. The Confederate States may acquire new territory, and Con- How did the gress shall have power to legislate and provide governments for Confederate the inhabitants of all territory belonging to the Confederate States, differ from lying without the limits of the several States, and may permit this? them. at such times and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress, and by the territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them, in any of the States or Territories of the Confederate States." Paschal's Annotated Digest. p. 93, Art. IV., Sec. III., Cl. 2, 3. This was making the Constitution precisely what this school contended the Dred Scott decision had settled that it was. The power to acquire and govern territory seems to grow out of the war power and to rest upon constitutional principles. Fieming v. Page, 9 How. 614; Cross v. Harrison, 16 How. 189. 232." OR OTHER PROPERTY BELONGING TO THE UNITED STATES." What is —“ PROPERTY” (Proprietas, proprius) is the most comprehensive property? word of dominion or ownership. See Webster's Dic., PROPERTY. It is the right to dispose of the substance of a thing in every legal way, to possess it, to use it, and to exclude every one else from interfering with it. (Mackeld Civil Law, 269, § 259; Bell's Dict.; Taylor's Civil Law, 476; 2 Bl. Com. 15.) Burrill's Law Dic., PROPERTY. And the same power of making needful rules respecting the territory is. in precisely the same language, applied to the other property belonging to the United States-associating the power over the territory in this respect with the power over movable or personal property-that is, the ships, arms, and munitions of war, which then belonged in common to the State sovereignties. And it will hardly be said, that this power, in relation to the last-mentioned objects, was deemed necessary to be thus specially given to the new government, in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service. (Scott v. Sandford, 19 How. 436.) 2 Story's Const. 3d ed. p. 196, and § 1324. 1325. By this conquest (the acquisition of New Mexico, in 1846), this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights, vested under the government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, excep. so far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulation which the conquering power, and occupying authority should ordain. Leitensdorfer v. Webb, 20 How. 336. 473. To what did the Saving clause refer? How is republican government "AND NOTHING IN THIS CONSTITUTION SHALL BE SO CONSTRUED AS TO PREJUDICE THE CLAIMS OF THE UNITED STATES OR OF ANY PARTICULAR STATE."-This member of the clause applied to the claims of North Carolina and Georgia, and could apply to nothing else. Scott v. Sandford. 19 How. 437; 2 Story's Const. 3d ed. p. 197. It was to exclude the conclusion that either party would surrender their rights. Id. and p. 212. SEC. IV. The United States shall guarantee to form of every State in this Union a republican form of govern&c. guaran- ment, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. teed! 474-476. Why "the 233. THE UNITED STATES."-This is the only instance in the Constitution where the government, by its corporate name, has covenanted for any duty. The "powers" of the government are vested in the respective departments thereof; and. as to the necessary and proper legislation, that is specially conferred upon Congress. Here the obligation is from the United States" to the "States:" but whether to be exercised by Congress or the 188, 275–279. President, is one of the questions which has grown out of the reconstruction measures. 14. 15. 165, 193. What de partment is to decide such politi cal questions? 195. One of the grounds of impeachment alleged against the President was the usurpation of this power. The Report on Impeachment of the President, 55. In the case of Luther v. Borden, 7 How. 42. ChiefJustice Taney said: "It rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government. Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." Quoted and approved. Ex parte Coupland, 26 Tex. 434; Federalist, No. 21, p. 112. "SHALL GUARANTEE."—[L. Lat. guarrantar, guarrantiare.]—To guarantee"? become responsible for; to warrant; to undertake for another, that, if that other does not do the thing. the party guaranteeing will himself do it. The obligation of a guaranty is essentially in the alternative. Britton, chap. 75: 3 Kent's Com. 121; Story on Contracts, 852; Fell on Guaranties. 1. The word seems to be essentially the same with warranty. Id. Burrill's Law Dic., 220-233, 226, GUARANTY, or GUARANTEE. For a technical and limited significa. 229-232. tion, see Parker v. Culvertson, 1 Wall. Jr. Ct. Ct. 149. 153. Define" to "TO EVERY STATE IN THIS UNION."-State here also means as well the States which agreed to the Constitution. as also the inchoate States or organized territories, and the new States, since admitted, or |