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federal domain, or over such part as such acts are by their terms intended to operate. The state government cannot gainsay such laws, nor resist their authority. All individuals within the territory to which such laws are applicable are subject to their constraining and restraining effect. In the same sense, the state laws are supreme within the state on all the subjects to which they constitutionally relate. The federal government cannot gainsay such laws nor resist their authority.1
Both federal and state laws in their proper domain of subjects are supreme laws of the land; the former as concerning the interests of all the states or the Union, and the latter as concerning the local affairs and internal interests of the particular state.
22. Both the federal and state laws belong to one system, and though emanating from different legislative bodies, they are not hostile nor foreign to each other. In each state, the laws of congress applicable thereto operate of their own vigor. All persons must take notice of them, and are presumed to know them; all branches of the state government take notice of them; they are within the judicial knowledge of the state courts.
The laws of one state are foreign to other states, and are so regarded in their jurisprudence even as administered in the federal courts. But the laws of each state are laws operating within the territorial sovereignty of the Union, and therefore, as to the federal courts, they are not foreign laws. All the federal courts take judicial notice of the public statutes of the states. In Owings v. Hull, a resort was had to the laws of Louisiana to determine the evidentiary value of a copy of a bill of sale on record in a notary's office. Mr. Justice Story, speaking for the court, said: "We are of opinion that the circuit court [sitting in the district of Maryland] was bound to take judicial notice of the laws of Louisiana. The circuit courts of the United States are created by congress, not for the pur
1 Ableman v. Booth, 21 How. 506, 516; Cohens v. Virginia, 6 Wheat. 380390; Gibbons v. Ogden, 9 Wheat. 1; Tennessee v. Davis, 100 U. S. 257; Ex parte Siebold, id. 371; Martin v.
Hunter, 1 Wheat. 304, 343; Donnell v. State, 48 Miss. 679; Cooley's Const. Lim. 7-27.
29 Pet. 624.
pose of administering the local law of a single state alone, but to administer the laws of all the states in the Union, in cases to which they respectively apply. The judicial power conferred on the general government by the constitution extends to many cases arising under the laws of the different states. And this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the states. That jurisprudence is then, in no just sense, a foreign jurisprudence, to be proved in the courts of the United States, by the ordinary modes of proof by which the laws of a foreign country are to be established; but it is to be judicially taken notice of in the same manner as the laws of the United States are taken notice of by these courts."
§ 23. Territorial laws. It is settled that congress has a plenary power of legislation over territory belonging to the United States, subject to the restrictions resulting from our republican system and the constitutional guaranties of personal rights. "All territory," says Waite, C. J., speaking for the supreme court," "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. They bear much the same relation to the general government that the counties do to the states, and congress may legislate for them as states do for their respective municipal organizations. The organic law of a territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial authorities; but congress is supreme, and, for the purposes of this department of its governmental authority, has all the
1 Pennington v. Gibson, 16 How. 80, 81; Railroad Company v. Bank of Ashland, 12 Wall. 229; Woodworth v. Spaffords, 2 McLean, 175; Cheever v. Wilson, 9 Wall. 121; Bennett v. Bennett, Deady, 309. In this last case Deady, J., said: "The national and state governments, although vested with distinct jurisdictions, are in no sense foreign to each other, but are subordinate and limited parts of one complete system of government. On
principle, then, in the courts of the United States, the judgment of a state court ought to be regarded as a domestic judgment—a judgment given within the territorial sovereignty of the United States, and provable in the ordinary way by the certificate of the custodian of the original - the clerk of the court."
2 Whart. Am. L. § 464.
3 First National Bank v. Yankton, 101 U. S. 129.
powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitions of the constitution. In the organic act of Dakota there was no express reservation of the power in congress to amend the acts of the territorial legislature; but none was necessary. Such a power is an incident of sovereignty, and continues until granted away. Congress may not only abrogate laws of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the territories, and all the departments of the territorial government. It may do for the territories what the people, under the constitution of the United States, may do for the states."
§ 24. The existence of this authority in congress was from the early days of the republic a foregone conclusion. It does not rest on any acknowledged specific grant in the constitution, nor did it await a discovery of any other power from which by general agreement it was to be implied. In American Insurance Co. v. Canter, Marshall, C. J., said: "Perhaps the power of governing a territory belonging to the United States which has not, by becoming a state, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned." And in another part of the opinion he said: "In legislating for them [the territories] congress exercises the combined powers of the general and of a state government." In the late case which has been referred to, the chief justice, delivering the opinion of the court, recognizes the same uncertainty of derivation, and repeats the announcement absolutely that the existence of the power is conceded.*
11 Pet. 511, 541.
2 Dred Scott v. Sandford, 19 How. 445; Benner v. Porter, 9 How. 242. 3 First National Bank v. Yankton, supra.
4 In Dred Scott v. Sandford, 19 How. 393, the learning on this point was exhausted. In the opinion of the court, delivered by Taney, C. J., it is said: "The counsel for the plaintiff
§ 25. Territories have but temporary governments — Are in tutelage to become states.-The federal constitution provides for the admission of new states. The provision is general and has been applied not only to the admission of new states in territory belonging to the government when the constitution was adopted, but to new states formed in newlyacquired territory. It has been decided to be contrary to the constitution to acquire territory with any other view than to the formation and admission of new states.2
has laid much stress upon that article in the constitution which confers on congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;' but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to or was claimed by the United States, and was within their boundaries as settled by the treaty with Great Britain; and can have no influence upon a territory afterwards acquired from a foreign government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more."
In another part of the opinion the authority of congress over territory subsequently acquired was thus discussed:
"And indeed the power exercised by congress to acquire territory and establish a government there, according to its own unlimited discretion, was viewed with great jealousy by the leading statesmen of the day. And in the Federalist (No. 38), written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated states, by the cession from Virginia, and the
establishment of a government there, as an exercise of power not warranted by the articles of confederation, and dangerous to the liberties of the people. And he urges the adoption of the constitution as a security and safeguard against such an exercise of power.
"We do not mean, however, to question the power of congress in this respect. 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 an 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." 1 Sec. 3, art. 4.
2 In the majority opinion in Dred Scott v. Sandford, already cited, the chief justice said: “There is certainly no power given by the constitution to
"The very fact," says Mr. Wharton, "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." Only a political change is produced by admission into the Union as a state. Congress then ceases to legislate for its people, or in regard to their internal and domestic concerns. They have thus been admitted to the exercise of the right of self-government. The territorial laws enacted by congress or the local legislature continue in force so far as they are consistent with the new condition of statehood and the provisions of the state constitution.2
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." He amplifies thus on another page: "The principle upon which our governments rest, and upon which alone they continue to exist, is the union of states, sovereign and independent, within their own limits in their internal and domestic concerns, and bound together as one people by a general government possessing certain enumerated and restricted powers, delegated to it by the
people of the several states, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the general government to obtain and hold colonies and dependent territories over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires it acquires for the benefit of the people of the several states who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted." See historical notes in opinion of Mr. Justice Campbell in same case, pp. 507-508. Whart. Am. L. §§ 462, 464.
1 Id. § 464.
2 Ante, § 19. See Benner v. Porter, 9 How. 234; Territory v. Lee, 2 Mont. 124; Am. Ins. Co. v. Canter, 1 Pet. 511.