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 confines 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 power 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 138, 221, 222. and proper to guarantee the principles of republican government; and to insure the erection and admission of new States, with 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. Define "all" ful"? In Scott v. Sandford, Mr. Justice Curtis insisted that " ALL and "necd- 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 Confederate States, including the lands thereof. 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. Page, 9 How. 614; Cross v. Harrison, 16 How. 189. Fleming v. 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, except 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. To what did the saving clause refer? How is republican government ་ LL 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 forin 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? 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 138, 275-279. President, is one of the questions which has grown out of the reconstruction measures. 14, 15, 165, 195. What de partment is to decide such politi cal questions? 195. Define "to 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. quarrantar, guarrantisare.]—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 signification, see Parker v. Culvertson, 1 Wall. Jr. Ct. Ct. 149, 153. 229-232. "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 hereafter to be admitted. A "State" (for the purpose of the judicial power) must be a member of the Union. It is not enough to be an organized political body within the limits of the Union. Scott v. Jones, 5 How. 343, 377; Cherokee Nation v. Georgia, 5 Pet. 18. But this is not so, as to the guaranty of a republican form of government. That is in favor of the people-the citizens-as well as the States. 205. form of "A REPUBLICAN FORM OF GOVERNMENT."-A government of the What is a people; it is usually put in opposition to a monarchical or aristo- republican cratic government. This clause supposes a government already governestablished, and this is the form of government the United States ment? have undertaken to guarantee. (Story's Const. § 1807.) Burrill's Law Dic., REPUBLICAN GOVERNMENT. This term has of course received no practical authoritative defi- To what nition. It supposes a pre-existing government of the form which is does the to be guaranteed. As long, therefore, as the existing republican extend? guaranty forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to establish What is the other republican forms, they have a right to do so, and to claim the restriction? federal guaranty for the latter. The only restriction imposed on them is, that they will not exchange republican for anti-republican constitutions; a restriction which it is presumed will hardly be considered as a grievance. (Federalist, No. 21; see Montesquieu, B. 9, chap. 1, 2; 1 Tuck. Black. App. 366, 367.) Story's Const. § 1817; Federalist, No. 43, pp. 214, 215. But this still leaves the term undefined, except so far as the description may be derived from the character of the State governments when they formed this Constitution. The restrictions which they had imposed upon 238-241. themselves, and to which they agreed when they made this Con- 245-275. stitution the supreme law; and the rights of the citizens secured 16-18. by the amendments, which constitute a Bill of Rights. The first guaranty is the elective principle. But upon whom the elective How is it franchise shall be conferred is not defined, and must be controlled affected by by circumstances. The right need not be universal; and must not be too restricted. The next is, the model, upon which all our governments are based, legislative, executive, and judicial. Cer- 16-18. tainly the guaranty is to enforce upon the States the restrictions imposed upon them in the federal Constitution; that is, the States 275–278. shall not exercise the prohibited powers, nor the powers which 139–143. have been granted to and exercised by Congress. And now, practically, we have the great examples, that where States deny the 71-138. obligation of the federal Constitution, and form a confederation What has among themselves upon the same model, although they may retain effect of the the same forms and constitutions of the State governments, yet the rebellion? United States have regarded it as an occasion for the exercise of this power; have declared such existing State governments as in 274-276, 279. fact not republican; have annulled them, and have required new Constitutions to be formed, based upon the organic change, which had destroyed slavery, and thus settled that it was no longer a republican institution. About the right to exercise this power, there has been no dispute. Unfortunately, the controversy has been, as to what department of the government of the United States the elective principle? been the 275-277. shall judge of the necessity and apply the remedy, and what shall be the extent of the organic changes in the States? If the practice and common understanding in the admission of new States, and the precedent of Luther v. Borden, 7 How. 1, are to control, then the question would seem to be settled in favor of the power of Congress to determine when a State government is republican in form and in practice.-[EDITOR. See President Lincoln's proclamation of 1st Jan., 1863, and the amnesty proclamations, and the proclamations of President Johnson, appointing provisional governors; his directions declaring what the State conventions shall do, and declaring civil government restored. See also his messages and veto messages upon the subject; the debates of the thirty-ninth and fortieth Congresses everywhere; the President's Message to the second session of the fortieth Congress, Dec. 3, 1867; the reports of the joint committee upon reconstruction ; the reconstruction acts; the majority and minority reports of the committee on judiciary upon the impeachment of the President, and the debates of the thirty-ninth and fortieth Congresses thereon. McPherson's Manual, and Paschal's Annotated Digest, note 1174. "I take it that the States would not be allowed to establish primogeniture; to abolish the trial by jury in all cases; to unite the Church and State; nor in any way to violate the great cardinal principles of liberty secured by the national Bill of Rights, and which the fourteenth amendment seeks to extend to the States. I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should principles of not be restrained by the Constitution or fundamental law of the a republican State. The nature and end of legislative power will limit the exform of gov- ercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the law does not require, nor refrain from doing that which the law permits. There are certain vital principles in our free republican governments, which will determine and overrule an apparent flagrant abuse of legislative power, such as to authorize manifest injustice by a positive law, or to take away that security for personal liberty or private property, for the protection 143, 156–161. whereof government was established." (Calder v. Bull, 3 Dall. 386.) Wynehamer v. The People, 13 N. Y. (3 Kern.), 391, 392. The cases of ex post facto law; impairing contracts; making a man accuse himself; taking A's property to give to B; punishing innocence as guilt, and violating property, cited. (Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 3 Cranch, 385; Dash v. Van Kleek, 7 Johns. 477; Taylor v. Porter, 4 Hill, 146; Goshen v. Stonington, 4 Conn. 225.) Wynehamer v. The People, 13 N. Y. 391, 392. See Wilkinson v. Leland, 2 Pet. 653; Harding v. Goodlet, 3 Yerg. 41; 2 Kent's Com. 11th ed. p. 339, and notes. What laws would infract the ernment? What is invasion? That State must not boast of its civilization, nor of its progress in the principles of civil liberty, where the legislature has power to provide that a man may be condemned unheard. Oakley v. Aspinwall, 4 Comstock, 522. 234. "AND SHALL PROTECT EACH OF THEM AGAINST INVASION."-Invasion has been defined in note 133. The means to be |