§ 487. This whole proceeding was national in its essential character; it assumed the existence of one nation, of whichthe states were subordinate parts; it resulted from a sentiment, somewhat undefined, but yet powerful, that the public domain belonged, not to some of the thirteen commonwealths, but to the one body politic which had revolted and declared itself independent. It is true that the process by which the result was reached was not entirely consistent with a perfected national theory; but it should be remembered that the whole organized government was a mass of glaring inconsistencies; that the people and the rulers were groping in the dark after the results of their positive acts. The nature of these results is plain, even though the path leading to them was somewhat tortuous. The Articles of Confederation recognized no United States except that "in Congress assembled," and gave to this Congress no power whatever to accept a cession of lands, or to hold and manage territory; but the existence of a nation back of this limited government, and of legislative powers in addition to those expressly conferred, was necessarily involved in the acts both of the states and of Congress.

§ 488. Upon the adoption of the Constitution, the United States was proprietor of the soil which had formerly belonged to the Crown, and over which the states had relinquished all claim. By the Treaty of Paris (1803) the French Republic ceded the territory of Louisiana. By the treaty of Washington (1819) Spain ceded the Floridas. Vast additions of soil were subsequently acquired from Mexico as the result of conquest. Within the present year the Russian possessions in America have been added to our domain. Although the Constitution is silent in respect to the acquisition of new territory, yet all departments of the government, and the people themselves, have assented to the construction which finds the power plainly conferred by the organic law. Indeed, none but those who would interpret the Constitution as though it were a penal statute, have ever doubted the authority of the nation, through some one of its governmental agents, to acquire new territory and add it to the domain of the United

and the President, as One of the most com

States. Congress may declare war, commander-in-chief, may wage war. mon results of war is conquest; and unless the wars of this country are to be carried on differently from those of other nations, and unless we are to be deprived of the advantages of success, the possibility of conquest must be considered as included within the capacity to declare and wage war. The President, with the advice and consent of two thirds of the Senate, may make treaties. No kinds of treaties are specified; no limitations are placed; the language is as broad as possible; indeed, these international compacts are expressly declared to be the supreme law of the land. No species of treaty is more common than that of cession; and unless we would interpolate a restriction which the language of the Constitution does not require, and thereby place the United States in a condition of inferiority to all other countries, we must admit that territory may be acquired by treaty. Not only have presidents and senates repeatedly adopted these conclusions; not only has Congress ratified them by its legislation; not only have the people gladly confirmed the acts of their political agents, but the Supreme Court has also added its authoritative sanction. In The American Insurance Co. v. Canter,1 the subject came before the court in such a manner as to require a formal decision. After the cession of Florida, Congress erected a territorial government therein, and conferred upon it certain legislative powers. The validity of particular acts of that local government was involved in the case. But a question lay still deeper: Had the United States the capacity to acquire new territory? If not, all the acts of Congress relating to Florida, and all the proceedings of the territorial legislature, were alike mere nullities. The court without difficulty answered the question in the affirmative. C. J. Marshall said: "The course which the argument has taken will require that, in deciding this question, the court should take into view the relation in which Florida stands to the United States. The Constitution confers absolutely on the government of the Union the powers of making war and of making

1 1 Peters' R. 511.

2 Ibid. 542.

treaties; consequently that government possesses the power of acquiring territory either by conquest or by treaty." The court, in the celebrated case of Dred Scott, which will be particularly referred to in the sequel, distinctly affirmed the same doctrine.

§ 489. As the United States became sole proprietor of unoccupied lands which had belonged to the British Crown prior to the Declaration of Independence, and subsequently became proprietor of other tracts ceded by different sovereigns, the ordinary rights of ownership must also vest in the nation. Among these are the powers of use and of disposition. The United States may dispose of the soil which it owns. Whether we refer the capacity to the express provision that "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; or whether we consider it as necessarily implied in, and flowing from, the power to acquire and hold the soil as owner, it is universally conceded that Congress may legislate in reference to the disposition of public lands; may, by general laws, prescribe a method to be followed in ordinary sales to individual purchasers; or may pass special statutes which operate as grants to determinate persons. Congress has adopted both of these modes, and its authority has never been judicially questioned. Under this power the system regulating the survey and sale of public lands has been organized, land offices established, and a code of regulations put in operation which affects private titles throughout a very large portion of the country. But Congress is not restricted to general or special statutes providing for the sale of the public domain. The legislative practice of aiding educational institutions and great schemes of internal improvement by gifts of land, has become settled as a part of the govermental policy. Land bounties to soldiers and their families have been repeatedly bestowed. Nor can there be any doubt that laws are within the competency of Congress, which provide for giving tracts to actual settlers, and which thus promote the general welfare by encouraging personal thrift and industry, a regular mode of life, and a stable society of landowners.

II. The Right of Government.

§ 490. The District of Columbia and other ceded places. Congress has express power "to exercise exclusive legislation in all cases whatsoever" over the District of Columbia, and over all places ceded by the states for forts, dockyards, etc. This language is most comprehensive. It clothes Congress, in respect to these districts of territory, with all the capacities which are conferred upon it as the national legislature, and with those which are granted to the states. Upon whatever subjects Congress may generally legislate in respect to the whole country, and upon whatever subjects a state may generally legislate in respect to its own community, upon these subjects Congress may generally legislate in respect to these particular districts. But the language of the provision, broad as it is, must be taken with some restrictions. The express negative limitations upon the government, and particularly those contained in the Bill of Rights, which are directed against all departments alike, must apply as well to Congress while it is legislating for these districts which are exclusively under its authority, as while it is legislating for those portions of the country which are organized into states, and which are partially under its authority. Again, the very organization of the government, and the provisions for choosing official persons, show that in respect to a large mass of political subjects, Congress cannot legislate for the District of Columbia. Thus, that district cannot send a delegate to the House of Representatives, or to the Senate, nor can it appoint presidential electors.

§ 491. These propositions were necessarily involved in the judgment of the Supreme Court rendered in Loughborough v. Blake.1 Congress had laid a direct tax upon the states, and had extended such tax to the District of Columbia. The suit was brought to test the validity of this statute. Chief Justice Marshall, who delivered the opinion of the court, observed: "The counsel who maintains the negative has contended that Congress must be considered in two distinct characters; in the

15 Wheaton's R. 317.

one character, as legislating for the states; in the other, as a local legislature for the district. In the latter character it is admitted the power of levying direct taxes may be exercised; but, it is contended, for district purposes only, in like manner as the legislature of a state may tax the people of a state for state purposes." Without examining into the soundness of this distinction, which he would evidently reject, the Chief Justice proceeds to establish the following propositions as the conclusions to which the court arrives: that the general power of Congress to lay and collect taxes, duties, imposts, and excises, extends to all places over which the government extends, to the District of Columbia, and to all other territories of the Union, as well as to the organized states; that direct taxes. may be apportioned among the territories and the District of Columbia, as well as among the several states; but that Congress is not bound to include the territories and the District within the operation of a law laying a direct tax. The court also held that the express power "to exercise exclusive jurisdiction in all cases whatsoever," within the District of Columbia, includes the power to tax. The reasoning which leads to these conclusions in relation to the function of taxing, must apply with equal cogency to the exercise of other legislative attributes by Congress.

§ 492. But is Congress absolutely omnipotent over these districts and territories? Is it, like the British Parliament, bound by no limitations save those which are self-imposed? This cannot be; nor does the language of the Constitution require a construction so much opposed to all our ideas of civil polity. The safeguards of individual rights, - those clauses which preserve the lives, liberty, and property of the citizens from the encroachments of arbitrary power, must apply as well to that legislation of Congress which is concerned exclusively with the District of Columbia or with the territories, as to that which is concerned with the states. The reasoning which leads to this conclusion is irresistible. A Bill of Rights is certainly no less important for the District of Columbia and for the territories than for that portion of the nation which is organized into states. If it were thought necessary that Con