William H. Seward of New York, who, in a speech in the Senate on a bill to admit New Mexico into the Union, on July 26, 1850, said:

"It is a remarkable feature of the Constitution of the United States that its framers never contemplated Colonies or Provinces or Territories at all. On the other hand, they contemplated States only, nothing less than States, perfect States, equal States, as they are called here, sovereign States. ... There is reason There is reason there is sound political wisdom in this provision of the Constitution excluding Colonies, which are always subject to oppression and excluding Provinces which always tend to corrupt and enfeeble and ultimately to break down the parent State." *

"'*

The Supreme Court has also expressed its opinion on this subject in the case of Dred Scott v. Sandford, 19 Howard, 393, 446, 447, in which it said :

'There is certainly no power given by the Constitution to 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."

Again, in the same case, the court said:

"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 the 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

* Works, Vol. I., p. 122.

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."

Having thus shown that there is no warrant in the Constitution for the establishment or for the maintenance of colonies or of dependencies, the next question to be considered is whether or not there is any other ground upon which such legislation by Congress can be justified. As the advocates and the supporters of this new policy have utterly failed to indicate that there is any provision in the Constitution which authorizes it either expressly or by necessary implication, they have promulgated a new doctrine in American constitutional law which may be called "the theory of inherent sovereignty in the United States Government." This doctrine asserts that in addition to the express or implied powers of the Government conferred upon it by the Constitution it possesses certain other powers not depending upon grant but derived or resulting from the mere fact of its being a Government exercising governmental functions and that by virtue of this fact it can do whatever any other Government in the world can do. According to this doctrine the power to acquire territory is an attribute of national sovereignty possessed by all independent Governments, that as this power was not reserved by the States of the Union it exists only in the Federal Government without limitation and that in the right to acquire territory is found the right to govern its inhabitants either with or without their consent as Congress in its discretion may determine.

Upon this new theory of our Government the present administration and its supporters rely in order to justify the establishment and the maintenance of a colonial system by the United States. If this theory be the true one there is no limit to the jurisdiction of the Federal Government; and therefore, the specific enumeration of powers contained in the Constitution is entirely unnecessary; and the power of

Congress is as absolute as is that of the British Parliament; and there is no method by which its action can be restrained or defeated by the people. The mere statement of this doctrine carries its own refutation with it; and so it is unnecessary to occupy time or space in exposing its utter untenableness and absurdity. It is sufficient to call the attention of the reader to the fact that this Government was not formed or patterned after any European model; nor was it designed to exercise many even of those powers of sovereignty previously vested in the Governments of the several States which had combined to constitute the United States of America. It is true that we are a sovereign nation and according to international law the equal of any other nation on the face of the globe; but we are nevertheless a republic and not an empire or an absolute monarchy; and we ⚫ have deliberately chosen to establish a Government of limited powers; and these cannot be increased in the least degree except by a constitutional amendment. And until such an amendment shall have been adopted by the people of the United States the Government thereof can exercise only those express or implied powers which the Constitution confers upon it, as has been already stated in a previous part of this article.

In support of this contention the writer will quote the following extracts from certain opinions of the Supreme Court. In the case of United States v. Fisher, 2 Cranch, 358, 396, Chief Justice Marshall, who delivered the opinion of the court, remarked :

"It has been truly said that under a Constitution conferring specific powers, the power contended for must be granted, or it cannot be exercised."

The same great judge, in McCullough v. Maryland, 4 Wheaton, 316, 405, said:

"This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the

people, found it necessary to urge. universally admitted."

That principle is now

In the case of Martin v. Hunter, I Wheaton, 304, 326, Mr. Justice Story, speaking for the court, said:

'The Government of the United States can claim no powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary. implication.

"

In the case of Briscoe v. The Bank of Kentucky, II Peters, 257, 317, the court said:

"The Federal Government is one of delegated powers. All powers not delegated to it, or inhibited to the States, are reserved to the States or to the people."

In delivering the opinion of the court in Hepburn v. Griswold, 8 Wallace, 603, 611, Chief Justice Chase said :—

"All the legislative power granted by the Constitution. belongs to Congress; but it has no legislative power which is not thus granted."*

This being the law, it is difficult to perceive how the colonial policy of the administration can be in accordance therewith. It is one thing to enlarge the Union by the admission of new States thereinto; but it is another and quite a different thing to enter upon the government of colonies or of dependencies in various parts of the world. The Constitution provides in Section 3 of Article IV. that "New States may be admitted by the Congress into this Union"; but it nowhere provides that colonies or provinces may be established by that body; and therefore, applying the above-quoted decisions of the court to the matter under consideration, we must conclude that all legislation which is designed to accomplish that result is unconstitutional and consequently, null and void.

Another doctrine of quite recent origin will now be considered, as the friends of the administration rely upon it also in order to justify the government by us of our newly acquired Territories. Failing to find any warrant in the Constitution for this policy, they now contend that it can

* See also United States v. Harris, 106 U. S., 629, 635, 636.

be justified on the ground that the provisions of that instrument do not extend ex proprio vigore to the new Territories acquired by the United States and that therefore, Congress in legislating for them is not restrained thereby unless the Constitution should be extended to them by means of a

statute.

Conceding that the first part of this proposition is true, the second, which is the conclusion sought to be drawn from it, by no means follows; for as the Constitution was made by and for the States only, it can have no force beyond the limits of the Union; and so it cannot be carried by Congress into other countries if it is not already there. This assertion is supported by the following sentences which are taken from a speech of Daniel Webster delivered in the Senate on February 24, 1849:

"The Constitution is extended over the United States and over nothing else and can extend over nothing else. It cannot be extended over anything except over the old States and the new States that shall come in hereafter when they do come in.” *

On the same point, Prof. Langdell, in the article from which an extract has just been quoted, on page 371 of the Review, says:

"The Constitution of the United States as such does not extend beyond the limits of the States which are united by and under it."

As all the laws of the United States in order to be valid must be made in pursuance of the Constitution and must also be in harmony with and subordinate thereto, they cannot extend where it does not except by the free consent of the people who are therein sought to be brought under them. This doctrine, like those previously considered, is wholly untenable; and therefore, it affords no justification for the establishment of a colonial system by the United States.

Of course the writer freely concedes that the Constitution may be applied to the Territories by and with the consent

* Appendix to the Congressional Globe, Second Session, Thirtieth Congress, page 273.