ance of Congress, become the seat of government of the United States." The District of Columbia was created for that purpose, under cessions from the states of Maryland and Virginia. The territorial jurisdiction of that district, known as the District of Columbia, and which embraces the city of Washington, and throws its municipal protection over all the officers and agents of the government of the United States, is extremely important. (c) The general sovereignty existing in the government of the United States over its territories is founded on the Constitution, which declared (d) that Congress "should have power to dispose of and make all needful rules and regulations respecting the territories, or other property belonging to the United States." (e)

(c) The powers of the judiciary of the District of Columbia were ably discussed and declared by Ch. J. Cranch, in the Circuit Court of that district, on the 6th of June, 1837, in the case of the United States, ex relat. Stokes, Stocktons, and Moore v. Amos Kendall, Postmaster-General of the United States, [5 Cranch, C. C. 163.] It was decided that the court had authority to issue a mandamus to compel the defendant to credit the relators with the amount of an award made by the Solicitor of the Treasury in their favor, under an act of Congress of July 2, 1836. The defendant had refused to appear under a citation in that cause, and claimed exemption from all personal responsibility, as one of the heads of the departments, to the jurisdiction of the court. The Chief Justice held that the Circuit Court of the district had all the jurisdiction that any circuit court of the United States could have, under the acts of Congress of 13th February, 1801, sec. 11, and of the 27th February, 1801, [c. 15,] sec. 5, and it had more, it was inferior only to the Supreme Court. It had power to call before it any person found in the district, from the highest to the lowest. No officer of government in the district was too high to be reached by the process of the court. The defendant in the case could not shelter himself under the authority or command of the President. There is no law establishing a relation between the Postmaster-General and the President, or any authority in the latter to prescribe his duties, or control him in the exercise of his official functions. The Postmaster, in the exercise of his official duties, is as independent of the President as the President is of him. If the President has any power to control him, it is only through the fear of removal; and no act done under such a control would be justified. This decision was affirmed on appeal to the Supreme Court of the United States, in January term, 1838. Kendall v. The United States, 12 Peters, 524.

(d) Art. 4, sec. 3.

(e) It was held, in the case of The Canal Company v. Railroad Company, 4 Gill & Johns. 1, by the Court of Appeals in Maryland, that Congress acted in the government of the District of Columbia and other districts, not as a local legislature, but as the legislature of the Union; and in the case of The State v. New Orleans N. Company, 11 Martin, 38, 309, it was held that the legislature of the Orleans territory could grant a charter binding on the future State of Louisiana. So, in the case of Williams v. The Bank of Michigan, 7 Wend. 539, the New York Court of Errors adjudged that the power to incorporate a bank was within the scope of the general powers of territorial legislation, conferred upon the Michigan territory by the act of Congress of January 11, 1805. The government of the United States, which can lawfully acquire terri

In the territories northwest of the river Ohio, and as separate territories were successively formed, Congress adopted and applied the principles of the ordinance of the confederation Congress of the date of the 13th of July, 1787. That ordinance was framed upon sound and enlightened maxims of civil jurisprudence. The organized territories belonging to the United States, and governed under the superintendence of Congress, at present consists of the territory of Columbia. The territories of Michigan and Arkansas were admitted into the Union as states, and upon an equality with the other states, by acts of Congress of June 15, 1836, and January 26, 1837; and the territories of Iowa and Florida were admitted into the Union as states, and upon an equality with the other states, by acts of Congress of March 3,

tory by conquest or treaty, must, as an inevitable consequence, possess the power to govern it. The territories must be under the dominion and jurisdiction of the Union, or be without any government; for the territories do not, when acquired, become entitled to self-government, and they are not subject to the jurisdiction of any state. They fall under the power given to Congress by the Constitution. This was the doctrine and decision of the Supreme Court in the case of the American Ins. Company v. Canter, 1 Peters, 511; and see also 3 Story's Comm. 193-198, 536. In a case submitted to the Supreme Judicial Court of Massachusetts in 1841 (1 Met. 580), it was held that in places ceded to the United States for navy yards, arsenals, &c., and where there is no other reservation of jurisdiction to the state than that of a right to serve civil and criminal process on such lands, the persons residing there were not entitled to the benefit of the common schools of the town, nor liable to any tax assessments, nor acquired any town settlement by a residence therein, nor any elective franchise, as inhabitants of the town.1

In

1.[In respect to the district containing the site of the national government, the grant of power to Congress is "to exercise exclusive legislation in all cases." respect to the territories, the grant is "to make all needful rules and regulations concerning the territory and other property belonging to the United States." The nature of, and the limitations upon, the sovereignty of the Union over the territories and the people thereof have become the subjects of angry and dangerous political discussion. In the celebrated case of Dred Scott, 19 How. 393, a majority of the judges of the Supreme Court were of opinion that the last-mentioned clause of the Constitution applies only to territory within the original states at the time the

Constitution was adopted, and that it did not apply to future territory acquired by treaty or conquest from foreign nations. They were also of opinion that the power of Congress over such future territorial acquisitions was not unlimited, that the citizens of the states migrating to a territory were not to be regarded as colonists subject to absolute power in Congress, but as citizens of the United States, with all the rights of citizenship guaranteed by the Constitution, and that no legislation was constitutional which attempted to deprive a citizen of his property on his becoming a resident of a territory. The question arose under an act of Congress prohibiting slavery in the territory of Upper Louisiana, acquired from France.]

1845, c. 48, and of December 28, 1846, c. 1; and the territory of Wisconsin was admitted into the Union, on like equality, by acts of Congress of August 6, 1846, c. 89, and March 3, 1847, c. 53; and the republic of Texas, by a joint resolution of Congress of March 1, 1845, and of December 29, 1845.2

*It would seem, from these various congressional reg- * 385 ulations of the territories belonging to the United States, that Congress have supreme power in the government of them, depending on the exercise of their sound discretion. That discretion has hitherto been exercised in wisdom and good faith, and with an anxious regard for the security of the rights and privileges of the inhabitants, as defined and declared in the ordinance of July, 1787, and in the Constitution of the United States. "All admit," said Chief Justice Marshall, (a) “the constitutionality of a territorial government." But neither the District of Columbia, nor a territory, is a state, within the meaning of the Constitution, or entitled to claim the privileges secured to the members of the Union. This has been so adjudged by the Supreme Court. (b) y1 Nor will a writ of error or appeal lie from a territorial court to the Supreme Court, unless there be a special statute provision for the purpose. (c) If, therefore, the government of the United States should carry into execution the project of colonizing the great valley of the Columbia or Oregon River, to the west of the Rocky Mountains, it would afford a *subject of grave consideration, what would be * 386 the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent states; and in the mean time, upon the doctrine taught by the acts of Congress, and even by the judicial decisions of the Supreme Court, the colonists

(a) 4 Wheaton, 422.

(b) Hepburn v. Ellzey, 2 Cranch, 445; Corporation of New Orleans v. Winter, 1 Wheaton, 91; [ante, 326, n. 1.]

(c) Clarke v. Bazadone, 1 Cranch, 212; United States v. More, 3 id. 159.

2 States since admitted are California, by act of Sept. 9, 1850; Minnesota, by act of May 11, 1858; Oregon, by act of Feb. 14, 1859; Kansas, by act of Jan. 29,

1861; West Virginia, by act of Dec. 31, 1862; Nevada, by act of March 21, 1864; Nebraska, by act of Feb. 9, 1867.

yl As to the jurisdiction of territorial courts in admiralty cases, see The City of Panama, 101 U. S. 453.

would be in a state of the most complete subordination, and as dependent upon the will of Congress as the people of this country would have been upon the king and parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions; and the establishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression. (a)

(a) Cicero, in his Oration for the Manilian Law, c. 14, describes, in glowing colors, the oppressions and abuses committed by Roman magistrates, exercising civil and military power in the distant provinces.

[454]

LECTURE XVIII.

OF THE CONCURRENT JURISDICTION OF THE STATE GOVERNMENTS.

THE question, how far the state governments have concurrent powers, either legislative or judicial, over cases within the jurisdiction of the government of the United States, has been much discussed. It will be my endeavor, in the course of the present lecture, to ascertain the just doctrine and settled distinctions applicable to this great and important constitutional subject.

1. Of Concurrent Powers of Legislation.—It was observed in the Federalist, (a) that the state governments would clearly retain all those rights of sovereignty which they had before the adoption of the Constitution of the United States, and which were not by that Constitution exclusively delegated to the Union. The alienation of state power or sovereignty would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant.

*

In the judicial construction given from time to time to the Constitution, there is no very essential variation from the contemporary exposition which was here laid down by 388 the high authority of the Federalist. Judge Chase, in the case of Calder v. Bull, (a) declared that the state legislatures retained all the powers of legislation which were not expressly taken away by the Constitution of the United States; and he held that no constructive powers could be exercised by the federal government. Subsequent judges have not expressed themselves quite so strongly in favor of state rights, and in (a) No. 32. (a) 3 Dallas, 386.