198 



RECREATION. 



refer briefly to the nature and source of 

 this federal power over the Territories. 



As to the source of this power, there has 

 been a diversity of opinion, and the power 

 is claimed to have arisen from that pro- 

 vision of the Constitution which gives Con- 

 gress the "power to dispose of, and make 

 all needful rules and regulations respecting 

 the territory and other property belonging 

 to the United States"; and other sources 

 of this power have been suggested. But, 

 whatever its origin, the existence of this 

 power, as the Supreme Court has several 

 times said, is undoubted. 



While in the Dred Scott case (19 How., 

 393) it was held that this constitutional 

 provision applied only to such territory as 

 the United States then had, and did not 

 apply to that subsequently acquired by 

 treaty or conquest, this has not been ac- 

 quiesced in in later cases, several of which 

 point to this provision as, at least, one of 

 the sources of the power and control which 

 Congress exercises over the various Terri- 

 tories. I think it may be taken as 

 now settled, that this provision confers 

 on Congress the power stated, over all 

 the Territories. 



Congress, then, having sovereignty and 

 ample legislative control of the Territories, 

 while they are such, and of the public lands 

 therein, one important question is : How 

 far this sovereignty and right of control is 

 surrendered to the State by its admission 

 into the Union? Here we may look again 

 to the Constitution, then to the Acts ad- 

 mitting such States, and to their constitu- 

 tions when admitted. 



First, as to the federal constitution. 

 Assuming, as I think we may, that the pro- 

 vision above referred to applies to all "ter- 

 ritory and other property belonging to the 

 United States," whether then already, or 

 subsequently acquired, what was the in- 

 tended limit of the duration of the power 

 thus conferred? Was it intended to con- 

 tinue only until the new State was ad- 

 mitted, and to then cease and leave Con- 

 gress and the Government without any 

 power to dispose of or to make needful 

 rules and regulations respecting the pub- 

 lic lands or other property belonging to 

 the United States, or was it intended to 

 continue as long as its subject matter and 

 its necessity continued? If the former, we 

 must look to some other source for the 

 power of Congress to dispose of and regu- 

 late the management of the public domain 

 within the limits of a State; if the latter, 

 then this provision is ample. 



I do not consider here the case of mili- 

 tary forts, posts, dockyards, etc., for which 

 special provision is made in the Constitu- 

 tion, nor sites for postoffices, court houses, 

 etc., the question of jurisdiction over which 

 is generally settled by convention. 



When the Constitution was adopted we 

 had but one Territory, though it is fair to 

 suppose that others were looked on as pos- 

 sible. The one we had was acquired under 

 conditions which required its admission 

 into the Union in not less than 3, nor more 

 than 5, States with equal sovereignty with 

 that of the original States ; and the Consti- 

 tution provided for the admission of new 

 States. Thus, with the subject of new 

 States directly in mind, did the framers in- 

 tend to give Congress power to dispose of 

 and manage the public lands, while in a 

 Territory, and to leave it without the power 

 to do either after a State was admitted? 

 For it could not have escaped them that 

 to confer this power while the Territory re- 

 mained such, was, by the strongest implica- 

 tion, to deny it afterward. Did they intend 

 this? 



In the first place — and this is quite suffi- 

 cient for the construction — the provision it- 

 self imposes no limitation, either of time or 

 of Territorial or State condition ; nor does 

 the nature of the power conferred imply 

 any such limitation. On the contrary, the 

 power is as broad and general as language 

 could make it, with no limitation whatever, 

 either expressed or implied. The reason 

 and necessity for the power are tenfold 

 stronger after the admission of the State 

 than during the existence of the Territory ; 

 and there is no rule of law or of construc- 

 tion which will permit us to impose a 

 limitation which neither the instrument it- 

 self nor the nature of the power imposes or 

 implies. The general rule is that when a 

 power is conferred without limitation, ex- 

 press or implied, it continues as long as the 

 necessity for its exercise; and the Supreme 

 Court has, more than once, said (as in 

 Gibson v. Choteau, 13 Wall., 92, on page 

 99) "That power is subject to no limita- 

 tions." 



The difficulty and misconstruction here 

 arise chiefly from the use, in this clause, 

 of the word "Territory." If, instead, the 

 expression had been that Congress should 

 have power to dispose of and make all 

 needful rules and regulations respecting the 

 land and other property, there could have 

 been no question but that this power of dis- 

 position and control continued after State- 

 hood as before. This is exactly what the 

 provision does mean. It does not refer to 

 organized Territories, as to which the term 

 "dispose of" and make "rules and regula- 

 tions," and "other property" are not ap- 

 propriate ; but it refers to land and other 

 property. This is expressly held in United 

 States v. Grotiot (13 Pet., 526), where it is 

 said (p. 536) : "The term 'Territory,' as 

 here used, is merely descriptive of the. 

 kind of property, and is equivalent to the 

 word lands. Congress has the same power 

 over it as over any other property belong- 



