CONGRESS HAS FULL POWER. 



199 



ing to the United States, and this power is 

 vested in Congress without limitation." 



This, of itself, would seem to make the 

 meaning fairly certain. Consider the situa- 

 tion. After a long struggle, which had 

 delayed the adoption of the Constitution, 

 the people had finally settled the ownership 

 and sovereignty of the lands outside of the 

 States in the General Government. It was 

 claimed that as this territory had been 

 wrested from Great Britain by the blood 

 and treasure of the people of all the States, 

 it should be held for their common benefit, 

 and not for any State. • It was final- 

 ly so settled and agreed, and the 

 whole territory was ceded to the 

 United States for the common benefit of 

 all. At that time, next to State jealousy of 

 federal power — if second to even that — 

 there were mutual State jealousies of the 

 power of each other, and this was one of 

 the causes of the dispute over the public 

 territory. Yet it was certain and well 

 known that, on the admission of the ex- 

 pected new States, with their sovereignty 

 within their borders, all of the sovereignty 

 and control of this territory within their 

 borders, which was not in the United 

 States, would be in those States respective- 

 ly; and that that sovereignty and control 

 which they had so long struggled to place 

 in the United States would be passed over 

 to those 3 to 5 States, as they were admit- 

 ted. This was certain to be the case, for, 

 if Congress did not have this sovereignty 

 and control after a State was admitted, 

 then the State did have it, and no other 

 State could interfere. Those States might 

 then, by unfriendly legislation or by no 

 legislation, or both, so hamper those lands, 

 their sale, occupancy and control, as to 

 render them of little value, except to those 

 States and .their people. It is simply in- 

 credible that this was intended. If it was 

 not, then it was intended that this vital 

 power of disposal and control should con- 

 tinue at a time when, of all others, it was 

 most needed. While the Territory remained 

 such the sovereignty of the United States 

 was complete without any other grant than 

 that contained in the cession, and this spe- 

 cial grant of power was not at all neces- 

 sary. Its chief, if not its only, use and pur- 

 pose was that, when and after these lands 

 passed into and under the sovereignty of a 

 State, they should do so subject to the 

 paramount sovereignty of the United 

 States, so far as was needful. 



In framing this dual government, this 

 imperium in imperio, in which each State 

 was to be, in many respects, sovereign in 

 the Nation, and the Nation, in many re- 

 spects, sovereign in each State, the separa- 

 tion of these sovereignties and their lines 

 of demarcation must have received the most 

 enreful attention of those statesmen as one 



of the most important and difficult prob- 

 lems which confronted them. As the 

 control and disposal of this territory was 

 one of the most important and burning 

 questions of the time, and had long been 

 such — delaying and, for a time, endanger- 

 ing the adoption of the constitution — it 

 would seem impossible that when dealing 

 directly with this question provision was 

 made for this control while in a Territorial 

 state, and when it was little needed, and 

 purposely omitted at a period when, of all 

 others, it was most needed. We shall come 

 nearer to the real meaning of this provision 

 by reading it as it is so plainly written, 

 without any limitation, either of time or 

 Territorial or State condition. 



If authority for this construction be 

 needed, it is not lacking, and in another 

 connection I shall refer to some cases 

 which come first to hand. 



Assuming then, as I think we must, that 

 this constitutional provision confers on 

 Congress the power of disposition and con- 

 trol of the public lands after the admission 

 into the Union of the States containing 

 them, how much, if any, of this power is 

 surrendered to the States by the Acts ad- 

 mitting them into the Union as sovereign 

 States? Here the general rule is certain, 

 although questions may arise as to its ap- 

 plication to particular cases. As far as its 

 exercise is needful to the disposition and 

 full control and management of these lands, 

 Congress has always been and is capable of 

 diverting, alienating or surrendering any 

 part of it. It is uniformly held that, while 

 the title of the United States to the public 

 lands is absolute, as against every other 

 title, yet it is held in trust for the ultimate 

 benefit of all the people, in such manner as 

 may be prescribed by law, and this is pecu- 

 liarly the case as to the only Territory we 

 had at that time. Congress then, being a 

 trustee of the title, cannot divert, alienate, 

 or surrender any power necessary or prop- 

 er for the disposal, protection, preservation, 

 control, or management of its lands, nor 

 in any way discharge itself from the duty 

 of executing the trust confided to it. 



But, while this power to make all need- 

 ful rules and regulations is also the power 

 to determine what are needful ; and while, 

 therefore, this power so conferred is in 

 terms absolute and unlimited ; yet, notwith- 

 standing some general statements of the 

 Supreme Court, it may be well claimed that, 

 after the admission of a State, there is, 

 necessarily, a limit arising from other por- 

 tions of the Constitution and the general 

 powers of the State. For example, may 

 Congress continue to legislate for this pub- 

 lic land — some of it, perhaps, in small, iso- 

 lated parcels — upon all subjects of munici- 

 pal legislation, civil and criminal, and irre- 

 spective of the laws of the State on the 



