Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/35

 conflict with all judicial and legislative precedent, as appears from the summary which we have already given. And Mr. Justice Campbell himself refutes his own argument by admitting that congress may perhaps have the power of selecting "suitable laws for the protection of the settlers, until there may be a sufficient number of them to form a self-sustaining municipal government," and that "to mark the bounds for the jurisdiction of the government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the cognizance of the judiciary department of that government." p. 514.

The Chief Justice argues that "the Territory" of the United States means only the Northwest Territory, a frame of government for which had already been provided by the Ordinance of 1787, but which might need some additional "rules and regulations" to adapt it to the new order of things; and that the use of the words "territory and other property" shows that it was not intended to grant a general power of legislation over future acquisitions, but points to a specific and definite subject, namely, the Territory then belonging to the United States. The purpose of this argument, as stated by himself, on page 442, is to escape from the effect of the act of the first congress, confirming the Ordinance of 1787, which prohibited slavery in similar terms to those of the Missouri Compromise Act, and of the numerous decisions of the State courts upholding and enforcing that prohibition. But this construction ignores the fact, that, at the time of the adoption of the Constitution, cessions were expected of other Territories, which were afterwards received and governed; and does not dispose of the decisions which we have cited, for they all concerned Territory acquired since the adoption of the Constitution. And the remark of Mr. Justice McLean is, of itself, a complete answer: "The Constitution was formed for our whole country. The expansion or contraction of our Territory required no change in the fundamental law." p. 544.

Indeed this position of the Chief Justice becomes immaterial, by his admission on page 443, that congress possesses the general power of legislation over the Territories; and although he prefers to derive this power by necessary implication from the power to acquire Territory by conquest or treaty, rather than from the express grant in the Constitution, he gives no reason why the power arising by