Page:Harvard Law Review Volume 12.djvu/421

401 GOVERNMENT OF ISLAND TERRITORY. 401 character solely from the United States, and the Constitution was their supreme law. Davis's colleague was Daniel Webster. He met the issue, in the line of his argument at the bar before Marshall, twenty years before, by denying that the Constitution had any operation in the territories, until Acts of Congress were made to enforce it: it was made for the States, and not for territorial possessions. Benton took the same ground, and maintained it in his "Thirty Years' View," pub- lished in 1856.^ Calhoun had, at an earlier stage of the controversy, in 1848, in- veighed in the Senate, in most impressive terms, against all meas- ures looking to the acquisition of new territory to be governed as a political dependency, and had introduced a resolution declaring that to conquer and hold Mexico, "either as a province or to in- corporate it in the Union would be a departure from the settled pohcy of the government, in conflict with its character and genius, and in the end subversive of our free and popular institutions." While the political anvil was so hot, the Supreme Court wisely confined itself to disposing of the cases before them, without pro- nouncing upon academic questions, however important. Six years later, however, it adopted a different policy. In the Dred Scott case. Chief Justice Taney announced his adhesion and, so far as he could, committed the court to the doctrine advocated by Calhoun. The "needful rules and regulations clause," he declared, had no operation on territory acquired since the adoption of the Constitu- tion. Such territory was subject to such laws as Congress might enact as the legislative arm of the government; but these must be confined within the limits assigned by the Constitution for the protection of person and property. A power to rule it without re- striction, as a colony or dependent provmce, would be inconsistent with the nature of our government. Slaves might therefore be taken and held there, because slavery was a status recognized by the Constitution.' The court, as reconstituted during the civil war which the Dred Scott decision had done so much to produce or to accelerate, re- verted to the doctrine of Chief Justice Marshall, and in 187 1 rein- stated the "needful rules and regulations clause" as the primary authority for our territorial legislation.^ The right of a sovereign • Clinton v. Engelbrecht, 13 Wallace, 434, 441, 447.
 * ii, 714. * Scott V. Sandford, 19 Howard, 447, et seq.