Page:Harvard Law Review Volume 12.djvu/423

403 GOVERNMENT OF ISLAND TERRITORY. 403 obvious purposes for which it was conferred, and that those purposes are satisfied by measures which prepare the people of the Territories to be- come States in the Union, still the conclusion cannot be avoided, that the Act of Congress here in question is clearly within that justification. For certainly no legislation can be supposed more wholesome and neces- sary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political in- fluence from those who are practically hostile to its attainment." ^ It will be remarked that the Dred Scott opinion is here cited as an authority. Mr. Justice Matthews' statement of the law was quoted with approval in 1889, by Mr. Justice Bradley, in deciding the greatest of all the Utah cases — that which held that Congress, as representing the parens patricB of the territory, could annul the charter of the Mormon Church, confiscate its property, and devote it to public uses. He added, however, this important observation of his own : — "Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by any express and direct application of its provisions." ^ It will be perceived that these few but pregnant words, repeated later with approval in an Alaska case by Mr. Justice Harlan,^ sub- stantially reaffirm a position on which the Dred Scott decision was rested by all the justices but three, and from which none of the other three dissented.* This is that Congress, in making rules for the Territories, is subject to some or all of the restrictions and prohibitions imposed upon it by the Constitution as respects other legislation affecting person or property. A difference is indeed » McAllister v. United States, 141 U. S. 17 ;, 18S
 * Murphy v. Ramsey, 114 U. S. 44, 45.
 * Mormon Church v. United States, 136 U. S. i, 4a, 44, 58, 67.
 * Scott V. Sandford, 19 Howard, 542, 614.