Page:The Green Bag (1889–1914), Volume 11.pdf/44

 Territorial Sovereignty. power to govern them does not depend on the ownership of the land which they oc cupy but on their consent to be governed; and the existing Territorial Governments are just ones only in so far as the inhabi tants of the Territories have acquiesced in, or have consented to, those Governments. That the construction which the writer has placed upon this constitutional provi sion is the correct one is rendered perfectly clear when the language thereof is contrasted with that of Clause 17, Section 8, of Article I., which reads as follows: — The Congress shall have power to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the ac ceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places, purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other need ful buildings. Mark the difference in the language of these two clauses. In the former, the Con stitution speaks of disposing of, and making needful rules and regulations respecting property; and in the latter it uses the words " legislation" and "authority," both of which necessarily imply government for people. Nothing can be more self-evident than that there are separate and distinct meanings to each of these provisions, and that the power conferred by the first is not identical with that conferred by the second, but widely different from it; although, strange to say, Congress has legislated under both of them as though they had precisely the same meaning. Now every word in the Constitution was selected with the greatest care; and there is not a superfluous clause or sentence in it. In that respect it is the most remarkable document which was ever written. Its framers meant exactly what they said; and they said exactly what they meant; and if they had intended Congress to exercise the same authority over the

27

Territories which it does over the District of Columbia and the other places mention ed in the last clause above quoted, they would have used similar, if not identical language in both instances; and that they did not do so is conclusive evidence that they did not intend Congress to exercise such authority over the people of the Terri tories as it does over those of the above mentioned district. It is evident, therefore, that if Congress has any power over the inhabitants of the Territories, it does not flow from the first provision of the Constitution above referred to; and consequently, if it exists at all, it is derived from some other clause in that instrument. There have been some eminent constitutional lawyers who have contended that the power in question is conferred by Clause 1 of Section 3 of Article IV., which authorizes Congress to admit new States into the Union. While the writer desires to treat with perfect respect the views of those persons from whom he differs on legal as well as on all other questions, he must nevertheless declare that in his opinion this contention is clearly erroneous. To say that because Congress has the power to admit a new State into the Union, it has also the power to legislate for its people before it is so admitted, is to enunciate an entirely novel principle in constitutional law; and there would be just as little reason in saying that because A. has the right to admit B. as a partner in business, therefore the former has the right to take the latter by force and to hold him as a slave until he shall be so admitted. It is true that Con gress has assumed the right and the power to organize temporary governments for the Territories which have heretofore been admitted into the Union; but this has been done, as the writer contends, without con stitutional authority; and the mere exercise of a power by any department of the Govern ment does not necessarily imply that this power has been constitutionally conferred