The case was first argued in 1856 and at that time the majority of the court were of the opinion that it would not be necessary to consider the question whether or not Scott was a citizen, but that the case could be decided upon its merits, namely, that Scott, being originally a slave, his being carried into Illinois and Upper Louisiana did not affect his status after his return to Missouri; that, in other words, the law of Missouri as determined by the highest courts of that State should govern the Supreme Court in its disposition of the case. This decision, it will be observed, made it unnecessary for the court to pass upon either the question as to whether a free negro could become a citizen of a State in the constitutional sense of the term, or the question as to the power of Congress to prohibit slavery in the Territories. To Justice Nelson was assigned the preparation, upon this basis, of the opinion of the court, and the individual opinion which he finally read was the one prepared for this purpose. In this opinion he said: "In the view we have taken of the case, it will not be necessary to pass upon this question [of citizenship], and we shall therefore pass at once to an examination of the case on its merits." Justice Nelson does later say, however: "It is perhaps not unfit to notice in this connection that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the Act of Congress [of 1820], even within the Territory to which it relates, was not authorized by any power under the Constitution." But he goes on to say that whether it was valid or not, the act could have no operation or effect within the limits of the State of Missouri, and could not, therefore, affect the status of the plaintiff after his return thither.

A second argument of the case having been asked for and had, five justices agreed that the plea in abatement was not properly before the court and that, therefore, the case would have to be decided upon the merits.

With the judgment of the court as to the effect of the laws of Congress governing the Territory of Upper Louisiana and of the State of Illinois upon the status of Scott after his return to Missouri we are not here concerned. That which does concern

us is that six of the nine justices held that the power of Congress over the Territories was of such a limited character as to render unconstitutional an attempt to exclude slavery from them.

The Chief Justice, who was among those who took this position, argued as follows: "The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,' but in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the Treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign government. It was a special provision for a known and particular Territory, and to meet a present emergency, and nothing more. A brief summary of the history of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition."

8 After reviewing the circumstances leading up to the cession by the individual States to the Confederacy of their claims to western lands, and after adverting to the fact that the Confederacy had no constitutional power to accept the grant or to enact the Northwest Ordinance of 1787 for its government, he says: "This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common property, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of the cession. They were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this government was to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instru ment, and the objects it was intended to accomplish; and as this league of States would, upon the adoption of the new government, cease to have any power over the territory, and the ordinance they had agreed upon be incapable of execution, and a mere nullity, it was obvious that some provision was necessary to give the new government sufficient power to enable it to carry

It has often been stated that in this case Chief Justice Taney and all those Justices who agreed with him, held that the United States might increase its territory only by the admission of new States. This is not quite correct. These justices did, indeed, hold that foreign territory might be acquired only for the purpose of admitting new States; but its annexation of areas with this end in view they agreed might be effected by an exercise of the treaty into effect the objects for which it was ceded, and the compacts and agreements which the States had made each other in the exercise of their power of sovereignty. It was necessary that the lands should be sold to pay the war debt; that a government and system of jurisprudence should be maintained in it; to protect the citizens of the United States, who would migrate to the Territory, in their rights of person and of property. It was also necessary that the new government, about to be adopted, should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military stores, munitions, and ships of war, which were the common property of the States when acting in their independent characters as confederates, which neither the new government nor any one else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power 'to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new government the property then held in common by the States, and to give to that government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire. The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses, when it speaks of the political power to be exercised in the government of the Territory, all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any Territory, nor of Territories, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to the territory of the United States- - that is, to a Territory then in existence, and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing in other words, making sale of lands, or raising money

making or other powers. Upon this point Taney declared: "There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the government, it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the government, and not from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposition and sale of the lands- that is, the power of making needful rules and regulations respecting the Territory. And whatsoever construction may now be given to these words, every one, we think, must admit that they are not the words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new government might afterwards itself obtain by cession from a State, either for its seat of government, or for forts, magazines, arsenals, dockyards, and other needful buildings. . . . This view of the subject is confirmed by the manner in which the present Government of the United States dealt with the subject as soon as it came into existence."

the judicial; and whatever the political department of the government shall recognize as within the limits of the United States the judicial department is also bound to recognize, and to administer in it the laws of the United States, so far as they apply, and to maintain in the territory the authority and rights of the government; and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed."

With the exception of Justice Curtis, none of the other justices. discussed at length the source of the power to acquire territory. Five of the other justices, however, concurred with the Chief Justice in holding the Act of 1820 unconstitutional, and, therefore, where they do not expressly say so, may be presumed to have agreed with him as to the source whence and the purpose for which foreign territory might be acquired, and as to the restriction of the authority granted by Congress by Article IV, Section III, to the territories possessed by the United States in 1787.

Justice Curtis in his dissenting opinion declared that whatever doubt there may have been as to the power of the United States to acquire additional territory, four precedents and several judicial sanctions had established its existence beyond doubt." The power to govern this acquired territory Curtis found in Article IV, Section III.10

9 Citing American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; and Sere v. Pitot, 6 Cr. 332; 3 L. ed. 240.

10 He said: "There was to be established by the Constitution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all Territory of