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MORMONISM EXPOSED.

The Constitution and the lerritories.

A LAWYER'S VIEW.

By RICHARD W. YOUNG, ESQ.,
OF NEW YORK,

1885.

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MORMONISM EXPOSED,

The Constitution and the Territories.

A LAWYER'S VIEW.

By RICHARD W. YOUNG, ESQ.,
OF NEW YORK.

1885

THE

CONSTITUTION MD THE TERRITORIES,

At the time of the adoption of the Constitution, the ter
ritory of the United States included the thirteen colonies and
those districts -west of the Alleghanies which have since been
admitted as States into the Union, under the names of Ohio,
Indiana, Illinois, Michigan, and Wisconsin. Provisional gov
ernments had been extended over this western territory by
the Congress of the old confederation in the ordinance of 1787.
Among the first acts of the government under the existing
Constitution was to sanction the republican system which it
found established over these districts.
With the increasing population of the continent, the ques
tion of the power of Congress under the Constitution to admit
new States, and acquire additional territory, grew in import
ance, and became a problem of great public interest.
The Constitution (Art. IV, Sec. 3) provides that:
New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the jurisdiction of any other
State; nor any State be formed by the junction of two or more States, or
parts of States, without the consent of the legislatures concerned, as well
as of Congress. This is the only reference to the subject in the instrument;
and hence, to ascertain what new States come within the scope
of this section, it is necessary to consult acknowledged author
ities.

88
Story says:
Although Congress has authority to admit new States into the firm,
yet it is demonstrable that this clause had sole reference to the territory then
belonging to the United States.
Mr. Pickering, Senator from South Carolina, one of the
founders of the government, and the statesman from whom a
large number of the provisions of the Constitution emanated,
says, "that this provision of the Constitution only applied to
new States from territory then possessed." It was announced
¦by Mr. Webster, in the famous controversy of 1850, that he
Had always entertained and often expressed the opinion that the
formation of new States, or their adoption into the Union out of territory
not belonging to the United States, was not in the contemplation of the
Constitution of the United States; although it had seemed to be in the com-
templation of the States of the old confederation, at least as far as regarded
Canada. (Curtis' Life of Webster, p. 416.)
In 1811, Josiah Quincy made a violent speech against the
admission of Louisiana, contending that the new States con
templated by the Constitution must be in the territory then
held. These authorities, taken in conjunction with those I shall
introduce as to the absence of power in the government to
acquire foreign territory, will establish the fact that the
extension of the territorial limits beyond their original extent
has been accomplished by a dangerously broad construction
of the Constitution, if, indeed, the power exists at all.
The right to acquire foreign territory has been based upon
either the section of the Constitution above quoted, or upon the
treaty-making power, which is specifically mentioned among
the powers of the government. It was laid down by the Supreme
Court in the case' of The American Insurance Co. v. Canter,
1 Peters, 511, that "the annexation of foreign States out of the

89
limits of the United States must be by the act of the treaty-
making power." The annexation of the greater part of foreign
territory has been in accordance with the principle enunciated
in this case; Louisiana, Florida, Mexican territory and
Alaska have been thus acquired. In the case of Texas, how
ever, the decision in 1 Peters was entirely disregarded, and
Congress, by a joint resolution under the power in the Consti
tution that "new States may be admitted," etc., admitted the
foreign and independent State of Texas. "This," we are told
in a note on page 279 of Kent's Commentaries, "was giving a
new and legislative construction of enormous efficiency and
extent to acquire foreign States, and would appear to be contrary
to the principle of construction recognized by the Supreme
Court." Upon the question as to whether foreign territory could
in any manner be acquired under the Constitution, there has
been much diversity of opinion ; the following authorities,
among the highest on Constitutional law, will tend to establish
the absence of such authoritj'. And in discussing any con
stitutional principle, it must be rendered that "the govern
ment of the United States can claim no powers which are not
granted to it by the Constitution," as stated by Chief Justice
Marshall in the case, 1 Wheaton, 326, and as expressed in
Article X of the amendments.
Judge Story tells us concerning the cession of any foreign
territory, that:
It is incredible that it should have been contemplated that any such
overwhelming authority should be confided to the national government.
* * * If it exists at all, it is unforeseen, and the result of a sovereignty
intended to be limited and yet not suflBiciently guarded.
With regard to the purchase of Louisiana, Thomas Jeffer
son, at the time President, was under the impression that it
was unconstitutional, and needed an amendment; he wrote:

90
I confess I think it important in the present case to set an example
against broad construction by appealing for new power to the people. If,
however, my friends shall think differently, certainly I shall acquiesce with ^
satisfaction, confiding that the good sense of our country will correct the
e-vil of construction when it shall produce evil results.

Thus, Louisiana purchased for the public good, but at a
sacrifice of principle, in turn became a precedent upon
which succeeding legislation has been based, as we see from
the words of Webster, who, after expressing his opinion, as
given above, as to the formation of new States from foreign
territory, said:
I wish to say in the next place, that after the acquisition of
Louisiana I considered this a settled question and have always acted on
it accordingly. Alexander Hamilton wrote in the Federalist :

Congress has undertaken to do more; they have proceeded to form
new states ; to erect temporary governments ; to appoint officers for them;
and to prescribe conditions on which such states shall be admitted into the
confederacy. All this has been done, and done without the least color of
constitutional authority.

Pickering went so far on this subject as to express it as
his opinion that an amendment authorizing the acquisition
of foreign territory must emanate from and be approved by
the people of every State; claiming that an amendment in the
manner specified in Article V of the Constitution would not be
valid, since the acquisition of foreign territory was entirely
beyond the scope of the government.
Mr. Blaine, in his recent book, tells us that many men
opposed the purchase of Louisiana as unconstitutional.
Chancellor Kent (p. 279, Vol. I) says:

91
The acquisition of the foreign territories of Louisiana and Florida by
the United States by purchase, was to be supported only by a very liberal
and latitudinary construction of the incidental powers of the government
under the Constitution.
But whether rightfully or wrongfully, under the Con
stitution, foreign territory of vast extent has been annexed to
the original domain. In chronicling the opinions of the dis
tinguished statesmen and jurists previously quoted from, the
writer is not forgetful of the fact that the right of acquisition
has been sustained by authorities contra. Many feel that
broad construction, dangerous in being unlimited, is usually
wrongful, particularly where an instrument of such perf^tion
is concerned, but all must agree that in the acquisition of
this splendid country this error, if such, has been fruitful of
good results.
The question of the manner of governing territory, after
its cession, is one which, in view of the Constitution, the scope
of government, and in the light of historical analogies, seems
to admit of much less question. Is the power of Congress
over the Territories limited or unlimited? If limited, to
what extent?
The Territories must be under the dominion and jurisdiction of the
Union, or be without any government; for the Territories do not when
acquired become entitled to self government, and they are not subject to
the jurisdiction of any State. They fall under the powers given to Con
gress by the Constitution. This was the doctrine and decision of the
Supreme Court in the case of the Am. Ins. Co. v. Canter, 1 Peters. (JTote
p 428, Vol. I, Kent.)
But it must not be inferred that because a Territory
cannot set up a government for itself, and because the action
of Congress is required in order to effect this, that Congress
has unqualified- powers; for, as pointed out by Calhoun in
his debate with Webster, the action of Congress is equally
necessary in order to put in operation the provisions of the

92
Constitution relating to States. Granting, then, the power of
Congress to legislate for the Territories, it becomes necessary
to ascertain the origin of this power and its extent.
The only grant to Congress of exclusive legislative powers
over territory, is found in the eighth section of Article I, as
follows: To exercise exclusive legislation, in all cases whatsoever, over such dis
trict (not exceeding ten miles square) as may, by cession of particular
States, and the acceptancy of Congress, become the seat of 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 needful
buildifigs. The scope of this section is plainly marked out. It
requires no elucidation; it is evident that it does not refer to
the Territories. We are told, by Judge Gooley, in his Principles of Con
stitutional Law (p, 164), that the legislative power is based on
that clause of Article IV of the Constitution which prescribes
that: Congress shall have power to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the
United States; and nothing in this Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular State.
And in this view of the intent of the above clause, we
and many excellent writers uniting. The case of the Ameri
can Ins. Co. V. Canter, is usually referred to as the authority
for this position. The language of Chief Justice Marshall,
who delivered the opinion of the court in this case, is concern
ing the clause in question :
In the meantime Florida continues to be a Territory of the United
States, governed by virtue of that clause in the Constitution which empowers
Congress to make all needful rules and regulations respecting the territory
or other property of the United States.

93
But it is pointed out by Chief Justice Taney, who gave
the opinion of the court, in Scott v. Sandford, 19 Howard, that
these words in 1 Peters, 511, follow those given above:
Perhaps the power of governing a Territory belonging to the United
States, which has not by becoming a State acquired the means of self
government, may result, necessarily, from the facta that it is not within
the jurisdiction of any particular State and within the power and juris
diction of the United States. The right to govern may be the inevitable
consequence of the right to acquire territory. Whichever may be the
source from which the power is derived, the possession of it is unques
tionable. To which Chief Justice Taney adds:
It is thus clear from the whole opinion that the court did not mean to
decide whether the power was derived from the clause, or was the necessary
consequence of the right to acquire territory. They do decide that the
power in Congress is unquestionable, and in this we do entirely concur,
and nothing will be found in this opinion to the contrary. The power
stands on the latter alternative put by the court— the inevitable consequence
of the right to acquire territory.
It is further stated that this is more clearly demon
strated by the fact that Mr. Justice Johnson, who decided the
case at circuit, expressly gave it as his opinion there that the
clause considered referred only to the territory then in the
United States. Moreover, that he concurred fully in the
opinion of the Supreme Court in whose deliberations he par
ticipated. Judge Taney says that it was not necessary for the
court in the case mentioned, to consider this question.
As before stated, it is upon this case that those chiefly
rely who hold that the right of Congress to legislate for the
Territories, and to legislate to any extent within their discre
tion, rests upon the clause in question. And in Scott v. Sand
ford we have an almost unanimous opinion of the Supreme
Court that such reliance is misplaced. To render it more

94
certain that the scope of the clause has been misunderstood,
reference is made to the case of the U. S, v. Gratiot, i 4 Peters,
587, in which it is held that "the term territory, as here used,
is merely descriptive of one kind of property, and is equiva
lent to the word lands."
The proceedings of the Constitutional Convention of
1787, as given in the Madison Papers, contain the debates
on the adoption of the various propositions for the new
confederation. It is plain from a review of the discussion
on the section containing the clause under consideration,
that it was not intended that it should have the extensive scope
claimed for it; since it appeared in a form of the section pro
posed by Gouverneur Morris, who succeeded in getting the rest
of the matter of tbe section in acceptable language; the clause
being offered without remark and accepted without debate. A
condition of affairs entirely inconsistent with the extensive
powers claimed under it. The entire debate had been upon
the latter clause concerning the claims of the United States.
It is further stated by Judge Taney, in the opinion above
referred to, that the "purpose of this clause 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 agree
ment among the States before the league was dissolved." He
points out that the language is not any territory or the terri
tories, and that the enumeration of the powers of Congress is
begun by giving that to sell, and adds, "and whatever con
struction may now be given to these words, everyone, we
think, must admit that they are- not the words usually
employed by statesmen in- giving supreme power of legisla
tion," and calls attention to the difference between them
and the grant of exclusive power concerning the District of
Columbia. Von Hoist, the eminent author of the History of the
Constitution, says of the clause, that only the territory is

95
meant such as the United States possessed at the time. (Vol.
I, p. 188.)
It seems, then, indisputable that the clause of the Consti
tution authorizing Congress to "make all needful rules and
regulations for the territory and other property of the United
States" has no reference to any territory but that possessed by
the government at the time it came into existence, consequently
that any claim of jurisdiction over the Territoriesfrom this pro
vision is not proven; and that if we would establish any right
whatever, to say nothing of an exclusive and unlimited right,
of Congress to legislate for the Territories, we must look else
where in our national Constitution. It will be in vairi,^ow-
ever, that we search; since, excepting the two provisions
considered, there is nothing in the instrument specifically
conferring this power upon Congress,
But we have been told by the Supreme Court that the
power of the government to acquire foreign territory by
treaty is unquestionable, and that the power to govern terri
tory thus acquired must follow. Admitting the first proposi
tion, the other follows, logically. The question again presents
itself, what is the extent of this power? The Constitution is
silent upon the subject; we must look to "provisions and
principles of the Constitution and its distribution of powers
for rules and principles;" we are to study the genius of the
government, and consult th« history of its formation.
It is proposed to examine, first, the claim to exclusive
jurisdiction; second, the correct theory of government.
We are told by Chancellor Kent, that:
It would seem from these various congressional regulations of the
Territories belonging to the United States, that Congress has supreme
power in the government of them, depending on the exercise of their
sound discretion. That discretion has hitherto been exercised in wisdom
and good faith, and with an anxious regard for the security of the rights
and privileges of the inhabitants, aa defined and declared in the ordinance
of July, 1787, and in the Constitution of the United States. * * *

96
If, therefore, the government of the United States should carry into
execution the project of colonizing the great valley of the Columbia or
Oregon river, tK> the west of the Rocky Mountains, it would afiord a
subject of grave consideration what would be the future civil and political
destiny of that country. It would be a long time before it would be
populous enough to be created into one or more independent States; and
in the meantime, upon the doctrine taught by the acts of Congress, and
even upon the judicial decision of the Supreme Court, the colonists would
be in a state of the most complete subordination, as dependent upon
the will of Congress as the people of this country would have been upon
the king and Parliament of Great Britain, if they could have sustained
their claim to bind us in all cases whatsoever. Such a state of absolute
sovereignty on the one hand, and of absolute dependence on the other, is
not congenial with the free and independent spirit of our native institu
tions; and the establishment of distant territorial governments, ruled
according to will and pleasure, would have a natural tendency, as all
proconsular governments have had, to abuse and oppression. (P. 430,
Vol. L) And, in a note to the above, adds:
Cicero, in his oration for the Manilian law, c. 14, describes in glow
ing colors the oppressions and abuses committed by Roman magistratesi
exercising cruel and military power in the distant provinces.
It will be seen that this distinguished jurist declares
the system established by Congress, and sanctioned by
judicial decision, to be at variance with the spirit of our
institutions; and derives consolation from the fact that the
discretion of Congress has hitherto been exercised in wis
dom and* good faith. It is a little singular that both this
author and Judge Cooley should consider it necessary to state
this latter fact; it looks much like an effort to extract some
satisfaction from a state of affairs they feel to be radically
wrong. Judge Cooley, in his work before mentioned, declares
that " the Constitution was made for the States, and not for
the Territories" — a somewhat ambiguous statement, since if

97
It means that the Territories are not within the contemplation
of the Constitution, it may be asked where a government of
strictly delegated power derived its authority to acquire and
govern them? Or, if it means that the Territories are within the
contemplation of the Constitution, but not protected by its
provisions, it may be asked, if our revolutionary patriots
fought for liberty in order that they might establish a
despotism? The author continues:
It confers power to govern Territories, but in exercising this the
United States is a sovereign dealing with dependent territory, according
as in its wisdom shall seem politic, wise and just, having regard to its own
interests as well as to those of the people of the Territories,
The tyrannical powers of an absolute despotism could
scarcely be more succinctly defined than this. But he
adds:

It is believed, however, that the securities for personal liberty which
are incorporated in the Constitution were intended as limitations of its
power over any and all persons who might be within its jurisdiction
anywhere, and that citizens of the Territories, as well as citizens of the
the States, may claim the benefit of their protection. (P. 36.)

It must be admitted that " believed" in this connection,
is a filmy support for the lives and liberties of over a million
people. And yet the learned author but represents a favorite
theory. Bouvier's Law Dictionary states that:
Congress possesses the power to erect territorial goverment within the
territory of the United States; the power of Congress over such Territories
is exclusive and universal, and their legislation is subject to no control
unless in the case of ceded territory, as far as it may be affected by stipula
tions in the cessions. '

98
These statements are the embodiment of the views of the
ultra broad constructionists.
It may be safely stated that a majority of the public men
of the first years of the century considered the purchase of
Louisiana unconstitutional; President Jefferson so regarded
it. Public policy demanded the purchase; the Constitution
was forgotten, and so the territorial question commenced its
course outside of that admirable instrument, and has ever
remained outside, and continued to depart farther from it.
Jefferson left the evils of this unwise act to the good sense of
succeeding generations for correction, but his words have been
forgotten. Such evils are seldom corrected.
Judicial decisions by the highest court of the nation, and
the opinions of eminent writers, may be produced to show
that the unrepublican idea of the powers of Congress is not
the only one.
Judge Story says:
If the territory can be purchased, it must be governed, and a territorial
government must be created ; but where can Congress find authority in the
Constitution to erect a territorial government?
If, then, there is no power to erect any government, there
is certainly no power to erect a despotic government, one of
unlimited powers.
Von Hoist, p. 445, says:
The United States have, outside of the Constitution, no legal relation.
The relation of the Union to the Territories is therefore a legal relation in
and under the Constitution, which is wholly independent of the legislation
of Congress, of which it is in fact the basis.
It is here held that it is to the Constitution we must go to
ascertain the scope of the power of the general government in
this respect, in the absence of express provisions therein, the
spirit thereof must prevail.

99
Chief Justice Taney, for nearly thirty years the highest
judicial functionary in the United States, delivered the opinion
of the Supreme Court im the famous case of Scott against
Sandford, in the views of which the entire bench joined with
but two exceptions. The decision, which involved the status
of the negro under the Constitution, the rights of Congress
over the Territories, and other interesting and important ques
tions, was considered a victory for the slave States. The Consti
tution, before the recent amendments, nowhere forbade slavery,
but in several provisions distinctly recognized the existence of
it. The Constitution had been called "a covenant with death
and an agreement with hell" by the late Wendell Phillips,
an opinion in which abolitionists generally joined. The suc
ceeding presidential election was contested by the abolitionists
largely on their expressed intention of disregarding so much
of this decision as relegated negroes to an inferior station.
Their candidate, Abrahain Lincoln, in his inaugural address,
said: At the same time, the candid citizen must confess that if the policy of
the government upon vital questions affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court, tbe instant they are
made in ordinary litigation between parties in personal actions, the people
will have ceased to be their own rulers, having to that extent practically
resigned their government into the hands of that eminent tribunal.
It will thus be seen what a trivial position the Supreme
Court occupies, except in times of public calm, when it is
the pleasure of the government to consider it final and
irrevocable. This opinion was discredited by the govern
ment officials and reversed by the' war, but only so far as
regards the negro. The logic of the decision concerning the
Territories stands out just as clear, and its force remains
equally as great to-day as on the day of its announcement,
March 5th, 1856. No war has reversed it, no amendment
expressing the will of the majority to change the Constitution

100
in this particular has been adopted or suggested. These facts
are recalled by way of preface to those portions of the opinion
which it is proposed to introduce, and which are not to be
impugned by the statement that the decision in the Dred
Scott case is of no effect.
The opinion in question was to the following effect, con
cerning the subject under discussion; the words are those of
the reporter's head notes:
The clause in the Constitution authorizing Congfess to make all need
ful rules and regulations for the government of the territory and other
property of the United States, applies only to territory within the chartered
limits of some one of the States, when they were colonies of Great Britain,
and which was surrendered by the British government to the old con
federation of the States in the treaty of peace. It does not apply to ter
ritory acquired by the present Federal government by treaty or conquest
from a foreign nation.
The case of the Ins. Co, v. Canter (1 Peters, 511), referred to and
examined, showing that the decision in this case is not in conflict with that
opinion, and that the court did not, in the case referred to, decide upon the
construction of the clause of the Constitution, above mentioned, because
the case before them did not make it necessary to decide the question.

Also:

3. The United States, under the present Constitution, cannot acquire
territory to be held as a colony to be governed at its will and pleasure.
But it may acquire territory which at the time has not a population that
fits it to become a State, and may govern it as a Territory, until it has a
population which, in the judgment of Congress, entitles it to be admitted
as a State of the Union,
4, During the time it remains a Territory, Congress may legislate
over it, within the scope of its Constitutional powers in relation to citi
zens of the United States, and may establish a Territorial government
and the form of this local government must be regulated by the discretion
of Congress, but with powers not exceeding those which Congress itself,
by the Constitution, is authorized to exercise over citizens of the United
States, in respect to those rights of person or right of property.

101
Here, then, we have a most solemn enunciation of the
power of our national legislature over the Territories con
curred in, with two exceptions, by all of ^he judges of the
Supreme Court of the United States. We find those powers
to be thus limited — the United States cannot acquire territory
to be governed at its will and pleasure; nor can it exceed
those powers which Congress itself may exercise over the
¦citizens of the United States, concerning the rights of person
or property. In the words of Judge Jere. S. Black,
I do not assert that they can govern themselves in a way forbidden by
the Federal Constitution, or by an act of Congress passed in pursuance .
thereof. The people of a State cannot do that. What I do assert is
that Congress cannot legislate for a Territory on any subject matter on
which it cannot legislate for a State. This furnishes an easy and
infallible test of constitutionality. (Federal Jurisdiction in the Terri
tories, p. 15.)
As stated before, the case in the first of Peters is univer
sally quoted by those who claim despotic powers for the
Federal government over the Territory. It has already been
shown that the statement made in this decision concerning the
scope of the clause in the fourth article, is usually miscon
ceived; there is but one other sentence of the opinion that
seems to sustain the unrepublican theory, viz:
In legislating for them [the Territories] Congress exercises the com
bined powers of the general and of a State government.
This was also considered by the court in Scott v. Sand
ford; the opinion in the case points out that the question had
been as to the lawfulness of an admiralty court at Key West,
established by the legislature of the Territory of Florida,
under its power over all rightful objects of legislation. The
Supreme Court distinctly stated the question before it to be,
"it has been argued that Congress cannot vest admiralty

102
jurisdiction in courts created by Territorial legislatures."
It then shows that the courts were mere legislative and
not constitutional courts, and Congress niight delegate the
power to establish them to the Territorial government; and
concludes: Although admiralty jurisdiction can be exercised in the States in
those courts only which are established in pursuance of the third article
of the Constitution, the same limitation does not extend to the Territories.
In legislating for them. Congress exercises the combined powers of the
general and of a State government — meaning that the discretionary power
of the State government is shown in giving the judges appointments for
terms of years only — that of the general government in investing these
courts with admiralty jurisdiction.
The Chief £ Justice further adds:
The question as to what courts Congress riiay ordain or establish in a
Territory to administer laws which the Constitution authorizes it to pass,
and what laws it is or is not authorized by the Constitution to pass, are
widely different. And we are satisfied that no one who reads attentively
the pages in Peters' reports, to which we have referred, can suppose that
the attention of the court was drawn for a moment to the question now
before this court. (P. 447,)
And further:
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 rules and principles by which its decisions must be governed.
In the absence of express regulation of the power of
Congress over the citizens of a Territory, we must not forget
the words of the tenth article of the amendments — that the
powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States

103
respectively, or to the people. Here, then, is an express limi
tation of the power of Congress.
We are told by Chief Justice Marshall that:
The distinction between a government of limited and unlimited
powers is abolished, if these limits do not confine the persons on whom they
are imposed. Von Hoist, p. 446, says:
And equally incontestable is it * * * that the powers
of the Federal government, with regard to the persons and property of
the citizens of the Territories, cannot be other than those granted it over the
citizens of the States.
If any doubt could remain as to the restricted powers of
Congress over the Territories, it would seem clear that in the,
cases of those ceded by Mexico such doubt must vanish, in.
view of the treaty of peace, signed May 30, 1848, in Article IX.
of which it is provided that the people of the ceded territory
"shall be maintained and protected in the free enjoyment of
their liberty and property, and secured in the free exercise ol
their religion, without restriction."
It is claimed that the foregoing discussion establishes the'
following principles:
1. Upon the acquisition of foreign territory, not admitted
at once in the Union as a State or States, it is the duty of
Congress to give the people thereof a charter. "But," in the
strong words of Judge Black, "the charter must be a free one.
If it abridges the liberty of the people to do as they please
about matters which concern nobody else it is void."
2. That the people of such Territory, having secured a
charter or organic act, have, under the Constitution, the same
exclusive right of local legislation possessed by citizens of a
State. "If there be anything fixed, established and undeniable

104
as a proposition of public laws, it is the national right of a
free community like Utah to govern itself. It is impossible
for a member of Congress not to know that the success of our
revolution was an acknowledged triumph of that principle,"
are additional words of that eminent jurist, Judge Black.
Any other conclusion would lead to absurdities and to des
potism. There is not a candid American who will claim,
upon a moment's reflection, unlimited power, in this respect,
for the general government. Such a principle established
would put it in the power of Congress to do anything with
the Territories — to establish over them a despotic tyranny, in
comparison with which Russia would be the whitest repub
licanism. If it is claimed that Congress, in legislating for these
satrapies, has unlimited power, except that it must observe
the right of person and property enumerated in the Constitution,
there is still left a general government claiming to exercise the
same powers over its subjects in the Territories against which
the colonists protested to the extent even of revolution. We
still have a government which may prohibit slavery in the
Territories, and as a necessary result enforce it there; one which
may prohibit polygamy in the Territories, and as an inevitable
consequence establish it there, a government which in Utah
has given one-half of the jurors to one-tenth of the popula
tion; disfranchised thousands of citizens without trial; made
ex post facto laws, and which now proposes to rob women of the
vested right of suffrage; to confiscate the property of a private
corporation, and even suggests the substitution of a commis
sion for the government of that Territory, in place of the
Legislature. To-day it is polygamy and the alleged union of church
and state which Congress presumes to crush; to-morrow it
may be the political creed of some of the Territories which
excites its animosity. If Congress has power to legislate at
all on the marriage question, it may go to any limit; if one of

105
the Territories has established strict laws concerning divorce,
and of which they feel justly proud, it is entirely within the
?cope of the assumed powers of Congress to replace them by
regulations destructive of the family and society. If they
may prescribe that one-tenth of the population may furnish
one-half of the jurors, it is only an application of the same
principle that they should empower one man to choose them
all. If they may rob women of the privilege of voting, they
niay likewise take it away from men. If they may confiscate
the property of a corporation, they may rob an individual. If
they may prescribe that a commission, upon satisfactory evi
dence to them, may issue a warrant of attachment for an
alleged witness, who in practice may not be bona fide such,
once in a hundred times, and hold him not to exceed ten
days, they may prescribe that he may likewise be held not to
exceed ten years— a convenient method of disposing of
.obnoxious people. They may foist the dram shop upon a
temperance community; they may license prostitution in a
moral one. It is the Mormons this year — it may be the
Catholics next.
It may be stated, that whatever may be the ideas of Con
gress, concerning its own powers, they have usually been exer
cised wisely and with an earnest desire for the welfare of the
Territories; republican charters have been granted to them,
and their local affairs have, as a rule, been left to themselves.
This is what they have done, except in the case of Utah ; but
the alarming fact exists that their enormous enslaving power
has only been sleeping. What they might have done depended,
or what they may yet do depends only upon the will and
pleasure of Congress. It is only by the strong efforts of states
men and the unswerving fidelity of courts, that past wrongs
may be corrected, and future evils rendered impossible.
Congress has been urged to supersede the Legislature of
Utah by a commission appointed by the President. The early
government of the Northwestern Territory and Louisiana are

106
cited as precedents. Concerning the former, the commission
referred to was created by the Congress of the old Confedera
tion. The plan of government thus adopted, being satisfactory
to the people, was perpetuated under the power of Congress to
make needful rules and regulations for the government of
territory then belonging to the United States. As pointed out
by Judge Taney,
The power which Congress may have lawfully exercised in this Terri
tory * ¦* can furnish no justification and no "argument to support
a similar exercise of power over territory afterwards acquired by the
Federal government. (Scott ¦;;. Sandford, 19 Howard. )
Moreover, the nature of the government was as follows: —
The governor and judges were to select and adopt in the
districts such laws of the original States as were best suited to
their circumstances; and report the same to Congress. This
was the provision for the districts until there should be five'
thousand male inhabitants of full age; then the government
was vested in a governor, appointed by the President, a
council of five members to be selected from ten names sub
mitted by the house of repesentatives of each disitrict, and a
house of representatives elected by the people, with a further
assurance of admission upon reaching a population of sixty
thousand. Thus, it is seen that the powers of the first
government are limited to selecting suitable laws; it had no
legislative power and was ephemeral, the succeeding govern
ment was representative. Again, these colonies were assured,
in their charters, religious freedom; the privilege of the
habeas corpus; trial by jury; proportional representation in
the legislatures; the principles of the common law; bail in
all cases except capital offenses; moderate fines, and that no
man should be deprived of liberty or property except by judg
ment of his peers.
In the case of Louisiana, the temporary government by the
commission lasted but a year; the object of establishing it was

107
to give an opportunity of finding out something of the
geography and people; the latter were French and Spanish,
and little known by the people of the United States. It will be
found that when it was alleged in Congress that the temporary
government given to Louisiana was a new thing in the
United States and opposed to the Constitution and the treaty,
it was answered that the government was justified because the
people differed materially from those of the United States; were
unacquainted with the principles of the government; that
information from an authentic source had been received
that the provisions of our institutions were inapplicable to
them, and it was a short time only, perhaps a year. One
speaker said the most ridiculous idea was that these people
were to be kept in slavery until taught to think and behave
like freemen. The question to be determined was, "are the
people of Louisiana capable of self government?" It was
decided that they were not then, and for this reason alone was
the temporary commission, without legislative powers, extended
over them. In a year it was supplanted by a 'representative
government. Those who appeal to these as precedents, must be fire-
pared to accept them as such entirely; in both cases the
reasons for the commission were lack of population and
preparation; hence they would fail as precedents except
under similar circumstances.
No less distinguished writer than Judge Cooley has com
pared the relation of the Territories and the general government
to that of a city or town of the States; and has argued from the
power of States to shape municipal governments to that of
Congress to take care of the Territories. The comparison
seems to be fallacious; the inhabitants of a city within a State
are entitled to all the rights and privileges of any citzien ol
the State; when they ask for a charter, they ask for what
they know is a further advantage to them; they desire it; they
receive benefit from it; it robs them of no privileges; it adds

108
to them safety and happiness. The same author informs us
that Congress is limited only by its discretion in dealing with
the Territories; they hkve no rights; Congress measures out
to them as many privileges as it thinks proper; the author
believes the securities for personal liberty in the Constitution to
be as much for the benefit of citizens of the Territories as for
those of the States. There is a wide difference between the
desired "pupilage" of the city with the possession of every right
of a freeman, and the enforced absolutism of a Territory with
hazy rights and doubtful privileges.
It is now proposed to consider briefly those wrongs of
the colonies against which they so manfully and urgently
protested, and which, unredressed, ultimately gave birth to
American independence. Before doing so, however, it may
be well to understand what differences there are, if any,
between the dependence of the Territories and the dependence
of the colonies. Judge Cooley finds several differing features
"which are important, indeed vital. The first of these is that.
the territorial condition is understood under the Constitution
to be merely temporary and preparatory, and the people of
the Territory while it continues are assured of the right to
create and establish State institutions for themselves so soon
as the population shall be sufficient and the local condition
suitable; while the British colonial system contained no
promise or assurance if any but a dependent government con
tinually." In answer to which it may be said that whether
or not the. conditions are suitable depends upon the pleasure
of Congress, Let the politics of Congress and the Territory
be opposed for fifty years, and it is entirely probable it will
remain a Territory for that length of time. Let it contain a
predominant Spanish population, as New Mexico, and this
may be urged and accepted as a sufficient reason to keep the
Territory forever out of the Union. Let the "Mormons"
abandon polygamy, it will be claimed that the Church is
dominant; let them abandon and disorganize the Church,

1Q9,
and a secret understanding will be clainaed; what then does
the promise of statehood amount to? The British colonies are
infinitely freer to-day that the American Territories.
The second is that the people of the American Territories are
guaranteed all the benefits of the principles of the Constitutional right
which protect life, liberty, and property; * * * ^^ile in the
colonies those principles were the subject of dispute, and, if admitted,
would be within the control of an absolute imperial legislature which might
overrule them at -will.
Are the citizens of Territories guaranteed these rights?
The author on the preceding page, says, "it is believed"
they are; the Edmunds bill claims exclusive jurisdic
tion for Congress over the Territories; and it has been seen
that many bplieve, the majority perhaps, that Congress is
only limited by its discretion and pleasure. It would be diffi
cult to believe that Parliament was bound by less stringent
rules. The third difference is that the Territories have the right
of local taxation; the government only taxing them to realize
sufficient revenue to repay what is expended for them. Yet
the Territories would be taxed equally the same eyen if they
should protest; and it was against taxation without consent
that the colonists waged war. What is to prevent Congress
under its assumed powers from taxing the Territories to any
extent? Nothing.
The Congress of 1774, participa,te.d in by Washington,
Adams, Jay, Henry, and other patriots, adopted the following:
Can the intervention of the sea that divides us cause disparity of rights,
or can any reason be given why English subjects who live three thousand
;niles from the royal palace, should enjoy less liberty than those who are
three hundred miles from it. Reason looks ^ith indignation on suph dis
tinctions, and freemen can never perceive their propriety; and yet l^owever
chimerical and unjust such discriminations are, the Parliament assert that
they have a right to bind us in all cases without exception.

110
Know then that we consider ourselves and do assert that we are and
ought to be as free as our fellow subjects in Britain.
These are the sentiments of the men who hewed out
independence for these United States; could more apt ones
be chosen by the citizens of a Territory in pleading their
cause? Apropos of the proposition to govern Utah by a commis
sion, here are a few historical statements respectfully submitted
to the gentlemen who urge such measures. There is no
instance of a colony settled in America without a representa
tive assembly of the people, nor any attempt to deprive the
colonies of this privilege except in the arbitrary reign of James
II; and this attempt led to the passing of resolutions insisting
on the right of representation; which right existed in every
colony at the time of the revolution.
The colonists denied the supremacy of the legislative
powers of Great Britain, and insisted that they themselves
possessed the power of local legislation. The colonial judiciary
sanctioned this position. It was agreed, however, that in such
acts as were for the general welfare, or which regulated com
merce or intercourse with foreign countries or the mother
country, Parliament had jurisdiction. The Colonial Congress
which met in September, 1774, set forth their grievances in
language so appropriate to the present state of affairs existing
in the Territories of the United States, that copious extracts
from their petitions are introduced:
Besolved: I. That they are entitled to life, liberty and property, and
have never ceded to any sovereign power whatever.a right to dispose of either
without consent,
II. That our ancestors were at the lime of their emigration from the
mother country entitled to all the rights, liberties and immunities of free
and natural born subjects within the realm of England.
III. That by such emigration, they have neither forfeited, surren
dered" nor lost any of these rights.

Ill
IV. That th^e foundation of English liberty, and of all free govern
ment, is a right in the people to participate in their legislative councils.
And as the English colonists are not represented and from
their local and other circumstences cannot properly be represented in the
British Parliament, they are entitled to a free and exclusive power of legis
lation in their several provincial legUlatures, where their right of legUlation
can only be preserved in all cases of taxation and internal policy, subject
only to the negative of their sovereign.
y. That, therefore, the exercise of legislative power in severa
colonies, by a council appointed during the pleasure of the crown, is
uncoastitutional, dangerous, and destructive to the fi-eedom of American
legislation. In the address to the House by the same Congress the
following occurs:
Had our Creator been pleased to give; us existence in a land of slavery
the sense of our condition might have been mitigated by ignorance and habit.
But thanks be to His adorable goodness, we were born the heirs of freedom
and ever enjoyed our right under the auspices of your royal ancestors.
* * * Your majesty, we are confident, justly rejoices that your title
to the crown is thus founded in the title of your people to liberty.
The above quotations are submitted without remark; it
would be unnecessary to point out the obvious parallelism of
the grievances and claims of the colonists and those of the
citizens of the Territories.
The Revolution was fought not so much on account of
the hardships which the colonists suffered from the tyranny of
Great Britain, a& on account of the principle involved in a sub
mission to trivial excesses of power, which might lead to despot
ism. It was not that the taxes imposed were burdensome, be
cause they were light; it was, as stated by Washington, because
the same authority which could impose a small tax could rob
the colonists of their last shilKng. It was, then, chiefly upon
the claim and denial of the principle of local self-government
that the revolution was fought, and if the result of that long

112
contest settled any principle definitely, it was the right of a
free community to legislate for itself on lopal affairs. The
result of that war was a triumph of human rights. The
Declaration of Independence had pronounced that all men
"are endowed by their Creator with certain inalienable rights,
among which are life, liberty, and the pursuit of happiness."
Liberty is consistent only with local self-government; to be
ruled by a distant power is to be subjected' to laws passed con
trary to your desires and in ignorance of your situation.
The result of the war of independence was the Constitution
of the United States, in every part of which is stamped the
ideas of local jurisdiction, the general government only possess
ing such power under it as is necessary for the public good and
general welfare, and being expressly limited in its jurisdiction
to those powers granted to it; all rights not granted being
expressly reserved to the States respectively or to the people.
The colonists fought for local legislation; they were victorious;
the Constitution was formed in accordance with the idea;
exclusive authority over the Territories is nowhere granted in
that instrument. The colonists contended for this principle
with a government without a written constitution, whose
Parliament is supreme and subject only to the check of a
popular insurrection. We contend for local legislation with
a government of strictly delegated powers, and which is the
creature of the very idea it now opposes. Moreover, Congress
has opened the Territories for settlement, it sells land to
settlers and invites people from the States as well as from
other parts of the world to purchase, and extends to all the
benefits of a free government.
It is vain to argue that citizens of the United States lose
the rights, or that citizens of other countries do not gain the
rights of freemen under such circumstances. Great Britain
recognized two kinds of colonies; first, the settled, in which
citizens possessed the rights of Englishmen; and, second, the
Crown, or conquered, in which people settled with the under-

113
standing that their privileges were at the discretion of Parlia
ment. If, then, our government refuses to grant citizens of the
Territories those rights to which the Constitution and our his
tory entitle them, the precedents of our colonial days must
prevail, and the uniform practice of the British government
in granting to those people who settled in colonies which had
been thrown open for settlement by the government the
rights of British citizens, should impel Congress to grant to
settlers in our western Territories the rights of United States
citizens, with all that the right means.

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