The Washington union., 1857-05-28

question by itself in oonnexon with the other pro-
visions of the constitution we think ii clear that APP
plies only TO the particular territory Of which we have
spoken and cannot by any just rule of interpretation
be extended to territory which the government might
afterwards obtain from foreign nation Consequently
the power which Congress may have lawfully exercised in
this Territory while il remained under territorial gov
ernment, and which may have been sanctioned by judi
cia decision, furnish justification and no argument
to support similar exercise OF power territory af
terwards acquired by the federal government We put
aside therefore, any argument, drawn from piecedens
showing the extent OF the power which the general gov
enment exercised slavery in this Territory as alto
gether inapplcable 10 the before us.
But the case of the American and Ocean Insurance
Companies Canter Pet, 81 u has been quoted as
tablishing different construction of this clause OF the
constitution There is, however, not the slightest
ct between the opinion given and the one referred
to- and it is only by taking single sentence out of the
latter and separating it from the context that
appearance of conflict can be shown We need not
ment such a mode of expoundng am opinion of the
court Indeed, it most commonly msrepresents instead
of expoundng it. And this is fully exempiied in the
referred to, where, if sentence is taken by ITSELF
the opinion would appear TO be in direct conflict with
that now given but the words which Immediately follow
that sentence show that the did not mean decide
the point, but merely affirmed the power of Congress
establish government in the Territory, leaving it
open question: whether that power derived this
clause in the constitution to be necessarily infer
red from power to acquire territory by ccsson from
foreign government. The opinion this part of the
Is Short and give the whole of it to show how
well the selection of single sentence is calculated mis-
lead
The passage referred in page 542 in which the
court in speaking of the power of Congress to establish
territorial government in Florida until it should become
| a State, uses the following language:
" In the time Florida continues to be Territory
of the United States governed by that clause Of the
stution which empowers Congress to make all needul
rules and regulations respecting the territory other
property of the United States Perhaps the power of
governing Territory belonging to the United States
which has not by becoming State acquired the means
of selfgovemmcnt may result, necessarily from the
facts that II Is not within the jurisdiction of particu
lar State and within the power and jurisdiction of the
United States The right to govern may be the inevta-
BILE consequence of the right acquire territory Whc-
may be The from ach the orr derired The
session Of Il is nnqucfionabie. =
1t is thus clear from the whole opinion this point
that the court did not to decide whether the power
derived from the clause in the constitution
the necessary consequence of the right to acquire They
do decide that the power in Congress is unquestonahe
and in this entirely concur and nothing will be found
in this opinion to the contrary The power stands firmly
the latter alternative put by the court-that is
.the aetiaJlc consequence Of The right 10 acquire territory
And what still clearly demonstrates that the court
did not to decide the question but leave it open for
future consideration the fact that the decided
in the circuit court by Mr. Justice johnson, and his de-
cison affirmed by the Supreme Court His opinion
at the circuit is given in full in note to the case and in
that opinion he states in explicit terms that the clause
of the constitution applies only to the territory then
within the limits of the United States and not to Florida
which had been acquired by cesson from Spain. This
part of his opinion will be found in the note page SIT
of the report But he does not dissent from the opinion
of the Supreme Court thereby showing that in his judg
ment well that of the court the before them
did not call for decision that particular point and
the court absained from deciding 1t. And in part of
its opinion subsequent to the passage have quoted
where the court speak Of the legislative power of Congress
in Florida they still speak with the and
in page 546 speaking of the power of Congress author
ze the territorial legislature to establish there the
say They legislative courts created ia virtue
of of
government, in virtue of that clause which enables
Congress to make all needful rules and regulations
specng the territory belonging to the United States
1t has been said that the construction given to this
clause new and for the first time brought forward
The of which speaking, and which has been
much discussed shows that the fact is otherwise 1t
shows that precisely the question before Mr.
Justice Johnson at his circuit thirty years fully
considered by him. and the construction given
the clause in the constitution which is given by this
court And that upon an appeal from his decision the
question brought before this court but not
decided because decision upon it not required by
the before the court.
There is another sentence in the opinion which has
been commented on which in still more striking
manner shows how may misead be misled by ta-
king out single sentence from the opinion of court,
and leaving out of view what precees and follows 1t
in page 546 the close of the opinion in which the
court say sin legsating for them he Territories of
the United States Congress exercises the combined
powers of the general and of State government And
it is said that State may unquestonably prohibit
slavery within its territory this sentence decides effect
that Congress may do the in Territory of the Uni
ted States exercising there the powers of State well
as the power of the general government.
The examination of this passage in the referred to
would be more appropriate when come to consider in
another part of this opinion what power Congress
stutionaly exercise in Territory the rights of person
rights of property ofa citizen But it is in the
with the passage have before commented on
dispose of it now will the court from the necessity
Of referring again to the And it will be upon
reading the page in which this sentence is found that it
has reference whatever to the power of Congress
rights of person rights of property but relates
altogether to the power Of establishing judicial tribunals
to administer the laws constitutonaiy passed. and de-
fining the jurisdiction they may exercise
The law of Congress establishing territorial govern
mcnt in Florida provided that the Legislature Of the Ter
objects of legislation but law should be valid which
inconsistent with the laws and constitution of the
United States"
Under the power thus conferred, the legislature of
Florida passed act erecting tribunal at Key West to
decide of salvage And in the of which
speaking the question whether the territorial legi
aue could be authorized by Congress to establish such
tribunal with such powers; and one OF the parties,
among other objections insisted that Congress could not
under the constitution authorize the Legislature of the
Territory to establish such tribunal with such powers,
but that 1t must be established by Congress itself and
that sale of cargo made under its ORDER to pay savos
void made without legal authority and passed no
property to the purchaser.
1t is in disposng of this objection that the sentence
lied occurs and the court begin that part of the opn
ion by stating with great precision the point which they
| are about to decide.