could not, have provided a different system for the territory. A statement that acts of Congress which, when passed, covered states and territories, would extend of their own force to after-acquired territory, unless differently stipulated in the treaty of cession, is no support whatever for the proposition that the constitution will extend of its own force to such territory. It seems to me that the case carries a distinct recognition of the right of the treaty-making power or of Congress to provide a different system for the territory, and that the decision is rested upon the omission in the treaty to provide for any different system. I think it proper to add, further, that in my judgment the case could be sufficiently rested upon the power of the Executive to administer the territory in the absence of legislation, and that in such administration the Executive might, in his discretion, though he would not be bound so to do, adopt the existing tariff rates of the rest of the country. But however this may be, there is certainly nothing in this case that upholds the contention that Congress is constitutionally bound to provide import duties in the territories uniform with those in the states.

(d) Bankruptcy Acts.

The Congress shall have power to establish uniform laws on the subject of bankruptcies throughout the United States. Art. I, Sec. 8, Subs. 4.

This provision is to be construed in the same manner as the provision as to uniform revenue laws or uniform naturalization laws. It occurs in the same subsection as the latter, and all that has been said on the other two provisions as to "uniform" laws is applicable to this provision. In any event the provision could hardly be a source of embarrassment in legislating for the dependencies.

(e) Military Forces.

1. A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.-Amend. II.

2. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.-Amend. III.

The first of these provisions contains a clear intimation that it is intended for the security of the states. A territory is not a "free state;" it is a dependency to be governed

as Congress may deem expedient. As it is thus within the power of Congress, there would be an absurdity in holding that it is to be given a right to bear arms in order to resist the exercise of that power. A territorial militia may be authorized or not by Congress, just as a state militia may be authorized or not by a state. While, therefore, some have urged that this provision would entitle the Porto Ricans or the Filipinos to bear arms, and thus prepare for insurrections, it seems almost too clear for argument that no such construction could properly be put upon the provision, even if the contention as to the whole of these amendments, namely, that they are intended only for the protection of states, should be inadmissible.

The second provision could be no source of embarrassment. But, of course, like all the others, it must, on the theory here advanced, be held to be no restriction upon the powers of Congress in dealing with the territories.

(f) Titles of Nobility.

No title of nobility shall be granted by the United States. —Art. I, Sec. 9, Subs. 8.

In its terms this is the broadest of all the provisions found in the constitution as originally passed. While the construction contended for in this paper should, of course, extend to this provision also, it could be of no consequence practically whether it were so construed or not. It is very doubtful whether any circumstances could ever arise calling for a construction of it.

(g) Freedom of Opinion and Speech.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.-Amend. I.

Of all the amendments this is the broadest in its terms. But it should have no different construction than any of the other of the first ten amendments. Each is intended to secure to the states or the people thereof, an immunity against the aggressions of the federal power. Even if, however, it should be held to protect equally the people of a dependency, it is difficult to see how it would interfere with the proper government of such dependency, as it is altogether

improbable that Congress would think it expedient to exercise any one of the powers prohibited in the amendment. (h) Slavery.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.-Amend. XIII.

This provision is the only one found in the constitution which in terms limits the powers of Congress in dealing with the territories. The latter are subject to the jurisdiction of the United States, and therefore within the protection of the amendment prohibiting slavery. It is a very significant fact, throwing light upon the view of Congress and the states as to the meaning of the other constitutional limitations that the phrase," or any place subject to their jurisdiction," should have been inserted in this amendment. If, as has been urged by some, all the limitations extend to the states and territories alike, that is to all places subject to the jurisdiction of the United States, why should Congress and the states have been anxious to insert here a phrase expressly including the territories? If the phrases, "throughout the United States," "within the United States," used elsewhere in the constitution, mean throughout or within all territory over which the federal sovereign has jurisdiction, then the phrase here used is not only useless, but dangerous, for while it adds nothing, it throws a grave doubt at once upon the meaning of the phrases previously used. Is it not obvious that it was inserted because the other phrases were understood to mean throughout or within the territory of the states united under the constitution, while as to this amendment the Congress and the states meant to go further and include that territory and also the territory over which by Article I, Section 8, subsection 17, and Article IV, Section 3, subsection 2, Congress has been given plenary power?

These are all the provisions of the constitution that restrict the powers of Congress. These are all the important decisions of the Supreme Court, save one, that directly consider the question whether Congress is subject to any of these restrictions, or to any restrictions, in legislating for the territories. It still remains to consider the case of Dred Scott v. Sanford (19 Howard, 393). Scott claimed his freedom on two grounds: that he had been taken by his

master to the free state of Illinois and had resided there two years; that he had then been taken to the free territory of Upper Louisiana (now Minnesota) where slavery was prohibited under an act of Congress (The Missouri Compromise), and had resided there two years. He had then been

taken back to the State of Missouri where he had since resided and where he now sued for his freedom. The question on its merits was whether residence in the free state or the free territory, followed by a return to the slave state, worked an emancipation. The decision on the merits was simply this: residence in a free state or a free territory followed by a return to and residence in a slave state will have such effect, and no other, as the latter state may by the decisions of its highest court give to it; the highest court of Missouri gave no extra-territorial effect to the laws prohibiting slavery in the state and territory in which Scott had resided and deemed him on his return to Missouri still a slave; therefore the federal court was bound to follow the same holding. This disposed of the case on its merits, without any inquiry into the validity or constitutionality of the law prohibiting slavery in the territory, for admitting it to be valid and constitutional it could have no larger effect in working the emancipation of Scott than the confessedly valid law of Illinois. But a majority of the court went further and in opinions clearly extra-judicial held the act of Congress prohibiting slavery in the territory to be unconstitutional. This is put on the singularly narrow ground that the ample grant of power to Congress "to make all needful rules and regulations respecting the territory or other property belonging to the United States" is confined to territory belonging to the United States at the time the constitution was adopted "and cannot, by any just rule of interpretation, be extended to territory which the new government might afterwards obtain from a foreign nation." The sole right to acquire such territory is found in the provision for the admission of new states. Upon this is built up a novel doctrine as to the limited powers which Congress, as the agent or trustee of the states, may temporarily exercise in governing a territory so acquired while nursing it toward statehood, a doctrine now laid up among the discredited curiosities of the law together with all the rest of the extrajudicial utterances of this celebrated case. I suppose no one would now seriously cite the Dred Scott decision as authority

for the proposition that Congress has not full power to govern the territories as it may deem most expedient. Certainly that the main premise of the Dred Scott argument is unsound and discredited is shown by the statement in Utter v. Franklin (172 U. S. 416, 423) that, “this court has repeatedly held that Congress has full legislative power over the territories, as full as that which a state legislature has over its municipal corporations."

Aside from the Dred Scott case and the others previously cited, the pronouncements of the Supreme Court upon the question of constitutional limitations upon the power defined in Utter v. Franklin have been in terms indicative of a vague constitutional theory rather than of a settled constitutional doctrine. Such is the statement of Mr. Justice Matthews in Murphy v. Ramsey (114 U. S. 15, 44) that, "the personal and civil rights of the inhabitants of the territories are secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government, state or national." Such, also, is the statement of Mr. Justice Bradley in Mormon Church v. United States (136 U. S. 1, 44-5), repeated by Mr. Justice Harlan in McAllister v. United States (141 U. S. 174, 188), that, "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 applications of its provisions.'

We need hardly dwell upon such pronouncement. We may rather recur to the classic statement of Chief Justice Marshall in Cohens v. Virginia (6 Wheaton, 264, 399): "It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." This maxim we may