- 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.9 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 cerning the territory and other property of the United States, as from the ownership of the country in which its territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else," In the Late Corporation of the Church of Jesus Christ v. United States12 the court say: "The power of Congress over the Territories of the United States is . . . general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property of the United State?, it would be absurd to hold that the United States has the power to acquire territory, and no power to govern it when acquired." Here, though Section III of Article IV is indeed referred to, the power to acquire is clearly emphasized as the source of the power to govern. Finally in De Lima v. Bid-well,13 one of the so-called "Insular Cases," the court say: "It [the power to govern] is an authority which arises not necessarily from the territorial clause of the Constitution, but from the necessities of the case, and from the inability of the States to act on the subject."

The arguments and opinions m the Dred Scott case revealed the difficulties involved in a recourse to Article IV, Section III, for the power to govern acquired territories, and, accordingly, since that date we find the Supreme Court emphasizing the doctrine that the power is implied in the right to acquire, as well as arguable from the fact that inasmuch as the States have no authority in the premises the Federal Government must have it. Thus in United States v. Kagama11 the court say: "The power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations conthe United States and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purpose of the instrument, as it is with its language, and I can have no hesitation in rejecting it. I construe this clause, therefore, as if it had read, Congress shall have the power to make all needful rules and regulations respecting those tracts of country out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions as well as of the jurisdictions as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it. It has been argued that the words ' rules and regulations' are not appropriate terms in which to convey authority to make laws for the government of the Territory. But it must be remembered that this is a grant of power to the Congress - that it is, therefore, necessarily a grant of power to legislate - and certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a legislature to make all needful rules and regulations respecting the Territory, is a power to pass all needful laws respecting it . . . Without government and social order there can be no property; for without law, its ownership, its use and the power of disposing of it cease to exist, in the sense in which those words are used and understood in all civilized States. Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that government is indispensable to provide for those needs, and the power is, to make all needful rules and regulations respecting the Territory. I cannot doubt that this is a power to govern the inhabitants of the Territory, by such laws as Congress deems needful, until they obtain admission as States."

11 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 22S.

12 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.

13 182 U. 6. 1: 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.