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                             2130
which the Constitution left in force, it had been agreed that States, not exceeding five, 
might be formed from the Northwest Territory and received into the Union; and it may 
be assumed as unquestionable that the constitutional provision contemplated that the 
territory then under the dominion of the United States, but not within the limits of any 
one of them, was in due time to be formed and organized into States and admitted into 
the Union, as has since in many cases been done.
Indeed, it could never have been understood that any territory which by purchase, 
cession, or conquest should at any time come under the control of the United States should 
permanently be held in a Territorial condition, and-the new States which have been 
formed of territory acquired by treaty must be supposed to have been received into the 
Union in strict compliance with the Constitution.
Bat we are told that the opinion of Chief Justice Taney in the Dred Scott 
case was obiter dictum and the point was not before that court. The question in 
the Dred Scott case was simply this: Did the Constitution of the United States 
authorize a slaveholder to take his slave into the common territory of the 
country where slavery was prohibited by Congress without losing property in his 
slave? The case originated in my own State, Missouri, where an Army officer 
took his body servant, Dred Scott, into the territory north of the Missouri 
compromise line of 1820, and on his return to Missouri this negro slave, Dred Scott, 
sued put a writ of habeas corpus, claiming that by having gone into this territory 
north of the Missouri compromise line he became free and must necessarily remain 
free, and that the status of slavery did not attach to him when brought back to the 
soil of Missouri. The supreme court of Missouri decided the case against Dred 
Scott.
It was then taken to the Supreme Court of the United States as involving a 
statute of the United States establishing the Missouri compromise line, and the 
real question involved in the case was whether in the face of the Missouri 
compromise the Constitution of the United States proprio vigore gave the slave 
owner a right to take his property into territory held by the United States Gov-
ernment, as Justice Gray said, as trustee for the people of all the States. Chief 
Justice Taney and the six associate justices who agreed with him said that the 
Constitution did override any statute that could be made by Congress as to the 
right of a citizen of any of the States to take his property, admitted to be property 
by the Constitution, into the common territory of the Union. The point at issue 
and the real point was, does the Constitution proprio vigore apply to all the 
territories of the United States, not only without the action of Congress, but in 
spite of an act of Congress which said that north of a certain line or degree of 
latitude slavery and involuntary servitude should not exist?
How, then, could the decision in that case be obiter dictum? It was the point at 
issue, and Chief Justice Taney and his associates declared emphatically and 
distinctly that the Constitution applied to the Territories. Nothing was urged in all 
that elaborate argument, when every justice delivered a separate opinion for 
him-self, about the Congress of the United States applying the Constitution to 
the Territories of the United States. That is a new departure, I do not mean to 
say that it has not been advanced before. Mr. Webster used it in the slavery 
debate over the New Mexican Territory, and the junior Senator from Vermont 
[Mr. Boss], in an elaborate address which he made here some days ago upon, the 
question to which I am now speaking, quoted from a brief of Daniel Webster 
in the Canter case, where Webster asked the question, "How does the 
Constitution get into Florida?" It is the first time, with all due respect to the 
Senator from Vermont, that I have heard the brief of a feed counsel quoted as 
judicial authority.
Mr. President, I have quoted once before in the Senate, and make no 
apology for quoting it again, the opinion of the Supreme Court of the United 
States in the case of Loughborough vs. Blake, in 5 Wheaton. That was a case 
involving the question whether a direct tax must, by act of Congress, apply to 
the people of the District of Columbia. Chief Justice Marshall delivered the opin-
ion, and every justice upon the bench, as Marshall took pains to declare, agreed 
with him in his decision. The question argued in the briefs of counsel and urged 
before the court was whether the term "United States" included the District of 
Columbia. We are told now that Puerto Rico is not in the United States, or, if it 
is, that it is a, province, a colony, and that the Philippines are in the same 
position. The point in this case was. Did the term "United States" include the 
District of Columbia? It is exactly pertinent to the question that is now pending 
in regard to these insular possessions. I will ask the Secretary to read so much 
of this opinion as I have here marked.
The Secretary read as follows:
In 5 Wheaton, "Loughborough vs. Blake," Chief Justice Marshall, delivering 
the opinion of the court, said:
"The eighth section of the first article gives to Congress the 'power to lay and collect 
taxes, duties, imposts, and excises' for the purposes therein-after mentioned. This grunt 
is general, without limitation as to place. It consequently extends to all places over 
which the Government extends. If this could be doubted, the doubt is removed by the 
subsequent words, which modify the grant. These words are: 'but all duties, imposts, and 
excises shall be uniform throughout the United States.' It will not be contended that the 
modification of the power extends to places to which the power Itself does not extend.
"The power, then, to lay and collect duties, imposts, and excises may be exercised, 
and must be exercised, throughout the United States. Does this


term Designate the whole or any particular portion of the American empire? Certainly this 
question can admit of but one answer. It is the name given to our great Republic, which is 
composed of States and Territories. The District of Columbia or the territory west of the 
Missouri is not less within the United States than Maryland or Pennsylvania; and it is not 
less necessary, on the principles of our Constitution, that uniformity in the imposition of 
imposts, duties, and excises should be observed in the one than the other. Since, then, the 
power to lay and collect taxes, which includes direct taxes, is obviously coextensive with 
the power to lay and collect duties, imposts, and excises, and since the latter extends 
throughout the United States, it follows that the power to impose direct taxes also 
extends throughout the United States."
Mr. VEST. Mr. President, the other day I called the attention of the 
distinguished Senator from Kentucky [Mr. LINDSAY] to this decision, which I have 
never heard explained or alluded to by any of my colleagues who favor what I 
call the imperial side of this question. The answer of the Senator from 
Kentucky was that which all of us who are lawyers have been in the habit of 
making when a decision or authority is found absolutely against the position we 
endeavor to maintain-obiter dictum. How could this decision of Chief Justice 
Marshall have been obiter dictum when the only question before the court was 
what was the meaning of the term "United States?" The contention made then 
was that the term United States did not include the District of Columbia, and 
the technical assertion was made that when the power was given to Congress 
to lay imposts, excises, and duties throughout the United States that outside of 
a State that portion of the Constitution could have no effect. Chief Justice 
Marshall sweeps that technicality away as if it were a cobweb, and says the 
meaning of the term " United States " in the Constitution is the empire of the 
United States, the soil over which the Federal Government has jurisdiction. 
That decision has never been criticised, and the Supreme Court of the United 
States in nine opinions since with-out a dissenting justice has reiterated and 
reaffirmed the doctrines which Chief Justice Marshall then laid down.
My friend the senior Senator from Ohio [Mr. FORAKER] the other day read 
from Colonel Benton's Thirty Years' View, which states that in 1850 for the first 
time appeared in the political history of this country the assertion that the 
Constitution proprio vigore applied to the Territories. This opinion of 
Marshall in Loughborough vs. Blake was delivered in 1820 and had stood from 
that time until Benton finished his Thirty Years' View, after his political 
career was terminated in Missouri, unchallenged and unquestioned, and so far 
as the Supreme Court of the United States is concerned it never has been 
questioned, although repeatedly brought before that august tribunal. I can tell 
the Senator from Ohio, being much more familiar with Colonel Benton, his 
opinions and public life, possibly, and naturally, that if he will go to the 
Library and get the last literary production of Colonel Benton, his essay upon 
the Dred Scott decision, he will find much stronger language. He will find 
vituperation so vitriolic that it could have emanated from no one else than Colonel 
Benton, who was the most extreme man in his opinions that ever appeared in the 
public life of this country.
Mr. President, in orderto escape the decision of the Supreme Court in the case of 
Loughborough against Blake in 5 Wheaton, and other opinions down to three 
years ago, it has become necessary for the advocates of imperialism, which 
means the imposition of a government upon people who are not consulted and 
the exercise of despotic power by one man or cabal of men in the face of all 
republican or democratic institutions, to devise a new theory. From this 
decision in 5 Wheaton down to three years ago, as I said, the doctrine of the 
Dred Scott decision and what is the same thing, that the Constitution applies 
proprio vigore to the Territories, has obtained in the decisions of the highest 
court in the country; and it was found necessary to escape from the inevitable 
and logical result by devising some new theory never heard of before in this 
country except in the speech made in the Senate by Mr. Webster in answer to 
Calhoun on the New Mexican Territory and his brief in the Tanto case. It was 
never heard of in the decision of any judicial tribunal. What is that device, for 
it is not worthy, in any judgment, of any better name? It is that the 
Constitution of the United States, said by John Marshall to apply to all the 
territory over which the Government has jurisdiction, must be extended by act 
of Congress or by treaty stipulation in order to become vital and operative 
within the territorial limits.
I have here decisions of the Supreme Court of the United States, which I will 
not inflict upon the Senate at this late hour, but will take the privilege of 
inserting them in the report of my remarks, in all of which, and I challenge 
contradiction, the Supreme Court, without one single dissent, has declared that 
the Constitution of the United States gave to the people of the Territories and 
the District of Columbia all the rights, privileges, and immunities given to the 
people in any of the States.
In Mormon Church vs. the United States, Mr. Justice Bradley delivered the 
opinion, and said:
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 application of its provisions.

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