It had the
power to create them; it must, of necessity, have had the power to
dispose of them. It was only necessary to confer the power to dispose of
those things which the Federal Government did not create, of those
things which came to it from the States, and over which they might
signify their will for its control.
I look upon it as the mere power to dispose of, for considerations and
objects defined in the trust, the land held in the United States, none
of which then was within the limits of the States, and the other public
property which the United States received from the States after the
formation of the Union. I do not agree with those who say the Government
has no power to establish a temporary and civil government within a
Territory. I stand half-way between the extremes of squatter sovereignty
and of Congressional sovereignty. I hold that the Congress has power to
establish a civil government; that it derives it from the grants of the
Constitution--not the one which is referred to; and I hold that that
power is limited and restrained, first, by the Constitution itself, and
then by every rule of popular liberty and sound discretion, to the
narrowest limits which the necessities of the case require. The Congress
has power to defend the territory, to repel invasion, to suppress
insurrection; the Congress has power to see the laws executed. For this
it may have a civil magistracy--territorial courts.
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