of Article IV. Equality of membership in the Union means that every state shall enjoy the same rights and privileges as every other state. One of the rights of every member of the Union is a right to make covenants and agreements with the United States in any form in which the parties can unite. If, when it enters the Union, a new state makes a covenant with the United States in diminution or limitation of its sovereignty, in a way in which other states have not limited or diminished theirs, the new state is not placed in the Union on an inequality with the other states. There is not inequality in respect to any right, privilege, or standing as a member of the Union. I have always regarded Section 3 of Article IV. of the Constitution of the United States as the source and the only source of the power of Congress, not only to admit new states, but to create and govern those peculiar dependencies which have come to be denominated "territories," but which should be kept in that condition no longer than is necessary to allow of their development into communities fit for the rights and privileges of statehood. It is thirty years since I had occasion to study this part of the Constitution and the legislation under it with peculiar care; and although the result in the case of Dred Scott, in the argument of which I took part in the Supreme Court of the United States in 1856-57, was not what I hoped for and endeavored to bring about, I venture to say that the doctrine for which I then contended, and which was accepted by Justices McLean and Curtis, is now almost universally conceded by constitutional lawyers in all parts of the Union. The doctrine was this: That Section 3 of Article IV. of the Constitution, primarily designed to provide a legislative authority and process for bringing new states into the Union, clothed the Congress of the United States with a penalty legislative power to dispose of the public property denominated "the territory" of the United States, as well as all other property of the United States, and with a penalty legislative power to form the settlers on the public domain into political communities, and to govern those communities so long as they should remain in a state of pupilage or preparation for admission into the Union as states.' 1 1 See "The Constitutional Power of Congress over the Territories." An argu But as the formation and admission of new states was the primary design of the section, it follows that Congress is placed under the obligation of a public trust to permit such communities to become states, and to bring them into the Union as states when the people desire it and they have sufficient population and resources to sustain a state government, republican in its form and spirit. It is not a proper discharge of this public trust to keep any territory indefinitely in the condition of a territory, thereby keeping open a field for the continued exercise of Federal patronage and power. Territorial government is not self-government; and although it is necessary for a certain period for Congress to govern the settlers on the public domaina period that may vary in different cases-yet where the territorial community has become so large and so prosperous that its people are entirely capable of governing themselves, it is contrary to the spirit, institutions, and, in my opinion, to the intent of the Constitution, to withhold from them the full panoply, rights and privileges, of statehood, and to keep them in subjection to a distant power, over which they have not even a partial control, as the citizens of every state in the Union have. But as long as it is necessary for the territorial condition to continue, so long Congress properly discharges the public trust imposed upon it by the Constitution when it determines what shall be the social relations within the particular territory while it remains a territory. This is just as much within the province of Congress as it is to create the machinery of a territorial government, and accordingly it was, and rightfully, the practice of Congress, in organizing a particular territory, to prescribe whether the condition of slavery or involuntary servitude, for example, should or should not be allowed therein. This continued to be the practice down to the time when the existence of slavery in territories took no other form of public controversy; and undoubtedly the power of Congress, as the precedents presently to be cited will show, was exercised both for and against slavery, according to varying circumstances; and the authority of Con ment delivered in the Supreme Court of the United States, December 18, 1856, in the case of Dred Scott, plaintiff in error, vs. John F. A. Sanford, by George Ticknor Curtis. Boston, Little, Brown & Company, 1857. [Contained in Appendix.-J. C. C.] gress to act either way could only be referred to Section 3 of Article IV. of the Constitution. It is to the same source that the power to enact the laws against polygamy in the territories, which began to be enacted in 1862 and were re-enacted in 1882, must be referred. But this matter of polygamy in Utah-where it has existed for forty years, and for a large part of which period it was practised without any interference on the part of the federal government, and under circumstances evincing at least great public indifference concerning it has now assumed an entirely new aspect. Of the voters of Utah who are Mormons in religious faith—a class of religionists whose religious belief is supposed to sanction polygamy-about 95 per cent. cast their votes at a recent election in favor of the constitution, the provisions of which on the subject of polygamy are quoted at the head of this opinion. But few of the so-called "Gentiles" voted on this constitution. Of the votes cast against the constitution-504 in numberonly about one half were cast by Mormons. If the constitution is accepted by Congress as it is presented, and becomes the fundamental law of the new state of Utah, the Mormon population, which is very largely the majority, will be the governing people of the state. They have bound themselves to support and abide by a constitution which will limit their state sovereignty in the matter of polygamy by a public compact with the people of the United States. The question whether this will be a valid, efficient, and constitutional compact must be largely determined by the precedents which have been made when other new states have been admitted into the Union under certain conditions. It is obviously immaterial, when a new state is admitted into the Union, whether the proposal of a peculiar condition or special compact on a particular subject is first suggested by Congress or is brought forward by the people who ask for admission under a constitution which they present. In either case, if the constitution, after it has received the sanction of Congress, contains a certain limitation of the state sovereignty, a compact has been made between the state and the United States, and the preliminary question is whether it will be a valid, efficient, and constitutional compact or condition of admission into the Union, by whosoever proposed. On this question the precedents will throw a flood of light. The states of Louisiana, Missouri, Arkansas, Minnesota, Kansas, Nebraska, and Colorado were formed in whole or in part out of the territory ceded by France to the United States in 1803. Florida was formed out of the territory ceded by Spain in 1819. California and Nevada were formed out of territory ceded by Mexico in 1848; and a part of Colorado was also acquired by that cession. Of the present territories, New Mexico, Utah, and Arizona were formed out of territory claimed by Mexico; Washington, Dakota, Idaho, Montana, and Wyoming were respectively part of the French purchase; and Alaska was acquired from Russia by the treaty of March 30, 1867. NOTE. It will be seen that Mr. Curtis, whose manuscript for this chapter ends here, did not complete it according to the intention indicated at its beginning; some topics were not touched.-J. C. C. CHAPTER IX. RISE, PROGRESS, AND CONSEQUENCES OF THE NORTHERN ANTI- THE system of African slavery, which had long existed in our Southern States, might have come, and in all probability must have come, to an end without any political or social convulsion if it had been left to the operation of causes which were tending to its peaceful removal. It could not have lasted unchanged so long as the year 1865, even if there had been no civil war and no forcible emancipation. There were changes going on in the world at large which must have affected it; changes in commercial and industrial conditions, as well as in moral feelings, respecting such a form of labor and such a species of property. There were causes which had begun to operate in the slave-holding states before the anti-slavery agitation began in the North, which would have brought about material modifications of the system, and its gradual removal, if they had not been arrested by an unwise and unwarrantable interference. To judge rightly the degree of responsibility incurred by those who began and carried on the agitation is a duty which history should discharge, wherever it is written, without fear or favor. It is not to be inferred from the special subject of the present chapter and the mode in which it will be treated that the sectional division which led to the designation of North and South, as descriptive of different groups of states, related solely to the matter of slavery. Whenever the original states acted in one body, either in the formation of the Articles of Confederation, or in the old Congress, or in the formation of the Constitution, or in |