This applies to what are called Territories as well as to the
States. The right of the government to govern the Territories
in regard to private and particular rights and interests, is
derived from no express grant of power, and is held only ex
necessitate--the United States owning the domain, and there
being no other authority competent to govern them. But, as in
the case of all powers held ex necessitate, the power is
restricted to the absolute necessity in the case. What are
called Territorial governments, to distinguish them from the
State governments, are only provisional governments, and can
touch private rights and interests no further than is necessary
to preserve order and prepare the way for the organization and
installation of a regular State government. Till then the law
governing private rights is the law that was in force, if any
such there was, when the territory became by purchase, by
conquest, or by treaty, attached to the domain of the United
States.
Hence the Supreme Court declared unconstitutional the ordinance
of l787, prohibiting slavery in what was called the territory of
the Northwest, and the so-called Missouri Compromise,
prohibiting slavery north of the parallel 36' 30'. The Wilmot
proviso was for the same reason unconstitutional. The General
government never had and has not any power to exclude slavery
from the Territories, any more than to abolish it in the States.
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