The distinction which exists between the two
 characters of restrictions-those which regulate a
 granted power and those which withdraw all
 authority on a particular subject-has in effect been
 always conceded, even by those who most
 strenuously insisted on the erroneous principle
 that the Constitution did not apply to Congress in
 legislating for the territories, and was not operative
 in such districts of country. No one had more
 broadly asserted this principle than Mr. Webster.
 Indeed, the support which that proposition
 receives from expressions of that illustrious man
 have been mainly relied upon to sustain it, and yet
 there can be no doubt that, even while insisting
 upon such principle, it was conceded by Mr.
 Webster that those positive prohibitions of the
 Constitution which withhold all power on a particular
 subject were always applicable. His views of the
 principal proposition and his concession as to the
 existence of the qualification are clearly shown by a
 debate which took place in the Senate on February
 24, 1849, on an amendment offered by Mr. Walker
 extending the Constitution and certain laws of the
 United States over Califomia and New Mexico. Mr.
 Webster, in support of his conception that the
 Constitution did not, generally speaking, control
 Congress in legislating for the territories or operate
 in such districts, said as follows (20 Cong. Globe,
 App. p. 272):

 "Mr. President, it is of importance that we
 should seek to have clear ideas and correct notions
 of the question which this amendment of the
 member from Wisconsin has presented to us; and
 especially that we should seek to get some
 conception of what is meant by the proposition, in a
 law, to 'extend the Constitution of the United
 States to the territories.' Why, sir, the thing is utterly
 impossible. All the legislation in the world, in this
 general form, could not accomplish it. There is no
 cause for the operation of the legislative power in
 such a matter as that. The Constitution, what is
 it-we extend the Constitution of the United States
 by law to a territory? What is the Constitution of the
 United States? Is not its very first principle that all
 within its influence and comprehension shall be
 represented in the legislature which it establishes,
 with not only the right of debate and the right to
 vote in both Houses of Congress, but a right to
 partake in the choice of the President and Vice
 President? And can we by law extend these rights,
or any of them, to a territory of the United States?
Everybody will see that it is altogether
impracticable."


 Thereupon, the following colloquy ensued
 between Mr. Underwood and Mr. Webster (Ibid.
 281-282):

 "Mr. Underwood: 'The learned Senator from
 Massachusetts says, and says most appropriately
 and forcibly, that the principles of the Constitution
 are obligatory upon us even while legislating for the
 territories. That is true, I admit, in its fullest force, but
 if it is obligatory upon us while legislating for the
 territories, is it possible that it will not be equally
 obligatory upon the officers who are appointed to
 administer the laws in these territories?'

 "Mr. Webster: 'I never said it was not obligatory
 upon them. What I said was, that in making laws for
 these territories it was the high duty of Congress to
 regard those great principles in the Constitution
 intended for the security of personal liberty and for
 the security of property.'

 "Mr. Underwood:'... Suppose we provide by
 our legislation that nobody shall be appointed to an
 office there who professes the Catholic religion.
 What do we do by an act of this sort?'

 "Mr. Webster: 'We violate the Constitution,
 which says that no religious test shall be required as
 qualification for office.'"

 And this was the state of opinion generally
 prevailing in the Free Soil and Republican parties,
 since the resistance of those parties to the
 extension of slavery into the territories, while in a
 broad sense predicated on the proposition that the
 Constitution was not generally controlling in the
 territories, was sustained by express reliance upon
 the 5th Amendment to the Constitution forbidding
 Congress from depriving any person of life, liberty,
 or property without due process of law. Every
 platform adopted by those parties down to and
 including 1860, while propounding the general
 doctrine, also in effect declared the rule just stated.
 I append in the margin an excerpt from the platform
 of the Free Soil party adopted in 1842.

 The conceptions embodied in these
resolutions were in almost identical language
reiterated in the platform of the Liberty party in
1843, in that of the Free Soil party in 1852, and in
the platform of the Republican party in 1856.
Stanwood, Hist. of Presidency, pp. 218, 253, 254,
and 271. In effect, the same thought was repeated
in the declaration of principles made by the