"New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress.
"The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Const.i.tution shall be so construed as to prejudice any claims of the United States or any particular State."
That Congress has some power to inst.i.tute temporary Governments over the territory, I believe all agree; and, if it be admitted that the necessity of some power to govern the territory of the United States could not and did not escape the attention of the Convention and the people, and that the necessity is so great, that, in the absence of any express grant, it is strong enough to raise an implication of the existence of that power, it would seem to follow that it is also strong enough to afford material aid in construing an express grant of power respecting that territory; and that they who maintain the existence of the power, without finding any words at all in which it is conveyed, should be willing to receive a reasonable interpretation of language of the Const.i.tution, manifestly intended to relate to the territory, and to convey to Congress some authority concerning it.
It would seem, also, that when we find the subject-matter of the growth and formation and admission of new States, and the disposal of the territory for these ends, were under consideration, and that some provision therefor was expressly made, it is improbable that it would be, in its terms, a grossly inadequate provision; and that an indispensably necessary power to inst.i.tute temporary Governments, and to legislate for the inhabitants of the territory, was pa.s.sed silently by, and left to be deduced from the necessity of the case.
In the argument at the bar, great attention has been paid to the meaning of the word "territory."
Ordinarily, when the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jurisdiction of that sovereign power. Thus Chief Justice Marshall (in United States _v._ Bevans, 3 Wheat., 386) says: "What, then, is the extent of jurisdiction which a State possesses? We answer, without hesitation, the jurisdiction of a State is coextensive with its territory." Examples might easily be multiplied of this use of the word, but they are unnecessary, because it is familiar. But the word "territory" is not used in this broad and general sense in this clause of the Const.i.tution.
At the time of the adoption of the Const.i.tution, the United States held a great tract of country northwest of the Ohio; another tract, then of unknown extent, ceded by South Carolina; and a confident expectation was then entertained, and afterwards realized, that they then were or would become the owners of other great tracts, claimed by North Carolina and Georgia. These ceded tracts lay within the limits of the United States, and out of the limits of any particular State; and the cessions embraced the civil and political jurisdiction, and so much of the soil as had not previously been granted to individuals.
These words, "territory belonging to the United States," were not used in the Const.i.tution to describe an abstraction, but to identify and apply to these actual subjects matter then existing and belonging to the United States, and other similar subjects which might afterwards be acquired; and this being so, all the essential qualities and incidents attending such actual subjects are embraced within the words "territory belonging to the United States," as fully as if each of those essential qualities and incidents had been specifically described.
I say, the essential qualities and incidents. But in determining what were the essential qualities and incidents of the subject with which they were dealing, we must take into consideration not only all the particular facts which were immediately before them, but the great consideration, ever present to the minds of those who framed and adopted the Const.i.tution, that they were making a frame of government for the people of the United States and their posterity, under which they hoped the United States might be, what they have now become, a great and powerful nation, possessing the power to make war and to conclude treaties, and thus to acquire territory. (See Cerre _v._ Pitot, 6 Cr., 336; Am. Ins. Co. _v._ Canter, 1 Pet., 542.) With these in view, I turn to examine the clause of the article now in question.
It is said this provision has no application to any territory save that then belonging to the United States. I have already shown that, when the Const.i.tution was framed, a confident expectation was entertained, which was speedily realized, that North Carolina and Georgia would cede their claims to that great territory which lay west of those States. No doubt has been suggested that the first clause of this same article, which enabled Congress to admit new States, refers to and includes new States to be formed out of this territory, expected to be thereafter ceded by North Carolina and Georgia, as well as new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. It must have been seen, therefore, that the same necessity would exist for an authority to dispose of and make all needful regulations respecting this territory, when ceded, as existed for a like authority respecting territory which had been ceded.
No reason has been suggested why any reluctance should have been felt, by the framers of the Const.i.tution, to apply this provision to all the territory which might belong to the United States, or why any distinction should have been made, founded on the accidental circ.u.mstance of the dates of the cessions; a circ.u.mstance in no way material as respects the necessity for rules and regulations, or the propriety of conferring on the Congress power to make them. And if we look at the course of the debates in the Convention on this article, we shall find that the then unceded lands, so far from having been left out of view in adopting this article, const.i.tuted, in the minds of members, a subject of even paramount importance.
Again, in what an extraordinary position would the limitation of this clause to territory then belonging to the United States, place the territory which lay within the chartered limits of North Carolina and Georgia. The t.i.tle to that territory was then claimed by those States, and by the United States; their respective claims are purposely left unsettled by the express words of this clause; and when cessions were made by those States, they were merely of their claims to this territory, the United States neither admitting nor denying the validity of those claims; so that it was impossible then, and has ever since remained impossible, to know whether this territory did or did not then belong to the United States; and, consequently, to know whether it was within or without the authority conferred by this clause, to dispose of and make rules and regulations respecting the territory of the United States. This attributes to the eminent men who acted on this subject a want of ability and forecast, or a want of attention to the known facts upon which they were acting, in which I cannot concur.
There is not, in my judgment, anything in the language, the history, or the subject-matter of this article, which restricts its operation to territory owned by the United States when the Const.i.tution was adopted.
But it is also insisted that provisions of the Const.i.tution respecting territory belonging to the United States do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Const.i.tution did not authorize the Federal Government to acquire foreign territory, and consequently has made no provision for its government when acquired; or, that though the acquisition of foreign territory was contemplated by the Const.i.tution, its provisions concerning the admission of new States, and the making of all needful rules and regulations respecting territory belonging to the United States, were not designed to be applicable to territory acquired from foreign nations.
It is undoubtedly true, that at the date of the treaty of 1803, between the United States and France, for the cession of Louisiana, it was made a question, whether the Const.i.tution had conferred on the executive department of the Government of the United States power to acquire foreign territory by a treaty.
There is evidence that very grave doubts were then entertained concerning the existence of this power. But that there was then a settled opinion in the executive and legislative branches of the Government, that this power did not exist, cannot be admitted, without at the same time imputing to those who negotiated and ratified the treaty, and pa.s.sed the laws necessary to carry it into execution, a deliberate and known violation of their oaths to support the Const.i.tution; and whatever doubts may then have existed, the question must now be taken to have been settled. Four distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. Six States, formed on such territory, are now in the Union. Every branch of this Government, during a period of more than fifty years, has partic.i.p.ated in these transactions. To question their validity now, is vain. As was said by Mr. Chief Justice Marshall, in the American Insurance Company _v._ Canter, (1 Peters, 542,) "the Const.i.tution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or treaty." (See Cerre _v._ Pitot, 6 Cr., 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposit.i.tious powers, nowhere found described in the Const.i.tution, but expressly granted in the authority to make all needful rules and regulations respecting the territory of the United States.
There was to be established by the Const.i.tution a frame of government, under which the people of the United States and their posterity were to continue indefinitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Const.i.tution was framed, while at the same time it is admitted that the Const.i.tution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language, and I can have no hesitation in rejecting it.
I construe this clause, therefore, as if it had read, Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it.
It has been urged that the words "rules and regulations" are not appropriate terms in which to convey authority to make laws for the government of the territory.
But it must be remembered that this is a grant of power to the Congress--that it is therefore necessarily a grant of power to legislate--and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to make all needful rules and regulations respecting the territory, is a power to pa.s.s all needful laws respecting it.
The word regulate, or regulation, is several times used in the Const.i.tution. It is used in the fourth section of the first article to describe those laws of the States which prescribe the times, places, and manner, of choosing Senators and Representatives; in the second section of the fourth article, to designate the legislative action of a State on the subject of fugitives from service, having a very close relation to the matter of our present inquiry; in the second section of the third article, to empower Congress to fix the extent of the appellate jurisdiction of this court; and, finally, in the eighth section of the first article are the words, "Congress shall have power to regulate commerce."
It is unnecessary to describe the body of legislation which has been enacted under this grant of power; its variety and extent are well known. But it may be mentioned, in pa.s.sing, that under this power to regulate commerce, Congress has enacted a great system of munic.i.p.al laws, and extended it over the vessels and crews of the United States on the high seas and in foreign ports, and even over citizens of the United States resident in China; and has established judicatures, with power to inflict even capital punishment within that country.
If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power?
To this I answer, that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power, Congress cannot pa.s.s an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Const.i.tution.
Besides this, the rules and regulations must be needful. But undoubtedly the question whether a particular rule or regulation be needful, must be finally determined by Congress itself. Whether a law be needful, is a legislative or political, not a judicial, question.
Whatever Congress deems needful is so, under the grant of power.
Nor am I aware that it has ever been questioned that laws providing for the temporary government of the settlers on the public lands are needful, not only to prepare them for admission to the Union as States, but even to enable the United States to dispose of the lands.
Without government and social order, there can be no property; for without law, its ownership, its use, and the power of disposing of it, cease to exist, in the sense in which those words are used and understood in all civilized States.
Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of Congress they should be fitted therefor, since these were the needs provided for, since it is confessed that Government is indispensable to provide for those needs, and the power is, to make _all needful_ rules and regulations respecting the territory, I cannot doubt that this is a power to govern the inhabitants of the territory, by such laws as Congress deems needful, until they obtain admission as States.
Whether they should be thus governed solely by laws enacted by Congress, or partly by laws enacted by legislative power conferred by Congress, is one of those questions which depend on the judgment of Congress--a question which of these is needful.
But it is insisted, that whatever other powers Congress may have respecting the territory of the United States, the subject of negro slavery forms an exception.
The Const.i.tution declares that Congress shall have power to make "_all_ needful rules and regulations" respecting the territory belonging to the United States.
The a.s.sertion is, though the Const.i.tution says all, it does not mean all--though it says all, without qualification, it means all except such as allow or prohibit slavery. It cannot be doubted that it is inc.u.mbent on those who would thus introduce an exception not found in the language of the instrument, to exhibit some solid and satisfactory reason, drawn from the subject-matter or the purposes and objects of the clause, the context, or from other provisions of the Const.i.tution, showing that the words employed in this clause are not to be understood according to their clear, plain, and natural signification.
The subject-matter is the territory of the United States out of the limits of every State, and consequently under the exclusive power of the people of the United States. Their will respecting it, manifested in the Const.i.tution, can be subject to no restriction. The purposes and objects of the clause were the enactment of laws concerning the disposal of the public lands, and the temporary government of the settlers thereon until new States should be formed. It will not be questioned that, when the Const.i.tution of the United States was framed and adopted, the allowance and the prohibition of negro slavery were recognised subjects of munic.i.p.al legislation; every State had in some measure acted thereon; and the only legislative act concerning the territory--the ordinance of 1787, which had then so recently been pa.s.sed--contained a prohibition of slavery. The purpose and object of the clause being to enable Congress to provide a body of munic.i.p.al law for the government of the settlers, the allowance or the prohibition of slavery comes within the known and recognised scope of that purpose and object.
There is nothing in the context which qualifies the grant of power.
The regulations must be "respecting the territory." An enactment that slavery may or may not exist there, is a regulation respecting the territory. Regulations must be needful; but it is necessarily left to the legislative discretion to determine whether a law be needful. No other clause of the Const.i.tution has been referred to at the bar, or has been seen by me, which imposes any restriction or makes any exception concerning the power of Congress to allow or prohibit slavery in the territory belonging to the United States.
A practical construction, nearly contemporaneous with the adoption of the Const.i.tution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind, on a question of the interpretation of the Const.i.tution. (Stuart _v._ Laird, 1 Cranch, 269; Martin _v._ Hunter, 1 Wheat., 304; Cohens _v._ Virginia, 6 Wheat., 264; Prigg _v._ Pennsylvania, 16 Pet., 621; Cooley _v._ Port Wardens, 12 How., 315.)
In this view, I proceed briefly to examine the practical construction placed on the clause now in question, so far as it respects the inclusion therein of power to permit or prohibit slavery in the Territories.
It has already been stated, that after the Government of the United States was organized under the Const.i.tution, the temporary Government of the Territory northwest of the river Ohio could no longer exist, save under the powers conferred on Congress by the Const.i.tution.
Whatever legislative, judicial, or executive authority should be exercised therein could be derived only from the people of the United States under the Const.i.tution. And, accordingly, an act was pa.s.sed on the 7th day of August, 1789, (1 Stat. at Large, 50,) which recites: "Whereas, in order that the ordinance of the United States in Congress a.s.sembled, for the government of the territory northwest of the river Ohio, _may continue to have full effect_, it is required that certain provisions should be made, so as to adapt the same to the present Const.i.tution of the United States." It then provides for the appointment by the President of all officers, who, by force of the ordinance, were to have been appointed by the Congress of the Confederation, and their commission in the manner required by the Const.i.tution; and empowers the Secretary of the Territory to exercise the powers of the Governor in case of the death or necessary absence of the latter.
Here is an explicit declaration of the will of the first Congress, of which fourteen members, including Mr. Madison, had been members of the Convention which framed the Const.i.tution, that the ordinance, one article of which prohibited slavery, "should continue to have full effect." Gen. Washington, who signed this bill, as President, was the President of that Convention.
It does not appear to me to be important, in this connection, that that clause in the ordinance which prohibited slavery was one of a series of articles of what is therein termed a compact. The Congress of the Confederation had no power to make such a compact, nor to act at all on the subject; and after what had been so recently said by Mr.
Madison on this subject, in the thirty-eighth number of the _Federalist_, I cannot suppose that he, or any others who voted for this bill, attributed any intrinsic effect to what was denominated in the ordinance a compact between "the original States and the people and States in the new territory;" there being no new States then in existence in the territory, with whom a compact could be made, and the few scattered inhabitants, unorganized into a political body, not being capable of becoming a party to a treaty, even if the Congress of the Confederation had had power to make one touching the government of that territory.
I consider the pa.s.sage of this law to have been an a.s.sertion by the first Congress of the power of the United States to prohibit slavery within this part of the territory of the United States; for it clearly shows that slavery was thereafter to be prohibited there, and it could be prohibited only by an exertion of the power of the United States, under the Const.i.tution; no other power being capable of operating within that territory after the Const.i.tution took effect.
On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress pa.s.sed an act accepting a deed of cession by North Carolina of that territory afterwards erected into the State of Tennessee. The fourth express condition contained in this deed of cession, after providing that the inhabitants of the Territory shall be temporarily governed in the same manner as those beyond the Ohio, is followed by these words: "_Provided, always_, that no regulations made or to be made by Congress shall tend to emanc.i.p.ate slaves."
This provision shows that it was then understood Congress might make a regulation prohibiting slavery, and that Congress might also allow it to continue to exist in the Territory; and accordingly, when, a few days later, Congress pa.s.sed the act of May 20th, 1790, (1 Stat. at Large, 123,) for the government of the Territory south of the river Ohio, it provided, "and the Government of the Territory south of the Ohio shall be similar to that now exercised in the Territory northwest of the Ohio, except so far as is otherwise provided in the conditions expressed in an act of Congress of the present session, ent.i.tled, "An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory."" Under the Government thus established, slavery existed until the Territory became the State of Tennessee.
On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was pa.s.sed to establish a Government in the Mississippi Territory in all respects like that exercised in the Territory northwest of the Ohio, "excepting and excluding the last article of the ordinance made for the government thereof by the late Congress, on the 13th day of July, 1787." When the limits of this Territory had been amicably settled with Georgia, and the latter ceded all its claim thereto, it was one stipulation in the compact of cession, that the ordinance of July 13th, 1787, "shall in all its parts extend to the Territory contained in the present act of cession, that article only excepted which forbids slavery." The Government of this Territory was subsequently established and organized under the act of May 10th, 1800; but so much of the ordinance as prohibited slavery was not put in operation there.
Without going minutely into the details of each case, I will now give reference to two cla.s.ses of acts, in one of which Congress has extended the ordinance of 1787, including the article prohibiting slavery, over different Territories, and thus exerted its power to prohibit it; in the other, Congress has erected Governments over Territories acquired from France and Spain, in which slavery already existed, but refused to apply to them that part of the Government under the ordinance which excluded slavery.
Of the first cla.s.s are the act of May 7th, 1800, (2 Stat. at Large, 58,) for the government of the Indiana Territory; the act of January 11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the government of the Illinois Territory; the act of April 20th, 1836, (5 Stat. at Large, 10,) for the government of the Territory of Wisconsin; the act of June 12th, 1838, for the government of the Territory of Iowa; the act of August 14th, 1848, for the government of the Territory of Oregon. To these instances should be added the act of March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the territory acquired from France, being northwest of Missouri, and north of thirty-six degrees thirty minutes north lat.i.tude.
Of the second cla.s.s, in which Congress refused to interfere with slavery already existing under the munic.i.p.al law of France or Spain, and established Governments by which slavery was recognised and allowed, are: the act of March 26th, 1804, (2 Stat. at Large, 283,) for the government of Louisiana; the act of March 2d, 1805, (2 Stat.
at Large, 322,) for the government of the Territory of Orleans; the act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of the Missouri Territory; the act of March 30th, 1822, (3 Stat. at Large, 654,) for the government of the Territory of Florida. Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six distinct instances in which Congress organized Governments of Territories by which slavery was recognised and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Const.i.tution was adopted.
If the practical construction of the Const.i.tution contemporaneously with its going into effect, by men intimately acquainted with its history from their personal partic.i.p.ation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be ent.i.tled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to.
It appears, however, from what has taken place at the bar, that notwithstanding the language of the Const.i.tution, and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories.