slavery and involuntary servitude, except as a punishment for crime,
shall be forever prohibited in all that part of the territory ceded by
France, under the name of Louisiana, which lies north of thirty-six
degrees thirty minutes north latitude, and not included within the
limits of Missouri. And the difficulty which meets us at the threshold
of this part of the inquiry is, whether Congress was authorized to
pass this law under any of the powers granted to it by the
Constitution; for if the authority is not given by that instrument, it
is the duty of this court to declare it void and inoperative, and
incapable of conferring freedom upon any one who is held as a slave
under the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that article
in the Constitution which confers on Congress the power "to dispose of
and make all needful rules and regulations respecting the territory or
other property belonging to the United States;" but, in the judgment
of the court, that provision has no bearing on the present
controversy, and the power there given, whatever it may be, is
confined, and was intended to be confined, to the territory which at
that time belonged to, or was claimed by, the United States, and was
within their boundaries as settled by the treaty with Great Britain,
and can have no influence upon a territory afterwards acquired from a
foreign Government. It was a special provision for a known and
particular territory, and to meet a present emergency, and nothing
more.
A brief summary of the history of the times, as well as the careful
and measured terms in which the article is framed, will show the
correctness of this proposition.
It will be remembered that, from the commencement of the Revolutionary
war, serious difficulties existed between the States, in relation to
the disposition of large and unsettled territories which were included
in the chartered limits of some of the States. And some of the other
States, and more especially Maryland, which had no unsettled lands,
insisted that as the unoccupied lands, if wrested from Great Britain,
would owe their reservation to the common purse and the common sword,
the money arising from them ought to be applied in just proportion
among the several States to pay the expenses of the war, and ought not
to be appropriated to the use of the State in whose chartered limits
they might happen to lie, to the exclusion of the other States, by
whose combined efforts and common expense the territory was defended
and preserved against the claim of the British Government.
These difficulties caused much uneasiness during the war, while the
issue was in some degree doubtful, and the future boundaries of the
United States yet to be defined by treaty, if we achieved our
independence.
The majority of the Congress of the Confederation obviously concurred
in opinion with the State of Maryland, and desired to obtain from the
States which claimed it a cession of this territory, in order that
Congress might raise money on this security to carry on the war. This
appears by the resolution passed on the 6th of September, 1780,
strongly urging the States to cede these lands to the United States,
both for the sake of peace and union among themselves, and to maintain
the public credit; and this was followed by the resolution of October
10th, 1780, by which Congress pledged itself, that if the lands were
ceded, as recommended by the resolution above mentioned, they should
be disposed of for the common benefit of the United States, and be
settled and formed into distinct republican States, which should
become members of the Federal Union, and have the same rights of
sovereignty, and freedom, and independence, as other States.
But these difficulties became much more serious after peace took
place, and the boundaries of the United States were established. Every
State, at that time, felt severely the pressure of its war debt; but
in Virginia, and some other States, there were large territories of
unsettled lands, the sale of which would enable them to discharge
their obligations without much inconvenience; while other States,
which had no such resource, saw before them many years of heavy and
burdensome taxation; and the latter insisted, for the reasons before
stated, that these unsettled lands should be treated as the common
property of the States, and the proceeds applied to their common
benefit.
The letters from the statesmen of that day will show how much this
controversy occupied their thoughts, and the dangers that were
apprehended from it. It was the disturbing element of the time, and
fears were entertained that it might dissolve the Confederation by
which the States were then united.
These fears and dangers were, however, at once removed, when the State
of Virginia, in 1784, voluntarily ceded to the United States the
immense tract of country lying northwest of the river Ohio, and which
was within the acknowledged limits of the State. The only object of
the State, in making this cession, was to put an end to the
threatening and exciting controversy, and to enable the Congress of
that time to dispose of the lands, and appropriate the proceeds as a
common fund for the common benefit of the States. It was not ceded,
because it was inconvenient to the State to hold and govern it, nor
from any expectation that it could be better or more conveniently
governed by the United States.
The example of Virginia was soon afterwards followed by other States,
and, at the time of the adoption of the Constitution, all of the
States, similarly situated, had ceded their unappropriated lands,
except North Carolina and Georgia. The main object for which these
cessions were desired and made, was on account of their money value,
and to put an end to a dangerous controversy, as to who was justly
entitled to the proceeds when the lands should be sold. It is
necessary to bring this part of the history of these cessions thus
distinctly into view, because it will enable us the better to
comprehend the phraseology of the article in the Constitution, so
often referred to in the argument.
Undoubtedly the powers of sovereignty and the eminent domain were
ceded with the land. This was essential, in order to make it
effectual, and to accomplish its objects. But it must be remembered
that, at that time, there was no Government of the United States in
existence with enumerated and limited powers; what was then called the
United States, were thirteen separate, sovereign, independent States,
which had entered into a league or confederation for their mutual
protection and advantage, and the Congress of the United States was
composed of the representatives of these separate sovereignties,
meeting together, as equals, to discuss and decide on certain measures
which the States, by the Articles of Confederation, had agreed to
submit to their decision. But this Confederation had none of the
attributes of sovereignty in legislative, executive, or judicial
power. It was little more than a congress of ambassadors, authorized
to represent separate nations, in matters in which they had a common
concern.
It was this Congress that accepted the cession from Virginia. They had
no power to accept it under the Articles of Confederation. But they
had an undoubted right, as independent sovereignties, to accept any
cession of territory for their common benefit, which all of them
assented to; and it is equally clear, that as their common property,
and having no superior to control them, they had the right to exercise
absolute dominion over it, subject only to the restrictions which
Virginia had imposed in her act of cession. There was, as we have
said, no Government of the United States then in existence with
special enumerated and limited powers. The territory belonged to
sovereignties, who, subject to the limitations above mentioned, had a
right to establish any form of government they pleased, by compact or
treaty among themselves, and to regulate rights of person and rights
of property in the territory, as they might deem proper. It was by a
Congress, representing the authority of these several and separate
sovereignties, and acting under their authority and command, (but not
from any authority derived from the Articles of Confederation,) that
the instrument usually called the ordinance of 1787 was adopted;
regulating in much detail the principles and the laws by which this
territory should be governed; and among other provisions, slavery is
prohibited in it. We do not question the power of the States, by
agreement among themselves, to pass this ordinance, nor its obligatory
force in the territory, while the confederation or league of the
States in their separate sovereign character continued to exist.
This was the state of things when the Constitution of the United
States was formed. The territory ceded by Virginia belonged to the
several confederated States as common property, and they had united in
establishing in it a system of government and jurisprudence, in order
to prepare it for admission as States, according to the terms of the
cession. They were about to dissolve this federative Union, and to
surrender a portion of their independent sovereignty to a new
Government, which, for certain purposes, would make the people of the
several States one people, and which was to be supreme and controlling
within its sphere of action throughout the United States; but this
Government was to be carefully limited in its powers, and to exercise
no authority beyond those expressly granted by the Constitution, or
necessarily to be implied from the language of the instrument, and the
objects it was intended to accomplish; and as this league of States
would, upon the adoption of the new Government, cease to have any
power over the territory, and the ordinance they had agreed upon be
incapable of execution, and a mere nullity, it was obvious that some
provision was necessary to give the new Government sufficient power to
enable it to carry into effect the objects for which it was ceded, and
the compacts and agreements which the States had made with each other
in the exercise of their powers of sovereignty. It was necessary that
the lands should be sold to pay the war debt; that a Government and
system of jurisprudence should be maintained in it, to protect the
citizens of the United States who should migrate to the territory, in
their rights of person and of property. It was also necessary that the
new Government, about to be adopted, should be authorized to maintain
the claim of the United States to the unappropriated lands in North
Carolina and Georgia, which had not then been ceded, but the cession
of which was confidently anticipated upon some terms that would be
arranged between the General Government and these two States. And,
moreover, there were many articles of value besides this property in
land, such as arms, military stores, munitions, and ships of war,
which were the common property of the States, when acting in their
independent characters as confederates, which neither the new
Government nor any one else would have a right to take possession of,
or control, without authority from them; and it was to place these
things under the guardianship and protection of the new Government,
and to clothe it with the necessary powers, that the clause was
inserted in the Constitution which gives Congress the power "to
dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States." It was
intended for a specific purpose, to provide for the things we have
mentioned. It was to transfer to the new Government the property then
held in common by the States, and to give to that Government power to
apply it to the objects for which it had been destined by mutual
agreement among the States before their league was dissolved. It
applied only to the property which the States held in common at that
time, and has no reference whatever to any territory or other property
which the new sovereignty might afterwards itself acquire.
The language used in the clause, the arrangement and combination of
the powers, and the somewhat unusual phraseology it uses, when it
speaks of the political power to be exercised in the government of the
territory, all indicate the design and meaning of the clause to be
such as we have mentioned. It does not speak of _any_ territory, nor
of _Territories_, but uses language which, according to its legitimate
meaning, points to a particular thing. The power is given in relation
only to _the_ territory of the United States--that is, to a territory
then in existence, and then known or claimed as the territory of the
United States. It begins its enumeration of powers by that of
disposing, in other words, making sale of the lands, or raising money
from them, which, as we have already said, was the main object of the
cession, and which is accordingly the first thing provided for in the
article. It then gives the power which was necessarily associated with
the disposition and sale of the lands--that is, the power of making
needful rules and regulations respecting the territory. And whatever
construction may now be given to these words, every one, we think,
must admit that they are not the words usually employed by statesmen
in giving supreme power of legislation. They are certainly very unlike
the words used in the power granted to legislate over territory which
the new Government might afterwards itself obtain by cession from a
State, either for its seat of Government, or for forts, magazines,
arsenals, dock yards, and other needful buildings.
And the same power of making needful rules respecting the territory
is, in precisely the same language, applied to the _other_ property
belonging to the United States--associating the power over the
territory in this respect with the power over movable or personal
property--that is, the ships, arms, and munitions of war, which then
belonged in common to the State sovereignties. And it will hardly be
said, that this power, in relation to the last-mentioned objects, was
deemed necessary to be thus specially given to the new Government, in
order to authorize it to make needful rules and regulations respecting
the ships it might itself build, or arms and munitions of war it might
itself manufacture or provide for the public service.
No one, it is believed, would think a moment of deriving the power of
Congress to make needful rules and regulations in relation to property
of this kind from this clause of the Constitution. Nor can it, upon
any fair construction, be applied to any property but that which the
new Government was about to receive from the confederated States. And
if this be true as to this property, it must be equally true and
limited as to the territory, which is so carefully and precisely
coupled with it--and like it referred to as property in the power
granted. The concluding words of the clause appear to render this
construction irresistible; for, after the provisions we have
mentioned, it proceeds to say, "that nothing in the Constitution shall
be so construed as to prejudice any claims of the United States, or of
any particular State."
Now, as we have before said, all of the States, except North Carolina
and Georgia, had made the cession before the Constitution was adopted,
according to the resolution of Congress of October 10, 1780. The
claims of other States, that the unappropriated lands in these two
States should be applied to the common benefit, in like manner, was
still insisted on, but refused by the States. And this member of the
clause in question evidently applies to them, and can apply to nothing
else. It was to exclude the conclusion that either party, by adopting
the Constitution, would surrender what they deemed their rights. And
when the latter provision relates so obviously to the unappropriated
lands not yet ceded by the States, and the first clause makes
provision for those then actually ceded, it is impossible, by any
just rule of construction, to make the first provision general, and
extend to all territories, which the Federal Government might in any
way afterwards acquire, when the latter is plainly and unequivocally
confined to a particular territory; which was a part of the same
controversy, and involved in the same dispute, and depended upon the
same principles. The union of the two provisions in the same clause
shows that they were kindred subjects; and that the whole clause is
local, and relates only to lands, within the limits of the United
States, which had been or then were claimed by a State; and that no
other territory was in the mind of the framers of the Constitution, or
intended to be embraced in it. Upon any other construction it would be
impossible to account for the insertion of the last provision in the
place where it is found, or to comprehend why, or for what object, it
was associated with the previous provision.
This view of the subject is confirmed by the manner in which the
present Government of the United States dealt with the subject as soon
as it came into existence. It must be borne in mind that the same
States that formed the Confederation also formed and adopted the new
Government, to which so large a portion of their former sovereign
powers were surrendered. It must also be borne in mind that all of
these same States which had then ratified the new Constitution were
represented in the Congress which passed the first law for the
government of this territory; and many of the members of that
legislative body had been deputies from the States under the
Confederation--had united in adopting the ordinance of 1787, and
assisted in forming the new Government under which they were then
acting, and whose powers they were then exercising. And it is obvious
from the law they passed to carry into effect the principles and
provisions of the ordinance, that they regarded it as the act of the
States done in the exercise of their legitimate powers at the time.
The new Government took the territory as it found it, and in the
condition in which it was transferred, and did not attempt to undo
anything that had been done. And, among the earliest laws passed under
the new Government, is one reviving the ordinance of 1787, which had
become inoperative and a nullity upon the adoption of the
Constitution. This law introduces no new form or principles for its
government, but recites, in the preamble, that it is passed in order
that this ordinance may continue to have full effect, and proceeds to
make only those rules and regulations which were needful to adapt it
to the new Government, into whose hands the power had fallen. It
appears, therefore, that this Congress regarded the purposes to which
the land in this Territory was to be applied, and the form of
government and principles of jurisprudence which were to prevail
there, while it remained in the Territorial state, as already
determined on by the States when they had full power and right to make
the decision; and that the new Government, having received it in this
condition, ought to carry substantially into effect the plans and
principles which had been previously adopted by the States, and which
no doubt the States anticipated when they surrendered their power to
the new Government. And if we regard this clause of the Constitution
as pointing to this Territory, with a Territorial Government already
established in it, which had been ceded to the States for the purposes
hereinbefore mentioned--every word in it is perfectly appropriate and
easily understood, and the provisions it contains are in perfect
harmony with the objects for which it was ceded, and with the
condition of its government as a Territory at the time. We can, then,
easily account for the manner in which the first Congress legislated
on the subject--and can also understand why this power over the
territory was associated in the same clause with the other property of
the United States, and subjected to the like power of making needful
rules and regulations. But if the clause is construed in the expanded
sense contended for, so as to embrace any territory acquired from a
foreign nation by the present Government, and to give it in such
territory a despotic and unlimited power over persons and property,
such as the confederated States might exercise in their common
property, it would be difficult to account for the phraseology used,
when compared with other grants of power--and also for its association
with the other provisions in the same clause.
The Constitution has always been remarkable for the felicity of its
arrangement of different subjects, and the perspicuity and
appropriateness of the language it uses. But if this clause is
construed to extend to territory acquired by the present Government
from a foreign nation, outside of the limits of any charter from the
British Government to a colony, it would be difficult to say, why it
was deemed necessary to give the Government the power to sell any
vacant lands belonging to the sovereignty which might be found within
it; and if this was necessary, why the grant of this power should
precede the power to legislate over it and establish a Government
there; and still more difficult to say, why it was deemed necessary so
specially and particularly to grant the power to make needful rules
and regulations in relation to any personal or movable property it
might acquire there. For the words, _other property_ necessarily, by
every known rule of interpretation, must mean property of a different
description from territory or land. And the difficulty would perhaps
be insurmountable in endeavoring to account for the last member of the
sentence, which provides that "nothing in this Constitution shall be
so construed as to prejudice any claims of the United States or any
particular State," or to say how any particular State could have
claims in or to a territory ceded by a foreign Government, or to
account for associating this provision with the preceding provisions
of the clause, with which it would appear to have no connection.
The words "needful rules and regulations" would seem, also, to have
been cautiously used for some definite object. They are not the words
usually employed by statesmen, when they mean to give the powers of
sovereignty, or to establish a Government, or to authorize its
establishment. Thus, in the law to renew and keep alive the ordinance
of 1787, and to re-establish the Government, the title of the law is:
"An act to provide for the government of the territory northwest of
the river Ohio." And in the Constitution, when granting the power to
legislate over the territory that may be selected for the seat of
Government independently of a State, it does not say Congress shall
have power "to make all needful rules and regulations respecting the
territory;" but it declares that "Congress shall have power to
exercise exclusive legislation in all cases whatsoever over such
District (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat of
the Government of the United States."
The words "rules and regulations" are usually employed in the
Constitution in speaking of some particular specified power which it
means to confer on the Government, and not, as we have seen, when
granting general powers of legislation. As, for example, in the
particular power to Congress "to make rules for the government and
regulation of the land and naval forces, or the particular and
specific power to regulate commerce;" "to establish an uniform _rule_
of naturalization;" "to coin money and _regulate_ the value thereof."
And to construe the words of which we are speaking as a general and
unlimited grant of sovereignty over territories which the Government
might afterwards acquire, is to use them in a sense and for a purpose
for which they were not used in any other part of the instrument. But
if confined to a particular Territory, in which a Government and laws
had already been established, but which would require some alterations
to adapt it to the new Government, the words are peculiarly applicable
and appropriate for that purpose.