the rights or property held in common by the confederated States, is
illustrated by the first clause of the sixth article. This clause
provides that "all debts, contracts, and engagements entered into
before the adoption of this Constitution, shall be as valid against
the United States under this Government as under the Confederation."
This provision, like the one under consideration, was indispensable if
the new Constitution was adopted. The new Government was not a mere
change in a dynasty, or in a form of government, leaving the nation or
sovereignty the same, and clothed with all the rights, and bound by
all the obligations of the preceding one. But, when the present United
States came into existence under the new Government, it was a new
political body, a new nation, then for the first time taking its place
in the family of nations. It took nothing by succession from the
Confederation. It had no right, as its successor, to any property or
rights of property which it had acquired, and was not liable for any
of its obligations. It was evidently viewed in this light by the
framers of the Constitution. And as the several states would cease to
exist in their former confederated character upon the adoption of the
Constitution, and could not, in that character, again assemble
together, special provisions were indispensable to transfer to the new
Government the property and rights which at that time they held in
common; and at the same time to authorize it to lay taxes and
appropriate money to pay the common debt which they had contracted;
and this power could only be given to it by special provisions in the
Constitution. The clause in relation to the territory and other
property of the United States provided for the first, and the clause
last quoted provided for the other. They have no connection with the
general powers and rights of sovereignty delegated to the new
Government, and can neither enlarge nor diminish them. They were
inserted to meet a present emergency, and not to regulate its powers
as a Government.
Indeed, a similar provision was deemed necessary, in relation to
treaties made by the Confederation; and when in the clause next
succeeding the one of which we have last spoken, it is declared that
treaties shall be the supreme law of the land, care is taken to
include, by express words, the treaties made by the confederated
States. The language is: "and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme
law of the land."
Whether, therefore, we take the particular clause in question, by
itself, or in connection with the other provisions of the
Constitution, we think it clear, that it applies only to the
particular territory of which we have spoken, and cannot, by any just
rule of interpretation, be extended to territory which the new
Government might afterwards obtain from a foreign nation.
Consequently, the power which Congress may have lawfully exercised in
this Territory, while it remained under a Territorial Government, and
which may have been sanctioned by judicial decision, can furnish no
justification and no argument to support a similar exercise of power
over territory afterwards acquired by the Federal Government. We put
aside, therefore, any argument, drawn from precedents, showing the
extent of the power which the General Government exercised over
slavery in this Territory, as altogether inapplicable to the case
before us.
But the case of the American and Ocean Insurance Companies _v._ Canter
(1 Pet., 511) has been quoted as establishing a different construction
of this clause of the Constitution. There is, however, not the
slightest conflict between the opinion now given and the one referred
to; and it is only by taking a single sentence out of the latter and
separating it from the context, that even an appearance of conflict
can be shown. We need not comment on such a mode of expounding an
opinion of the court. Indeed it most commonly misrepresents instead of
expounding it. And this is fully exemplified in the case referred to,
where, if one sentence is taken by itself, the opinion would appear to
be in direct conflict with that now given; but the words which
immediately follow that sentence show that the court did not mean to
decide the point, but merely affirmed the power of Congress to
establish a Government in the Territory, leaving it an open question,
whether that power was derived from this clause in the Constitution,
or was to be necessarily inferred from a power to acquire territory by
cession from a foreign Government. The opinion on this part of the
case is short, and we give the whole of it to show how well the
selection of a single sentence is calculated to mislead.
The passage referred to is in page 542, in which the court, in
speaking of the power of Congress to establish a Territorial
Government in Florida until it should become a State, uses the
following language:
"In the mean time Florida continues to be a Territory of the United
States, governed by that clause of the Constitution which empowers
Congress to make all needful rules and regulations respecting the
territory or other property of the United States. Perhaps the power of
governing a territory belonging to the United States, which has not,
by becoming a State, acquired the means of self-government, may
result, necessarily, from the facts that it is not within the
jurisdiction of any particular State, and is within the power and
jurisdiction of the United States. The right to govern may be the
inevitable consequence of the right to acquire territory. _Whichever
may be the source from which the power is derived, the possession of
it is unquestionable._"
It is thus clear, from the whole opinion on this point, that the court
did not mean to decide whether the power was derived from the clause
in the Constitution, or was the necessary consequence of the right to
acquire. They do decide that the power in Congress is unquestionable,
and in this we entirely concur, and nothing will be found in this
opinion to the contrary. The power stands firmly on the latter
alternative put by the court--that is, as "_the inevitable consequence
of the right to acquire territory_."
And what still more clearly demonstrates that the court did not mean
to decide the question, but leave it open for future consideration, is
the fact that the case was decided in the Circuit Court by Mr. Justice
Johnson, and his decision was affirmed by the Supreme Court. His
opinion at the circuit is given in full in a note to the case, and in
that opinion he states, in explicit terms, that the clause of the
Constitution applies only to the territory then within the limits of
the United States, and not to Florida, which had been acquired by
cession from Spain. This part of his opinion will be found in the note
in page 517 of the report. But he does not dissent from the opinion of
the Supreme Court; thereby showing that, in his judgment, as well as
that of the court, the case before them did not call for a decision on
that particular point, and the court abstained from deciding it. And
in a part of its opinion subsequent to the passage we have quoted,
where the court speak of the legislative power of Congress in Florida,
they still speak with the same reserve. And in page 546, speaking of
the power of Congress to authorize the Territorial Legislature to
establish courts there, the court say: "They are legislative courts,
created in virtue of the general right of sovereignty which exists in
the Government, or in virtue of that clause which enables Congress to
make all needful rules and regulations respecting the territory
belonging to the United States."
It has been said that the construction given to this clause is new,
and now for the first time brought forward. The case of which we are
speaking, and which has been so much discussed, shows that the fact is
otherwise. It shows that precisely the same question came before Mr.
Justice Johnson, at his circuit, thirty years ago--was fully
considered by him, and the same construction given to the clause in
the Constitution which is now given by this court. And that upon an
appeal from his decision the same question was brought before this
court, but was not decided because a decision upon it was not required
by the case before the court.
There is another sentence in the opinion which has been commented on,
which even in a still more striking manner shows how one may mislead
or be misled by taking out a single sentence from the opinion of a
court, and leaving out of view what precedes and follows. It is in
page 546, near the close of the opinion, in which the court say: "In
legislating for them," (the territories of the United States,)
"Congress exercises the combined powers of the General and of a State
Government." And it is said, that as a State may unquestionably
prohibit slavery within its territory, this sentence decides in effect
that Congress may do the same in a Territory of the United States,
exercising there the powers of a State, as well as the power of the
General Government.
The examination of this passage in the case referred to, would be more
appropriate when we come to consider in another part of this opinion
what power Congress can constitutionally exercise in a Territory, over
the rights of person or rights of property of a citizen. But, as it is
in the same case with the passage we have before commented on, we
dispose of it now, as it will save the court from the necessity of
referring again to the case. And it will be seen upon reading the page
in which this sentence is found, that it has no reference whatever to
the power of Congress over rights of person or rights of property--but
relates altogether to the power of establishing judicial tribunals to
administer the laws constitutionally passed, and defining the
jurisdiction they may exercise.
The law of Congress establishing a Territorial Government in Florida,
provided that the Legislature of the Territory should have legislative
powers over "all rightful objects of legislation; but no law should be
valid which was inconsistent with the laws and Constitution of the
United States."
Under the power thus conferred, the Legislature of Florida passed an
act, erecting a tribunal at Key West to decide cases of salvage. And
in the case of which we are speaking, the question arose whether the
Territorial Legislature could be authorized by Congress to establish
such a tribunal, with such powers; and one of the parties, among other
objections, insisted that Congress could not under the Constitution
authorize the Legislature of the Territory to establish such a
tribunal with such powers, but that it must be established by Congress
itself; and that a sale of cargo made under its order, to pay salvors,
was void, as made without legal authority, and passed no property to
the purchaser.
It is in disposing of this objection that the sentence relied on
occurs, and the court begin that part of the opinion by stating with
great precision the point which they are about to decide.
They say: "It has been contended that by the Constitution of the
United States, the judicial power of the United States extends to all
cases of admiralty and maritime jurisdiction; and that the whole of
the judicial power must be vested 'in one Supreme Court, and in such
inferior courts as Congress shall from time to time ordain and
establish.' Hence it has been argued that Congress cannot vest
admiralty jurisdiction in courts created by the Territorial
Legislature."
And after thus clearly stating the point before them, and which they
were about to decide, they proceed to show that these Territorial
tribunals were not constitutional courts, but merely legislative, and
that Congress might, therefore, delegate the power to the Territorial
Government to establish the court in question; and they conclude that
part of the opinion in the following words: "Although admiralty
jurisdiction can be exercised in the States in those courts only which
are established in pursuance of the third article of the Constitution,
the same limitation does not extend to the Territories. In legislating
for them, Congress exercises the combined powers of the General and
State Governments."
Thus it will be seen by these quotations from the opinion, that the
court, after stating the question it was about to decide in a manner
too plain to be misunderstood, proceeded to decide it, and announced,
as the opinion of the tribunal, that in organizing the judicial
department of the Government in a Territory of the United States,
Congress does not act under, and is not restricted by, the third
article in the Constitution, and is not bound, in a Territory, to
ordain and establish courts in which the judges hold their offices
during good behaviour, but may exercise the discretionary power which
a State exercises in establishing its judicial department, and
regulating the jurisdiction of its courts, and may authorize the
Territorial Government to establish, or may itself establish, courts
in which the judges hold their offices for a term of years only; and
may vest in them judicial power upon subjects confided to the
judiciary of the United States. And in doing this, Congress
undoubtedly exercises the combined power of the General and a State
Government. It exercises the discretionary power of a State Government
in authorizing the establishment of a court in which the judges hold
their appointments for a term of years only, and not during good
behaviour; and it exercises the power of the General Government in
investing that court with admiralty jurisdiction, over which the
General Government had exclusive jurisdiction in the Territory.
No one, we presume, will question the correctness of that opinion; nor
is there anything in conflict with it in the opinion now given. The
point decided in the case cited has no relation to the question now
before the court. That depended on the construction of the third
article of the Constitution, in relation to the judiciary of the
United States, and the power which Congress might exercise in a
Territory in organizing the judicial department of the Government. The
case before us depends upon other and different provisions of the
Constitution, altogether separate and apart from the one above
mentioned. The question as to what courts Congress may ordain or
establish in a Territory to administer laws which the Constitution
authorizes it to pass, and what laws it is or is not authorized by the
Constitution to pass, are widely different--are regulated by different
and separate articles of the Constitution, and stand upon different
principles. And we are satisfied that no one who reads attentively the
page in Peters's Reports to which we have referred, can suppose that
the attention of the court was drawn for a moment to the question now
before this court, or that it meant in that case to say that Congress
had a right to prohibit a citizen of the United States from taking any
property which he lawfully held into a Territory of the United States.
This brings us to examine by what provision of the Constitution the
present Federal Government, under its delegated and restricted powers,
is authorized to acquire territory outside of the original limits of
the United States, and what powers it may exercise therein over the
person or property of a citizen of the United States, while it remains
a Territory, and until it shall be admitted as one of the States of
the Union.
There is certainly no power given by the Constitution to the Federal
Government to establish or maintain colonies bordering on the United
States or at a distance, to be ruled and governed at its own pleasure;
nor to enlarge its territorial limits in any way, except by the
admission of new States. That power is plainly given; and if a new
State is admitted, it needs no further legislation by Congress,
because the Constitution itself defines the relative rights and
powers, and duties of the State, and the citizens of the State, and
the Federal Government. But no power is given to acquire a Territory
to be held and governed permanently in that character.
And indeed the power exercised by Congress to acquire territory and
establish a Government there, according to its own unlimited
discretion, was viewed with great jealousy by the leading statesmen
of the day. And in the Federalist, (No. 38,) written by Mr. Madison,
he speaks of the acquisition of the Northwestern Territory by the
confederated States, by the cession from Virginia, and the
establishment of a Government there, as an exercise of power not
warranted by the Articles of Confederation, and dangerous to the
liberties of the people. And he urges the adoption of the Constitution
as a security and safeguard against such an exercise of power.
We do not mean, however, to question the power of Congress in this
respect. The power to expand the territory of the United States by the
admission of new States is plainly given; and in the construction of
this power by all the departments of the Government, it has been held
to authorize the acquisition of territory, not fit for admission at
the time, but to be admitted as soon as its population and situation
would entitle it to admission. It is acquired to become a State, and
not to be held as a colony and governed by Congress with absolute
authority; and as the propriety of admitting a new State is committed
to the sound discretion of Congress, the power to acquire territory
for that purpose, to be held by the United States until it is in a
suitable condition to become a State upon an equal footing with the
other States, must rest upon the same discretion. It is a question for
the political department of the Government, and not the judicial; and
whatever the political department of the Government shall recognise as
within the limits of the United States, the judicial department is
also bound to recognise, and to administer in it the laws of the
United States, so far as they apply, and to maintain in the Territory
the authority and rights of the Government, and also the personal
rights and rights of property of individual citizens, as secured by
the Constitution. All we mean to say on this point is, that, as there
is no express regulation in the Constitution defining the power which
the General Government may exercise over the person or property of a
citizen in a Territory thus acquired, the court must necessarily look
to the provisions and principles of the Constitution, and its
distribution of powers, for the rules and principles by which its
decision must be governed.
Taking this rule to guide us, it may be safely assumed that citizens
of the United States who migrate to a Territory belonging to the
people of the United States, cannot be ruled as mere colonists,
dependent upon the will of the General Government, and to be governed
by any laws it may think proper to impose. The principle upon which
our Governments rest, and upon which alone they continue to exist, is
the union of States, sovereign and independent within their own limits
in their internal and domestic concerns, and bound together as one
people by a General Government, possessing certain enumerated and
restricted powers, delegated to it by the people of the several
States, and exercising supreme authority within the scope of the
powers granted to it, throughout the dominion of the United States. A
power, therefore, in the General Government to obtain and hold
colonies and dependent territories, over which they might legislate
without restriction, would be inconsistent with its own existence in
its present form. Whatever it acquires, it acquires for the benefit of
the people of the several States who created it. It is their trustee
acting for them, and charged with the duty of promoting the interests
of the whole people of the Union in the exercise of the powers
specifically granted.
At the time when the Territory in question was obtained by cession
from France, it contained no population fit to be associated together
and admitted as a State; and it therefore was absolutely necessary to
hold possession of it, as a Territory belonging to the United States,
until it was settled and inhabited by a civilized community capable of
self-government, and in a condition to be admitted on equal terms with
the other States as a member of the Union. But, as we have before
said, it was acquired by the General Government, as the representative
and trustee of the people of the United States, and it must therefore
be held in that character for their common and equal benefit; for it
was the people of the several States, acting through their agent and
representative, the Federal Government, who in fact acquired the
Territory in question, and the Government holds it for their common
use until it shall be associated with the other States as a member of
the Union.
But until that time arrives, it is undoubtedly necessary that some
Government should be established, in order to organize society, and to
protect the inhabitants in their persons and property; and as the
people of the United States could act in this matter only through the
Government which represented them, and through which they spoke and
acted when the Territory was obtained, it was not only within the
scope of its powers, but it was its duty to pass such laws and
establish such a Government as would enable those by whose authority
they acted to reap the advantages anticipated from its acquisition,
and to gather there a population which would enable it to assume the
position to which it was destined among the States of the Union. The
power to acquire necessarily carries with it the power to preserve and
apply to the purposes for which it was acquired. The form of
government to be established necessarily rested in the discretion of
Congress. It was their duty to establish the one that would be best
suited for the protection and security of the citizens of the United
States, and other inhabitants who might be authorized to take up their
abode there, and that must always depend upon the existing condition
of the Territory, as to the number and character of its inhabitants,
and their situation in the Territory. In some cases a Government,
consisting of persons appointed by the Federal Government, would best
subserve the interests of the Territory, when the inhabitants were few
and scattered, and new to one another. In other instances, it would be
more advisable to commit the powers of self-government to the people
who had settled in the Territory, as being the most competent to
determine what was best for their own interests. But some form of
civil authority would be absolutely necessary to organize and preserve
civilized society, and prepare it to become a State; and what is the
best form must always depend on the condition of the Territory at the
time, and the choice of the mode must depend upon the exercise of a
discretionary power by Congress, acting within the scope of its
constitutional authority, and not infringing upon the rights of person
or rights of property of the citizen who might go there to reside, or
for any other lawful purpose. It was acquired by the exercise of this
discretion, and it must be held and governed in like manner, until it
is fitted to be a State.