compact, and six of its articles define the conditions to be observed
in their Constitution and laws. These conditions were designed to
fulfil the trust in the agreements of cession, that the States to be
formed of the ceded Territories should be "distinct republican
States." This ordinance was submitted to Virginia in 1788, and the 5th
article, embodying as it does a summary of the entire act, was
specifically ratified and confirmed by that State. This was an
incorporation of the ordinance into her act of cession. It was
conceded, in the argument, that the authority of Congress was not
adequate to the enactment of the ordinance, and that it cannot be
supported upon the Articles of Confederation. To a part of the
engagements, the assent of nine States was required, and for another
portion no provision had been made in those articles. Mr. Madison
said, in a writing nearly contemporary, but before the confirmatory
act of Virginia, "Congress have proceeded to form new States, to erect
temporary Governments, to appoint officers for them, and to prescribe
the conditions on which such States shall be admitted into the
Confederacy; all this has been done, and done without the least color
of constitutional authority." (Federalist, No. 38.) Richard Henry Lee,
one of the committee who reported the ordinance to Congress,
transmitted it to General Washington, (15th July, 1787,) saying, "It
seemed necessary, for the security of property among uninformed and
perhaps licentious people, as the greater part of those who go there
are, that a strong-toned Government should exist, and the rights of
property be clearly defined." The consent of all the States
represented in Congress, the consent of the Legislature of Virginia,
the consent of the inhabitants of the Territory, all concur to support
the authority of this enactment. It is apparent, in the frame of the
Constitution, that the Convention recognised its validity, and
adjusted parts of their work with reference to it. The authority to
admit new States into the Union, the omission to provide distinctly
for Territorial Governments, and the clause limiting the foreign slave
trade to States then existing, which might not prohibit it, show that
they regarded this Territory as provided with a Government, and
organized permanently with a restriction on the subject of slavery.
Justice Chase, in the opinion already cited, says of the Government
before, and it is in some measure true during the Confederation, that
"the powers of Congress originated from necessity, and arose out of
and were only limited by events, or, in other words, they were
revolutionary in their very nature. Their extent depended upon the
exigencies and necessities of public affairs;" and there is only one
rule of construction, in regard to the acts done, which will fully
support them, viz: that the powers actually exercised were rightfully
exercised, wherever they were supported by the implied sanction of the
State Legislatures, and by the ratifications of the people.
The clauses in the 3d section of the 4th article of the Constitution,
relative to the admission of new States, and the disposal and
regulation of the territory of the United States, were adopted without
debate in the Convention.
There was a warm discussion on the clauses that relate to the
subdivision of the States, and the reservation of the claims of the
United States and each of the States from any prejudice. The Maryland
members revived the controversy in regard to the Crown lands of the
Southwest. There was nothing to indicate any reference to a government
of Territories not included within the limits of the Union; and the
whole discussion demonstrates that the Convention was consciously
dealing with a Territory whose condition, as to government, had been
arranged by a fundamental and unalterable compact.
An examination of this clause of the Constitution, by the light of the
circumstances in which the Convention was placed, will aid us to
determine its significance. The first clause is, "that new States may
be admitted by the Congress to this Union." The condition of
Kentucky, Vermont, Rhode Island, and the new States to be formed in
the Northwest, suggested this, as a necessary addition to the powers
of Congress. The next clause, providing for the subdivision of States,
and the parties to consent to such an alteration, was required, by the
plans on foot, for changes in Massachusetts, New York, Pennsylvania,
North Carolina, and Georgia. The clause which enables Congress to
dispose of and make regulations respecting the public domain, was
demanded by the exigencies of an exhausted treasury and a disordered
finance, for relief by sales, and the preparation for sales, of the
public lands; and the last clause, that nothing in the Constitution
should prejudice the claims of the United States or a particular
State, was to quiet the jealousy and irritation of those who had
claimed for the United States all the unappropriated lands. I look in
vain, among the discussions of the time, for the assertion of a
supreme sovereignty for Congress over the territory then belonging to
the United States, or that they might thereafter acquire. I seek in
vain for an annunciation that a consolidated power had been
inaugurated, whose subject comprehended an empire, and which had no
restriction but the discretion of Congress. This disturbing element of
the Union entirely escaped the apprehensive previsions of Samuel
Adams, George Clinton, Luther Martin, and Patrick Henry; and, in
respect to dangers from power vested in a central Government over
distant settlements, colonies, or provinces, their instincts were
always alive. Not a word escaped them, to warn their countrymen, that
here was a power to threaten the landmarks of this federative Union,
and with them the safeguards of popular and constitutional liberty; or
that under this article there might be introduced, on our soil, a
single Government over a vast extent of country--a Government foreign
to the persons over whom it might be exercised, and capable of binding
those not represented, by statutes, in all cases whatever. I find
nothing to authorize these enormous pretensions, nothing in the
expositions of the friends of the Constitution, nothing in the
expressions of alarm by its opponents--expressions which have since
been developed as prophecies. Every portion of the United States was
then provided with a municipal Government, which this Constitution was
not designed to supersede, but merely to modify as to its conditions.
The compacts of cession by North Carolina and Georgia are subsequent
to the Constitution. They adopt the ordinance of 1787, except the
clause respecting slavery. But the precautionary repudiation of that
article forms an argument quite as satisfactory to the advocates for
Federal power, as its introduction would have done. The refusal of a
power to Congress to legislate in one place, seems to justify the
seizure of the same power when another place for its exercise is
found.
This proceeds from a radical error, which lies at the foundation of
much of this discussion. It is, that the Federal Government may
lawfully do whatever is not directly prohibited by the Constitution.
This would have been a fundamental error, if no amendments to the
Constitution had been made. But the final expression of the will of
the people of the States, in the 10th amendment, is, that the powers
of the Federal Government are limited to the grants of the
Constitution.
Before the cession of Georgia was made, Congress asserted rights, in
respect to a part of her territory, which require a passing notice. In
1798 and 1800, acts for the settlement of limits with Georgia, and to
establish a Government in the Mississippi Territory, were adopted. A
Territorial Government was organized, between the Chattahoochee and
Mississippi rivers. This was within the limits of Georgia. These acts
dismembered Georgia. They established a separate Government upon her
soil, while they rather derisively professed, "that the establishment
of that Government shall in no respects impair the rights of the State
of Georgia, either to the jurisdiction or soil of the Territory." The
Constitution provided that the importation of such persons as any of
the existing States shall think proper to admit, shall not be
prohibited by Congress before 1808. By these enactments, a prohibition
was placed upon the importation of slaves into Georgia, although her
Legislature had made none.
This court have repeatedly affirmed the paramount claim of Georgia to
this Territory. They have denied the existence of any title in the
United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.)
Yet these acts were cited in the argument as precedents to show the
power of Congress in the Territories. These statutes were the occasion
of earnest expostulation and bitter remonstrance on the part of the
authorities of the State, and the memory of their injustice and wrong
remained long after the legal settlement of the controversy by the
compact of 1802. A reference to these acts terminates what I have to
say upon the Constitutions of the Territory within the original limits
of the United States. These Constitutions were framed by the
concurrence of the States making the cessions, and Congress, and were
tendered to immigrants who might be attracted to the vacant territory.
The legislative powers of the officers of this Government were limited
to the selection of laws from the States; and provision was made for
the introduction of popular institutions, and their emancipation from
Federal control, whenever a suitable opportunity occurred. The limited
reservation of legislative power to the officers of the Federal
Government was excused, on the plea of _necessity_; and the
probability is, that the clauses respecting slavery embody some
compromise among the statesmen of that time; beyond these, the
distinguishing features of the system which the patriots of the
Revolution had claimed as their birthright, from Great Britain,
predominated in them.
The acquisition of Louisiana, in 1803, introduced another system into
the United States. This vast province was ceded by Napoleon, and its
population had always been accustomed to a viceroyal Government,
appointed by the Crowns of France or Spain. To establish a Government
constituted on similar principles, and with like conditions, was not
an unnatural proceeding.
But there was great difficulty in finding constitutional authority for
the measure. The third section of the fourth article of the
Constitution was introduced into the Constitution, on the motion of
Mr. Gouverneur Morris. In 1803, he was appealed to for information in
regard to its meaning. He answers: "I am very certain I had it not in
contemplation to insert a decree _de coercendo imperio_ in the
Constitution of America.... I knew then, as well as I do now, that all
North America must at length be annexed to us. Happy indeed, if the
lust of dominion stop here. It would therefore have been perfectly
utopian to oppose a paper restriction to the violence of popular
sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days
later, he makes another reply to his correspondent. "I perceive," he
says, "I mistook the drift of your inquiry, which substantially is,
whether Congress can admit, as a new State, territory which did not
belong to the United States when the Constitution was made. In my
opinion, they cannot. I always thought, when we should acquire Canada
and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND
ALLOW THEM NO VOICE _in our councils. In wording the third_ SECTION OF
THE _fourth article, I went as far as circumstances would permit, to
establish the exclusion_. CANDOR OBLIGES ME TO ADD MY BELIEF, THAT HAD
IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN
MADE." (3 Mor. Writ., 192.) The first Territorial Government of
Louisiana was an Imperial one, founded upon a French or Spanish model.
For a time, the Governor, Judges, Legislative Council, Marshal,
Secretary, and officers of the militia, were appointed by the
President.[3]
[Footnote 3: Mr. Varnum said: "The bill provided such a Government as
had never been known in the United States." Mr. Eustis: "The
Government laid down in this bill is certainly a new thing in the
United States." Mr. Lucas: "It has been remarked, that this bill
establishes elementary principles never previously introduced in the
Government of any Territory of the United States. Granting the truth
of this observation," &c., &c. Mr. Macon: "My first objection to the
principle contained in this section is, that it establishes a species
of government unknown to the United States." Mr. Boyle: "Were the
President an angel instead of a man, I would not clothe him with this
power." Mr. G.W. Campbell: "On examining the section, it will appear
that it really establishes a complete despotism." Mr. Sloan: "Can
anything be more repugnant to the principles of just government? Can
anything be more despotic?"--_Annals of Congress_, 1803-'4.]
Besides these anomalous arrangements, the acquisition gave rise to
jealous inquiries, as to the influence it would exert in determining
the men and States that were to be "the arbiters and rulers" of the
destinies of the Union; and unconstitutional opinions, having for
their aim to promote sectional divisions, were announced and
developed. "Something," said an eminent statesman, "something has
suggested to the members of Congress the policy of acquiring
geographical majorities. This is a very direct step towards disunion,
for it must foster the geographical enmities by which alone it can be
effected. This something must be a contemplation of particular
advantages to be derived from such majorities; and is it not notorious
that they consist of nothing else but usurpations over persons and
property, by which they can regulate the internal _wealth and
prosperity of States and individuals_?"
The most dangerous of the efforts to employ a geographical political
power, to perpetuate a geographical preponderance in the Union, is to
be found in the deliberations upon the act of the 6th of March, 1820,
before cited. The attempt consisted of a proposal to exclude Missouri
from a place in the Union, unless her people would adopt a
Constitution containing a prohibition upon the subject of slavery,
according to a prescription of Congress. The sentiment is now general,
if not universal, that Congress had no constitutional power to impose
the restriction. This was frankly admitted at the bar, in the course
of this argument. The principles which this court have pronounced
condemn the pretension then made on behalf of the legislative
department. In Groves _v._ Slaughter, (15 Pet.,) the Chief Justice
said: "The power over this subject is exclusively with the several
States, and each of them has a right to decide for itself whether it
will or will not allow persons of this description to be brought
within its limits." Justice McLean said: "The Constitution of the
United States operates alike in all the States, and one State has the
same power over the subject of slavery as every other State." In
Pollard's Lessee _v._ Hagan, (3 How., 212,) the court say: "The United
States have no constitutional capacity to exercise municipal
jurisdiction, sovereignty, or eminent domain, within the limits of a
State or elsewhere, except in cases where it is delegated, and the
court denies the faculty of the Federal Government to add to its
powers by treaty or compact."
This is a necessary consequence, resulting from the nature of the
Federal Constitution, which is a federal compact among the States,
establishing a limited Government, with powers delegated by the people
of distinct and independent communities, who reserved to their State
Governments, and to themselves, the powers they did not grant. This
claim to impose a restriction upon the people of Missouri involved a
denial of the constitutional relations between the people of the
States and Congress, and affirmed a concurrent right for the latter,
with their people, to constitute the social and political system of
the new States. A successful maintenance of this claim would have
altered the basis of the Constitution. The new States would have
become members of a Union defined in part by the Constitution and in
part by Congress. They would not have been admitted to "this Union."
Their sovereignty would have been restricted by Congress as well as
the Constitution. The demand was unconstitutional and subversive, but
was prosecuted with an energy, and aroused such animosities among the
people, that patriots, whose confidence had not failed during the
Revolution, began to despair for the Constitution.[4] Amid the utmost
violence of this extraordinary contest, the expedient contained in the
eighth section of this act was proposed, to moderate it, and to avert
the catastrophe it menaced. It was not seriously debated, nor were its
constitutional aspects severely scrutinized by Congress. For the first
time, in the history of the country, has its operation been embodied
in a case at law, and been presented to this court for their judgment.
The inquiry is, whether there are conditions in the Constitutions of
the Territories which subject the capacity and _status_ of persons
within their limits to the direct action of Congress. Can Congress
determine the condition and _status_ of persons who inhabit the
Territories?
[Footnote 4: Mr. Jefferson wrote: "The Missouri question is the most
portentous one that ever threatened our Union. In the gloomiest
moments of the revolutionary war, I never had any apprehension equal
to that I feel from this source."]
The Constitution permits Congress to dispose of and to make all
needful rules and regulations respecting the territory or other
property belonging to the United States. This power applies as well to
territory belonging to the United States within the States, as beyond
them. It comprehends all the public domain, wherever it may be. The
argument is, that the power to make "ALL needful rules and
regulations" "is a power of legislation," "a full legislative power;"
"that it includes all subjects of legislation in the territory," and
is without any limitations, except the positive prohibitions which
affect all the powers of Congress. Congress may then regulate or
prohibit slavery upon the public domain within the new States, and
such a prohibition would permanently affect the capacity of a slave,
whose master might carry him to it. And why not? Because no power has
been conferred on Congress. This is a conclusion universally admitted.
But the power to "make rules and regulations respecting the territory"
is not restrained by State lines, nor are there any constitutional
prohibitions upon its exercise in the domain of the United States
within the States; and whatever rules and regulations respecting
territory Congress may constitutionally make are supreme, and are not
dependent on the _situs_ of "the territory."
The author of the Farmer's Letters, so famous in the
ante-revolutionary history, thus states the argument made by the
American loyalists in favor of the claim of the British Parliament to
legislate in all cases whatever over the colonies: "It has been urged
with great vehemence against us," he says, "and it seems to be thought
their FORT by our adversaries, that a power of regulation is a power
of legislation; and a power of legislation, if constitutional, must be
universal and supreme, in the utmost sense of the word. It is
therefore concluded that the colonies, by acknowledging the power of
regulation, acknowledged every other power."
This sophism imposed upon a portion of the patriots of that day. Chief
Justice Marshall, in his life of Washington, says "that many of the
best-informed men in Massachusetts had perhaps adopted the opinion of
the parliamentary right of internal government over the colonies;"
"that the English statute book furnishes many instances of its
exercise;" "that in no case recollected, was their authority openly
controverted;" and "that the General Court of Massachusetts, on a late
occasion, openly recognised the principle." (Marsh. Wash., v. 2, p.
75, 76.)