series of years was expected from commerce. The public lands were
considered as the principal resource of the country for the payment of
the Revolutionary debt. Direct taxation was the means relied on to pay
the current expenses of the Government. The short period that occurred
between the cession of western lands to the Federal Government by
Virginia and other States, and the adoption of the Constitution, was
sufficient to show the necessity of a proper land system and a
temporary Government. This was clearly seen by propositions and
remarks in the Federal Convention, some of which are above cited, by
the passage of the Ordinance of 1787, and the adoption of that
instrument by Congress, under the Constitution, which gave to it
validity.
It will be recollected that the deed of cession of western territory
was made to the United States by Virginia in 1784, and that it
required the territory ceded to be laid out into States, that the land
should be disposed of for the common benefit of the States, and that
all right, title, and claim, as well of soil as of jurisdiction, were
ceded; and this was the form of cession from other States.
On the 13th of July, the Ordinance of 1787 was passed, "for the
government of the United States territory northwest of the river
Ohio," with but one dissenting vote. This instrument provided there
should be organized in the territory not less than three nor more than
five States, designating their boundaries. It was passed while the
Federal Convention was in session, about two months before the
Constitution was adopted by the Convention. The members of the
Convention must therefore have been well acquainted with the
provisions of the Ordinance. It provided for a temporary Government,
as initiatory to the formation of State Governments. Slavery was
prohibited in the territory.
Can any one suppose that the eminent men of the Federal Convention
could have overlooked or neglected a matter so vitally important to
the country, in the organization of temporary Governments for the vast
territory northwest of the river Ohio? In the 3d section of the 4th
article of the Constitution, they did make provision for the admission
of new States, the sale of the public lands, and the temporary
Government of the territory. Without a temporary Government, new
States could not have been formed, nor could the public lands have
been sold.
If the third section were before us now for consideration for the
first time, under the facts stated, I could not hesitate to say there
was adequate legislative power given in it. The power to make all
needful rules and regulations is a power to legislate. This no one
will controvert, as Congress cannot make "rules and regulations,"
except by legislation. But it is argued that the word territory is
used as synonymous with the word land; and that the rules and
regulations of Congress are limited to the disposition of lands and
other property belonging to the United States. That this is not the
true construction of the section appears from the fact that in the
first line of the section "the power to dispose of the public lands"
is given expressly, and, in addition, to make all needful rules and
regulations. The power to dispose of is complete in itself, and
requires nothing more. It authorizes Congress to use the proper means
within its discretion, and any further provision for this purpose
would be a useless verbiage. As a composition, the Constitution is
remarkably free from such a charge.
In the discussion of the power of Congress to govern a Territory, in
the case of the Atlantic Insurance Company _v._ Canter, (1 Peters,
511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court,
said, in regard to the people of Florida, "they do not, however,
participate in political power; they do not share in the Government
till Florida shall become a State; in the mean time, Florida continues
to be a Territory of the United States, governed by virtue of that
clause in the Constitution which empowers Congress 'to make all
needful rules and regulations respecting the territory or other
property belonging to the United States.'"
And he adds, "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 fact 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 whence the power is derived,
the possession of it is unquestioned." And in the close of the
opinion, the court say, "in legislating for them [the Territories,]
Congress exercises the combined powers of the General and State
Governments."
Some consider the opinion to be loose and inconclusive; others, that
it is _obiter dicta_; and the last sentence is objected to as
recognising absolute power in Congress over Territories. The learned
and eloquent Wirt, who, in the argument of a cause before the court,
had occasion to cite a few sentences from an opinion of the Chief
Justice, observed, "no one can mistake the style, the words so
completely match the thought."
I can see no want of precision in the language of the Chief Justice;
his meaning cannot be mistaken. He states, first, the third section as
giving power to Congress to govern the Territories, and two other
grounds from which the power may also be implied. The objection seems
to be, that the Chief Justice did not say which of the grounds stated
he considered the source of the power. He did not specifically state
this, but he did say, "whichever may be the source whence the power is
derived, the possession of it is unquestioned." No opinion of the
court could have been expressed with a stronger emphasis; the power in
Congress is unquestioned. But those who have undertaken to criticise
the opinion, consider it without authority, because the Chief Justice
did not designate specially the power. This is a singular objection.
If the power be unquestioned, it can be a matter of no importance on
which ground it is exercised.
The opinion clearly was not _obiter dicta_. The turning point in the
case was, whether Congress had power to authorize the Territorial
Legislature of Florida to pass the law under which the Territorial
court was established, whose decree was brought before this court for
revision. The power of Congress, therefore, was the point in issue.
The word "territory," according to Worcester, "means land, country, a
district of country under a temporary Government." The words
"territory or other property," as used, do imply, from the use of the
pronoun other, that territory was used as descriptive of land; but
does it follow that it was not used also as descriptive of a district
of country? In both of these senses it belonged to the United
States--as land, for the purpose of sale; as territory, for the
purpose of government.
But, if it be admitted that the word territory as used means land, and
nothing but land, the power of Congress to organize a temporary
Government is clear. It has power to make all needful regulations
respecting the public lands, and the extent of those "needful
regulations" depends upon the direction of Congress, where the means
are appropriate to the end, and do not conflict with any of the
prohibitions of the Constitution. If a temporary Government be deemed
needful, necessary, requisite, or is wanted, Congress has power to
establish it. This court says, in McCulloch _v._ The State of
Maryland, (4 Wheat., 316,) "If a certain means to carry into effect
any of the powers expressly given by the Constitution to the
Government of the Union be an appropriate measure, not prohibited by
the Constitution, the degree of its necessity is a question of
legislative discretion, not of judicial cognizance."
The power to establish post offices and post roads gives power to
Congress to make contracts for the transportation of the mail, and to
punish all who commit depredations upon it in its transit, or at its
places of distribution. Congress has power to regulate commerce, and,
in the exercise of its discretion, to lay an embargo, which suspends
commerce; so, under the same power, harbors, lighthouses, breakwaters,
&c., are constructed.
Did Chief Justice Marshall, in saying that Congress governed a
Territory, by exercising the combined powers of the Federal and State
Governments, refer to unlimited discretion? A Government which can
make white men slaves? Surely, such a remark in the argument must have
been inadvertently uttered. On the contrary, there is no power in the
Constitution by which Congress can make either white or black men
slaves. In organizing the Government of a Territory, Congress is
limited to means appropriate to the attainment of the constitutional
object. No powers can be exercised which are prohibited by the
Constitution, or which are contrary to its spirit; so that, whether
the object may be the protection of the persons and property of
purchasers of the public lands, or of communities who have been
annexed to the Union by conquest or purchase, they are initiatory to
the establishment of State Governments, and no more power can be
claimed or exercised than is necessary to the attainment of the end.
This is the limitation of all the Federal powers.
But Congress has no power to regulate the internal concerns of a
State, as of a Territory; consequently, in providing for the
Government of a Territory, to some extent, the combined powers of the
Federal and State Governments are necessarily exercised.
If Congress should deem slaves or free colored persons injurious to
the population of a free Territory, as conducing to lessen the value
of the public lands, or on any other ground connected with the public
interest, they have the power to prohibit them from becoming settlers
in it. This can be sustained on the ground of a sound national policy,
which is so clearly shown in our history by practical results, that it
would seem no considerate individual can question it. And, as regards
any unfairness of such a policy to our Southern brethren, as urged in
the argument, it is only necessary to say that, with one-fourth of the
Federal population of the Union, they have in the slave States a
larger extent of fertile territory than is included in the free
States; and it is submitted, if masters of slaves be restricted from
bringing them into free territory, that the restriction on the free
citizens of non-slaveholding States, by bringing slaves into free
territory, is four times greater than that complained of by the South.
But, not only so; some three or four hundred thousand holders of
slaves, by bringing them into free territory, impose a restriction on
twenty millions of the free States. The repugnancy to slavery would
probably prevent fifty or a hundred freemen from settling in a slave
Territory, where one slaveholder would be prevented from settling in a
free Territory.
This remark is made in answer to the argument urged, that a
prohibition of slavery in the free Territories is inconsistent with
the continuance of the Union. Where a Territorial Government is
established in a slave Territory, it has uniformly remained in that
condition until the people form a State Constitution; the same course
where the Territory is free, both parties acting in good faith, would
be attended with satisfactory results.
The sovereignty of the Federal Government extends to the entire limits
of our territory. Should any foreign power invade our jurisdiction, it
would be repelled. There is a law of Congress to punish our citizens
for crimes committed in districts of country where there is no
organized Government. Criminals are brought to certain Territories or
States, designated in the law, for punishment. Death has been
inflicted in Arkansas and in Missouri, on individuals, for murders
committed beyond the limit of any organized Territory or State; and no
one doubts that such a jurisdiction was rightfully exercised. If there
be a right to acquire territory, there necessarily must be an implied
power to govern it. When the military force of the Union shall conquer
a country, may not Congress provide for the government of such
country? This would be an implied power essential to the acquisition
of new territory. This power has been exercised, without doubt of its
constitutionality, over territory acquired by conquest and purchase.
And when there is a large district of country within the United
States, and not within any State Government, if it be necessary to
establish a temporary Government to carry out a power expressly vested
in Congress--as the disposition of the public lands--may not such
Government be instituted by Congress? How do we read the Constitution?
Is it not a practical instrument?
In such cases, no implication of a power can arise which is inhibited
by the Constitution, or which may be against the theory of its
construction. As my opinion rests on the third section, these remarks
are made as an intimation that the power to establish a temporary
Government may arise, also, on the other two grounds stated in the
opinion of the court in the insurance case, without weakening the
third section.
I would here simply remark, that the Constitution was formed for our
whole country. An expansion or contraction of our territory required
no change in the fundamental law. When we consider the men who laid
the foundation of our Government and carried it into operation, the
men who occupied the bench, who filled the halls of legislation and
the Chief Magistracy, it would seem, if any question could be settled
clear of all doubt, it was the power of Congress to establish
Territorial Governments. Slavery was prohibited in the entire
Northwestern Territory, with the approbation of leading men, South and
North; but this prohibition was not retained when this ordinance was
adopted for the government of Southern Territories, where slavery
existed. In a late republication of a letter of Mr. Madison, dated
November 27, 1819, speaking of this power of Congress to prohibit
slavery in a Territory, he infers there is no such power, from the
fact that it has not been exercised. This is not a very satisfactory
argument against any power, as there are but few, if any, subjects on
which the constitutional powers of Congress are exhausted. It is true,
as Mr. Madison states, that Congress, in the act to establish a
Government in the Mississippi Territory, prohibited the importation of
slaves into it from foreign parts; but it is equally true, that in the
act erecting Louisiana into two Territories, Congress declared, "it
shall not be lawful for any person to bring into Orleans Territory,
from any port or place within the limits of the United States, any
slave which shall have been imported since 1798, or which may
hereafter be imported, except by a citizen of the United States who
settles in the Territory, under the penalty of the freedom of such
slave." The inference of Mr. Madison, therefore, against the power of
Congress, is of no force, as it was founded on a fact supposed, which
did not exist.
It is refreshing to turn to the early incidents of our history, and
learn wisdom from the acts of the great men who have gone to their
account. I refer to a report in the House of Representatives, by John
Randolph, of Roanoke, as chairman of a committee, in March,
1803--fifty-four years ago. From the Convention held at Vincennes, in
Indiana, by their President, and from the people of the Territory, a
petition was presented to Congress, praying the suspension of the
provision which prohibited slavery in that Territory. The report
stated "that the rapid population of the State of Ohio sufficiently
evinces, in the opinion of your committee, that the labor of slaves is
not necessary to promote the growth and settlement of colonies in that
region. That this labor, demonstrably the dearest of any, can only be
employed to advantage in the cultivation of products more valuable
than any known to that quarter of the United States; that the
committee deem it highly dangerous and inexpedient to impair a
provision wisely calculated to promote the happiness and prosperity of
the Northwestern country, and to give strength and security to that
extensive frontier. In the salutary operation of this sagacious and
benevolent restraint, it is believed that the inhabitants will, at no
very distant day, find ample remuneration for a temporary privation of
labor and of emigration." (1 vol. State Papers, Public Lands, 160.)
The judicial mind of this country, State and Federal, has agreed on no
subject, within its legitimate action, with equal unanimity, as on the
power of Congress to establish Territorial Governments. No court,
State or Federal, no judge or statesman, is known to have had any
doubts on this question for nearly sixty years after the power was
exercised. Such Governments have been established from the sources of
the Ohio to the Gulf of Mexico, extending to the Lakes on the north
and the Pacific Ocean on the west, and from the lines of Georgia to
Texas.
Great interests have grown up under the Territorial laws over a
country more than five times greater in extent than the original
thirteen States; and these interests, corporate or otherwise, have
been cherished and consolidated by a benign policy, without any one
supposing the law-making power had united with the Judiciary, under
the universal sanction of the whole country, to usurp a jurisdiction
which did not belong to them. Such a discovery at this late date is
more extraordinary than anything which has occurred in the judicial
history of this or any other country. Texas, under a previous
organization, was admitted as a State; but no State can be admitted
into the Union which has not been organized under some form of
government. Without temporary Governments, our public lands could not
have been sold, nor our wildernesses reduced to cultivation, and the
population protected; nor could our flourishing States, West and
South, have been formed.
What do the lessons of wisdom and experience teach, under such
circumstances, if the new light, which has so suddenly and
unexpectedly burst upon us, be true? Acquiescence; acquiescence under
a settled construction of the Constitution for sixty years, though it
may be erroneous; which has secured to the country an advancement and
prosperity beyond the power of computation.
An act of James Madison, when President, forcibly illustrates this
policy. He had made up his opinion that Congress had no power under
the Constitution to establish a National Bank. In 1815, Congress
passed a bill to establish a bank. He vetoed the bill, on objections
other than constitutional. In his message, he speaks as a wise
statesman and Chief Magistrate, as follows:
"Waiving the question of the constitutional authority of the
Legislature to establish an incorporated bank, as being precluded, in
my judgment, by the repeated recognitions under varied circumstances
of the validity of such an institution, in acts of the Legislative,
Executive, and Judicial branches of the Government, accompanied by
indications, in different modes, of a concurrence of the general will
of the nation."
Has this impressive lesson of practical wisdom become lost to the
present generation?
If the great and fundamental principles of our Government are never to
be settled, there can be no lasting prosperity. The Constitution will
become a floating waif on the billows of popular excitement.
The prohibition of slavery north of thirty-six degrees thirty minutes,
and of the State of Missouri, contained in the act admitting that
State into the Union, was passed by a vote of 134, in the House of
Representatives, to 42. Before Mr. Monroe signed the act, it was
submitted by him to his Cabinet, and they held the restriction of
slavery in a Territory to be within the constitutional powers of
Congress. It would be singular, if in 1804 Congress had power to
prohibit the introduction of slaves in Orleans Territory from any
other part of the Union, under the penalty of freedom to the slave, if
the same power embodied in the Missouri compromise, could not be
exercised in 1820.
But this law of Congress, which prohibits slavery north of Missouri
and of thirty-six degrees thirty minutes, is declared to have been
null and void by my brethren. And this opinion is founded mainly, as I
understand, on the distinction drawn between the ordinance of 1787 and
the Missouri compromise line. In what does the distinction consist?
The ordinance, it is said, was a compact entered into by the
confederated States before the adoption of the Constitution; and that
in the cession of territory authority was given to establish a
Territorial Government.
It is clear that the ordinance did not go into operation by virtue of
the authority of the Confederation, but by reason of its modification
and adoption by Congress under the Constitution. It seems to be
supposed, in the opinion of the court, that the articles of cession
placed it on a different footing from territories subsequently
acquired. I am unable to perceive the force of this distinction. That
the ordinance was intended for the government of the Northwestern
Territory, and was limited to such Territory, is admitted. It was
extended to Southern Territories, with modifications, by acts of
Congress, and to some Northern Territories. But the ordinance was made
valid by the act of Congress, and without such act could have been of
no force. It rested for its validity on the act of Congress, the same,
in my opinion, as the Missouri compromise line.
If Congress may establish a Territorial Government in the exercise of
its discretion, it is a clear principle that a court cannot control
that discretion. This being the case, I do not see on what ground the
act is held to be void. It did not purport to forfeit property, or
take it for public purposes. It only prohibited slavery; in doing
which, it followed the ordinance of 1787.
I will now consider the fourth head, which is: "The effect of taking
slaves into a State or Territory, and so holding them, where slavery
is prohibited."
If the principle laid down in the case of Prigg _v._ The State of
Pennsylvania is to be maintained, and it is certainly to be maintained
until overruled, as the law of this court, there can be no difficulty
on this point. In that case, the court says: "The state of slavery is
deemed to be a mere municipal regulation, founded upon and limited to
the range of the territorial laws." If this be so, slavery can exist
nowhere except under the authority of law, founded on usage having the
force of law, or by statutory recognition. And the court further says:
"It is manifest, from this consideration, that if the Constitution had
not contained the clause requiring the rendition of fugitives from
labor, every non-slaveholding State in the Union would have been at
liberty to have declared free all runaway slaves coming within its
limits, and to have given them entire immunity and protection against
the claims of their masters."