used in the Constitution 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 Constitution, 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 Cerré _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 Constitution 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 Constitution, 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
circumstance of the dates of the cessions; a circumstance 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, constituted, 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 title 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 Constitution was
adopted.
But it is also insisted that provisions of the Constitution 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 Constitution 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 Constitution,
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 Constitution 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 passed the laws necessary to carry it into execution, a
deliberate and known violation of their oaths to support the
Constitution; 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 participated 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 Constitution 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 Cerré _v._
Pitot, 6 Cr., 336.) And I add, it also possesses the power of
governing it, when acquired, not by resorting to supposititious
powers, nowhere found described in the Constitution, 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 Constitution 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 Constitution was framed, while
at the same time it is admitted that the Constitution 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 pass all needful laws
respecting it.
The word regulate, or regulation, is several times used in the
Constitution. 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 passing, that under this power to
regulate commerce, Congress has enacted a great system of municipal
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 pass an ex post facto law or bill
of attainder; and so in respect to each of the other prohibitions
contained in the Constitution.
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 Constitution declares that Congress shall have power to make
"_all_ needful rules and regulations" respecting the territory
belonging to the United States.
The assertion is, though the Constitution 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
incumbent 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 Constitution,
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 Constitution, 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 Constitution of the United States was framed
and adopted, the allowance and the prohibition of negro slavery were
recognised subjects of municipal 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
passed--contained a prohibition of slavery. The purpose and object of
the clause being to enable Congress to provide a body of municipal 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 Constitution 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 Constitution, 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 Constitution. (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 Constitution, the temporary Government
of the Territory northwest of the river Ohio could no longer exist,
save under the powers conferred on Congress by the Constitution.
Whatever legislative, judicial, or executive authority should be
exercised therein could be derived only from the people of the United
States under the Constitution. And, accordingly, an act was passed 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
assembled, 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
Constitution 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
Constitution; 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 Constitution, 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 passage of this law to have been an assertion 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 Constitution; no other power being capable of operating
within that territory after the Constitution took effect.
On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress
passed 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 emancipate 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 passed 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, entitled, '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 passed
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 classes 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 class 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 latitude.
Of the second class, in which Congress refused to interfere with
slavery already existing under the municipal 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 Constitution was
adopted.
If the practical construction of the Constitution contemporaneously
with its going into effect, by men intimately acquainted with its
history from their personal participation in framing and adopting it,
and continued by them through a long series of acts of the gravest
importance, be entitled 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.