Part 9 (2/2)
The compacts of cession by North Carolina and Georgia are subsequent to the Const.i.tution. 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 Const.i.tution.
This would have been a fundamental error, if no amendments to the Const.i.tution 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 Const.i.tution.
Before the cession of Georgia was made, Congress a.s.serted rights, in respect to a part of her territory, which require a pa.s.sing 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 Const.i.tution 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 t.i.tle 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 Const.i.tutions of the Territory within the original limits of the United States. These Const.i.tutions 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 inst.i.tutions, and their emanc.i.p.ation 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 distinguis.h.i.+ng 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 const.i.tuted on similar principles, and with like conditions, was not an unnatural proceeding.
But there was great difficulty in finding const.i.tutional authority for the measure. The third section of the fourth article of the Const.i.tution was introduced into the Const.i.tution, 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 Const.i.tution 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 l.u.s.t 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 Const.i.tution 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 circ.u.mstances 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 unconst.i.tutional 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 Const.i.tution 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 const.i.tutional power to impose the restriction. This was frankly admitted at the bar, in the course of this argument. The principles which this court have p.r.o.nounced 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 Const.i.tution 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 const.i.tutional capacity to exercise munic.i.p.al 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 Const.i.tution, which is a federal compact among the States, establis.h.i.+ng 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 const.i.tutional relations between the people of the States and Congress, and affirmed a concurrent right for the latter, with their people, to const.i.tute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Const.i.tution. The new States would have become members of a Union defined in part by the Const.i.tution 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 Const.i.tution. The demand was unconst.i.tutional 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 Const.i.tution.[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 const.i.tutional 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 Const.i.tutions 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 Const.i.tution 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 const.i.tutional prohibitions upon its exercise in the domain of the United States within the States; and whatever rules and regulations respecting territory Congress may const.i.tutionally 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 const.i.tutional, 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 Was.h.i.+ngton, says ”that many of the best-informed men in Ma.s.sachusetts 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 Ma.s.sachusetts, on a late occasion, openly recognised the principle.” (Marsh. Wash., v. 2, p.
75, 76.)
But the more eminent men of Ma.s.sachusetts rejected it; and another patriot of the time employs the instance to warn us of ”the stealth with which oppression approaches,” and ”the enormities towards which precedents travel.” And the people of the United States, as we have seen, appealed to the last argument, rather than acquiesce in their authority. Could it have been the purpose of Was.h.i.+ngton and his ill.u.s.trious a.s.sociates, by the use of ambiguous, equivocal, and expansive words, such as ”rules,” ”regulations,” ”territory,” to re-establish in the Const.i.tution of their country that _fort_ which had been prostrated amid the toils and with the sufferings and sacrifices of seven years of war? Are these words to be understood as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores--in a word, as George III would have understood them--or are we to look for their interpretation to Patrick Henry or Samuel Adams, to Jefferson, and Jay, and d.i.c.kinson; to the sage Franklin, or to Hamilton, who from his early manhood was engaged in combating British constructions of such words? We know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance, of the States, observed the same liberal principle.
That the Union of the Const.i.tution is a union formed of equal States; and that new States, when admitted, were to enter ”this Union.” Had another union been proposed in ”any pointed manner,” it would have encountered not only ”strong” but successful opposition. The disunion between Great Britain and her colonies originated in the antipathy of the latter to ”rules and regulations” made by a remote power respecting their internal policy. In forming the Const.i.tution, this fact was ever present in the minds of its authors. The people were a.s.sured by their most trusted statesmen ”that the jurisdiction of the Federal Government is limited to certain enumerated objects, which concern all members of the republic,” and ”that the local or munic.i.p.al authorities form distinct portions of supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere.” Still, this did not content them. Under the lead of Hanc.o.c.k and Samuel Adams, of Patrick Henry and George Mason, they demanded an explicit declaration that no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Const.i.tution were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance. Is it probable, therefore, that the supreme and irresponsible power, which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who conducted the counsels of the people in the formation of this Const.i.tution? When the questions that came to the surface upon the acquisition of Louisiana were presented to the mind of Jefferson, he wrote: ”I had rather ask an enlargement of power from the nation, where it is found necessary, than to a.s.sume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Const.i.tution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Const.i.tution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution.” The publication of the journals of the Federal Convention in 1819, of the debates reported by Mr. Madison in 1840, and the ma.s.s of private correspondence of the early statesmen before and since, enable us to approach the discussion of the aims of those who made the Const.i.tution, with some insight and confidence.
I have endeavored, with the a.s.sistance of these, to find a solution for the grave and difficult question involved in this inquiry. My opinion is, that the claim for Congress of supreme power in the Territories, under the grant to ”dispose of and make all needful rules and regulations respecting _territory_,” is not supported by the historical evidence drawn from the Revolution, the Confederation, or the deliberations which preceded the ratification of the Federal Const.i.tution. The ordinance of 1787 depended upon the action of the Congress of the Confederation, the a.s.sent of the State of Virginia, and the acquiescence of the people who recognised the validity of that plea of necessity which supported so many of the acts of the Governments of that time; and the Federal Government accepted the ordinance as a recognised and valid engagement of the Confederation.
In referring to the precedents of 1798 and 1800, I find the Const.i.tution was plainly violated by the invasion of the rights of a sovereign State, both of soil and jurisdiction; and in reference to that of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the Government.
Mr. John Quincy Adams, at a later period, says of the last act, ”that the President found Congress mounted to the pitch of pa.s.sing those acts, without inquiring where they acquired the authority, and he conquered his own scruples as they had done theirs.” But this court cannot undertake for themselves the same conquest. They acknowledge that our peculiar security is in the possession of a written Const.i.tution, and they cannot make it blank paper by construction.
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