Part 13 (1/2)
Many of the States, on the adoption of the Const.i.tution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the inst.i.tution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests.
But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right.
The power of Congress to establish Territorial Governments, and to prohibit the introduction of slavery therein, is the next point to be considered.
After the cession of western territory by Virginia and other States, to the United States, the public attention was directed to the best mode of disposing of it for the general benefit. While in attendance on the Federal Convention, Mr. Madison, in a letter to Edmund Randolph, dated the 22d April, 1787, says: ”Congress are deliberating on the plan most eligible for disposing of the western territory not yet surveyed. Some alteration will probably be made in the ordinance on that subject.” And in the same letter he says: ”The inhabitants of the Illinois complain of the land jobbers, &c., who are purchasing t.i.tles among them. Those of St. Vincent's complain of the defective criminal and civil justice among them, as well as of military protection.” And on the next day he writes to Mr. Jefferson: ”The government of the settlements on the Illinois and Wabash is a subject very perplexing in itself, and rendered more so by our ignorance of the many circ.u.mstances on which a right judgment depends. The inhabitants at those places claim protection against the savages, and some provision for both civil and criminal justice.”
In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention certain propositions, as the basis of a Federal Government, among which was the following:
”_Resolved_, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole.”
Afterward, Mr. Madison submitted to the Convention, in order to be referred to the committee of detail, the following powers, as proper to be added to those of general legislation:
”To dispose of the unappropriated lands of the United States. To inst.i.tute temporary Governments for new States arising therein. To regulate affairs with the Indians, as well within as without the limits of the United States.”
Other propositions were made in reference to the same subjects, which it would be tedious to enumerate. Mr. Gouverneur Morris proposed the following:
”The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Const.i.tution contained shall be so construed as to prejudice any claims either of the United States or of any particular State.”
This was adopted as a part of the Const.i.tution, with two verbal alterations--Congress was subst.i.tuted for Legislature, and the word _either_ was stricken out.
In the organization of the new Government, but little revenue for a series of years was expected from commerce. The public lands were considered as the princ.i.p.al 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 Const.i.tution, 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 pa.s.sage of the Ordinance of 1787, and the adoption of that instrument by Congress, under the Const.i.tution, 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, t.i.tle, 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 pa.s.sed, ”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 pa.s.sed while the Federal Convention was in session, about two months before the Const.i.tution 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 Const.i.tution, 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 Const.i.tution 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, partic.i.p.ate 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 Const.i.tution 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 pa.s.s 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 p.r.o.noun 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 Const.i.tution. 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 Const.i.tution to the Government of the Union be an appropriate measure, not prohibited by the Const.i.tution, 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.