Part 19 (2/2)
I have thus far a.s.sumed, merely for the purpose of the argument, that the laws of the United States, respecting slavery in this Territory, were const.i.tutionally enacted by Congress. It remains to inquire whether they are const.i.tutional and binding laws.
In the argument of this part of the case at bar, it was justly considered by all the counsel to be necessary to ascertain the source of the power of Congress over the territory belonging to the United States. Until this is ascertained, it is not possible to determine the extent of that power. On the one side it was maintained that the Const.i.tution contains no express grant of power to organize and govern what is now known to the laws of the United States as a Territory.
That whatever power of this kind exists, is derived by implication from the capacity of the United States to hold and acquire territory out of the limits of any State, and the necessity for its having some government.
On the other side, it was insisted that the Const.i.tution has not failed to make an express provision for this end, and that it is found in the third section of the fourth article of the Const.i.tution.
To determine which of these is the correct view, it is needful to advert to some facts respecting this subject, which existed when the Const.i.tution was framed and adopted. It will be found that these facts not only shed much light on the question, whether the framers of the Const.i.tution omitted to make a provision concerning the power of Congress to organize and govern Territories, but they will also aid in the construction of any provision which may have been made respecting this subject.
Under the Confederation, the unsettled territory within the limits of the United States had been a subject of deep interest. Some of the States insisted that these lands were within their chartered boundaries, and that they had succeeded to the t.i.tle of the Crown to the soil. On the other hand, it was argued that the vacant lands had been acquired by the United States, by the war carried on by them under a common Government and for the common interest.
This dispute was further complicated by unsettled questions of boundary among several States. It not only delayed the accession of Maryland to the Confederation, but at one time seriously threatened its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of these circ.u.mstances, Congress earnestly recommended to the several States a cession of their claims and rights to the United States. (5 Jour. of Cong., 442.) And before the Const.i.tution was framed, it had been begun. That by New York had been made on the 1st day of March, 1781; that of Virginia on the 1st day of March, 1784; that of Ma.s.sachusetts on the 19th day of April, 1785; that of Connecticut on the 14th day of September, 1786; that of South Carolina on the 8th day of August, 1787, while the Convention for framing the Const.i.tution was in session.
It is very material to observe, in this connection, that each of these acts cedes, in terms, to the United States, as well the jurisdiction as the soil.
It is also equally important to note that, when the Const.i.tution was framed and adopted, this plan of vesting in the United States, for the common good, the great tracts of ungranted lands claimed by the several States, in which so deep an interest was felt, was yet incomplete. It remained for North Carolina and Georgia to cede their extensive and valuable claims. These were made, by North Carolina on the 25th day of February, 1790, and by Georgia on the 24th day of April, 1802. The terms of these last-mentioned cessions will hereafter be noticed in another connection; but I observe here that each of them distinctly shows, upon its face, that they were not only in execution of the general plan proposed by the Congress of the Confederation, but of a formed purpose of each of these States, existing when the a.s.sent of their respective people was given to the Const.i.tution of the United States.
It appears, then, that when the Federal Const.i.tution was framed, and presented to the people of the several States for their consideration, the unsettled territory was viewed as justly applicable to the common benefit, so far as it then had or might attain thereafter a pecuniary value; and so far as it might become the seat of new States, to be admitted into the Union upon an equal footing with the original States. And also that the relations of the United States to that unsettled territory were of different kinds. The t.i.tles of the States of New York, Virginia, Ma.s.sachusetts, Connecticut, and South Carolina, as well of soil as of jurisdiction, had been transferred to the United States. North Carolina and Georgia had not actually made transfers, but a confident expectation, founded on their appreciation of the justice of the general claim, and fully justified by the results, was entertained, that these cessions would be made. The ordinance of 1787 had made provision for the temporary government of so much of the territory actually ceded as lay northwest of the river Ohio.
But it must have been apparent, both to the framers of the Const.i.tution and the people of the several States who were to act upon it, that the Government thus provided for could not continue, unless the Const.i.tution should confer on the United States the necessary powers to continue it. That temporary Government, under the ordinance, was to consist of certain officers, to be appointed by and responsible to the Congress of the Confederation; their powers had been conferred and defined by the ordinance. So far as it provided for the temporary government of the Territory, it was an ordinary act of legislation, deriving its force from the legislative power of Congress, and depending for its vitality upon the continuance of that legislative power. But the officers to be appointed for the Northwestern Territory, after the adoption of the Const.i.tution, must necessarily be officers of the United States, and not of the Congress of the Confederation; appointed and commissioned by the President, and exercising powers derived from the United States under the Const.i.tution.
Such was the relation between the United States and the Northwestern Territory, which all reflecting men must have foreseen would exist, when the Government created by the Const.i.tution should supersede that of the Confederation. That if the new Government should be without power to govern this Territory, it could not appoint and commission officers, and send them into the Territory, to exercise there legislative, judicial, and executive power; and that this Territory, which was even then foreseen to be so important, both politically and financially, to all the existing States, must be left not only without the control of the General Government, in respect to its future political relations to the rest of the States, but absolutely without any Government, save what its inhabitants, acting in their primary capacity, might from time to time create for themselves.
But this Northwestern Territory was not the only territory, the soil and jurisdiction whereof were then understood to have been ceded to the United States. The cession by South Carolina, made in August, 1787, was of ”all the territory included within the river Mississippi, and a line beginning at that part of the said river which is intersected by the southern boundary of North Carolina, and continuing along the said boundary line until it intersects the ridge or chain of mountains which divides the Eastern from the Western waters; then to be continued along the top of the said ridge of mountains, until it intersects a line to be drawn due west from the head of the southern branch of the Tugaloo river, to the said mountains; and thence to run a due west course to the river Mississippi.”
It is true that by subsequent explorations it was ascertained that the source of the Tugaloo river, upon which the t.i.tle of South Carolina depended, was so far to the northward, that the transfer conveyed only a narrow slip of land, about twelve miles wide, lying on the top of the ridge of mountains, and extending from the northern boundary of Georgia to the southern boundary of North Carolina. But this was a discovery made long after the cession, and there can be no doubt that the State of South Carolina, in making the cession, and the Congress in accepting it, viewed it as a transfer to the United States of the soil and jurisdiction of an extensive and important part of the unsettled territory ceded by the Crown of Great Britain by the treaty of peace, though its quant.i.ty or extent then remained to be ascertained.[5]
[Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_ territory did actually pa.s.s by this cession, is taken from the opinion of the court, delivered by Mr. Justice Wayne, in the case of Howard _v._ Ingersoll, reported in 13 How., 405. It is an obscure matter, and, on some examination of it, I have been led to doubt whether any territory actually pa.s.sed by this cession. But as the fact is not important to the argument, I have not thought it necessary further to investigate it.]
It must be remembered also, as has been already stated, that not only was there a confident expectation entertained by the other States, that North Carolina and Georgia would complete the plan already so far executed by New York, Virginia, Ma.s.sachusetts, Connecticut, and South Carolina, but that the opinion was in no small degree prevalent, that the just t.i.tle to this ”back country,” as it was termed, had vested in the United States by the treaty of peace, and could not rightfully be claimed by any individual State.
There is another consideration applicable to this part of the subject, and ent.i.tled, in my judgment, to great weight.
The Congress of the Confederation had a.s.sumed the power not only to dispose of the lands ceded, but to inst.i.tute Governments and make laws for their inhabitants. In other words, they had proceeded to act under the cession, which, as we have seen, was as well of the jurisdiction as of the soil. This ordinance was pa.s.sed on the 13th of July, 1787.
The Convention for framing the Const.i.tution was then in session at Philadelphia. The proof is direct and decisive, that it was known to the Convention.[6] It is equally clear that it was admitted and understood not to be within the legitimate powers of the Confederation to pa.s.s this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276; Federalist, Nos. 38, 43.)
[Footnote 6: It was published in a newspaper at Philadelphia, in May, and a copy of it was sent by R.H. Lee to Gen. Was.h.i.+ngton, on the 15th of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of Was.h.i.+ngton, vol. 9, p. 174.)]
The importance of conferring on the new Government regular powers commensurate with the objects to be attained, and thus avoiding the alternative of a failure to execute the trust a.s.sumed by the acceptance of the cessions made and expected, or its execution by usurpation, could scarcely fail to be perceived. That it was in fact perceived, is clearly shown by the Federalist, (No. 38,) where this very argument is made use of in commendation of the Const.i.tution.
Keeping these facts in view, it may confidently be a.s.serted that there is very strong reason to believe, before we examine the Const.i.tution itself, that the necessity for a competent grant of power to hold, dispose of, and govern territory, ceded and expected to be ceded, could not have escaped the attention of those who framed or adopted the Const.i.tution; and that if it did not escape their attention, it could not fail to be adequately provided for.
Any other conclusion would involve the a.s.sumption that a subject of the gravest national concern, respecting which the small States felt so much jealousy that it had been almost an insurmountable obstacle to the formation of the Confederation, and as to which all the States had deep pecuniary and political interests, and which had been so recently and constantly agitated, was nevertheless overlooked; or that such a subject was not overlooked, but designedly left unprovided for, though it was manifestly a subject of common concern, which belonged to the care of the General Government, and adequate provision for which could not fail to be deemed necessary and proper.
The admission of new States, to be framed out of the ceded territory, early attracted the attention of the Convention. Among the resolutions introduced by Mr. Randolph, on the 29th of May, was one on this subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and reported to the Convention on the 13th of June, (5 Elliot, 190,) was referred to the Committee of Detail, to prepare the Const.i.tution, on the 26th of July, (5 Elliot, 376.) This committee reported an article for the admission of new States ”lawfully const.i.tuted or established.”
Nothing was said concerning the power of Congress to prepare or form such States. This omission struck Mr. Madison, who, on the 18th of August, (5 Elliot, 439,) moved for the insertion of power to dispose of the unappropriated lands of the United States, and to inst.i.tute temporary Governments for new States arising therein.
On the 29th of August, (5 Elliot, 492,) the report of the committee was taken up, and after debate, which exhibited great diversity of views concerning the proper mode of providing for the subject, arising out of the supposed diversity of interests of the large and small States, and between those which had and those which had not unsettled territory, but no difference of opinion respecting the propriety and necessity of some adequate provision for the subject, Gouverneur Morris moved the clause as it stands in the Const.i.tution. This met with general approbation, and was at once adopted. The whole section is as follows:
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