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of any compact, in the act of February, 1811, authorizing the people of Louisiana to form a constitution and State government, which provided that "the constitution shall contain the fundamental principles of civil and religious liberty, to secure the trial by jury, the writ of habeas corpus, &c. That the laws should be promulgated and the records kept; judicial and legislative preceedings conducted in the language in which such proceedings, &c., in the United States are conducted and published." This example of congressional legislation would certainly not be regarded at this day as an authoritative exposition of the Constitution.
Pending the Missouri question, in 1819 and 1820, the Legislatures of the non-slaveholding States, almost without exception, resolved that Congress possessed the constitutional power; and the Representatives of all of them almost unanimously voted to impose upon Missouri, as a condition to the formation of a State government, that slavery should be forever prohibited by the constitution. No such power is claimed now; it is referred to only to test the value of legislative precedent in settling a question of legislative power.
I admit that the cotemporaneous exposition of the Constitutions, as well as laws, is of the highest authority. The received interpretation of the several clauses of the Constitution to which the honorable Senator from Vermont referred, however, is founded on cotemporaneous history, not legislative precedents, or examples of legislative construction. An act of Congress, where the question of its constitutionality is fairly presented, fully considered, and directly decided, is doubtless entitled to high consideration as a precedent; but it is by no means of conclusive authority.
Having now shown that the constitutional power asserted in the minority report is not maintained by cotemporaneous construction, I propose to extend the inquiry still further. The honorable Senator from Vermont, in his report the constitutional question being directly in the way-makes a very summary disposition of it. Referring to the alleged practice of Congress, in settling the law on the subject of slavery in the Territories by a clear provision prohibiting or tolerating it at discretion, the report informs us that
"This was done by Congress in the exercise of the same power which molded the form of their organic laws, and appointed their executive and judiciary, and sometimes their legislative officers. It was the power provided in the Constitution, in these words:
"Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.'
"Settling the subject of slavery while the country remained a Territory, was no higher exercise of power in Congress than the regulation of the functions of the territorial government, and actually appointing its principal functionaries. This practice commenced with this national Government, and was continued, with uninterrupted uniformity, for more than sixty years. This practical cotemporaneous construction of the constitutional power of this Government is too clear to leave room for doubt, or opportunity for scepticism."
Mr. President, I have had occasion to examine the subject, and believe I have traced to their origin the errors into which many have fallen in
respect to the source and extent of the power of Congress over the Territories. I have recently fully discussed the question at large in another, and, perhaps, a more appropriate forum. On the present occasion I shall content myself with presenting rather the heads of an argument, or statement of propositions, than an elaboration of the points.
It is not my purpose to deny the constitutional power of Congress to institute temporary governments in the Territories, establishing what the Senator from Vermont appropriately terms municipal corporations; and that is the whole extent of power exercised in practice under the Constitution prior to 1820. But I cannot agree that the power of settling the law on the subject of slavery in the Territories is vested in Con
The power of Congress to organize municipal governments for the Territories, has been claimed, First. Under the power to dispose of, and make all needful rules and regulations respecting the territory and other property of the United States. Second. As resulting from the power to acquire territory by treaty or conquest.
Third. As resulting from the fact that the territory is within the United States, and not within any State.
Fourth. Under the power, after the first of January, 1808, to prohibit the migration or importation of such persons as any State then existing may think proper to admit.
Fifth. Under the power to admit.new States into the Union.
From whatever source the power is derived, it is a power to create a corporation or temporary government only, and does not carry with it supreme, universal, and unlimited power over the persons or property of the inhabitants, nor authorize the abolition of slavery, or interference in any form with the laws of property. I can find authority, I think, for the establishment of a municipal government, but none in the Constitution of the United States giving power over persons or property, which does not extend to persons and property within the States as well as Territories.
The clause of the Constitution, article one, section nine, in respect to the migration and importation of persons from abroad, was relied on as the source of the power asserted in the Missouri controversy. It was claimed that Congress possessed the power to prohibit slavery in that State, as necessary to the execution of the power to prohibit the migration and importation of slaves; but after the debate on that memorable occasion, I know of no man who has ever looked to that clause as the source of the power to prohibit slavery in the Territories or elsewhere. There have been some cases in which the subject has been mentioned in the Supreme Court of the United States, but the question of power never decided. The first is the case of McCullough vs. Maryland,* decided in 1819, in which the argument is to deduce a power to incorporate a Bank of the United States, under the general clause giving to Congress power to pass all laws neces
* 4 Wheaton, 424.
sary and proper to carry into effect the powers granted by the Constitution; and in order to illustrate the argument, the Chief Justice, delivering the opinion of the court, said:
"The power to make all needful rules and regulations respecting the territory or other property belonging to the United States,' is not more comprehensive than the power 'to make all laws which shall be necessary and proper for carrying into execution the powers of Government. Yet
all admit the constitutionality of a territorial government,
which is a corporation."
This is the first intimation of the recognition of that power even to create a corporation. In the case of the American Insurance Company vs. Canter, decided in 1826, Chief Justice Marshall delivered the opinion of the court; and he there expresses some doubt as to the source of the power to create even a territorial government. He says:
"Until it becomes a State, Florida continues to be a Territory of the United States, governed by virtue of that clause (art. 4, sec. 3.) which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging to the United States.
"Perhaps the power of governing a Territory may result necessarily from the fact, that it is not within the jurisdic
States; that this power is clearly exclusive and universal, and the legislation of Congress is subject to no control, but is absolute and unlimited except so far as it is affected by stipulations in the cessions or the ordinance of 1787, under which any part of it was settled; that the final result of the vote which authorized the erection of the State of Missouri seems to establish the rightful authority of Congress, although not then applied, to impose a restriction of slavery as a condition of admission.
Chancellor Kent, in his commentaries, seems to have adopted the views of Justice Story. He says:
"With respect to the vast territories belonging to the United States, Congress have assumed to exercise over them supreme powers of sovereignty." "Exclusive and unlimited power of legislation is given to Congress by the Constitution, and sanctioned by judicial decisions."
Now, it has been shown that, in no act of Congress passed under the Constitution prior to 1820, did Congress assume supreme powers of sovereignty. Municipal corporations were established for the government of the Territories, and to this extent only was the power of Congress recog
tion of a particular State, and is within the power and ju- nized by judicial decisions. There is no adjudged
risdiction of the United States.
"The right to govern may be the inevitable consequence of the right to acquire territory
"Whichever be the source from whence the power is derived, the possession of it is unquestionable."
Afterwards the construction of the clause conferring upon Congress the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States, was directly before the Supreme Court in the case of the United States vs. Gratiot, decided in 1840. Mr. Justice Thompson, delivering the opinion of the court, said:
"The term territory, as here used, is merely descriptive
of one kind of property, and is equivalent to the word
lands;' and Congress has the same power over it as it has over any other property belonging to the United States; and this power is vested in Congress without limitation, and has been considered the foundation on which the territorial governments rest."
That is, the subject of the power is property; and the property only of the United States, not that of inhabitants of States or Territories.
The minority report assumes that, under the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, Congress may not only organize municipal governments, but possess a power absolute, universal, and unlimited, over the local laws, the persons and property of the inhabitants within any Territory within the United States, and not within any State of the Union. This, in my opinion, is a great error, which, I think, may be traced to the misapprehension, by commentators and others, of the opinions of the Supreme Court which I have quoted. In the commentaries on the Constitution by the late Mr. Justice Story, the power to govern is said to result from the power to acquire territory, and that no one ever doubted the authority of Congress to erect territorial governments within the territory of the United States, under the general language of the clause giving power to make needful rules and regulations respecting the territory or other property belonging to the United
case affirming the power to be exclusive and unlimited.
The commentator, after quoting and remarking upon the clause conferring legislative power over the District of Columbia, proceeds:
"The general sovereignty existing in the Government of the United States, over its Territories, is founded on the Constitution, which declared that Congress 'should have
power to dispose of and make all needful rules and regula
tions respecting the territories or other property belonging to the United States.""I
This is a misquotation of the Constitution; the word territory, which has been interpreted by the Supreme Court to mean land, gives place to territories; a term applied after the adoption of the Constitution, and not before, to the district of country erected into municipal governments or corporations. But Chancellor Kent, appreciating been assumed, remarks: the nature of the power he supposed to have
"Upon the doctrine taught by the act of Congress, and even by the judicial decisions of the Supreme Court, the colonists would be in a state of most complete subordination, and as dependent upon the will of Congress as the people of this country would have been upon the King and Parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions; and the estab lishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression."
Mr. President, is this not a fearful power to be deduced by complication from a power to institute a municipal government, itself implied as incident to some power granted by the Constitution? It is nothing less than an assertion of a power opposed to the fundamental principles of free government, to establish an absolute dominion over the persons and property of all the inhabitants of the Territories of the United States.
I think I find, in the proceedings of the convention, in the articles of confederation, and in the ordinance of 1787, compared with the Consti
Mr. GEYER. I know there was a controversy about territory south of the Ohio. I said "then supposed to belong to the United States;" and at the time of the adoption of the Constitution the ordinance did cover all territory over which Congress had the admitted jurisdiction.
&c., was added by the convention; and while the subject of legislation over territory within the exclusive jurisdiction of the United States was before them, if they had intended to confer the disputed power, apt words to accomplished it would have been inserted.
I agree that all needful rules and regulations may be made in reference to anything which is the subject of the power granted by the clause in question. Whatever Congress can regulate under that power, it may dispose of, and dispose of absolutely; and whatever Congress may dispose of, it may regulate; and it cannot regulate anything under that clause which it cannot dispose of absolutely.
In Story's Commentaries it is said, truly, that "the power is not confined to territory,' but extends to other property belonging to the United States; so that it may apply to the regulation of other personal or real property rightfully belonging to the United States." The learned commentator, however, afterwards, says, that "the power of Congress over the public territory is clearly exclusive and universal; but the power to regulate other national " property is not necessarily exclusive unless "Congress have acquired by cession exclusive jurisdiction: that is to say, the power in question attaches to territory "as property;' but the regulation of other property belonging to the United States depends upon its being of a particular description, over which Congress acquires jurisdiction under another clause of the Constitution."
In the convention which formed the Constitution, Mr. Madison made propositions to confer upon Congress several distinct powers, and among others," to dispose of the unappropriated lands of the United States; to institute temporary governments for new States arising therein;" and "to exercise exclusive legislative authority at the seat of the General Government, and over a district around the same not exceeding square miles." Two of these propositions were found incorporated in the Constitution in other language, but in apt words to express the intention of the convention. The power to establish temporary governments for States or Territories is not found in the Constitution. Certainly there is no such power expressly granted; and that omission is of itself conclusive, in my judgment, against the power now claimed. That convenvention, when about to confer powers of exclusive legislation over persons or property, found| apt words in which to express their intent. The mover of the propositions certainly under-proprietary interest of the United States in it, stood them to be distinct. It never occurred to him that a power to dispose of unappropriated lands comprehended a power to institute temporary governments, and still less general and exclusive legislative authority; nor, I apprehend, did the convention, by substituting "territory or other property" in lieu of "unappropriated lands" as the subject of the power granted, intend to include the other powers proposed.
But I submit that both the power and jurisdiction of Congress over the subject of the grant under the clause in question, depends upon the
whether it be territory or other property. There is no power to dispose of it, or regulate it, unless it is the property of the United States; and, if it is, Congress may dispose of, or regulate it, wherever situate; but the power and jurisdiction depart with the proprietary interest in territory, as well as in other property.
All difficulty in ascertaining the subject of the power under the clause respecting the territory, If it had been designed to confer a power to &c., will be solved by accepting the interpretation exercise general and exclusive legislation over the of the Supreme Court of the United States, in the inhabitants in the Territories in all cases whatso- United States vs. Gratiot; substituting the words ever, it would have been the easiest thing imagin- 'public lands" for "territory," the clause will able to have expressed that intention by the inser-read-"Congress shall have power to dispose of tion of a few words in the clause which provides that Congress shall have power
"To exercise exclusive jurisdiction, in all cases whatsoever, over such district, (not exceeding ten miles square,) as may, by cession of particular States and the acceptance of Congress, become the seat of Government of the United States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, maga
and make all needful rules and regulations respecting the public lands or other property belonging to the United States." This would be sensible and consistent; but substituting for the word "territory" something which is to indicate a local government, calling it by the name of "province" or "corporation"
Mr. CASS. Colony.
zines, arsenals, dock-yards, and other needful buildings."onies," and it will read: "Congress shall have Mr. GEYER. Yes, sir; insert the word "colWhy not insert also "to exercise like author-power to dispose of and make all needful rules ity over the territory belonging to the United and regulations respecting the colonies or other States, or which may hereafter be acquired," if property belonging to the United States." so large a power was intended to be granted? It it stand in that form; and where is your power will be observed that the original proposition was to dispose of the public lands? It cannot cover limited to the seat of government; the latter part both; it either means land, the original primary of the clause, embracing sites of forts, arsenals, sense of the word, or it means what the advocates
of the power to prohibit slavery in the Territories contend for-colonies.
and other property, to dispose of that property and to make rules and regulations respecting it, That the subject of the power represented by wheresoever situate; that is, for its protection, the word "territory" is the unappropriated lands, preservation, and management, while it remains appears by the proviso, or latter branch of the the property of the United States, and no longer. clause in question, "that nothing in the Consti- Another source of the power of Congress over tution shall be so construed as to prejudice any the Territories is supposed to be found in the claims of the United States or any particular power of acquisition. The power to govern is State." "This," said Mr. Madison, "is proper claimed as an incident to the power to acquire, in itself, and was probably rendered absolutely to be exercised by Congress under the general necessary by jealousies and questions concern-authority" to make all laws which shall be neing the western territory, sufficiently known to the public. The claims mentioned were undoubtedly claims to unappropriated lands, and had no relation to colonies, municipal governments, or legislative power over the persons or property of individuals.
The primary sense of the word " territory,' undoubtedly is land, or a tract of country; and it does not appear to have been employed in any other sense before the adoption of the Constitution. In the resolutions by Congress, and the cessions by the States, "lands,""unappropriated lands," "territory," and "tract of country, are terms employed to mean the same thing; sometimes two or three of them are used as convertible in the same instrument. The term "territory" was in no instance employed in the sense of colony, nor applied to designate a political or municipal division or government. What are now called Territories were organized as "districts" before and for some time after the adoption of the Constitution. The governments northwest and south of the Ohio were for "districts." The term "territory" was gradually substituted for "district" in legislation, since the adoption of the Constitution.
Whatever is meant by the word " territory," is the subject of the power. Congress may make rules and regulations concerning it, whether situated in a State or elsewhere. The power attaches to the territory wherever it is; and if it is a power to abolish slavery, Congress may exercise it in the States wherever the United States have property. It attaches only to" territory or other property belonging to the United States at the time of the exertion of the power, and not to that which never did belong to them, or which has been disposed of.
To organize a municipal Government or corporation for a district of country, to prohibit slavery, or interfere in any way with the law of property, is not to "make needful rules and regulations respecting the territory or other property of the United States" within such district. Such a government extends over all the territory and all the inhabitants within the limits defined, whether the territory belongs to the United States or not; and is no more necessary or proper where the Government owns all, than where it owns none of the territory. Therefore, the power to institute such a government, and more especially, an unlimited power to legislate in all cases whatsoever over persons and property in the Territories, cannot be deduced from the clause in question, which is nothing more than a delegation of power to Congress as the agent of the United States, the proprietor of real estate
cessary and proper for carrying into execution the powers vested by the Constitution in the Government, or any department thereof." Now it occurs to me that, when territory is acquired by treaty, the power to acquire quo ad the subject of the treaty, is exhausted. The acquisition is complete when ratifications of the treaty are exchanged. The power of acquisition is executed, and needs no legislation to carry it into execution.
But it is said, and may be conceded, that the United States acquire the exclusive sovereignty and political jurisdiction of territory acquired by treaty or conquest. Such, undoubtedly, is the effect of the acquisition under the law of nations. It does not follow, however, that Congress has unlimited power to legislate over the territory or the inhabitants acquired. Congress derives no intra-territorial powers from the laws of nations. The sovereignty and jurisdiction are vested in the nation, not in Congress. I deny that Congress can acquire any power to legislate over the acquired territory, or the persons and property of the inhabitants, even by the express provisions of a treaty, or exercise any power not granted by the Constitution.
It may be true that the people would be without any government at all, unless Congress pos- sess the power to establish it; but it does not necessarily follow that the power to organize a government, and legislate for the territory and its inhabitants, results from the power of acqui-sition. It may be a casus omissus; but unless the power can be deduced from some other source,. it does not exist. The sovereign undoubtedly has power over the acquired territory, and might change or abrogate the laws; but, I repeat, Congress is not sovereign, and possesses no power not granted by the Constitution.
The source of power under consideration fails,. also, for the reason that the power, if it exists,. may be exercised over any territory-as well that within the original limits of the United States, as that acquired by treaty or conquest.
And again, according to all the rules of construction, a legislative power cannot be deduced by implication from a power which is itself implied. The power of acquisition is not among the powers vested by the Constitution in the Gov-ernment or any department thereof; it is an incident to the war or treaty power.
I come now to the consideration of the power to admit new States as the source of the power to institute temporary governments for the people of the Territories. From that source the majority report derives the power in question. The proposition is, that the organization of a temporary
government is necessary and proper, as a means, to enable the people to mold their institutions, and organize a State government under the authority of the Constitution, preparatory to its admission into the Union. It is objected, however, that the Constitution contemplates the admission of States in cases where it would not be necessary to institute a temporary government, and where the power could not be exercised by Congressthat the power of admission comprehends all States, whether formed out of territory of the United States, or of one or more States of the Union, or even of a foreign State, as in the case of the annexation of Texas. Undoubtedly, in such case, it would not be necessary or proper, or even competent, for Congress to institute any government, whether the territory forming the new State was acquired by treaty or otherwise, after the adoption of the Constitution, and whether the United States are the proprietors of the whole or none of the "territory or property" included. But the institution of a temporary government is necessary and proper when the territory is within the limits of the United States, and not within a State. In that case there is no conflict of jurisdiction to prevent the exercise of the power by Congress, which, if it exists at all, "results necessarily from the fact, that the territory is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States." It does not depend on any proprietary right of soil-there may be no "territory or other property belonging to the United States" within it to be disposed of or regulated; nor upon acquisition-it is immaterial to the question of power whether the territory was or was not within the original limits of the United States; nor upon the number of the inhabitants-it may be more populous than any State in the Union, or contain few or no inhabitants. The power of Congress over it is the same.
The institution of temporary governments for the people of a Territory is undoubtedly necessary and proper, though not always indispensable as a means preparatory to the formation of a new State, and its admission into the Union; and where the Territory is within the exclusive jurisdiction of the United States, the power of Congress to organize a government results of necessity as a means appropriate to the accomplishment of a constitutional end.
The power to create a government or municipal corporation for the people of a Territory is nowhere conferred upon Congress by express grant; it is claimed only as an incident to some power, "vested by the Constitution in the Government of the United States, or a department thereof." Therefore, from whatever source it is derived, to which soever of the granted powers it is referred, it is limited to the necessity from which it arises, and is not a supreme, universal, and unlimited power over persons and property. The power over persons and property under the Constitution of the United States must be, and is the same everywhere. It must be exercised in subordination to the principles of the Government. It does not depend on the nature of the property. To change the law of property,
-to prohibit or abolish slavery-to emancipate slaves, to confiscate any other kind of property, or to divest vested rights, is a substantive, independent power. If it exists no treaty would afford protection to the inhabitants of acquired territory. No legislative power can be extinguished, or conferred upon Congress, by treaty.
If the power to create a municipal corporation, or to organize a government in any form for the people of the Territories, had been expressly granted, it would not carry with it, as an incident, a power of legislation in all cases whatsoever over the people and their property. Still less can such a power be deduced by implication from a power itself implied.
Now, sir, I demand to know, is a prohibition of slavery a rule or regulation, needful or otherwise, respecting the territory or other property belonging to the United States? or is it necessary to the execution of the power to dispose of land? If "to dispose of territory' means to organize a municipal government for the people, the prohibition of slavery-an interference with the law of property or with vested rights-is not necessary to the execution of the power, nor is it in any way a means adapted to the end. The power, if not otherwise limited, cannot be exercised to the prejudice of the people of any portion of the Union. All have equal rights in the common territory to take and to hold there any property recognized by the Constitution and local laws.
Here allow me to correct an error into which those northern gentlemen have fallen who suppose that we of the slaveholding States claim to carry our domestic institutions with us on removing into the Territories. So far as my knowledge extends, we only insist that where, by the law of the Territory, our property will be protected when there, we have a vested right to go there with that property-as much so as any citizen of any other State in the Union with any other property; and that it is an unconstitutional interference with that right so to legislate as to deprive us of the protection which the local law would afford, and thereby effectually exclude us from the Territory. Slaves are property, recognized by the Constitution, and as well protected as any other. Emancipation by law divests vested rights; and, if you can prohibit slavery for the future, you may at any time emarcipate, by act of Congress, every slave in any or all the Territories. The supreme, universal, and unlimited power which is equal to prohibition is equal to abolition and emancipation regardless of vested rights.
Finally, the organization of a temporary government is necessary; but it is not necessary to emancipate slaves, to prohibit slavery, to confiscate property, or to change the local law of property; nor is it necessary, or just, or even defensible, to interfere with the right of any citizen of the United States to remove to the country open to others with any property recog nized by the Constitution and laws of the United States and the local law of the Territory.
Mr. President, I come now to another part of the subject-the "peace and prosperity" which it is said have attended interference by the Con