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.

grant of power respecting that territory; and that they who maintain the existence of the power, without finding any words at all in which it is conveyed, should be willing to receive a reasonable interpretation of language of the Constitution, manifestly intended to relate to the territory, and to convey to Con

The admission of new states, to be framed out of the ceded territory, early attracted the attention of the convention. Among the reso-gress some authority concerning it. lutions introduced by Mr. Randolph, on the It would seem, also, that when we find the 29th of May, was one on this subject (Res. subject-matter of the growth and formation No. 10, 5 Elliot, 128), which having been and admission of new states, and the disposal affirmed in Committee of the Whole, on the of the territory for these ends, were under con5th of June (5 Elliot, 156), and reported to sideration, and that some provision therefore the convention on the 13th of June (5 Elliot, was expressly made, it is improbable that it 190), was referred to the Committee of Detail, would be, in its terms, a grossly inadequate to prepare the Constitution, on the 26th of provision; and that an indispensably necesJuly (5 Elliot, 376). This committee reported sary power to institute temporary governan article for the admission of new states ments, and to legislate for the inhabitants of "lawfully constituted or established." Noth- the territory, was passed silently by, and ing was said concerning the power of Congress left to be deduced from the necessity of the to prepare or form such states. This omission case. 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 institute 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 Constitution. This met with general approbation, and was at once adopted. The whole section is as follows:

66

New states may be admitted by the Congress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of Congress.

"The 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; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular state."

That Congress has some power to institute temporary governments over the territory, I believe all agree; and, if it be admitted that the necessity of some power to govern the territory of the United States could not and did not escape the attention of the convention and the people, and that the necessity is so great, that, in the absence of any express grant, it is strong enough to raise an implication of the existence of that power, it would seem to follow that it is also strong enough to afford material aid in construing an express

In the argument at the bar, great attention has been paid to the meaning of the word "territory."

Ordinarily, when the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jurisdiction of that sovereign power. Thus Chief Justice Marshall (in United States v. Bevans, 3 Wheat. 386) says: 'What, then, is the extent of jurisdiction which a state possesses? We answer, without hesitation, the jurisdic tion of a state is coextensive with its territory." Examples might easily be multiplied of this use of the word, but they are unneces sary, because it is familiar. But the word "territory" is not used in this broad and general sense in this clause of the Constitution.

At the time of the adoption of the Constitution, the United States held a great tract of country northwest of the Ohio; another tract, then of unknown extent, ceded by South Carolina; and a confident expectation was then entertained, and afterwards realized, that they then were or would become the owners of other great tracts, claimed by North Carolina and Georgia. These ceded tracts lay within the limits of the United States, and out of the limits of any particular state; and the cessions embraced the civil and political jurisdiction, and so much of the soil as had not previously been granted to individuals.

These words, "territory belonging to the United States," were not 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 these 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.

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.

It is said this provision has no application to any territory save that then belonging to But it is also insisted that provisions of the the United States. I have already shown Constitution respecting territory belonging to that, when the Constitution was framed, a con- the United States do not apply to territory acfident expectation was entertained, which was quired by treaty from a foreign nation. This speedily realized, that North Carolina and objection must rest upon the position that the Georgia would cede their claims to that great Constitution did not authorize the federal goterritory which lay west of those states. No vernment to acquire foreign territory, and condoubt has been suggested that the first clause sequently has made no provision for its governof this same article, which enabled Congress ment when acquired; or, that though the to admit new states, refers to and includes new acquisition of foreign territory was contemstates to be formed out of this territory, ex-plated by the Constitution, its provisions conpected 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

cerning 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 legisla tive 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; conse

I construe this clause, therefore, as if it had Besides this, the rules and regulations must read, Congress shall have power to make all be needful. But undoubtedly the question needful rules and regulations respecting those whether a particular rule or regulation be tracts of country, out of the limits of the seve- needful, must be finally determined by Conral states, which the United States have ac-gress itself. Whether a law be needful, is a quired, 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 Without government and social order, there therefore necessarily a grant of power to legis- can be no property; for without law, its ownerlate—and, certainly, rules and regulations re-ship, its use, and the power of disposing of it, specting a particular subject, made by the cease to exist, in the sense in which those legislative power of a country, can be nothing words are used and understood in all civilized but laws. Nor do the particular terms em- states. ployed, 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.

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.

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.

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 Here is an explicit declaration of the will had in some measure acted thereon; and the of the first Congress, of which fourteen memonly legislative act concerning the territory-bers, including Mr. Madison, had been memthe 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,

bers of the Convention which framed the Constitution, that the ordinance, one article of which prohibited slavery, "should continue to have full effect." General Washington, who signed this bill, as President, was the president of that Convention.

It does not appear to me to be important, in this connexion, 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 Confedera

tion 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 accept ing 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."

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

This provision shows that it was then under-degrees thirty minutes north latitude. stood 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

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.

It appears, however, from what has taken place at the bar, that notwithstanding the language of the Constitution, and the long line of legislative and executive precedents