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Amended Constitution, and at this day remains a portion opportunity of annulling the acts of the colonial legisla of the fundamental law of Virginia-proclaiming to the tures by the “inhuman use of the royal negative." world and to posterity that one of the reasons for separa- Thus the policy of the Colonies on the Slavery question ting from Great Britain was "the inhuman use of the had assumed a direct antagonism to that of the British royal negative in refusing us (the Colony of Virginia), Government; and this antagonism not only added to the permission to exclude Slavery from us by law !"
importance of the principle of local self-government in the The legislation of Virginia on this subject may be taken Colonies, but produced a general concurrence of opinion as a fair sample of the legislative enactments of each of and action in respect to the question of Slavery in the the thirteen Colonies, showing conclusively that slavery proceedings of the Continental Congress, which assembled was regarded by them all as a domestic question to be at Philadelphia for the first time on the 5th of September, regarded and determined by each colony to suit itself, 1774. without the intervention of the British Parliament or On the 14th of October the Congress adopted Bill of “the inbuman use of the royal negative." Each colony Rights for the Colonies, in the form of a series of resolu. passed a series of enactments, beginning at an early tions, in which, after conceding to the British Government period of its history and running down to the commence the power to regulate commerce and do such other things ment of the Revolution, either protecting, regulating, or as affected the general welfare of the empire, without inrestraining African Slavery within its respective limits, terfering with the internal polity of the Colonies, they deand in accordance with their wishes and supposed clared "That they are entitled to a free and exclusive interests. North and South Carolina, following the ex. power in their several provincial legislatures, where their ample of Virginia, at first encouraged the introduction right of representation can alone be preserved in all cases of slaves, until the number increased beyond their wants of taxation and internal polity." Having thus defined the and necessities, when they attempted to check and principle for which they were contending, the Congress restrain the further growth of the institution, by imposing proceeded to adopt the following “ Peaceful Measures," a high rate of taxation upon all slaves which should be which they still hoped would be sufficient to induce combrought into those colonies; and finally, in 1764, South pliance with their just and reasonable demands. These Carolina passed a law imposing a penalty of one hundred Peaceful Measures" consisted of addresses to the king, pounds (or five hundred dollars) for every negro slave to the Parliament, and to the people of Great Britain, subsequently introduced into that colony.
together with an association of non-intercourse to be obThe colony of Georgia was originally founded on strict served and maintained so long as their grievances should anti-slavery principles, and rigidly maintained this policy remain unredressed. for a series of years, until the inhabitants became con- The second article of this association, which was adopted vinced by experience that, with their climate and produc- without opposition, and signed by the delegates from all tions, slave labor, if not essential to their existence, would the Colonies, was in these words : prove beneficial and useful to their material interests. Maryland and Delaware protected and regulated African ported after the first day of December next; after which time
"That we will neither import nor purchase any slaye im Slavery as one of their domestic institutions. Pennsylva- we will wholly discontinue the slave-trade, and will neither nia, under the advice of William Penn, substituted fourteen be concerned in it ourselves, nor will we hire our vessels, years' service and perpetual adscript to the soil for here- nor sell our commodities or manufactures to those who are ditary Slavery, and attempted to legislate, not for the total engaged in it” abolition of Slavery, but for the sanctity of marriage This Bill of Rights, together with these articles of assoamong slaves, and for their personal security. New-jer- ciation, were subsequently submitted to and adopted sey, New-York, and Connecticut recognized African Slavery by each of the thirteen Colonies in their respective proas a domestic institution lawfully existing within their re- vincial Legislatures. spective limits, and passed the requisite laws for its con- Thus was distinctly formed between the Colonies and trol and regulation,
the parent country that issue upon which the DeclaRhode Island provided by law that no slave should serve ration of Independence was founded, and the battles of more than ten years, at the end of which time he was to the Revolution'were fought. It involved the specific be set free; and if the master should refuse to let him go claim on the part of the Colonies--denied by the King free, or sold him elsewhere for a longer period of service, and Parliament-to the exclusive right of legislation he was subject to a penalty of forty pounds, which was touching all local and internal concerns, Slavery supposed at that period to be nearly double the value of included. This being the principle involved in the the slave.
contest, a majority of the Colonists refused to perMassachusetts imposed heavy taxes upon all slaves mit their delegates to sign the Declaration of Indebrought into the colony, and provided in some instances pendence except upon the distinct condition and exfor sending the slaves back to their native land; and finally press reservation to each colony of the exclusive right prohibited the introduction of any more slaves into the to manage and control its local concerns and police recolony under any circumstances.
gulations without the intervention of any general ConWhen New-Hampshire passed laws which were designed gress which might be established for the United Colonies. to prevent the introduction of any more slaves, the British Let us cite one of these reservations as a specimen of Cabinet issued the following order to Governor Wentworth: all, showing conclusively that they were fighting for the “You are not to give your assent to, or pass any law im. inalienable right of local self-government, with the clear posing duties upon negroes imported into New-Hamp- understanding that when they had succeeded in throw shire.
ing off the despotism of the British Parliament, no ConWhile the legislation of the several colonies exhibits gressional despotism was to be substituted for it : dissimilarity of views, founded on a diversity of interests, “We, the Delegates of Maryland, in Convention assembled, on the merits and policy of Slavery, it shows conclusively do declare that the King of Great Britain has violated his that they all regarded it as a domestic question affecting compact with this people, and that they owe no allegiance to their internal polity in respect to which they were entitled him. We have therefore thought it jusi and necessary to em. to a full and exclusive power of legislation in the several power our Deputies in Congress to join with a majority of
the United Colonies in declaring them free and independent provincial legislatures. For a few years imnie liately pre- States, in framing such further confederation between them, ceding the American Revolution, the African slave-trade in making foreign alliances, and in adopting such other mea was encouraged and stimulated by the British Government, sures as shall be judged necessary for the preservation of their and carried on with more vigor by the Englista merchants, liberties : than at any other period in the history of the Colonies; internal polity and government of this Colony be reserved to
“Provided, The sole and exclusive right of regulating the and this fact, taken in connection with the extraordinary the people thereof. claim asserted in the memorable preamble to the act re
“We have also thought proper to call a new Convention for pealing the stamp duties, that “ Parliament possessed the the purpose of establishing a government in this Colony right to bind the Colonies in all cases whatever," not only "No ambitious views, no desire of independence, induced in respect to all matters affecting the general welfare of the people of Maryland to form a union with the other Colo. the empire, but also in regard to the dom-stic relations nies. To procure an exemption from Parliamentary taxaand internal polity of the Colonies-produced a powerful ion, and to continue to the egislatures of these Colonies the impression upon the minds of the colonists, and imparted was our original and only motive. To maintain, in violate our
sole' and exclusive right of regulating their Internal Polity, peculiar prominence to the principle involved in the con- liberties, and to transmit thu unimpaired to posterity, Wis troversy.
our duty and first wish; our next, to continue connected with Hence the enactments by the several colonial legisla- and dependent on Great Britain. For the truth of these tures calculated and designed to restrain and prevent the assertions we appeal to that Almighty Being who is emphati increase of slaves; and, on the other hand, the orders cally styled the Searcher of bearis, and from whose omni.
science none is concealed. Relying on this Divine protection issued by the Crown, instructing the colonial governors and assistance, and trusting to the justice of our cause, we not to sign or permit any legislative enactment prejudicial exhort and conjure every virtuous citizen to join cordially in or injurious to the African slave-trade, unless such enact- defense of our common rights and in maintenance of the free ment should contain a clause suspending its operation dom of this and her sister colonies.” until the royal pleasure should be made known in the The first plan of Federal (tovernment adopted for the premises; or, in other words, until the king should have an United States was formed during the Revolution, and is
usually known as "The Articles of Confederation." By Second.--"That the settlers within the Territory so to be these Articles it was provided that “ Each State retains purchased and offered for sale shall, either on their owe its Sovereignty, Freedom, and Independence, and every pe:ition or on the ord :r of Congress, receive authority from power, jurisdiction, and right which is not by this Con- of full age to meet together for the purpose of establishing a
thern, with appointments of time and place, for their free males federation expressly delegated to the United States in temporary government to adopt a Constitution and laws of Congress assembled.”
any one of these States (the original States), so that such laws At the time the Articles of Confederation were nevertheless shall be subject to alteration by their ordinary adopted_July 9, 1778—the United States held no lands Legislature; and to erect, subject to like alteration, countits or territory in common. The entire country-including
or ownships for the election of members for their Legisla.
ture." all the waste and unappropriated lands--embraced within or pertaining to the Confederacy, belonged to and was
Having thus provided a mode by which the first inhablthe property of the several States within whose limits tants or settlers of the territory may assemble together the same was situated.
and choose for themselves the Constitution and laws of On the 6th day of September, 1780, Congress recom
some one of the original thirteen States, and declare the mended to the several states in the Union having claims to same in force for the government of their territory tem. waste and unappropriated lands in the Western country, porarily, with the right on the part of the people to a liberal cession to the United States of a portion of their change the same, through their local Legislature, as they respective claims for the common benefit of the Union." may see proper, the Plan then proceeds to point out the
On the 20th day of October, 1783, the Legislature of mode in which they may establish for themselves“ a perVirginia passed an act authorizing the Delegates in Con. manent Constitution and government" whenever they gress from that State to convey to the United States shall have twenty thousand inhabitants, as follows: “the territory or tract of country within the limits of Third.-" That such temporary government only shall con. the Virginia Charter, lying and bearing to the northwest tinue in force in any State until it shall have acquired twenty of the river Ohio "-which grant was to be made upon Congress, they shall receive from them authority, with ap.
thousand free inhabitants, when, giving due proof thereof to the "condition that the territory so ceded shall be laid pointments of time and place, to call a Convention of Repre. out and formed into States ;” and that “the States so sentatives to establish a permanent Constitution and governformed shall be distinct republican States, and admitted ment for themselves." members of the Federal Union, having the same rights
Having thus provided for the first settlers "a tempoof Sovereignty, Freedom, and Independence as the other rary government” in these “additio States," and for States."
permanent Constitution and government” when they On the 1st day of March, 1784, Thomas Jefferson and shall have acquired twenty thousand inhabitants, the Plan his colleagues in Congress executed the deed of cession contemplates that they shall continue to govern them. in pursuance of the act of the Virginia Legislature, selves as States, having, as provided in the Virginia deed which was accepted and ordered to “be recorded of session, “the same rights of sovereignty, freedom, and and enrolled among the acts of the United States in independence,” in respect to their domestic affairs and Congress assembled." This was the first territory ever internal politý, “as the other States," until they shall acquired, held, or owned, by the United States. On the have a population equal to the least' numerous of the same day of the deed of cession, Mr. Jefferson, as chair original thirteen States; and in the meantime shall keep man of a committee which had been appointed, consist- a sitting member in Congress, with a right of debating ing of Mr. Jefferson of Virginia, Mr. Chase of Maryland, but not of voting, when they shall be admitted into the and Mr. Howell of Rhode Island, submitted to Congress Union on an equal footing with the other States, as fol
a plan for the temporary government of the territory lows:
Fourth.-" That whenever any of the said States shall have
of free inhabitants as many as shall then be in any one of the It is important that this Jeffersonian plan of govern, least numerous of the thir een original States, such State shall ment for the Territories shoul be carefully considered be admitted by its delegates into the Congress of the United for many obvious reasons. It was the first plan of States on an equal fooling with the said original States." government for the Territories ever adopted in the
And United States. It was drawn by the author of the De
“Until such admission by their delegates into Congress any claration of Independence, and revised and adopted by of the said States, after the establishment of their temporary those who shaped the issues which produced the Revo- government, sh» ll have authority to keep a sitting member in lution, and formed the foundations upon which our Congress, with ihe right of debating, but not of voting.” whole American system of government rests.
It was not intended to be either local or temporary in its char
Attached to the provision which appears in this paper acter, but was designed to apply to all territory
ceded under the “ third” head is a proviso, containing five proor to be ceded," and to be universal in its application positions, which, when agreed to and accepted by the and eternal in its duration, wherever and whenever we people of said additional States, were “to be formed might have territory requiring a government. It ignored into a charter of compact," and to remain forever “unat the right of Congress to legislate for the people of terable," except by the consent of such States as well as the Territories, without their cinsent, and recognized of the United States—to wit: the inalienable right of the people of the Territories, “ Prorided, That both the temporary and permanent gov. when organized into political communities, to govern ernments be established on these principles as their basis :
1st.-" That they shall forever remain a part of the United themselves in respect to their local concerns and in
States of America." ternal polity. It was adopted by the Congress of
2d.-"That in their persons, property, and Territory they the Confederation on the 230 day of April, 1784, and shall be subject to the government of the United States in stood upon the Statute Book as a general and perma. Congress assembled, and to the Articles of Confederation in all nent plan for the government of all territory which we those cases in which the original States shall be so subject.” then owned or should subsequently acquire, with a pro
3d.—“That they shall be subject to pay a part of the federal vision declaring it to be a "Charter of Compact," and debts contracted, or to be contracted-to be apportioned on
them by Congress according to the same common rule and that its provisions should "stand as fundamental con
measure by which apportionments thereof shall be made on ditions between the thirteen original States and those the other States." newly described, unalterable but by the joint consent 4th.--"That their respective government shall be in repub of the United States in Congress assembled, and of the lican form, and shall admit no person to be a citizen who holds particular State within which such alteration is proposed any hereditary title.” to be made." Thus this Jeffersonian plan for the gov: The fifth article, which relates to the prohibition of ernment of the Territories—this “Charter of Compact." Slavery, after the year 1800, having been rejected by
these fundamental conditions,” which were declared Congress, never became a part of the Jeffersonian Plan to be “unalterable" without the consent of the people of Government for the Territories, as adopted April 28, of "the particular State [territory) within which such 1784. alteration is proposed to be made," stood on the Statute
The concluding paragraph of this Plan of Government, Book when the Convention assembled at Philadelphia which emphatically ignores the right of Congress to bind in 1787, and proceeded to form the Constitution of the the people of the Territories without their consent, and United States. Now let us examine the main provisions of the Jeffer- legitimate power in respect to their internal polity, is in
recognizes the people therein as the true source of all son Plan :
these words : First.-—"That the territory ceded or to be ceded by the “That all the preceding articles shall be formed into a char. individual States to the United States, whenever the same shall ter of compact, shall be duly executed by the President of the have been purchased of the Indian inhabitants and offered for United States, in Congress assembled, under his hand and the sale by the United States, shall be formed into additional seal of the United States, shall be promulgated, and shall stand States, etc., etc.
as fundamental conditions between the thirteen original States The Plan proceeds to designate the boundaries and and those newly described, unalterable but by the joint con territorial extent of the proposed "additional States," and particular State within which such alteration is proposed to
sent of the United States in Congress assembled, and of the then provides :
This Jeffersonian Plan of Government embodies and interpreted and expounded by the Colonies during thetr carries "ut the ideas and principles of the fathers of the controversy with Great Britain, for their model -- making Revolution--that the people of every separate political such modifications in its structure and principles as the community (dependent Colonies, Provinces, and Territo change in our condition had rendered necessary. They ries as well as sovereign States) have an inalienable right entrusted the Executive functions to a President in the to govern themselves in respect to their internal polity, place of a King; the Legislative functions to a Congress, and repudiates the dogma of the British Ministry and composed of a Senate and House of Representatives, in the Tories of that day, that all Colonies, Provinces and / lieu of the Parliament consisting of the Houses of Lords and Territories were the property of the empire, acquired Commons; and the Judicial functions to a Supreme Court with the common blood and common treasure, and that and such inferior courts as Congress should from time to the inhabitants thereof have no rights, privileges, or time ordain and establish. immunities except such as the Imperial Government Having thus divided the powers of government into the should graciously condescend to bestow upon them. three appropriate departments, with which they had alThis Plan recognizes by law and irrevocable compact" ways been familiar, they proceeded to confer upon the the existence of two distinct classes of States under our Federal Government substantially the same powers which American system of government-the one being mem- they as colonies had been willing to concede to the British bers of the Union, and consisting of the original thi: teen Government; and to reserve to the States and to the peoand such other States, having the requisite population, ple the same rights and privileges which they as colonies as Congress should admit inio the Federal Union, with had denied to the British Government during the entire an equal vote in the management of Federal affairs as struggle which terminated in our Independence, and well as the exclusive power in regard to their internal which they had claimed for themselves and their posterity polity respectively—the other, not having the requisite as the birthright of all freemen, inalienable when organpopulation for admission into the Union, could have no ized into political communities, and to be enjoyed and ex. vote or agency in the control of the Federal relations, ercised by colonies, territories, and provinces as fully and but possessed the same exclusive power over their completely as by sovereign States. Thus it will be seen domestic affairs and internal policy respectively as that there is no organic feature or fundamental principle the original States, with the right, while they have embodied in the Constitution of the United States which less than twenty thousand inhabitants, to choose for had not been familiar to the people of the Colonies from their government the Constitution and laws of any the period of their earliest settlement, and whic had one of the original States; and when they should have not been repeatedly asserted by them when denied by more than twenty thousand, but less than the number Great Britain during the whole period of their colonial hisrequired to entitle them to admission into the Union, tory. they were authorized to form for themselves“ a perma- Let us pause at this point for a moment, and inquire Dent Constitution and government;" and in either case whether it be just to those illustrious patriots and sages who they were entitled to keep a delegate in Congress with formed the Constitution of the United States, to assume the right of debating, but not of voting. This “ Charter that they intended to confer upon Congress that unlimited of Compact," with its “ fundamental conditions,” which and arbitrary power over the people of the American Ter. were declared to be “unalterable" without "the joint ritories, which they had resisted with their blood when consent" of the people interested in them, as well as of claimed by the British Parliament over British colonies in the United States, thus stood on the statute book unre- America ? Did they confer upon Congress the right to pealed and unrepealable-.furnishing a complete system bind the people of the American Territories in all cases of government for all" the territory ceded or to be ceded” whatsoever, after having fought the battles of the Revolu. to the United States, without any other legislation upon tion against a “Preamble" declaring the right of Parthe subject, when, on the 14th day of May, 1787, the Fede- liament " to bind the Colonies in all cases whatsoever?" ral Convention assembled in Philadelphia and proceeded If, as they contended before the Revolution, it was the to form the Constitution under wnich we now live. Thus birthright of all Englishmen, inalienable when formed into it will be seen that the dividing line between Federal and political communities, to exercise exclusive power of legis Local authority, in respect to the rights of those political lation in their local legislatures in respect to all things communities which, for the sake of convenience and in affecting their internal polity-Slavery not excepted-did 'ontradistinction to the Siales represented in Congress, not the same right, after the Revolution, and by virtue of we now call Territories, but which were then known as it, become the birthright of all Americans, in like manner
States," or "new States," was so distinctly marked at inalienable when organized into political communities-no that day that no intelligent man could fai! to perceive it. matter by what name, whether Colonies, Territories, Pro
It is true that the government of the Confederation had vinces, or new States ? proved totally inadequate to the fulfillment of the ends Names often deceive persons in respect to the nature for which it was devised; not because of the relations be- and substance of things. A single instance of this kind sween the Territories, or new States, and the United States, is to be found in that clause of the Constitution which but in consequence of having no power to enforce its de- says: crees on the Federal questions which were clearly within
“Congress shall have power to dispose of, and make all the scope of its expressly delegated powers. The radical needful rules and regulations respecting the territory or other defects in the Articles of Confederation were found to con- property belonging to the United Siates.” sist in the fact that it was a mere league between sove- This being the only clause of the Constitution in which reign States, and not a Federal Government with its ap- the word " Territory” appears, that fact alone has doubtpropriate departments - Executive, Legislative, and Ju- less led many persons to suppose that the right of Condicial-each clothed with authority to perform and carry gress to establish temporary governments for the Terri. into effect its own peculiar functions. The Confederation tories, in the sense in which ihe word is now used, must naving no power to enforce compliance with the resolves, be derived from it, overlooking the important and con
the consequence was, that though in theory its resolu- trolling facts that at the time the Constitution was formed tions of Congress were equivalent to laws, yet in practice the word “ Territory" had never been used or understood they were found to be mere recommendations, which the to designate a political community or government of any States, like other sovereignties, observed or disregarded, kind in any law, compact, deed of cession, or public according to their own good-will and gracious pleasure." | document; but had invariably been used either in its Congress could not impose duties, collect taxes, raise geographical sense to describe the superficial area of a armies, or do any other act essential to the existence of State or district of country, as in the Virginia deed of government, without the voluntary consent and coöpera. cession of the “ Territory or tract of country'' northwest tion of each of the States. Congress could resolve, but of the river Ohio; or as meaning land in its character could not carry its resolutions into effect-could recom
as property, in which latter sense it appears in the clause mend to the States to provide a revenue for the necessi-1 of the Constitution referred to, when providing for the ties of the Federal Government, but could not use the disposition of the “ Terriiory or other property belong means necessary to the collection of the revenue when the ing to the United States.' These facts, taken in connecStates failed to comply-could recommend to the States to tion with the kindred one that during the whole period provide an army for the general defense, and apportion of the Confederation and the forination of the Constituamong the States their respective quotas, but could not en- tion the temporary governments which we now call list the men and order them into the Federal service. For Territories," were invariably referred to in the deeds these reasons a Federal Government, with its appropriate of cession, laws, compacts, plans of government, resolu. departments, acting directly upon the individual citizens, tions of Congress, public records, and authentic docuwith authority to enforce its decrees to the extent of its wents as “States," or " new States," conclusively show delegated powers, and not dependent upon the voluntary that the words “Territory and other property" in the action of the several states in their corporate capacity, Constitution were used to designate the unappropriated became indispensable as a substitute for the government lands and other property which the United States owned, of the Confederation.
and not the people who might become residents on those In the formation of the Constitution of the United States lands, and be organized into political communities after the Federal Convention took the British Constitution, as 'the United States had parted with their title.
It is from this clause of the Constitution alone that Here we find the original and rough draft of these seve Congress derives the power to provide for ihe surveys ral powers as they now exist, in their revised form, in the and sale of the public lands and all other property be- Constitution. The provision empowering Congress“ te longing to the United States, not only in the Territories, dispose of the unappropriated lands of the United States." but also in the several States of the Union. But for this was modified and enlarged, so as to include "other pro provision Congress would have no power to authorize the perty belonging to the United States," and to authorize sale of the public lands, military sites, old ships, cannon, Congress to make all needful rules and regulations " for muskets, or other property, real or personal, which be- the preservation, management, and sale of the same. long to the United States, and are no longer needed for The provision empowering Congress “to institute teme any public purpose. It refers exclusively to property in porary governments for the new States arising in the un. contradistinction to persons and communities. 'It con- appropriated lands of the United States," taken in confers the same power “to make all needful rules and nection with the one empowering Congress "to exercise regulations" in the States as in the Territories, and ex- exclusively Legislative authority at the seat of the Gene tends wherever there may be any land or other property ral Government, and over a district of country around the telonging to the United States to be regulated or disposed same," clearly shows the difference in the extent and naof; but does not authorize Congress to control or inter- ture of the powers intended to be conferred in the new fere with the domestic institutions and internal polity of States or Territories on the one haad, and in the District the people (either in the States or the Territories) who of Columbia on the other. In the one case it was pro may reside upon lands which the United States once posed to authorize Congress “ to institute temporary gorowned. Such a power, had it been vested in Congress, ernments for the new States," or Territories, as they are would annihilate the sovereignty and freedom of the now called, just as our Revolutionary fathers recognized States as well as-the great principle of self.government in the right of the British crown to institute local govern. the Territories, wherever the United States happen to ments for the Colonies, by issuing charters under which own a portion of the public lands within their respective the people of the Colonies were entitled (according to liinits, as, at present, in the States of Alabama, Florida, the Bill of Rights adopted by the Continental Congress) to Mississippi, Louisiana, Arkansas, Missouri, Illinois, a free and exclusive power of legislation, in their several Indiana, Ohio, Michigan, Wisconsin, Iowa, Minnesota, Provincial Legislatures, where their right of representation California, and Oregon, and in the Territories of Washo can alone be preserved, in all cases of taxation and interington, Nebraska, Kansas, Utah, and New-Mexico. The nal polity;" while, in the other case, it was proposed to idea is repugnant to the spirit and genius of our complex authorize Congress to exercise, exclusively, legislative system of Government; because it effectually blots out authority over the municipal and internal polity of tho the dividing line between Federal and Local authority people residing within the district which should be ceded which forms an essential barrier for the defense of the for that purpose as the seat of the General Government. independence of the States and the liberties of the people Each of these provisions was modified and perfected by against Federal invasion. With one anomalous excep- the Committee of Detail and Revision, as will appear by tion, all the powers conferred on Congress are Federal, comparing them with the corresponding clauses as finally and' not Municipal, in their character-affecting the incorporated into the Constitution. The provision to general welfare of the whole country without interfering authorize Congress to institute temporary governments with the internal polity of the people and can be carried for the new States or Territories, and to provide for their into effect by laws which apply alike to States and Ter- admission into the Union, appears in the Constitution in ritories. The exception, being in derogation of one of this form: the fundamental principles of our political system (be. New States may be admitted by the Congress into this cause it authorizes the Federal Government to control Union." the municipal affairs and internal polity of the people in The power to admit “ner States," and "to make all Sertain specified, limited localities), was not left to vague laws which shall be necessary and proper" to that end, inference or loose construction, nor expressed in dubious may fairly be construed to include the right to institute or equivocal language ; but is found plainly written in temporary governments for such new States or Territories, that Section of the Constitution which says:
the same as Great Britain could rightfully institute similar “Congress shall have power to exercise exclusive legisla- governments for the Colonies; but certainly not to author. tion in all cases whatsoever, over such district (not exceeding ize Congress to legislate in respect to their municipa. en miles square) as may, by cession of particular States, and affairs and internal concerns, without violating that great the acceptance of Congress, become the seat of the govern: fundamental principle in defense of which the battles of ment of the United States, and to exercise like authority over al places purchased by the consent of the Legislature of the the Revolution were fought. State in which the same shall be, for the erection of forts, If judicial authority were deemed necessary to give magazines, arsenals, dock-yards and other needful buildings." force to principles so eminently just in themselves, and
No such power to exercise exclusive legislation in all which form the basis of our entire political system, cases whatsoever," nor indeed any legislation in any such authority may be found in the opinion of the Supreme case whatsoever, is conferred on Congress in respect to Court of the United States, in the Dred Scott case. In the municipal affairs and internal polity, either of the that case the Court say: States or of the Territories. On the contrary, after the “This brings us to examine by what provision of the CunConstitution had been finally adopted, with its Federal stitution the present Federal Governinent, under its delegated powers delegated, enumerated, and defined, in order to and restricted powers, is authorized to acquire territory outguard in all future time against any possible infringement it may exercise therein over the person or property of a citi
side of the original Imits of the United States, and what powers of the reserved rights of the States, or of the people, an zen of the United States, while
it remains a ierritory, and unamendinent was incorporated into the Constitution which til it shall be admitted as one of the States of the Union. marks the dividing line between Federal and Local “There is certainly no power given by the Constitution to authority so directly and indelibly that no lapse of time, the Federal Government to establish or maintain colonies, no partisan prejudice, no sectional aggrandizement, no bordering on the United States or at a distance, to be ruled frenzied fanaticism can efface it. The amendment is in and governed at its own pleasure ; nor to enlarge its terri
torial limits in any way except by the admission of new these words:
States. “ The powers not delegated to the United States by the “The power to expand the territory of the United States by Constitution, nor prohibited by it to the States, are reserved the admission of new States is plainly given; and in the conto the States respectively, or to the people."
struction of this power by all the departments of the Govern
ment, it has been held to authorize the acquisition of territory, This view of the subject is confirmed, if indeed any cor- not fit for admission at the time, but to be admitted as soon as roborative evidence is required, by reference to the pro- its population and situation would entitle it to admission. ceedings and debates of the Federal Convention, as re. It is acquired to become a State,
and not to be held as a colony ported
by Mr. Madison. On the 18th of August, after a and governed by Congress with absolute authority; and as the series of resolutions had been adopted as the basis of the propriety of admitting a new State is committed to the sound
discretion of Congress, the power to acquire territory for that proposed Constitution and referred to the Committee of purpose, to be held by the United States until it is in a suitable Detail for the purpose of being put in proper form, the re- condition to become a State upon an equal footing with the
other States, must rest upon the same discretion." “Mr. Madison submitted, in order to be referred to the Com- Having determined the question that the power to ac. mittee of Detail, the following powers, as proper to be added quire territory for the purpose of enlarging our territorial to those of the general Legislature (Congress) :
limits and increasing the number of States, is included “ To dispose of the unappropriated lands of the United States. within the power to admit new States and conferred by
“ To institute temporary governments for the new States the same clause of the Constitution, the Court proceed to arising therein.
“To regulate affairs with the Indians, as well within as say that “the power to acquire necessarily carries with it without the limits of the United States.
the power to preserve and apply to the purposes for which " To exercise exclusively legislative authority at the seat of it was acquired.” And again, referring to a former deck the General Governinent, and over a district around the same sion of the same court in respect to the power of Congress not exceeding square miles, the consent of the legisla- to institute governments for the Territories, the Court say: ture of the State or States comprising the same being first obtained."
“The power stands firmly on the latter alternative put by
the Court-that is, as the 'inevitable consequence of the right | footing with citizens of the States, and guards them as firmly to acquire territory.'”
and plainly against any inroads which the General Government The power to acquire territory, as well as the right, in might attempt under the plea of implied or incidental powers. the language of Mr. Madison, “to institute temporary powers conferred on the Federal Government—it will be ad.
And if Congress itself cannot do this-if it is beyond the governments for the new States arising therein" (or Terri- mitted, we presume, that it could not authorize a Territorial torial governments, as they are now called), having been governmeni to exercise them. It could confer no power ou traced to that provision of the Constitution which provides any local government, esta lished by its authoriiy, io violaie for the admission of “new States," the Court proceed to the provisious of the Constitution." consider the nature and extent of the power of Congress Nothing can be more certain than that the Court were over the people of the Territories :
here speaking only of forbidden powers, which wero
denied alike to Congress, to the State Legislatures, and "All we mean to say on this point is, that, as there is no ex
to the Territorial Legislatures, and that the prohibition press regulation in the Constitution defining the power which the General Government may exercise over the person or pro
extends “everywhere within the dominion of the United perty of a citizen in a territory thus acquired, the Court must States," applicable equally to States and Territories, as necessarily look to the provisions and principles of the Consti
well as to the United States. tution, and its distribution of powers, or the rules and princi- If this sweeping prohibition--this just but inexorable ples by which its decision must be governed.
restriction upon the powers of Government- Federal, ** Taking this rule to guide us, it may be safely assumed that State, and Territorial-shall ever be held to include the citizens of the United States, who emigrate to a territory be. longing to the people of the 'United States, cannot be ruled as Slavery question, thus negativing the right of the
people mere colonists, dependent upon the will of the General Govern of the States and Territories, as well as tbe Federal ment, and to be governed by any laws it may think proper to Government, to control it by law (and it will be observed impose.
The Territory being a part of the United that in the opinion of the Court "the citizens of a Terri. States, the Government and the citizen both enter it under the tory, so far as these rights are concerned, are on the authority of the Constitution, with their respective rights defiaed and marked out; and the Federal Government can ex
same footing with the citizens of the States.") then, ercise no power over his person or property beyond what that | indeed, will the doctrine become firmly established thai instrument confers, nor lawfully deny any right which it has the principles of law applicable to African Slavery are reserved."
uniform throughout the dominion of the United Hence, inasmuch as the Constitution has conferred on States, and that there “is an ii repressible conflict the Federal Government no right to interfere with the pro- between opposing and enduring forces, which means perty, domestic relations, police regulations, or internal that the United States must and will, sooner or later, polity of the people of the Territories, it necessarily fol- become either entirely a slaveholding nation or enti. ely lows, under the authority of the Court, that Congress can
a free labor nation." rightfully exercise no such power over the people of the
Notwithstanding the disastrous consequences which Territories. For this reason alone, the Supreme Court I would inevitably result from the authoritative recogni. were authorized and compelled to pronounce the eighth tion and practical operation of such a doctrine, there section of the Act approved March 6, 1820 (conmonly are those who maintain that the Court refe red to and called the Missouri Compramise), inoperative and void
included the Slavery question within that class of there being no power delegated to Congress in the Consti- forbidden powers which (although the same in the Terri. tution authorizing Congress to prohibit Slavery in the Ter- tories as in the States) could not be exercised by the ritories.
people of the Territories.
If this proposition were true, which fortunately for the In the course of the discussion of this question the peace and welfare of the whole country it is not, the Court gave an elaborate exposition of the structure, conclusion would inevitably result, wh ch they logically principles, and powers of the Federal Government; deduce from the premises-that the Constitution by the showing that it possesses no powers except those which recognition of Slavery establishes it in the Territories are delegated, enumerated, and defined in the Constitu: beyond the power of the people to control it by law, tion; and that all other powers are either prohibited and guarantees to every citizen the right to go the e altogether or are reserved to the States, or to the people. and be protected in the enjoyment of his slave In order to show that the prohibited, as well as the property ; and when all other remedies fail for the delegated powers are enumerated and defined in the protection of such rights of property, it becomes the Constitution, the Court enumerated certain powers imperative duty of Congress (to the performance of which cannot be exercised either by Congress or by the which every member is bound by his conscience and his Territorial Legislatures, or by any other authority what- oath, and from which no consideration of political policy ever, for the simple reason that they are forbidden by or expediency can release him) to provide by law such the Constitution.
adequate and complete protection as is essential to the Some persons who have not examined critically the enjoyment of an important right secured by the Constiopinion of the Court in this respect have been induced tution. If the proposition be true, that the Constitution to believe that the slavery question was included in this establishes Slavery in the Territories beyond the power class of prohibited powers, and that the Court had of the people legally to control it, another result no less decided in the Dred Scott case that the Territorial Legis. startling, and from which there is no escape, must inevi. lature could not legislate in respect to slave property tably follow. The Constitution is uniform "everywhere the same as all other property in the Territories. A few within the dominions of the United States''-is the same extracts from the opinion of the Court will correct this in Pennsylvania as in Kansas-and if it be true, as error, and show clearly the class of powers to which the stated by the President in a special message to Congress, Court referred, as being forbidden alike to the Federal “that Slavery exists in Kansas by virtue of the ConstiGovernment, to the States, and to the Territories. The tution of the United States, and that “ Kansas is thereCourt say:
fore at this moment as much a Slave State as Georgia or “A reference to a few of the provisions of the Constitution
South Carolina," why does it not exist in Pennsylvania will illustrate this proposition. For example, no cne, we pre- / by virtue of the same Constitution ? sume, will contend that Congress can make any law in a Ter
If it be said that Pennsylvania is a sovereign State, and ritory respecting the establishinent of religion, or the free ex- therefore has a right to regulate the Slavery question ercise thereof, or abridging the freedom of speech or of the within her own limits to suit herself, it must be borne in the press, or the right of the people of the territory peaceably mind that the sovereignty of Pennsylvania, like that of to assemble, and to petition the Government for the redress of every other State, is limited by the Constitution, which grievances.
"Nor can Congress deny to the people the right to keep and provides that: bear arms, nor the right to trial by jury, nor compel any one “This Constitution, and all laws of the United States which to be a witness against himself in a criminal proceeding. shall be made in pursuance thereof, and all treaties made, or So too, it will hardly be contended that Congress could by law which shall be made, under the authority of the United States, quarter a soldier in a house in a territory without the consent shall be the supreme law of the land, and the judges in every of the owner in a time of peace ; nor in time of war but in a state shall be bound thereby, anything in the Constitution or manner prescribed by law. Nor could they by law forfeit the laws of any State to the contrary noticithstanding." property of a citizen in a territory who was convicted of treason, for a longer period than the life of the person convicted, Hence, the State of Pennsylvania, with her Constitution nor take private property for public use without just compen and laws, and domestic institutions, and internal policy, tation."
The powers over persons and property, of which we is subordinate to the Constitution of the United States, in speak, are not only not granted to Congress, but are in ex
the same manner and to the same extent as the Territory prese terms denied, and they are forbidden to exercise them. of Kansas. The Kansas-Nebraska Act says that the Ter. And this prohistion
is not confined to the States, but the ritory of Kansas shall exercise legislative power over "all words are general, and extend to the whole territory over rightful subjects of legislation consistent with the Consti. which the Constitution gives it power to legislate, including tution," and that the people of said Territory shall be left those portions of it remaining under Territorial governments, “perfectly free to form and regulate their domestic instias well as that covered by States.
"It is a total absence of power, everywhere within the tutions in their own way, subject only to the Constitution dominion of the United States, and places the citizens of a
of the United States." The provisions of this act are beTerritory, so far as these rights are concerned, on the same lieved to be in entire harmony with the Constitution, and