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tion to the Constitution of Great Britain; and their only complaint was that they were not permitted to enjoy the rights and privileges of self-government, in the management of their internal affairs and domestic concerns, in accordance with the guaranties of that Constitution and of the colonial charters granted by the Crown in pursuance of it. They conceded the right of the Imperial Government to make all laws and perform all acts concerning the Colonies, which were in their nature Imperial and not Colowial-which affected the general welfare of the Empire, and did not interfere with the "internal polity" of the Colonies. They recognized the right of the Imperial Government to declare war and make peace; to coin money and determine its value; to make treaties and conduct intercourse with foreign nations; to regulate commerce between the several colonies, and between each colony and the parent country, and with foreign countries; and in general they recognized the right of the Imperial Government of Great Britain to exercise all the powers and authority which, under our Federal Constitution, are delegated by the people of the several States to the Government of the United States.
Recognizing and conceding to the Imperial Government all these powers, including the right to institute governments for the colonies, by granting charters under which the inhabitants residing within the limits of any specified territory might be organized into a political community, with a government consisting of its appropriate departments, executive, legislative, and judicial; conceding all these powers, the Colonies emphatically denied that the Imperial Government had any rightful authority to impose taxes upon them without their consent, or to interfere with their internal polity; claiming that it was the birthright of all Englishmen-inalienable when formed into a political community-to exercise and enjoy all the rights, privileges, and immunities of self-government in respect to all matters and things which were local and not general -internal and not external-colonial and not imperialas fully as if they were inhabitants of England, with a fair representation in Parliament.
Thus it appears that our fathers of the Revolution were contending, not for independence in the first instance, but for the inestimable right of local self-government under the British Constitution; the right of every distinct political community dependent colonies, territories, provinces, as well as sovereign States-to make their own local laws, form their own domestic institutions, and manage their own internal affairs in their own way, subject only to the Constitution of Great Britain as the paramount law of the empire.
always considered this as one of the questions affecting her "internal polity," over which she, in common wit the other colonies, claimed "the right of exclusive legislation in their provincial legislatures" within their respective limits. Some of these acts, particularly those which were enacted prior to the year 1699, were evidently intended to foster and encourage, as well as to regulate and control, African Slavery, as one of the domestic institutions of the colony. The act of 1699, and most of the enactments subsequent to that date, were as obviously designed to restrain and check the growth of the institution, with the view of confining it within the limit of the actual necessities of the community, or its ultimate extinction, as might be deemed most conducive to the public interests, by a system of unfriendly legislation, such as imposing a tax on all slaves introduced into the colony, which was increased and renewed from time to time, as occasion required, until the period of the Revolution. Many of these acts never took effect, in consequence of the king withholding his assent, even after the governor had approved the enactment, in cases where it contained a clause suspending its operation until his majesty's pleasure should be made known in the premises.
In 1772, the provincial legislature of Virginia, after imposing another tax of five per cent. on all slaves imported into the colony, petitioned the king to remove all those restraints which inhibited his majesty's governors assenting to such laws as might check so very pernicious a commerce as Slavery. Of this petition Judge Tucker says.
"The following extract from a petition to the Throne, presented from the House of Burgesses of Virginia, April 1st, 1772, will show the sense of the people of Virginia on the subject of Slavery at that period:
"The importation of slaves into the colony from the coast of Africa hath long been considered as a trade of great inhumanity; and under its present encouragement we have too much reason to fear will endanger the very existence of your Majesty's American dominions.""
The people of Virginia at that day did not appreciate the force of the argument used by the British merchants, who were engaged in the African slave-trade, and which was afterward indorsed, at least by implication, by the king and his ministers; that the Colonies were the common property of the empire-acquired by the common blood and treasure-and therefore all British subjects had the right to carry their slaves into the colonies, and hold them in defiance of the local law and in contempt of the wishes and safety of the Colonies.
Mark the ominous words! Virginia tells the king of England in 1772, four years prior to the Declaration of Independence, that his Majesty's American dominions are in danger: not because of the Stamp duties-not because of the tax on tea-not because of his attempts to collect revenue in America! These have since been deemed sufficient to justify rebellion and revolution. But none of these are referred to by Virginia in her address to the Throne-there being another wrong which in magnitude and enormity, so far exceeded these and all other causes of complaint, that the very existence of his Majesty's American dominions depended upon it! That wrong consisted in forcing African Slavery upon a The government of Great Britain had violated this ina-dependent colony without her consent, and in opposition Henable right of local self-government by a long series of to the wishes of her own people! acts on a great variety of subjects. The first serious point of controversy arose on the Slavery question as early as 1699, which continued a fruitful source of irritation until the Revolution, and formed one of the causes for the separation of the Colonies from the British crown. For more than forty years the provincial legislature of Virginia had passed laws for the protection and encouragement of African Slavery within her limits. This policy was steadily pursued until the white inhabitants of Virginia became alarmed for their own safety, in view of the numerous and formidable tribes of Indian savages which surrounded and threatened the feeble white settlements, while ship-loads of African savages were being daily landed in their midst. In order to check and restrain a policy which seemed to threaten the very existence of the colony, the provincial legislature enacted a law imposing a tax upon every slave who should be brought into Virginia. The British merchants, who were engaged in the African slave-trade, regarding this legislation as injurious to their interests and in violation of their rights, petitioned the King of England and his majesty's ministers to annul the obnoxious law, and protect them in their right to carry their slaves into Virginia and all other British colonies which were the common property of the empire-acquired by the common blood and common treasure-and from which a few adventurers, who had settled on the imperial domain by his majesty's sufferance, had no right to exclude them, or discriminate against their property by a This clause in the Constitution of Virginia, referring to mere provincial enactment. Upon a full consideration of the inhuman use of the royal negative, in refusing the the subject, the king graciously granted the prayer of the Colony of Virginia permission to exclude Slavery from her petitioners; and accordingly issued peremptory orders to limits by law, as one of the reasons for separating from the royal governor of Virginia, and to the governors of all Great Britain, was adopted on the 12th day of June, the other British colonies in America, forbidding them to 1776, three weeks and one day previous to the Declarasign or approve any colonial or provincial enactment inju- tion of Independence by the Continental Congress; and rious to the African slave-trade, unless such enactment after remaining in force as a part of the Constitution. should contain a clause suspending its operation until his for a period of fifty-four years, was re-adopted, without majesty's pleasure should be made known in the premises. alteration, by the Convention which framed the new Judge Tucker, in his Appendix to Blackstone, refers to Constitution in 1830, and then ratified by the people as a thirty-one acts of the provincial legislature of Virginia, part of the new Constitution; and was again re-adopted passed at various periods from 1662 to 1772, upon the sub- by the Convention which amended the Constitution in ject of African Slavery, showing conclusively that Virginia | 1850, and again ratified by the people as a part of the
The people of Virginia not being convinced by th's process of reasoning, still adhered to the doctrine which they held in common with their sister colonies, that it was the birthright of all freemen-inalienable when formed into political communities-to exercise exclusive legislation in respect to all matters pertaining to their internal polity-Slavery not excepted; and rather than surrender this great right, they were prepared to withdraw their allegiance from the crown.
Again referring to this petition to the king, the same learned judge adds:
clause of our (Virginia) Constitution, where, among other "This petition produced no effect, as appears from the first acts of misrule, the inhuman use of the royal negative in refusing us (the people of Virginia) permission to exclude Slavery from us by law, is enumerated among the reasons or separating from Great Britain."
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 Colonies, but produced a general concurrence of opinion and action in respect to the question of Slavery in the proceedings of the Continental Congress, which assembled at Philadelphia for the first time on the 5th of September, 1774.
The legislation of Virginia on this subject may be taken as a fair sample of the legislative enactments of each of the thirteen Colonies, showing conclusively that slavery was regarded by them all as a domestic question to be regarded and determined by each colony to suit itself, without the intervention of the British Parliament or "the inhuman use of the royal negative." Each colony passed a series of enactments, beginning at an early period of its history and running down to the commencement of the Revolution, either protecting, regulating, or restraining African Slavery within its respective limits, and in accordance with their wishes and supposed interests. North and South Carolina, following the example of Virginia, at first encouraged the introduction of slaves, until the number increased beyond their wants and necessities, when they attempted to check and restrain the further growth of the institution, by imposing a high rate of taxation upon all slaves which should be brought into those colonies; and finally, in 1764, South Carolina passed a law imposing a penalty of one hundred pounds (or five hundred dollars) for every negro slave subsequently introduced into that colony.
The colony of Georgia was originally founded on strict anti-slavery principles, and rigidly maintained this policy for a series of years, until the inhabitants became convinced by experience that, with their climate and productions, slave labor, if not essential to their existence, would prove beneficial and useful to their material interests. Maryland and Delaware protected and regulated African Slavery as one of their domestic institutions. Pennsylvania, under the advice of William Penn, substituted fourteen years' service and perpetual adscript to the soil for hereditary Slavery, and attempted to legislate, not for the total abolition of Slavery, but for the sanctity of marriage among slaves, and for their personal security. New-Jersey, New-York, and Connecticut recognized African Slavery as a domestic institution lawfully existing within their respective limits, and passed the requisite laws for its control and regulation.
Rhode Island provided by law that no slave should serve more than ten years, at the end of which time he was to be set free; and if the master should refuse to let him go free, or sold him elsewhere for a longer period of service, he was subject to a penalty of forty pounds, which was supposed at that period to be nearly double the value of the slave.
Massachusetts imposed heavy taxes upon all slaves brought into the colony, and provided in some instances for sending the slaves back to their native land; and finally prohibited the introduction of any more slaves into the colony under any circumstances.
When New-Hampshire passed laws which were designed to prevent the introduction of any more slaves, the British Cabinet issued the following order to Governor Wentworth: "You are not to give your assent to, or pass any law imposing duties upon negroes imported into New-Hampshire."
While the legislation of the several colonies exhibits dissimilarity of views, founded on a diversity of interests, on the merits and policy of Slavery, it shows conclusively that they all regarded it as a domestic question affecting their internal polity in respect to which they were entitled to a full and exclusive power of legislation in the several provincial legislatures. For a few years immediately preceding the American Revolution, the African slave-trade was encouraged and stimulated by the British Government, and carried on with more vigor by the English merchants, than at any other period in the history of the Colonies; and this fact, taken in connection with the extraordinary claim asserted in the memorable preamble to the act repealing the stamp duties, that "Parliament possessed the right to bind the Colonies in all cases whatever," not only in respect to all matters affecting the general welfare of the empire, but also in regard to the domestic relations and internal polity of the Colonies-produced a powerful impression upon the minds of the colonists, and imparted peculiar prominence to the principle involved in the controversy.
On the 14th of October the Congress adopted a Bill of Rights for the Colonies, in the form of a series of resolu tions, in which, after conceding to the British Government the power to regulate commerce and do such other things as affected the general welfare of the empire, without interfering with the internal polity of the Colonies, they declared "That they are entitled to a free and exclusive power in their several provincial legislatures, where their right of representation can alone be preserved in all cases of taxation and internal polity." Having thus defined the principle for which they were contending, the Congress proceeded to adopt the following "Peaceful Measures," which they still hoped would be sufficient to induce compliance with their just and reasonable demands. These "Peaceful Measures" consisted of addresses to the king, to the Parliament, and to the people of Great Britain, together with an association of non-intercourse to be observed and maintained so long as their grievances should remain unredressed.
The second article of this association, which was adopted without opposition, and signed by the delegates from all the Colonies, was in these words:
"That we will neither import nor purchase any slave im ported after the first day of December next; after which time we will wholly discontinue the slave-trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are engaged in it "
This Bill of Rights, together with these articles of association, were subsequently submitted to and adopted by each of the thirteen Colonies in their respective pro vincial Legislatures.
Thus was distinctly formed between the Colonies and the parent country that issue upon which the Declaration of Independence was founded, and the battles of the Revolution were fought. It involved the specific claim on the part of the Colonies-denied by the King and Parliament-to the exclusive right of legislation touching all local and internal concerns, Slavery included. This being the principle involved in the contest, a majority of the Colonists refused to permit their delegates to sign the Declaration of Independence except upon the distinct condition and express reservation to each colony of the exclusive right to manage and control its local concerns and police regulations without the intervention of any general Congress which might be established for the United Colonies.
Let us cite one of these reservations as a specimen of all, showing conclusively that they were fighting for the inalienable right of local self-government, with the clear understanding that when they had succeeded in throw. ing off the despotism of the British Parliament, no Congressional despotism was to be substituted for it:
"We, the Delegates of Maryland, in Convention assembled, do declare that the King of Great Britain has violated his compact with this people, and that they owe no allegiance to him. We have therefore thought it just and necessary to empower our Deputies in Congress to join with a majority of the United Colonies in declaring them free and independent States, in framing such further confederation between them, in making foreign alliances, and in adopting such other mea sures as shall be judged necessary for the preservation of their liberties:
internal polity and government of this Colony be reserved to "Provided, The sole and exclusive right of regulating the the people thereof.
"We have also thought proper to call a new Convention for the purpose of establishing a government in this Colony. "No ambitious views, no desire of independence, induced the people of Maryland to form a union with the other Colonies. To procure an exemption from Parliamentary taxation, and to continue to the legislatures of these Colonies the sole and exclusive right of regulating their Internal Polity, was our original and only motive. To maintain, inviolate our liberties, and to transmit them unimpaired to posterity, was 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 asertions we appeal to that Almighty Being who is emphati increase of slaves; and, on the other hand, the orders cally styled the Searcher of hearts, and from whose omniscience 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 Government 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 these Articles it was provided that "Each State retains its Sovereignty, Freedom, and Independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled."
At the time the Articles of Confederation were adopted-July 9, 1778-the United States held no lands or territory in common. The entire country-including all the waste and unappropriated lands-embraced within or pertaining to the Confederacy, belonged to and was the property of the several States within whose limits
the same was situated.
On the 6th day of September, 1780, Congress "recommended to the several States in the Union having claims to waste and unappropriated lands in the Western country, a liberal cession to the United States of a portion of their respective claims for the common benefit of the Union." On the 20th day of October, 1783, the Legislature of Virginia passed an act authorizing the Delegates in Congress from that State to convey to the United States "the territory or tract of country within the limits of the Virginia Charter, lying and bearing to the northwest of the river Ohio "--which grant was to be made upon the "condition that the territory so ceded shall be laid out and formed into States;" and that "the States so formed shall be distinct republican States, and admitted members of the Federal Union, having the same rights of Sovereignty, Freedom, and Independence as the other States."
On the 1st day of March, 1784, Thomas Jefferson and his colleagues in Congress executed the deed of cession in pursuance of the act of the Virginia Legislature, which was accepted and ordered to "be recorded and enrolled among the acts of the United States in Congress assembled." This was the first territory ever acquired, held, or owned, by the United States. On the same day of the deed of cession, Mr. Jefferson, as chairman of a committee which had been appointed, consisting of Mr. Jefferson of Virginia, Mr. Chase of Maryland, and Mr. Howell of Rhode Island, submitted to Congress 66 a plan for the temporary government of the territory ceded or to be ceded by the individual States to the United States."
It is important that this Jeffersonian plan of government for the Territories should be carefully considered for many obvious reasons. It was the first plan of government for the Territories ever adopted in the United States. It was drawn by the author of the Declaration of Independence, and revised and adopted by those who shaped the issues which produced the Revolution, and formed the foundations upon which our whole American system of government rests. It was not intended to be either local or temporary in its character, but was designed to apply to all "territory ceded or to be ceded," and to be universal in its application and eternal in its duration, wherever and whenever we might have territory requiring a government. It ignored the right of Congress to legislate for the people of the Territories, without their consent, and recognized the inalienable right of the people of the Territories, when organized into political communities, to govern themselves in respect to their local concerns and internal polity. It was adopted by the Congress of the Confederation on the 23d day of April, 1784, and stood upon the Statute Book as a general and permanent plan for the government of all territory which we then owned or should subsequently acquire, with a provision declaring it to be a "Charter of Compact," and that its provisions should "stand as fundamental conditions between the thirteen original States and those newly described, unalterable but by the joint consent of the United States in Congress assembled, and of the particular State within which such alteration is proposed to be made." Thus this Jeffersonian plan for the government of the Territories-this "Charter of Compact" -"these fundamental conditions," which were declared to be "unalterable" without the consent of the people of "the particular State [territory] within which such alteration is proposed to be made," stood on the Statute Book when the Convention assembled at Philadelphia in 1787, and proceeded to form the Constitution of the
Now let us examine the main provisions of the Jeffer
First.-"That the territory ceded or to be ceded by the individual States to the United States, whenever the same shall have been purchased of the Indian inhabitants and offered for sal by the United States, shall be formed into additional St des," etc., etc.
The Plan proceeds to designate the boundaries and territorial extent of the proposed "additional States," and shen provides:
Second. That the settlers within the Territory so to be purchased and offered for sale shall, either on their ow them, with appointments of time and place, for their free males pe ition or on the order of Congress, receive authority from of full age to meet together for the purpose of establishing a temporary government to adopt a Constitution and laws of any one of these States (the original States), so that such laws nevertheless shall be subject to alteration by their ordinary Legislature; and to erect, subject to like alteration, counties or townships for the election of members for their Legisla ture."
Having thus provided a mode by which the first inhabitants or settlers of the territory may assemble together and choose for themselves the Constitution and laws of some one of the original thirteen States, and declare the same in force for the government of their territory tem porarily, with the right on the part of the people to change the same, through their local Legislature, as they may see proper, the Plan then proceeds to point out the mode in which they may establish for themselves" a permanent Constitution and government" whenever they shall have twenty thousand inhabitants, as follows:
Third. "That such temporary government only shall continue in force in any State until it shall have acquired twenty Congress, they shall receive from them authority, with ap. thousand free inhabitants, when, giving due proof thereof to pointments of time and place, to call a Convention of Repre sentatives to establish a permanent Constitution and government for themselves."
Having thus provided for the first settlers "a temporary government" in these "additional States," and for a permanent Constitution and government" when they shall have acquired twenty thousand inhabitants, the Plan contemplates that they shall continue to govern themselves as States, having, as provided in the Virginia deed of session, "the same rights of sovereignty, freedom, and independence," in respect to their domestic affairs and internal polity, "as the other States," until they shall have a population equal to the least numerous of the original thirteen States; and in the meantime shall keep a sitting member in Congress, with a right of debating but not of voting, when they shall be admitted into the Union on an equal footing with the other States, as follows:
Fourth.-"That whenever any of the said States shall have least numerous of the thirteen original States, such State shall of free inhabitants as many as shall then be in any one of the be admitted by its delegates into the Congress of the United States on an equal footing with the said original States." And
of the said States, after the establishment of their temporary "Until such admission by their delegates into Congress any government, shall have authority to keep a sitting member in Congress, with the right of debating, but not of voting."
Attached to the provision which appears in this paper under the "third" head is a proviso, containing five propositions, which, when agreed to and accepted by the people of said additional States, were "to be formed into a charter of compact," and to remain forever "unalterable," except by the consent of such States as well as of the United States-to wit:
"Provided, That both the temporary and permanent gov. ernments be established on these principles as their basis:" 1st." That they shall forever remain a part of the United States of America."
shall be subject to the government of the United States in 2d.-"That in their persons, property, and Territory they Congress assembled, and to the Articles of Confederation in all those cases in which the original States shall be so subject."
3d." That they shall be subject to pay a part of the federal debts contracted, or to be contracted-to be apportioned on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States."
4th.-"That their respective government shall be in repub lican form, and shall admit no person to be a citizen who holds any hereditary title."
The fifth article, which relates to the prohibition of Congress, never became a part of the Jeffersonian Plan Slavery, after the year 1800, having been rejected by of Government for the Territories, as adopted April 23,
This Jeffersonian Plan of Government embodies and carries out the ideas and principles of the fathers of the kevolution-that the people of every separate political community (dependent Colonies, Provinces, and Territories as well as sovereign States) have an inalienable right to govern themselves in respect to their internal polity, and repudiates the dogma of the British Ministry and the Tories of that day, that all Colonies, Provinces and Territories were the property of the empire, acquired with the common blood and common treasure, and that the inhabitants thereof have no rights, privileges, or immunities except such as the Imperial Government should graciously condescend to bestow upon them. This Plan recognizes by law and irrevocable "compact" the existence of two distinct classes of States under our American system of government-the one being members of the Union, and consisting of the original thirteen and such other States, having the requisite population, as Congress should adinit into the Federal Union, with an equal vote in the management of Federal affairs as well as the exclusive power in regard to their internal polity respectively-the other, not having the requisite population for admission into the Union, could have no vote or agency in the control of the Federal relations, but possessed the same exclusive power over their domestic affairs and internal policy respectively as the original States, with the right, while they have less than twenty thousand inhabitants, to choose for their government the Constitution and laws of any one of the original States; and when they should have more than twenty thousand, but less than the number required to entitle them to admission into the Union, they were authorized to form for themselves a permanent Constitution and government;" and in either case they were entitled to keep a delegate in Congress with the right of debating, but not of voting. This "Charter of Compact," with its "fundamental conditions," which were declared to be "unalterable" without "the joint consent" of the people interested in them, as well as of the United States, thus stood on the statute book unrepealed and unrepealable-furnishing a complete system of government for all "the territory ceded or to be ceded" to the United States, without any other legislation upon the subject, when, on the 14th day of May, 1787, the Federal Convention assembled in Philadelphia and proceeded to form the Constitution under which we now live. Thus it will be seen that the dividing line between Federal and Local authority, in respect to the rights of those political communities which, for the sake of convenience and in ontradistinction to the States represented in Congress, we now call Territories, but which were then known as "Stutes," or "new States," was so distinctly marked at that day that no intelligent man could fail to perceive it. It is true that the government of the Confederation had proved totally inadequate to the fulfillment of the ends For which it was devised; not because of the relations between the Territories, or new States, and the United States, but in consequence of having no power to enforce its decrees on the Federal questions which were clearly within the scope of its expressly delegated powers. The radical defects in the Articles of Confederation were found to consist in the fact that it was a mere league between sovereign States, and not a Federal Government with its appropriate departments-Executive, Legislative, and Judicial-each clothed with authority to perform and carry into effect its own peculiar functions. The Confederation naving no power to enforce compliance with the resolves, "the consequence was, that though in theory its resolutions of Congress were equivalent to laws, yet in practice they were found to be mere recommendations, which the States, like other sovereignties, observed or disregarded, according to their own good-will and gracious pleasure. Congress could not impose duties, collect taxes, raise armies, or do any other act essential to the existence of government, without the voluntary consent and coöperation of each of the States. Congress could resolve, but could not carry its resolutions into effect-could recommend to the States to provide a revenue for the necessities of the Federal Government, but could not use the means necessary to the collection of the revenue when the States failed to comply-could recommend to the States to provide an army for the general defense, and apportion among the States their respective quotas, but could not enlist the men and order them into the Federal service. For these reasons a Federal Government, with its appropriate departments, acting directly upon the individual citizens, with authority to enforce its decrees to the extent of its delegated powers, and not dependent upon the voluntary action of the several States in their corporate capacity, became indispensable as a substitute for the government of the Confederation.
In the formation of the Constitution of the United States the Federal Convention took the British Constitution, as
interpreted and expounded by the Colonies during their controversy with Great Britain, for their model-making such modifications in its structure and principles as the change in our condition had rendered necessary. They entrusted the Executive functions to a President in the place of a King; the Legislative functions to a Congress, composed of a Senate and House of Representatives, in lieu of the Parliament consisting of the Houses of Lords and Commons; and the Judicial functions to a Supreme Court and such inferior courts as Congress should from time to time ordain and establish.
Having thus divided the powers of government into the three appropriate departments, with which they had always been familiar, they proceeded to confer upon the Federal Government substantially the same powers which they as colonies had been willing to concede to the British Government; and to reserve to the States and to the people the same rights and privileges which they as colonies had denied to the British Government during the entire struggle which terminated in our Independence, and which they had claimed for themselves and their posterity as the birthright of all freemen, inalienable when organized into political communities, and to be enjoyed and exercised by colonies, territories, and provinces as fully and completely as by sovereign States. Thus it will be seen that there is no organic feature or fundamental principle embodied in the Constitution of the United States which had not been familiar to the people of the Colonies from the period of their earliest settlement, and which had not been repeatedly asserted by them when denied by Great Britain during the whole period of their colonial history.
Let us pause at this point for a moment, and inquire whether it be just to those illustrious patriots and sages who formed the Constitution of the United States, to assume that they intended to confer upon Congress that unlimited and arbitrary power over the people of the American Ter ritories, which they had resisted with their blood when claimed by the British Parliament over British colonies in America? Did they confer upon Congress the right to bind the people of the American Territories in all cases whatsoever, after having fought the battles of the Revolu tion against a "Preamble" declaring the right of Parliament "to bind the Colonies in all cases whatsoever?" If, as they contended before the Revolution, it was the birthright of all Englishmen, inalienable when formed into political communities, to exercise exclusive power of legislation in their local legislatures in respect to all things affecting their internal polity-Slavery not excepted-did not the same right, after the Revolution, and by virtue of it, become the birthright of all Americans, in like manner inalienable when organized into political communities-no matter by what name, whether Colonies, Territories, Provinces, or new States?
Names often deceive persons in respect to the nature and substance of things. A single instance of this kind is to be found in that clause of the Constitution which says:
"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."
This being the only clause of the Constitution in which the word "Territory" appears, that fact alone has doubtless led many persons to suppose that the right of Congress to establish temporary governments for the Territories, in the sense in which the word is now used, must be derived from it, overlooking the important and controlling facts that at the time the Constitution was formed the word "Territory" had never been used or understood to designate a political community or government of any kind in any law, compact, deed of cession, or public document; but had invariably been used either in its geographical sense to describe the superficial area of a State or district of country, as in the Virginia deed of cession of the "Territory or tract of country'' northwest of the river Ohio; or as meaning land in its character as property, in which latter sense it appears in the clause of the Constitution referred to, when providing for the disposition of the "Territory or other property belong. ing to the United States." These facts, taken in connection with the kindred one that during the whole period of the Confederation and the formation of the Constitution the temporary governments which we now call "Territories," were invariably referred to in the deeds of cession, laws, compacts, plans of government, resolutions of Congress, public records, and authentic documents as "States," or "new States," conclusively show that the words "Territory and other property" in the Constitution were used to designate the unappropriated lands and other property which the United States owned, and not the people who might become residents on those lands, and be organized into political communities after the United States had parted with their title.
It is from this clause of the Constitution alone that Congress derives the power to provide for the surveys and sale of the public lands and all other property belonging to the United States, not only in the Territories, but also in the several States of the Union. But for this provision Congress would have no power to authorize the sale of the public lands, military sites, old ships, cannon, muskets, or other property, real or personal, which belong to the United States, and are no longer needed for any public purpose. It refers exclusively to property in contradistinction to persons and communities. It confers the same power "to make all needful rules and regulations" in the States as in the Territories, and exteuds wherever there may be any land or other property Lelonging to the United States to be regulated or disposed of; 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 the people (either in the States or the Territories) who may reside upon lands which the United States once owned. Such a power, had it been vested in Congress, would annihilate the sovereignty and freedom of the States as well as the great principle of self-government in the Territories, wherever the United States happen to own a portion of the public lands within their respective limits, as, at present, in the States of Alabama, Florida, Mississippi, Louisiana, Arkansas, Missouri, Illinois, Indiana, Ohio, Michigan, Wisconsin, Iowa, Minnesota, California, and Oregon, and in the Territories of Washiington, Nebraska, Kansas, Utah, and New-Mexico. The idea is repugnant to the spirit and genius of our complex system of Government; because it effectually blots out the dividing line between Federal and Local authority which forms an essential barrier for the defense of the independence of the States and the liberties of the people against Federal invasion. With one anomalous exception, all the powers conferred on Congress are Federal, and not Municipal, in their character-affecting the general welfare of the whole country without interfering with the internal polity of the people-and can be carried into effect by laws which apply alike to States and Territories. The exception, being in derogation of one of the fundamental principles of our political system (because it authorizes the Federal Government to control the municipal affairs and internal polity of the people in certain specified, limited localities), was not left to vague inference or loose construction, nor expressed in dubious or equivocal language; but is found plainly written in that Section of the Constitution which says:
Here we find the original and rough draft of these severa! powers as they now exist, in their revised form, in the Constitution. The provision empowering Congress "t dispose of the unappropriated lands of the United States" was modified and enlarged, so as to include "other pro perty belonging to the United States," and to authorize Congress to make all needful rules and regulations" for the preservation, management, and sale of the same. The provision empowering Congress "to institute temporary governments for the new States arising in the unappropriated lands of the United States," taken in connection with the one empowering Congress "to exercise exclusively Legislative authority at the seat of the Gene ral Government, and over a district of country around the same," clearly shows the difference in the extent and naStates or Territories on the one hand, and in the District of Columbia on the other. In the one case it was pro posed to authorize Congress "to institute temporary governments for the new States," or Territories, as they are now called, just as our Revolutionary fathers recognized the right of the British crown to institute local govern ments for the Colonies, by issuing charters under which the people of the Colonies were "entitled (according to the Bill of Rights adopted by the Continental Congress) to a free and exclusive power of legislation, in their several Provincial Legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity;" while, in the other case, it was proposed to authorize Congress to exercise, exclusively, legislative authority over the municipal and internal polity of the people residing within the district which should be ceded for that purpose as the seat of the General Government. Each of these provisions was modified and perfected by the Committee of Detail and Revision, as will appear by comparing them with the corresponding clauses as finally incorporated into the Constitution. The provision to authorize Congress to institute temporary governments for the new States or Territories, and to provide for their admission into the Union, appears in the Constitution in this form:
New States may be admitted by the Congress into this Union."
If judicial authority were deemed necessary to give force to principles so eminently just in themselves, and which form the basis of our entire political system, such authority may be found in the opinion of the Supreme Court of the United States, in the Dred Scott case. that case the Court say:
The power to admit "new States," and "to make all laws which shall be necessary and proper" to that end, may fairly be construed to include the right to institute temporary governments for such new States or Territories, 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 authortion 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 all 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, magazines, arsenals, dock-yards and other needful buildings." No such power "to exercise exclusive legislation in all cases whatsoever,' ," nor indeed any legislation in any case whatsoever, is conferred on Congress in respect to the municipal affairs and internal polity, either of the States or of the Territories. On the contrary, after the Constitution had been finally adopted, with its Federal powers delegated, enumerated, and defined, in order to guard in all future time against any possible infringement of the reserved rights of the States, or of the people, an amendment was incorporated into the Constitution which marks the dividing line between Federal and Local authority so directly and indelibly that no lapse of time, no partisan prejudice, no sectional aggrandizement, no frenzied fanaticism can efface it. The amendment is in
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This view of the subject is confirmed, if indeed any corroborative evidence is required, by reference to the proceedings and debates of the Federal Convention, as reported by Mr. Madison. On the 18th of August, after a series of resolutions had been adopted as the basis of the proposed Constitution and referred to the Committee of Detail for the purpose of being put in proper form, the record says:
"Mr. Madison submitted, in order to be referred to the Committee of Detail, the following powers, as proper to be added to those of the general Legislature (Congress):
"To dispose of the unappropriated lands of the United States. "To institute temporary governments for the new States arising therein. "To regulate affairs with the Indians, as well within as without the limits of the United States.
"To exercise exclusively legislative authority at the seat of the General Government, and over a district around the same not exceeding square miles, the consent of the legislature of the State or States comprising the same being first obtained."
"This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outit may exercise therein over the person or property of a citiside of the original limits of the United States, and what powers zen of the United States, while it remains a territory, and un til it shall be admitted as one of the States of the Union.
"There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies, bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way except by the admission of new States.
"The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion."
Having determined the question that the power to ac quire territory for the purpose of enlarging our territorial limits and increasing the number of States, is included within the power to admit new States and conferred by the same clause of the Constitution, the Court proceed to say that "the power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired." And again, referring to a former decision of the same court in respect to the power of Congress to institute governments for the Territories, the Court say:
"The power stands firmly on the latter alternative put by