THE POWER OF CONGRESS OVER TERRITORIES, THE DISTRICT OF COLUMBIA, FORTS, ARSENALS, DOCKYARDS, &c.

"The congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." Art. 4, sect. 3, cl. 2.

Here the power to dispose of property, or regulate territory, by the establishment of a corporation to govern it, is identical; in what right, and by what means, either is considered as "belonging to the United States," depends on the right by which they were made a corporation, capable of holding, disposing of, or regulating, what belonged to them as a government. This was the cession of soil, and the grant of legislative powers to a congress of the United States, who could dispose of, or regulate by law, their territory, or other property, however acquired; how then was it acquired, is the only question; as their right over it is unquestionable, when acquired. The opinions of this Court, concurring with the 16th clause of the 8th section of the 1st article of the charter, point to the grantors, who had the dominion, and the propriety, in and over whatever was granted, whether "to exercise exclusive legislation in all cases whatever, over such district, and such places, for forts, arsenals," &c. " as may by cession of particular states, and the acceptance of congress, become the seat of government of the United States," or "purchased by the consent of the legislature of the state in which the same may be;" or "to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States;" the right is acquired in the same manner, "cession," or grant, "by particular states," or purchase with the assent of the local legislature of one.

In relation to this district, this Court say: "On the extent of those terms, according to the common understanding of mankind, there can be no difference of opinion;" and they held, that congress had the same power of taxation in the district, as they have in the territories; by the same rules of apportionment and uniformity, as in the states. 5 Wh. 324. That the power did not depend solely on the grant of exclusive legislation, but was given in the grant of the 1st clause, 8th sect. 1st art. " to lay and collect taxes," &c. as a general one," without limitation of place," extending "to all places over which the government extends;" in the words of the grant, "throughout the United States." This term designates the whole "American empire." It is the name given to our great republic, which is composed of states and territories; all of which are alike within "the United States:" and it is not less necessary, on the principle of our constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in the one than in the other. 5 Wh. 318, 19. Its language comprehends the territories, and District of Columbia, as well as the states, 523. So, under the confederation,

(vide post.) It is therefore clear, that as the taxing power of congress operates in all respects uniformly, "throughout the United States," it must be derived from the same grant; the territories never made any grant; they were then the "property" of the United States, by the devolution of the right of the crown by the treaty of peace, or by cession from particular states, or the one in which it was situated and owned, as an original state. The powers of legislation over the states, is by the constitution; over the district it is exclusive, by uniting the legislative power of "the particular states," (Maryland and Virginia,) by their "cessions;" which authorize the exercise of federal and state powers, by one consolidated government. Over forts, dockyards, and arsenals, it is by purchase from the owners of the soil, with the consent of the local legislature, who may make the power exclusive by ceding their own, or consent to the purchase, and ceding a concurrent, or retaining the jurisdiction of the states over the territories; it is by making rules and regulations respecting their property, but the power is legislation; regulations by laws, which are "rules of action prescribed by the legislative power," whether for the disposition or government of property within the territories of the United States, which belonged, or should belong to them thereafter.

ALL THE TERRITORY WITHIN THE UNITED STATES, AT THE TREATY OF PEACE, BELONGED TO THE PARTICULAR STATES.

This Court has decided, "That there was no territory within the United States, that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States, distinct from, or independent of, some one of the states; the soil and sovereignty were as much theirs at the declaration of independence, as at this hour." (1827.) "Thus stood the rights of the parties at the commencement of the revolution; and when, by the treaty of peace, the southern boundary of the United States was fixed at the ancient boundary of South Carolina or Georgia, (it matters not which,) Georgia insisted on that line, as the limit which she was entitled to, and which she had laid claim to, when she declared herself independent; or which the United States had asserted in her behalf, in the declaration of independence," and "the right to it was established by the most solemn of all international acts, the treaty of peace. It has never been admitted by the United States, that they acquired any thing, by way of cession from Great Britain, by that treaty. It has been viewed only as a recognition of pre-existing rights.' 12 Wh. 526, 7: Harcourt v. Gaillard, S. P. 534, 5: Henderson v. Poindexter, 4 Cr. 212. It could be viewed in no other way, when we look to the assertion of her claims by Georgia, in 1783, as 66 a sovereign independent state;" whose "true and just limits," "as secured" "by their charter, and guarantied as well by the articles of confederation, as by the treaty of alliance" with France. Laws of Georgia, 264. That treaty has been referred to, to show what was

guarantied to the several states; it also shows what was guarantied to the United States, as a confederation of the several states.

Art. 5. "If the United States should think fit to attempt the reduction of the British power, remaining in the northern parts of America, or the islands of Bermudas; those countries or islands, in case of success, shall be confederated with, or dependent upon, the said United States." By art. 6, France renounces any claims to those islands or those countries, or to the United States, heretofore called British colonies, or which are at this time, or have lately been, under the power of the king and crown of Great Britain.

Art. 11. France guaranties to the United States, their liberty and "also their possessions;" "and the additions and conquests that their confederation may make during the war, from any of the dominions, now or heretofore possessed by Great Britain in North America, conformable to the 5th and 6th articles above written; the whole as their possession shall be fixed and assured to the said states, at the moment of the cessation of their present war with England," 1 Laws, 97, 8. On this ground the states stood in their separate existence, and the United States, as a confederation; and as a consequence of this position, this Court held, that neither the United States or Spain could, in the revolution, acquire by conquest, a territory within the limits. claimed by an ally during the war, 12 Wh. 524, 6. These great principles have been as authoritatively settled by this Court as they can be; and have been the basis of their adjudications in all cases save those of the Cherokees. "On the 7th of October, 1763, the king, exercising a right which was never questioned, over what were then called the royal provinces, issued his proclamation by which he established the northern boundaries of Florida, at the 31st degree of north latitude," 12 Wh. 524: his right to legislate over a conquered country, was never denied in Westminster Hall, or questioned in parliament; 9 Pet. 748. By the revolution, the duties as well as the powers of government, devolved on the people of New Hampshire, 4 Wh. 651; and, of course, to the people of each separate state. By the treaty of peace, "the powers of government, and the right of soil, which had previously been in Great Britain, passed definitively to these states." 8 Wh. 584.

There then could be no mode, by which the United States could acquire, either "the powers of government," or the "right of soil, in any territory, but by a cession from the states, on whom both rights devolved by the revolution, and passed to them definitively, by the acknowledgment and renunciations of the treaty. And it was held by this Court, that the only territory which in fact belonged to the United States in 1787, (that which lay west of Pennsylvania, and north of the Ohio,) was acquired by the cession from Virginia, &c. 5 Wh. 375, &c.

As to places purchased by the United States, for forts, dock-yards, &c. the same principles apply; and have been applied by this Court, in terms and language appropriate alike to all cessions, by putting and answering the all-important question,

"What then is the extent of jurisdiction which a state possesses? We answer, without hesitation, the jurisdiction of a state is co-extensive with its territory, co-extensive with its legislative power."

"The place described is unquestionably within the original territory of Massachusetts; it is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States." That original territory means the charter boundaries of the state, cannot be questioned; from which it must follow, that jurisdiction and legislative power being concomitant with territorial rights, the United States cannot exercise any federal, or exclusive legislation within these boundaries; unless it has been ceded by the particular state, in its original sovereign capacity, as a constituent of the Union.

THE ORDINANCE OF 1787, AND THE ADMISSION OF NEW STATES. Though these opinions of the Court have been delivered in cases arising in the old states, they are equally applicable to the new states which have been admitted into the Union, pursuant to the ordinance of 1787; which declares, that they shall be admitted on an equal footing with the original states, in all respects whatever; 1 Laws, 480. Such states are thus referred to in the 4th art. 3d sec. cl. 1. "New states may be admitted by the congress into this union." They have been admitted, and now are constituent parts thereof, in virtue of, and according to the terms of this ordinance, which declares what such equal footing is, and shall remain.

The North Western Territory was part of the original territory of Massachusetts, Connecticut, New York, and Virginia; in 1787, it belonged to the United States, by separate deeds of cession made by those states: it was thus the property of the confederation, subject to the exceptions, conditions, and reservations in the respective deeds. The "particular states," had ceded their jurisdiction, and thereby annulled their legislative power over it. The articles of confederation were drawn up in November, 1777, before any cession was made; consequently, there was no provision made for the exercise of any legislation by congress over any territory within the boundaries of those states, while they retained both soil and jurisdiction. But after the cession, from the necessity of the case, congress assumed and exercised the power to pass "an ordinance for the government of the territory of the United States, north-west of the Ohio;" the first clause of which shows in what capacity they did so, on the 13th July. "Be it ordained by the United States, in congress assembled," &c. As an act of the states, by their several ambassadors, it was binding on them in their legislative capacity, if done by their authority, or subsequently ratified; the act of cession was in effect to authorize it; the acquiescence of the states was in law a ratification by the states, which the people thereof confirmed by the constitution, as proposed on the 17th September, 1787. In the interval, a committee of congress had made a report on the respective powers of congress, and the states, to regulate Indian affairs; in which the

general legislative power of any state, "in all parts of it," is most distinctly admitted on all subjects, except Indian affairs, which were asserted to have been delegated to congress, by the 9th article of the confederation; 12 Journ. Cong. 82, 84, &c. The whole subject was thus before congress, and the convention, at the same time; nine of the members of the convention were members of congress, when the report of the convention containing the proposed constitution, resolutions, and letters, was submitted to, and unanimously accepted by congress. Vide 12 Journ. 99, 100. Rhode Island was not present in either body; but the members of both bodies, on the behalf of the twelve states who were present, acted in perfect concert and unity of opinion, on the appropriate subjects confided to them. Congress exercised the organic power of the states, without any express delegation; the convention proposed an organic act, to be done by the people of each state, as the constituent power thereof; and both were "done," accordingly, by ordinance; the states in congress using the term, "be it ordained," the people using this: "we do ordain.” The effect is, a government is established by the states collectively; in congress, in one case, and separately, in the other, in conventions. By one ordinance, it was established for the government of a territory, and new states to be formed out of it; by the other, for the government of all the territories, and all the states, old and new, which may be included in the Union at that time, or afterwards: one ordained by states, in a convention, or congress; the other, by each state, in a convention of the people. After providing for the temporary government of the territory, as one district, the ordinance of July, 1787, contains a preamble worthy of note. "And for extend

ing the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws, and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which for ever hereafter shall be formed in said territory; to provide for the establishment of states, and permanent governments therein, and for their admission. to a share in the federal councils, on an equal footing with the original states, at as early periods as may be consistent with the general

interest:"

"It is hereby ordained and declared, by the authority aforesaid, (congress,) that the following articles shall be considered as articles of compact between the original states, and the people and states in the said territory; and for ever remain unalterable; unless by common consent;" to wit: (art. 1 and 2, was for the security of persons, property, and contracts; art. 3, relates to the Indians within the territory.)

Art. 4. "The said territory, and the states which may be formed therein, shall for ever remain a part of this confederacy of the United States of America; subject to the articles of confederation, and to such alterations therein, as shall be constitutionally made, and to all the acts and ordinances of the United States in congress assembled, conformable thereto," &c. &c.