only to the territory of the United States; that mon benefit, in like manner was still insisted is, to a territory then in existence, and then on, but refused by the states. And this memknown or claimed as the territory of the Uni-ber of the clause in question evidently applies ted States. It begins its enumeration of to them, and can apply to nothing else. It powers by that of disposing, in other words, was to exclude the conclusion that either making sale of the lands, or raising money party, by adopting the Constitution, would

from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposi- provision for those then actually ceded, it is tion and sale of the lands; that is, the power impossible, by any just rule of construction, of making needful rules and regulations to make the first provision general, and exrespecting the territory. And whatever con- tend to all territories which the federal govstruction may now be given to these words, ernment might in any way afterwards acevery one, we think, must admit that they are quire, when the latter is plainly and unequinot the words usually employed by statesmen vocally confined to a particular territory; in giving supreme power of legislation. They which was a part of the same controversy, are certainly very unlike the words used in and involved in the same dispute, and deordinance of 1787, and assisted in forming | ferent subjects, and the perspicuity and apthe new government under which they were propriateness of the language it uses. But if then acting, and whose powers they were then this clause is construed to extend to territory exercising. And it is obvious, from the law acquired by the present government from a

they passed to carry into effect the principles and provisions of the ordinance, that they regarded it as the act of the states done in the exercise of their legitimate powers at the time. The new government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo anything that had been done. And, among the earliest laws passed under the new government, is one reviving the ordinance of 1787, which had become inoperative, and a nullity upon the adoption of the Constitution. This

foreign nation, outside of the limits of any charter from the British government to a colony, it would be difficult to say, why it was deemed necessary to give the government the power to sell any vacant lands belonging to the sovereignty which might be found within it; and if this was necessary, why the grant of this power should precede the power to le gislate over it and establish a government there; and still more difficult to say, why it was deemed necessary so specially and particularly to grant the power to make needful law introduces no new form or principles for rules and regulations in relation to any perits government, but recites, in the preamble, sonal or movable property it might acquire that it is passed in order that this ordinance there. For the words other property, necesmay continue to have full effect, and proceeds sarily, by every known rule of interpretation, to make only those rules and regulations must mean property of a different description

from territory or land. And the difficulty would perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that "nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular state," or to say how any particu

which were needful to adapt it to the new government, into whose hands the power had fallen. It appears, therefore, that this Congress regarded the purposes to which the land in this territory was to be applied, and the form of government and principles of jurisprudence which were to prevail there, while it remained in the territorial state, as already lar state could have claims in or to a territory

determined on by the states when they had full power and right to make the decision; and that the new government, having received it in this condition, ought to carry substantially into effect the plans and principles which had been previously adopted by the states, and which no doubt the states anticipated when they surrendered their power to the new government. And if we regard this clause of the Constitution as pointing to this territory, with a territorial government already established in it, which had been ceded to the states for the purposes hereinbefore mentioned-every word in it is perfectly appropriate, and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a territory at

ceded by a foreign government, or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connexion.

The words "needful rules and regulations" would seem, also, to have been cautiously used for some definite object. They are not the words usually employed by statesmen, when they mean to give the powers of sovereignty, or to establish a government, or to authorize its establishment. Thus, in the law to renew and keep alive the ordinance of 1787, and to re-establish the government, the title of the law is: "An act to provide for the government of the territory northwest of the river Ohio." And in the Constitution, when granting the power to legislate over the territory that may be selected for the seat of government in

the time. We can, then, easily account for dependently of a state, it does not say Conthe manner in which the first Congress legis-gress shall have power "to make all needful lated on the subject and can also understand rules and regulations respecting the territowhy this power over the territory was asso-ry;" but it declares that "Congress shall have ciated in the same clause with the other pro- power to exercise exclusive legislation in all perty of the United States, and subjected to cases whatsoever over such District (not exthe like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present government, and to give it in such territory a despotic and unlimited power over persons and property, such as the

ceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States.

The words "rules and regulations" are usually employed in the Constitution in speaking of some particular specified power which

confederated states might exercise in their it means to confer on the government, and not,

common property, it would be difficult to account for the phraseology used, when compared with other grants of power and also for its association with the other provisions in the same clause.

The Constitution has always been remarkable for the felicity of its arrangement of dif

as we have seen, when granting general powers of legislation. As, for example, in the particular power to Congress " to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;" "to establish an uniform rule of naturalization;" "to coin

1

the supreme law of the land."

money and regulate the value thereof." And federated states. The language is: "and all to construe the words of which we are speak- treaties made, or which shall be made, under ing as a general and unlimited grant of sove- the authority of the United States, shall be reignty over territories which the government might afterwards acquire, is to use them in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular territory, in which a government and laws had already been established, but which would require some alterations to adapt it to the new government, the words are peculiarly applicable and appropriate for that purpose.

Whether, therefore, we take the particular clause in question, by itself, or in connexion with the other provisions of the Constitution, we think it clear, that it applies only to the particular territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new govvernment might afterwards obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercised in this territory, while it remained under a territorial government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory afterwards acquired by the federal government. We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the general government exercised over slavery in this territory, as altogether inapplicable to the case before us.

The necessity of this special provision in relation to property and the rights or property held in common by the confederated states, is illustrated by the first clause of the sixth article. This clause provides that "all debts, contracts, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this government as under the Confederation." This provision, like the one under consideration, was indispensable if the new Constitution was adopted. The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations, of the preceding has been quoted as establishing a different one. But, when the present United States construction of this clause of the Constitution. came into existence under the new govern- There is, however, not the slightest conflict

But the case of the American and Ocean Insurance Companies v. Canter (1 Pet., 511)

between the opinion now given and the one referred to; and it is only by taking a single sentence out of the latter and separating it from the context, that even an appearance of conflict can be shown. We need not comment on such a mode of expounding an opinion of the court. Indeed it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opinion would appear to be in direct conflict with that now given; but the words which immediately follow that sentence show that

ment, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several states would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions were indispensable to transfer to the new gov- the court did not mean to decide the point,

ernment the property and rights which at that but merely affirmed the power of Congress to time they held in common; and at the same establish a government in the territory, leav

time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory end other property of the United States provided for the first, and the clause last quoted provided for the other. They have no connexion with the general powers and rights of sovereignty delegated to the new government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a government.

Indeed, a similar provision was deemed necessary, in relation to treaties made by the Confederation; and when in the clause next suc

ing it an open question, whether that power was derived from this clause in the Constitution, or was to be necessarily inferred from a power to acquire territory by cession from a foreign government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead.

The passage referred to is in page 542, in which the court, in speaking of the power of Congress to establish a territorial government in Florida until it should become a state, uses the following language:

"In the mean time Florida continues to be a territory of the United States, governed by that clause of the Constitution which empowers Congress to make all needful rules

ceeding the one of which we have last spoken, and regulations respecting the territory or it is declared that treaties shall be the supreme other property of the United States. Perhaps law of the land, care is taken to include, by the power of governing a territory belonging express words, the treaties made by the con- to the United States, which has not, by be

coming a state, acquired the means of self-cision upon it was not required by the case government, may result, necessarily, from the before the court. facts that it is not within the jurisdiction of There is another sentence in the opinion any particular state, and is within the power which has been commented on, which even in and jurisdiction of the United States. The a still more striking manner shows how one to all cases of admiralty and maritime juris- government. The case before us depends upon

diction; and that the whole of the judicial power must be vested in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish.' Hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the territorial legislature."

And after thus clearly stating the point before them, and which they were about to decide, they proceed to show that these territorial tribunals were not constitutional courts, but merely legislative, and that Congress might, therefore, delegate the power to the territorial government to establish the

other and different provisions of the Constitution, altogether separate and apart from the one above mentioned. The question as to what courts Congress may ordain or establish in a territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is not authorized by the Constitution to pass, are widely different are regulated by different and separate articles of the Constitution, and stand upon different principles. And we are satisfied that no one who reads attentively the page in Peters' Reports to which we have referred, can suppose that the attention of the court was drawn for a

court in question; and they conclude that moment to the question now before this court, part of the opinion in the following words: or that it meant in that case to say that Con"Although admiralty jurisdiction can be ex-gress had a right to prohibit a citizen of the ercised in the states in those courts only United States from taking any property which which are established in pursuance of the he lawfully held into a territory of the United third article of the Constitution, the same States.

limitation does not extend to the territories. This brings us to examine by what provi

In legislating for them, Congress exercises the combined powers of the general and state governments."

Thus it will be seen by these quotations from the opinion, that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the opinion of the tribunal, that in organizing the judicial department of the government in a territory of the United States, Congress does not act under, and is not restricted by, the third article in the Constitution, and is not bound, in a territory, to ordain and establish courts in which the judges hold their offices during good behavior, but may exercise the discretionary power which a state exercises in establishing its judicial department, and regulating the jurisdiction of its courts, and may authorize the territorial government to establish, or may itself establish, courts in which the judges hold their offices for a term of years only; and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the general and a state government. It exercises the discretionary power of a state government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behavior; and it exercises the power of the general government in investing that court with admiralty jurisdiction, over which the general government had exclusive jurisdiction in the territory.

sion of the Constitution the present federal government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States, while it remains a territory, and until 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. That power is plainly given; and if a new state is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the state, and the citizens of the state, and the federal government. But no power is given to acquire a territory to be held and governed permanently in that character.

And indeed the power exercised by Congress to acquire territory and establish a government there, according to its own unlimited discretion, was viewed with great jealousy by the leading statesmen of the day. And in the Federalist, (No. 38), written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated states, by the cession from Virginia, and the establishment of a government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power. We do not mean, however, to question the power of Congress in this respect. The power article of the Constitution, in relation to the by the admission of new states, is plainly judiciary of the United States, and the power given; and in the construction of this power which Congress might exercise in a territory by all the departments of the government, it in organizing the judicial department of the has been held to authorize the acquisition of

No one, we presume, will question the correctness of that opinion; nor is there anything in conflict with it in the opinion now given. The point decided in the case cited has no relation to the question now before the court. That depended on the construction of the third to expand the territory of the United States,