But the United States is not merely a land owner; it is a sovereignty. As such, it exercises all constitutional jurisdiction over all its territories. Whence, but from this right of sovereignty, does the government obtain its power of saying that no man shall purchase land of the natives, or aborigines; and that, if you wish to buy land in the territories, you shall come to the government for it? Is there any express power in the constitution authorizing Congress to say to all the citizens of the United States, “If you wish to buy ungranted land in the territories, you must come to us, for no one else can sell, or shall sell”? This right, sustained by all our legislation and adjudications, covers the whole ground. Lessee of Johnson et al. vs. McIntosh, 8 Wheaton, 543; 5 Cond. Rep. 515.
But, leaving the constitution, it is denied that there are precedents. The honorable gentlemen from Virginia [Mr. Bayly] has not only contested the power of Congress to legislate on the subject of slavery in the territories, but he has denied the existence of precedents to sustain this power. Sir, it would have been an assertion far less bold, to deny the existence of precedents for the election of a President of the United States; for the instances of the latter have been far less frequent than of the former. Congress has legislated on the subject of slavery in the territories all the way up from the adoption of the constitution to the present time; and this legislation has been sustained by the judiciary of both the general and state governments, and carried into execution by the executive power of both. See Menard vs. Aspasia, 5 Peters, 505; Phebe et al. vs. Jay, Breese’s Rep. 210; Hogg vs. The Zanesville Canal Co., 5 Ohio Rep. 410; Martin’s Louisiana Rep. N. S. 699; Spooner vs. McConnell, 1 McLean’s Rep. 341; Harvey vs. Deeker, Walker’s Mississippi Rep. 36; Rachael vs. Walker, 4 Missouri Rep. 350.
So far as the uniform practice of sixty years can settle a doubtful, or confirm an admitted right, this power of legislating over the territories has been taken from the region of doubt, and established upon the basis of acknowledged authority. In legislating for all that is now Ohio, Indiana, Illinois, Wisconsin, Michigan, Iowa, Missouri, Arkansas, Mississippi, Louisiana, and Florida, we have legislated on the subject of slavery in the territories. Sixty years of legislation on one side, and not a denial of the right on the other.
But the gentleman from Virginia [Mr. Bayly] says, that the action of Congress in regard to the territories has been rather that of constitution-making than of law-making. Suppose this to be true; does not the greater include the less? If Congress could make a constitution for all the territories,—an organic, fundamental law,—a law of laws,—could it not, had it so pleased, make the law itself? A constitution prescribes to the legislature what it shall do, and what it shall not do; it commands, prohibits, and binds men by oaths to support itself. It says, “Hitherto SHALT thou come, and no farther.” And if Congress can do this, can it not make the local law itself? Can aught be more preposterous? As if we could command others to do what we have no right to do ourselves, and prohibit others from doing what lies beyond our own jurisdiction! Surely, to decree on what subjects a community shall legislate, and on what they shall not legislate, is the exercise of the highest power.
But Congress has not stopped with the exercise of the constitution-making power. In various forms, and at all times, it has legislated for the territories, in the strictest sense of the word legislation. It has legislated again and again, and ten times again, on this very subject of slavery. See the act of 1794, prohibiting the slave trade from “any port or place” in the United States. Could any citizen of the United States, under this act, have gone into one of our territories and there have fitted out vessels for the slave trade? Surely he could, if Congress had no right to legislate over territories only as so much land and water.
By statute 1798, chapter 28, § 7, slaves were forbidden to be brought into the Mississippi Territory from without the United States, and all slaves so brought in were made free.
So the act of 1800, chapter 51, in further prohibition of the slave trade, applied to all citizens of the United States, whether living in territories or in organized states. Did not this legislation cover the territories?
By statute 1804, chapter 38, § 10, three classes of slaves were forbidden to be introduced into the Orleans Territory.
Statute 1807, chapter 22, prohibiting the importation of slaves after January 1, 1808, prohibited their importation into the territories in express terms.
Statute 1818, chapter 91, statute 1819, chapter 101, and statute 1820, chapter 113, prohibiting the slave trade, and making it piracy, expressly included all the territories of the United States.