universal concurrence of all departments of the Governmentlegislative, judicial and executive, State and Federal-from the legislative adoption of the ordinance of '87 in the year '89, down to the abrogation of the Missouri Compromise Act, in 1854.

FIRST STAGE OF THE EXAMINATION:-POWER OF CONGRESS OVER THE ORIGINAL TERRITORY.

I. At the head of the objections to the Court's opinion, stands the uniform action of the Government for thirty-six years on one of its branches, and seventy on the other. Uniformity of action on the part of authorities, appointed to administer government, is usually admitted to be evidence of right action; and, it is believed, no higher case of uniformity of governmental action-or of longer continued uniformity-or on the part of better qualified authorities-can be found than in the case under consideration. In point of length of time, it is that of the existence of the Government; in point of uniformity, no exception; in point of fitness in the actors, most eminent—consisting of the generation which founded the Government, and the second generation, disciple of the first, which succeeded to its administration; comprehending in all this time all the departments of all the governments, State and Federal-and in all their branches-legislative, executive, and judicial. Such uniformity furnishes a persuasive evidence that this action was right; and it is the object of this Examination to show that it was so, by showing what that action was, and the reasons upon which it was founded; so that the authority of law and reason may be added to that of uniform practice.

It was from the 7th day of August, 1789—that is to say, from the beginning of the first session of the first Congress under the Federal Constitution-that this uniformity began. It was on that day that the new-born Congress, putting the new Government into operation, adopted as a part of its machinery, and adapted to the working of the new Government, the famous ordinance of 1787, for the government of the North-West Territory-changing not one word in its whole enactments, except

to substitute the President and Senate for the old Continental Congress, in making the Territorial appointments, and holding the communications with the officers, which the ordinance required. The preamble declared its object-to adapt it to the present Constitution, and to continue its full effect in the Territories; and the enactments of this adopting, and adapting, statute, corresponded with its declared object. It was brief, and in these words:

"WHEREAS, In order that the ordinance of the United States in Congress assembled, for the government of the territory Northwest of the river Ohio may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United States: THEREFORE, Be it enacted, That in all cases in which by the said ordinance any information is to be given, or communication made by the Governor of the said Territory to the United States in Congress assembled, or to any of their officers, it shall be the duty of the said Governor to give such information, and to make such communication to the President of the United States; and the President shall nominate, and by and with the advice and consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled ; and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal. SECTION 2. That in case of the death, removal, resignation, or necessary absence of the Governor of the said Territory, the Secretary thereof shall be, and he hereby is authorized and required to execute all the powers, and perform all the duties, of the Governor during the vacancy occasioned by the removal, resignation, or necessary absence of the said Governor."

Thanks to the wise custom which still, in proper cases, prefixed preambles to bills, and which was in use at the time of the passing of this act. The preamble is a key to unlock the meaning of an act, and in this case unlocks it very completely, by showing that its object was to "continue the full operation of the ordinance," and merely to adapt its working to the machinery of the new Government, which was done by the simple substitution of the President and Senate for the old Congress in the business of appointments, removals, and communi

cations and with this exception, no other part of the ordinance was touched-every provision and every enactment remaining as it was, and the new Congress left to do whatever was required from the old Congress, as in approving or disapproving the acts of the Territorial legislation. No continuation of an act, at the change of a Government, could be more complete and perfect than in this brief act of the 7th of August, 1789, and its place in the list of acts passed, shows the degree of importance attached to it. It was No. 8. in that list!—the previous seven being those which were indispensable in putting the machinery of the new Government into operation in the States, as this act was to do the same for the Territories. The ordinance, then, became as much the act of the new Government as if it had originated under it; as if it had never existed before; as if it had undergone no transition from an expiring to a new-born Government. And with this accords the opinion of the Supreme Court, for it says:

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 law (the reviving law) introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that the ordinance may continue to have full effect, and proceeds to make only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen."

And to the same effect, Mr. Justice M'Lean, in his dissenting opinion, thus:

"It is clear that the ordinance did not go into operation by virtue of the authority of the confederation, but by reason of its modification and adoption by Congress under the Constitution. It seems to be supposed, in the opinion of the Court, that the articles of cession placed it on a different footing from Territories subsequently acquired. I am unable to perceive the force of this distinction. That the ordinance was intended for the government of the Northwestern Territory, and was limited to such Territory, is admitted. It was extended to southern Territories, with modifications, by acts of Congress, and to some northern Territories. But the ordinance was made valid by the act of Congress, and without such act could have been of no force. It rested for its validity on the act of Congress, the same in my opinion, as the Missouri compromise line."

And thus the ordinance of the Continental Congress of 1787, became an act of the Federal Congress of 1789, and those who wish to attack it, must attack it as that act, and not as that ordinance. And now, the question is, by what authority? As an act of the old Congress, its validity had been questioned, there being nothing in the articles of confederation to justify it. As an act of the new Congress, it must find its authority independently of the one which had ceased to exist. Was it in the Constitution? The ordinance, as ordinance, was made before the Constitution, consequently not made under it. As an act of Congress, it was made after the Constitution, but not under it, for it is a clean and naked piece of abnegation and contradiction of the Constitution from beginning to end. Here there is a beginning a starting point necessary to be seen and considered at the commencement of every examination of the power of Congress to legislate for Territories; and at this point we see a Territorial form of government adopted and enforced, made before the Constitution, and contrary to its essential and fundamental principles; made in the plenitude of absolute power, and governing the Territory for its own good without reference to its will, and as a father governs and takes care of his infant children. And seeing all this, the question still recurs, by what authority? And the answer is, by the same authority in the new Congress of 1789 as in the old one of 1787, and that was the right of the owner to use what he owned, and of the sovereign to rule within his sovereignty. There was no authority in the articles of confederation to make the ordinance, yet Congress made it, and with the approbation of all the States. There was no authority in the Constitution to adopt it, yet Congress adopted it, and with the approbation of two generations. The right to hold land, and plant people upon it, was a right to take care of the land and the people; and that right became a duty in this case, by the engagement entered with the ceding States to dispose of the soil, and to build up political communities upon it. The Congress of the Confederation made the engagement, and executed it in the ordinance of 1787; the Constitution devolved the engagement upon the new Congress,* which executed it in

* All debts contracted, and all engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the Confederation.-Article 6.

the same way. One made the ordinance, the other adopted it; and the latter was the superior authority; and from the moment of the adoption, effaced the other; so that, while descriptively we may still quote the act as the ordinance of 1787, yet for legal effect and virtue, and for all the purposes of right and justice, it must be cited and considered as an act of Congress of 1789.

The character of the ordinance-its provisions and enactments become the next inquiry; for the new Congress having adopted it, and made it its own, and enforced it, its provisions became the measure of the authority which the Congress exercised. And these will be found to be of the highest sovereign order—ruling people without their consent; giving and taking away offices; granting what it pleased as favor, nothing as right; and even abolishing the rights of private property without compensation: for many were the slaves set free in the old French settlements of Indiana and Illinois without compensation-set free for a public political object, without reference to the rights, or regard to the will of the owners.* That act of Congress, of August 7th, 1789, did all this, and with universal approbation; and certainly not under the Constitution; for they contradict it at all points. Certainly not by exercising the powers of the States; for no State had ever exercised such power. Certainly not under any written authority any where; for none such can be shown. How then did it get these powers? Simply as proprietor, and as sovereign! The Federal Congress of '89 got it as the Continental Congress of '87 got it— as a right incident to ownership and jurisdiction, and as a duty under the cession acts; and the only limitation upon its power was in the cession acts-in the obligation to dispose of the soil, to populate it, and to build up future Republican States upon it. And this it did, in the wisest manner for young, distant, and miscellaneous communities, subject to be composed of the vicious and the violent, as well as the good and the gentle

* I consider the passage of this law to have been an assertion by the first Congress of the power of the United States to prohibit slavery within this part of the Territory of the United States; for it clearly shows that slavery was thereafter to be prohibited there, and it could be prohibited only by an exertion of the power of the United States, under the Constitution; no other power being capable of operating within that Territory after the Constitution took effect.-Mr. Justice Curtis.