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• XXI.
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• XXIV.

XIV.

We repeat that the United States has no political jurisdiction at all, outside of the United States. By this we mean that it has no political jurisdiction over people inhabiting the new countries west of the United States, which the United States has hitherto assumed to govern, under the name of “Territories.” And we feel bound to make this assertion good.

Where does the constitution grant congress any power to govern any other people than those of the United States? Even the war-making power would not authorize us to hold a conquered people in subjection indefinitely, but only so long as they should remain enemies, or refuse to do justice. The treaty-making power is no power to make treaties adverse to the natural rights of mankind. It, therefore, includes no power to buy and sell mankind, with the territories on which they live. It no more implies a power, on our part, to purchase foreign people, and govern them as subjects, than it implies a power to sell a part of our own people to another nation, to be governed as subjects.

The only other power which can be claimed as authorizing such a government, is granted in the following words:

“The congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory [land] or other property, belonging to the United States.”

Here is no grant of general political power over people, either within or without the United States; but only a power to control and dispose of, as property, the land—for “territory” is but land—and other property, belonging to the United States.

To make this idea more evident, let us divide the provision into two parts, and read them separately as follows:

1. “The congress shall have power to dispose of the territory [land] or other property, belonging to the United States.”

Here plainly is no grant of political power over people.

2. “The congress shall have power to make all needful rules and regulations respecting the territory [land] or other property belonging to the United States.”

Here is plainly no more grant of political power in connection with the land, than in connection with any “other property” belonging to the United States.

The power to “make all needful rules and regulations respecting land or other property belonging to the United States,” is no grant of general political power over people.

The power granted is only such a degree of power over land and other property belonging to the United States, as may be necessary to secure such land and other property to the uses of the United States.

That this power is not one to establish any organized government over people, is proved by the fact that the power is certainly as ample in regard to “territory and other property,” within any of the United States, as to territory and other property, outside of the United States. If, therefore, the power included a power to set up an organized government or territory outside of the United States, it would equally include a power to set up an organized government within each State, to the exclusion of the State authority, wherever the United States had “territory or other property” within a State. But nobody ever dreamed that the power authorized any such political monstrosity as this.

There is nothing in the language of the constitution, that implies that the land or other property spoken of, is outside of the United States. And as ours is distinctly a government of the United States, and not of other countries, the legal presumption is that the land and other property—more especially the land—belonging to the United States, is to be found within the United States, and not in other countries.

The United States have no rightful ownership of the unoccupied lands west of the United States. It is against the law of nature, and therefore impossible, that they should have any such ownership. Land is a part of the natural wealth of the world, created for the sustenance of mankind, and offered by the Creator as a free gift to those, and those only, who take actual possession of it. And actual possession means either actually living upon it, or improving it, by cutting down the trees, breaking up the soil, throwing a fence around it, or bestowing other useful labor upon it. Nothing short of this actual possession can give any one a rightful ownership of wilderness lands, or justify him in withholding it from those who wish to occupy it. Governments, which are but associations of individuals, can no more acquire any rightful ownership in wild lands, without this actual possession, than single individuals can do so. Until such lands are wanted for actual use, they must remain free and open for anybody and everybody, who chooses, to take possession of, and occupy them. Governments have no more right to assume the ownership of these lands, and demand a price for them, than they have to assume the ownership of the atmosphere, or the sunshine, and demand a price for them. They have no more right to claim the ownership of such lands, than of the birds and quadrupeds that inhabit them; or than they have to claim property in the ocean, and to demand a price of all who either sail upon it, or take fish out of it.

It is no answer to say that our government bought these lands of France or Mexico, for neither France nor Mexico had any rightful property in them, and could, therefore, convey no rightful title to them. Even in lands purchased of the Indians, the United States acquire no rightful property, except only in such as the latter actually cultivated, or occupied as habitations. Those which they merely roamed over in search of game, they had no exclusive property in, and could accordingly convey none.

The United States, therefore, have no rightful property in wild lands, even within the United States. Still less, if possible, have they any such property in wild lands outside of the United States.

There is nothing in the constitution that implies that the United States have any property in wild lands, either within or without the United States. “The territory [land] or other property belonging to the United States,” spoken of in the constitution, must be presumed to be such land and other property as the United States can rightfully own; and not such as they may simply assume to own, in violation of the law of nature, and the natural rights of mankind.

There is just as much authority given to congress, by the constitution, to assume the ownership of the atmosphere, both within and without the United States, and “to dispose of, and make all needful rules and regulations respecting” it, as there is for their assuming such a power over wild lands, either within or without the United States.

This power granted to congress must be construed consistently, and only consistently, with the law of nature, if that be possible, and with the general purposes of the government. It must, therefore, if possible, be construed as applying to occupied, instead of wild lands, and to those lying within, rather than to those lying beyond, the geographical limits of the United States. And this is possible. “The power to dispose of, and make all needful rules and regulations respecting the territory [land] and other property belonging to the United States,” and lying and being within the United States, is a power constantly needed in carrying on the daily operations of the government. It is needed in regard to every post-office, court-house, custom-house, or other real or personal property, whether absolutely owned, or temporarily occupied, by the United States. The power applies as well to lands and buildings temporarily leased, as to those absolutely owned; because a lease is a partial ownership.

The constitution specially provides that “over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings, congress shall have power to exercise exclusive legislation.” But inasmuch as the States might not give their consent—and could not even be expected to give their consent—to this “exclusive legislation” over all the “places” which the United States might purchase (or lease) for post-offices, court-houses, and “other needful buildings,” it was necessary that congress, instead of a “power to exercise exclusive legislation” over such “places,” should have power—without excluding the general jurisdiction of the States—“to make all needful rules and regulations respecting the territory [land, “places”] or other property” thus owned or occupied by the United States, in order to secure them to the uses, for which the United States designed them. Without such a power, the United States eould not establish even a post-office, without first getting the consent of the legislature of the State in which it was to be established.

We have, therefore, no need—in order to find “territory” [land, “places”] for this power to apply to—to assume that the United States, in violation of the law of nature, are the owners of wild lands, either within or without the United States. Still less have we need to assume that our government has power to exercise absolute political authority over peoples outside of the United States, in violation of the natural right of all men to govern themselves.

Peoples living outside of the United States, are, to us, foreign nations, to all intents and purposes. And it is of no importance whether those peoples are many or few; whether those countries are thinly or densely populated; whether the countries are contiguous to, or distant from the United States. In either case they are alike independent of us. Whether they are well, or ill governed, or have no government at all, is, politically speaking, no concern of ours.

Peoples settling on the lands west of the United States, are therefore, so far as we are concerned, independent nations, over whom we have no more political jurisdiction, than over the people of Canada, or England, or France, or Japan. Whether they have any organized governments at all, is no affair of ours, any more than whether the Indian tribes have, or have not, organized governments.

The fact that any of these peoples were once citizens of the United States, does not affect the question. We acknowledge and maintain the natural right of all men to renounce their country. And when our people leave their country, by making their permanent homes beyond its limits, they do renounce it. And if they ever wish to come into the Union, they must be admitted as States, the same as any other nation, that should wish to come into the Union, would have to do.

For these reasons we have, constitutionally, no political jurisdiction whatever over those countries west of the United States, which we are in the habit of governing under the name of “Territories.”*

[* ] This question of the power of congress to govern countries outside of the United States, has been twice before the supreme court of the United States. In both cases, although the court declared that “the possession of the power was unquestioned,” their efforts to show in what part of the constitution the power was to be found, seemed to be very unsatisfactory, even to themselves.

In the first case, the court said:—

“In the meantime, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution, which empowers congress ‘to make all needful rules and regulations respecting the territory, or other property of the United States.’

“Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts, that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern, may be the inevitable consequence of the right to acquire, territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.” (Am. Ins. Co. vs. Canter; I. Peters, 542.)

Here three possible sources of the power are suggested; but which one of the three is the true source, the court seem wholly unable to decide. It would seem to have been much more in keeping with judicial propriety and integrity, to have definitely determined the source of the power, before declaring that “whichever may be the source whence the power is derived, the possession of it is unquestioned.” How the court can say that “the possession of a power is unquestioned,” so long as they are unable to determine in what part of the constitution the power is to be found, is, to say the least of it, very mysterious. Nothing, evidently, short of that infallible discernment, which supreme courts assume to possess, could authorize them to affirm thus positively the existence of a power, the source of which they could not discover.

We assume that it has already been shown that the first of these suggestions, viz., that the power to govern territory, outside of the United States, is included in “the power to dispose of, and make all needful rules and regulations respecting the territory, or other property belonging to the United States,” is wholly unfounded.

The second suggestion, viz., that the power “may result necessarily from the facts that the territory is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States,” assumes the whole point in dispute, which is—whether territory and people, outside of the United States, are “within the power and jurisdiction of the United States.”

The third suggestion, viz., that “the right to govern, may be the inevitable consequence of the right to acquire, territory,” again assumes the whole point in dispute, which is—whether the United States have the right to acquire—that is, to purchase—territory and peoples outside of the United States.

It is plainly against the law of nature, and therefore impossible, for governments to acquire any rightful ownership of wilderness lands, and withhold them from, or demand a price for them of, those persons, who wish to take actual possession of them, and cultivate them. As it is impossible for any nation to have any rightful property in wild lands, it is impossible for one nation to convey any such ownership to another. It is, therefore, impossible that the United States can “acquire”—that is, purchase—any such ownership.

It is also against nature, and therefore impossible, that any government should own its people, as property, and have the right to dispose of them, as property. It is, therefore, impossible that the United States can “acquire,” by treaty, any ownership of people outside of the United States, or consequently any right to govern them.

In the case of Dred Scott, the same question came again before the court. And the court (19 Howard, 443) cited and adopted the opinion previously given, viz., that “whichever may be the source whence the power is derived, the possession of it is unquestioned.” But they offered no new argument in its support, except the intimation (p. 447) that the power to admit new States into the Union might “authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation entitle it to admission.”

But there would be just as much reason in saying that, because A has the right to admit B as a partner in business, therefore he has a right to buy him, and hold him as a slave, until he is fit to be admitted as a partner.

The court confess (p. 446) that—

“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 own territorial limits in any way, except by the admission of new States. . . . No power is given to acquire a territory to be held and governed permanently in that character.”

But they say (p. 447) that—

“It [the territory] 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. It is a question for the political department of the government, and not for the judicial; and whatever the political department of the government shall recognize as within the limits of the United States, the judicial department is also bound to recognize, and to administer in it the laws of the United States,” &c. &c.

This pretence of the court, that although the United States have no power to buy territory, and govern it as a colony for ever, they nevertheless have a right to buy it and govern it as a colony, until congress, in the exercise of its discretion, shall see fit to admit it as a State, is an entire fabrication and fraud. There is nothing whatever, in the constitution, that requires congress ever to admit a territory as a State. And if congress have authority to buy territory, and govern it as a colony at all, they have a right to hold it, and govern it as a colony for ever.

The truth is, that all our constitutional law on this subject—that is to say, all the constitutional law that has been practically acted upon by congress—instead of being found in our own constitution, is found only where nearly all the rest of our constitutional law is found, viz., in the tyrannical practices of other governments; and especially in the tyrannical practices of the English Government. Because other governments usurp the ownership of wild lands, and demand a price for them, our government does the same. Because other governments have colonies, and govern them against their will, our government usurps authority to do the same. And because other nations claim to own their colonies as property, and assume to sell them as such, our government claims the right to buy any that may be in the market. When, in truth, it has no more right to buy the people of other nations, than to sell those of our own.