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Territorial Governments. – Ordinance of 1787

On motion of Mr. Poindexter, the House resolved itself into a Committee of the Whole, on the bill concerning Territorial Governments.

The bill having been read —

Mr. Bibb said, that if the House were now called upon for the first time to pass an ordinance for the government of the Territories of the United States, he should attach very little importance to the decision of the present question. But he considered it not now an abstract question of expediency, but as one of great moment, from the circumstances with which it was connected. He denied the right of the House to pass the bill; and if they had not the right, it was surely unnecessary to argue the question on the ground of policy. It would be recollected that the Mississippi Territory was formerly the property of the State of Georgia, and ceded by that State to the United States on certain conditions, one of which was that the ordinance for the government of the Territory Northwest of the Ohio should be the basis of the government of the Mississippi Territory.2 If this, said he, be one of the conditions of a compact between the United States and Georgia, surely the United States have no right to infringe it without the consent of Georgia; and I, as one of her Representatives, formally protest against the passage of this bill. It may be said that Georgia is very little interested in the abstract question, whether the Governor should or should not have the power of prorogation; but, if a right exists to alter one part of the ordinance without the consent of Georgia, it certainly implies a power to alter it in every part.

Mr. Poindexter said he would state the reasons for which he had introduced the bill, and which would, he hoped, insure it the sanction of the committee. I will, in the first place, said Mr. P., advert to that part of the ordinance which is proposed to be amended by the bill under consideration. In the ordinance for the government of the Northwestern Territory will be found this article: "The Governor shall have power to prorogue and dissolve the General Assembly, when, in his opinion, it shall be expedient." The bill proposes to take away this power, as being arbitrary and oppressive in the extreme, and incompatible with the Constitution of the United States. This ordinance was passed previous to the adoption of the Federal Constitution, and if it had been the subject of consideration subsequent to its adoption, this provision had never been inserted, giving to Governors of Territories a power paramount to any power possessed by the President of the United States. Take away this power and a Governor will still have left the power of negativing all acts, so that none can pass without his assent; and, being the agent of the General Government, he would give consent to no law incompatible with the interests of the United States.

It has been said that the ordinance cannot be altered without the common consent of the parties to it, and that the State of Georgia must be called upon to give its assent before the Congress can alter it. There are two parts of this ordinance; the first contains the form of government, and the second several articles of compact which are declared unalterable but with common consent. After reciting the form of government, the ordinance says:

"The following articles shall be considered as articles of compact between the original States and the people of the States in the said Territory, and forever remain unalterable, unless by common consent, to wit."

[Here follow six articles.] The ordinance declares that which follows the declaration to be unalterable, but by common consent; it follows of consequence that that which precedes the declaration is alterable. Independent of this reasoning, which cannot be refuted, at every session since we have been a Territory, there have been laws passed altering the ordinance in some shape or other. For example, the ordinance requires two judges to hold a court; and, in a variety of instances, Congress has legislated with respect to the form of government of the Territory. I had supposed that the articles of agreement between the United States and Georgia had become obsolete, with respect to the imagined necessity of the consent of Georgia to legislation on the subject of the Territory. It was urged at the last session with all the eloquence which the gentlemen from Georgia are in so great a degree possessed, and disregarded; for it was decided by both Houses that the United States had a right to rule the Territory without the consent of Georgia.

The Constitution of the United States says that 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." Can an agreement arising from the exercise of this power, supersede the right of exercising the power expressly delegated by the constitution itself? Certainly not.

On the ground of policy I presume that there is no gentleman who will contend that the power of which I wish to deprive the Governors, ought to be retained. The gentleman from Georgia himself says, that if he were about to frame an original ordinance, he would not think of such a power. As the opinion of Judge Tucker has been referred to on one subject, I will refer to it on the subject of prerogative. Let it be recollected, that the power to prorogue and dissolve is one of the highest prerogatives of the King of England: that it crept into the governments of his colonies, and thence into this ordinance, previous to the adoption of the constitution. It now remains for the United States to say, whether they will copy after Great Britain, and because it is a high prerogative, give the Governors of the Territories of the United States the same powers as she gives to her Territorial Governors. I trust it will be expunged.

"The title 'prerogative,' it is presumed, was annihilated in America with the Kingly Government." "This definition (of prerogative) is enough to make a citizen of the United States shudder at the recollection that he was born under a government in which such doctrines were received as catholic," &c.

This is the opinion of Judge Tucker. Is not this sufficient to induce us to take away from Governors this prerogative? Is not this feature modelled after the feature in the Government of England? Certainly; and that it is transferred from her Colonial Government, I can show by the present ordinance for the government of Canada, [to which Mr. P. referred.] It is the same principle, and we have copied it.

I will not object to retain this power, if any gentleman can show any advantage to be gained by it. I will suppose an extreme case; that any of the Territories designed to commit treason, and the Legislature were to pass an act giving it their sanction; (and they have shown less treasonable disposition than some of the elder States, if we may judge from occurrences of a few years past) – could not the Governor put his negative on this law? There could be no such law without his consent. It is therefore entirely unnecessary, in any possible case, to give the Governor the arbitrary power of dissolving the Legislature.

There is a special reason which has operated upon my mind as forcibly as the general reason in favor of the bill on the table. In the Territory which I have the honor to represent, we have been nearly twelve months without any Legislature. The Governor thought proper to dissolve the Assembly without any reason given, for the ordinance does not bind him to assign reasons for his acts. Within a few days, a new Council has been chosen, which may again be dissolved as soon as it meets, and the Territory again left without a Legislature, and no reason assigned for the procedure. Is it possible that this Government will sanction such arbitrary practices? If it does, it will be the first case since the Revolution in which such a procedure has been sanctioned. I beg leave to refer gentlemen to the glorious year 1776. I beg them to revert to that instrument, in which all the sins of our political father, George III., were delineated, and they will find that one of the charges against him was that he permitted his Governors to dissolve the Legislatures from time to time. Are we prepared to ingraft these arbitrary principles into our constitution, and cherish them when practised in so arbitrary a manner? Instead of this ordinance being passed with deliberation, it must have passed originally sub silentio, and been adopted for all the new Territories without any discussion at all; for, if the principle had been investigated, it would never have been enacted into a law. In the Declaration of Independence it is stated that "he (George III.) has dissolved Representative Houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people." Here we see that, at that day, we complained of the arbitrary exercise of power, and I hope that, at this day, we shall give it a death-blow. If any gentleman wishes to retain it, let him show a single possible case in which it can properly be exercised – never, but to gratify the ambition or caprice of an individual. The people elect Representatives and send them to legislate; if they do not please the Governor, he can say, "gentlemen, go to your homes – I dissolve you." Can there be any necessity for this? But I will not detain the House longer, except to express a hope that the committee will not rise, unless it be to report the bill.

Mr. Troup said he would state, in as few words as he could, his objections to the passage of the bill. It was only the day before yesterday that this bill had been introduced into the House, proposing to alter one part of the ordinance. To-day, a petition came from another territory to alter another part of it. Before they adjourned, it was ten thousand to one that not a remnant of the ordinance would be left, with their good will.

I have before stated it as my opinion, said he, that the articles of the ordinance are a compact between the people of the States and of the territories, unalterable but with the consent of both parties. With the permission of the House, I will read the opinion of Judge Tucker on this subject:

"Congress, under the former confederation, passed an ordinance July 13, 1787, for the government of the territory of the United States northwest of the Ohio, which contained, among other things, six articles, which were to be considered as articles of compact between the original States and the people and States of said territory, and to remain unalterable, except by common consent. These articles appear to have been confirmed by the sixth article of the constitution, which declares, that all debts contracted and engagements entered into, before the adoption of the constitution, shall be as valid against the United States under the constitution as under the Confederation."

In this case there are not only two but three parties to the articles – the United States, the State of Georgia, and the people of the Territories. You will recollect, as my colleague properly stated to you, that the right of soil and jurisdiction of this territory was originally in the people of Georgia. Of course Georgia had power to prescribe for the territory what form of government she pleased, provided it was republican. By the articles of cession, the right of soil and jurisdiction was ceded to the people of the United States, on the express condition that the articles of the ordinance should form the government of the Mississippi Territory, and that they should not be governed otherwise. The inference inevitably is, that the State of Georgia would not have ceded but upon the express condition; and this inference is the more inevitable, inasmuch as, in this clause, Georgia has made an express exception to a particular article in the ordinance;3 from which, I say that Georgia intended that no other alteration should be made.

What was the policy of the ordinance, and what the object of its framers? Why, assuredly, to render the governments of the Territories dependent on the Government of the United States. And how was it to be effected? By making the Territorial Legislature in a great degree dependent on the Governor, and him absolutely dependent on the Federal Executive. The moment we make the Legislature of a Territory independent of its Executive, we make it independent of the Federal Government.

And again, as my colleague has correctly told you, if you have a right to repeal one part of the ordinance, you have a right to repeal another part, and so overturn the whole system at a blow. If so, what will be the effect on the articles of cession and agreement between you and Georgia? I will tell you. By the articles of cession you reserve to yourself the right of disposing of the territory; you also agree to pay Georgia one million two hundred and fifty thousand dollars out of the product of the first sales of the land. Suppose you transferred to the independent Legislature of the Mississippi Territory the right to dispose of this Territory, what security has Georgia for the payment of her one million two hundred and fifty thousand dollars? Moreover, I feel every disposition to treat with respect the people of the Mississippi Territory, and particularly as I perceive that they approve of that course of our Government, in which I most heartily concur; yet I must say that a large majority of the people have a landed interest distinct from that of the Government of the United States. Take away from the Governor his power to prorogue and dissolve, leave him the veto, and there will soon be collision. The Legislature passes an act; the Governor puts his veto on it. The Legislature stands out, and the Governor will not yield, and eventually you may, perhaps, have to decide the question of territorial property by the sword. Recollect, that upward of six thousand people have gone over in the present year, with every apparent intention to force a settlement against your interest and that of Georgia. I am very glad that the military have received orders to disperse them. I trust that they will be dispersed, and that every man who stands forth in resistance will be put to the sword.

But the gentleman from Mississippi Territory is certainly mistaken as to one point. He seems to consider the Constitution of the United States as giving to the people of the Territories the same rights as the people of the States. It is a mistaken idea, neither warranted by the letter or spirit of the constitution. For although the constitution has declared that the people of one State are entitled to all the rights and privileges of another, yet it has not declared that the people of the Territories have the same rights as the people of the States. In another part of the constitution it is, indeed, expressly declared that Congress shall make all laws for the disposal of the Territories; but there is a salvo, that all acts done and contracts made previous to the adoption of the constitution, shall be as binding as if done afterward. The articles of the ordinance were enacted previously, and are consequently binding under the constitution. It cannot be controverted, that they were wisely adopted, and have been salutary in their operation. They were framed by the Congress of '87, composed of men whose integrity was incorruptible, and judgment almost infallible. These articles, from that time to this, have remained unaltered, and carried the Territories through difficulties, almost insuperable, to prosperity. And now, for the first or second time, an alteration is proposed, the consequence of which cannot be foreseen, without any evidence that it is either necessary or expedient.

The population of every new country must necessarily be composed of a heterogeneous mixture of various tempers, characters, and interests. In a population thus composed, it would be highly ridiculous to expect that love of order and obedience to law would always predominate. Therefore the old Congress wisely reserved to itself the right to control them; to give the Governor power, when a Legislature became disorderly, to dissolve them; and for the exercise of this power he is accountable to the General Government.

The gentleman from Mississippi wishes us not to treat the Territories as children, whose wild extravagances may require correcting by the indulgent hand of their parents, but as the equals of the States, without any other reason than that which he states to be the situation of the people of his Territory. They will next wish us to admit them into the Union before their population will authorize it; tell us that that Territory does not grow fast enough, and we must demolish the system for their convenience.

Mr. T. adverted to the representation made by Mr. Poindexter, of the state of things now existing in the Mississippi Territory. If such were the situation of the Territory, and Mr. T. said he sincerely regretted it, he could put the gentleman in a way of settling the dispute in a regular and constitutional way, and which would be the most prudent and advisable. Certainly, in this dispute, one of the parties must be right and the other wrong. They had nothing to do but prefer their complaints before the proper authority, and, if they were there substantiated, they would obtain redress of their wrongs. If, on the contrary, the people were wrong and the Governor right, the wisdom of this part of the ordinance would be proved beyond question.

Mr. Poindexter observed that the gentleman from Georgia had set out with telling the House that if the Legislature were made independent of the Governor, they could pass any law they pleased respecting land titles. The gentleman could not have looked at the ordinance, for there was an express provision that the Legislature should "never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil," &c. Independent of this, it is control sufficient if the Governor have a veto on the laws. The gentleman has told you, said Mr. P., that these articles are unalterable but with common consent. When up before, I read that part which is unalterable. It is the articles of ordinance and not the form of government; and to this Judge Tucker refers when he speaks of it. The gentleman has said, that the situation of the people would not be bettered by taking away the power, if the veto were left. In my opinion it would be ameliorated. Let the Governor retain his veto, but let them remain in session, and pass laws, that the General Government may see whether such laws are worthy of rejection or of approbation. Now, if the Governor discovers them about to pass a law or do an act he does not like, he sends them home. Lop off a little of this Executive power, and let the Legislature pass laws which he may negative, and the General Government will have an opportunity of seeing that the Governor will not consent to proper laws. Trust your Executive and distrust the people, and you sap the foundation of the Government. Whatever leads to the conclusion that the people are always wrong and the Executive right, strikes at the root of republican institutions.

The gentleman has spoken of the wildness and extravagance of the people of the Mississippi Territory. Does he recollect the invasion of the Spaniards two years ago? That, at a few days' notice, at the requisition of the Commander-in-chief, a detachment of two hundred and fifty militia were sixty miles on their march? When an arch traitor from the East designed to sever the Union, the people of the Territory, without call, assembled near the city of Natchez, and arrested the traitor. These proceedings cannot be exceeded even by the spirit or prudence of the State of Georgia. I hope the indignation of this House will be displayed at these insinuations against the motives of people who have manifested the greatest patriotism. In respect to the late measures of the General Government, no people feel them more severely than the people of Mississippi, and no people better support them. There may be symptoms of wildness and extravagance, but they show a submission to the laws and measures of the Union.

The gentleman talks of tender parents. If he considers the State of Georgia as one of our tender parents, I protest against it. Although she be one of our parents, there has been no proposition ever made on this floor, for the good of the Territory, which has not met the opposition of that State. But these are subjects on which I will not dwell.

The gentleman has stated that a number of people have gone over to the Mississippi Territory to settle lands, against the express provisions of the law. That, under the pretext of a purchase from an Indian, named Double Head, people have gone over to settle lands, is true; but from where? From Georgia. They are citizens of Georgia; people nurtured by this tender parent into a state of manhood, and unwilling to participate longer in the tender cares of the State of Georgia. They have been, very properly, ordered to be driven off by military force, because they have infringed a law of the United States. But these things do not touch the present question. I now propose to take away a power which has been, by mistake, incorporated into the constitution of a free people.

Mr. Bib said that the State of Georgia had never undertaken to legislate for the Mississippi Territory; but there was a compact existing between the United States and Georgia, and he called upon the United States to adhere to it. They dared not violate it, except they could violate the most solemn compact – the constitution.

Mr. Troup observed that it had been said this power of the Governor was a badge of slavery copied from the British Constitution. That in many things they had been copied too far, he agreed; but as to this prerogative, it was no such badge of slavery, and was found not only in the articles of the ordinance, but in the constitutions of various States, qualified in a greater or less degree. Mr. T. quoted the constitutions of New York and Massachusetts, both which States had been considered republican. Massachusetts, to be sure, was a little wavering now, but he hoped she had not quite gone over to the enemy yet. These constitutions gave a qualified prerogative to the Governor of the State.

The committee now rose – 58 to 36.

Mr. Troup moved that the further consideration of the bill be postponed indefinitely – [equivalent to rejection.]

Mr. Poindexter calling for the yeas and nays on the motion, it was decided – yeas 57, nays 52, as follows:

Yeas. – Lemuel J. Alston, Willis Alston, jun., Ezekiel Bacon, David Bard, William W. Bibb, William Blackledge, John Blake, junior, Adam Boyd, Robert Brown, Joseph Calhoun, John Campbell, Martin Chittenden, Samuel W. Dana, John Davenport, jun., William Ely, William Findlay, Francis Gardner, Charles Goldsborough, Edwin Gray, John Heister, William Hoge, Richard S. Jackson, Robert Jenkins, Walter Jones, James Kelly, William Kirkpatrick, John Lambert, Joseph Lewis, jun., Robert Marion, William McCreery, William Milnor, Nicholas R. Moore, Jonathan O. Mosely, Gurdon S. Mumford, Wilson C. Nicholas, Timothy Pitkin, junior, John Porter, Josiah Quincy, John Randolph, Matthias Richards, Samuel Riker, John Russell, Dennis Smelt, Henry Southard, William Stedman, Lewis B. Sturges, Peter Swart, Samuel Taggart, Benjamin Tallmadge, John Taylor, George M. Troup, Jabez Upham, James I. Van Allen, Daniel C. Verplanck, Robert Whitehill, David R. Williams, and Nathan Wilson.

Nays. – Joseph Barker, Burwell Bassett, William A. Burwell, William Butler, Matthew Clay, John Clopton, John Culpeper, John Dawson, Josiah Deane, Joseph Desha, Daniel M. Durell, James Elliot, John W. Eppes, James Fisk, Meshack Franklin, Thomas Gholson, jun., Peterson Goodwyn, Isaiah L. Green, John Harris, William Helms, James Holland, David Holmes, Benjamin Howard, Daniel Isley, Richard M. Johnson, Nathaniel Macon, Daniel Montgomery, junior, John Montgomery, Jeremiah Morrow, John Morrow, Roger Nelson, Thomas Newbold, Thomas Newton, John Pugh, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Benjamin Say, Ebenezer Seaver, Samuel Shaw, James Sloan, John Smilie, Jedediah K. Smith, John Smith, Samuel Smith, Richard Stanford, Clement Storer, John Thompson, Archibald Van Home, Jesse Wharton, Isaac Wilbour, and Alexander Wilson.

So the bill was postponed indefinitely.