The New era. [volume] ([Portsmouth, Va.]) 1845-1847, 1847-03-11

tho territorial governments possessed is derived,
not from tho Legislation Of Congress, but the
adoption and the acquiescence by the people Of
the territories in it. We have performed the part
of another Locke, and proposed constitutions in
which the people Of the territories have acquiesc
ed but they have derived their sanction from the
last proceeding, and not the first. BE this. how
ever, as 1t may, say the power Of legislation is
a very different thing. Legislation is action il.
seli-conslituiions contain the forms Of action
And SD far from the practice Of the governmen,
having sanctioned the power of Legislation over
the territories. now sought 10 be exerted. in the
purer and better days Of the republic, it was
directly the other way.
| The clause Of the constitution from which The
power in Congress to legisa,e for the territories
is most usually derived, by Those who contend Tor
IT., is the 81 clause of the Sd section of the 4th
article, which is in these words:
The Congress shall have power To dispose of
and make all needful rules and regulations res
peciing the territory or other property belonging
to the United States
| Now, il is perfectly evident, from the language
itself, that the authority given is over the terri
tory as property. The term territory is here
used in very common sense, as synony nous
with land and il is concerning this, when il he
| longs Ia the United States, about which Congress
may make all needful rules and regulations
And IL may, without doubt, under the authority
given, pass such laws concerning the public lands
situate in the territories as TO il may seem need
ful. But surely this clause confers no power up
on Congress to make rules and regulations con
corning persons in the territories, OF their private
property. II is only concerning the territory OF
other property belonging to the u. s. that we
can make rules and regulations.
| When the convention which framed the con
stiin,on designed TO confer power of legislation
Il used appropriate language 10 convey its mean
ing and language very different from that of the
cause under consideration And here permit me
10 remark, before | refer to the clause in which
this is done. that the constitution is as remarkable
Tor It's literary execution, as for the great polti.
cal wisdom embodied in it. There are no use.
less expressions; there is no ,autology there is
M looseness of expression. The precise term ap.
propriate to convey the idea designed to be convey
ed. is always used. Thuse who have studied the
debates of the convention, must have been struck
with the care and minuteness with which the
exact meaning of every word and term used was
criticised. There is no instance where, when diff
ferent phraseology is used, it is not designed tc
convey different meanings. When the conven
ton designed 10 confer upon Congress the power
of legislation, they did not use ambiguous and
doubtful expressions, but such are precisely ap.
pIopriate to express the idea This is done in the
section in which the authority is conferred upon
Congress. TO exercise exclusive Legislation in
all cases whatever over such district (not exceed
ing len miles square) as may by cession of partcu
lar States. and the acceptance Of Congress, become
the seat ofgovernment Of the United States, and
to exercise like authority all places purchased
by the consent of the legislature Of the State in
which the same shall be for the erection of fort:
magazines, arsenals, dock yards, and other need
fol buildings Here words used appropriate
In confer tie power of Legislation and you re no
permitted 10 suppose that the convention designed
To confer the same power in another clause, wher
they use different language. not at all Appropriate
Indeed, in this clause, the power of Legislation
over distinct places is conferred and il there wa.
any other over which it was designed TO be con
ferred, here was the proper place to have done it
and doubtless the place where i! would have beer
done. For the convention evinced, as was yer,
natural, purpose of grouping all similar powers
together.
1t appears to me very clear that the second
clause of the Sd section of the 4th article confeI
upon Cong ress no power of legislation for tht
Territories now held, or hereafter To be acquired
except such as may concern the Territories a.
property. 1t is not pretended TO be derived from
any other clause. Those whp talk about its being
an inherent power do M, derive it from The con
s'ilutiOn, but some other source than the consttu
'Ian; whence, | am sure do not know, as
never heard ill lately that this government pus
sessed any powers not granted to it in the con
stitnion either expressly or by implication.
The practice Of the government has not. a
seems 10 be taken for granted in this debate. heel
Inconsistent with these views, as / will proceed Il
show; and must here beg the Indulgence of tn
committee for some minuteness of detail.
First. of the ordinance of 1857, about which
we have heard so much. In the first place, d
rot hesitate to say that that ordinance originates
in palpabe usurpaiion of power by the Congress
of 1877. The articles Of confederation conferred
upon Congress no such power. Indeed they con
ferred scarcely any legislative power. The pow
erS conferred were mainly executive, and relate
10 our foreign relations. The Congress, unde
the confederation, rather many heade,
executive than legislative body. The Congress
itself seemed TO concede, at one time, that the
could not adopt the ordinance, as egislativ
act; and hence they attempted TO give il va
lid'ly under the gnise of " a compact But ad
NIT it TO be such, and you do not avoid the diff
Guilty, but rather increase it ; for the ordinanc
was adopted by bare majority and did not re
ceve the vote OF a sufficient number of States 1
give it validity as compact And, at one time
this was The view of the Congress itself. In April
1884, the ordinance was first proposed and
had seven States in its favor, three against. an
one (North Carolina) divided. Yet it was dec
ded TO be rejected. Thus showing that the Con
gress thought the affirmative vote Of nine States
the number the articles Of confederation require
to adopt treaties, was necessary 10 It's adoption
But the Congress finding that the vote of min
States could not be had for il, and notwithstandin
the decision in 1884 that smaller number woul
not be sufficient, in 1857 they declared it adopte
by bare majority. BIT something more wa
necessary to give it validity compact, whic
IS wanting in this case To create compact
there must be parties able aud willing to contract
and VINO in fact do contract. Now, who in thi
case were the parties2 The ordinance declare
the parties to be " the original States and the PEG
pie and States in the said territory" Now, sit
choose on this print TO rest upon The fact ralhe
than the law. Which Of the original States eve
assencd to this compact Not one II is true
Virginia asked to consent to a change wbic