The examiner. [volume] (Louisville, Ky.) 1847-1849, 1848-07-22

be supposed that he intended 10 provide 70
| 'helr temporary government States afte
theirerection or formation. But those who ar
familiar with the parliamentary phrase,logy 0
that day, will have no doubt that the terms State
was used as we now employ tho term terrific
| ries.
But be this so or not, il is certainly not fair /
say, as has bean said, that il shared the fate 0
the proposition to confer upon Congress tn
power to grant charters OF incorporation, TO es
tabish university, and 10 constrilct caiials, &c
These propositions were distinctly presented &
| Congress, aud formally and decidedly negatives
by direct recorded vote, and may be seen b,
referring to the proceedings Of tho Convention
on the 18th of September,
IL was not so with Mr. Madison's proposition
in respect to the unappropriated lands of tn
United States. The most that can be said Is
that the Committee was not in favor Of IL in il
original form. There was no vote on il in tina
form in convention-no rejection. The PROPOSE
lion of Mr.. Morris, which is now part Of tia
constitution, was manifeslly, from its terms a
well as the circumstances and the subject mat
ter, intended as substitutes for n. IL was adopt
ed almost without opposition. The power it i
construed 10 confer has been exercised fron
the earliest period in our history The Rtten
ton of the convention was distinctly dawn &c
the subject by Mr.. Madison; and, il is difficult
to believe that an authority SO general as that o.
making call needful rules and regulations re.
speetng the territory belonging 10 the United
states (the term regulation being used at that
time much as we now the term laws) could
have been conferred without question, IL IL had
been intended to withhold the power of prOyid-
ing for the government of the individuals in
habiting IL, until il were admitted into the
Union.
On the 18th Of July preceding, the Congress
Of the Confederation had passed the celebrated
ordinance Of lIe7, In relation TO the territory
northwest of the Ohio river. This fact could
hardly have been unknown Go the members Of
the convention. Congress- il is true, was sittin 2
in New York, while the Convention sat in Phil
adelphia. believe the proceedings Of both were
with closed doors; but the members Of the lat
ter were doubtless made acquainted with the pro-
ceedings Of the fomrer. This fact--the eoinei-
dence in point Of time-may have some slight
bearing upon the intention OF the clause giving
Congress power TO dispose of, and make need
ful rules and regulations respecting the territory
belonging 60 the L nited States
The opinion Of Mr.. Madison has been quoted
to prove the lllegality of the ordinance OF 1851.
This being conceded, II cannot, byany supposed
consequence or analogy, have any bearing on
the power Oflegislation by Congress, under the
constitution IN respect 10 the prohibition Of slav-
cry in the territories Of the United States. The
ordinance, as We know, was passed by Congress
under the Articles Of Confederation, though II
was ratified by the first Congress which assem-
bled under this constitution. Any inference
from the proceedings of the one, so far as the
question ofPower is concerned, would be Who'll
ly inaPplicable 10 the other. But / no d, and
shall endeavor TO show, that the very argument
in which Mr.. Madison denied the authority Of
Congress, under the Articles Of confederation, 10
pass the ordinance Of 1881, had for its object 10
prove the necessity VI such power in Congress
under the constitution, and that It proceeded
upon the supposed existence Of the power.
The usual reference TO prove the illegality OF
the ordinance is TO the opinion Of Mr. Madison,
in the thirty eighth number of the Federalist,
which was written by him. will re1d an
extract from IL referring to the Western terri
tory.
I'VE may calculate, therefore, that rich and
fertile country, Of an area equal to the inhabited
extent Of the Western States, will soon become
a national stock. They have begun TO render il
productive. Congress have undertaken 10 do
more; they have proceeded 10 form new States;
to erect temporary governments; TO appoint Of
ficers for them; ana to prescribe the condition
on which such States shall be admitted into the
All this has been done, and
done without the least color Of constitutional au-
thority.''
What was the object Of this referencel Was
il to pass a useless comment upon the conduct
Of Congress in exceeding its pOwersl BY no
means. lie adds:
81 mean not, by anything here said, to throw
censure on the measures pursued by Congress.
am sensible they could not have done other
wise. The public interest, the necessity Of the
ease, imposed upon them the task Of Ov erlssp ing
their constitutional limits. But ia not the fact
an alarming proof Of the danger resulting from
4 government which does not possess regular
powers commensurate TO its Objects
The whole article taken together, and not
judged by q single extract appears TO ME TO lead
almost irresistably to the conclusion that Mr..
Madison regarded the new system Of govern
ment, the Constitution, as supplying defects
which had led to abuse and usarpation un-
der the old, the Confederation; that be consider
ed the former remedying the very defects
which had imposed on Congress the necessity
Of overlapping the constitutional limits of their
power; that he viewed the provision OF the
anthorising Congress "to dispose
Of, and make all needfui rules and regulations
the territory Of the United States,
as comforting the power which, in his opinion,
Congress had usurped, and giving legality,
under the Constitution, to proceedings which he
condemned, under the Confederation ms vcij OF
authority.
Happily, sir, we are notleft to mere inference
In respect 10 the opinions Of Mr. Madison on
this point. IL we turn to the 43d number Of the
Federalist, also written by him, we shall find
direct reference TO the clause in the constitu-
ton concerning the territory OF the United
States. RI there were any doubt before, think
this would dissipate IL. He is speaking Of GER
tain powers conferred on Congress by the con-
stitution. He says: "The eventual establish
nent of new States seems to have been over
looked by the compilers Of that instrument,
Articles Of Confederation. We have seen the
of this omission, and the assump
ton of power into which Congress was led BY
il. With great propriety, therefore, has the new
system supplied the defect
He next quotes the clause giving Congress
"power 70 dispose Of, and make all needful rules
and regulations respecting, the territory" Of the
United States; and adds, "this is a power Of
very great importance, and required by censid-
erations similar to those which show the propri-
ETY. Of the former" BY the former, is meant
the power of admitting new States intoI the
Unions power which he had advertsd to as sup
plying defect in the Articles Of Confederation,
and as avoiding tho evil Of usurping the exer-
else of an Indispensable authority. Would he
have oenominated IL ga power Of very great i'm
portance," II he had regarded Il as limited to q
mere sale of the public lsndsl Would he have
said that I: was "required by considerations sim
liar to those which show the proPriety OF the
admission of new States-unless
he had considered it as having "supPlied de-
fect3" As in the other case 10 which he had
referred, it empowered Congress to do what II
had done in respect TO the Northwestern ter
ritory without authority There were other
territories besides that North west Of the Ohio
TO be provided for. South Carolina had at that