The daily union. [volume] (Washington [D.C.]) 1845-1857, 1848-09-17


States Uhe term regulations being used at that time much
AS we now the term aws) could have been conferred
without question, if it had been intended TO withhold the
power OF providing for the government OF the individuals
lnhabitlng 1t, until they were admitted into the Union
On the 18th OF July preceding the Congress OF the con-
federation had passed the celebrated ordinance of 1887
relation TO the territory northwest of the Ohio river This
fact could hardly have been unknown to the members OF
the convention Congress, it is true sitting in New
York, while the convention sat in Philadelphia. be.
eve the proceedings of both with closed doors but
the members of the latter doubtless made acquainted
with the proceedings of the other This factthe coin
cdence in point OF me-may have some slight bearing
upon the intention of the clause giving Congress power to
dispose OF and make needful rules and regulations
sPsetng the territory belonging to the United States
The opinion OF Mr. Madison has been quoted to prove
the illegay of the ordinance OF 1887 This being
ceded il cannot by any supposed consequence analo
gy. have any bearing on the power OF legislation by
Congress, under the constitution respect to the proh
bton of slavery in the Territories of the United States
The ordinance as we know. was passed by Congress I'M
der the articles of confederation though it ratified by
the first Congress- which assembled under the constitu
ton. Any inference from the proceedings OF the
far as the question OF power is concerned would be
wholly napplcable to the other But hold and shall
endeavor to show that the argument in which Mr.
Madison denied the authority Of Congress- under the
cles OF confederation to pass the ordinance OF 1857 had
Congress under the constitution, and that it proceeded
upon the supposed existence of the power
to the o Mr. q h s
Der of the Federaist, which was written by him. ! will
read extract from referring to the western territory
''We may calculate therefore, that rich and fertile
country ofan equal to the inhabited extent of the
United States, will soon become national stock They
have begun to render productive Congress have under
taken do they have proceeded form States
to erect temporary governments; TO appoint officers for
snd TO oo e ev All a
been DONE and done without the least color OF
al authority
| What was the object of this reference' Was il to
pass useless comment upon the conduct of Congress in
exceeding its powers By no means. He adds:
mean not by ANYTHING here said to throw censure on
could not have done otherwise The public interest," the
necessity OF the imposed them the task OF over
eapng their constitutional limits But is not the TACT an
alarming proof of the danger resulting from government
which does not possess regular powers to
Its objects ="
The whole article taken together, and judged by
single extract appears to to lead almost resstby to
the conclusion that Mr. Madison regarded the sys
tenn Of government the constitution, supplying defects
which had led abuse and usurpaton under the old the
Confederation that he considered the former as remedy
ing the very defects which had imposed Congress the
necessity of overlapping the constitutional limits OF their
power that he viewed the provision Of the constitution
authorizing Congress " to dispose of, and make all need
full rules and regulations respecting the territory OF the
United States, comforting the power which, in his
opinion, Congress had usurped, and giving legality
under the constitution, 10 proceedings which he con-
demned, under the Confederation, as void OF consu
tional authority.
Happily sir, we are not left to mere inference in
spect to the opinions of Mr.. Madison this point If
we turn to the 43d number of the Federalis also written
by him, shall find direct reference to the clause in
the constitution concerning the territory OF the United
States If there any doubt before think this would
dissiate He speaking of certain powers conferred
establishment OF new States seems to have been over
looked by the compilers OF that instrument PARTICLES OF
Confederation We have the Inconvenience OF this
omission, and the assumption OF power into which Con-
gress have been led by it. With great propety there
fore, has the new system supplied the defect"
He next quotes the clause giving Congress "power to
dispose of, and make all needfu rules and regulations
speeding, the territory" of the United States and adds
this is power of very great Importance and required
| hy mazda mi
propriety of the former" By the former, IS meant
the power of admitting new States into the Union
feet the articles OF confederation, and as avoiding the
evil of usurpng the exercise OF Indispensable author
ity Would he have denominaed tia " power of very
mere sale OF the public lands Would he have said that
it was required by considerations similar to those which
show the proprety OF the ormer-the admission OF new
States-uness he had considered it having supplied
defect in the other to which he had referred,
and empowered Congress to do what had done IN re-
spect to the Northwestern Territory without authority
There other territories besides that northwest OF the
Ohio to be provided for: South Carolina had at that
very time coded to the United States her interest in the
territory east of the Mississippi comprised in the
States of Mississippi and Alabama; North Carolina and
Georgia expected to cede what now constitutes
Tennessee, and the residue of Mississippi and Alabama
Mr. Madison, the 3Sth number of the Federalist, writ
ten year after the ordinance of I7S7 adopted OBJ
vously aules to those two last cessons reasonably
to be expected How were these territories, and that
which South Carolina had coded, to be provided for
how were temporary governments TO be erected-hOw
were officers to be appointed for them-how was the au
thorty of the United States to be extended them
Was under the clause of the constitution ahOriZ
ing call needful rules and regulations" to be made
Was it not in contemplation of these organic arrange
mens for the communities which to arise within
the territory then acquired and expected to be acquired
that Mr.. Madison pronounced that clause comforting
| " power of very great Importance p
If take these two numbers OF the Federaist Qhe
3Sth and the 43d) the reas0nngs OF which are directly
connected by himself in conjunction with his subsequent
participation in legislative acts by which the ordinance
OF 1857 enforced, and similar provisions were APP
piled to other portions of the public domain, his nepre
taton OF the constitution, in respect to the powers OF
Congress the territory OF the United States cannot
well be doubted But, if any lingering doubt should re-
main in respect to Mr. Madisons opinion as TO the right
OF Congress TO egslac respect to the municipal con-
OF the persons residing upon the territory belonging
to the United States, it will be removed by his declara
ton in Congress 1890, that, though Congress was re-
striced by the constitution from taking to abo
ish the slavetrade, yet there variety OF ways In
which it could countenance abolition, and regulations
[saves] into the new States TO be formed out OF the
western territory"
have been thus particular in explaining Mr.. Madi-
sons opinion, not only account of the high authority
which it carries with it, but BECAUSE from the manner
which il has been cited it might support concu
sions which, inmy judgment, derive strength from il
whatever.
Let me now call the attention Of the Senate the
of Congress by which this construction OF the constu
on is supported for the purpose of exhibiting the force
| it derives from legislative precedents
l. The ordinance of 1897 recognised by chapter s.
LIST session lst Congress. The preamble recites that
requisite certain provisions should be made NC, ~
order that the said ordinance "may continue to have full
effect" There no division in either House upon its