The daily union. [volume] (Washington [D.C.]) 1845-1857, 1848-10-14
REMARKS OF mn. PHELPS,
OF VERMONT,
On the Oregon bill also on the Compromise bill.


The Senate having resumed, in Committee of the
Whole the consideration of the bill TO establish the terri
toral government OF Oregon
Mr. PHELPS said
Mr. PRESIDENT 1t not my purpose, when this de-
bate commenced TO take any part IN the discussion OF
snbect which had studously chosen TO avoid a sub
ect of irritating, troublesome, and perplexiDg charac
Ter But sir have been induced to change my purpose
in consequence OF the course which has been taken the
debate Doctrines have been advanced, which, in my
Judgment are at war with the constitution; positions
have been taken which regard as wholly unenable
and claims have been set up relation to the savehold
ing power which deem II my imperous duty TO resist
Its very important question whether this power,
istng as does certain portions OF the Union,
rogae to itself principle OF sefextension in defiance of
the power of Congress- and in defiance OF local legislation
Sir this petension is in my judgment, wholly nadmis
sbe had supposed that proposition so Inconsistent
with what has heretofore taken place woud not have
been advanced We have heard good deal of the Mis-
sour compromise That compromise If understand ii,
fixed upon the line of north latitude $50 30 the line of
demarkaton between what called the free and the
slave States had supposed that BY virtue of that
PROMISE the territory of the United States north of that
line to be forever exempted from the institution Of
slavery. But sir, now told, whatever may have
been the purpor of the compromise, that possess
the power TO exclude slavery from any portion of the ter
rltory of the United States If this position is tenable
if it can be made Out thatCongress has power over
this subject connected with its territorial legislation
then indeed the Missouri compromise fails conpro
mse for want oil power to make il, and want OF power
carry into effect Sir repeat, If this pretension is
defensibe which claims to exempt this institution from
all legislation and claims for it the right to extend itself
over these territories defiance of legislation; if this
petence be well founded then indeed there is earthly
authority that can restrain 1t.
But, sir, before admit the justice of this position
may be permitted to examine the ground which it is
founded. And IN the outset, deem 1t utterly inmate
rial whether the power of Congress the Territories
of the Union is to be derived from the express grant Of
power in the constitution to make rules and regulations
for the government OF the Territories whether it be
derived from the power which is incident to this govern
men because essential to all governments, OF acquiring
hrc uniC
the right govern 1t has been argued that the express
provision of the constitution extends the legislative pow
of Congress over these Territories no further than the
subject OF property concerned and that legislation
persons is not included 1t is, however, conceded
the other hand that it is incidental this government
acquire territory and if the power to acquire territory be
admitted, the power to govern is OF course involved.
But sir all this discussion is in my humble judgment,
unimporant From whatever source the power is de-
rived too late now to deny its existence 1t
serted before the formation of the constitution 1t
not denied prohibited by the constitution itself when
adopted 1t has been exercised from the first existence
of the government down to the present day; scarcely
session OF Congress has passed in which the existence Of
the power has not been recognised in the most emphatic
manner-ndeed the bill before assumes the power;
and every discussion every question that is raised in the
face of this BILL to what it what it should be,
proceeds upon the same assumption.
Sir, my first position is, that, let the power be de-
rived from what source may, 1t Is general an excu
power to the right OF acquiston-to the r-making
powerto the capacity of the government 10 acquire ter
Itoy, Its jurisdiction over 1t Is necessarily unlimited,
because other sovereignty exist By the very act
OF cesson which made this territory the property of the
United States, all previous sovereign power, all prior
legislative power becomes at once extinct The power
OF Congress these territories the only power that
thereafter exist Well, sir, if it be true that this
legislative power the territory is unqualified and
unlimited, and if Congress possess this general legisa-
tive power, the only remaining question whether this
institution is legitimate subject for the exercise of that
power Ii has been claimed from the outset by those
who vndcae the institution that this is proper subject
To ho h,rfb hal 81,
ground, viz that the subject falls within the exclusive
province of State and local legislation, that the slave
holding States have denied the power of Congress to in
terere with the institution within the States 1t upon
this ground questioned denied by nobody that Congress
have uniformly disowned and repudated that power of
interference But the power of local Legislation the
1errOnes IN Congress absolute and unlimited
the corresponding power in the State Legislature Nay
ii you derive the power of Congress from the faculty of
acquisition incident to all governments it abso-
lutte and unlimited. because unrammelled by the restrc
tons of the State constitutions. If this subject be fit
subject for legislation in the it is fit subject in
the other 1t seems TO me that the conclusion is ineyi
table that Congress possesses the power of egsa
ton upon this subject within the Territories of the Union
that the States do within their own jurisdiction.
admit that the Legislative power OF Congress is linn
tied in some respects; admit that Congress grant
no patent of nobility in these Territories any than
in the States admit that the restrictions in the consti-
tuition upon the legislation of Congress are to be OBJ
served but, sir, | ask gentlemen the other side to
point out the restriction in the constitution which pro-
hblts us from egsating upon this subject Sir, if the
power is not general if il is not unlimited and eXclu-
sive, II any restrictions imposed upon it by the
stluon of the United States let those restrictions be
pointed out Let gentlemen refer to the article, the
section, the clause in the constitution of the United
States which nterferes in this particular with the general
legislative power of Congress No gentleman has re-
ierred us TO any portion of that instrument which in
wolves such doctrine; and think may say with
hdence that no gentleman will make the attempt.
But sir, from what source is this restriction attempted
to be derved Is it from the nature OF the subject Va
ous analogles have been stated to illustrate the position
mat there is inherent in the subject itself something
Whlch involves restriction upon action. The sena-
tor from South Carolina asserted that the power was
vested IN Congress rust and he argued from analogy
at lhe power OF Congress trustee restricted Sir,
Ne great mistake is, that things treated identical
winch are In their very nature different admit that all
e powers OF government held in trust for the benefit
Oh he people, but do not admit that this trust has any
analogy to an ordinary legal trust The very element of
legislative discretion which enters into every grant of po
liuca power, puts an end at to the analogy No
TWO things are wider apart than political power vested in
Legislative body, to be exercised in legislative discre-
non, and mere legal power vested in trustee at law
Whlcn involves no dlscreton whilst the other involves
ue highest discretionary power known system of
government An argument drawn from analogy of
nus sor would be denying TO the legislature discretion
IN his matter because similar discretion is not attached
TO a legal trustee.
Equally unfortunate the senator's analogy which
nc ehueaVored to derive from comparison of the
mon property OF the people of these States in their Terri
.pes 10 an ordinary partnership Had the senator taken
cdse Oh corporation acting by the will of majority,
nc would nave found closer analogy The interest Of
e people OF these States in the Territories is corporate
interest The senator from Georgia MIR BERRIEN
adopts this analogy, and he cites Vael to establish the
uosuon ihaf, although corporation may, by vote of
ne majority regulate the mode in which each corporator
may ENJOY his corporate property IT cannot deprive him
ol mat property He need not have cited authority for
Spo b md