Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1849-07-27

ercise of a great political power like this by
legislature, deriving its existence from writ
ten instrument, ought not to depend on such
loose constructions Nothing shows the we'll
grounded doubts respecting this power better
than the very uncertainty in which We are in
yolved in the endeavoF TO maintain il by an
express constitutional grant. And no won
der that now, when peculiar circumstances
bring This question more forclbly than ever
before the country, 1.-The true foundation OF the
power should be severely investigated.
| Those who maintain the right of Congress
| to pass the Wilmot Proviso, must maintain
moi only the right of that body TO establish
governments, and to provide for the necessi-
| ties of legislation over the public territory,
which is one thing, but also the power 10 di-
rect all the internal territorial legislation at its
pleasure, without regard TO the will OF the
people TO be affected by it, which is another
and quite different thing. ! shall not enter
into any subtlsties touching the condition OF
sovereignty. or the rights il brings with it,
That subject was good deal debated al the
last session of Congress but it had been al
ready exhausted in the discussions previously
10 our revolutionary struggle We are sover
eign, said the British government 10 the COLO
MES, and may legisate over you as We please.
You are sovereign, said our fathers, and may
establish governments but you have no right
to interfere, by Jour legislation, in our inter-
nal concerns Such legislation, without repre-
seniation, is the very essence of despotism.-
This dispute divided one empire. Let US take
care that similar assumption of power does
not divide another.
| Have Congress any power to legislate over
the territories? said in my letter 10 Mr..
Nicholson, How far an existing necessity may
have operated in producing this legislation,
and thus extending, by rather violent i'm
, plication, powers not directly given, know
. not. But certain it is, that the principle OF
interference should not be carried beyond the
necessary implication which produces it,"
The ground of necessity is that upon which
Mr.. Madison placed the action of the old con.
I federation in passing the ordinance of 1887
and if I do not misunderstood the late Mr.
Justice Story, he entertained similar views
when he said that acquired territory s'must be
: under the dominion and Jurisdiction of the
Union, or il would be without any govern.
ment at all.'' If TO avoid this latter conse.
quence Congress exercise power not other.
wise TO be defended, that power should be lin.
tied by the necessity of the occasion which
!; calls it forth. To preserve the peace of soci.
ety-and to this ground of support we mus
come at last-there is no more need that Con
gress should conduct the Legislation of the
r Territories than that they should conduct The
legislation of Virginia or of Massachusetts,
:, 1t is enough that they should organize gov
ernments, and then the necessity for their in
reference ceases. And the result proves this
for the local governments do manage the in.
-. ~ -
ses, and would as safely in all, if not restrain
, ed by congressional interpositIon and If Con
gress can pass beyond the power to organize
) governments, they may rule territory at thel
) pleasure, and PROSTATE every barrier of free
dom. If, as have heretofore said, they car
regulate the relation of master and servant
what but their own will is to prevent then
from regulating the other relations of life-tbt
; relation of husband and wife, and of paren
and child ; and, indeed, al the objects which
belong to the social state? There is no mar
who can show the slightest necessity for thi:
interference on the part of the general govern
ment, and there is consequently no man who
can show that it has any right to interfere or
the ground of IFS necessary action. The peo
pie of the Territories are fully competent to
conduct their own affairs; and the very frs
principle of our social system demands thai
; they should be permitted 10 do SO.
Whichever may be the source says Chief
Justice Marshall, speaking doubtfully of the
origin of this jurisdiction, whence this pow.
err may be derived, the possession of it is un-
questionable" He is speaking of the power
of government; and no dcabt it has been pos
sessed; but it becomes very important 10 as
certain how, and how far, Congress has just
ly possessed it, in order 10 ascertain 10 what
extent it may be exercised. In almost all
believe | may say in all-the speeches and
essays in support of the power of Congress TO
legislate over slavery, after endeavorlng vague
ly 10 deduce it from some clause or other oil
the constitution. the principal reliance is al
last upon the authority of the few instances
of its exercise TO be found in the statute books.
Authority and precedent have weight. and
ought to have some weight, in doubtful ques-
tons; but | trust there are few to he found
who are prepared TO shut the constitution, and
10 seek in the practice of The government the
foundation of lis power; and more especially
when, as in this case, the early legislative pro-
ceedings passed, as we have reason 10 believe,
without objection or inquiry. They common
ced by adopting the provisions OF an ordinance
of the old government to the administration oil
the new one, and thus implicitly recognising
the exclusion of slavery, and seem to have
gone on silently and unquestoned for years.
have not had time TO look back TO ascertain
the facts precisely; but l believe it will be
found that this power has never been exerci-
sed where there was a united sectional oppo-
sition TO it. Precedent may weigh much in
the consideration of doubtful question, where
the whole subject has been maturely consld-
cred, and many minds have been brought to
bear upon its adjustment. But as the foun-
dation of political power Practice thus in
troduced is OF little value, particularly when
it comes to involve grave questions seriously
affecting the Union. We turn then instructive
lily from what has been done TO what ought 10
be done-from the authority of precedent to
the authority of The constitution. These are
times Which try such questions Who can
wonder that with the views entertained of
this subject by the South, an appeal should
be made TO the common character of the coun-
try, or that large portion of our citizens
should be satisfied with no answer not derived
from it That what has been must continue
10 be, is a principle which has done more 10
perpetuate abuses than all the other causes
which have operated upon political institu-
tons
Those who advocate and those who oppose
the Wlmot Proviso occupy very different po-
sitions. The former urge its adoption as a
matter of expedency, in order 10 exclude sla-