The daily union. [volume] (Washington [D.C.]) 1845-1857, 1850-01-23

Kent How an expositor Of our constitution could main
tain the existence OF Legislative right blythe mere ex
ercise Of legislative power, know not, shall not
attempt 10 explain. Ii is another proof, that ii have
not fallen on evil times we have fallen strange ones
Oh would from the congressional syaations
gress have supreme power aud the gSveramen. Of them
depending upon their sound discretion"
So much for the book instead OF the consltu.
ton.
But, sir let US look at these congressional regulations
Fifteen territorial governments have been organized
since the adoption OF the present constitution differing in
sSs wan one principle them mol
that was the guiding feature Of legisatonthe right OF
the local governments to conduct the internal affairs OF
= n Il
OF the power, and that It's exercise has been necessary
but leaves its origin to be sought elsewhere 10 the will
a Of s
have said the " local governments" but do not
by that expression that the earliest ages OF territorial
political history, these governments were controlled as
much as they should have been by the people They
were not for very unusfable system introduced
that OF authorizing the governor and judges to pass laws
laws oil the original States. No would be found
hardy enough to propose such plan is among the
things that have been 1t preserved indeed, the dstinc
ton between the general and the local governments but
il COMPOUNDED all the just divisions of power and in prn
cipe annihated every vestige of popular rights Il was
mere act OF arbitrary power
ration without being sensible that Mr. Madison was right
when he said that in assuming the administration OF the
public lands and making them productive and IN erecting
had acted Witho ne least color Of Constitutional auor
ny
single grant Of power which, directly indirectly
looks to such objects. The whole was mere assump-
ton, justified only Mr. Madison says, BY the plblc
interest," the necessity Of the case, (which imposed
them the task Of overlapping their constitutional limits"
gentleman, no longer here, who investigated this
subject as he did all Others with great care, has sup
4 h. &c
federation and the necessity OF supplying them BY new
government, this consideration leads almost rresis
Uyt the conclusion that he cetOed ne provision respect
ing Tues and regulations" the foundation OF poi
cal jurisdiction. Mr. Dix, vol l, s63) This is not So
SIR The old Congress did these things without color Of
RSs,Ssd +.
traton and sales OF the public lands The former was
power spent-it had performed its office. The political
organization embraced all the territory then held BY the
United States; and il is all probable though the
general provisions doubtless KNOWN that the de.
tails OF the ordinance were even critically examined by
the convention, who were occupied by subjects then
vastly more important to them; though, indeed, mem
Der Of the House suggests that the convention and the
old Congress sat at the place, there was probably
conferences at which the ordinance, some OF its sub
jects, were discussed and mutually arranged The
vention sat at Philadelphia and the Congress at New
York and thus falls this conjecture, built upon sup
posed coincidence OF time and place And thus i hap
pened that there is reference whatever to this ord
nance to be found in the constitution either directly
indirectly nor any provision for the institution OF tempo
rary governments, the necessity for such not be-
ing foreseen-the power having been acted upon and
spent.
But the admission Of new States was provided for. be-
ing obviously power that Congress would be called
to exercise unless, indeed this doctrine that the
ordinance was among those "debts and engagements
which the constitution declared should continue valid for,
in that case, States could have been admitted upon
the original pledge and any other grant OF authority was
unnecessary }e 6Mt
not be carried without the action of the new Con-
exercised almost from day to day. and the neces
sary authority for this purpose provided by the pow
S 81 o Ss 1r
establish temporary governments unpovded the power
having been exercised aeo and no other territory re.
naming not because the subject examined, but
because examined and Judged unnecessary, as is
proved by the rejection OF the following proposition in
the convention declaring that Congress should be clothed
with power 'to institute temporary governments for the
new States arising therein"
What, then, and under what circumstances has been
the congressional action upon this subject land how far
may be considered binding precedent precluding
sort TO any other source OF power!
Authority in countries favorable to its produc-
ton, is plant OF slow growth Generations centu-
The and aeedsn Hss
ity OF practice is OF yesterday. There are members
Of this body, and | am amongst them, who were
and yet find ourselves engaged in discussion which
claims for it those hoay attributes which elsewhere come
with time and use, too often, indeed, with time and
abuse, and which, in less genial climate than ours
edged and their power established.
That period Of prescriptions by which precedent makes
principle by means OF practice, and phsreo the
/ Org Of man ruaneM not 10 the contrary. will be
short, indeed, if this doctrine now becomes the doc.
rine Of the country. Men yet upon the stage OF ac-
ton will have lived TO witness its origin, its progress,
and IFS final consummaton. Our constitution has been
haowed by success, but not by length OF years But il
is now, and has been, and will be. great political
Standard by which the exercise OF all power is to be tried
and rejected affirmed il stands the test Of this trial
We cannot too often advert to it in the OF the
day, especially when political power the object OF the
controversy And TO be told, sir, that few in
stances OF legislation almost all OF which occurred with
out inquiry or dispute, places this question beyond
ination and that but crazy politicians would APP
peal from the tribunal OF Congress to the tribunal OF the
constitution What gives weight sir to legislative pre-
cedents Not the acts themselves, but DISCUSSIONS
aminaons, the comparison OF opinions and the
urged for and against them. legislative measure,
adopted sub seiio settles nothing. Now, all the early
legislation Of Congress thissubect far aSis known,
1870 that the question excited any attention.. and then
only because il involved considerations highly important
to large portion OF the Union The necessity oil egs-
laton over the Territories early felt and this neces
sy was obeyed il under the confederation There
not even tradition OF any debate opposition All
the elements OF acquescence this ground OF prece-
dent here wanting. We have the bare fact OF silent
legislation, but whether from the necessity OF the
IRON constitutional grant OF power, and il from the lat
ter where that power found have not been told,
and there is no TO tell Show me the argu
menis, the discussions, the contest Of mind againsl
mind, the specific clauses referred to- and the
which were called out side and the other, and
am ready, doubtful question, yield all that ought
To be Welded to the authority If opinon But look nj