Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1850-01-26

House from Virginia. shall content myself with few geue-
raj remarks The action of Congress which followed and
closed this contest legislative precedent which set
tied doubtful construction, but political expedent, which
adjusted fearful controversy II the elements of au-
honty not deliberate dspassionste inquiry into
the principles OF the constitutions but strong passions
abroad unfendy to cool delbeaon and utterly inconsist
with calm decision Sectional feelings were aroused and
seemed to be approaching that trate trial indeed for
this Confederation OF StateswheTe portion the country
aayed against another and where appeal to the com
bond of union has been made, and made in vain A
legislative compromise it called, the result of
this state of things which certainly did change the pre-
conceived opinions OF single person. and which acq
esced by large portion Of the country recently we'll
said by distinguished member Of the House. in consequence
of the circumstances, and not from conviction of its validity
Such among those which carry human reason
with them authoritative expoons of constitutional law
Since then this question, wherever has asen unconneced
with the compromise arrangement has excited the feel
ngs, and been opposed with the zeal and by the
arguments And the discussion engaged in and have
been for and the state Of the public mind shows
clusvey that there is large portion of fellow citizens
who little disposed shut the book of the constitution
the book Of the statutes ascertain the powers
OF the Government Why, sir these the very times and
which bring such questions to their tiahe
times and circumstances which written constitutions are
designed to meet and for which their limitations are wisely
provided When the public atmosphere is untroubled, the
political business of the country goes unoubed also and
without constitution there would be little danger of
the adoption OF measures wrong in principle ruinous in
practice But when the storm comes then the
u i
peculiar province Of the constitution whose obligations
deny, however they may differ TO their appca
tion He who believes that few instances OF legislative
ton, under and least Of all under the cir
cumsances in which these have occurred settle such
question: evinces little knowledge of human nature Of
the struggles Of adverse opinions in free Governments
Why then, have Congress exercised the power Of govern
ing the Territories and why has their action been submit
ted to in the absence Of any constitutional authority Let
the remarks Of Mr. Madison The assumption of the
power by the Congress of the Confederation and in which
he participated, give the only answer that can be given
this question All this has been DONE" he says the Fee
deralist-that is governments have been organized &c
"whout the least color Of constitutional authority. He
adds that nc mpues blame to Congress- because they
could not have done otherwise sThe public interest," the
necessity Of the CASE imposed on them the task Of oveea-
ing their constitutional authority" As have already
Marked sir there clear indications in the opinions of
Judge Marshall and Of Judge Story, that this necesy Of
the case, or inevitable consequence was their view
OF the grounds Of justification for the action Of Congress
upon this subject since the adoption Of the constitution
Perhaps says the former, the power Of governing
Territory &C. may result necessarily from the fact that
within the Jurisdiction of any particular State and
within the power of the United States" The latter adopts
the same idea when ne must consequently be under
the dominion and jurisdiction of the Union, would be
without any government at all"
This condition of things imposes the moral necessity
which both the Congress Of the confederation and the Con-
gess OF the constitution have yielded Now, sir far
as MI Madison was from seeking justify political action by
the oirepeaed plea Of necessity 1t has place in consi
tuona code. 1t Is mere assumption, and nothing
nor less. But when such happens, they incur the
responsibility who yield to the necessity and must throw
themselves upon the country for their Justification II sup
ported by public sentiment they safe if not they and
their must fall together Certainly it is the moral
duty of any couny holding distant possessions to institute
il governments for the preservation Of social order. And
here and here Alone is the foundation Of the power Of
It government exercised by Congress 1t assumed
preserve social order in distant regions and had it been
confined to its proper purpose, the institution Of govern
without interfering in the internal Of the
people to be governed, would every where have gone
to its proper consummation, the establishment of State
vemment, without having its validity called in question
There were at first no peculiar circumstances to call public
attention to the few violations of the great principle OF self
government which these organic laws contained, and witt
exception, these nteerences for the assertion
great well known principles founded in the English law an
adopted into ours and thus the less likely provoke
vestgaon into the validity Of their origin All the TER
have been governed upon this general principle OF Cor
gessona jurisdiction, leaving to the people to be affected
them the passage of laws suited to their condition PnclP
not only safe in ITSELF but familiar to every American,
being the very condition claimed by Revolutionary fathers
when they commenced their discussions with England. Th
violations Of it few-derent in different organic law
and unnecessary in a-and when pointed out to the publ
attention. by the circumstances Of the times, were senuousl
objected to- justified neither by law necessity, an
therefore deriving no sanction from preceding legislation
Upon this subject Of territorial government Congress beg
right and it is difficult to ascertain why they afterwards al
mitted notifications with the true principles OF sal
legislation The original ordinance Of April %, 1854, tn
predecessor Of the ordinance Of 1887 provided that set
uers on terntory so purchased might on
receive authority from Congress meet together and estab
lish temporary governments, DC.
Now, sir among all the other reasons given for the exer
else of legislation by Congress over the Territories there
but which derives il from express grant Of power
the constitutions and that grant found in the authority
dispose and make rules and regulations for the public
perry put proposition thus because is thus put BY
the Supreme Court. If this clause contain within sel
complete jurisdiction and penary powers Of Legislation
all persons living upon the public property not only
wheit is public property but till it becomes State Of Thu
Unon then the Wimot provso constitutional, and
member from the West says, ths Government could sci
| the Territories into slavery"
IT. the other hand, the power Of superior legislation
delured auxiliary to other Cong esonal power,
to attribute, what not, then its exercise limited BY
the circumstances which it owes its origin All the clause
which have been referred the foundation of this power
require its exercise solely the OF ensung law
order to the public Territory That power Mr. Madison
says, is in "supension of the great principle of self goge
ment and ought not to be extended further continued
longer than the occasion might fairly require
And yet this principle of limitation, obvious and OBJ
viousy just is considered by eminent lawyer in the SEN
ate absurd He cannet he says, conceive greater bun
die Of aburdies than proposition that territorial egisla
sir those Of creduousy inclined find ourselves in pretty
good company, which furnishes relief to our seove
thus sensiby wounded. Mr. Madsons opinion have just
quoted, and will quote another which carried some Deigh
with once though it good deal out OF fashion,
and has become dbsury II is to be found in the
declaration Of the Continental Congress Of l774 and thus
reads The English colonsts entitled to free and
cloe power of legislation their several provincial legisla
lures where their right of representation alone be pre-
served in oil of taxation and internal poliy &C.
And the existence Of these inaenabe rights denied
cooy they heard of for the first time upon this