The national era. [volume] (Washington [D.C.]) 1847-1860, 1850-01-31

IOuEt HJt uONn tnt true uOCtrlnt Ot
this point, when il says - That the pream
bic can never be resorted to, to enlarge the pow
ers confded to the Government or any Of its de
partmentso
An argument in support Of the authority o.
Congress to legislate over the Territories is de
rived from HE jrar and treaty making poWey, which
bring with them, as an incident, the right Of &C
QUESTION, aud this is followed by the right Of lie
gislating oxer the country acquired. The effect
Of the war baking power upon the right Of ac
QUESTION il under our Constitution, an inquiry
purely speculative, ms no territory has been add
ed to the Union by that process. Ii is difficult &c
conceive how the mere act Of war, though II bring
conquest with it, can Permanently annex for
eign country TO the United States without the in
terposition Of some department Of Government
constitutionaly competent TO indicate the national
will on the subject So, the wdr-maklng power
cannot be said to make the acquisition, or annex
alton, though it may afford the opportunity OF It's
being made A treaty Of peace, confirming the
cOnqu and making the cession, carries The ques-
ton to the treaty making power. But the propo-
sitiOn, that acquisition necessarily brings WIN u
the authority Of legislation, is quite a Inherent
thing Judge Marshall held the opinion, on one
occasion, that "The right to govern may be the
inevitable consequence of the right to acquireter-
ritoryr Others following in his steps, gave IT as
their opinion that the right RdS inevitable But
what is meant by Judge MarshalPs inevitable
consequence ~ Is il logical consequence dedueed
from the language Of the Constitution, ana Does II
make the power of government an integral part OF
the treaty-making power? Surely not; for the
right to acquire is thing and the right 10 Iegis
late is another and the act OF acquisition ~ com-
plete in itself The rreaty-makng authority &C
quires territory by treaty. The row,rto dispose
oft and the power to admit into the Union when
- hpth sTBYegSIU given ana
of course, if they were not given, they could not
be exercised The power 10 legislate for 1t is not
giyen-aud now. then can that power be exercls-
ed Ii is clear. the idea OF legislation Is not III
cluded in the idea of acquisition, nor so closely
connected with IT, that the one power cannot be
exercised without the other. But, perhaps this
- inevitable consequence may be consequence
resulting from moral necessary. Moral necessity
for the assumption Of power may be yustihed,
but il can have no place IN an inquiry into
the true powers OF the Legislature, which
NAV assume to act upon the ground Of neces-
sity Such case is without the pale OF the
Constitution On the other hand, il may be
that Judge Marshalls inevitable consequence
is the constitutional consequence, by which i'm
plied powers may be exercised when 4" necessary
and proper TO carry into effect expressly grant
cd powers To bring il within this clause, II must
he assumed that acquisition cannot be complete
without political legislation and that the latter Is
g "scessary snd proper to The dtnploeDt .ottoe
acquisition. NOW, wuuId 'oe purely an "a
sumption for the moment treaty of cessOn is
rsnnt0 The act Ul acquisition Is complete, and
the territory becomes, ipsO tacto, part of the
United States Legislation cannot change its
tenure, nor make it more or less than the treaty
has made it, The disposition of the territory &C
quired is quite another question, and must be de-
termined by other provisions OF the Constitution
But implied powers are granted only TO Congress
The treaty making power does not possess them
The power is strictly a legislative one Besides
an implied power cannot he engratted upon an
other implied power The authority is spent
when once exercised. In support of these views
the opinion Of Judge of the Supreme Court
published in the National Inteligcncer of Decem.
her 22d, IS47, may be adduced. But, though the
writer Of that article undertook TO show that Con
gress had no power to institute slavery his argu
ment is conclusive that the National Legislature
has no right to deal with the question at all This
is not all The power to make treaties, and to
acquire territory, is not sufficient foundation on
which the action Of Congress, in legisating for
territories can rest because, greater portion OF
the territory, in which Territorial Governments
have been erected, was not acquired by treaty at
all The territory, out Of which nine Territorial
Governments have been created made part OF
the United STATES, On the uHy VI tue utCldThtlOu
of their Independence; and it is clear that the
treaty making power in these cases, did not con-
fer upon Congress the right to legslate over it.
But that provision of the Constitution which
declares that all debts and engagements entered
into before the adoption of the Constitution shall
he valid as against the United States, under the
the Constitution, rs under the Confederation, has
been relied upon as establishing the power to ex-
ercse complete political Jurisdiction over the Ter
ritOries The Ordinance Of 1897 is treated as Il
compact, an engagement, a contract between the
people of the United States, in their collective
capacity, and the people who inhabited the new
territory aud the express acknowledgment of this
compact by Congress, under the Constitution, Is
regarded as a recognition Of the compact by the
Constitution, and curing it of any unconstitutiou
atty il had under the Confederation. This is the
proposition and the deduction, therefore, is, that
Congress has n right Of unlimited legislation over
the United States Territories Now, the validi
ty of this compact must be tested by the Con
stitution itself and not by any CongressiOna
acknowledgements Of it, The words in the clause
"debts and engagements entered into have M
relation to the exercise of political power The
Territorial Government established by the Or
dinance of 1857 was no compact. Ii was mere
ordinary act Of legislation. IL has been altered
time and again by Congress without opposition
lherC IL no lONlOllblilty UDOHt III, nOlNl'HslhIu
ing the declaration introducing the last six sec
tions of the Ordinance, that th,y shoH tOyerr Je
man uaaherabs unless bg common consent. These
articles arc destitute of the very first elements
recinrocal Obligation There was hut one party
to them, and that was the Congress of the Con
federation The other party was not in being
was not heard at all-never gave their consent IN
any manner to these six articles Besides the
want of parties, there was a total want of power
The exercise of the power was an open assump
ton of authority The resolution gave the Or
dinance no validity, if it had none before. II
left il where it found it. Who doubts the power
of the people of Indiana to assemble in conven.
ton and TO introduce Slavery, if they please, or
to abolish the English common law and to sub
stitute the Code Napoleon What becomes,
then, Of the inviolabiity ofthe six articles Are
the people of Indiana not sovereign enough to al
ter or change their internal system Of policy
without the consent of Congress IL they are
not, what becomes of the principle that the new
States are admitted into the Union " on an equal
footing with the original States. in all respects
whatever One of the six articles Of this &c
called compact declares that there shall not bG
more than five States formed out Of the North
western Territory and yet u sixth, Minnesota
will seon be added to the five already admitted
Where is the irrepealability of these articles Of
compact
Why has Congress exercised the power oil
governing the Territories Why has its action
been submitted to in the absence of any constitu
tonal authority Let Mr.. Madison answer
& All this has been done" said he, in remnrkinY
upon the assumption of the same power by the
Congress of the Confederation, without the
least color of constitutional authority The pub
lie interest the necessity of the case, imposed OF
them the task OF overlapping their constitutions
authority Certainly, it is the moral duty Of
any country, holding distant possessions to inst
tute Governments for the preservation of socia
order And here, and here alone, is the founda
ton of the power of Government, M exercised
by Congress. II WAS assumed, 10 preserve socia