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

they become authorities binding judgments and con-
sciences leaving indeed the right to vote, but to only
sccordance with the doctrines they establish merely
The proposition leaving those reute it who think merits
refutation. isnue, had better vscae seats and
let the court decide here well in the apartment below
the effort is made here to show-and indeed il is
pretty clearly shownha Of the opinions Of the judges
upon this subject obt opinions, given incidentally, by
way Of illustrating the before them, and entitled to
Just by as much respect the legal attachments OF the nd
yiduas expressing could for hay opinion given
subject which under the consideration of the
court But sir in my view this distinction has place
here. Whether the opinion o6iter 6yfeby given volun
ay by the judge and not esay to the decision of the
court whether directly called from him involving
the points in controversy should have Just the weight
hereust much weight due the legal attainments
Of the individual expressing IL" and For all
such opinions byheby They do not settle cons
tuional duties.
Now sir the Congressional presidents. But before
proceed to consider them, permit to make quotation
from the valuable work of able and accomplished u
and most worthy man, the late Chancellor Kent How an
exposition Of constitution could maintain the existence Of
legislative right by the exercise of legislative power
know not, shall attempt explain It another proof
that If we have not fallen evil times have fallen on
strange ones.
1t would from the various Congressional regulations
the territories belonging the United States that Congress
have power and the Of hem depending
upon their sound discretion
So much for the book instead of the constitution
But s let look at these Congressional regulations
Fifteen territorial governments have been organized since the
adoption Of the psesent constitutions differing in DETAIL but
with general principle pervadng them, rgidy adhered
indeed, but sufficiently marked to show that it the
guiding feature OF egsaonhe right Of the local govern
ments to conduct the internal affairs of their respective terri
tories This series Of legislation certainly proves Judge
Masha says the possession of the power and that its
else has been but leaves its origin to be sought
elsewhere in the will Of the people, expressed in the charter
OF their government or In the necessity Of the case
have said the "local governments but do not
hy In
csl history these governments controlled much
they should have been by the people They were not for
very unusabe system ntroduced-that of authoriz
the governors and judges pass laws by adopting them,
and Of course many changes from the laws Of the original
States. No would be found hardy enough to pro-
pose such plan is among the things that have been Il
preserved indeed the distinction between the general and the
local governments; but COMPOUNDED all the just divisions Of
power and in principle snnihaed every vesge Of popular
rights II was mere act Of arbitrary power.
No the original articles Of confederation
without being sensible that Mr. Madison right when be
said that in assuming the administration Of the public lands
and in making them productive and in erecting temporary
the Territories Congress had acted tohh-
out the least color Of constitutional authority
From one end to the other Of that instrument there not
single grant of power which, directly ndecty looks to
such objects The whole assumption, justified
only as Mr.. Madison says, by the pubc interest," the ne
cessy Of the CASE imposed them the task of over
eapng their constitutional limits" gentleman, now nc
longer here who Investigated subject as ne did all others
defects Of the confederation and the necessity OF supplying
them by new government, this consideration leads almost
resisb to the conclusion that he uie,oed the provision
respecting rules and regulations as the foundation OF poll
tcal jurisdiction Dix, vol l. $685. This IS not 60
The old Congress did these things without color Of au
thoryereced temporary governments, provided for the ad
mission Of States and assumed the administration an.
sales Of the public lands The former was power spent
had performed its Office The political organisation embraced
all the territory then held by the United States; and is
all probable though the general provisions doubtless
known that the details Of the ordinance were even critically
examined by the conventions who occupied by subjects
then vastly important them though, indeed, mem
Der ofhe House suggests that the convention and the old
Congress the place. there probably confer
ence, which the ordinance some Of its subjects were
discussed and mutually arranged The convention sat a
Philadelphia and the Congress New York, and thus fall
this conjecture built upon supposed coincidence of time
place. And thus happened that there is no reference what
to this ordinance to be found in the constitution, ehe
directly indirectly, provision for the institution
Temporary governments, the necessity for such
being power having been acted upon and spent
But the admission Of States provided for being
obviously power that Congress would be called to exer
unless indeed, this doctrine that the ordinance
among those debts and engagements which the con-
stution declared should continue valid for ia that
States could have been admitted upon the original
pledge and any other grant Of authority was unnecessary
And the administration, too, of the public laws could mol
be carried without the action Of the Congress- exer-
ced almost from day to day and the authority
for this purpose provided by the power dispose of the
public property and to regulate it.
And here the constitution stops leaving the right to estab
fish temporary unprovded the power having
been exercised de facto, and other territory remaining
because the subject not examined, but because
examined and Judged unnecessary proved by the rejec
ton of the following proposition in the convention declaring
that Congress should be clothed with power to institute
temporary governments for the States arising therein
What them and under what circumstances has been the
congressional action upon this subject and how far may it
be considered binding precedent precudng resort to any
other source Of power
Authority in countries favorable to its production, is
plant of slow growth. Generations centuries, some
times pass away before it becomes firmly rooted in the soil
deyng time and accident Here the authority OF practice is
of Yesterday. There members of this body, and am
amongst hem who born before the birth Of present
Government and yet find ourselves engaged In discus
sion which claims for it those hoary attributes which else
where come with time and ue too ofen indeed, with time
and abuse and which, in less genial climate than ours
require the lapse of ages before their authority acSnow
lodged and their power established.
That period Of prescriptions by which precedent makes
principle by Of practice and iUhereof the memory OF
man runneh not to the contrary, will be short, indeed, if
this doctrine now becomes the doctrine OF the country Men
vet upon the stage of action will have lived to witness its orr
GIN its progress and its final consummation. Our cons,u
ton has howed by success but not by OF years
But it is now and has been and will be, our great political
standard by which the exercise of all power is to be tried
and rel esed affirmed, it stands the test of this trial We
cannot too often advert In the contests OF the day espe
cialIy when political power is the object OF the controversy
And are be told sir that few instances OF legislation,
almost all of which occurred without inquiry or dispute places
this question beyond examinations and that but crazy
politicians would appeal from the tribunal of Congress TO the
tribunal Of the constitution What gives weight sir to le-
gsative precedents Not the acs themselves, but discus
sons examinations the comparison Of opinions and the
sons urged for and against them legislative measure,
adopted sub sino settles nothing Now, all the early le
of Congress this subject far as known, pass
ed without inquiry opposition and il not till 1920