The national era. [volume] (Washington [D.C.]) 1847-1860, 1850-01-31
THE NATIONAL ERA.
THE MAIN POINTS or Mr.. CASyS SPEECH
UPON THE WlLM0T PROTISO,
Delivered an the Senate Of The United SAFES, on The
2ld and 22d Of January, 1880

III constitutional, is it expedent2
All those who have hitherto contended for the
power Of Congress TO pass the Wilmot Proviso
have commended for general and unlimited power
of legislation over the Territories. The right to
institute Governments over them, and the right
to legslate the internal concerns of the same
are used convertible terms. This is decided
disregard of one Of the canons of freedom. Ii
extends even to the judicial tribunals and to the
commentators on law. They argue, that the
power of governing and legislating for Terri.
tory is the inevitable consequence of the right to
acquire territory They hold that Congress has
plenary power and complete jurisdiction, without
limitation over the Territories.
IL was this claim of unlimited legislation that
led to our separation from England. And il is
amazing, how boldly this claim has been urged in
this Hail. as If the rights of sovereignty were
everything, and the rights of man nothing. This
power of legislation, without representation, we
first denied in argument, and then resisted in
arms. But the British Statesmen had one advan-
tsge in their argument they had no written
Constitution TO appeal to, but a Legislature.
which, in the theory of their Government, was
omnipotent. We have a written Constitution ;
and before the authority of Congress can BIZ,
brought TO bear upon any subject, the grant Of
power must be pointed out. The right 10 organ
ice Governments over distant Territories leaving
to the people Of those Territories 20 regulate
their own concerns in their own way, is recOncila
bic with practical liberty. But the right Of I'M
limited legislation over them cannot be Justlhed
under any circumstances OF reconcied with the
principles of human freedom Though the Con
stitution has given TO Congress the power of ex-
elusive legislation over the District Of Columbia,
yet il is of the terms of the national compact;
and though it is despotic power because il is
not accompanied by the right Of representation,
yet the despotm of the measure is somewhat tenn
pered by circumstances resulting from residence,
which can never exist between Congress and a
remote colony
The great principle in this controversy is, the
inseparable connection between legislation and
representation. No paramount necessity calls
for its violation. The people of the Territories
are surely competent to manage their own inter
nal affairs Expert, tells this truth, Wher-
ever the American People so. There is no neces- |
sity, then for Congress to legislate for the Ter
90 =itS<ss Indeed Congress has never yaf, except /
in few instances which were clearly uhcunst- |
tutionaI Jeljslated exclusively for them There J
is not a Territorial Government which We sGall /
be called upon TO organize, out of our present
Territories in which the majority Of the people
will not be Americans; and AS the great issues Of
life aud death are left by Congress to these peO-
pie, there is no reason why all the other objects
of internal legislation may not be safely commit
ted TO them. The late proceedings in California
to organize State Government the best
foundations of their political institutions wisely
and Justly. 1t is All indisputable argument against
the necessity Of restraining them by Congress
sional legislation There is no Constitution in
this Union in which the principles Of rational
and progressive liberty are better secured
There is no clause in the Constitution which
gives to Congress express power to pass any law
respecting slavery in the Territories. Every
construction which would give to a foreign legisla-
ture jurisdiction over this subject of slavery
that is to a legislature not elected by the people
to be affected by its acts-woud give it also Jurs-
diction over the relations of husband and wife,
parent and child, guardian and ward, embracing
within its sphere the whole circle of human rights
personal and political. If We have the power to
abolish or exclude slavery, we have the power TO
institute it. If we possess any power over the
subject, we possess complete jurisdiction over it,
If there be any limitation upon the power in the
Constitution let it be shown. But has Congress
any power at all upon the subject The clause
of the Constitution most frequently quoted in
support of this right is that which provides that
The Congress shall have power TO dispose of
and make all needful rules and regulations re-
specting the territory or other property belong
ing to the United States
If this grant conveys full legislative authority
this property, and over all persons living in the
same region of country making man the mere Incl
dent of property, certainly words were never more
unhappily chosen. The phraseoogy of the pro-
vision for the government Of the Federal District,
and of the places ceded for the erection of forts
magazines, arsenas, dock yards, and other needful
buildings admits Of no doubt that exclusive
legislation was intended to be granted. They,
therefore who claim that the idea conveyed by
the words 10 regulate property is the same that
conveyed by the words 10 ertrcie srciaSiUe IegiSa
non are bound to show why the latter language
was not used in every case There is no doubt
about the meaning OF the terms 10 ecrcm erclHsue
legislation; but when it is attempted TO force the
words 10 regulate property to bear the signif-
cation, the should he shown why this latter
form of expression was used in preference to the
former. No man has done this. Until ii is done,
the obstacle is nsuperabe.
Great confusion in the treatment Of this subject
has arisen from applying the word terrVO,s to
those political communities which are organized
under the name of Territorial Governments, and
considering it as 80 applied in the Constitution
The term territory, in the Constitution, means
land, domain; and the appropriate political desig
nation of this territory, when organized under
Territorial Governments, appears TO have been
district as is evident from the language used in
the old laws organizing the Governments of the
Western Territory. What, then, is the true i'm
port Of the constitutional power to make needful
rules and regulations for the public property 10
il, that Congress shall have power TO dispose OF,
use and preserve the public property, wherever
situated, and to exercise any power fairly "Heed-
Glp to attain these objects. Ii is property alone
which is the subject of the grant and its DISPOSE
ton, aud, in connection with that, its aud
preservation are the objects, The phrase "terri-
fory or Other property" makes terJH0ry Of the
classes Of property and the word trrROry referred
TO the great Western Territory, at that time the
great fund to relieve he finances of the infant
Confederation. This clause conveys necessary
grant Of power to the Government, as landho,d-
er or holder Of other property, to and dispose
Of the same at ts pleasure. Now, if the power 10
make neefui ties ANIL regulations conveys general
grant of legislative authority, then the express
clause for the exercise Of jurisdiction by the Gen
eral Government over all places purchased from
the States for the erection Of forts magazines &c,
with the consent Of the States, was unnecessary.
1t is contended by some that the word tTrtOTV
in this clause does not mean tamil alone but in
cludes also political jurisdiction, thus making
American citizens part Of the national property TO
be disposed of at will The author of this objection
seems 10 have forgotten that the Supreme Court
of the United States, in the case of the United
States against Gratiot and Others had come TO
the same conclusion That Court in that case
held that
"The term territory as here used is merely
descriptive of Que kind Of property and is equiv
alent to the word lands and Congress has the
same power over IL over any other property
vested in the United States Sc.
II be true that Congress has exclusive juris-
diction over the territory, nc, of the United
States it has power 10 dispose Of 10 SELL 10 cedc
that jurisdiction and no one will pretend that
when the General Government sells or cedes TO
purchaser portion Of this territory itsels to him
jurisdiction over the portion purchased, whether
that purchaser be an individual or a foreign
State.
But there are those who while they admit that