The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-04-29

III
THE WEEKLY REPUBLIC
WILL BE PUBLISHED EVERY THURSDAY.
-------A
rectly in opposition to it.
In pamphlet edition of his speech was glad 10
find that the gentleman had changed somewhat the
position originally assumed by dsc tanning the in
tention of voting for what denounced as uncon-
stitutonal, but stating that his constituents be.
eved that fraud had been perpetrated in the last
Presidential election and that the highest interests
| Of the republic demanded its exposure; and though
| Congress may have no legal power to make such a
provision effective law-yet, to use his own quo
| tation,
| +" Wrest once the law TO our authority
To do great right, do little wrong
The great right the exposure of fraud IN
past political contest; the hfs wrong, violation
If the Constitution. lam reluctant to believe that
fun justice has been done TO his constituents by inn
putting TO them political morality of question
| able character. But to return from this dgrss-
| sion.
Chief Justice Marshall, in looking into the Con
stitution for the power to make territorial govern
ment, thought perhaps it might be an incident to
/ the treaty making power. While perfectly salts
ned of the power of Congress- to make territorial
governments, he evidently not satisfied as to
he particular grant OF power from which II was de-
| rived.
Alexander Hamilton, whose massive intellect
seemed to grasp every subject and reduce il to its
| original elements, with which it came in contact,
| ,lmost with the power of intuition, found one
grant from which he could derive the power; and
/ ne therefore held that there power resuiting
ure of political society, and be made distinct class
| Of powers of this nature In his argument on the
onstitutionality of Bank of the United States he
incidentally alludes to the power of making terri
oral governments in the following terms:
"It Is denied that there implied well aa
| express powers; and the former efectually
delegated the latter and, for the sake of accu-
racy, it shall be mentioned, that there 10 another
/ els of Nvh may be
mated restting powers. 1t will not be doubted that.
if the United States should make conquest Of any
f the territories Of its neighbors, they would pos
aess sovereign jurisdiction the conquered ter
titory. This would be rather result from the
whole mass of powers Of the Government, and from
the nature Of political society, than consequences
! of either of the powers specially enumerated"
But care not whether you derive the power of
| making territorial governments from one source
| Or another when we consider the nature Of our po-
tical ganization-that this Government is one of
specified powers; that it made with reference
u the existence of slavery; that the foreign slave
trade tolerated for twenty years; that no
more power was given over slave property than
over every other species OF property that all tho
power not delegated was reserved to the States and
| the people, respectively-I deny that any power
can result from the general mass OF powers con
ferred, from either of Them, destructive
of the great elementary principle upon which tho
whole fabric rests.
Congress, in organizing territorial govern
ment. has no more right TO prohibit within its linn
| species of property. There can be no implied or
| resulting power beyond that Of making govern
ment for the protection of the persons and proper
/ ty of the citizens who may be in may choose TO
emigratc TO, such territory. What shall or shall
not be property was not lett to Congress to decide
| This General Government was based on the idea
Of the Pre-existence of property Whatever had
been made recognised as such by tue local sov-
ereignties was left precisely in the condition in
which it found and when the Constitution
speaks of property it has allusion to whatever was
4 xs~Tt tk.2 IL Il Il ox1@ Md
! not undertake TO define what was or was not prop
erty. In the Constitution, originally adopted.
| there was but one clause which gave 10 Congress
| control or power over property Of any kind, and
that is the clause which gave the power "t to pro-
mote the progress of science and useful arts by
securing, Tor limited times, TO authors and invent
the exclusive right TO their respective writings
and discoveries" The property Of authors and in
ventors in their writings and discoveries was ee
cognised by the common law, and existed before
the Constitution was adopted. Jurisdiction In this
local legislation on the subject. Among the
amendments proposed and adopted to the Const
tuition one that no person shall be deprived
Of life, liberty, or property without due process OF
law; shall private property be taken for public
| use without just compensation" These are the
only clauses 10 be found upon the subject Of prop
/ erty in the Constitution as IL now stands. When
the declaration IL found that no person shall be de-
prived Of his property. private property taken
ior public use, without Just compensation, ask,
| what property il meantP IL is perfectly certain
that II not any property tnht Is fnade buCn py
this General Government, but 1t must be under
stood TO be whatever had been made or been recog-
missed property by any Of the States.
| think, therefore, that may safely lay down
the broad proposition undeniable, that tho Con
| sttution confers no right whatever TO say what
shall shall not be property In other words, that
Congress can neither make that which Is not pro-
pcrty such, can IL TAX from any thing its atri-
butte Of property. II, in any Of the States com
posing this confederacy there be that to which is
| attached the character Of property, IL Can never
lose that character in the Territories by the action
Of Congress. Whatever is property in one place.
must continue property wherever the flag Of this
Union waves its jurisdiction extends, far it
depends upon this General Government. The local
governments, where the supreme power upon this
| subject exclusively resides, may modify, change.
OF prohibit the existence Of particular species Of
| property, by its organic law bot such power is
| vested in this common Government for all.
This argument can only be evsded by showing
that the power Of Congress over the Territories is
unresraned by constitutional restrictions-in other
| words, that IL IL supreme and unlimited, and IL
has accordingly been asserted on more occasions
than one. ADMIT that States only are embraced by
the terms Of the Constitution. The Constitution
made for the United STATES II may be that IL does
not extend ofitselfover such territory may
qure The creation OF territorial courts IL has
decided does not make them part of the Judiciary
system Of the United States, and the constitutional
tenure Of Office Of judge Of the United stats does
not apply TO territorial Judge who holds his office
for limited time, and sometimes, believe, at the
this think IL s equally clear that the prohibitions
in the Constitution Of the United States extends to
and must control action here, designed to have
effect and operation in the Territories exclusively
We can no more violate any Of the great principles
Of liberty secured by the limitations and prohibi-
tions Of the Federal Constitution by law spplics-
bic alone to the Territories, than If made Tor the
| United States. No will contend that we can
psss bill Of atsindcr post faeto law, though
| ex prcssly applicable to the Territories alone We
cannot give the preference, by any regulation Of
commerce revenue, 10 the port Of Territory
that Of State; we can create order OF nobility
there we can make no iawthere respecting an es-
tsbshment Of religion or prohibit the free exercise
thereof; we cannot ebridgc the freedom of speech
| or Of the press there; we cannot compel man in
the Territories in any criminal case to be witness
| against himselfj we cannot deprive him Of life.
liberty, property, without due process ofaw,
can we take private property for public use without
Just compensation.
The Constitution, then, though II may not in
terms extend to our Tcrrtores imposes its restrain
ing influence upon our setion here, though that