The daily union. [volume] (Washington [D.C.]) 1845-1857, 1850-01-23

ness what is here meant tAll can make out OF il is
thaf there is mode Of comforting power BY the con-
stiiuton neither express nor implied, but tact must
leave, however, others refute The proposition more
deliberately, who deem entitled 10 more elaborate con.
sldsfsnon and who are more fortunate than am in CON-
Hers I close the inquiry. sir into the congressional
Legislation the Territories when tested by the pn.
ciples OF the constitution But in the examination oil
this subject we are mel by the practical exercise OF this
power for half century, and by the authority which
this legislative construction carries with IT, and also by
the opinions of the Supreme Court, and OF learned
position of constitutional law who justify this series Of
Legislation BY deductions, drawn indeed from various
souIces but uniting in the same general conclusion
Now, do not intend 10 call in question the weight
OF precedent and authority in the adjustment OF cono-
verted questions They entitled TO much considers
hon and experience shows that there is proneness in
human nature yield than justly belongs 10
them The reverence for what has been too often the
for what Isl and large portion OF the abuses in
the world have arisen from this very predisposton to
tolerate what has been done and to believe has been
well done, and ought to be again done Undoubtedly the
certainty OF the law, where exists. is blessing Tor any
people, though unfortunately il is one to which we have
little claim. There many questions OF such nature,
that Ii is more important they should be settled than that
they should be settled in any particular manners and
In the exposition Of co1oveted points the decisions OF
looked back to, and received with respect,
though not with blind obedience Sometimes settled
principles are unsettled and changes made in The esab
gafon in our courts is calculated 10 give weight to
their opinions The points deliberately discussed for
the parties, and then calmly considered BY the judges and
Judge congressional legislation, when exercised upon
subjects involving political jurisdiction No man can
read their illusions to the topic before us, without being
sensible that they assumed the existence OF the power
and then sought the from which il derived
And, indeed this is also marked feature OF our own DIS
cussions, which cannot escape the most careless o.
server So much So that those who doubt or deny IT,,
are termed crazy politicians" (Mr Petit, VOL /, p
7l7D the denial bundle Of absurdites, (Mr Berren,
all see and feel the absurdity Of the doctrine" Mr.
Woodward vol /, p $50 and the attempt TO test it by
the constitution 'puere effort" Mi Hudson. vol IL.
665 while the wonder is expressed that men OF sound
mind have recourse 10 such yagares." same p 664 }
Time and possession seem to have superseded the constr
utOn and we are sent not 70 that great fountain OIL
authority but 10 the practice OF Congress- IN order TO as
certain the power It possesses.
Says one member Of the Senate !" Il may not be nate
rial to determine whence i is derived as the power is
found to exist Mr. Bradbury, vol. |, p. ll42.)
ssIhod," says member Of the House, that Congress
possesses the power do all these things Entertaining
What sonros The is derived or in other Words
Congress have the but do not know where
gard il as power the Of the United
slaiesw-Mr Stuart, pol. 2.p. ITS.
A POWER EXERCISED BY CONGRESS, AND NOT DERIVED
FROM THE CONSTITUTION Such doctrine requires no
refutahon, and in fact admits OF none.
"But gentlemen will insist the Of power in Con-
grsss being pointed out am snxoss e satsy their de-
and the manifest absurdy OF the opposite position and
could MOI feel assd in OBTAINING he
mittse with detailed argument" &c-Mr' Woodward
vol. ], p. SoO
Authority and the sound sense OF practical minds p
So much for sheet anchor, the constitution. Where
the ship will drive when that is gone il is not difficult to
foretel
.The action of Congress on the subject" (the organiza-
lion Of territorial govsrnments rst session, and
eaerwards under the constitution, is conclusive-Mr.
agree with gentlemen who lofty in their
encomiums upon that court, 1.-THE Supreme courl thar
their DECISIONS whether right wrong action
here."-Mr. CQrWin, pol Up Il6L
These doctrines sound strangely my ears and think
they must sound strangely to the American people And
not the less SO, when the confidence exhb-
tied IN the judicial opinions upon this question, with The
uncertainty which evidently rested upon the minds Of the
judges We told at first that there no doubt of the
constitutional power of Congress TO egsae for the
ritories "All admit it." says Chief Justice Marshall
But the investigation proceeds, doubts to arise
AT first Territory is governed by that clause Of the
sttution which Empowers Congress " to make all needfu
rules and regulations respecting the territory and other
property OF the United States " and then perhaps the
power may result from the facts, that it is not within
the jurisdiction OF any particular State, and within the
jurisdiction of the United Sates in other words from
necessity After this follows the suggestion, that /" the
right to govern may Be the inevitable consequences of
the right 10 acquire territory" And the conclusion
to throw doubts upon the whole subject by apparent
abandonment OF the question OF right and reliance
81 Judre Kent for the exercise Of The power Which.
ever may be the source says the Chief Jusce "whence
the power is derived, the possession OF IT unques
The possession indeed II is not that search
OF but the righyM possession. To be sure, Congress
have exercised the power out we wantto know whence
the authority; and if that is question, which the
Supreme Court is indisposed to meet, trust il will be
boldly met and freely investigated here But does this
language indicate any clear conviction In the mind OF thai
evered Judge who adorned the station he filled, that the
power as exercised, was constitutional one What he
saw clearly, he clearly expressed, and his habits Of
thought almost precuded doubt but he doubted here
He seldom qualified his opinions with such words as
'psrhaps," and "may,D and "may be !" the last twice
used and the whole compressed within eigh,
lines Those who rest the power upon Judicial auhori
~ are welcome TO all the support which these views
bring with them And yet an eloquent member OF this
body, whose remarks generally characterized by
vein Of rich humor. after quoting these views of Judge
Marshall exclaims triumphantly "What can be clearer
satisfactory this ponti" How far he yielded
to that propensity in this observation do not undertake
ojudge
The opinions Of the members Of the judicial tribunals
upon constitutional points involving the political powers
Of Congress entitled to much consideration, when
those points come before us, and we compelled, in
the discharge Of duties to consider and determine
them for ourselves Not that they have the least binding
authority in this hall OF legislation but because they
present the views OF able and learned men, qualified BY
their position and pursuits to investigate such subjects
and thus TO aid in discussions and decisions And
must express my surprise at a colIoquy which took
place between senator from Connecticut Mr. BALDWIN,
vol 4, D. 7o3) and senator from Arkansas (Mr Bon.
LAND, vol 1, p 7O3) and in which doctrines ad.
vanced subversve OF our legislative independence and
utterly irreconcilable with our responsibility
The former quoted the opinion OF Judge Marshall and
was interrupted by the latter who said what supposed
til recently no one would deny, " that the Supreme
the courts OF the country but not upon the legislature
arfho Tho