The republic. [volume] (Washington [D.C.]) 1849-1853, 1850-03-11

establish territorial governments, and if it has,
what are the proper limits of that power The time
to which, by the rules of the House, am compelled
to limit my remarks, would prevent my doing SO
even If j deemed it advisable But this task has
been so often performed by abler men, that would
consider It work of supererogation to attempt it.
! will observe, however, that few constitutional
lawyers of the present day who affirm the exist
ence of this power would venture TO base this affir
nation on that provision of the Constitution where
il has been usually sought, viz: art. 4, sec. 3d.
which empowers Congress "to dispose of, and
make all necdful rules and regulations respecting
the territory or other property belonging to the
United States" If any doubt remained on this
point, il has been removed by the able speech re-
Gently delivered by distinguished Senator from
Michigan, (Mr CAss,) who has clearly shown that
this clause in the Constitution does not even afford
a decent pretext for the exercise OF the power /
differ from that gentleman in many important
questions, but take this opportunity to declare
that, for the independent stand he has taken
this question and the ability with which he has
maintained it, he deserves the gratitude and
spect not Of the South only, but of every friend of
the Union
lam aware, sir, that this power has been sought
for by some in other clauses of the Constitution.
Some have affirmed that the power to gouevn terri
tory was necessary consequence Of the power to
acquire it. But when they asked where the
power to acquire territory is found, they say that
Is also a necessary consequence Of the power "to
declare war" Thus, sir, one OF the most import
ant prerogatives of this Government-the power to
govern at discretion, and for an unlimited period,
country far exceeding in extent the thirteen
original States-is made the consequence of conse
quence-thc derivative Of derivative.
Gentlemen whose opinions arc entitled to respect
have derived this power from other sources, but
have always thought that their arguments proved
little except the ingenuity of those that used them.
Is it probable indeed that in an instrument SO care
fully framed, deliberately discussed, the Con-
sttution of the United States, if it had been in
tended to convey power important as the one
in question, it would not have been done directly
and in plain unequivocal languages Is Improbable
that it would have been suffered to lurk in am
bguous phrase, to be inferred from other powers,
or to be formed like piece of patchwork, by stitch
ing together detached portions of the Constitution
do not believe it. believe it is cdsus 0missus,
occasoned probably by the fact that at the time the
Constitution was adopted the General Government
owned no territory except the northwest, the gov
ernment of which was already provided for by the
compact between the State of Virginia and the Con-
federation, which compact was ratified and con-
frmed by article six of the Constitution.
1t is urged that this power has been often
ercsed that it is too late TO deny its existence.
No one has more respect for well established pre-
cedents than have. The maxim Z" stare decisis" is
more important, when applied to interpretations of
the fundamental law which defines the powers and
prescribes the duties of government than when ap-
piled to merely municipal laws which regulate the
rights and duties of individuals. But this maxim
Is less applicable to Legislature than to judicial deci-
sions. Now, in this matter, although there are
some decisions which seem to recognise the exist
ence of the power, there is none which directly
affirms it.
Even the Congressional precedents are by no
means conclusive. In the case of Missouri, it was
settled by compromise, and in the case of Oregon,
the country being confessedly not adapted to slave
ry, it excited little interest
Iconclude, therefore, that the power to establish
territorial government is no where to be found in
the Constitution.
But does it follow from this circumstance that
Congress is absolutely without power to provide
any government whatever for territory owned
by the United Statess think not.
Whenever in judicial proceeding it is dscov-
cred that great mischief Of great injustice would
result from the want of power to do thing, trbu-
mails, in the exercise of sound discretion, frequent
ly decide that it must be done nscessitats rel
from the necessity of the So in countries gov
erned by constitution particularly a written con-
stitution-which furnishes an infiexibe rule of con
duct-thc government often finds IL necessary 10
exercise powers which, though not warranted by
any express provision of the Constitution,
theess in accordance with its general spirit and
object The British ministry not unfrequently ex-
ercisc powers not vested in them by law, relying
upon the justice of parliament to relieve them from
the responsibility oil their acts. In our own coun-
try acts have several times been done under the
plea Of necessity and that, too when the validity
of the plea was, TO say the least, extremely ques-
tionabie. hold that there IL less danger in gov
crnment's assuming power admitted not 10 belong
to it, whenever, by the exercise Of such powers, a
great national object will be attained a great
national calamity averted, than to seek TO justify
such usurpation of power by perverting the lam
Gus import.
Now, sir, to apply these principles. The Gov
crnment is in the possession of extensive region
Of country. The soil forms part of its domain.
IL has the undoubted right to dispose of 70, and 10
make all need rules and regulations respecting ,
considered property; but IL has no express power
20 govern the inhabitants Of this territory. Must
they be left to govern themselves they it or
must they be left in a state Of anarchy? No, the
first course would defeat the rights of the Govern
ment, the second would be contrary both 10 morals
and TO humanity. IL Is clear, then, that upon the
principle of self preservation the Government may
establish laws over people 80 situated But the
necessity which is the origin Of this power must be
the measure Of its extent. In order TO ascertain
what rightfully may do, must ascertain
what is absolutely necessary 20 be done.
Now, IL is clear that IL s not at all necessary for
TO dictate n permanent organic law TO the in
habitants Of a territory. IL is not necessary per
manently TO establish or 10 force upon them sys-
tenn of domestic polity which, however il may
please us, may be very unsuitable unpaatable TO
them. II Is not necessary TO convert a territory
into corpus rule, 10 make all sorts Of political ex-
perInents upon. IL Is not necessary TO force the
inhabitants 10 adopt our peculiar notions Of philan
thropy morality any more than our peculiar
tenets of religion; and we have more right To
prohibit the institution ofslavery in territory than
we have to prohibit the institution Of marriage.
All that is requisite for the protection of the nhab
tants and Of our own interests, and, consequently,
all that we have the power to do, is to make few
simple laws u protect them in the enjoyment Of
10 enforce those laws, and 20 provide in due time
for the legal and regular adoption, by the inhabi
tants, of such a system of government as they may
prefer with the single restriction that il be repub
hcan in its form. This is all that is necessary to
be done, and therefore all that have right 10
do. The Constitution confers on power 10 do
more. and there is no necessity 10 warrant the
sumption of the power
But, sir, suppose that am in on this point.
Suppose you have the constitutional power to pro-
hibt slavery ia territory, have you. in the present
instance, the moral power! In other words, is il
right 1t fair, is il honest, that you should exer
else the powerY
This territory was acquired partly by war, partly
by purchase. II was won by the vaor and paid Lor
with the treasure of the tohos country. What right.
therefore, has any portion Of the country assume
the entire control and management Of iH What
right has IL TO impose any restrictions limitations
upon the full and free enjoyment Of IL by the other
portion9 Either this country Is adapted 10 slavery,
il is not II il be adapted 20 slavery the prohib
ton s obviously injury not only TO all the States
in which slavery exists but TO the inhabitants Of the
territory itself IT, on the other hand, IL be not
adapted 10 slavery then the prohibition s than
an injury; II is a wanton, unprovoked, gratuitous
insult; and permit me 10 say, that a generous and
high spirited people may forgive and forget in