Washington sentinel., 1854-05-20


power II is not an inquiry of interpretation
We are not engaged in investigating whether we
can deduce or infer power over the public lands,
as falling naturally, and appropriately and neces-
sarily within some power that isexpressy granted.
There is an express grant, in terms of this power,
this whole power, 10 Congress. This power was
IN the United States, and never in the State SOW
ereigntes. as such; and this power, by the Consti-
tuition, is vested exclusively in Congress, without
any declared qualification.
Mr.. President, think that rule laid down by
Mr. Calhoun, in his poshumous work upon gov
ernment in relation 10 another subject, furnishes
very clear and safe ground for interpreting this
grant Of power, and supports the general view |
have taken On the 202d page of his treatise he
thus expresses himself:
There i very striking difference between the manner
In which the treaymakng and the awmaking power, in
srietet delegated which deserves notice. The
former vested in the President and Senate by few gem
era words without enumeratng specifying particularly
power delegated The Constitution simply provides
Of the Senate make treaties provided twohrds
the senators present concur while the legislative powers
vested in Congress- by carefully enumerated
and specified The reason Is 10 be found In the fact that
the treatymakng is vested ercusiuy in the gov
ernment of the United States and therefore nothing
necessary In deiegatng 1t than specify is DONE
the portion department Of the government In which Is
vested II then, only unnecessary but 1t would
have been absurd enumerate specially the powers
braced in grant Very different the regard
legislative powers They divided the federal
government and the State governments which made 1t
absolutely necessary order the line between the
delegated and reserved that the the other
should be carefully enumerated and specifd and as the
former intended be but supplemental to the latter
and 10 embrace the comparatively few which could
not be either exercised at ALL If it ALL could not be SO
well and safely exercised by the separate Of
the States IL proper that the former and not
the latter, should be enumerated and specified But al
though the making exclusively vested and
enumeration specification in the government Of the
United States it is nevertheless subject to several i'm
portant limitations"
The first limitation, he then states, is 80 ques-
tions inter alias. and then, in the second place,
is 10 be limited-but will give his own words:
It Is in the place. limited by all the provisions of
the Constitution which inhbit certain acts from being
done by the government or any OF its departments OF
such provisions the Constitution direct certain
be done in particular way, and which prohibit the
conrary Of which striking example is TO be found In
which declares that money shall be drawn from
the treasury but in consequence Of appropriations to be
made by law"
Then he states that, by necessary limitation,
implied, though not expressed, the treaty making
power Of the country cannot be used 10 destroy
alter the Constitution or government under which
ii is exercised.
Now, sir | ask the attention of the Senate for
one moment 10 this statement. The power OF
making treaties, MIR. Calhoun says, is power er-
ciHSipeiy vested in the government OF the United
States. Ii was power that either could not be
exercised al all by the separate States, or not so
well and conveniently; and. therefore, the achote
poicsy was given 10 this government, Hence, he
enumeration of particulars; II would have been
absurd the whole is given. It's an express pow
er, and an ezciuSre power, and therefore, Is sub
Ject TO no limitation, in his Judgments but those
which he has specified growing necessarily
either out oithe nature OF the power granted, or
out OF express inhibtions elsewhere contained in
the Constitution, out oil the necessity OF pre-
serving intact the Constitution itself under which
the power is exerted. But, he says, with re-
gard 10 legislative powers divided between this
opI, thps tate IN hpSP
an enumeration of one cass on the other was ne
cessary, and those granted 10 Congress were
lected the powers more convenient and more
proper for enumeration.
Now, sir, how exactly is that the case with
gard 10 the grant of power over the public lands.
Ii is not among the general enumerated legislative
powers OF Congress. 1t is power eTclasrsly in
Congress II is power that never in the
States Sfpdrateiy and therefore could not be re-
serped 10 the States under the Constitution. Ii
was power that could not be exercised by the
States separately at all, or il could not be exer-
cised, al least, without manifold Inconvenience,
and therefore the Constitution vests it in Congress-
vests expressly, and vests II without limitation
and from the very nature Of the case II cannot be
held subject 10 any constitutional limitation, un-
less snch an implied Limitation those, some
| OF those, which are mentioned by Mr.. Calhoun.
i The power being thus distinct, exclusive ex-
press, unqualified, granted in the largest terms 10
dispose OF without restriction or limitation, 10 give
10 sell, or 10 use, the property which is the sub
lect OF this grant, Just an owner in feesimple
| used his estate, where is tha limitation upon
Lit ] am now speaking about the grant of power
! by the Constitution. There is another view oil
! the subject, of which | shall speak presently.
\ Where is the limitation Where can you find a
| restriction in this instruments There is the pro-
| vision unqualified. If the power TO make treaties
be thus absolute, and subject 10 other than
those necessary and inevitable restrictions sug-
gested by Mr. Calhoun, how does il happen that
the power TO dispose OF the public lands, granted
in equally broad terms, is not coextensive in its
largeness with the treaty.making power? As
MIR. Calhoun argues, this is an express grant of
an exclusive power. therefore all the treaiy-ma-
king power is in the President, by and with the
advice and consent of the Senate. Whatever may
be done by treaty, may be done by the Pres-
dent by and with the advice and consent of the
Senate, unless il is, among other things, TO exer-
else power whch the Constitution inhibited 10
the government any Of its branches, or where
q thing is authorized 10 be done in particular
manner and prohibited in any other, or where the
power is sought 10 be used for the purpose Of de-
stroylng or altering the Constitution. Where,
then, are there any limitations upon this power
/ over the lands II the United States Of America,
l as political sovereignty. own property, they un-
! doubtedly have powerto sell or otherwise dispose
OF IT, 10 sell II for whatsoever they please, and 10
| give II 10 whomsoever they please. Well, what
! ever their power was, they have deyolved it upon
| Congress IN express, unmistakable terms
This, sir, has been the opinion not only or
statesmen, but of sound and enlightened jursts
MIR. Justice Story, in his work upon the Constitu
ton, says
The power Of Congress tho public territory Is
clearly sgchre and universal and their alton IL sub
ject TO CONTROL but is absolute unIntd unless SO
far is affected by stpuatons in the cesso by
ordinance of 1857 under which any part of 1t has
settled."--.Sc. 1925
Such, Mr.. President, seems TO have been the
opinion Of General Jackson. In his message 10
Congress at the commencement of the session Of
1882, you will find this language:
"Among the interests which merit the consideration
Congress- after the payment Of the public debt the
most important in my view Is that Of the public lands
Previous 10 the formation of present Constitution 1t
recommended by Congress that portion the
lands owned by the States should be ceded the United
States for the Of general harmony and fund
meet the expenses Of the The
adopted and at different periods of time States of
Massachusetts, New York Virginia North and South Car
ona and Georgia. granted their soil the uses
for which they had been asked the lands may now be
considered relieved from this pledge the object which
they cded hdrng been accomplished IN the discre-
on ~ Congress 10 dtsose of them IA such 1cay best
conc 10 the QUIET, HARMONY INTEREST
American people In examining this question al local
ond sectional feelings should be discarded and the tchois
tnd States regarded peopc interested alike in The
property Of their common country"
surely II is impossible 10 express the power in
and .h.,r. -