The daily union., 1856-12-20

the constitution, not from the powers Of the States
or of the State Legislatures and the Supreine Court
principle that instead of resorng to the constitution to
find the powers of Congress- should resort 10 the laws
and constitutions of the several States Where the pro-
vision of the general constitution which looks TO the laws
of the States for jurisdiction If Congress have general
authority the Territories they do not possess be-
analogous authority is possessed by the States but
because is erred upon them by the constitution OF the
United States Whether you derive from clause
from another you must derive il from the constitution
The Supreme Court by this rsuark meant as said TO al
lude the peculiar form of our government in order to IL
lustre the of the congressional jurisdiction that
the general possessed certain local powers
thus acting like the State governments independent OF the
general power applicable in the States which they held
under the constitution That was the purport of the re-
mark. a. .,a ..a ..# g ID. ..n .aa.N ga. ...
But after ALL Mr. President these analogica remarks
dangerous tools meddle WITH and think, in stern,
severe investigation judicial tribunals should avoid them
lest the reader be misled, and the remark OF the
be construed into its decision and the reasons for It,
Passing by that point let me turn back to the decision
of the court the main subecthe right OF Congress to
govern the Territories Judge Marshas name connect
ed mperishahy with the judicial history of the country
His decsop establish great principles OF constitutional
law which viii last as long as the government shall en-
dure He had great sagacity great intellect great pow
Of a M Hs a
system of exposition and went far towards its COM
peton But Judge Marshall certainly in the decision
which have read and upon w..ch propose 70 ae'an
the Senate with few remarks does usua'
power of research and cearness of Investigation. And
will add that the Supreme Court of the United States
had often made such decisions or rather had given snch
for them they would not have attained the posi-
ton they deservedy hold in the high estimation OF
the country. What does Judge Marshall say Let me re-
mark he man who saw clearly and clearly expressed
what he But what is the amount OF this decision
The power of government Is derived from four different
sources OF them in the constitution and of them
of it, leaving the reader in doubt as to which of them
whether either of hem the true He does not
the point of true Jurisdiction, and rest there but
leaves the mind of the reader in the uncertainty which
had taken possession of his Here are his words:
uForida continues to be Territory the United States
by virtue of that clause in the constitution which
Congress ito make all needu rules and regula
.ons concerning the territory or other property belonging
If the court had stopped there there would have been
doubt of their views But they did not The very next
sentence throws the matter into confusion Thus it reads
perhaps the ogovernng Territory belonging to
the United States which has not, becoming State
qued the of ssgovernment, result necessarily
the facts that is not within the jurisdiction of
the United States The right to may Be nevita
BILE consequence of the right to acquire territory"
After first deciding that tho power is derived from the
right to regulate the public property the Chief Justice
itates and throws doubts upon his views by saying
that perhaps this power results from the fact that the Ter
rtory within the jurisdiction of any particular State
and is within the power and jurisdiction of the United
States And he adds that the right govern may b,
doubtful sgan) the inevitable consequence of the right
acquire territory. ~
do not precisely understand whether this nevitabl,
solely from the TACT OF
or with the power of acquisition and is de
rived from it. 1t to put the power upon the ground
that Congress exercise 1t because there Is ohe
power do Whether, therefore, this view embraces
Two sources jurisdiction only one do not undertake
to determine But there is still another derivation of th
authority suggested by the court 1t is this, The Chic
Justice says, speaking OF the territorial eotrts
They are legislative courts, created in virtue of thu
general right Of sovereignty which exists in the
i Here is another foundation, certainly the third
perhaps the fourth upon which the supeucure of legs
laton is constructed and all qualified with "per
haps" This is not the way in which Judge Marshal
usually expressed his convictions. His mind clear
His language distinct and left doubt upon tn
mind of the reader Those characteristics fount
here. His doubts obvious. No question tha
he TO the consideration of this subject with pre-
conceived opinion that the power had long been exercised
and ought to be supported, and that he examined tn
constitution for that purpose and with this impression
But this is not all. After enumerating these various
sources of power the Chief Justice remarks "Whcheve
may be the whence tho derived the
SION of 1t is unquestionedp
That is not the way the supreme tribunal Of this coun
have met constitutional questions, is it the way
which this question should be met We did want tn
court to tell US whether Congress bad possession of h
power, or In other words, exercised it Every wh
has read page of the history of bis country kne1
anything of It's political proceediugs knew that II ha
been exercised from the foundation Of this government
The question before the COURT and which should have
met at once does the constitution grant the author
y, and If by what provisionH They should have
that point clearly and not have thrown doubts upon tn
subject by saying whichever is the authority whether
der the first second third fourth of these provisions
any other Congress have got possession of the power
They have got lawful possession Of IL If the
ton does not confer 1T repeat the question before
court was not whether Congress In possession Of th
power but whether Congress was lawfully and const
tutonaly in possession Of t7 That the point whic
submitted TO the court and they have been foowe
by other urists in the Hear what Chanceo
Kent says on this point:
1t would SEEM from the various congressional reeus
tons Of the Territories belonging the United States
Congress have supreme power and the government of them
depending on their sound discretion"
How does that appear The learned commentator doe
tappears by the constitution but ait would seer
from the various congressional regulations" That is
an exposition OF the constitution of the United States
is historic fact That not the point the com
mentaor was approaching, The point he approach
ing where did they get the power7 He avoids thai
turns and says appears they have 1T because there
certain congressional regulations touching i'll
n Mr.. President allow to say few words on the as
sumption that Congress has the power govern Terri
tory because 1t possesses the power to dispose Of
make all needful rules and regulations concerning ter
rory and other property belonging to the United States
The senator from Maine Mr. FEssrNDES the last
sion believe maintained that the word territory 4
that clause of the constitution equivalent to th
word land" When remarked to him that the Suprem
Court had so decided the senator doubted It. But decis
ion or no decision the phraseoogy s clear that the
territory does not political community but nc
cessaTly means property" Congress shall have power
dispose of and make all need rules and regulations con
cernng the territory or other property belonging to the Uni
Il ted States"
Mr. FESSENDEN. think the senator is mistaken a
to the ground which took Ny impression is that th
question was started by himself contended that Con
gress had the jurisdiction under that clause Of the cons
ton He referred to the fact Of decision that the
territory" In that connexon meant land" | did no
deny the proposition that it land certain aspect
but contended that II well gave the power Of epsa