The Washington union., 1857-05-29

formed for our whole country An expansion
traction OF our territory required change IN the funda
mental law. When we consider the men who laid the
foundation of government and carried il into opera
ton, the who occupied the bench who filled the
halls of legislation and the Chief Magisacy IL would
seem, If any question could be settled clear OF all doubt
it the power of Congress 10 establish territorial gov
ernments Slavery prohibited in the entire North
western Territory with the appreciation OF leading men,
South and North; but this prohibition not retain
ed when this ordinance adopted for the government
of southern Territories where slavery existed, In late
republication of letter of Mr.. Madison dated No
vember ~, 1873 speaking of this power OF Congress
to prohibit slavery in Territory, he iners there Is
such power, from the fact that it has not been
exercised. This is not very satisfactory argument
against any power there but few, If any subjects
which the constitutional powers of Congress are ex-
hausted 1t is true, Mr. Madison states, that Con-
gress in the act to establish government IN the Msss-
spp Territory prohibited the importation of slaves into
from foreign parts but it is equally true that in the
act erecting Louisiana into two Territories, Congress de-
cared ii shall not be lawful for any person TO bring
into Orleans Territory from any port place within the
limits of the United States any slave which shall have
been imported since 1898 which may hereafter be inn
ported except by citizen of the United States who set
ties the Territory under the penalty of the freedom OF
such slave" The inference of Mr. Madison, therefore,
against the power of Congress- is of force, it was
founded on fact supposed which did not exist
Ii is refreshing to turn to the early incidents OF our
history and learn wisdom from the acts OF the great men
who have gone TO their account. refer to report IN
the House of Representatives, by John Randolph, of
Roanoke, chairman Of committee in March, 1905
fifty -four years ago From the convention held at Vincennes
in Indiana by their president and from the people OF the
Territory petition presented to Congress, praying
the suspension of the provision which prohibited slavery
in that Territory. The report stated that the rapid pop
uation of the State of Ohio sufficiently eyinces in the
opinion of your committee that the labor of slaves not
necessary promote the growth and settlement of colo
nies in that region that this labor, demonstably the
dearest of any, only be employed to advantage IN the
cultivation of products valuable than any known to
ttaa
deem it highly dangerous and inexpedient to impair
provision wisely calculated to promote the happiness and
prosperity of the Northwestern country and to give
strength and security to that extensive frontier In the
sautay operation of this sagacious and benevolent re-
strant it is believed that the inhabitants WILL at very
distant day. find ample remuneration for temporary pri
walton of labor and of emigration" q vol State Pa
pers Public Lands 1907
The judicial mind OF this country State and federal
has agreed ON subject, within its legitimate action,
with equal unanmity the power of Congress to
tablish territorial governments. No court State or fed
eral no Judge or statesman is known to have had any
doubts this question for nearly sixty years after the
power was exercised. Such governments have been es-
tablished from the of the Ohio to the Gulf OF
Mexico extending to the lakes the north and the Pa
citc ocean the west and from the lines of Georgia to
Texas
Great interests have grown up under the territorial
laws over country more than five times greater in ex
tent than the original thirteen States and these interests
corporate otherwise have been cherished and CONSOLE
dated by benign policy, without any one snpposing the
law making power had united with the Judiciary, under
the universal sanction Of the whole country to usup
jurisdiction which did not belong to them Such dis
covery at this late date Is more extraordinary than any
thing which has occurred in the judicial history of this
any other country Texas, under previous organizl
tion admitted State but no State can be admit
ted into the Union which has not been organized under
some form of government. Without temporary govern
ments our public lands could not have been sold, nor
our wdenesscs reduced to cuvatol and the population
protected; could our tlourshng States West and
South, have been formed.
What do the lessons of wisdom and experience teach,
under such circumstances If the light which has so
suddenly and unexpectedly burst upon us be tuef Ac-
quescence acqucscence under settled construction OF
the constitution for sixty years. though it may be errone
GUS which has secured to the country an advancement
and prosperity beyond the power of computation
of james Madison, when President, forciby IL
illustrates this policy He had made up his opinion that
Congress had no power under the constitution TO
National Bank. In 1915 Congress passed a bill to es-
tabsh bank He vetoed the bill, objections other
than constitutional In his message he speaks as wise
statesman and Chief Magistrate, as follows:
Waving the question of the constitutional authority
of the legislature to establish incorporated bank
being precluded in my Judgment by the repeated rccog-
ntions under varied circumstances OF the validity OF such
institution in acts of the legislative executive, and
judicial branches of the government, accompanied by in
dicatons, in different modes, of concurrence of the
general will of the nation,
Has this impressive lesson of practical wisdom become
lost to the present generation
ent are to be settled there can be no lasting
pcrity The constitution will become floating waf on
the billows of popular excitement.
The prohibition of slavery north of hiysix degrees
thirty minutes and az the State of Missouri contained in
the act admitting at State rto the Union, passed
by vote of 84 ~ te Hoase of Representatives to A.
Before Mr. Monr~ gsel the act, il submitted by
him to his cneA and they held the restriction of slave
nv in Territory 81 within the constitutional powers of
Congress II would be singular if in 1904 Congress had
power to prohibit the introduction of slaves in Orleans
Territory from any other part OF the Union, under the
penalty of freedom to the slave if the power i'm
bodied in the Missouri compromise could not be exercised
in 1920.
But this law of Congress- which prohibits slavery north
of Missouri and of bty-sx degrees thirty minutes is
declared to have been null and void by my brethren
And this opinion is founded mainly, as understand,
the distinction drawn between the ordinance of 1877 and
the Missoucompromise line. In what does the dstnc-
ton consist The ordinance it Is said, was compact
entered into by the coneeaed States before the adop
ton of the constitution and that in the ceson of terri
tory authority given to establish territorial govern
ment.
II is clear that the ordinance did not go into operation
by virtue of the authority of the confederation but by
of its modification and adoption by Congress under
the constitution 1t to be supposed in the opinion
of the court that the articles of cession placed 1t
different footing from territories subsequently acquired
unable to perceive the force of this distinction That
the ordinance was intended for the government of the
Northwestern Territory and limited osuch Territory
is admitted 1t was extended to southern Territories with
notifications by acts Of Congress- and to some northern
Territories But the ordinance made valid by the act
of Congress- and without such act could have been OF
force 1t rested for its validity the act of Congress
the same in my opinion, the Missouri compromise