Year: 1860

From the postulates which have laid
down result the fourth and fifth resolutions.
They are the two which expect to be oppos-
ed They contain the assertion Of the equal
ity Of rights Of all the people Of the United
States in the Territories, and they declare the
obligation of the Congress TO see these rights
protected. | admit that the United States
may acquire eminent domain. l admit that
the United States may have sovereignty over
territory; otherwise the sovereign jurisdiction
which we obtained by conquest or treaty
would not pass 10 us. | deny that their
agent, the Federal Government, under the ex-.
isting Constitution can have eminent domain;
deny that it can have sovereignty. l con-
slider it as the mere agent Of the States-an
agent Of limited power; and that il can do
nothing save that which the Constitution en-
powers it to perform; and that though the
treaty or the deed of ccssion may direct or
control, it cannot enlarge or expand the pow
ers of the Congress; that it is not sovereign
in any essential particular. 1t has functions
to perform, and those functions propose now
to consider.


The power of Congress over the Territories
"a subject not well defined in the Constitu-
ton Of the United States-has been drawn
from various sources by different advocates Of
that power One has found it in the grant Of
power to dispose of the Territory and other
public property. That is to say, because the
agent was authorized to sell particular thing,
or to dispose of it by grant or barter, there
fore he has sovereign power over that and all
else which the principal constituting him an
agent may hereafter acquire! The property,
besides the land, consisted Of forts, of ships, Of
armaments and other things which had be-
Az -
and were turned over 10 the Government Of
the Confederation, and transferred to the Gov
ernment of the United States, and Of this, to-
gether with the land so transferred, the Fed
eral Government had the power to dispose;
and Of territory thereafter acquired, of arms
thereafter made or purchased, Of forts there
after constructed, or custom houses, or docks,
or lights, or buoys; of all these, Of course, it
had power to dispose. 1t had the power to
create them; it must, Of necessity, have had
the power to dispose Of them. 1t was only
necessary to confer the power to dispose Of
those things which the Federal Government
did not create, of those things which came to
it from the States, and over which they might
signify their will for its control.


look upon it as the mere power to dispose
Of, for considerations and objects defined in

ncne of which was then within the limits Of
of the States, and the other public property
which the United States received from the
States after the formation Of the Union.
do not agree with those who say the Govern
ment has no power to establish temporary
and civil government within Territory. |
stand half way between the extremes Of squat.
ter sovereignty and of congressional sovereign
ty. hold that the Congress has power to
establish civil government; that it derives it
from the grants Of the constitution, not the
one which is referred to; and hold that that
power is limited and restrained, first by the
Constitution itself, and then by every rule Of
popular liberty and sound discretion, 10 the
narrowest limits which the necessities of the
case require. The Congress has power to de-
fend the territory, to repel invasion, to sup
press instruction; the Congress has power to
see the laws executed. For this it may have
a civil magistracy--territoria courts. It has
the power to establish Federal judiciary
70 that Federal Judiciary, from these local
courts, may come up to be decided questions
with regard to the laws Of the United States,
and the Constitution of the United States.--
These, combined, give power to establish
temporary government sufficient, perhaps, for
the simple wants of the inhabitants of Ter
ritory, until they shall have the resources and
the interests which justify them in becominga
State. ! am sustained in this view of the
case by an opinion of the Supreme Court of
the United States in l845, in the case Of Pol
lard's lessee VS.. P. Hagan g Howard, 222,
223,) in which the court say:


Taking the legislative acts of the United
States, and the States of Virginia and Geor-
gia, and their deeds of cession to the United
States, and giving to each separately and to all
Jointly, fair Interpretation, we must come to
the conclusion that it was the intention of the
parties to invest the United States with the
eminent domain Of the country ceded, both
national and municipal, for the purposes Of
temporary government: and to hold il in trust
for the performance of the stipulations and
conditions expressed in the deeds of cession
and the legislative acts connected with them."


This was question of land. 1t was land
lying between high and low water, over which
the United States claimed to have and to ex-
ercise authority, because of the terms on
which Alabama had been admitted into the
Union. In that connexion, the Court say, in
the same case:


"When Alabama was admitted into the
Union, on an equal footing with the original
States, she succeeded to all the rights Of sove-
reignty, jurisdiction and eminent domain
which Georgia possessed at the date of the
cession, except SO far as this right was dimin-
ished by the public lands remaining in the
possession and under the control of the Uni
ted States for the temporary purpose provided
for in the deeds Of cession and the legislative
acts connected with it. Nothing remained to
the United States, according to the terms Of
agreement, but the public lands; and il an ex-
press stipulation has been inserted in the
agreement, granting the municipal right Of
sovereignty and eminent domain to the Uni
ted States, such stipulation would have been
void and imperative, because the United
States has no constitutional capacity 10 exer-
else municipal jurisdiction, sovereignty, or
eminent domain, within the limits Of State
or elsewhere, except in the case in which it
is expressly granted"


Another case arose, not long afterwards, in
which, not land, but religion, was involved,
where suit was brought against the munich
pality of New Orleans because they wOnld
not allow a dead body to be exposed alta place
where, according to the religious rites Of those
interested, it was deemed they had a right
thus to expose it. On that the Supreme
Court say, speaking Of the ordinance for the
government Of Louisiana:


$50 far as they conferred political rights and
secured civil and religious liberties (Which are
political rights the laws Of Congress were all
suspended by the State Constitution; nor is
any part of them in force, unless they were
adopted by the Constitution of Louisiana as
laws Of the ate"-PernsoEi Is. First H.tni-
cipalty, 8 Howard, 6l0.


Thus we find the Supreme Court sustaining
the proposition that the Federal Government
has the power to establish a temporary civil
government within the limits Of Territory;
but that it can enact no law which will en-
dure beyond the temporary purposes for which
such government was established. In other
cases the decisions of the court run in the
same line; and in 1855 the then Attorney
General, most learned in his proteSsion-and
in what else is he not learned, for he may be
said to be a man of universal requirements?
Attorney General Gushing then foretold what
must have been the decision of the Supreme
Court on the Missouri compromise, anticipa-
ting the decision subsequently made in the
case Of Dred Scott; that decision for which
the venerable justices have been so often and
so violently arTaigned. He foretold it as tho
necessary consequence from the line of prece-
dent descending from 1S42, affirmed and re-
affirmed in different cases, and now bearing on
a case similar in principle, and only different
in the mere reference to the subject involved
from those which had gone before As con-
nected with the decision which has agitated
the peace Of the country; as the anticipation
of that decision before it was made, viewing it
as the necessary consequence OF the decisions
which the court had made before; il it be the
pleasure of the Senate, ask my friend from
South Carolina to read for me letter Of the
Attorney General, being an official answer
made by him in relation TO the military reser-
walton which was involved in the question be-
| fore him.


| Mr.. Chestnut read from the Opinions of the


Attorney Generals, vol. z, P. $40:


"The Supreme Court has determined that


the United States never held any municipal


sovereignty, jurisdiction or right Of soil in the


territory Of which any Of the new States have
been formed, except for temporary purposes,


and to execute the trusts created by the deeds
| of cessiou"