The Crisis! (Galveston, Tex.), Vol. 1, No. 6, Ed. 1 Monday, August 27, 1860 Page: 2 of 4
four pages : ill. ; page 18 x 12 in. Digitized from 35 mm. microfilm.View a full description of this newspaper.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
CALVKNTOV, AUGUST ÍT, 1800.
RELATIONS OF STATES.
Speech of the Htm. JEFFERSON 1)A VIS of Mississ-
ippi, in the U. S. Senate, May 1th, I860, on the Resolu-
tions submitted by him, 1st March, 1860. _
(Continued from August 20th, and concluded.)
'Hie power of Congress to rule over the Territories
—a subject not well defined in the Constitution of the
United States—has been drawn from various sources
by different advocates of that power. Some have
found it in the grant of power to dispose of the Ter-
ritory and other public property. That is to say, be-
cause the agent was authorized to sell a particular
thing, or to dispose of it by grant or barter, for speci-
fied purposes, therefore he has sovereign power over
that and over all else which the principal constituting
him an agent may hereafter acquire! The property,
bedsides the land, consisted of forts, of ships, of arma-
ments, and other things which had belonged to the
Statos in their separate capacity, and were turned over
to the Government of the Confederation, and transfer-
red to the Government of the United States, and of
thify together with the land so transferred, the Federal
Government was authorized to dispose ; and of terri-
tory thereafter acquired, of arms thereafter made or
purchased, of forts, or custom-houses, or docks, or light-
nouses, or arsenals thereafter constructed ; of all these,
•f course if it had power to create them, it must, of ne-
cessity, have had the power to dispose. It was only
neecssary to confer power over those things which the
"Federal Government did not create, those which came
to it from the States, and over which they might, as
property, have retained control.
I look upon the clause referred to, as giving the
mere power to dispose of, for considerations and ob-
jects defined in the trust, the land belonging to the
United States, none of which then was within the
limit of a State, and the other public property which
the United States received from the States after the
formation of the Union.
Í do not .agree, however, with tlio.se who say the Gov-
ernment has no power to establish a temporary and
civil government within a Territory. I stand half
way between the extremes of squatter sovereignty
and of Congressional sovereignty. J hold that Con-
gress has power to establish a civil government; that
it derives it from the grants of the Constitution—not
the one which lias been referred to : and I hold that
that power is limited and restrained, first by the Con-
stitution to its defined boundaries, and then within
those by every rule of popular liberty and sound dis-
cretion, to the narrowest limits which the necessities
of the case permit. Congress has power to defend
the territory, to repel invasion, to suppress insurrec-
tion ; to cnac! the laws nccc.vary to curry out its dele-
gated power, and to sec the laws executed. For this,
it may have a civil magistracy—Territorial courts. It
has the power to establish a Federal judiciary, to which
may come up to be decided, from these local courts,
questions with regard to the laws and the Constitution
of the United States. These, combined, give power
to establish a temporary government, sufficient, per-
haps, for the simple wants of the inhabitants of a Ter-
ritory, until they shall acquire the population, until
they shall have the resources and the interests which
justify them in becoming a State. 1 am sustained in
this view of the ease by an opinion of the Supreme
Court of the United States in 1842. in the ease of
Pollard's lessee vs. P. Hagan, (3 Howard, 222, 223,)
in which the court says :
"Taking the legislative acts of the United States,
and the States of Virginia and Georgia, and their
deeds oí' cession to the United States, and giving to
each separately, and to all jointly, a fair interpreta-
tion, 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 it in trust for the perform-
ance of the stipulations and conditions expressed in
the deeds of cession and the legislative acts connected
with them."
This was a question of land. It was land lying be-
tween high and low water, over which the United
States claimed to have and to exercise authority be-
cause of the terms on which Alabama had been admit-
ted into the Union. In that connection, 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 sovereignty, jurisdiction, and emi-
nent domain which Georgia possessed at the date of
the ccs3Íon, except so far as this right was diminished
by the public lands remaining in the possession and
under the control of the United States for the tempo-
rary purpose provided ior in the deeds of cession and
the legislative acts connected with it. Nothing re-
mained to the United States, according to the terms of
the agreement, but tlie public lands ; and if an express
stipulation had been inserted in the agreement, grant-
ing the municipal right of sovereignty and eminent
domain to the United States, such stipulation would
have been void and inoperative; because the United
States has no constitutional capacity to exercise muni-
cipal jurisdiction, sovereignty, or eminent domain,
within the limits of a State or elsewhere, except in the
cases 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 municipality of New Orleans be-
cause they would not allow a dead body to be exposed
at a 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, speak-
ing of the ordinance for the government of Louisiana:
" So far as they conferred political rights and secured
civil and religious liberties (which arc 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 State."—Permoli vs. Municipality, 3 How-
ard, G10.
Thus we find the Supreme Court sustaining the prop-
osition that the Federal Government has power to
establish a temporary civil government within the lim-
its of a Territory ; but that it can enact no law which
will endure beyond the temporary purposes for which
such government was established. In other cases the
decisions of the Court are to the same effect ; and in
1855 the then Attorney General, most learned in his
profession—and in what else is he not learned, for he
may be said to be a man of universal acquirements ?—
Attorney General Cushing then foretold what must
have been the decision of the Supreme Court on the
Missouri Compromise, anticipating the decision subse-
quently made in the case of Dred Scott; that decis-
ion for which the venerable justices have been so often
and so violently arraigned. He foretold it as the nec-
essary consequence from the line of precedents descend- j
ing from 1842, affirmed and re-affirmed in different
cases, and now bearing on a case similar in principle,
and only different in the subject involved from those
which had gone before. As connected with the decis-
ion which has agitated the peace of the country ; as
the anticipation of that decision, viewing it as the nec-
essary consequence of the decisions which the Court
had made before; if it be the pleasure of the Senate,
I ask my friend from South Carolina to read for me a j tinction between that description of property and
It was known it could not be decided fully, finally and
in strictness of technical language. Hundreds, thou-
sands of cases may arise, centuries may elapse,^ and
leave that court, if our Union still exists, deciding
questions in relation to that character of property in the
Territories ; but the great and fundamental idea was
that, after thirty years of angry controversy; dividing
the people and paralyzing the arm of the Federal
Government, some umpire should be sought which
would compose the difficulty and set it upon a footing
to leave us in future to proceed in peace; and that
umpire was selected which the Constitution had pro-
vided to decide questions of constitutional law. I
ask my friend to read some extracts from the decision.
Mr. Chesnut read as follows, from the case of Dred
Scott vs. Sandford, pp. 55, 56, and 57 :
" The Territory being a part of the United States,
the Government and the citizen both enter it under
the authority of the Constitution, with their respec-
tive rights defined and marked out; and the Federal
Government can exercise no power over his person or
property beyond what that, instrument confers, nor
lawfully deny any right which it has reserved. * *
" The powers over person and property of which we
speak are not only not granted to Congress, but are
in express terms denied, and they are forbidden to
exercise them. And this prohibition is not confined
to the States, but the words are general, and extend
to the whole territory over which the Constitution
gives it power to legislate, including those portions of
it remaining under territorial government as well as
that covered by States. It is a total absence of power
everywhere within the dominion of the United States,
and places the citizens of a Territory, so far as these
rights are concerned, on the same footing with citizens
of the States, and guards them as firmly and plainly
against any inroads which the General Government
might attempt under the plea of implied or incidental
powers. And if Congress itself cannot do this—if it
is beyond the powers conferred on the Federal Gov-
ernment—it will be admitted, we presume, that it
could not authorise a territorial government to exer-
cise them. It could confer no power on any local
government, established by its authority, to violate
the provisions of the Constitution.
" And if the Constitution recognizes the right of
property of the master in a slave, and makes no dis-
letter of the Attorney General, being an official an-
swer made by him in relation to the military reserva-
tion whicli was involved in the question before him.
Mr. Chesnut read from the Opinions of the Attor-
neys General, volume 7, page 575 :
" The Supreme.Court has determined that the United
other property owfied by a citizen, no tribunal, acting
under the authority of the United States, whether it
be legislative, executive, or judicial, has a right to
draw such a distinction, or deny to it the benefit of
the provisions and gnarantccs which have been pro-
vided for the protection of private property against
States never held auy municipal sovereignty, jurisdic-ithe encroachments of the Government.
tion, or right of soil in the territory of which any ofr "This is done in plain w5i*Qs—too plain to be mis-
tlie new States have been formed, except for tempo-
rary purposes, and to execute the trusts created by the
deeds of cession."
understood. And no word can be found in the Con-
stitution which gives Congress a greater power over
slave property, or which entitles property of that kind
to less protection than property of any other descrip-
i:— The only power conferred is the power, coupled
tion.
" By the force of the same principle, and in the same - . ...
lirin of adjudications, the Supreme Court would have ' w5th duty. of guarding and protoeti np; f]in rjTVr
had to decide that the provision of the act of March j ^ r*ghts.
6, 1820, which undertakes to determine in advance tho
municipal law of all that portion of the original pro-
vince of Louisiana which lies north of the parallel of
3G deg. 30 iñin. north latitude was null and void ad,
inccpto, if it had not been repealed by a recent act of
Congress. (Comp. IV. Stat, at Largo, p. 848, and X
Stat, at Large, p. 289.) For an act of Congress
which pretends of right, and without consent or com-
pact, to impose on the municipal power of any new
State or States limitations and restrictions not imposed
on all, is contrary to the fundamental condition of the
Confederation, according to which there is to be equal-
ity of right between the old and new States 'in all
respects whatsoever.' '
Mr. DAVIS. It vas not long after this official
opinion of the Attorney General before the case arose
on which the decision was made which has so agitated
the country.* Fortunxtc, indeed, was it for the public
peace that land and religion had been previously de-
cided—those questions on which men might reason
had been the foundation of judicial decision—before
that, which it seems, drives all reason from the mind
of man, came to be [resented : the question whether
Cuffec should be kep; in his normal condition or not:
the question whether the Congress of the United
Statos could decide vhat might or might not be prop-
erty in a Territory. The case being that of an officer
of the army sent into a Territory to perform his pub-
lic duty and who liac taken with him his negro slave.
The Court, howevci, in giving their decision in this
case—or their opinhn, if it suits gentlemen better—
have gone into the jucstion with such clearness, such
" Upon these considerations, it is the opinion of the
Court that the act of Congress which prohibited a
citizen from holding and owning property of this kind
in the territory of the United States north of the line
therein mentioned, is not warranted by the Constitu-
tion, and is therefore void; and that neither Dred
Scott himself nor any of his family were made free by
being carried into this territory, even if they had been
carried there by the owner with the intention of be-
coming a permanent resident."
Mr. Davis.—Here, then, Mr. President. I say the
umpire selected as the referee in the controversy, has
decided that neither the Congress nor its agent, the
territorial government, has the power to invade or
impair the right of property within the limits of a
Territory, hut is bound o guard and protect it. I
will not inquire whether it be technically a decision
or not. It is obligatory on those who selected the
umpire and agreed to abide by the award.
It is well known to those who have been associated
with me in the two houses of Congress that from the
commencement of the question, 1 have been the deter-
mined opponent oí what is called squatter sovereignty.
I never gave it countenance, and I am now least of all
disposed to give it quarter. In 1848 it made its ap-
pearance for good purposes. It was ushered in bv a
great and good man. lie brought it forward because
oí that distrust which he had in the capacity of the
Go\ eminent to bear the rude shock to which it was
exposed. His apprehensions', no doubt, to some extent
sharpened and directed his patriotism, and his reflec-
tion led him to a conclusion, from which it was myfor-
precision and such Amplitude, that it will relieve me I tune, good or ill, to dissent, when his letter was read
i'ruin the necessity cf arguing it any further than to > to me in manuscript: I, together with some other per-
S0nS) being asked, though not by the writer, whether,
or not it should be sent out as the expression of our
make a reference to some sentences contained in that
opinion. And here let me say, I cannot see how those
who agreed on a former occasion that the constitu-
tional right of the slaveholder to take his property
into the Territory—the Constitutional power of the
Congress and that cf the Territory to legislate upon
the subject—should be a judicial question, can now at-
tempt to escape tho operation of an opinion which
covers the exact political question which it was known
beforehand the court would be called upon to decide.
political creed. At the first view, I believed it to be
a fallacy—and one fraught with mischief; that it
avoided the issue which was upon us whicli it was our
dut}' to meet | but that it escaped it by a side path
which led to greater danger. I thought it a fallacy
which would surely be exploded. I doubted then, and
still more for some time afterwards, when held to a
heavy responsibility for the position which I occupied.
+ *
i
*\
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Newspaper.
The Crisis! (Galveston, Tex.), Vol. 1, No. 6, Ed. 1 Monday, August 27, 1860, newspaper, August 27, 1860; Galveston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth181139/m1/2/: accessed June 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting The Dolph Briscoe Center for American History.