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Jax. 19, 1833.)
with the laws which have been enacted to carry them sovereign, and independent States, they solemnly pledginto effect, both under the old confederation and the ex-ed to each other “their lives, their fortunes, and their saisting constitution.
cred honor,” to maintain and preserve the independence But before I enter into this examination, I beg the in- thus declared in defiance of the power of the mother dulgence of the Senate while I take a very brief notice country, or of any other power whatsoever, by which of what I consider an erroneous opinion which several their liberties might be assailed or endangered. This honorable Senators have expressed in relation to the memorable and solemn act was promulgated only a short title to the waste and unappropriated lands in the United time before the articles of confederation were agreed on, States, supposed to be acquired by conquest from the by the same patriotic body, and transmitted to the respectcrown of Great Britain. It is alleged that these lands ive State Legislatures for their assent and ratification. were won by the common arms, and therefore became the The war of the revolution progressed, but the means common property of all the States of the confederacy. by which it might be brought to a speedy and favorable From this opinion I must be permitted, without intending termination engaged the attention and excited the anxious to doubt the sincerity with which it has been advanced, solicitude of Congress and the country at large. Amidst or the high authority' by which it is maintained, to enter the numerous difficulties by which this noble band of patrimy entire dissent.
ots were surrounded, the scanty means on which they were By the war of the revolution the united arms of the compelled to rely to supply the indispensable wants of the colonies conquered and gained their liberties and inde- army, the absence of a sound circulating medium, and the pendence on the mother country:
depression of public credit, their attention was very naturalThese were acknowledged by the British Monarch ly and properly turned to the wilderness of the West; and in the treaty of peace entered into on the 3d day of the vast uncultivated domains in these regions were looked September, 1783, which fully recognised each separate to as a fund out of which to compensate, at a future day, colony as an independent sovereignty, by name, as they the services and sacrifices of the war-worn veterans who were respectively formed by their ancient charters. so triumphantly fought our battles in the field, and as a
The treaty with Great Britain did not acknowledge permanent resource on which we might safely depend the independence of the United States as a nation; but the for the final extinguishment of the enormous debt incurthirteen colonies were, by that instrument, declared to be red in achieving the glorious result by which we became thirteen separate and independent States; they were a free people. treated with as such, and as such they confederated for The hopes of the army, throughout the whole of the their mutual safety and common defence.
revolutionary war, and of the militia, called into service on The treaty made no cessions of the crown lands, in right sudden emergencies by the States, were animated and cherof conquest, either to the States individually, or to the ished by the pledges which were from time to time made, confederacy; they were left precisely on the fouting in that so soon as the great object for which they so freely which they stood prior to the revolution, and each look- shed their blood was attained, destitute as they were of the ed to their antecedent charters, defining the boundaries ordinary subsistence and means of comfort in the tented assigned to them by the parent country. I, therefore, field, and their hard earnings paid in a depreciated pahold it to be clear and undeniable, that, as the several per currency, the most liberal grants of land would be States united contributed both in men and money to the made to them by Congress, to which they might retire accomplishment of the great end of conquering their in- when peace should be restored to the country, and their dependence, each became a separate sovereignty by the toils ended by the acknowledgment of our independence terms of the treaty of peace; and, within their respective as one among the nations of the earth. limits, each might dispose of its unappropriated domain These pledges were made in anticipation of the transwithout interruption or restraint from the other States, fers which it was believed would be readily made for the in the same manner, and to the same extent, that the general good, by each State, of their domains which recrown of Great Britain could have exercised that power mained unreclaimed by the hand of industry, and untrodwhile we remained in a colonial condition.
den by the footsteps of civilized man. If any doubt could have existed on this principle dur- Appeals were sent forth by Congress to the States ing the revolutionary war, it has been since entirely re- for the consummation of these just and benevolent inmoved; and the right of each State to the waste lands tentions towards the soldiers of the revolution, which within the chartered limits of each is recognised and con- were answered by a patriotic surrender of their title to ceded by the application made to the States by the old those lands, which have since been appropriated, accordCongress, acting under the articles of confederation, for ing to the original design of the parties, in satisfaction of cessions of these lands, for the common benefit of the military grants and the payment of the public debt. The Union, and the subsequent ratification by Congress of articles of confederation for several years were suspended those cessions, on the conditions therein expressed, as on the issue of this important question; and Maryland, the they were respectively made by the State Legislatures; last State by which they were ratified, did not accede to and this opinion is still more strongly enforced by the them until the year 1781, about one year prior to the purchase of a considerable extent of territory, now form- close of the war. New York took the lead in offering to ed into two new and fourishing States, from Georgia, in cede her waste lands to be applied for the common benethe year 1802, for which the United States paid to that fit of all the States. In March, 1780, the Legislature of State the large sum of $1,250,000.
that patriotic State passed a resolve, part of which I Considering, then, the several deeds of cession made by beg leave to read to the Senate. The preamble contains the States as the basis of our title to the lands which re- a summary of the causes which induced the Legislature, main waste and unappropriated within their bounda- in the name of the people of New York, to authorize their ries, I shall proceed, sir, to inquire into the origin of delegates in Congress, or a majority of them, to inake the these deels of cession, the great purposes for which proposed cession to the United States, in the manner spethey were made, and the limitations imposed on the Gov- cified in the act. And, among other things, it is enacted ernment by the grantors.
and declared, “ that the territory which may be ceded The Declaration of Independence was the voluntary act " or relinquished by virtue of this act, either with reof the colonies, by which they united in the great strug; spect to the jurisdiction, as well as the right or pre-emp. gle against the tyranny and oppression of the King and “tion of soil only, shall be and inure for the use and Parliament of Great Britain; and, in announcing to the civil- “ benefit of such of the United States as shall become ized world that they were, and of right ought to be, free,I" members of the federal alliance of the said States, and
(Jan. 19, 1833.
“ for no other use or purpose whatsoever.” Congress re- the limitations expressed in the several deeds of cession. ferred this act of the Legislature of New York, together The grantees could only use the thing granted according with other papers relating to the same subject, to a spe- to the conditions prescribed by the grantors. This concial committee, who made thereon a detailed report, con- stituted the basis of all the acts of Congress in respect to cluding with the following resolution:
the public lands, prior to the adoption of the federal consti“ Resolved, That copies of the several papers referred tution. The States collectively were the joint owners of this to the committee be transmitted, with a copy of the re- immense real estate, but were restricted in the disposal of port, to the Legislatures of the several States; and that it it to certain specified objects, from which they could not be earnestly recommended to those States who have depart without a manifest violation of the contract with claims to the Western country to pass such laws, and the parties under whom they claimed the right of soil. give their delegates in Congress such powers, as may Under these circumstances, the delegates of the reeffectually remove the only obstacle to a final ratification spective States, constituting the representation of both the of the articles of confederation; and that the Legislature grantors and the grantees, all equally interested in any of Maryland be earnestly requested to authorize their dele- regulation which might be deemed expedient in reference gates in Congress to subscribe the said articles.”
to the future disposition which might be made of the comThis report was considered, and adopted by the dele- mon fund, met in the city of Philadelphia, with power to gates from each State in Congress assembled on the 6th revise and amend the articles of confederation, and to enday of September, 1780. Subsequent to these proceed- large and modify them, so as to form a more perfect union ings, and during the same session of Congress, on the of the States, to establish justice, ensure domestic tran10th of October, 1780, a resolution was adopted, which de- quillity, provide for the common defence, "promote the clares, “that the unappropriated lands which may be general welfare, and secure the blessings of liberty." ceded or relinquished to the United States by any particu- This body of men, bringing with them the feelings and lar State, pursuant to the recommendation of Congress wishes of the State Legislatures by whom they had been of the 6th day of September last, shall be disposed of appointed, took this important subject of the public for the common benefit of the United States."
lands into their serious consideration, and, with full A deed of cession from New York was executed by power to act in this matter for the States which they rethree of the delegates in Congress from that State, on the spectively represented, thought proper to change the con1st day of March 1781, on condition that the territory ditions on which these lands had been ceded to the Unitceded or relinquished shall be and inure for the use and ed States, by a special provision, which vested in Conbenefit of such of the United States as shall become mem- gress a plenary power to dispose of them as they might bers of the federal alliance of the said States, and for no deem most beneficial, and best calculated to promote the other use or purpose whatsoever." And further, that general good of the people at large. the lands thus ceded shall be “granted, disposed of, and It is admitted on all hands, that, under the articles of appropriated in such manner only as the Congress of the confederation, Congress had no power to distribute the United States shall order and direct.”
proceeds of the sales of the public lands among the se. The cession made by Virginia of her territory north- veral States for local or internal purposes, to make grants west of the river Ohio, then an uncultivated wilderness, to the new States whensoever they might be introduced inhabited only by the savage tribes of that region, but into the Union, or to make donations to individuals or to which has since been formed into three large and well bodies corporate. Nor, indeed, could any power be expopulated States of the Union, was not finally completed ercised distinct from such as were contained in the deeds and accepted by Congress until the year 1784. The con- of cession. But it cannot be denied, on any legal or moditions are similar to those contained in the cession of ral principle, that the parties to an instrument containing New York, with the exception of a reservation for bounty specified limitations and conditions may, at any time, by Jands to be granted to the troops of that State, who were mutual consent, either enlarge or abolish altogether placed on the continental establishment. All the lands these limitations and conditions, and that such modificawithin the ceded territory, not reserved for specified pur- tions of the pre-existing rights of the parties will be as poses, were to be considered a “common fund for the binding and obligatory upon them as if it had constituted use and benefit of such of the United States as have be- a part of the original contract between them. The States come, or shall become, members of the confederation, or for whose common benefit these voluntary cessions of ter. in federal alliance of said States, Virginia inclusive, accord-ritory had been made on the conditions therein expressing to their several respective proportions in the general cd, and who were alone interested in any and every quescharge and expenditure, and shall be faithfully and bona tion which might arise under them, met face to face, by fide disposed of for that purpose, and for no other use or their delegates in the National Convention; and with a full purpose whatsoever.” On these conditions the cession knowledge of the restrictions contained in the deeds of was accepted by Congress, and thereby they became ob- cession, and the total absence of all power in Congress to ligatory on both parties to the contract. The following appropriate the public domain, except in the manner and cessions were made and accepted subsequent to those for the purposes designated by the grantors, after the already noticed from New York and Virginia:
mature consideration wich the importance of the interest By Massachusetts, on the 19th day of April, 1785; by involved demanded, and doubtless received, recommend. Connecticut, on the 14th of September, 1785, and of ed to their respective States the adoption of the following what is called the Western reserve, on the 30th day of May, provision in the new constitution, which was acceded to 1800; by South Carolina, on the 9th day of August, 1787; hy all the States in the Union, and now forms a part of the by North Carolina, on the 25th of February, 1790. The fundamental law of the republic: above enumeration comprises all the voluntary cessions of Art. 4, sec. 3. “The Congress shall have power to disterritory made by the States to the United States, either pose of and make all needful rules and regulations respectprior or subsequent to the adoption of the existing con- ing the territory or other property belonging to the Unitstitution. The conditions annexed to each grant are ofed States; and nothing in this constitution shall be so conthe same general character, and each stipulates that the strued as to prejudice any claims of the United States or lands ceded shall be and inure to the common benefit of any particular State." all the States.
Since the adoption of the federal constitution, North The powers of Congress under the articles of confede. Carolina came in and made a voluntary cession of her surration did not authorize that body to make any other dis- plus territory to the United States, on conditions which, beposition of the ceded territory than such as accorded with ling carried into effect, rendered the cession of no value to
JAN. 19, 1833.]
the Government, merely as a source of revenue. A large the present system, and appropriate the money arising proportion of the ceded territory was covered by grants and from the sales of the public lands among the several warrants issued by North Carolina to the officers and sol. States, for the beneficent purposes enumerated in the diers of that State in the continental line, who fought in bill. To this plan, various objections have been made, the revolutionary war. All the lands which were not co- which it is my purpose to notice in the order in which vered by grants of this description have been disposed of, they have been introduced into the debate. The honora. for purposes of benevolent donations to individual settlers, ble Senator from Missouri [Mr. BENTON) has endeavored and concessions to the State of Tennessee, in which they to show, by certain estimates to which he has referred, but are situated; and, as yet, no part of them has been sold which I do not deem at all applicable to the subject, that or appropriated for the common benefit of all the States. after deducting the various charges of surveying and sellIn 1802, the purchase from Georgia was effected, and, in ing the public lands, and the amount of money which has the following year, Louisiana was purchased from the been paid in acquiring them, and for the relinquishment of Government of France, which, including the acquisition Indian titles, there will remain no surplus to be distribof Florida, under the treaty, with Spain in 1819, comprises uted among the States, even if a bill for that purpose the entire territory claimed by the United States in right should become a law. This view of the subject is altoof purchase. Notwithstanding the enlargement of the gether erroneous, and the deductions, which the Senator powers of Congress, by the article of the constitution to seems to suppose ought to be made before the distribuwhich I have referred, the lands ceded to the Govern. tion takes place, are in direct opposition to the uniform ment have, with some unimportant exceptions, been sur practice of the Government in like cases. We know that veyed and sold, and the neto proceeds applied, for the be the new States are, by compact with the Government of nefit of all the States, to the payment of the national debt, the United States made, on their admission into the Union, and the current expenses which might accrue in the ad- entitled, for certain purposes, to five per cent. of the nett ministration of the Government. Thus the original inten- proceeds of the sales of the public lands within their limtion of the grantees in the voluntary cessions, and the its. In estimating the amount to be paid to each State, stipulations in the treaties of cession from Georgia and under these compacts, the rule observed at the Depart. foreign Powers, have been carried into effect, and the ment of the Treasury has invariably been to reduce the money arising from the sales of the public lands has actual amount of sales, by deducting the expenses incurbeen applied to the general purposes of the treasury from red in surveying and selling the lands, and to calculate the the commencement of the Government up to the present five per cent. due to the State on the sum which shall time.
appear after making these deductions. And now, sir, the national debt is paid; the great debt Conforming to this practice, which could not be deof the revolution is finally discharged; the country finds parted from without some special provision by law, the itself entirely absolved from all the obligations incurred same rule must be observed in the distribution contemin that arduous struggle, as well as those incurred in the plated by the bill under consideration. Taking the amount late war with Great Britain, which has very properly of sales for the past year as the data on which to calcubeen called the second war of independence; and the pub- late the probable sales in future years, (and experience lic domain remaining undisposed of is, as heretofore, the has shown that they will rather increase than diminish,) common property of all the States of the confederacy, the amount to be divided on these principles could not and may be disposed of by Congress, for their benefit, fall short of three millions of dollars annually. But it is in the exercise of a sound discretion, reposed in the Na. manifest, that the items included in the estimate of the tional Legislature, “to dispose of, and make all needful Senator might, according to his own reasoning, be exrules and regulations respecting, the territory or other tended to a great variety of objects which he has not enuproperty of the United States."
merated. The question then arises, under the existing circum- Besides the large sums paid to the State of Georgia, stances of the country, free from debt, and with a treasu- to France, under the Louisiana treaty, and to Spain, for ry overflowing, beyond the most extravagant wants of the the cession of Florida, the Senator from Missouri insists Government, what disposition ought to be made of the that we must deduct. 1st. Indian annuities. 2d. The public lands yet remaining unsold and unappropriated? sums paid for the relinquishment of Indian title of occuTwo propositions are under consideration.
pancy. 3d. The whole expense of Indian intercourse. The President of the United States, at the opening of 4th. The salaries of all the land officers, and their clerks, the present session of Congress, proposes to dispense with throughout the United States. 5th. The appropriation these lands altogether, as a source of revenue for the gen- annually made for surveying the public lands, and to the eral purposes of the Government; to bring them down to General Land Office, at the seat of Government, includa price which will simply cover the expenses of survey- ing the salary of the Commissioner, his clerks, and all ing and selling them to individuals; and ultimately ceding others in his employment in that department. I ask, why them to the several States within the jurisdiction of which did the Senator not include the salary of the Secretary of they are situated.
the Treasury? He is by law placed at the head of the This recommendation of the President, although it has land department. Why not also include the salary of been highly eulogized and commended by several honor- the President? He has numerous duties to perform in the able Senators, in the progress of this debate, was entirely disposal of the public lands, and among them the very onoverlooked by the Committee on the Public Lands, who erous and almost impracticable duty of affixing his signahave simply reported to the Senate a very imperfect ture to all the patents which may be issued to purchasers. scheme for graduating the price of such lands as may Various other charges of a similar character might be have remained in market unsold for a specified number mentioned, which would properly come within the rule of years. We are thus driven back to the other proposi- laid down by the honorable Senator from Missouri. But tion contained in the bill on our table, which was report- I consider the objection as mere declamation, unsupported by the Committee on Manufactures at the last session, ed by a proper interpretation of the existing laws; inconand received the sanction of this branch of the Legisla-sistent with common sense and the plainest dictates of ture. Considering this measure in connexion with the justice, and contrary to all the antecedent actions of the views presented by the Chief Magistrate, we are called Government in estimating what are denominated the nett on to decide whether the interests of the country, and es- proceeds of the sales of the public lands. The Senator pecially those of the new States, will be best promoted by from Missouri has delivered a labored argument to show reducing the price, making it nearly nominal, or retain that an annual appropriation of two millions of dollars .
(Jan. 19, 1833
will be necessary for defraying the expenses incident to series of measures proposed for perpetuating the system the gradual acquisition of Indian titles, and other objects of high duties, for the protection of domestic manufacconnected with the sales of the public lands; from which tures. He deprecates the withdrawal of the nett prohe draws the inference that no revenue has ever accrued ceeds of the public lands from the treasury, because he to the United States, and none is likely to accrue, from alleges that duties on foreign importations must be imthe sales of these lands; and he has exainined the provi- posed to supply the place of the three millions of dollars sions of several Indian treaties, to establish the position wbich this bill proposes to distribute among the States; which he has assumed, that the mere purchase of the and yet we are told, at the saine moment, that these lands right of occupancy from the several tribes of Indians costs do not cover the sum required to purchase them of the the Government more than the minimum price at which Indian tribes, and the expenses incurred in bringing them the public lands are directed to be sold by law. Since into market. This is, indeed, reasoning in a circle, in the this novel and extraordinary idea was advanced in the de- progress of which the Senator assumes false premises, bate, I have turned my attention more particularly to the and arrives at conclusions directly opposed to those prevarious Indian treaties which have been made since the mises. establishment of the Government, to ascertain the esti- I shall, however, sir, have occasion to recur again to mated price per acre which had been given from time to this view of the subject, and will for the present dismiss time for the extinguishment of Indian titles. I have ex. it
, and proceed to notice the objections which have been amined the instructions from the Department of War to urged against the bill, both as to its principle and details. commissioners appointed to form Indian treaties; and I The first objection, in the order of this discussion, find that, in almost every instance, they were limited to which has been made to the passage of the bilt, is, that the one cent per acre, on the quantity of lands supposed to objects designated as those only to which the several be ceded, and were positively instructed not to exceed States shall be permitted to apply their respective prothat limitation, including the expense of the treaty, the portions of the general fund are unconstitutional, and for round sum stipulated to be given for the ceded lands, and which Congress could not appropriate directly the money the annuities and other presents granted to the Indians. of the United States, and therefore they cannot indirectly In the year 1807, during the administration of Mr. Jeffer- appropriate it, by granting the nett proceeds of the sales son, it will be seen, by the instructions from General Dear of the public lands for the purposes specified in the bill. born, then Secretary of War, to Governor Hull, authoriz- The first section of the bill contains a special provision ing him to treat with the chiefs of various Indian tribes in favor of the new States, within which the public lands or nations for the relinquishment of their right of occu- are situated, by which they are to receive, in addition to pancy, that he is explicitly instructed not to exceed two the five per centum heretofore allowed, twelve and a cents per acre.
half per centum upon the nett amount of the sales of the Among other things, the instructions contain the follow- public lands which shall subsequently be made within the ing sentence:
several limits of said States. “ It will be difficult to ascertain, with any tolerable de. This sum of twelve and a half per centum is to be ap. “gree of certainty, the quantity of acres included in any propriated by the States “ to some objects of internal in “purchase you may make; but you will endeavor to cal-provements, or education, within the said States, under “culate the price in such manner, as not, on any condition, the direction of their respective State Legislatures." “ to exceed two cents per acre; and I presume it will not The second section of the bill provides, that, after de“ be necessary to exceed one cent per acre.
ducting the said twelve and a half per centum, the resiI might refer to other instructions of similar import, due of the nett proceeds of the public lands shall be di. but I content myself by stating, in general terms, that al- vided among the twenty-four States of the Union, accordthough, at subsequent periods, these limits have been tran. ing to their respective federal representative population, scended, a fair average of the whole of the purchases to be applied by the Legislatures of said States to objects from the Indians, made up to the present time, will not of “education, internal improvements, colonization of exceed four cents per acre, exclusive of Indian reserva- free people of color, or reimbursement of any existing tions, which are never taken into the estimate.
debt contracted for internal improvements, as the said I ask, therefore, on wbat foundation the Senator from Legislatures may severally designate and authorize.” Missouri rests the broad declaration which he has made, These are the purposes contemplated in the bill, to which that the extinguishment of Indian title costs the Govern. the fund shall be applied, after it shall have been distributment more than the minimum price of the public lands; that ed among the States. these lands produce no revenue to the national treasury; The question then arises, are these objects for which and that it would be sound policy, in future, to stipulate for the public domain of the United States cannot be grantthe sale of all such lands as may be hereafter ceded, for ed without a violation of the constitution? the sole benefit of the Indian tribes who make the ces- The Senator from Tennessee, (Mr. GRUNDY,} and the sions? He has resorted to every source of expenditure, Senator from Kentucky, (Mr. Bido,) have taken ground having the most remote relation to the public lands, and in their argument, on this subject, against the exercise of thereby swelled the amount to more than two millions of the power
to dispose of the public lands for the specific dollars annually. He has relied on his own exaggerated purposes enumerated in the sections of the bill to which statements, unsupported by the official records of the i have referred. country, to prove that the price actually paid to the In- If the reasoning advanced by these honorable Senators dian tribes exceeds one dollar and twenty-five cents per be sound, they at once destroy the bill, and it will be unacre, although the contrary has been already shown by necessary to enlarge the discussion on the details or exthe instructions and treaties to which I have referred;pediency of the measure. But considering, as I do, and in this manner, and by this process of reasoning, he their positions unsound and untenable, I must be pergravely draws the conclusion that the bill under con- mitted to dissent from them, and beg the indulgence of sideration, if enacted into a law, will be worthless to the Senate while I offer very concisely my views on the the States, as there will not remain, according to his constitutional difficulty which they have urged in oppoviews, one cent to be distributed among the States after sition to the bill. his enormous, and, I will add, ridiculous enumeration of Prior to the adoption of the federal constitution, as I charges shall have been paid at the public treasury: have attempted to show in a preceding part of my argu
But the Senator has given a sufficient answer to his own ment, Congress had no power to make any other disposiargument, when he denounces this bill as No. 3 in the tion of the public domain than that which was authorized Jan. 19, 1833.]
by the deeds of cession which had been accepted on the eral precaution that no new States shall be formed withconditions therein contained.
out the concurrence of the federal authority and that During the existence of the old confederation, no grants of the States concerned, is consonant to the principles of land were made to individuals or bodies corporate, nor which ought to govern such transactions. The particuin any other manner but in strict accordance with these lar precaution against the erection of new States, by the deeds of cession.
partition of a State without its consent, quiets the jealousy The enlargement of the powers of Congress, under the of the larger States; as that of the smaller is quieted by a new constitution, I have already adverted to, which in ex. like precaution against a junction of States without their press terms confers on the National Legislature the
consent. er to dispose of the "territory and other property of the On the remaining part of the section which I have alUnited States," without limitation or restriction, either ready quoted, having relation to the disposal of the terriin respect to the amount, or objects to which it should be tory and other property of the United States, Mr. Madi. appropriated.
son adds, “This is a power of very great importance, and I wish it to be distinctly understood, that I claim for required by considerations similar to those which show Congress no power, by implication or construction, on the propriety of the former. this subject; I confine myself literally to the ceded pow- "The proviso annexed is proper in itself, and was proers, expressed in language which can neither be misun- bably rendered absolutely necessary by jealousies and derstood nor perverted.
questions concerning the Western territory, sufficiently The general phraseology used in the third section of the known to the public. fourth article of the constitution comprehends the power This I consider to be the true and only legitimate interto admit new States into the Union, with the exception pretation of the clauses in the constitution to which they “that no new State shall be formed or erected within relate. Mr. Madison does not even intimate a limitation the jurisdiction of any other State, nor any State be form- on the powers of Congress, arising out of the conditions ed by the junction of two or more States, or parts of in the deeds of cession, or compacts entered into under States, without the consent of the Legislatures of the States the confederation; and surely, if it had been the intention concerned, as well of the Congress;” and also the power of the framers of the constitution to restrict the action of to dispose of the public domain, and other property of Congress, in conformity with these deeds of cession or the United States, with a proviso, “that nothing in this compacts, it would have been of sufficient importance to constitution shall be so construed as to prejudice any have attracted his attention, and must have drawn from claims of the United States, or of any particular State.” him, while treating of this subject, a full and explicit exThe language conferring both powers is the same, and planation. None such has been given, from which I draw each has been carried into practical operation according ihe conclusion that we are left without any guide which to their literal import. “New States may be admitted can lead us to a construction of this power distinct from by the Congress into this Union."
that which accords with the words of the constitution. Can honorable Senators point out any rule of construc- But it has been said that the constitution of the United tion by which this power can be limited, except in the States did not confer on Congress the power to depart cases specified in the article of the constitution to which I in any manner from the deeds of cession under which the have referred? Was it confined to the original limits of the public domain was acquired. United States, as they were defined at that period? Certain. And this opinion rests for its support on the proviso in ly not. The power has been exercised in its broadest sense, the article, " that nothing in this constitution shall be so and new States have been admitted, formed of territory construed as to prejudice any claims of the United States, acquired from foreign Powers, long subsequent to the or of any particular State;" from which it is inferred that adoption of the federal constitution.
the delegated power meant nothing more than to vest The power over the public domain is equally compre-Congress with authority to make all “ needful rules and hensive, and therefore cannot be limited in its exercise regulations” for carrying these deeds of cession into efeither by the conditions of the former deeds of cession, or fect. All beyond this is said to be undelegated power. I the treaties by which it has subsequently been acquired. confess I am at a loss to trace the singular process of reaThis opinion, it will be seen, is in strict conformity with soning, by which any one, in the full possession of a sound the action of Congress on this subject, from the founda- mind, could have arrived at a conclusion so totally incontion of the Government up to the present time. Will sistent with the plainest dictates of common sense, and so bonorable Senators say that there is a limitation in this contrary to all the rules by which written instruments are to grant of power? If so, where is the limitation to be found? be construed and expounded. The proviso has not the None such exists, either in the letter or spirit of the con-remotest relation to the power delegated; but, out of abunstitution. I am supported in these views by a cotempo- vant caution, it was inserted to quiet the apprehensions Faneous exposition given of the section of the con- and jealousies which at that time existed among the States stitution embracing the subjects to which I have referred. in relation to the unsettled boundaries of their Western In the 430 number of the Federalist, written by James territory. This is the view. taken of it by Mr. Madison, Madison, one of the illustrious founders of the constitu- and assuredly it can mean nothing more. tion, these powers are expounded as they were under- The construction contended for would lead to the abstood by the writer at the time the constitution was surdity of abrogating an important power explicitly conadopted.
ferred on Congress, by a mere proviso inserted to guard Mr. Madison, in speaking of the admission of new States, against contingent evils, which might by possibility arise says-" In the articles of confederation no provision is in the execution of the granted power. found on this important subject. Canada was to be ad. The idea is too ridiculous and absurd to merit even the mitted of right, on her joining in the measures of the Unit- short notice which I have taken of it. Having, as I trust, ed States; and the other colonies” (by which were evident- sufficiently shown the nature and extent of the powers of ly meant the other British colonies) “at the discretion of Congress, in reference to the public domain, I shall pronine States." The eventual establishment of new States ceed to answer the objections which have been made to seems to have been overlooked by the compilers of that the appropriations of the public lands, or the money acinstrument. We have seen the inconveniences of this cruing from the sales of such of them as may be brought omission, and the assumption of power into which Con-into market, to the purposes enumerated in the bill. The gress have been led by it. With great propriety, there-honorable Senator from Tennessee (Mr. GRUNDY) confore, has the new system supplied the defect. The gen- tends that we have no power to appropriate the public