Franklin Repository, Volume 3, Number 17, Brookville, Franklin County, 26 April 1828 — Page 1

USTFLMGENCE IS THK ttFE OF LIBERTY."

SATURDAY, APRIL 2G, 1828. Xo 17. Volume III.' OP MR. HENDRICKS, O ffof to graduate the price of the public Lan'is delivered in the. Senate cftht Untied Stales, Jortunry, 1828, Concluded. The ordinance is,'in many of its provisions, a compact between the original States and the People and States in the Territory. It contains engagement? cfbolh parties; and the sixth article of the Constitution declares, that all engagements, entered into before the adoption of ihe Cor.stitu'ior.,shali be, valid. The ordinance ceMerrplated the public lands as belonging to the new States, after thHr admission into the Union; and, if a! -ther authorities were venting to prove this, tl.e ninth article of tte Confederation vrould be sufficient. It declares, that no State shall lc deprived of Territory for the beneof the United States. These artiste? were madefcr the government of the United States, and for the States which should adopt them in future; and the ordinance was framed i'i accordance with those articles. They were the basis 'of the ordinance ef '87. They were the constitution cf that day, and the ordinance cannot be construed in violation of them. The meaning of the ordinance, compared with this article, becomes perfectly clear. Mr. President, the union of the States was the gra id object of all parties in the regulation of the Territorial lands. Tne articles of Confederation had proTitled, that no Siate should be deprived, of Territory for the benefit cf the United States; that Congress ehould not assume the ownership of the soil in the Stales. With this, many S ates were dissatisfied, and hesitated about joining tie Union. To remedy this, the cs ions provided, that no State out of the Confederacy should participate in the roceeds of those lands; ad the ordi tar-.ce further provided, that the n"w States, refusing to join the Union, should not only ba excluded from all participation iii the proceeds of the territorial kinds without their limits, but that they should be prohibited from interfering nilh the primary disposal of the soil within their limits. As a further in-da-ement to the new Slates to join the Confederacy, the ordinanre stipulated tint liiey should be admitted into the TJtiion, with a population of 60,000, on a i eqad footing with the original States, in all respects whatever; and the confutation, in sustenance of the same pol icy, provides, that all engagements entered into beiore the adoption of the Constitution, snail be as valid against the United States, under the constitution, as under the Confederation. Sa that the artiiles of the Confederation, the acts of cession, the ordinance of '87. and the constitution it-tit, fem a perfeet and harmonious ch .in of policy the grand object of which the uJttion and equality of the S a-.e?. Then, Mr. President, if ?t nil correct in this view, it may Wtdl be asked, by vrat means ha.ve the new States been deprived of their equality, of the right of soil? I am well aware. Sir. of the answer to be expected here. il?re the Compacts, made with the new State", are brought into view. Here, notwithstanding the guarantee that the new Suites snail be admitted into tho Union, on aji equal footing with the original Stales, in all respects whatever; that tile v shall enjoy the sane rights of sovereignty and equality with the oil Stales; we are tld that the sovereignty of the Stiles are, sub modo, conditional ; that, it one condition may be attached another way, and that, whatever our political rights would have been, if ire had fcever made the compacts., we crust now abide by thern, and have no reason to complain. And are we to be told, that, although the sovereignty and equality ef the Stales, as wf II as the stipulations of the ordinance, would 'have given us, without the compacts, the Foil of our country, we are to be deprived cf that trst attribute of sovereignty by the conditions imposed, when we asked pcrmistiti to form, for ourselves, a constitu tion and State Government! These compacts, it is true, ought never to have been made, and, however Soon we may get clear of them, we shall have suffered sutEciently by them. A Territorial form of Government, in, indeed, not to be desired. It has been one of turmoil and strife, wheresoever it has been introduced. The Territory, anxious to gain a political elevation, anxious to gain the level of equality with the original States, did not rightly iorsidcr the immense easriticea they

vrere making lor the hame, Hrhl they were not really acquiring the$ubstanre of equality and independence. They had a right to demand admi?sicn with a population of 60,000, and Congress -might, in their discretion, receive them into the Unioti with n less population. Some of Ihe new States asked for admission with a less population. This was the case with Ohio, the first from the Territory in question. Ohio, fired with her Territorial relations to the Unicn, asked, by her Dele-gate, permission to foim, for herself, a Constitution and State Government, with a less pepu'a tion than 60.000. Congress, under these circumstances, having the power to admit or not, responded to this request of Ohio, with conditions'. That part of the ordinance which prohibited the new States from full prcperty in the soil, until they should be admitted into the Union, waB made perpetual; and the prohibition of sale and taxation, was imposed, for no other consideration, than a few sections of school lands, n few supposed salt springs and five per cent, cf the proceeds of the public landk, for internal improvements. This is the history of the matter in reference to Ohio. Louisiana was next admitted into the Union, with a Territory obtained, by Treaty, from France. That the Peo pie of Louisiana, who had been accus tomed to receive from the Crowns of France and Spain almost any quantity of land for occupying it; a People anx ious to experience the full benefits of the Government to which they had re cently been attached; should hare been thoughtless about any regulation on the subject of their public lands, is not wonderful. Louisiana, too, like Oliio was admitted into the Union wiiha less population than G0,000. Indiana was the next State admitted i-to the Union. She had, before she applied, through her Delegate, for admission, a population of more lhan 60,000. She had a right- to demand admission under the ordinance of '87. Following, however, the example of others, under circumstances less favorable than her own, instead of forming her Constitution, and demanding unconditional admission into the Union, as, by the ordinance, she had a right to do, she procured the passage of a similar law, authorizing her to form a Constitution and State Government, giving up the right of soil and taxation to the Federal Government; The compacts, themselves, admit the rights of the States to the public lands: for they stipulate conditions. Thft compact not to tax, imf lies the right of taxing on the part of the new States, un restricted by the compact. The compact not to interfere with the primary disposal of the soil, impfies the right to interfere, unrestricted by the compact, if the right of the Federal Government, in these respects; had been clear, on constitutional grounds, or on well established principles, we should have had no compacts, no bargaining about it. Congress did not ask the States to enter into compacts not to declare war, not to make treaties, not to grant letters of marque and reprisal, or keep troops and ships of war in timi of Peace. And why? Because the Constitution itself clearly inhibited these powers to the States. Sir, it must be admitted, that the new States are now contending wKh this Government on terms very unequal. They are little ele than vessels and tributaries to the power of this 'Union, and they have all the force of the compacts against them. But I cannot, I will not believe, that this consideration is to prevent that justice now which at first should have bet n done. I believe that, as soon ae it shall appear, that the condition of the new States, in reference to th'jir public lands, is one of abject and humiliating dependence; inconsistent with the rights of sovereignty and eq ir.lity; inconsistent with the spirit of the Constitution, and their character as States; that the proposition now before tru? Senate will instantly prevail. We claim, as we believe, a constitutional right; make a reasonable demand that you should restore to us the soil of our country, which you ought never to have taken from us. Do you talk of equitable conditions, the expeuses of Indian wars, and Indian treaties in the country; the expenses of purshasing

Louisiana and r lorida, from r ranee & Spain ; and, if you had never owned one foot of soil Northwest of the Ohio riv er, would your indian wars and Indian treaties have been the less expensive? Your line of frontier South of the Ohio, would not have been quite so long; but the whole country between the Cno river and the lakes, would have been covered tfitfin innumerable horde of Northern warriors, who 'could, at Hny moment, bave carried desolation into the Southern country. Your expenditures on account ef indian wars, would, in thai event, have been much greater, than at present they are. And if, previous to the acquisition of Louisiana, every acre had been granted by the i Crown, of France aad Spain, to indi

viduals, would you hare hesitated about $15,000,000 for that indispensable appendage of the Union t 'Would not inevitable wars with the nationsin possession of that ccin(ty, have cost you, probably pre now, lht3 amount twice told; saying nothing about the com merce of the Western country! If the idea of 5tafe sovereignly, strengthened by tnei 'equality which is guarantied to the hew States, be ir.sep arable from tho right of soil, then you cann t withhold hat right of soil. If

you iave a rignt to impose conditions, then may you impose suth ms can never bs complied with, and, in this way, exercise the powr of refusal. Bit, K you even determine that you have the right of imposing conditions, then we say .to you, do not lay heavier burdens on us than we are able to bear; do not look to us to contribute more than bur numerical proportions to the Treasury of the nation. In requiring us to reimburse expenditures on account of Indian wars and treaties, you adopt the principle of levying on that portion of the country which may, unfortunately, become, the theatre of war, the expenses of that war. " YoiV"reqiirc it to ?'istain not only the . desblatit ns. of war. but to pay tho debts created. And where would this principle lead? It would have required the People of this District to have rebuilt the President's House and the Capitol, and would have subjected them to contributions for every expenditure here. It would have required the People of the Niagara frontier to have borne the burden of the Treasury, in that quarter, instead of receiving remuneration for burnt villages, and lost property during the war. And, beside, this principle is incapable of being practised en: for, how will you determine, and of whom will you require, a reimbursement of'our expen ditures in Canada? It was my intention, sir, to have presented to the' Senate, some argument on the principle of expediency, many ot which might be urged in the present case, I will, however, desist from this view of the subject, being unwilling to occupy the time of the Senate. . I will only remark, that the public land", as a source of revenue, have greatly disappointed the expectations of those who looked to them as the means of paying the national debt. It was, no doubt, the expectations of the times, that these lands would soon pass into the hands of capitalists, and that the public debt then amounting to about 42,000,000 dollar.-, would be paid befote any of the political division; of. th Northwestern Territory should gain "h population of tty thousand, and be prepared for admission into the Union. Of the twenty-five millions annually paid into your Treasury, your receipts from lands have frequently been less than one million. And this result has several times happened, when you had, as at present, more than one hundred millions of acres in market. Your land system ha3 been in operation about forty years, and your whole receipts, from that source of revenue, has not exceeded 33,000,000 dollars; and this sum is chargeabb with heavy inci. dental expenditures in collecting. Th million derived frcm this soutce, can, if the means ef the Government are euffi. cient without it, be assessed on other objeclsj and this Government would be relieved from a distraetingsubject,which in Ibe very fact of your time, in legislating about it, and rrrlhe cost of its ne. cessary details, consumes half its own amount. 1 But, sir, there is another point of view to which 1 wish to direct the attention 1 of the Senate. The amount of lands with which this amendment has any thing to do, does not exceed 200 millions of acres, the quantity contained in the new states; while the whole amount of the public domain is estimated at .10 or 1 100,000,000. And of the 200 millions, more than fifty are already disposed of, in military bounties, sales, and donations : 8 or 900 millions would still be left in the Territories and further West, to the undisputed control of the Federal Government. 4 i The public lands should be ceded to the States in which they lie, because their present condition is not warranted by the letter of the Constitution of this Government. The Government' of the Union is one of limited and specified power It was framed with a cautious jealousy of its encroachments upon the States, and with the view of transfering from thern and to it, no powers which they could exercise; no powers except those which are, in their character, national, and necessary for national purposes Its powers are carefully enumerated and specified ; and so jealous were its framers, that, after every specification contained, it is expressly inhibited the exercise of any powers, except those delegated to itself or prohibited to the Siates. We shall search in vain for any clause" in the Constitution which prohibits to the States; the exercise of any powers connected with-the public lands. In ail the original States, this power has been exercbed by the States. We shall search ia vain for any clau&e in the Con

stitution, which authorizes a control over the principal object of sovereignty in the States their pnblic lands. It cannot e appendant to the word Territory, in the fourth article of the Constitution; for Territory, in our Constitution, our !aw, and our history, signifies a region of country without the limits of a State, in, and ever which, a Teriitoiial Government is established. We say the Territory Northwest of the liver Ohio, the Territory of Michigan, 'C,.bu', when we speak of the public lands, we say the public land - in those Ternt-rits; the puMii la "ds in the State. Thv be term signifies a political division of the countiy. Thi other is a term by which we designate property. The exercise of this power by Congress, is - ohirary to the spirit of the

Constitution, which aspires to national objects, unlike that under consideration national conceri.s, such Hi the States are incompetent to legislate upon. The interests submitted to the Federal Government, are those of peace and of war, of the' Army, tiie Navy, And the Foreign Relations f lht Country," and of such system of Finance, as may be found necessary to give ac'ie energy to those great interests. One of the principal difficulties in the formation of this Government, was, to designate the boundary betwixt it and the Slates; and it seems to have been the care of its framers, to avoid, as much hs possible, all municipal legislation; the regulation of all local and domestic concerns. It seems to have bv;n intended, that the Federal Government s-h mid net engage in that which the Siates were competent to do. Now, sir, test the present case by any of these rules, nnd we must come to the conclusion, that, with this matter, the Federal Government has nothing to do. The Public Lands create a field of municipal legislation, inconsistent with it3 general purposes, and the evident intention of its framers. And, if in any degree correct in this view, the compacts are un warranted by the Constitution, and, if so, are not binding on the States. I deny, sir, the constitutional power of this Government to hold lands within the limits of the States, except for the purposes designated by theCons'itution; such ns Forts, Magazines, Arsenals, Dork yards,and other needful building: and, to enable Congress to hold lands f ven for these purposes, the consent of the Legislatures ol the States is declared o be necessary, by the express language of the Constitution. In a question of such vital importance to the new States, it would surely not be thought unreasonable, that tUry should scrutinize bp dow? which takes from them the Public Lands within their limits, impairs their sovereignty', and deprives them ol equality with the original States. It would be, at least, some consolation to know, that the power which prostrates them at the feet, of the Union, which s -signs them a level lower than that of the original States, is based on the Constitution. The power, Mr. President, of thf! States to make compacts is one thing, and the Constitution of the U. States i another. And, although the States may have the power to mke compacts, by which a portion ot their sovereignty may be alienated, yet it does not follow of course, that they have a right to transfer 6uch sovereign powpr to the Union. ;r that the Union could receive or exercise such power. The boundary separating Federal and State powers, may be considered the stability of our politi cal Fystem. This boundary may not be passed by either, for any purpose; neither to usurp nor to transfer power: for, in either way, would our system be deranged, and the Constitution suffer vio. lence. A State may have the power of destroying her own Constitution, though totally desitute of power to interfere with the Constitution of another State, or with tht of the Union. Suppose a State to determine on it? own dissolution: Could it transfer all its powers, Legislative, Executive, and Judicial, to the Federal Government! And, if a State could eo transfer its powers, could this Government receive such transfer, or exercise such powers? Surely not: if one jot or title of powerj not given by the Constitution, can be acquired or exercised in such way as this, then farewell to the guards against usurpation of power, placed by the wisest and best of men around the Constitution: Farewell to the sovereignty of the States, Establish this doctrinej and we may live to see a consolidation of all pdwer in the hands of this Government. Then, indeed, would the Constitution have prescribed in fain the mode of its own amendmentt Vain would be the provision th it two-thirds of Congress, of of the State, should agree in calling a Convention to propose amendments, and that three-fourths of the States should be necessary to ratify Such amendments, if the Constitution can be changed by transfers of power from individual States, or j by compacts with the several States I lay it down, sir, as a proposition not 1 be resisted, that the rights of soil and : taxation are inseparable from the 6ove- ' reinty of every independent Stite; mid

to sustain thi proposition, no othas proof seems to be necessary than well

established definitions. What, sir, Is sovereignty? And what is a State! Go to writers on National Law, cr to the ab!et expositions of our most enlighten ed Statesmen, for answer?, to these que (ion. We shaH here, no duhr, be toh'$ that nothing can be found in national law applicable to our affairs. But must be permitted at least to hope, that ihe scveveignty of Ihe States is not so perfectly destroyed by the formation of (he General Governmert, as not to ba recognized by the principles of interna, tional law. It is, perhaps, by a wriw terson such subjects, takn as an axiom, that the public domain is the first grand objef t of sovereignty in every indepen d.nt Slate. In pro f of this propo-i ion. t shall rehr the "senate to some autnorisies. Vatlall, page 163, says, that the general domain cf the nation over the lands it inhabits, is naturally connected with the empire; for, establishing itself m a vacant country, ti e n-ition certainly did not pretend to have the least dependence there o:i any other power; and how should an independent nation avoid having au'hority at home? How should it govern iiself at it pleasure in tho country it inhabits, if it cannot truly and absolutely dispose of it? And how should it have the full and absolute domain of the place in which it has no command? Another's sovereignty, ittid the right it comprehendsj must take away its freedom of disposal.'' This authority would, itself, be abun dantly sufficient to prove the proposition, laid down The high character of ita author must beset at naught, or it cannot be resisted. But I shall make an other quotation from the same book, which, if the authcr of the compilatioil had written with our system before -him and with reference to no other form of Government, could not be more applicai ble to ou- affairs. It is to be found at page 3, and is in these words: "Several sovereign and independent Statea may unite themselves together by a perpetual confederacy, without each, in particular, ceasing to be a perfect Sia'e. They will form together a Federal republic. The deliberations in common, will offer no violence to the sovereignty of each member, though they may, ia certain respects, put some constraint oa the exercise of it, in virtue of voluntary engagements." And what is the condition of the new States, respecting their public lands? What we complain of, iR, that you have not only put restraint on the sovereignty of the New States, but that you have taken that sovereignty entirely away. I will, Mr. President, trouble the Senate with but one other quotation from ttm author, (t ia tt) be found at pagt lG5, in these words: What is called the high domain, which) is nothing but the domain of the body of the nation, or of the sovereign who represents it is every where considered in separable Jroin the 'ereign." The nuthority of Yattel is sron and very posit've. He lays it down as a pi-o posi'ion incontrovertable, that tha rijht ( disposing of ibe soil, the riht of high, domain, is inseperable from the so?ereir -ty. Look, too. at the decisions ofth Supreme Court, and surely this authority will be considered jo point. In the casa of Fietcher asrainsrPeek, 6 Cranch, 12C, Judge Marshall, in delivering the opinion of the Court) says: That the legislature of Georjh, unless restrained by its own Constitution, possess the power of disposing of the unappropriated lands within its own limit?; in such manner at it own judgm-nt shall dictate, ia a proposition nut to be controverted n And in the case of Martin against Hunter, 1 Wheaton 325: "The sovereign powers vested in tha State Governments by their respective constitutions, remain unaltered and unimpaired, except so far as they are granted to the Gj? ernmeot of the United State." These autboritiee are ia direct sustenance of tbe sovereignty of the States. The doctrines of international law, and tba authority ofthe Supreme Court, are atik clear and positive, and establish tbe proposition tbat the public demain is inseparable from State eoverignty . But, again, sir, tbe public lands ought to be given up to the States, beca, in their present condition, they stir up ani perpetuate distracting political questions The question of interual improvements is one of that kind On this subject, tbarfl seems to be as yet no compromise of opinion. The new Slates mmt adhere to their opinions, and tbe old Slates are not likely to yield. It is a very aii-auUr fcci, that, while a large minority of both branches of the National Legislature deny that Congress have the constitutional power to construct roads and canals; wbi'e they persist in saying, that, in constitutional quescions, precedents are entitled to no respect; that, although beaten i day, on an appropriation for a road or canal, they wiU rallj tomorrow, and fight the battle over again yet, by the com pacts with the new Stales, this Govern ernrnetit stands bound io appropriate fire per cent. f he proceed of the sales of -public lands to these very ob jects. I wo-nttos ni mesc appwui are to be expended, under the direction of Congress, in making roads and tatuli fj,S4i4 logs.)