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the Constitution, and the word ¢ territory’’ occurring but once, and that as property, as-
Sillndilf;tes to other property--as land, in fact; and as a thing to be ¢ disposed of-=to bo
sold.

Most usually, however, the advocates of this power agree with. Mr. Curtis and. the dis-
tinguished gentleman from Ohio, [Mr. CorwLy, | and base. the assumption upon the power
of Congress ¢‘to dispose of and make all needful rulesand regulations respecting the territory
or other property belonging to the United States.”” "This clause was adopted without debate
in the convention; and, says Judge Campbell, ¢ was demanded by the exigencies of an
exhausted Treasury, and a disordered finance, for relief by sales, and the preparation for
sales, of the public lands.” It was little imagined that there was lurking under this ap-
parently innocent verbiage a supremacy in Congress over the territory nearly equal to that
claimed by the British Parliament over the colonies; and that Congress, when it exercised
jurisdiction over this public property, could launch outinto the shoreless, starless sea of dis-
cretion, determining the rights and disabilities of inhabitants, and disfranchising whole com-
munities of their property-rights. It is an assertion of the power to create and establish
the social and political system of every new State; and hence the action of the Republican
Legislatures of Ohio, Vermont, Connecticut, &c., instructing their members of Congress to
vote against the admission of new States into the Union, thus concurring in the recommen-
dation of the Hartford convention, to curtail the slave power by preventing the admission
of any more slave States.

In this clause, ¢ territory or other property’” is the subject, the corpus of the grant.
The power given is to make needful rules and regulations for the property of the United
States. - The most common analysis of the phraseology shows that ¢ territory’ is spoken
of as one of the kinds of property. If it be a general, absolute, unlimited, sovereign grant
of legislative authority over the property, the other clause in the Constitution giving
exclusive legislation over the seat of government and places purchased for forts, magazines,
arsenals, dock-yards, and other needful buildings, was entirely unnecessary. It was a
cumulative and specific grant of what was, in more general and comprehensive phrase,
elsewhere granted. In the case of the United States vs. Gratiot, as well as in the Dred
Scott case, the judges say that ¢‘ the term ¢territory’ is merely descriptive of one kind of
property, and is equivalen$ to the word ¢land.” ”

1f the construction placed on this clause be correct, and unlimited legislative power be
conferred, and a substantive authority for civil government be conveyed, the conclusion
seems irresistible, that Congress can exclude slavery from every foot of the public domain,
whether in Alabama or in Kansas, whether in the States or in the Territories. The power
to ‘“make rules and regulations’” applies as well to ¢ territory or other property” in the
States as in the uninhabited wilderness. From this clause alone does Congress derive the
power to dispose of the public lands, and this power operates in as well as out of the States.
Towards the common territory, Congress cannot adopt any rule which is not common and
uniform to every State, and has no rightful power to exclude property recognized by the
Constitution of the United States, or by the constitution and laws of any particular State.

The claim of sovereign power over the inhabitants of the soil, as derived from the power
to dispose of the soil, or lands, or territory, is a re-enactment and revival of one of the
‘¢ essential facts and constitutive elements of the feudal system.” That system blended
sovereignty with property, and attributed to the proprietor of the soil, over the inhabi-
tants, almost all the rights we call sovereignty, and such as are possessed by the Govern-
ment. It ascribed to the possessor of the fief all the rights of the public power; aud the
proprietor of the soil could enact laws, impose taxes, and render justice. Guizot, in his
history of civilization of France, says the feudal regime was considered by the mass of the
population as an enemy to be fought and exterminated at every hazard. From its origin
to its destruction, from its epoch of splendor, and at the pericd of its degradation and
decay, the feudal system was never accepted by the people. The Republican doctrine,
deduced from the proprietorship of ‘the soil, from the possession of real property, is as
repugnant to all American ideas of personal rights and personal liberty—to the elemental
necessity of the consent of a people to the existing Government—as feudalism was to
France, when whoever struck a blow at it had popularity.

To this claim of sovereign power over the Territories, as derived from any source, I
might, as against the Republicans, have conclusively interposed the decision in the Dred
Scott case, wherein the act of Congress prohibiting slavery in the Territory was solemnly
adjudged to be unconstitutional and void. The decision was full and proper and essential.
So satisfactory and grateful was it to the South, there is danger of forgetting one of the
old State-rights landmarks. The Supreme Court is not to be regarded as the ultimate
arbiter for the decision of all constitutional questions. Besides the fact, that the judiciary
can only take cognizance of technical cases—and there are many political questions that
cannot be drawn within its suthority—it should never be elevated above the sovereign
parties to the Constitution, who, &s sovereign and independent States, having formed the

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