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Indianapolis Old Line Guard (Newspaper) - July 21, 1860, Indianapolis, Indiana If old line Constitution the Union and the Equality of the states vol. 1.indiaivapolis, ii Daiva saturday july 21, 1860. No. 2.tfie old line guard. Is publise13 t x vat Quot 33 e2 to Ali Quot a quota i Noi Java Polis Ivo Saiva. By Kinder amp harkiness. T e ii 3vi s�?�100, until after the presidential election in Advance in All cases. A a advertisements inserted at the usual rates. Each of Hon. J. P. Benjamin of Louisiana. Do livened in the United states Senate May 22, 18g0. Or. Benjamin. Or. President when we met Here in december the Public mind was deeply stirred. It was stirred by an occurrence which had taken place for the first time in our history the invasion of oae of the states of the confederacy by a band of fanatics for the avowed purpose of interfering with its Domestic institutions and setting its slaves at Liberty the whole country was deeply stirred but especially stirred was the South and this Universal excitement found immediate vent in Congress. Scarcely had we met when numerous resolutions were placed upon our table by different senators which on the 2d of february were ordered by a Resolution of the Senate to be printed together. The first was a Resolution submitted by the senator from Ohio or. Pugh who on the 15 the of december proposed that the committee on territories Quot be inst cited to inquire into the expediency of repeating so much of the acts approved september 9, 1850, for the organization of Tempo rial governments in new Mexico and Utah As require that All the Laws passed by the Legislatures of those territories shall be submitted to Congress for approval or that was offered on the 18th of december before even the House of representatives had been organized. To that an amendment was offered by the senator from Iowa or. Harlan which i shall not read. The next was a Resolution submitted on the 16th of january by the senator from Illinois or. Douglas in re Tion to instructions to the committee on the judiciary to report a Bill for the Protection of the states and territories of the Union against invasion. Next on the 18th of january were resolutions submitted by the senator from Mississippi or. Brown next a a acre amendments to those resolutions submitted by the senator from Minnesota or. Wilkinson next will a the resolutions submitted by the other senator from Mississippi or. Davis on the 2d of february and finally to those resolutions amendments were of Fereby the senator from Delaware or. Saulsbury Here then was a series of propositions before the Senate seven in number All directed to the question of slavery in the states and territories and All ordered by the Senate Quot to be printed together for under these circumstances it became obvious that unless some concert of action was had by a Tlemcen who professed the same political principles in relation to the vital Issue now before the country the discussion must be confused and pointless. If every member offered his own resolutions in his own language and if there was no concert among those who entertained the same principles the time of the Senate would be needlessly exhausted and we should come to no practical result. Under these circumstances a suggestion was made from what Quarter i know not and certainly it is not of the slightest consequence that the members of the democratic party who were supposed generally to entertain sentiments in accordance with each other should meet and should agree upon the phraseology of the resolutions that they were disposed to support and after harmonizing upon that phraseology should agree to stand by it Avith a View to get a vote of the Senate upon distinct propositions As the principles of the democratic party so far As that party was represented by the senators in Congress. Now sir. President these resolutions being before us the honorable senator from Illinois or. Douglas the other Day i am sorry that i do not see him in his seat i should have waited for him if i had the slightest Hope of seeing him in the Senate he was not Here yesterday he is not Here to Day and it is impossible for any one of us to say when he will be Here again the honorable senator from Illinois in one of the most extraordinary speeches Ever delivered in a deliberative body and which occupies Over Twenty consecutive columns of the Globe and which was followed a Day or two after in reply to the senator from Mississippi or. Davis by several other columns has undertaken what certainly is without precedent in the history of the country has undertaken to defend his individual claims to the presidency of the United states and in so doing has divided out his elaborately prepared speech into different portions some of which alone shall i attempt to answer and i attempt that answer because that senator thought proper to arraign my state and to arraign me with other democratic states and other democratic senators Foi daring to discuss the propositions and resolutions now before the Senate. More than half of that senator s speech was devoted to the perfectly Idle and unnecessary task of pro ring that those principles which he now asserts to be the constitutional principles under which the territories of the United states Are governed were advocated by him As such years and years ago and therefore he undertook to prove to the Senate and to the country to which he appealed so often that there had been no inconsistency in his course and that if he and his brother democratic senators Are at Issue upon any Point it is we and not he who have proved inconsistent. I shall return to that sir in a moment. The next proposition of the honorable senator from Illinois was that he was the embodiment of the democratic party and that All who dissented from this modest proposition were rebels. He next arraigned All his democratic Brethren in this climber for daring to offer resolutions to tiie Senate declaratory of constitutional principles and he called the resolutions now before us a caucus platform which he said the Charleston convention which represents him treated with the scorn and contempt that they merited. Next he said that seventeen democratic states of this Union and All his brother Derao Crvaric senators who did not agree with him were disunion St and he arraigned them As such. He said that they were travelling on the High Road to the disunion of these states. Then in the plenitude of his indulgence he told us that we were sinning through ignorance and did not know what Road we were travelling and with princely magnanimity tendered his clemency and his Pardon to those who after being enlightened by his counsel should tender repentance. And after having done All that having attacked every democratic state in this Union and almost every democratic senator in this Bod he closed wit ii a statement that All he had said was in self defence that he attacked nobody and that the world should know if he Ever spoke again it would be As he had just then spoken to defend himself from attack. Now or. President lest i should be supposed to have at All exaggerated in this statement what the notable senator from Illinois thought proper to say in relation to resolutions involving purely constitutional and political principles i will read Here and there passages from his speech in support of the assertion that i made. In relation to the action of his brother. Senators he says this the democratic senators attend to their official duties and leave the National convention to make their platforms and the party will be United. Where does this trouble come from ? from our own caucus Chambers a caucus of senators dictating to the people what sort of platform they shall have. You have been told that no less than twelve Southern senators warned Jou in the caucus against the consequences of trying to Force senatorial caucus platforms on the party. Sir i do not know when the people Ever put it in a senator s commission that he is to get up platforms for the National conventions on the supposition that the delegates who go there have not sense enough to do it themselves. Quot Alt Tough the action of the caucus was heralded to the world to be As was Generaux understood for the purpose of operating on the Charleston convention it did not have its effect. The resolutions Lay still. When it was proposed to postpone them Here in the Senate before the Charleston convention 1 voted against the postponement. I wanted to give a Chance for a vote on them before the party acted. I did not believe the party then would agree to the dictation. I do not think they would obey the order. Sir the Charleston convention scorned it and ratified the old i Appeal to the Senate whether or not this is self defence. 1 Appeal to the Senate whether or not this be As i have stated it to be an arraignment by the honorable senator from Illinois against the action of almost the entire body of his brother demoed ats a perversion of the truth and the facts a misrepresentation of what occurred for this namely that the meeting of the senators who adopted a series of resolutions which Uliey believed to be sound constitutional doctrine was based upon the fact that a Large series of Independent resolutions had been put before the Senate and that some concerted action of the party in relation to those resolutions was just As necessary As the concerted action of the parties who supported the Kansas Nebraska Bill in 1854, when the honorable senator from Illinois called them into Council every morning almost of his life during that controversy. When that Bill was pending when amendments were offered around the chamber for the purpose of concentrating action and preventing that division of the party which might be taken advantage of by the opponents upon the floor of the Senate the honorable senator from Illinois called together those who supported the Bill every morning and asked their opinions and changed and modified the phraseology to suit All and to obtain the assent of All. That was the purpose of the democratic senators who met to consider resolutions that senators All around the chamber had offered. That they did and that is what has been perverted into an attempt to dictate a party platform to a convention. Nay More sir in order that there might be no possibility of misrepresenting those resolutions As being the dictation of a party platform the Senate postponed the consideration of the resolutions until after the party had met and made what the senator from Bli nois says is its platform and that very postponement is brought up Here As an arraignment of the intentions of the senators who Are now speaking on these resolutions after the plate inn has been made As he says. It was with the View As he now says to affect his presidential chances. I leave that accusation for what it is Worth. I have stated the accusation and stated the defence. Next sir 1 say that the honorable senator from Illinois not satisfied with discussing the constitutional questions now before the Senate upon their merits has thought proper to arraign seventeen democratic states of this Union As Dis unionists. Lie accompanies it with the suggestion that he forgives us because we know not what we do. I say sir the fact that the senator from Illinois Ari signs seventeen democratic states and nearly All his democratic Brethren Here As Dis unionists i will also show by an extract from his speech the other Day of a few lines. He tells us that these resolutions Are a Yancey platform and that the resolutions reported to the Charleston convention by a majority of the states of this Union by the almost unanimous assent of the democratic states of the Union was a Yancey platform also and that Yancey made the platform for the Paity made the caucus platform and made the platform for the majority of the democratic states of the Union and that All together with Yancey we Are Dis unionists. Here is his language sir the Yancey platform at Charleston known As the majority report from the committee on resolutions in substance and spirit and Legal effect was the same As the Senate caucus resolutions the same As the resolutions now under discussion and upon which the Senate is called upon to vote. Quot i do not suppose that any gentleman advocating this platform in the Senate Means or desires disunion. I acc Iuit each and every Man of Sulci a purpose but i believe in my conscience that such a platform of principles insisted upon will Lead directly and inevitably to a dissolution of the Union. This platform demands congressional intervention for slavery in the territories in certain events. What Are these events in the event that the people of a territory do not Avant slavery and will not provide by Law for its introduction and Protection and that fact shall be ascertained judicially then Congress is to pledge itself to pass Laws to Force the territories to have so sir these resolutions Are a Quot Yancey platform Quot a caucus platform a disunion platform and the purpose is of All who support them and vote for them after the people of a territory shall have decided that Quot they do not want slavery and that fact has been ascertained judicially to get Congress to Force slavery on that is the deliberate statement prepared and put Forth to the world revised and corrected by the honorable senator from Illinois. Or. President my state voted for that platform. I shall vote for this caucus Yancey platform if that helps the senator from Illinois. If it helps him to give nicknames and he thinks that an Appeal to the people of the country will be helped by accusing democratic states and democratic senators of beg led by a gentleman whom he supposes to be unix Pular and Calls them supporters of a Yancey platform and of a disunion platform let him have the Benefit of such Appeal. I for my part accept the responsibility and stand by the resolutions and the platform. But sir at the same time i deny that there is the slightest approach j to truth or correctness in the lineaments ascribed by the honorable senator from Illinois to the platform adopted by a majority of the democratic states at i Charleston or to the principles which Are Here adv j rated by the almost unanimous vote of the democratic j senators. I deny that there is the least approach to truth in this picture. No Man Here has called upon Congress to Force slavery upon an unwilling people. No Man Here has called upon Congress to intervene and Force slavery into the territories. No Man has asked Congress to do what the gentleman Speaks of j in another part of his speech As making a slave code for the territories that being another of the Slang phrases which the Honor Able senator from Illinois adopts from Republican gentlemen at the North and parades to the american be Yle As proof that he is sound on this subject of the democracy and that we Are unsound. No Man has asked for such a thing or anything approaching to such a thing As i shall proceed hereafter to show. Now or. President having shown to you the charges made by the honorable senator from Illinois against the democratic states of this confederacy and the democratic senators in this Hall which charges i repel and mean to disprove to Day desire to read a few words which i find at the close of Liis speech for the purpose of showing How nearly and How closely his conclusions and his speeches Accord with what i have just stated Quot i am sorry to have been forced to occupy so much of the time of the Senate but the Senate will Bear me witness that i have not spoken in the last two years on any one of these topics except when assailed and then in self defence. You will never find the discussion renewed Here again by me except in self defence. I have studio buy avoided attacking any Man because i did not mean to rive a pretext for renewing the assault on me and the world shall under stand that if my name is brought into this debate again it will be done aggressively As an assault on me and if i occupy any More time it will be Only in or. President this Mode of discussing Public subjects is a Verj convenient one Ari ainu if every gentleman sitting Here on this Side of the chamber attacking them in the most offensive of All manners spreading that attack revised and corrected in the official columns of the Globe issuing it out to the world and then saying that if any Man should raise his voice Here to rep Elit it will be an assault on him and the world Shau know that he does not speak sex ounce its judgment it will be binding on me on you cent in Selme Fence. He makes it impossible to an sir and on every Good citizen. It must be carried out ser his charges without attacking Lus course and in Good Faith and a the Power of this government then says he is driven by self defence to fresh assaults the army the Navy and the militia All that we have i am afraid or. President that i shall be obnoxious must be exerted to carry the decision into effect in to the charge of assailing the Liono Rable senator from Good Faith if there be resistance. Do not bring the the senator from Illinois is right his opinion was clearly expressed at the time. He asserted the Power in the territorial legislature Quot but it was not my opinion that was to govern it was the opinion of the court on the question arising under a territorial Law after the territory should have passed a Law upon the subject. Bear in mind that the report introducing the Bill was that these questions touching the right of property in slaves were referred to the local courts to the territorial courts with a right of Appeal to the supreme court of the United states. When that Case shall arise and the court shall pro Illinois if it be indeed an assault to repel a most Wanton and unprovoked attack. More than one half the speech of the honorable senator from Bli nois was devoted As i said before to the Pur Ose of proving his own consistency from some period which i do not care to go Back to Down to 1854 and 1856, and the present time. He save he question Back Here for Congress to review the decision of the court nor for Congress to explain the decision of the court. The court is competent to construe its own decisions and Issue its own decrees to carry its decisions into effect. Quot we Are told that the court has already decided the question if so there is an end of the Contro is now consistent with the principles that he then pro j Versy. You agreed to abide by it i did. If it has fessed. 1 do not deny it. I do not know that any j decided it let the decision go into effect there is an body denies it. On the contrary that is the precise j end of it what Are we quarrelling about ? will Reso charge brought against him As i shall proceed to show i lotions of the Senate give any additional authority to the precise charge is that having agreed with us that i the decisions of the supreme court of the United he would abandon those principles if they were proved to be false he now flies from his bargain he now denies what he agreed to he now refuses to be bound by that of Wlinich he had previously Given his consent and defends himself because As he says he is now in accordance with what he was then. I do not propose states does it need an endorsement by the Charleston convention to give it Validity ? if the decision is made it is the Law of the land and we Are bound by it. If the decision is not made then what right live you to pass resolutions Here prejudging the question with a View to influence iii the views of the court ? if to go Back beyond the year 1857 because every one there is a dispute As to the True interpretation and Here knows that us to the year 1857, the honorable senator from Illinois had the cordial Friendship and support of All the members of the democratic party. Every one on this floor knows that up to the year 1857, the honorable senator from Illinois was looked upon with Pride and Confidence As one of the acknowledged leaders of the democratic party. Now or. President is it not a subject deserving of some inquiry will it not naturally suggest itself to the american people to inquire How happens it that a gentleman who for a Long series of years possessed the Confidence and admiration of his party upon whom they looked with Pride whom they acknowledged As a Leader and for whom they reserved their choicest honors should suddenly find himself separated from every democratic state in the Union and from the whole body of his democratic associates Here and in the other House. What magic has effected this change in the univ i Al sentiment towards him what occult Power has been brought to Bear us on the senator from Illinois that to Day he complains and whines that he is the subject of a common assault by gentlemen who were Foi Marly with him and who he says Are pursuing him with ruthless Malignity ? How happens it that the senator from Illinois forgot to touch that Art of the recent history of the Counti a in his speech ? propose to commend myself to the consideration of that part of the history. When in 1854, the Kansas Nebraska Bill was before us i must be guilty of some repetition it is impossible to avoid it when a question has been worn so threadbare there were three distinct sentiments professed upon this floor in relation to the government of the territories of the United states. The gentlemen on the other Side of the chamber professed the principle that the Congress of the United states had the Power to govern the territories and that there was to be found in the Constitution of the United states no prohibition against exercising that Power so As to exclude slavery and they therefore went for excluding slavery from the territories by the Power of Congress which had an admitted Power to govern them. The Southern members of the democratic party with some of the members from the North agreed with the Republican party that the Congress of the United states had the undoubted Power to govern the territories but they held that there was a limitation to that Power to be found in the Constitution of the United states which limitation prevented the Congress of the United states from exercising the Power to exclude slavery but on the contrary imposed it As a duty upon Congress to protect property in slaves just As All other property. The third school had at its head at that time the venerable senator from Michigan now in the department of state. With him were joined the honorable senator from Illinois and the Liono Rable senator from Michigan then or. Stuart i think. They held that the sole Power of Congress was to Institute an organic act As they termed it that the sole Power was to give As it were a Constitution to the territories by which the people might be brought together in organized form and that when the people were thus brought together in an organized form in a legislative capacity they possessed inherent sovereignty just As a state and Iliad a right to do in relation to slavery just As they pleased. Those were the three principles advocated upon this floor. I think i state them correctly. I try to do so at All events. When we were discussing the principle to be introduced into the Kansas Nebraska Bill we All agreed that we were opposed to the principles advocated by the Republican i arty. We All agreed that whether Congress had the Power or not to exclude slavery from the territories it was injurious to exercise that Power that Congress ought not to intervene. That is what we said and All the senators from the South concurred with that. When we came further to determine what was to be done after having decided that Congress should not intervene we split. The democrats of the South and some of the democrats of the North agreeing with them in our caucus meetings in discussing the principles of the Bill in framing its provisions in preparing it for discussion in the Senate said Quot the territorial legislature has no Power to exclude the people of the South or their property from the territories because the territories Are governed by Congress As a trustee for All the states the territorial legislature can get no Power but the i Ower that Congress gives it and Congress itself has no Power to exclude our property from the territories which belong to us As Well As to the free the senator from Illinois said differently. The senator from Illinois said that he believed the territorial legislature had the right whilst the people were in a territorial organization to exclude slavery if they pleased. We split on that we could not agree. I admit All that the senator said Here the other Day As to it. He said so then he says so now. I complain exactly of that consistency because when we could not agree he said that he would agree with us to submit it to the courts and if the courts decided in our favor he would give up and join us and we agreed that if the courts decided against us that we would give up and join him. It is that very consistency that is complained of and i shall proceed to prove it. It is bad Faith when the honorable senator no longer worships at the shrine of constitutional principle. Professing to agree to leave the matter to the decision of the courts professing to respect the courts in their decisions he has gone astray after false gods and is now worshipping the idols of evasion and ii cum Ven Tion. Sir i do not state of my own authority the position of the honorable senator from Illinois i read again from his speech the other Day. He is speaking of the Power of a territorial legislature to exclude s Avery. The senator from Illinois is right in saying that his opinion was clearly explained at the time. He asserted the Power in the Tempo rial legislature Quot i believed the Power existed others believed otherwise we agreed to differ we agreed to refer it to the judiciary we agreed to abide by their decision and i True to my agreement referred my colleague to the courts to find out whether the Power existed or not. The fact that i referred him to the courts Lias been cited As evidence that i did not think individually that the Power existed in a territorial legislature. After the evidence a that i produced yesterday and the debate just read upon the Trombl amendment no Man who was an actor in those scenes has an excuse to be at a loss As to what my opinion meaning of the decision of the court who can Settle the True construction except the court itself when it arises in another Case ? can you determine by resolutions Here what the decision of the court is or what it ought to be or what it will be ? it belongs to that tribunal. The Constitution has wisely separated the political from the judicial department of the government. The Constitution has wisely made the courts a co ordinate Branch of the government As Independent of us As we Are of them. Sir you have no right to instinct that court How they shall decide this question in dispute. You have no right to define their decision for them. When that decision is made they will Issue the proper process for carrying it into effect and the executive is clothed with the army the Navy and the militia the whole Power of the government to execute that decree. All i ask therefore of you is non intervention hands off. In the language of the Georgia resolutions let the subject be banished forever from the Halls of Congress or the political Arena and referred to the territories with a right of Appeal to the courts and there is an end to the or. President i have read that extract at length that All May see the precise Point at which the honorable senator from Illinois has separated himself from his democratic Brethren and the democratic party. I have him Here now in his speech before the Senate the other Daj declaring that that was the bargain that whenever the court made the decision he would stand by it that he had always intended to stand by it that it was binding on him in Good Faith and that the a Hole Power of the government should with his consent be called into operation for the purpose of carrying out the decision. I shall proceed presently to show that the senator from Illinois not once but again and again since 1857, has been engaged in conjunction with gentlemen of the Black Republican party first in endeavouring to explain away the decision that has been made and next that he has made the Broad and open avowal in the face of the country that if the decision is made it shall not go into effect. That is tie arraignment of the honorable senator from Illinois. Let him not go Back to 1840, or 1844, or 1848, or 1852, or 1854, when he had the party with him nor even to 1856 but let him come Down to the decision of the supreme court of the United states in the Spring of 1857, and let him follow me while i pursue his devious track since that Day. Early in the year 1857 the dred Scott decision was pronounced by the supreme court of the United states. If my recollection serves me the decision had not been printed when we adjourned. A number of us i think subscribed together to obtain a number of copies from the Public Printer agreeing that he should print such a number As we believed the Senate would be willing to have printed when it reassembled and if the Senate declined to print it when it assembled we made ourselves responsible to him for the Price. It was desired that the decision of the supreme court should go to the country. The dissenting opinions of the two judges who were in the minority had been printed. The opinion of the court was still unknown. The result of its opinion was pretty Well ascertained but in a matter of that magnitude it was deemed of the last importance to have the Verj language of the court and to have it spread broadcast through the land. Now or. President we Are told that this decision decides nothing of what was at Issue at the time nothing of that Issue which the honorable senator from Illinois agreed to leave to the courts. I do not know any better Way of ascertaining what a court decided than to do As the honorable senator from Illinois has advis etl us to do take the court s own statement of what it decided. In reference to this dred Scott decision it will be observed by any gentleman who chooses to refer to the nineteenth volume of Howard s reports that every judge gave his opinion seriatim because there were numerous questions on Avrich All did not choose to be bound without giving a statement of their particular views but or. Chief Justice Taney delivered the opinion of the court. The rest were Mere statements of particular views. Quot or. Chief Justice Taney Quot is the expression Quot delivered the opinion of the court Quot and or. Chief Justice Taney is said to have made a syllabus of the Points which he the Organ of the court considered to have been Deci led by the court. Now in regard to the attempt to get rid of the authority of this decision on the ground that the questions were not before the court and that they were orbiter dicta allow me to say this it is True that when a precise Point is before a court the judgment of the court upon that Point is alone that which binds the parties but no lawyer will contradict the assertion that those principles which the court itself lays Down As being the basis upon which it arrives at its Conlu i Sion Are decisions by the court they Are not orbiter dicta. Orbiter dicta merely passing sayings Are such views thrown out by a judge in the course of his reasoning As have no reference to the Points upon which he is deciding the Case but whenever in order to reach a result the court proceeds to give those reasons for that result and in giving those reasons for arriving at the result it lays do Avn the principles upon which the result is reached i say those principles Are considered As decided by the court. If unnecessary to its decision they have less weight but if the court itself declares the principles Liat it lays Down to be necessary to its decision and declares that it does decide them then i say no lawyer can fail when that Case is brought up before the court to say the court has so decided. I do not choose to go into that at any length nor even to read the syllabus of the decision of the supreme court. But what were we divided about in the year 1854, and what was it that the honorable senator from Illinois agreed to leave to the decision of the supreme court of the United states upon a Case to be brought up from the local legislature of Kansas ? it was this has Congress the Power to govern the territories of the United states or is that Power in the territorial legislature ? has Congress the right to exclude slavery from the territories or can it Del rate that right to a territorial legislature or has a i Fri trial legislature in the absence of any Dele a to on of this Power by Congress an inherent right to j exclude Davery ? these Are the Points. J when this Case was brought before the supreme court of the United states the question of the Power of Congress arose directly no Man has Ever denied that the Power of Congress to declare that a slave should be free by being carried into the territories of the United states North of the Missouri Compromise line. That then brought directly in question the Power of Congress to exclude slavery from the territories its to to govern them and the limit upon that Power. What did the court say ? in referring to a former decision it says Quot perhaps the Power of governing a territory belonging to the United states Quot a observe Liis language Quot which has. Not by becoming a state acquired the Means of self government Quot a taking it for granted that every Man must at once admit that it is Only when it becomes a state that it has acquired the Power of self government Quot perhaps the Power of governing a territory belongs to the United states Wlinich has not by becoming a state acquired the Means of self government May result necessarily from the facts that it is not within the jurisdiction of any particular state and is within the Power and jurisdiction of the United states. The right to govern May be the inevitable consequence of the right to acquire territory. Whichever May be the source from which this Power is derived the Possession of it is or. Pugh what is that ? or. Benjamin i am Reading the citation from Canter s Case found in the dred Scott decision. J what did the court in commenting on that or. Pugh i Only want to ask the senator whether in the dred Scott decision it is not quoted tor the purpose of being Connie cited upon ? or. Benjamin i am going on to show if the senator will permit me that the court adopted that in the dred Scott Case. I do not think i leave quite such an open joint As that in my argument the court in the dred Scott Case go on Quot it is thus Clear from the whole opinion on this Point that the court did not mean to decide whether the Power was derived from the clause in the Constitution or was the necessary consequence of the right to acquire. They do decide that the Power in Congress is unquestionable and in Thi. We entirely concur and nothing will be found in this opinion to the contrary. The Power stands firmly on the latter Alten Active put by the court that is As the inevitable consequence of the right to acquire territory Quot they entirely concurred. Is that decided in the dred Scott Case v or. Pugh if the senator asks me i think the sentence he emphasizes is expressly excluded by the language of judge Taney. He emphasized the first paragraph Anil then judge Taney says the Power stands on the last paragraph. Or. Benjamin Well i will give you another Chance. Let us take 19 Howard Page 445, referring to that same decision in Canter s Case Quot thus it will be seen by these quotations from the opinion that the court after stating the question it was about to decide in a manner too Plain to be misunderstood proceeded to decide it and announced As the opinion of the tribunal that in organizing the judicial department of the government in a territory of the United states Congress does not act under and is not restrained by the third article in the Constitution and is not bound in a territory to ordain and establish courts in which the judges hold their offices during Good behaviour but May exercise the discretionary Power which a state exercises in establishing its judicial department and regulating the jurisdiction of its courts and May authorize the territorial government to establish or May itself establish courts in which the judges hold their offices for a term of years Only and May Vest in them judicial Poirer upon subjects confided to the judiciary of the United states. And in doing this Congress undoubtedly exercises the combined Power of the general and a state government. It exercises the discretionary Power of a state government in authorizing the establishment of a court in which the judges hold their appointments for a term of a cars Only and not during Good behaviour and it exercises the Power of the general government in investing that court with admiralty jurisdiction Over which the general government had exclusive jurisdiction in the territory. Quot no one we pres Iune will question the correctness of that opinion nor is there anything in conflict with it in the opinion now How now ? or. Pugh i do not think that helps you any. Or. Benjamin the Congress of the United states has the discretionary Power of a state in the territories. The Congress of the United states has the undoubted Power to govern the territories As they Are called. Or. Pugh the senator surely knows that the decision does not say that. It says Congress has that Power in the establishment of courts and conferring admiralty jurisdiction. That very paragraph in Canter s Case was debated in the Senate four years ago Between the senator from Illinois or. Trumbull and the senator from Michigan general Cass. The court s attention was drawn to it. Or. Benjamin the court s attention was evidently drawn to it As the senator says but will the senator Tell me that the Congress of the United states has the Power to exercise the discretionary Power of a state in a territory in organizing its jul Claro without having any Power to govern the territory ? or. Pugh so far As the court s of the United states Are concerned it exercises the same Power within the states for it provides for settling a controversy Between two individuals by the action of the Federal government. Or. Benjamin does the senator say that the Congress of the United states has Power to provide for establishing judges in the states for a term of years ? or. Pug fit no sir because the Constitution forbids that but i say and that is what the court Means that in clothing the territorial courts with admiralty jurisdiction first in the establishment of the courts and next in defining their jurisdiction they exercise Powei a appertaining both to the Federal and state governments but As to asserting that con is has All the Powers of a state government in a territory it is neither in Canter s Case nor in the dred Scott Case nor any other. Or. Benjamin assuredly the supreme court of the United states tells us exactly where they they say Congress has All the Powers of a state in a territory except where the Constitution of the United states interferes. That perhaps is also disputed. Or. Pugh yes. Or. Benjamin very Well let me read the decision Quot As we have before said Quot a speaking of this territory belonging to the United states a Quot it was acquired by the general government As the representative and trustee of the people of the United states and it must therefore be held in that character for their common and equal Benefit for it was the people of the several states acting through their agent and representative the Federal government who in fact acquired the territory in question and the government holds it for their common use until it shall be associated with the other states As a member of the Union. Quot but until that time arrives it is undoubtedly necessary that some government should be Esta bullied in order to of Nize society and protect the inhabitants in their persons and property and As the people of the United states could act in this matter Only through the government which represented them and through which they spoke and acted when the territory we obtained it was not Only within the scope of its Powers but it was its duty to pass such Laws and establish such a government As would enable those by whose authority they acted to reap the advantages anticipated irom its acquisition and to gather there a population Thich would enable it to assume the position to which it was destined among the states of to it Union. The Power to acquire necessarily carries with it the Power to preserve and apply to the Pur it

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