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on the earth s surface. It has been represented heretofore, that
there are one hundred and fifty thousand people in California.*
It would seem that on this very day there are fifty or sixty thou
sand persons traversing the great plains between Missouri and
the Rocky Mountains, all bound to California. Other thou
sands are passing round Cape Horn ; other thousands again
crowd, press, fill up, and more than fill up, every conveyance
that will take them to and from the Isthmus. So that it may
be said, and truly said, that this very year will add a hundred
thousand persons to the population of California. It is the
most striking occurrence within our generation, or any genera
tion, as far as respects any private enterprise, and the extraordi
nary rush of people to a given point upon the earth s surface.
The capital of the Territory is supposed to contain thirty or
forty thousand people ; twelve hundred vessels have already
been sent thither ; three hundred and fifty or four hundred ships
have been found riding in the harbor of San Francisco at the
same time. In addition to the gold and all its other inter
nal resources, California looks out upon India, and China,
and Polynesia to the west, as we look out upon Europe to the

Now the question is, What is to be done with California ?
Sir, five years ago it happened to me to say, in a public discus
sion, that perhaps the time was not far distant when there would
be established beyond the Rocky Mountains, and on the shore
of the Western sea, a great Pacific republic, of which San
Francisco would be the capital. I am overwhelmed by the ap
pearance of the possible fulfilment of that prophecy so sud-

* This estimate proved, when the census was taken, to be considerably in


denly. And, Sir, that is the alternative, in my judgment. I do
not think it safe longer to delay the bringing of California into
this Union, unless gentlemen are willing to contemplate the
other part of that alternative. Other gentlemen have as good
means of information of the state of opinion in California as I
have ; perhaps better. My information is such, at any rate, that
I do not think it safe, if we intend to bring her into the Union
at all, to defer that measure to another session of Congress, or
to any time beyond that which is absolutely necessary for the
despatch of the business of her admission. Then, I suppose,
such being the general sentiment of the country, that it would
also be the general sentiment of this and the other house of
Congress ; that is, that it is expedient, if there are no insur
mountable obstacles, to bring California into the Union at once ;
and I do not understand the intention of the author of this
amendment otherwise than that, if it were not for objections
which he has propounded to the Senate, he should be willing to
admit California at once. Now the question is, whether those
objections are insurmountable or not? If they are, California
must be kept out of the Union, let the consequences be what
they may. But if they are not insurmountable, then I think,
though things may exist which we might wish had been other
wise, it is a case of so much exigency and emergency, that we
ought to admit California.

Let us come, then, at once to that point, and see what these
objections are which have been suggested by the honorable
member from Louisiana. They divide themselves into two
classes. He says, in the first place, that, under the constitution
of California, and by the bill unamended, there is no sufficient
security that the United States will possess, enjoy, control, or
have the right to dispose of the public domain or unappropri
ated lands in California. That is the first objection. The sec
ond relates to the boundaries of California, which he says are
extravagantly large, in the first place ; in the second place, un
natural ; and in the third, impolitic and unfit to be made. Now,
Sir, he proposes to remedy what he considers the first great defi
ciency of the bill, by sending back this constitution to California,
and obtaining from a convention of that State an agreement,
or compact, to the effect that the State of California shall never
interfere with the public lands within the State, or with the pri-


mary disposal of them ; nor shall ever tax them while held by
the United States ; nor shall tax non-resident proprietors higher
than resident proprietors of the lands in that State shall be
taxed. These are provisions which are, all of them, in this bill ;
but then the honorable member s argument is, that, as they are
conditions which, from the nature of the case, can never receive
the assent of the people of the State of California, because they
can never be presented to them unless the constitution is sent
back, they are void, and that the assent or consent of California
to those conditions is necessary to make them valid and binding.
His argument proceeds upon this idea : that, without some
such stipulation or compact on the part of the State, the erec
tion of a territory into a State, a political, and, in some respects,
sovereign community, does necessarily establish in that sovereign
community a control over the public domain ; that when Cali
fornia becomes a State, ipso facto she will hold, possess, enjoy,
and control the public lands ; and this result he derives from an
argument founded upon the nature of the sovereignty ; because,
he says, it is the essence of sovereign power to control the pub
lic domain.

Sir, w T e mislead ourselves often by using terms without suffi
cient accuracy, or terms not customarily found in the Constitu
tion and laws. That the States are sovereign in many respects
nobody doubts ; that they are sovereign in all respects nobody
contends. The term " sovereign " or " sovereignty " does not
occur in the Constitution of the United States. The Constitu
tion does not speak of the States as " sovereign States." It
does not speak of this government as a " sovereign government."
It avoids studiously the application of terms that might admit
of different views, and the true idea of the Constitution of the
United States, and also of the constitution of every State in the
Union, is, that powers are conferred on the legislature, not by
general, vague description, but by enumeration. The govern
ment of the United States holds no powers which it does not
hold as powers enumerated in the Constitution, or as powers
necessarily implied ; and the same may be said of every State
in the Union. The constitution of each State prescribes defi
nitely the powers that shall belong to the government of the
State. But if this were a true source of argument in this case,
the honorable member would find that this implication arising


from sovereignty would just as naturally adhere to the govern
ment of the United States as to that of the States. Certainly,
many higher branches of sovereignty are in the government of
the United States. The United States government makes war,
raises armies, maintains navies, enters into alliances, makes trea
ties, and coins money; none of which acts of sovereignty are
performed by a State government. Nevertheless, there are sov
ereign powers which the State governments do perform. They
punish crimes, impose penalties, regulate the tenure of land, and
exercise a municipal sovereignty over it.

Let me remark that this question is not new here. I found
it in the Senate the first session that I took my seat here.
There is a class of notions which run in a sort of periodical or
bit. They come back upon us once in fifteen or twenty years.
The idea that the sovereignty of a State necessarily carries with
it the ownership of the public lands within its limits was rife
here twenty years ago. It was discussed, considered, debated,
exploded. It went off, and here it is back again, with exactly
the same aspect that attended it then.

Sir, in the year 1828 or 1829, in 1828 I think it was, the
legislature of Indiana took up this subject, passed these reso
lutions, and instructed her members of Congress to support
them :

" Resolved, That this State, being a sovereign, free, and independent
State, has the exclusive right to the soil and eminent domain of all the
unappropriated lands within her acknowledged boundaries ; which right
was reserved for her by the State of Virginia, in the deed of cession of
the Northwestern Territory to the United States, being confirmed and
established by the Articles of Confederacy and the Constitution of the
United States.

" That our Senators in Congress be instructed, and our Representa
tives requested, to use every exertion in their power, by reason and
argument, to induce the United States to acknowledge this vested right
of the State, and to place her upon an equal footing with the original
States in every respect whatsoever, as well in fact as in name."

One of the gentlemen (Mr. Hendricks) who represented Indi
ana at that time in the Senate, and who has recently deceased,
performed the duty imposed on him by the instructions of the
legislature, and brought forward a section, as an amendment to
one of the graduation bills introduced by the honorable mem-


her from Missouri,* to that effect. In moving his amendment,
Mr. Hendricks said :

" It had become his duty to present to the Senate resolutions of the Gen
eral Assembly of the State of Indiana, on the subject of the public lands
within the limits of that State. These resolutions, said he, are similar in
character to those of the State of Louisiana, a few days ago presented by
a Senator from that State. They are also, in some degree, similar to the
spirit of a memorial of the State of Illinois, recently presented to the Sen
ate by a Senator from that State. In these resolutions, the legislature
of Indiana has solemnly declared that the State, being sovereign, free,
and independent, has the exclusive right to the soil and eminent domain
of all the unappropriated lands within her acknowledged boundaries, and
that this right was reserved to her by the State of Virginia in the deed
of cession of the Northwestern Territory to the United States ; grounds
which, if tenable, as I verily believe they are, strongly appeal to the
justice and to the pride of the Senators and Representatives of that mag
nanimous State."

" It is believed that the compact not to interfere with the primary dis
posal of the soil, and not to tax the lands for a specified period, cannot
confer power on the federal government to hold the soil of that State
for any other purposes than those pointed out by the Constitution, even
if that compact had emanated from authority unquestionably competent
to make it, and had been based on policy as unquestionable. There is
no disposition to interfere with this compact as long as it has the form
of existence in the statute-book. But its validity is questioned, having
been made by the people of the Territory before the State was admitted
into the Union ; and its irrevocable character, as well as the perpetual
obligation which it attempts to impose on the people of the State, is be
lieved to be a dereliction from a fundamental principle of our institutions,
which asserts the right of every free people to change their constitu
tions and laws, from time to time, as their wisdom and experience may
direct. Nor does it seem to strengthen the pretension of right, to assert
that the general government may hold the soil of the State as an indi
vidual may hold it ; for it is by no means in that character she does hold.
She holds as a sovereign, and subjects the soil of the State to the un
controllable action of her legislative power."

Proceeding upon the ground that the public lands are the
property of the State, he proposed to acknowledge that fact by
this section in the graduation bill then before the Senate :

" SEC. 6. And be it further enacted. That the public and unappropri-

* Mr. Ben ton.


ated lands within the limits of the new States shall be, and the same are
hereby, ceded and relinquished in full property to the several States in
which the same may be, on condition that such State shall not, at any
time hereafter, put such lands into market at a lower minimum price
than shall be established by law for the sale of public lands in the terri
tories ; and on condition that the Indian title to lands within the limits
of any State shall hereafter be extinguished at the expense of such

On that occasion, Sir, the Senate was addressed much at
length in support of the same proposition by a gentleman now
holding an eminent station on the bench of the national judi
ciary,* who was then a member of Congress from Alabama.
He maintained the same general idea. He said:

" I have long entertained the opinion, that the United States cannot
hold land in any State of the Union, except for the purposes enumerated
in the Constitution ; and whatever right they had to the soil while the
country remained under territorial governments passed to the States
formed over the same territory, on their admission into the Union on an
equal footing with the old States."

The honorable member from Louisiana was only following
these precedents. The argument of his able and learned speech
was founded on the same general idea. Both gentlemen on
that occasion, with the honorable member from Louisiana on
this, rest their argument on the same supposed maxim of na
tional law, or public law. On that occasion the gentlemen
quoted from Vattel exactly what the member from Louisiana
quotes now:

" The general domain of the nation over the lands it inhabits is nat
urally connected with the empire, for, establishing itself in a vacant
country, the nation certainly did not pretend to have the least depend
ence there on any other power. And how should an independent na
tion avoid having authority at home ? How should it govern itself at
its pleasure in the country it inhabits, if it cannot truly and absolutely
dispose of it ? And how should it have the full and absolute do
main of the place in which it has no command ? Another s sov
ereignty, and the right it comprehends, must take away its freedom of

Nothing is more just than that doctrine of Vattel properly
* Mr. Justice McKinley.


understood. If a nation establishes itself in a country existing
ii ithout an ownership, why, then the vacant lands become its
own. But if a number of persons, occupying land that is
owned by, or living in a country that is under, another govern
ment, establish a political community, it follows of course that
by no act of theirs can they divest the original ownership. The
United States own this territory. The land is theirs, theirs by
acquisition. It belongs to the government of the United States
and the people of the United States. Now, if people owning
those parts of the country appropriated heretofore to individual
uses by the king of Spain, or if people resident there without
title, establish a political community, by what process can it be
made out that they become entitled to the whole country ? The
doctrine of Vattel, as I have shown, is only applicable to a case
where a nation enters into a country vacant of ownership ; and
if the gentleman whose words I have read had been kind enough
to read the whole of the authority from which he quoted, he
would have found, I think, exactly the proper distinction. But
he left off in the middle of a paragraph from Vattel s work. It
goes on thus :

" The general domain of the nation over the lands she inhabits is nat
urally connected with the empire ; for, in establishing herself in a va
cant country, the nation certainly does not intend to possess it in subjec
tion to any other power. And can we suppose an independent nation
not vested with the absolute command in her domestic concerns ? Thus
we have already observed, that, in taking possession of a country, the na
tion is presumed to take possession of its government at the same time.
We shall here proceed further, and show the natural connection of
these two rights in an independent nation. How could she govern her
self at her own pleasure in the country she inhabits, if she cannot truly
and absolutely dispose of it ? And how could she have the full and ab
solute domain of a place where she has not the command ? Another s
sovereignty, and the right it comprehends, must deprive her of the free
disposal of that place. Add to this the eminent domain which consti
tutes a part of the sovereignty, and you will the better perceive the inti
mate connection existing between the domain and the sovereignty of the
nation. And, accordingly, what is called the high domain, which is
nothing but the domain of the body of the nation, or of the sovereign
w r ho represents it, is everywhere considered as inseparable from the
sovereignty. The useful domain, or the domain confined to the rights
that may belong to an individual in the state, may be separated from


the sovereignty, and nothing prevents the possibility of its belonging to
a nation in places that are not under her jurisdiction. Thus many
sovereigns have fiefs and other possessions in the territories of another
prince. In these cases they possess them in the manner of private indi

" The sovereignty, united to the domain, establishes the jurisdiction
of the nation in her territories, or the country that belongs to her. It is
her province, or that of her sovereign, to exercise justice in all the
places under her jurisdiction ; to take cognizance of the crimes com
mitted, and the differences that arise in the country."

Now, that is precisely this case. The government of land, in
all that belongs to its title, transmission, inheritance, and alien
ation, belongs to the municipal authority within whose limits it
lies. That is unquestionable. But then there is nothing to
prevent another sovereign from possessing the dominium utile,
the useful domain, or any portion of it. This government may
as well hold the lands in California as any individual in the
United States. The only difference is this, that the government
of the United States holds the lands only for one great pur
pose ; that is, to sell. It holds them in trust to sell for the
benefit of the government and people of the United States;
and every acre, as soon as sold, falls under the dominion of the
municipal sovereign, and is subject to all the rules and regula
tions prescribed by the local government. The only exception
is this; that, in regard to the lands of the United States, that is
established by law which, in regard to individuals, might be es
tablished by contract ; namely, that up to a certain period, or for
a certain time, those lands thus the property of the United
States shall be so far excluded from the municipal sovereignty
under which they are placed, as that they shall not be subject
to taxation, or, being owned by non-residents, they shall not be
taxed higher than if owned by residents. That is the only ex
ception ; and it is as competent to be made between an indi
vidual and the State where the land lies, as it is to be imposed
by act of Congress.

Sir, there are many instances of States holding lands within
the sphere of their own government, and without the sphere of
their own government. I think I have understood that, with
all her sovereignty, the State of New Jersey never possessed any
public domain, nor authority over un granted lands. All fell, in


that State, I believe, into the possession of the original proprie
tors ; and so it happened in a great portion of New York.
Massachusetts claimed a great portion of the western part of
New York, and her title to it was acknowledged. She sold her
title to Messrs. Gorham and Phelps, and they sold to the Hol
land Land Company; and thus near one third of that State,
perhaps, was held by individuals or corporations. That was
never supposed to be any infringement on the rights of sover
eignty of New York. The same thing happened in other

Now the question of sovereignty in this case, or its effect,
by implication, on the public domain, is one that has been thor
oughly considered, and clearly and fully decided. The history
of the laws and usages of the country in this particular has
been fully developed by the honorable member from Illinois ; *
and I will not go over the track he has trodden. He has shown
the precedents taken together to be one way. There may be
exceptions here and there ; but the general idea has been, in
the creation of a State, that its admission as a State has no
effect at all on the property of the United States lying within its
limits. But, Sir, it is hardly worth while for me, in this state
of the atmosphere, to argue this point much at length, as it is
settled and decided by the highest judicial authority of the coun
try, precisely and explicitly.

The case will be found in 3d Howard. The judgment
in that case was pronounced by the gentleman to whom I
referred as having given an opinion quite the other way when
he was a member of Congress. Now, Sir, the Supreme Court
of the United States, in 1845, say this, excluding all idea that
the title to the lands depends on any contract made with the
new State. This is the decision of the court :

" We therefore think that the United States hold the public lands with
in the new States by force of the deeds of cession, and the statutes
connected with them, and not by any municipal sovereignty which it
may be supposed they possess, or have reserved by compact with the
new States, for that particular purpose.

" Full power is given to Congress to make all needful rules and reg
ulations respecting the territory or other property of the United States.
This authorized the passage of all laws necessary to secure the rights of

* Mr. Dougrlas.


the United States to the public lands, and to provide for their sale, and to
protect them from taxation.

" And all constitutional laws are binding on the people, in the new
States and the old ones, whether they consent to be bound by them or
not. Every constitutional act of Congress is passed by the will of the
people of the United States, expressed through their representatives on
the subject-matter of the enactment ; and when so passed, it becomes
the supreme law of the land, and operates by its own force on the sub
ject-matter, in whatever State or Territory it may happen to be. The
proposition, therefore, that such a law cannot operate upon the subject-
matter of its enactment without the express consent of the people of the
new States where it may happen to be, contains its own refutation, and
requires no further examination."

While that decision of the Supreme Court stands, the author
ity of the United States over the lands lying in the States is
based on the law of Congress. The argument of the honorable
member from Louisiana is, that, this being a condition, the as
sent of the other party or side, or the entering into a compact, is
indispensable. But this decision of the Supreme Court pre
cisely and exactly overrules all that, as the honorable member
will see. If it had happened that the words in this bill were a
reservation, or were understood so, his argument would have
lost even its apparent force. But it is enough to say that it has
been decided directly and distinctly, at every point, that the au
thority of the United States does so far extend as, by force of
itself, proprio vig-ore, to exempt the public lands from taxa
tion, when new States are created in the territory in which the
lands lie.

Then, Sir, what has become of all this danger to the public
lands ? A compact would make our title no better. It is good
enough without it ; and we need no compact. The language of
the decision is explicit ; and therefore I think the member from
Illinois was entirely right when he proposed the law which he
did, the act for the admission of California, omitting all refer
ence to the idea of compact. The third section of this bill w r as
drafted to satisfy doubts. Exceptions had been taken, and it
was thought this section would satisfy and remove those excep
tions. It was introduced for that laudable and proper purpose ;
but it stands, according to the decision to which I have referred,
just as well without the third section as with it. What is there

Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 38 of 53)