26TH CONG.... 2ND SESS. to the will of the Constitution-making power of the country. He would go back to the first of these high references, in point of time. A distinguished Governor of his own State, (Dewitt Clinton,) now deceased, had been quoted as favorable to this policy. Favorable to it at such a time as this, and in this shape and way? No, sir. Favorable to it by way of relieving the Treasury from a surplus, expressly reserving any opinion as to the competency of Congress to make the disribution under the Constitution as it is, and expressly referring to the source of all power, the people themselves, as the proper tribunal to settle all doubts upon that point by an amendment of the Constitution. Expressions of a subsequent Governor of his State, and of its Legislature, had also been made matters of reference in favor of the policy, but all these expressions would be found accompanied by the same reservations of an opinion as to our constitutional power even to distribute a surplus, and the same references to one great source of power, for authority to carry out the measures thus equivocally recommended. The late President Jackson had also been repeatedly quoted as a friend to this distribution policy, and quotations from several of his early messages had been read to the Senate to show his views. This was fair as to him and fair as to the question: but what were his views as thus given by himself? To distribute the revenue, when the Treasury was in want? No, far from that. They were to relieve the Treasury from a surplus. And did he express the opinion that Congress possessed the constitutional power to make the distribution. No. So far from i', he expressly, in his first mes sage in which the subject is mentioned, and an exstract from which was, but a few days ago, read to the Senate, recommended an appeal to the people to amend the Constitution to reach the object. In that same message, in conformity with his professed principles and uniform practice, he says these appeals should be made in all cases where a reasonable doubt exists, and the exercise of a power not expressly granted is supposed to be desirable. He considers such appeals not dangerous to any sound policy, but heal hful and salutary in their very nature. And why did he favor a distribution at all? He tells us it was because the country was then threatened with a surplus revenue; that when the national debt should be fu.ly paid, such a surplus must accumulate, unless our revenue laws were materially modified, and that he did not anticipate that the public opinion would sanction modifications so sudden and extensive as would be required to bring the revenue within the wants of the Treasury His only object was to devise a safe and constitutional mode of disposing of that surplus which did accumulate from 1834 to 1837, and which brought upon the country many of the evils under which it suffers to this day, and upon this Government the very extravagances in expenditure of which his political opponents had so loudly and perseveringly complained; but he did not propose even the distribution of so mischievous a surplus, without an amendment of the Constitu tion which should expressly confer the power to do it. The high authorities, then, to which reference had been made, were not authorities for the propo sition now before the Senate. They had proposed to distribute surpluses only, not current revenue of which the Treasury was in daily want; and even such a distribution as they suggested was always with them a question of constitutional power, which they proposed to refer to the sovereign people, the source of power under our system It was that question, prominently, which he proposed to discass, and he would proceed to that discussion, merely remarking that he felt most sensibly his ina bility to conduct the argument as its importance required. The consciousness of this fact had, from day to day, deterred him from making the attempt, until further delay might be, on his part, a criminal neglect of a high duty. That be might now have the attention of the body, as far as their great paience would permit, gentlemen would pardon him for saying that he believed, in his heart, if he ould do jastice to the facts and the fair conclu Pre-emption Law-Mr. Wright. sions from them, this would be the last occasion upon which the word "distribution," in the sense in which it is here used, would be heard in the halls of Congress, under our present Constitution, and with an empty Treasury. Now to the discus sion. His first proposition was one which he was sure would not be controverted from any quarter. It was, that all the powers of Congress rest upon, and are derived from, the Constitution of the United States, and that it has no single power which is not granted by that instrumen'. His next proposition involved the great point in controversy, and must be disputed, or he trusted the distribution policy would be abandoned until the constitutional power to adopt it should be conferred. He would state it, as follows: The power conferred upon Congress by the Constitution over the money derived from the sales of the public lands, and constituting the proceeds of those lands, which the proposition before the Senate declares shall be distributed to the States, is identical with, and in no way different from, the power of Corgress over all other money and property of the -United States, however derived, or in whatever shape existing, within the exclusive control of Congress. He found but two provisions of the Constitution material to the fair and full discussion of this broad proposition; and those he would read in the order they were found in the instrument. The first was in article first, section eighth, clause first, and in these words: "The Congress shall have power to lay and collect taxes, du ties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises, shall be uniform through. out the United States." His reading of this provision of the Constitution was, that the power o lay and collect taxes, duties, imposts, and excises," was given to Congress for the purpose of paying the debts, and pro. viding for the common defence and general welfare of the United States. He knew a very different reading bad been sometimes contended for, and that the second clause of the sentence, instead of being a limitation upon the powers granted in the first, had been supposed to confer distinct and separate powers of itself. Under this construction, the reading would be to give Congress power "to lay and collect taxes, duties, imposts, and excises," and power "to pay the debts, and provide for the common defence and general welfare of the United States." It was not h's present object to enter into a discussion of the correctness or incorrectness of either of these constructions, but simply to state what he believed to be the correct reading, as he had done. Nor was he now to enter into argument of any sort in relation to this "general welfare" clanse of the Constitution. He too well remembered the volumes which had been written upon the subject, without accompl shing any other purpose than to show the radical difference in the rule which governed the two great contending po. litical parties in construing that instrument, from which all the powers of this Government must be drawn. To his mind, the clause was not a grant of power at all, but an express limitation upon the powers conferred by the clause which immediately precedes it; and he believed this, at the pre-ent time, was a much more universally received opinion of the country, than at a former period. In any event, it there should be advocates for the distribution of the proceeds of the public lands, who seek the power to pass a law for that purpose in this general welfare clause, it will be for them to show that giving money from the common Treasury to the separate S ates, to be expended upon objec's exclusively of a State character, is, in fai ness of language and intendment, to provide for "the general welfare of the United States," in their united capacity, as contradistinguished from the individual States as sovereign and independent Governments and communities, and which, as such, constitutionally hold their separate general welfare in their separate and independent keeping. The other clause of the Constitution to which he had referred, was the second clause of the third section of the fourth article, in the following words: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory, or other Senate. property belonging to the United States; and nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." The power here conferred is over the "territory, or other property belonging to the United States" terms as broad as could have been used to include every thing which is properly, and belongs to the United States, while the word "territory," instead of lands or public domain, clearly shows that that single enumeration of a single description of property had not reference to the public domain simply, in the common acceptation of those terms as used by us, but was intended to embrace all lands and soils "belonging to the United States," however and wherever situated, for whatever use and purpose held, and however acquired-all territory. The power conferred is identical over the "territo rv," and over the other "property," and it is to "dispose of" both, and "make all needful rules and regulations respecting" both. The grant of power is as broad as the terms "territory" and "property;" and the whole grant is alike applicable to both and either, and to every part and parcel of each. Who, then, shall say that this provision of the Constitution gives to Congress a power over the public domain of the country, which it does not give over any other property of the United States? That it authorizes Congress to give away the public lands, and does not give the same authority to give away the public money? That it confers the power to distribute to the States, for their separate use, the money in the Treasury arising from the sales of the public lands, and does not confer the same authority to distribute in the same manner, and for the same purposes, any other money in the Treasury belonging to the United States, from whatever source derived? That it authorizes the distribution of the proceeds of the public domain, usually so called, and does not authorize a like distribution of the proceeds of any other portion of the "territory" of the United Stat s? That the lands can be sold to raise money for distribution, and not the fortifications, ships, arms, and any other like "erritory" and "property" belonging to the United States? That the property of the country, as contradistinguished from its money, may be made a fund for distribution by a sale and conversion into money, while the money itself required to purchase the property cannot be so distributed? That all money in the Treasury, and belonging to the United States, from whatever source derived, is not as much "property belonging to the United States," as "the territory or other property" mentioned in this constitutional provision, and as much subject to the power of Congress, therein granted over "the territory or other property," either for distribution to the States, or for any other application or expenditure? He would not for a moment suppose that contradictions of this character could be contended for by any Senator; and he must, therefore, suppose hat the only ground upon which this proposed distribution of the proceeds of the public lan's was to be advocated and defended, was that the deeds of cession of the public domain from the States 10 the United States, laid the foundation for a "claim" to such distribution upon some principle, and thus brought the proposition within the terms of the last clause of the constitutional provision last referred to, in the following words: "And nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." That this policy is urged under this clause of the Constitutional provision is made more probable, from the fact that its advocates have usually referred to the cessions from the States, and the payment of the debt of the Revolution, as facts upon which the right to the distribution on the part of the States, and the authority to make it on the part of Congress, were both to be rested. It would be necessary, therefore, to examine the deeds of cession, and see whether they furnished any foundation for "claims" on the part of the States, or any of them, within the meaning of the provision of the Constitation above quoted, or of a power on the part of Congress to satisfy such "claims" in the way prɔposed. Upon this point his examinations had induced 26TH CONG.......2ND SESS. him to come to the following conclusion, and he now stated it in the form of a proposition. The deeds of cession from the States of that part of the public domain held by and under those cessions, do not contain any thing which gives the Sates, or any of then, "claims" to those portions of the public lands, or to the proceeds thereof, which do not equally exist against all other "terri tory or property belonging to the United States," nor do those deeds of cession contain any thing which confers upon Congress any other or different power over the ceded lands, or the proceeds from the sales thereof, than that possessed by the grant of the Constitution over "the territory and property belonging to the United States," acquired in any other manner. A brief reference to the cessions would establish this proposition. The States which made cessions under the Articles of Confederation, and before the adoption of the Constitution, were five in number, and the order of the cessions, in point of time, were as follows: New York-Deed of cession executed 1st March, 1781. Virginia-Deed of cession executed 1st March, 1784. South Carolina.-Deed of cession executed 9th August, 1787. All the deeds of cession above enumerated were executed by the delegates representing the States named, in the Cong ess of the Confederation, and in conformity to laws passed by the Legislatures of the respective States, conterring the power upon their delegates in the Congress to make the cessions for them respectively. He had carefully examined those State laws, and the dee's executed by their authority, and had found that, in the terms of the grants and the estates conveyed, the authority thus conferred upon the grantors had been carefully followed. It would not be necessary, therefore, for him to make a reference to the laws. One to the deeds executed under under them would be sufficient. And here again his references might be materially at breviated, as he found all the grants substantially following either the form adopted by New York, or that adopted by Virginia, and extracts from those two deeds would show the nature and character and extent of the estate conveyed in all the five cases. Before he red the extracts it would be profitable to make a remark, that the peculiar language of the deeds might be more fully understood and rightly appreciated. There was, at the time of these cession, no Union, but a simple Coniedera. tion, an alliance, of the old thirteen States. The common Government was called a Congress, but it was more like a Congress of Nations than like the present Congress of the United States. All the States, however represented, were equal in that body, and it had no power to act coercively either upon the States, or the people of the States, in the raising of revenue, or the imposition of taxes of any character. When money was wanted for the purposes of the common Government, the Congress determined the sum to be raised, apportioned it among the States according to a rule established in the Articles of Confederation, and called upon each State to raise its proportion, in its own way, by virtue of its own taxing powers, and through the agency of its own affairs. If these facts are borne constantly in mind, the language used in the deeds of cession will be perfectly intelligible. The State of New York did "cede, transfer, and forever relinquish, to and for the only use and benefit of such of the States as are, or shall become, parties to the Articles of Confederation, all the right, title, interest, jurisdiction, and claim, of the said State of New York, to all lands and territories to the northward and westward of the boundaries to which the said State is in manner aforesaid limited and restricted, and to be granted, disposed of, and appropriated in such manner only as the Congress of the said United or Confederated States shall order and direct." Pre-emption Law-Mr. Wright. The Legislature of the State of Virginia, in the act authorizing and directing the cession, enact that the lands ceded "shall be considered a common fund for the use and benefit of such of the United States as have become, or shall become, members of the Confederation, or Federal alliance, of the said States, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona file disposed of for that purpose, and for no other use or purpose whatsoever;" and her delegates in the Congress, in obedience to that act, "transfer, assign, and make over, unto the United States in Congress assembled, for the benefit of the said Sates, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory, or tract of country, within the limits of the Virginia charter, situate, lying and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions of the said recited act." Such were the terms employed, and such the estates granted by the States of New York and Virginia, and the other three States named followed substantially the one or the other of these forms in their cessions subsequently inade. All the five States granted all they had, all they owned, and all they "claimed," in the lands ceded by them respectively, and what was that? It was, at most, the sovereignty, the jurisdiction of Government, and as appurtenant to these the right to purchase th lands from the Indians. Perhaps it would be more technically proper to say that the States granted the soil, the fee, of the land, with the sovereignty and jurisdiction, and the appurtenant right to purchase the possessary interests of the Indians. The substance is the same, however, as each State granted all it had, "all its right, title, interest, and "claim," in the language of the deeds. Is there, then, in any of these deeds, any condition of reversion? any specific appropriation of the proceeds of the lands, with remainder over to all or any of the States? None whatever. The grants were "for the only use and benefit of such of the States as are, or shall become, parties to the Articles of Confederation;" "for the benefit of the said States, Virginia inclusive;" and the proceeds were to be "a common fund for the use and benefit of such of the United States as have become, or shall become, members of the Confederation, or Federal alliance of the said States," the granting State inclusive, "according to their usual respective proportions in the general charge and expenditure." The Sates, under the Confederation, paid their respective proportions of the charge and expenditure of the common Government by States, and each was to receive from the proceeds of the ceded lands a share exxc ly in proportion to its share of the common charge. In other words, its proportion of that charge to be raised by taxation upon its own citizens was to be diminished by its proportion of the proceeds of the lands, which proceeds were to be a "common fund" fer the benefit, in that way, of all the States, parties to the alliance. The common Government, the Congress, was to "dispose of" the lands, but for that purpose, and no other. Such was the state of things under the Confederation. The difficulties about these lands retarded the consummation of the Confederacy. The States which did not claim any of the ceded lands as within their limits, did claim a common right with the other States in them, contending that they were not the separate property of certain States, but a part of the royal domain of the British crown, won by conquest in the war of the Revolution, at the common expense and peril of all the States, parties to the war, and that they were thus, of right, made the common property of all. The State of Maryland, though as active and patriotic in the prosecution of the war as her sister States, did not subscribe to the Articles of Confederation until the day of the date of the New York deed of cession, standing out exclusively upon her claim to a com. mon right in these lands. The Constitution was formed in 1787, subse quently adopted by the States, they being the same States which were parties to the Confederation, or Federal alliance, and consequently to the deeds of Senate. cession, and the new Government went into operation on the 4th of March, 1789. Still the cessions were imperfect? The States of North Carolina and Georgia, claiming large portions of the West. ern lands as within their respective chartered limits, had made no cessions to the common Government. They did, however, subsequently cede, not to the confederation, but to the Union, at the following dates. North Carolina-Deed of cession executed 25th February, 1790. Georgia-Deed of cession executed 16.h June, 1802. The deeds from these two States were,in all material respects, so far as this argument is concerned, similar to those executed by the five States before named. They, like the other deeds, contain no reversionary clauses, no specific applications of the proceeds of the lands, with remainders over to the granting States, or any other, but expressly declare the ceded lands "a common fund" for the benefit of the Union to which they ceded. The fact that these States had not made cessions at the time of the formation of the Constitution, may and probably does account for the insertion, in that instrument, of the clause last above quoted, "and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." What has been before said will show that other States did claim a com. mon right in the unceded lands, not as their individual and separate property, but as the property of the nation, of the Confederation before the Constitut on, of the Union afterwards. Still the ceding States claimed them as their several property, and hence the language, that the Constitution should not "prejudice any claims of the United States, or of any particular State." If this conjecture be well founded, the deeds of cession from these two States put at rest forever the "claims" referred to of all the parties interested, by the surrender and relinquishment on the one side, and the acceptance and satisfaction on the other. Be that, however, as it may, there is not, upon the face of any of these deeds, any ground for "claims" in favor of any or all of the States against the United States, beyond the obligation upon the latter to administer the common fund constituted by the cessions for the common benefit of the whole Union, and the right of the former to have it so administered. Whatever may have been the pow ers of Congress over this fu d, under the Confederation, is not now material, as the parties to the Confederation are the same parties which formed and adopted the Constitution, and voluntanly merged the old in the new Government, with new, and different, and defined powers. The Congress under the Constitution cannot look behind that intrument for either powers or prohibitions, not even to these deeds of cession, or to any other act of a single State, or of the confederated States. If it possess any power over this common fund constituted by the deeds of cession, that power must be found in the Constitution, and be exercised in obedience to its provisions. This will be admitted as to the two cessions made subsequent to the Constitution, and to the Union, and no man has ever yet been found to contend that the different portions of the ceded lands are subject to different rules of disposition, or that the powers of Congress over them are different. Still in is worthy of remark, in this connection, that the power conferred by all the deeds of cession was "to dispose" of the lands, and the power conferred by the Constitution is "to dispose," &c. of the "territory or other property" of the United States. It is said, however, that these lands were, in fact, ceded to pay the debt of the Revolution, and, that debt being paid, that there is an equitable right in favor of the States to a reversion of the funds, of to the remainder of the proceeds, for their indivi• dual and separate use. Indeed, so confidently was this opinion entertained by one honorable Senator, and he too a distinguished lawyer, [Mr. CRITTENDEN] that he had, upon a former occasion, said he verily believed, if a suit in chancery could be instituted against the Government, the States would obtain a decree for the retrocession of the lands, a a distribution of their proceeds. 26TH CONG....2ND SESS. Had this assumption that the lands were ceded for the specific purpose of paying the debt of the Revolution any toundation in fact? The assumption, so far as he had been able to ascertain its foundation, was rested upon the resolution of the old Congress, of the 10th of October, 1780. That resolution was in the following words: "Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular State, pursuant to the recommendation of Congress of the 6th day of September last, shall be disposed of for the commion benefit of the United States, and be settled and formed into distinct Republican States, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom and independence, as the other States; that each State which shall be so formed, shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit: That the necessary and reasonable expenses which any par ticular State shall have incurred since the commencement of of the present war, in subduing any British posts, or in maintaining forts or garrisons within and for the defence, or in acquiring any part of the territory that may be ceded or relinquished to the United States, shall be reimbursed. That the said lands shall be granted or settled at such times and under such regulations as shall hereafter be agreed on by the United States, in Congress assembled, or any nine or more of them." Here is a promise of a specific appropriation of the proceeds of the lands, or other means, for a certain object, namely, to reimburse the States the necessary and reasonable expenses incurred by them, after the commencement of the war, in subdoing British posts within the ceded territory-in maintaining forts and garrisons within and for the defence of the ceded territory, or in acquiring any part of the ceded territory. These items of expenditure were made claims in favor of the States against the United Sates, but not claims upon the lands particularly. They were to be claims in favor of the particular States incurring the expenses against the common Treasury, and might be paid from the proceeds of sales of the lands, or from any other means, as the United States shou'd choose. The cessions were not to be made conditional and dependent up. on the payment of these expenses, and no such condition is found in any one of the deeds of cession. Yet this was a sort of specific obligation connected with the cessions, but not to pay the debt of the Revolution, or any portion of it which was a charge against the common Government. It was simply an obligation to pay certain specified expenses which had been incurred during the war, by particular States, in acquiring the land, or in defending it. While, then, this resolution furnishes no ground for the assumption that the lands were ceded for the specific purpose of paying the debt of the Revolution, with any legal or equitable reversion to the States, or remainder over in the proceeds after the payment of that debt, it does furnish, in this very stipulation to reimburse to the ceding States all the expenses incurred by them in acquiring and defending the lands, the strongest circumstantial evidence that no such reversion or remainder, either equitable or legal, was contemplated, and that no other obligation cr indeb edness was contracted by the common Government to the States than that mentioned and directly assumed. That obligation has been long since discharged. Those expenses of the States we e assumed and paid by this Government, together with their separate debts contracted to carry on the war of the Revolution, and both together formed a part of that mass of national debt which this Government has finally paid. No claim, therefore, in favor of any State, can now be sustained upon this part of the resolution, and none other of a pecuniary character was incurred by it. The deed of cession of Massachusetts makes express reference to this resolution, and declares that the cession of that State is made in conformity with it. A reference is made in this resolution to a recommendation of Congress of the 6th of September, 1780. That is a report and resolution adopted in consequence of certain instructions from the State of Maryland to her delegates, re pecting the Articles of Confederation, and containing a declaration as to her common righ's in the lands, the act of the Legislature of the State of New York authorizing her cession, and a remonstrance from the State of Virginia, upon the same general subjects, all before Congress at the same time, and all referred to the same committee of the body, which Pre-emption Law-Mr. Wright. made the report, and proposed a resolution, by way of recommendation to the States here referred to. This report and resolution is no other way important to this discussion, than to show, as part of the history of the period, that the cessions from the States were urged-not so much on the ground of the pecuniary benefit to be derived to the common Government, as to promote harmony among the States, to perfect the alliance, and bring into the Confederation the State of Maryland, which State declined to sub cribe to the Articles of Confederation, in consequence of differences about these lands. A reference to this report was to him a matter of the highest gratification, as it presents the State which he has the honor in part to repre sent here, foremost in the exhibition of that patrio. tic liberality, which did finally perfect the alliance, cement the Union of the States, and lead to the glorious consequences, the blessings of which we now enjoy. Nothing, however, is found in any of these proceedings upon which to found the assumption that the cessions were made for the specific object of paying the debt of the Revolution; but, on the contrary, the report and both resolutions, rebut that assumption directly, and exhibit other and higher objects as moving the States to those grants-ob. jects connected with the harmony of the States, the Union of the States, and, consequently, with their success in the fearful struggle which was to determine the question of our independent existence as a nation. He felt authorized to conclude, therefore, that this assumption had no foundation in fac', and could not be sustained by the history of the transactions; and it falling, the assumed rights of reversion or remainder in the States, to the lands, or their proceeds, supposed to flow from and rest upon it, must fall with it. Still another ground is assumed, however, and that is, that an equitable right to the nett proceeds of these lands, after the payment of debt of the Revolution, results in favor of the States, notwithstanding there are not, in the deeds of cession, or in any of the proceedings on the part of the States, or of the United States, any terms or conditions of reversion, any reservations of remainders, or any specific application of the fund to the payment of that debt. This broad assumption of an equity would require examination in various aspects. The first step in this examination would seem to him to be to inquire to what parties this equitable reversion, or right, not claimed as matter of law, or of fair legal inference from the deeds, but as a general equity, without specified foundation, would enure, in case the right should be recognised? Could it be to any other parties than those making the grants? He thought not. It was found that there was no reversion in terms, and no remainder reserved, either to the ceding States, or to all the States, and the claim was one of mere equity, without legal foundation, and said to result from the conveyances. Could such a claim result to parties not known, not thought of, not in existence, at the time the grants were made? He admitted the right of any grantor of an estate to secure remainders and reversions to any parties he might choose, whether in existence or not at the time of the grant; but he could not conceive of a resulting legal right, much less of a resulting equity, to an entire stranger to the conveyance, to one of whose existence the grantor had not a thought, and towards whom there could have been no intention of making the grant. The claim is that of a mere legal, or equitable, con. sequence. It is rested upon the assumption that the estate conveyed was a mere trust, that the trusts have been fulfilled in the payment of the debt of the Revolution, and that, in the absence of other express provision, a reversion, legal or equitable, follows. Follows to whom? To what parties? To any but the grantors? Certainly not. It was competent for them to have secured remainders and reversions to whatever parties they pleased; but it is admitted that they did not do so to any partics, by the terms of their grants. If, therefore, any such resulting right can be sustained, it must be in favor of the seven ceding States only, and upon the prin ciple that whatever remains from an estate granted, beyond the full purpose and object of the grant, as well by legal as by equitable consequence, reverts Senate. to the grantor. In other words, what is not granted is retained, and when the grant is satisfied the remainder, if any, rests where it did before the gran'. If this position be wrong, and the deeds of cession are susceptible of a construction which will make this equitable remainder, or reversion, enure to the benefit of all the States, yet the claim assumes that the lands have been a mere trust in the hands of the Federal Government, a trust to pay the debt of the Revolution simply; and that the remaining, or reversionary claim in favor of the States is one exclusively equitable, there being neither the specific application of the fund, nor the resulting right expressed in the grants. In this sense the equity mus, of course, be claimed from the trustee, subject to all equitable demands against the estate in his hands. How, then, will this claim, interposed in favor of the States to the proceeds of the public lands stand, upon a fair adjustment of accounts betwehn the trustee and the cestui que trusts; between the United States, which have held and managed the fund, and the several States in whose favor the claim is made? It has already been seen that, so far as the pecuniary interests were concerned, the States did not convey a clear title, but the mere right to purchase such a title from the Indians. The trustee, therefore, must make this purchase to bring the trust fund in'o a productive state at all, or to render it possible to perform the trust, which is assumed to be the payment of the debt of the Revolution. If these be sound positions, there is a very short way of showing that the equity in the remainder, or reversion, whatever it may be, and however clearly it may exist, cannot yet attach, because the nett annual proceeds of the lands do not now, and are not anticipated for the year to come, to be equal to the current charges upon the Treasury, for the purchase of the Indian titles, and that branch of the Revolutionary debt yet undischarged. Two items only of the current ordinary expenses of the Government will demonstrate this fact. The Indian annuities are debts contracted for the purchase of the Indian title to these lands, and the Revolutionary pensions are, upon every fair principle of equity, a part of that debt which it is assumed the lands were to pay. It might be sad, that these pensions were mere gratuities, disconnected from the legal debt at the time of the cessions, and, therefore, not legally chargeable upon the fund thus provided for the payment of that debt. Admit this objection, in its legal sense, and what is its equitable aspect? Why have the pensions been granted? Is it not because resolutions of the Congress held out inducements to enter the milita ry service of the country which were not fu filled, and because the currency in which the soldiers in that memorable war were paid was valasless? Were not these, then, equitable claims against the United States, and are not the payments equitable charges upon a fund dedicated to the payment of the Revolutionary debt, before a mere inferential and consequential equity can sweep away that fund? It did not appear to him that the point admitted of argument. It was too clear for discussion, and too just for resistance. He would state the account current between the Treasury and the lands, upon this simple principle, and see what was the equitable remainder or reversion to the States. The actual amount payable to the various Indian tribes annually from the public Treasury, as an nuities secured to them by different treaties, and as interest upon money stipulated by treaty to be permanently invested, and not yet invested, as shown by a statement in his hand, carefully prepared at the Indian Office, is $817,793 00 The actual payments from the Treasury for Revolutionary pensions, for the year 1839, as shown by a statement from the office of the Second Comptroller of the Treasury, and now before him, were 2,956,135 75 Making, together, an amount of an nuities for Indian lands, and pen- 26гH CONG....1ST SESS. The estimated receipts into the Treasury from the sales of the public lands for the present year are just about the same as the actual receipts of the last year, and either sum is This will leave an annual balance of the annuities and Revolutionary pensions, over and above the whole current proceeds of the lands, of 3,500,000 00 $273,928 75 This will be about the true state of things for the last and the present years. It is true that the payments for Revolutionary pensions are now dimi. nishing, from the death of the pensioners, more rapidly than they are increased by new applications and admissions under the existing laws, and this diminution will be annually more and more rapid, if further legislation does not prevent it. It is also true that many of the Indian annuities are for terms of years, and the expiration of such annuities may sink the amount of payinents under that head, if new treaties do not make a corresponding addition. So also the annual sales of lands may be extended in future years, and thus this comparison be changed. But at present there are no nett proceeds from the lands, if these two single items are made an annual charge upon them. Still there are constant annual charges of the highest necessity, which are not included here, and which, by the admission of all, should be deducted to arrive at the nett proceeds for distribution. He referred to the ordinary expenses of the land system, of the General Land Office here, of the various local land offices, of surveys, and all those classes of expenditures which are paid by annual appropriations from the Treasury, and not by commissions upon the money collected. These expenses cannot fall short of, and are more likely to exceed, half a million annually. He had caused them to be ascertained for the five years, commencing with 1833 and ending with 1837, to be used for another pur pose, and during that period they averaged more than one million per annum. Those, however, were years, or at least some of them, when the surveys and sales were unusually extensive. Still half that average, he thought, could not be excessive for ordinary years. It should not be forgotten that no mention is here made of annual payments for holding new treaties, for new purchases of land from the Indians, and for the many other constant but uncertain expenditures growing out of the acquirement of title, management, and sale of these lands, and nothing is said of the expenses of the frequent Indian wars which have attended the execution of the various treaties, and the clearing the lands from Indian possession. He would now pass to another part of the argument. He had already said that the right of the States to the distribution proposed, and the power and duty of Congress to make it, had been attempted to be rested upon the deeds of cession from the States to the United States, and the alleged object and purpose of those cessions. He had previously attempted to show that neither those deeds, nor any of the proceedings, either on the part of the States, or the United States, presented any resting place for the assumptions in question. He might, howeve., have been mistaken in his efforts to accomplish that object, and it would be too great an exhibition of vanify on his part to say he had accomplished what he had hoped to accomplish upon those points. He must, therefore, pursue the argument further. Suppose he had wholly failed establish those positions, a consequence followed from which there was no escape, and that he would now state. No right of the States, or power or duty of Con. gress, based upon the deeds of cession, could apply to any other than the ceded territory. This must be admitted, for whether the cessions contained upon their face reversionary rights to the ceding States, or remainders over to all the States, no such rights could attach, or be valid, either in law or equity, beyond the limits and interests of the estate covered by the deeds; the estate to which the grantors in the deeds claimed title or interest. He would not for a moment presume that any Senator Pre-emption Law—Mr. Wright. would attempt to push the right of the States to a distribution of the proceeds of the public lands upon such grounds beyond this limit, and he would there fore proceed to show how far short of the ground covered by the proposition before the Senate this justification of its principle and equity would be found to cover. The boundaries of the cessions were, invariably, all the lands situate without and beyond certain defined limits, northerly, westerly, or southerly, and without any prescribed extent, or specified limit, north, west, or south. The limits of the ceding States in those directions were fixed and defined, and the grants were of all the lands belonging to the granting State without and beyond its boundaries. The most which can be asked, therefore, as the outer limits of the ceded lands, is the outer limits of the United States as established by the definitive treaty of peace of 1783. This must follow from the fact that the lands, whether in fact the property of the Confederation of States, or of the seven ceding States, were held by conquest in the war of the Revolution, and cannot be supposed to extend beyond the boundaries fixed in the treaty which terminated the war, and fixed the limits of territory for the belligerent parties. The western and southern of these boundaries are now alone material, as the northern and northwes.ern is the present limit of British and American possessions. The western and southern of these boundaries, beginning upon the Lake of the Woods, are described in the treaty as follows: "And from thence on a due west course to the river Mississippi; thence by a line to be drawn along the middle of the said river Mississippi until it shall intersect the northernmost part of the thirty-first degree of north latitude; south by a line to be drawn due east from the determination of the line last mentioned, in the latitude of thirty one degrees north of the equator, to the middle of the river Apilachicola or Catobouche; thence along the middle thereof to its junction with Flint river; thence straight to the head of St. Mary's river; and thence down along the middle of St. Mary's liver to the Atlantic Ocean." Thus making the middle of the Mississippi river the western, and the thirty-first degree of north latitude the southern boundary of these cessions. With these boundaries, the ceded lands do not include any of the territory west of the Mississippi; and the Territory of Iowa and the States of Missouri, Arkansas, and Louisiana, and all the country west of them, are free from any claim of the States growing out of the deeds of cession. So, also, those parts of the States of Mississippi and Alabama, south of the thirtyfirst degree of north latitude, and the whole of the Territory of Florida, are equally untouched by these grants. It may be well further to specify what the grants do not touch, be. fore seeing what they did cover and convey. They did not, then, touch any portion of the old thirteen States, as at present bounded, or any portion of the present States of Maine, Vermont, and Kentucky. A very small portion of the State of Tennessee was ceded by the deed of cession of North Carolina; but the remnants of land were so scattered, and so badly located, that the Government has never yet sup. posed it a matter of interest to cause their survey, or to open a land office and attempt a sale of lands within that State. Indeed, it seems now certain that nothing is to come to the common Treasury from the pub ic lands in Tennessee, as a bill passed this body at its last session, without a dissenting vole, to cede the remnants of those lands to that State without compensation; and a similar bill has again passed by the same vote, at the present ses sion. Thus the whole cession of North Carolina is disposed of, without bringing one dollar into the Treasury; for he found that the law for the admission of the State of Tennessee, described the State as "all the territory ceded to the United States by the State of North Carolina." He did not mention this fact to the prejudice of that old, pa'rietic, Republican State. Her cession had given to the Union one of the proudest of the present sisters of the family; and it was made with a patriotic devotion to that Union not inferior to that which governed the action of any other of the seven ceding States. Yet when a claim for a reversion, or an equitable remainder, was interposed against this Government, a fact like this spoke volumes in relation to that equity. It showed, beyond the power of question, what nett proceeds one of the ceding Senate. Sates would receive, if the right of reversion to the ceding States alone should be admitted, and the equity claimed should be adjusted by that rule. There were other facts of a somewhat similar character, to which it might be well to refer in this connection. The cession of Georgia was last made, and comprehended all those portions of the States of Alabama and Mississippi which are north of the thirty-first degree of north latitude; and it is daily contended here, by the friends of this proposi tion for distribution, and has been regularly so contended, ever since the Cherokee controversy has been known to the country, that the Federal Government, by the terms of this cession, had contracted to pay all and more than the ceded lands were in fact worth. And ever since the late Cherokee treaty, extinguishing the Indian title to the lands in the State of Georgia, this argument, which, previous to that period, was only hypothesis, has been assumed as demonstration. The nett proceeds of the Georgia cession, then, must be much like those of North Carolina-nothing. Virginia is claimed to have made the great and material cession, and yet Virginia did not cede Kentucky, the only part of the great unappropriated country, in all probability, falling within her chartered limits. Kentucky was constituted a State from the acknowledged bounds of Virginia, as was Maine, at a much later day, from those of Massachusetts. These facts were not mentioned, or referred to, for the purpose of detracting from the patriotic liberality, public spiri', and devotion to the Union, of Virginia. Far from it. She claimed the territory northwest of the Ohio rather by conquest than by chartered right, and she ceded her claim, whatever it might be, as a common fund to the Union, upon terms which yet show, upon their face, that her object was the extension of those free Republican principles she has ever so dearly cherished, and so fearlessly main ained, rather than any pecuniary consideration to herself, or even to the Union. These facts, however, show that from all the ceded territory southwest of the Ohio, no nett preceeds were to come, or ever can come, into the common Treasury, ei her for distribution or for any other purpose. It would be proper here to extend a little farther an idea following from a former position of his argument. He had attempted to show, and be thought upon unanswerab'e grounds, that if any right of remainder, or reversion to the ceded lands, or to their proceeds, whether legal or equitable, can be sustained in favor of any of the States, it must result to the ceding States only, as it was only asserted and claimed as an infer ence and consequence of law or equity, from the grants, and the alleged object and purpose of the grants. He now wished to inquire, upon the supposition that such a right should be admited, what would be the state of things with the ceding States. He found, upon a careful examination of the deeds of cession, that the descriptions of the territory ceded by New York and Massachusetts were identical, and without stoping to inquire where, within the present bounds of the United States, that territory was, who should determine what the rights of these States would respectfully be to such remainder or reversion? Let the cessions of Connecticut and South Carolina be examined with the same view, and let those who could, answer these inquiries. He would now proceed to show where and what the ceded lands in fact were, regardless of the question as to what State may have originally owned them, or what State may now be entitled to a remainder or reversion of them, or their proceeds. Those portions of the States of Alabama and Mississippi north of the thirty-first degree of north latitude, the States of Indiana, Ohio, Illinois, and Michigan, and the Territory of Wiskonsan, embrace the country, and, from a calculation made at the land office, which he held in his hand, the whole number of acres, within those districts of country, were, 23773,379 From this quantity, the number of acres reserved in the deeds of cession, were Leaving the the number of acres actu 7,226,405 These statements, as will be seen, exclude the remnants of the ceded land belonging to the United States in the State of Tennessee. The reasons for that exclusion have been before given, and the simple fact only requires mention here. It will be seen from the above table that a very large propor tion of these lands are in States extensively settled; and whether, from the fact of those settlements, and the improvements consequent upon them, the lands are worth more than the average of the public lands, or whether they are, from this same fact of extensive settlements, culled and inferior lands, he had no means of determining. The term of years for which many of these lands have remained in the market, and subject to sale at $1 25 per acre, to any purchaser who should chose to enter them, is certainly not favorable evidence either as to their quality or location, or both. Such, however, is the ex'ent and present condi. tion of this ceded territory, and such the fund from which any distribution, rested upon the deeds of cession, must be made, and not from that great public domain of the Union, the most of which has been acquired, not from the States, but by purchases from foreign Governments, by the powers of the Union, and with the "property," the money, of the Union. This would bring him to a further position, which, in his mind, was most material to the pre Pre-emption Law-Mr. Wrignt. sent discussion. The assumption was that on equi ty, on the part of the States, to the distribution proposed, d.d actually exist, from whatever source that equity was derived, and upon whatever foun dation it might rest. Sill the equity set up and contended for was merely to the nett proceeds from the sales of the public lands, and it became, therefore, material to determine what was "nett proceeds" from those sales, in an equitable sense, between the common Treasury and the several States; inasmuch as the proposition was advocated by its friends, as he had before shown, upon equitable and not legal grounds. What expenses, then, should be deducted from the gross proceeds to de termine the equitable nett amount for distribution? He would name the heads of those expenditures, which he thought such a rule would deduct, and he would leave it to those who should follow him in the discussion to point out his errors, if any, upon either side. That he should not include any head of expenditure which ought to be excluded, he felt sure but that he should omit some which ought to be included, his very imperfect acquaint. ance with the subject rendered more than probable. The following, however, were the heads of expenditure which he would present: 1. The purchase money for lands paid to the Indians in hand. 2. The annuities stipula'ed by treaty to be paid to the Indians in lieu of purchase money. 3. The expenses of holding Indiau treaties for the purchase of lands. 4 All payments stipulated to be made to Indians, by the treaties with them, for buildings, schools, mechanics' tools, mills, implements of husbandry, and the like; all these being payments in lieu of purchase money. 5. All expenses of the removal of the Indians from the lands, and of their subsistence on the way and at their new homes, when made from the Treasury of the United States. 6. All expenses of the survey of the lands for sale. 7. All expenses of the Surveyor General's offices. 8. All expenses of the local land offices, which are not paid in commissions upon the money received. 9. All expenses of suits to establish the title to the lands, er to maintain it, and to protect the lands from irespasses. 10. All expenses of the General Land Office at Washington, and of the offices to preserve the records of titles elsewhere. 11. The five per cent. commissions reserved to the new States, by the terms of their admission into the Union. All the expenditures, under all these heads, have been incurred, and must have been incurred, to enable the United States to perfect, preserve, and maintain, the titles to the lands, to protect the lands from waste, and to make sale of ten, and thus execute the alleged trust of paying the debt of the Revolution from their avails. "Nett proceeds," therefore, could not be looked for until these expenses were paid beyond the assumed trust. It was proper here to say, that most of the land. bills heretofore introduced, and which had occupied the attention of Congress at former sessions, either did not prescribe any rule to determine what should be considered nett proceeds, or prescribed a rule erroneous in principle, and unjust to the Na tional Treasury. He believed there had been six of these bills presented to, and considered by, this body; and the first four provided for the distribution of the "nett proceeds" of the sales of the lands, without declaring what should be considered such, or laying down any rule by which that should be determined. The two last declared that the expenditures under the following heads should be deducted from the gross proceeds, and what remained should be held to be nett proceeds, viz: 1. The salaries and expenses on account of the General Land Office. 2. The expenses of surveying the public lands. 3. The salaries and expenses of the Surveyor General's offices. 4. The salaries, commissions, etc. of the registers and receivers of the local land offices. 5. The five per cent. upon the amount of sales, Senate. reserved by the terms of their admission into the Union, to the States in which the lands are situatel The deductions here provided for, it cannot fai to be seen, are merely such as are indispensable to keep the system of sales in operation, and do not make any allowances for the expense of acquiring the Indian title, of defending that title, and clearing it from the Indian possessions, and other incumbrances-expenses as necessary to bring the lands into the market for sale, as those of the land system itself. Such a rule of nett proceeds was to charge upon the common Treasury, and the revenues of the country derived from other sources, the cost of the lands and of acquiring their possession, and to divide their avails among the States discharged from that cost. This brought him to another and most important position in this discussion. It was that, upon the fair rule of calculating the nett proceeds of the lands which he had laid down, there never had yet been any nett proceeds, either for application to the debt of the Revolution, or for distribution, whether the whole public domain, or the lands ceded by the States only, were taken into the account. This proposition might be startling to some members of the body, as it would no doubt be to a very large proportion of their common constituents, and yet he had taken the utmost pains to learn the truth from the proper offices, and he held in his hand the official statements to verify this position. He had procured the data from which he spoke during the last session of Congress, and the accounts were brought up to the 30th of September, 1839, but nothing had transpired, since that time, which could materially vary the results then exhibited. The facts were taken from the records in the archives of the country, and must, if any thing could, lay the foundation for correct and safe conclusions. He would first state the account with the whole public domain, as these records presented it. He would not detail items, as that would be tedious and unprofitable, but the statement before him showed that the cost to the United States of Louisiana, as purchased from France, and Florida, as purchased from Spain, the payments to and for the State of Georgia in conformity with the terms of the cession, the expenses of the General Land Of fiee, of the local land offices, including salaries, commissions, and the like, the expenses of surveys, including those of the Surveyor General's Offices, and the five per cent. upon the amount of sales to the new States, had together, up to the 30th of September, 1839, amounted to $49,081,172 20 A similar statement from the Indian Office, made upon the principle of estimating perpetual annuities at a capital which, invested at five per cent. would produce the annuity, annuities for terms of years at their actual amount, and life annuities as annuities for twenty-one years, and all other amonats as actually paid, or stipulated by treaties to be paid and yet due, showed that the amounts actually paid and liabilities incurred by the United States for the extinguishment of Indian title to different portions of the public Jands, and for the removal of the Indians therefrom, up to the 30th September, 1839, were 85 974,052 84 $135,055,225 04 116,198,179 15 |