Speech of Mr. Hunter, of Virginia, on the Oregon Territory bill, delivered in the Senate of the United States, July 11, 1848. Page: 3 of 16
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must govern this territory-when is it divested of this power ? The Constitution
has specified one, and but one period. When the infant community arrives at its
majority-when it is strong enough to assume the responsibilities of a sovereign-
ty, and comes as a State into the Confederacy. Here are three sources from
which the power of Congress to govern the territory, as I think, may be clearly
implied. I believe I might name others. But it is said that no power so impor-
tant can be derived to Congress by implication, and yet these very gentlemen, or
most of them, maintain the existence of the power to acquire territory as implied
from the war-making or treaty-making powers. If they imply the right of ac-
quiring territory from some necessity for its use, surely they must go further aid
imply the. right of controlling and making that use of it after it is acquired.
But are not gentlemen applying a strict rule of construction, titting one class of
cases to another, to which it is not so fully appropriate ? When it is a question as
to the distribution of power between the Federal and State Governments, then the
implication must he strict and necessary, by which the former can claim a power
not expressly granted by the Constitution. Here, what is taken by the one is sub.
tracted from the other, and this strict rule as to necessary implication is derived,
not only from the nature of the parties to the contract. but from the express terms
of the instrument. which declares all power:. n;>t granted to be reserved. But
there is a class of cases arising out of powers which the States are forbidden to
exercise, they being expressly given to the Federal Government alone. Such are
the powers of making war and treaties ; such, too, is the power of acquiring ter.
ritory, for the States are prohibited frorn making war or treaties, from which that
power is implied.
Here the rule of construction is not so strict; this implication need not be ne-
cessary, but under certain limitations may be one of convenience, fitness, and pro.
priety. The limitations are, that Congress shall not assume obligations or exer-
cise powers under these grants, express or implied, which are expressly prohibited
to it by the Constitution, or which would encroach upon rights reserved to the
States or the people thereof. A trustee cannot imply a right to do what is expressly
prohibited in the deed creating his powers, or what would defeat the great ends of
the trusts declared in the instrument. The distribution of power between the
State and Federal Government is vital to the body politic and essential to the scheme
of American association. The power of making war and treaties was given to
preserve the existence of this political organism, and must not be perverted to de-
stroy it. To illustrate the rule and its limitations, Mr. President, let us take a
recent instance. In our war with Mexico we established governments, collected
revenues, and regulated municipal affairs in that country, by implication from the
war power, without regarding limitations which the Constitution would have im.
posed upon that power at home. Then, it was no question of distribution between
the State and Federal Governments, but as to a right which the States could not
exercise and which the American people could not use at all, except through the
Federal Government. But no one pretends that, under the war power, the Federal
Government could exercise municipal functions in the States at home. So from
the right to make treaties, power is implied liberally, but under the limitations
which I have named before. We have reported to us now a bill to exercise juris-
diction in China, which to a certain extent has been ceded to us by the Emperor.
It proposes to exercise this jurisdiction without regard to limitations imposed by the
Constitution at home, but as Chinese jurisdiction, acquired from them and adminis.
tered with some regard to the social principles of that empire. This implication
of power is large and liberal, yet it may not be objectionable, as it subtracts nothing
from the reserved rights of the States or their people. But none would contend
that we could make a treaty which would enable us to pass an ex post facto law,
Here’s what’s next.
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Hunter, R. M. T. 1809-1887. (Robert Mercer Taliaferro),. Speech of Mr. Hunter, of Virginia, on the Oregon Territory bill, delivered in the Senate of the United States, July 11, 1848., pamphlet, 1848; (texashistory.unt.edu/ark:/67531/metapth497613/m1/3/: accessed September 19, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Schreiner University.