Monday, March 2.
Public Lands.
The House proceeded to consider the bill sent from the Senate, entitled “An act to prevent settlement being made on lands ceded to the United States, until authorized by law,” together with a report of the Committee on the Public Lands thereon.
Mr. Quincy moved its indefinite postponement. He observed that the provisions of the bill were highly important, and affected great constitutional questions, which it was not possible for the House to do justice to at so late a period of the session. The principle contained in the first section was, that the rights of all persons shall be forfeited, who shall undertake to settle on the public lands. This provision was not against trespassers, but was obviously intended to destroy the constitutional rights of those who had existing rights. The object of the bill was to defeat these constitutional rights. He had another objection to the bill. It went to forfeit the whole right to the land, in violation of the constitution, which expressly declares that “no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted,”—and yet, under this law, it is undertaken, without any crime, to forfeit the rights of the individual, not only during his life, but likewise during that of his heirs. He had another constitutional objection. The constitution says, “nothing in this constitution shall be so construed as to prejudice the claims of the United States, or of any particular State.” Among the rights derived from the States, if the property has passed, is the right of possession. This bill is therefore an invasion of the rights of the States. There is another constitutional objection. The ninth article of the amendment to the constitution provides that “in suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Here the right is taken away in a question of the highest magnitude to the individual. The object of this law is nothing more or less than to build up the legislative power on the destruction of that of the Judiciary. There was another objection. The constitution says, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Here is an extensive fine imposed. Mr. Q. said it was impossible, in the time that remained, to do justice to this subject—he therefore hoped it would be indefinitely postponed.
Mr. Gregg said he had no intention, on a proposition to postpone, to go into a discussion of the merits of the bill; but he believed an attention to its provisions would obviate many of the objections raised against it. He would not attempt to justify the bill in all its minutiæ. He hoped, however, the gentleman would withdraw his motion; he would then have an opportunity, when the bill was taken up, to offer such amendments as might remove his objections. Mr. G. said he thought the propriety of such a bill was justified by the necessity of the case. The simple question was, whether the United States should derive any benefit from the public lands, or whether they should be given up to intruders. It must be known to every one that almost innumerable persons had settled down on the public lands without meaning to pay for them. Their object was to settle down on them for a while, to sell their improvements, and then make other settlements. Hence the absolute necessity of making some provision on the subject. Mr. G. said he had no particular part of the lands of the United States in view—he took the subject upon general grounds. He believed the intrusions were most numerous in the Indiana Territory; but there was no district in which they had not been made to a considerable extent. He did not pretend to say that this law was the best that could be passed on the subject—they might not however be able to get one much better. When taken up it would be in the power of gentlemen to offer such amendments as they pleased.
Mr. Olin said he hoped the gentleman from Massachusetts would not withdraw his motion. He believed no man would charge him with a design to cover certain fraudulent claims; but he trusted the principle contained in this bill would not be sanctioned. They were not a judicial body; and had not a right to take the ground assumed in the bill. They had formerly had an attempt made upon them to sanction claims founded in fraud, and he had voted against it. He should also vote against this bill; he would never agree that men should be dispossessed of their property in such a way.
Mr. Hastings spoke against the bill, and in favor of the indefinite postponement.
Mr. N. Williams considered the bill so objectionable that he could not vote for it; and as, from the short period of the session that remained, it was impossible to give it a proper attention, he would vote for the postponement. The first objection he should make to the bill was this—that it destroyed that right hitherto considered sacred, the right of asserting a claim to property—a right that was established and coëval with the laws of the country. Nothing was better settled than that an individual who claimed a right to a piece of property had a right to take possession of it, and hold it till deprived by process of law. Here that right is denied, and in the most exceptionable manner, by giving the President the power of judging when the rights of the United States are violated, and the power to dispossess by military force, before trial of the case. Mr. W. said this appeared to him a principle too tyrannical for them to adopt at the present day—to authorize the President to send a military force to deprive a man of his property, without leaving him any mode of trying his right. This was the very last act, which ought in no case to be resorted to, till the civil laws had been found insufficient. Mr. W. said he did not know that any such power had been ever exercised in Great Britain, or in any other country where less freedom was enjoyed. The military force ought only to be called out when the civil force was insufficient. This was not the only objection he had to the bill. The citizens were rendered liable by it to imprisonment and punishment, without due course of law, notwithstanding all they had lately heard of trial by jury, and the zeal manifested for it. More might be said, but as the time of the House was precious, he would forbear adding any thing further.
Mr. D. R. Williams hoped the motion would not prevail; and for the very reasons urged by gentlemen. If the details are defective, let us get at the bill—if the principle is defective, that indeed may be a reason for postponement; but any defect in the detail may be corrected. Mr. W. said he could not but congratulate gentlemen on their returning sensibility for the constitution. When their feelings had been harrowed up on a recent occasion, gentlemen had felt no sensibility for the constitution; but when they come to the adoption of a bill, which went to affect Yazooism, all their sensibility was roused. Against this different course he protested. The gentleman from Massachusetts had observed there were not many intruders on the public lands, but surely he could not have read the papers even of his capital, or he must have recollected a proposition made in them to raise and march ten thousand men to take possession of the public lands. Would he in the face of such a fact say there was no danger? But, say gentlemen, will you deprive individuals of their rights? And what are they aiming at? Are they not endeavoring to deprive you of your rights? The fact, however, is, if these people do not trespass on the public lands they will not be affected by this law; and if they do, they ought to be affected by it. As to the application of military force, that is not a new principle; as, under the Administration of General Washington, it was found necessary to vest the power.
Mr. Quincy.—I did not mean to argue the details of the bill on this question—I merely stated certain considerations to show that it was not proper at this time to discuss the principles contained in the bill. And I ask gentlemen, whether, from the temper which has been manifested, and the importance of the subject, it is possible to get through the bill during the present session? If gentlemen will sit still, and be as callous as they were lately, it may perhaps be carried through this session; but if it be properly discussed, it cannot. Gentlemen say we have no sensibility to constitutional questions, except on this occasion. On the subject, however, of Yazooism, I have not said a word. My remarks were general. I placed that and all other claims on the footing of the law. This bill applies to the whole of them.
The question was then taken by yeas and nays on the indefinite postponement of the bill—yeas 43, nays 68.
Mr. Quincy moved to strike out the following part of the first section of the bill:
“Such offender or offenders shall forfeit all of his or their right, title, and claim, if any he hath, or they have, of whatsoever nature or kind the same shall or may be, to the lands aforesaid, which he or they shall have taken possession of, or settled, or caused to be occupied, taken possession of, or settled, or which he or they shall have surveyed, or attempted to survey, or caused to be surveyed, or the boundaries thereof, he or they shall have designated, by marking trees or otherwise.”
He said so far as this section went to provide against trespasses, it was unnecessary; and so far as it went to operate against persons having rights to land, it was unconstitutional. So far as respected the former, the arm of the law was sufficiently strong, and they might be removed by its ordinary process. It was not contended that this law was meant to apply against them—it would be absurd to say so, when they alleged no rights. The truth was, this was a general law, made to suit a particular case. This had been acknowledged by the gentleman from Virginia. Mr. Q. said he believed no man would contend, that were it not for that case, such a law would pass. He believed making a general law for particular cases, unusual and unconstitutional.
Mr. Q. here recapitulated the constitutional objections which he before urged.
He observed that the gentleman from South Carolina had referred to a law passed in the year 1799, which prevented any settlement within the Indian boundaries. Could any gentleman compare the case with this? In that case a treaty had been made between the United States and the Indians, one of the provisions of which prevented any citizen from going within the Indian boundary. Mr. Q. said he would use but one other argument, which was, that this law would be a mere nullity. If individuals wished to try their title, as soon as the military attempted to remove them, the courts of justice would interfere; and this would decide the question of title which gentlemen seem afraid to meet.
Mr. Lyon supported the motion to strike out.
On which the question was taken by yeas and nays—yeas 35, nays 54.
Mr. Quincy offered the following proviso to the first section:
“Provided, also, That nothing in this act shall prevent any person claiming title to any such lands, under or by virtue of an act or grant of any State, from peaceably entering thereon, for the purpose of being enabled thereby to bring to a judicial decision at law or in equity the validity of the title so claimed.”
Mr. Quincy said he made this motion, because he considered this section no more nor less than levelled at the Judiciary of the United States; and that his vote might be recorded, he would ask for the yeas and nays.
The question was then taken by yeas and nays on the proviso, and decided in the negative—yeas 30, nays 64.
Mr. Fisk said, that rather than have such a principle introduced into the laws of the United States, as was contained in this bill, he would prefer seeing all the Yazoo land sunk in the sea. He had no idea of seeing the rights to property tried at the point of the bayonet. He had often heard the Yazoo represented as a wicked business. He believed it was such; but he had ever hoped that the Judiciary would not be affected by it. This was nothing more nor less than providing by an armed force to turn men off from the land they occupy, and to deprive them of their rights, if they had any. If they had no rights, it was unnecessary to introduce such a principle into the bill; and if they had, they were to be divested of them by an armed force, without a trial by jury. He would ask if this were constitutional? He would ask gentlemen where were the feelings which they had recently displayed for the rights of the people who had sent them here? He wished gentlemen to recollect the maxim they laid down, that it was immaterial who were the persons affected, the rights were the same, and their invasion as dangerous in the person of the lowest wretch as in that of the most exalted character. Mr. F. said he was decidedly against the bill, and should vote for its rejection.
The bill was immediately read the third time.
Mr. Lyon spoke against its passage.
When the question was taken on its passage by yeas and nays, and decided in the affirmative—yeas 57, nays 44.