I have no inclination to enter into these matters at length, even if I were able; but entertaining no doubt as to the requirements of policy and of justice in the present case, and in all like cases,—seeing my way clearly before me by lights that cannot deceive,—I hope in a few words to exhibit these requirements and to make this way manifest to others. I am especially moved to do so by the tone of remark often heard out of the Senate, and sometimes even here, begrudging these appropriations, and charging particular States for which they are made with undue absorption of the national property. It is sometimes said—not in this body, I know—that "the West is stealing the public lands"; and the Senator from Virginia [Mr. Hunter], who expresses himself with frankness and moderation worthy of regard, in discussing this very measure, distinctly says that "we are squandering away the public lands"; and he complains that such appropriations are partial, "because very large amounts of land are distributed to those States in which they lie, while nothing is given to the old States." And the Senator from Kentucky [Mr. Underwood], taking up this strain, dwells at great length, and in every variety of expression, on the alleged partiality of the distribution.
Now I know full well that the States in which these lands lie need no defender like myself. But, as a Senator from one of the old States, I desire thus early to declare my dissent from these views, and the reasons for this dissent. Beyond a general concern that the public lands, of which the Union is now almoner, custodian, and proprietor, should be administered freely, generously, bountifully, in such wise as most to promote their settlement, and to build upon them towns, cities, and States, the nurseries of future empire,—beyond this concern, which leads me gladly to adopt the proposition in favor of actual settlers brought forward by the Senator from Wisconsin [Mr. Walker], I find clear and special reason for supporting the measure before the Senate in an undeniable rule of justice to the States in which the lands lie.
Let me speak, then, for justice to the Land States. And in doing so I wish to present an important, and, as it seems to me, decisive consideration,—not adduced thus far in this debate, nor do I know that it has been argued in any former discussion,—founded on the exemption from taxation enjoyed by the national lands in the several States, and the unquestionable value of this franchise. The subject naturally presents itself under two heads: first, the origin and nature of this franchise; and, secondly, its extent and value, after deducting all reservations and grants to the several States.
I. In the first place, as to the origin and nature of the immunity enjoyed by the national domain in the several States.
The United States are proprietors of large tracts within the municipal and legislative jurisdiction of States, not held directly by virtue of any original prerogative or eminent domain, by any right of conquest, occupancy, or discovery, but under acts of cession from the old States, in which the lands were situated, and from foreign countries, recognized and confirmed in the statutes by which the different States have been constituted. Words determining this relation are found in the Ordinance of 1787, as follows: "The Legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers." This provision is incorporated, as an article of compact, in subsequent statutes under which the new States took their place in the Union. It is "the primary disposal of the soil," without any incident of sovereignty, which is here secured.
Regarding the United States, then, as simple proprietors, under the jurisdiction of the States, would they not be liable, in the discretion of the States, to the burdens of other proprietors, unless specially exempted? This exemption is conceded. In the Ordinance of 1787 it is expressly declared that "no tax shall be imposed on lands the property of the United States"; and this provision, like that already mentioned, was embodied in succeeding Acts of Congress by which new States were constituted. The fact that it was formally conceded and has been thus embodied seems to denote that such concession was regarded as necessary to secure the desired immunity. Indeed, from familiar principles of our jurisprudence, recognized by the Supreme Court, it is reasonable to infer, that, without such express exemption, this whole extent of territory would be within the field of local taxation, liable, like the lands of other proprietors, to all customary burdens and incidents.
Thus, in an early case of Pennsylvania, it is decided that the purchase of land by the United States would not alone be sufficient to vest them with the jurisdiction, or to oust the jurisdiction of the State, without being accompanied or followed by the consent of the Legislature of the State.[75] And it is judicially declared by the late Mr. Justice Woodbury, in a well-considered case:—
"Where the United States own land situated within the limits of particular States, and over which they have no cession of jurisdiction, for objects either special or general, little doubt exists that the rights and remedies in relation to it are usually such as apply to other land-owners within the State."[76]
After setting forth certain rights of the United States, the learned judge proceeds:—