Jefferson Davis, The Rise and Fall of the Confederate Government

[498] and they declare the obligation of the Congress to see these rights protected. I admit that the United States may acquire eminent domain. I admit that the United States may have sovereignty over territory; otherwise the sovereign jurisdiction which we obtained by conquest or treaty would not pass to us. I deny that their agent, the Federal Government, under the existing Constitution, can have eminent domain; I deny that it can have sovereignty. I consider it as the mere agent of the States—an agent of limited power; and that it can do nothing save that which the Constitution empowers it to perform; and that, though the treaty or the deed of cession may direct or control, it can not enlarge or expand the powers of the Congress; that it is not sovereign in any essential particular. It has functions to perform, and those functions I propose now to consider.

The power of Congress over the Territories—a subject not well defined in the Constitution of the United States—has been drawn from various sources by different advocates of that power. One has found it in the grant of power to dispose of the Territory and other public property. That is to say, because the agent was authorized to sell a particular thing, or to dispose of it by grant or barter, therefore he has sovereign power over that and all else which the principal, constituting him an agent, may hereafter acquire! The property, besides the land, consisted of forts, of ships, of armaments, and other things which had belonged to the States in their separate capacity, and were turned over to the Government of the Confederation, and transferred to the Government of the United States, and of this, together with the land so transferred, the Federal Government had the power to dispose; and of territory thereafter acquired, of arms thereafter made or purchased, of forts thereafter constructed, or custom-houses, or docks, or lights, or buoys; of all these, of course, it had power to dispose. It had the power to create them; it must, of necessity, have had the power to dispose of them. It was only necessary to confer the power to dispose of those things which the Federal Government did not create, of those things which came to it from the States, and over which they might signify their will for its control.

I look upon it as the mere power to dispose of, for considerations and objects defined in the trust, the land held in the United States, none of which then was within the limits of the States, and the other public property which the United States received from the States after the formation of the Union. I do not agree with those who say the Government has no power to establish a temporary and civil government within a Territory. I stand half-way between the extremes of squatter sovereignty and of Congressional sovereignty. I hold that the Congress has power to establish a civil government; that it derives it from the grants of the Constitution—not the one which is referred to; and I hold that that power is limited and restrained, first, by the Constitution itself, and then by every rule of popular liberty and sound discretion, to the narrowest limits which the necessities of the case require. The Congress has power to defend the territory, to repel invasions, to suppress insurrection; the Congress has power to see the laws executed. For this it may have a civil magistracy—territorial courts. It has the power to establish a Federal judiciary. To that Federal judiciary, from these local courts, may come up to be decided questions with regard to the laws of the United States and the Constitution of the United States. These, combined, give power to establish a temporary government, sufficient, perhaps, for the simple wants of the inhabitants of a Territory, until they shall acquire the population, until they shall have the