JUSTICE TO THE LAND STATES, AND POLICY OF ROADS.

SPEECHES IN THE SENATE ON THE IOWA RAILROAD BILL, JANUARY 27,

FEBRUARY 17, AND MARCH 16, 1852.

The Senate having under consideration the "bill granting the right

of way, and making a grant of land to the State of Iowa, in aid of the

construction of certain railroads in said State," Mr. Sumner entered

into the debate, speaking several times. His remarks were much noticed

at the time in the Senate, and also in the country, especially in

the West. At home in Massachusetts political opponents seized the

occasion for criticism, and resolutions on the subject were introduced

into the Legislature of Massachusetts. He spoke first January 27,

1852, as follows.

MR. PRESIDENT,--This bill is important by itself, inasmuch as

it promises to secure the building of a railroad, at large cost, for

a long distance, through a country not thickly settled, in a remote

corner of the land. It is more important still as a precedent for a

series of similar appropriations in other States. In this discussion,

then, we have before us, at the same time, the special interests of the

State of Iowa, traversed by this projected road, and also the great

question of the public lands.

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]

[75] See Commonwealth of Pennsylvania _v._ Young. 1 Kent's Com.,

431.

[76] United States _v._ Ames, 1 Woodbury and Minot, 80.

After setting forth certain rights of the United States, the learned

judge proceeds:--

"All these rights exist in the United States for constitutional

purposes, and without a special cession of jurisdiction; though it

is admitted that other powers over the property and persons on such

lands will, of course, remain in the States, till such a cession

is made. Nothing passes without such a cession, except what is an

incident to the title and purpose of the General Government."[77]

[77] Ibid., 83.

The Supreme Court give great eminence to the sovereign right of

taxation in the States, saying:--

"Taxation is a sacred right, essential to the existence of

Government,--an incident of sovereignty. The right of legislation

is coextensive with the incident, to attach it upon all persons and

property within the jurisdiction of a State."[78]

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