ileges and immunities theretofore claimed or conceded, were scattered broadcast, or grouped in inconsiderable masses around them. Thence the elements of political jurisdiction were drawn, whatever the form of government, but with this difference-that despotic power may consist of elements wrenched from the unwilling but impotent masses by an exertion of physical force, whilst popular governments are reared from voluntary grants and concessions, by the peo ple, having for their basis, a system by compact, of correlative rights and duties. But in either case, the political powers, whether usurped from, or conferred by a people, whe. duly embodied, constitute the sovereignty of that people, and as such, are clothed with certain attributes, prerogatives and inherent rights. One of those rights well established in its universality by the common law, recognized by the people,and exercised by all independent sovereignties, is, "that the right "to gold and silver and the baser metals with which either is connected, "within the territorial limits of an independent government," primarily "attaches to and belongs to such government, in virtue of its sover"eignty." This is a single sovereign power, but in most authors upon national law, will be found grouped with others, under the more general designation of eminent domain. Thus in Vettel Law of Nations, section 244, the following phrase occurs: "The right which 'belongs to the society, or the sovereign, of disposing, in case of ne'cessity, and for the public safety, of all the wealth contained in the 'state, is called the eminent domain. It is evident that this right is in certain cases, necessary to him who governs, and is, consequently 'a part of the empire or sovereign power.'

Such was, and is the doctrine of the common law, the validity and binding force of which was fully recognized in all the original statesin the constitution of the United States, Article 7, of amendmentswas reasserted in the ordinance of 1787, expressly guaranteeing its provisions to the people of the northwestern territory, (subsequently extended to all the public domain in the southern and western portions of the Union,) under the plain but emphatic language, that "the inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus and trial by jury of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the

⚫ common law." In all the elementary common law works in the old and new world, we find this same doctrine of eminent domain, both as to soil, navigable rivers and precious metals expressly asserted. In the state of New York as early as 1786 we find the legislature recognizing the same, and separating between the minerals and the soil, by directing in all grants of lands by the state a reservation of mines minerals, &c. This was only by way of caution to the purchaser, because by the principles of the same common law, mines and minerals do not pass from the sovereign by general grant of the soil, but in all cases require an express and specific grant.

Such is the common law doctrine as between the sovereign and an individual, whether subject or citizen. But as between sovereign and sovereign, there is a striking peculiarity. Mines and minerals, navigable waters, the soils under them, and the shores between high and low water mark, are not proprietary rights, but attributes of sovereignty. Hence we find that in all transfers of domain between sovereignties, the above rights are all severed from the right of property in the soil, and do not pass by treaty or grant. Sovereignty transfers itself, and when that passes, all the inherent rights of sovereignty pass also.

Thus at the period of the revolution, it is a main error to suppose that the sovereign rights of the thirteen states were inchoate, and only attached when the treaty of peace was signed, and ratified between them and Great Britain. E contra, when the last of the immortal band of signers had placed his name at the foot of the Declaration of Indepencence, eo instanti! thirteen sovereignties sprang into existence, clothed with the attributes and possessing the inherent rights of sovereignty as fully as the crown of Great Britain had done before. Sovereignty had transferred itself. The Eagle had ejected the Lion. Thenceforward, through all the perils of that eventful contest, the struggle was, not to achieve independence, but to maintain it.

If, then, the previous views can be sustained, your committee submit, that the original states became, each for itself, entitled to all the rights of sovereignty, jurisdiction, and eminent domain, not, however, in the plenitude of a royal prerogative of the crown of Great Britain, but to be held and exercised subject to the constitution and laws of its own government. Vatel L. Nations, sec. 244, et passim.

This, then, brings us to the consideration of the modifications of the right to exercise municipal eminent domain by the original states, growing out of their state organization, or from their having parted with, and transferred that sovereign right, in part or in whole, to the general government. As to the first branch of the proposition, but little difficulty can arise, inasmuch as many of these states have fully asserted the common law doctrine of eminent domain, as to mines, minerals, navigable waters, &c., by a reservation in grants by the state, of soil, and also by expressly claiming their gold and silver mines "to be the property of the people of the state in their right of sovereignty," without exception or reservation. Rev. St. of New York, vol. 1, page 281. That same sovereign right in its broadest sense, has also, in numerous cases, been contested and maintained, not only between different states, but between a state and the general government. As to the other branch of the above proposition, your committee conclude it to be no longer an open question, as the supreme court of the United States have fully adjudicated and settled the point that the general government cannot contest the eminent domain of a state, "except in the cases in which it is expressly granted." 3, Howard's Rep. page 223.

Whatever then, may be said of the new states, the doctrine is eminently true, that the states originally composing the confederacy, are republics mutually independent and absolutely sovereign; except only as to those matters where they have delegated certain functions of their sovereignty for the public weal. The constitution of the United States is but the embodiment of a series of mutual sacrifices and reciprocal concessions-a combination of surrendered powers offered upon the altar of a holy patriotism, and sanctified by a spirit of conciliation and forbearance. The general government was not formed by the people as a homogeneous mass, but by the people in their aggregate capacity and acting through the organism of states The general government then, takes nothing but by the constitution, and by that, only such powers as are specifically delegated. In the language of that instrument "the enumeration in the constitution of cer tain rights, shall not be construed to deny or disparage others retained by the people;" and again, "the powers not delegated to the United States by the constitution nor prohibited by it to the states, are

reserved to the states respectively, or to the people." Amend. con. art. IX-X.

But the more effectually to provide against any collision between state sovereignties, and at the same time to declare Congress incapable of, in any degree, infringing the integral rights of any state, the 3d sec. of the 4th art. of the constitution expressly declares that "new states may be admitted by Congress into the Union: but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states, without the consent of the Legislatures of the states concerned, as well as of Congress."

But, that the assumption of jurisdiction and eminent domain by the United States, as matter of right, would be an usurpation of power, and inoperative in the original states, is conclusively shown by the constitutional provision for a grant or purchase, when the same becomes necessary. By the 16th clause of the 8th section of the 1st article of the constitution power is conferred on Congress "to exercise exclusive legislation, in all cases whatsoever, over such district, (not exceeding ten miles square,) as may by cession of particular states, and the acceptar.ce of Congress, become the seat of government of the United States; and to exercise like authority over all places purchased by the consent of the Legislature of the state in which the same may be, for the erection of forts, magazines, arsenals, dock-yards, and other builcings." Congress having been universally compelled to resort to such grant or purchase in every instance, settles the point of primal jurisdiction in the States both new and old. Your committee then submit, that the municipal eminent domain can only be exercised by the general government in the District of Columbia, and other places granted or purchased and used for the purposes above mentioned, so far as the original states are concerned, for the manifest reason that the United States government, as such, is not an independent sovereignty, and in the language of the supreme court above cited, "has no constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted."

It is now proposed to consider the scope and tenor of congressional action relative to the new states, and to ascertain, if possible,

wherein the defect lies, that they are not upon "the same footing in all respects whatever with the original states," saving and excepting the single remaining right in the United States of selling the public lands, and if that should finally prove to be the only draw-back upon a perfect equality, then we may boldly affirm that the questio vexata is solved, for if the old states, upon the broad and deep foundations of the common law, take a sovereign's right to mines of gold and silver, then a priori, the new states take the same also;-"qui haeret in litera, haeret in cortice."

A recurrence to existing contemporaneous facts, will enable us, not unfrequently, to ascertain not only the reason of a rule, but its intended practical application. Before the close of the revolution, the original states found themselves, as a confederacy, without credit, destitute of resources, and deeply involved in debt. At the same time several of those states held by grant, a vast expanse of territory, denuded of population and cumbered by an existing possessory Indian title. Under the serious financial embarrassments thrown around the action of Congress, it become apparent that important sacrifices must be made by individual states for the common welfare. To meet the pressing exigency, the old Congress, by a resolution of Sept. 6, 1780, recommended a surrender and cession by the states, of their waste and unappropriated lands to the United States, to aid in paying the debt incurred by the revolution.

Virginia, ever true to the holiest instincts of patriotism, took the lead, on the 1st of March, 1784, by authorizing certain delegates to execute to the United States a cession deed in trust, of all the territory northwest of the Ohio river," stipulating in the statute therefor, that all the lands within the territory ceded, and not reserved or appropriated to other purposes, should be considered as a common fund for the use and benefit of all the United States, to be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatever. Said statute further provides that said cession shall be "upon condition that the territory so ceded shall be laid out and formed into states, containing a suitable extent of territory. not less than one hundred, nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit; and that the states so formed shall be republican states, and admitted members of the fede