Page images
PDF
EPUB

This Jeffersonian Plan of Government embodies and | interpreted and expounded by the Colonies during thefr carries out the ideas and principles of the fathe s of the controversy with Great Britain, for their model-making Revolution-that the people of every separate political such modifications in its structure and principles as the community (dependent Colonies, Provinces, and Territo- change in our condition had rendered necessary. They riee as well as sovereign States) have an inalienable right entrusted the Executive functions to a President in the to govern themselves in respect to their internal polity, place of a King; the Legislative functions to a Congress, and repudiates the dogma of the British Ministry and composed of a Senate and House of Representatives, in the Tories of that day, that all Colonies, Provinces and lieu of the Parliament consisting of the Houses of Lords and Territories were the property of the empire, acqui ed Commons; and the Judicial functions to a Supreme Court with the common blood and common treasure, and that and such inferior courts as Congress should from time to the inhabitants thereof have no rights, privileges, or time ordain and establish. immunities except such as the Imperial Government should graciously condescend to bestow upon them. This Plan recognizes by law and irrevocable "compact" the existence of two distinct classes of States under our American system of government-the one being members of the Union, and consisting of the original thi teen and such other States, having the requisite population, as Congress should admit into the Federal Union, with an equal vote in the management of Federal affairs as well as the exclusive power in regard to their internal polity respectively-the other, not having the requisite population for admission into the Union, could have no vote or agency in the control of the Federal relations, but possessed the same exclusive power over their domestic affairs and internal policy respectively as the original States, with the right, while they have less than twenty thousand inhabitants, to choose for their government the Constitution and laws of any one of the original States; and when they should have more than twenty thousand, but less than the number required to entitle them to admission into the Union, they were authorized to form for themselves "a permanent Constitution and government;" and in either case they were entitled to keep a delegate in Congress with the right of debating, but not of voting. This "Charter of Compact," with its "fundamental conditions," which were declared to be "unalterable" without "the joint consent" of the people interested in them, as well as of the United States, thus stood on the statute book un epealed and unrepealable-furnishing a complete system of government for all "the territory ceded or to be ceded" to the United States, without any other legislation upon the subject, when, on the 14th day of May, 1787, the Federal Convention assembled in Philadelphia and proceeded to form the Constitution under which we now live. Thus it will be seen that the dividing line between Federal and Local authority, in respect to the rights of those political communities which, for the sake of convenience and in contradistinction to the States represented in Congress, we now call Territories, but which were then known as "States," or "new States," was so distinctly marked at that day that no intelligent man could fail to perceive it. It is true that the government of the Confederation had proved totally inadequate to the fulfillment of the ends for which it was devised; not because of the relations beIween the Territories, or new States, and the United States, but in consequence of having no power to enforce its decrees on the Federal questions which were clearly within the scope of its expressly delegated powers. The radical defects in the Articles of Confederation were found to consist in the fact that it was a mere league between sovereign States, and not a Federal Government with its appropriate departments-Executive, Legislative, and Judicial-each clothed with authority to perform and carry into effect its own peculiar functions. The Confederation naving no power to enforce compliance with the resolves, "the consequence was, that though in theory its resolutions of Congress were equivalent to laws, yet in practice they were found to be mere recommendations, which the States, like other sovereignties, observed or disregarded, according to their own good-will and gracious pleasure.' Congress could not impose duties, collect taxes, raise armies, or do any other act essential to the existence of government, without the voluntary consent and coöperation of each of the States. Congress could resolve, but could not carry its resolutions into effect-could recommend to the States to provide a revenue for the necessities of the Federal Government, but could not use the means necessary to the collection of the revenue when the States failed to comply-could recommend to the States to provide an army for the general defense, and apportion among the States their respective quotas, but could not enlist the men and order them into the Federal service. For these reasons a Federal Government, with its appropriate departments, acting directly upon the individual citizens, with authority to enforce its decrees to the extent of its delegated powers, and not dependent upon the voluntary action of the several States in their corporate capacity, became indispensable as a substitute for the government of the Confederation.

In the formation of the Constitution of the United States the Federal Convention took the British Constitution, as

Having thus divided the powers of government into the three appropriate departments, with which they had always been familiar, they proceeded to confer upon the Federal Government substantially the same powers which they as colonies had been willing to concede to the British Government; and to reserve to the States and to the people the same rights and privileges which they as colonies had denied to the British Government during the entire struggle which terminated in our Independence, and which they had claimed for themselves and their posterity as the birthright of all freemen, inalienable when organized into political communities, and to be enjoyed and exercised by colonies, territories, and provinces as fully and completely as by sovereign States. Thus it will be seen that there is no organic feature or fundamental principle embodied in the Constitution of the United States which had not been familiar to the people of the Colonies from the period of their earliest settlement, and which had not been repeatedly asserted by them when denied by Great Britain during the whole period of their colonial history.

Let us pause at this point for a moment, and inquire whether it be just to those illustrious patriots and sages who formed the Constitution of the United States, to assume that they intended to confer upon Congress that unlimited and arbitrary power over the people of the American Ter. ritories, which they had resisted with their blood when claimed by the British Parliament over British colonies in America? Did they confer upon Congress the right to bind the people of the American Territories in all cases whatsoever, after having fought the battles of the Revolution against a "Preamble" declaring the right of Parliament "to bind the Colonies in all cases whatsoever?" If, as they contended before the Revolution, it was the birthright of all Englishmen, inalienable when formed into political communities, to exercise exclusive power of legislation in their local legislatures in respect to all things affecting their internal polity-Slavery not excepted-did not the same right, after the Revolution, and by virtue of it, become the birthright of all Americans, in like manner inalienable when organized into political communities-no matter by what name, whether Colonies, Territories, Provinces, or new States?

Names often deceive persons in respect to the nature and substance of things. A single instance of this kind is to be found in that clause of the Constitution which says:

"Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States."

This being the only clause of the Constitution in which the word "Territory" appears, that fact alone has doubtless led many persons to suppose that the right of Congress to establish temporary governments for the Territories, in the sense in which the word is now used, must be derived from it, overlooking the important and controlling facts that at the time the Constitution was formed the word "Territory" had never been used or understood to designate a political community or government of any kind in any law, compact, deed of cession, or public document; but had invariably been used either in its geographical sense to describe the superficial area of a State or district of country, as in the Virginia deed of cession of the "Territory or tract of country" northwest of the river Ohio; or as meaning land in its character as property, in which latter sense it appears in the clause of the Constitution referred to, when providing for the disposition of the "Territory or other property belong ing to the United States." These facts, taken in connection with the kindred one that during the whole period of the Confederation and the formation of the Constitu tion the temporary governments which we now call "Territories," were invariably referred to in the deeds of cession, laws, compacts, plans of government, resolutions of Congress, public records, and authentic documents as "States," or "new States," conclusively show that the words "Territory and other property" in the Constitution were used to designate the unappropriated lands and other property which the United States owned, and not the people who might become residents on those lands, and be organized into political communities after the United States had parted with their title.

It is from this clause of the Constitution alone that Here we find the original and rough draft of these seve Congress derives the power to provide for the surveys ral powers as they now exist, in their revised form, in the and sale of the public lands and all other property be- Constitution. The provision empowering Congress "t longing to the United States, not only in the Territories, dispose of the unappropriated lands of the United States" but also in the several States of the Union. But for this was modified and enlarged, so as to include "other pro provision Congress would have no power to authorize the perty belonging to the United States," and to authorize sale of the public lands, military sites, old ships, cannon, Congress to "make all needful rules and regulations" for muskets, or other property, real or personal, which be- the preservation, management, and sale of the same. long to the United States, and are no longer needed for The provision empowering Congress "to institute temany public purpose. It refers exclusively to property in porary governments for the new States arising in the uncontradistinction to persons and communities. It con- appropriated lands of the United States," taken in confers the same power "to make all needful rules and nection with the one empowering Congress "to exercise regulations" in the States as in the Territories, and ex- exclusively Legislative authority at the seat of the Gene tends wherever there may be any land or other property ral Government, and over a district of country around the belonging to the United States to be regulated or disposed same," clearly shows the difference in the extent and naof; but does not authorize Congress to control or inter-ture of the powers intended to be conferred in the new fere with the domestic institutions and internal polity of States or Territories on the one hand, and in the District the people (either in the States or the Territories) who of Columbia on the other. In the one case it was pro may reside upon lands which the United States once posed to authorize Congress "to institute temporary govowned. Such a power, had it been vested in Congress, ernments for the new States," or Territories, as they are would annihilate the sovereignty and freedom of the now called, just as our Revolutionary fathers recognized States as well as the great principle of self-government in the right of the British crown to institute local governthe Territories, wherever the United States happen to ments for the Colonies, by issuing charters under which own a portion of the public lands within their respective the people of the Colonies were entitled (according to limits, as, at present, in the States of Alabama, Florida, the Bill of Rights adopted by the Continental Congress) to Mississippi, Louisiana, Arkansas, Missouri, Illinois, a free and exclusive power of legislation, in their several Indiana, Ohio, Michigan, Wisconsin, Iowa, Minnesota, Provincial Legislatures, where their right of representation California, and Oregon, and in the Territories of Wash- can alone be preserved, in all cases of taxation and interington, Nebraska, Kansas, Utah, and New-Mexico. The nal polity;" while, in the other case, it was proposed to idea is repugnant to the spirit and genius of our complex authorize Congress to exercise, exclusively, legislative system of Government; because it effectually blots out authority over the municipal and internal polity of the the dividing line between Federal and Local authority people residing within the district which should be ceded which forms an essential barrier for the defense of the for that purpose as the seat of the General Government. independence of the States and the liberties of the people Each of these provisions was modified and perfected by against Federal invasion. With one anomalous excep- the Committee of Detail and Revision, as will appear by tion, all the powers conferred on Congress are Federal, comparing them with the corresponding clauses as finally and not Municipal, in their character-affecting the incorporated into the Constitution. The provision to general welfare of the whole country without interfering authorize Congress to institute temporary governments with the internal polity of the people-and can be carried for the new States or Territories, and to provide for their into effect by laws which apply alike to States and Ter- admission into the Union, appears in the Constitution in ritories. The exception, being in derogation of one of this form: the fundamental principles of our political system (because it authorizes the Federal Government to control the municipal affairs and internal polity of the people in certain specified, limited localities), was not left to vague inference or loose construction, nor expressed in dubious or equivocal language; but is found plainly written in that Section of the Constitution which says:

"Congress shall have power to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding en miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the 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 shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings." No such power "to exercise exclusive legislation in all cases whatsoever," nor indeed any legislation in any case whatsoever, is conferred on Congress in respect to the municipal affairs and internal polity, either of the States or of the Territories. On the contrary, after the Constitution had been finally adopted, with its Federal powers delegated, enumerated, and defined, in order to guard in all future time against any possible infringement of the reserved rights of the States, or of the people, an amendment was incorporated into the Constitution which marks the dividing line between Federal and Local authority so directly and indelibly that no lapse of time, no partisan prejudice, no sectional aggrandizement, no frenzied fanaticism can efface it. The amendment is in these words:

"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."

New States may be admitted by the Congress into this Union."

"Mr. Madison submitted, in order to be referred to the Committee of Detail, the following powers, as proper to be added to those of the general Legislature (Congress):

"To dispose of the unappropriated lands of the United States. "To institute temporary governments for the new States arising therein. "To regulate affairs with the Indians, as well within as without the limits of the United States.

"To exercise exclusively legislative authority at the seat of the General Government, and over a district around the same not exceeding square miles, the consent of the legislature of the State or States comprising the same being first ob. tained"

The power to admit "new States," and "to make all laws which shall be necessary and proper" to that end, may fairly be construed to include the right to institute temporary governments for such new States or Territories, the same as Great Britain could rightfully institute similar governments for the Colonies; but certainly not to authorize Congress to legislate in respect to their municipa. affairs and internal concerns, without violating that great fundamental principle in defense of which the battles of the Revolution were fought.

If judicial authority were deemed necessary to give force to principles so eminently just in themselves, and which form the basis of our entire political system, such authority may be found in the opinion of the Supreme Court of the United States, in the Dred Scott case. that case the Court say:

In

"The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory,

This view of the subject is confirmed, if indeed any cor-not fit for admission at the time, but to be admitted as soon as roborative evidence is required, by reference to the pro- its population and situation would entitle it to admission. ceedings and debates of the Federal Convention, as re- It is acquired to become a State, and not to be held as a colony ported by Mr. Madison. On the 18th of August, after a and governed by Congress with absolute authority; and as the series of resolutions had been adopted as the basis of the Propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that proposed Constitution and referred to the Committee of purpose, to be held by the United States until it is in a suitable Detail for the purpose of being put in proper form, the re- condition to become a State upon an equal footing with the cord says: other States, must rest upon the same discretion."

"This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outit may exercise therein over the person or property of a citiside of the original limits of the United States, and what powers til it shall be admitted as one of the States of the Union. zen of the United States, while it remains a territory, and un

"There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies, bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way except by the admission of new States.

Having determined the question that the power to ac quire territory for the purpose of enlarging our territorial limits and increasing the number of States, is included within the power to admit new States and conferred by the same clause of the Constitution, the Court proceed to say that "the power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired." And again, referring to a former deci sion of the same court in respect to the power of Congress to institute governments for the Territories, the Court say: "The power stands firmly on the latter alternative put by

the Court-that is, as the 'inevitable consequence of the right to acquire territory.'

|

""

footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government

might attempt under the plea of implied or incidental powers. powers conferred on the Federal Government-it will be ad And if Congress itself cannot do this-if it is beyond the Terri-mitted, we presume, that it could not authorize a Territorial government to exercise them. It could confer no power ou any local government, established by its authority, to violate the provisions of the Constitution."

The power to acquire territory, as well as the right, in the language of Mr. Madison, "to institute temporary governments for the new States arising therein" (or torial governments, as they are now called), having been traced to that provision of the Constitution which provides for the admission of "new States," the Court proceed to consider the nature and extent of the power of Congress over the people of the Territories:

"All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a territory thus acquired, the Court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, or the rules and principles by which its decision must be governed.

"Taking this rule to guide us, it may be safely assumed that citizens of the United States, who emigrate to a territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Govern ment, and to be governed by any laws it may think proper to impose. .The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has

reserved."

Hence, inasmuch as the Constitution has conferred on the Federal Government no right to interfere with the property, domestic relations, police regulations, or internal polity of the people of the Territories, it necessarily follows, under the authority of the Court, that Congress can rightfully exercise no such power over the people of the Territories. For this reason alone, the Supreme Court were authorized and compelled to pronounce the eighth section of the Act approved March 6, 1820 (commonly called the Missouri Compramise), inoperative and void there being no power delegated to Congress in the Constitution authorizing Congress to prohibit Slavery in the Ter

ritories.

In the course of the discussion of this question the Court gave an elaborate exposition of the structure, principles, and powers of the Federal Government; showing that it possesses no powers except those which are delegated, enumerated, and defined in the Constitution; and that all other powers are either prohibited altogether or are reserved to the States, or to the people. In order to show that the prohibited, as well as the delegated powers are enumerated and defined in the Constitution, the Court enumerated certain powers which cannot be exercised either by Congress or by the Territorial Legislatures, or by any other authority whatever, for the simple reason that they are forbidden by the Constitution.

"A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no cne, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the the press, or the right of the people of the territory peaceably to assemble, and to petition the Government for the redress of grievances. "Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. So too, it will hardly be contended that Congress could by law quarter a soldier in a house in a territory without the consent of the owner in a time of peace; nor in time of war but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a territory who was convicted of treaBon, for a longer period than the life of the person convicted, nor take private property for public use without just compen

...

Nothing can be more certain than that the Court were here speaking only of forbidden powers, which were denied alike to Congress, to the State Legislatures, and to the Territorial Legislatures, and that the prohibition extends "everywhere within the dominion of the United States," applicable equally to States and Territories, as well as to the United States.

Dation." "The powers over persons and property, of which we speak, are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial governments, as well as that covered by States. "It is a total absence of power, everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same

If this sweeping prohibition--this just but inexorable restriction upon the powers of Government- Federal, State, and Territorial-shall ever be held to include the Slavery question, thus negativing the right of the people of the States and Territories, as well as the Federal Government, to control it by law (and it will be observed that in the opinion of the Court "the citizens of a Territory, so far as these rights are concerned, are on the same footing with the citizens of the States.") then, indeed, will the doctrine become firmly established that the principles of law applicable to African Slavery are uniform throughout the dominion of the United States, and that there is an irrepressible conflict between opposing and enduring forces, which means that the United States must and will, sooner or later, become either entirely a slaveholding nation or entirely

a free labor nation."

Some persons who have not examined critically the opinion of the Court in this respect have been induced to believe that the slavery question was included in this class of prohibited powers, and that the Court had decided in the Dred Scott case that the Territorial Legislature could not legislate in respect to slave property the same as all other property in the Territories. A few extracts from the opinion of the Court will correct this error, and show clearly the class of powers to which the Court referred, as being forbidden alike to the Federal" Government, to the States, and to the Territories. The Court say:

Notwithstanding the disastrous consequences which would inevitably result from the authoritative recognition and practical operation of such a doctrine, there are those who maintain that the Court referred to and included the Slavery question within that class of forbidden powers which (although the same in the Territories as in the States) could not be exercised by the people of the Territories.

If this proposition were true, which fortunately for the peace and welfare of the whole country it is not, the conclusion would inevitably result, which they logically deduce from the premises-that the Constitution by the recognition of Slavery establishes it in the Territories beyond the power of the people to control it by law, and guarantees to every citizen the right to go there and be protected in the enjoyment of his slave property; and when all other remedies fail for the protection of such rights of property, it becomes the imperative duty of Congress (to the performance of which every member is bound by his conscience and his oath, and from which no consideration of political policy or expediency can release him) to provide by law such adequate and complete protection as is essential to the enjoyment of an important right secured by the Constitution. If the proposition be true, that the Constitution establishes Slavery in the Territories beyond the power of the people legally to control it, another result no less startling, and from which there is no escape, must inevitably follow. The Constitution is uniform everywhere within the dominions of the United States"-is the same in Pennsylvania as in Kansas-and if it be true, as stated by the President in a special message to Congress, that Slavery exists in Kansas by virtue of the Constitution of the United States," and that "Kansas is therefore at this moment as much a Slave State as Georgia or South Carolina," why does it not exist in Pennsylvania by virtue of the same Constitution?

If it be said that Pennsylvania is a sovereign State, and therefore has a right to regulate the Slavery question within her own limits to suit herself, it must be borne in mind that the sovereignty of Pennsylvania, like that of every other State, is limited by the Constitution, which provides that:

"This Constitution, and all laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Hence, the State of Pennsylvania, with her Constitution and laws, and domestic institutions, and internal policy, is subordinate to the Constitution of the United States, in the same manner and to the same extent as the Territory of Kansas. The Kansas-Nebraska Act says that the Territory of Kansas shall exercise legislative power over "all rightful subjects of legislation consistent with the Constitution," and that the people of said Territory shall be left perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States." The provisions of this act are believed to be in entire harmony with the Constitution, and

66

under them the people of Kansas possess every right, privilege, and immunity, in respect to their internal polity and domestic relations, which the people of Pennsylvania can exercise under their Constitution and laws. Each is invested with full, complete, and exclusive powers in this respect, "subject only to the Constitution of the United States."

The question recurs, then, if the Constitution does estab-laws thereof, escaping into another, shall, in consequence of "No person heid to service or labor in one State, under the lish Slavery in Kansas or any other Territory beyond the any law or regulation therein, be discharged from such serpower of the people to control it by law, how can the con- vice or labor, but shall be delivered up on claim of the party clusion be resisted that Slavery is established in like man- to whom such service or labor may be due." ner and by the same authority in all the States of the Union? And if it be the imperative duty of Congress to provide by law for the protection of slave property in the Territories upon the ground that "Slavery exists in Kansas" (and consequently in every other Territory) "by virtue of the Constitution of the United States," why is it not also the duty of Congress, for the same reason, to provide similar protection to slave property in all the States of the Union, when the legislatures fail to furnish such protection?

Thus it will be seen that a slave, within the meaning of the Constitution, is a "person held to service or labor in one State, under the laws thereof"-not under the Constitution of the United States, nor by the laws thereof, nor by virtue of any federal authority whatsoever, but under the laws of the particular State where such service or labor may be due.

in the Constitution in order to satisfy the people of the It was necessary to give this exact definition of Slavery Without confessing or attempting to avoid the inevitable South as well as of the North. The slaveholding States consequences of their own doctrine, its advocates endeavor would never consent for a moment that their domestic reto fortify their position by citing the Dred Scott decision lations-and especially their right of property in their to prove that the Constitution recognizes property in slaves should be dependent upon Federal authority, or slaves that there is no legal distinction between this and that Congress should have any power over the subjectevery other description of property-that slave property either to extend, confine, or restrain it, much less to proand every other kind of property stand on an equal foot-tect or regulate it-lest, under the pretense of protection ing-that Congress has no more power over the one than and regulation, the Federal Government, under the influover the other-and, consequently, cannot discriminate ence of the strong and increasing anti-slavery sentiment which prevailed at that period, might destroy the institution, and divest those rights of property in slaves which were sacred under the laws and constitutions of their respective States so long as the Federal Government had no power to interfere with the subject.

In like manner, the non-slaveholding States, while they were entirely willing to provide for the surrender of all fugitive slaves-as is conclusively shown by the unanimous vote of all the States in the Convention for the provision now under consideration-and to leave each State perfectly free to hold slaves under its own laws, and by virtue of its own separate and exclusive authority, so long as it pleased, and to abolish it when it chose, were unwilling to become responsible for its existence by incorporating it into the Constitution as a national institution, to be protected and regulated, extended and controlled by Federal authority, regardless of the wishes of the people, and in defiance of the local laws of the several States and TerriNorthern States united in giving a unanimous vote in the tories. For these opposite reasons, the Southern and Convention for that provision of the Constitution which recognizes Slavery as a local institution in the several States where it exists, "under the laws thereof," and provides for the surrender of fugitive slaves.

The rights of the owner, which it is thus made the duty of the Federal Government to guard and protect, are those expressly provided for in the Constitution, and defined in clear and explicit language by the Court-that "the gov- It will be observed that the term "State" is used in ernment, in express terms, is pledged to protect it (slave this provision, as well as in various other parts of the Conproperty in all future time, if the slave escapes from his stitution, in the same sense in which it was used by Mr. owner. This is the only contingency, according to the Jefferson in his plan for establishing governments for the plain reading of the Constitution, as authoritatively inter- new States in the territory ceded and to be ceded to the preted by the Supreme Court, in which the Federal Gov- United States; and by Mr. Madison in his proposition te ernment is authorized, required, or permitted to interfere confer on Congress power" to institute temporary governwith Slavery in the States or Territories; and in that casements for the new States arising in the unappropriated only for the purpose "of guarding and protecting the lands of the United States," to designate the political owner in his rights" to reclaim his slave property. In all communities, Territories as well as States, within the doother respects slaves stand on the same footing with all minion of the United States. The word "States" is used other property-"the Constitution makes no distinction in the same sense in the ordinance of the 18th July, 1787, between that description of property and other property for the government of the Territory northwest of the river owned by a citizen;" and "no word can be found in the Ohio, which was passed by the remnant of the Congress of Constitution which gives Congress a greater power over the Confederation, sitting in New York while its most emislave property, or which entitles property of that kind to nent members were at Philadelphia, as delegates to the less protection than property of any other description." Federal Convention, aiding in the formation of the ConstiThis is the basis upon which all rights pertaining to slave tution of the United States. property, either in the States or the Territories, stand under the Constitution as expounded by the Supreme Court in the Dred Scott case.

between them.

Upon this point the Court say:

"Now as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that des

cription of property and other property owned by a citizen, no tribunal acting under the authority of the United States, whether it be legislative, executive or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guaranties which have been provided for the protection of private property against the encroachments of the And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words-too plain to be understood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The

government.

only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights."

Inasmuch as the Constitution has delegated no power to the Federal Government in respect to any other kind of property belonging to the citizen-neither introducing, establishing, prohibiting, nor excluding it anywhere within the dominion of the United States, but leaves the owner thereof perfectly free to remove into any State or Territory, and carry his property with him, and hold the same subject to the local law, and relying upon the local authorities for protection, it follows, according to the decision of the Court, that slave property stands on the same footing, is entitled to the same rights and immunities, and, in like manner, is dependent upon the local authorities and laws for protection.

The Court refer to that clause of the Constitution which provides for the rendition of fugitive slaves as their authority for saying that "the right of property in slaves is distinctly and expressly affirmed in the Constitution." By reference to that provision, it will be seen that, while the word "slaves" is not used, still the Constitution not

only recognizes the right of property in slaves, as stated by the Court, but explicitly states what class of persons shall be deemed slaves, and under what laws or authority they may be held to servitude, and under what circumstances fugitive slaves shall be restored to their owners, all in the same section, as follows:

In this sense the word "States" is used in the clause providing for the rendition of fugitive slaves, applicable to all political communities under the authority of the United States, including the Territories as well as the several States of the Union. Under any other construction, the right of the owner to recover his slave would be restricted to the States of the Union, leaving the Territories a secure place of refuge for all fugitives. The same remark is applicable to the clause of the Constitution which provides that " a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on the demand of the executive au thority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." Unless the term State, as used in these provisions of the Constitution, shall be construed to include every distinct political community under the jurisdiction of the United States, and to apply to Territories as well as to the States of the Union, the Territories must become a sanctuary for all the fugitives from service and justice, for all the felons and criminals who shall escape from the several States and seek refuge and immunity in the Territories.

If any other illustration were necessary to show that the political communities which we now call Territories (but which, during the whole period of the Confederation and the formation of the Constitution, were always referred to as "States" or "new States'), are recognized as "States" in some of the provisions of the Constitution, they may be found in those clauses which declare that "no State" shall enter into any "treaty, alli-ing of the amendment offered by the Senator from Mississippi. "I am not perfectly sure that I comprehend he full meanance, or confederation; grant letters of marque and re- If I do, I think he accomplishes nothing by striking out the prisal; coin money; emit bills of credit; make anything clause now in the bill and inserting that which he proposes to but gold and silver coin a tender in payment of debts; insert. The clause now in the bill is, that the Territorial pass any bill of attainder, e post facto law, or law im- legislation shall not extend to anything respecting African pairing the obligation of contracts, or grant any title of Slavery within the Territory. The effect of retaining the clause as reported by the Committee will be this: That if in nobility." It must be borne in mind that in each of these cases ished by the Territorial Legislature; and if in any of the Terany of the Territories Slavery now exists, it shall not be abol where the power is not expressly delegated to Congress ritories Slavery does not now exist, it cannot be introduced by the prohibition is not imposed upon the Federal Govern- the Territorial Legislature. The clause itself was introduced ment, but upon the States. There was no necessity for into the bill by the Committee for the purpose of tying up the any such prohibition upon Congress or the Federal Go-hands of the Territorial Legislature in respect to legislating vernment, for the reason that the omission to delegate any very. It was intended to leave the legislation and the law of at all, one way or the other, upon the subject of African Slasuch powers in the Constitution was of itself a prohibition, the respective Territories in the condition in which the Act and so declared in express terms by the 10th amendment, will find them. I stated on a former occasion that I did not, which declares that "the powers not delegated to the in Committee, vote for the amendment to insert the clause, United States by the Constitution, nor prohibited by it to though it was proposed to be introduced by a majority of the the States, are reserved to the States respectively, or to Committee. I attached very little consequence to it at the the people." time, and I attach very little to it at present. It is perhaps of stand the measure proposed by the Senator from Mississippi, no particular importance whatever. Now, sir, if I underit aims at the same thing. I do not understand him as proposing that if any one shall carry slaves into the Territoryalthough by the laws of the Territory he cannot take them should be so tied as to prevent it saying he shall not enjoy the there-the Legislative hands of the Territorial government fruits of their labor. If the Senator from Mississippi means to say that"

Mr. Davis:

Hence it would certainly be competent for the States and Territories to exercise these powers but for the prohibition contained in those provisions of the Constitution; and inasmuch as the prohibition only extends to the "States," the people of the "Territories" are still at liberty to exercise them, unless the Territories are included within the term States, within the meaning of these provisions of the Constitution of the United States.

It only remains to be shown that the Compromise Measures of 1850 and the Kansas-Nebraska Act of 1854 are in perfect harmony with, and a faithful embodiment of, the principles herein enforced. A brief history of these measures will disclose the principles upon which they are

Counded.

On the 29th of January, 1850, Mr. Clay introduced into the Senate a series of resolutions upon the Slavery question which were intended to form the basis of the subsequent legislation upon that subject. Pending the discussion of these resolutions, the chairman of the Committee on Territories prepared and reported to the Senate, on the 25th of March, two bills-one for the admission of California into the Union of States, and the other for the organization of the Territories of Utah and New Mexico, and for the adjustment of the disputed boundary with the State of Texas, which were read twice and printed for the use of the Senate. On the 19th of April a select committee of thirteen was appointed, on motion of Mr. Foote, of Mississippi, of which Mr. Clay was made chairman, and to which were referred all pending propositions relating to the slavery question. On the 8th of May, Mr. Clay, from the select committee of thirteen, submitted to the Serate an elaborate report covering all the points in controversy, accompanied by a bill which is usually known as the "Omnibus Bill." By reference to the provisions of this bill, as it appears on the files of the Senate, it will be seen that it is composed of the two printed bills which had been reported by the Committee on Territories on the 25th of March previous; and that the only material change in its provisions, involving an important and essential principle, is to be found in the tenth section, which prescribes and defines the powers of the Territorial Legislature. In the bill, as reported by the Committee on Territories, the legislative power of the Territories extended to" all rightful subjects of legislation consistent with the Constitution of the United States," without excepting African Slavery; while the bill, as reported by the committee of thirteen, conferred the same power on the Territorial Legislature, with the exception of African Slavery. This portion of the section in its original form read thus:

"And be it further enacted that the Legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the

provisions of this act; but no law shall be passed interfering

with the primary disposition of the soil."

To which the committee of thirteen added these words: "Nor in respect to African Slavery." When the bill came up for action on the 15th of May, Mr. Davis, of Mississippi, said:

"I offer the following amendment. To strike out, in the sixth line of the tenth section, the words 'in respex to African Slavery,' and insert the words, with those rights of property growing out of the institution of African Slavery as it exists in any of the States of the Union. The object of the amendment is to prevent the Territorial Legislature from legislating against the rights of property growing out of the institution of Slavery. It will leave to the Territorial Legislatures those rights and powers which are essentially necessary,

not only to the preservation of property, but to the peace of the Territory. It will leave the right to make such police regulations as are necessary to prevent disorder, and which secure its beneficial use to its owner. With this brief exwill be absolutely necessary with such property as that ic planation I submit the amendment."

Mr. Clay, in reply to Mr. Davis, said:

[blocks in formation]

Territory, which act rests upon the basis of our right to make
"We are giving, or proposing to give, a government to a
such provision. We suppose we have a right to confer
power. If so, we may mark out the limit to which they may
legislate, and are bound not to confer power beyond that
which exists in Congress. If we give them power to legislate
beyond that, we commit a fraud or usurpation, as it may be
done openly, covertly, or indirectly."
To which Mr. Clay replied:

Now, sir, I only repeat what I have had occasion to say before, that while I am willing to stand aside and make no legislative enactment one way or the other-to lay off the Territo ries without the Wilmot Proviso, on the one hand, with which I understand we are threatened, or without an attempt to introduce a clause for the introduction of Slavery into the Territories-while I am for rejecting both the one and the other, I am content that the law as it exists shall prevail; and if there be any diversity of opinion as to what it means, I am willing that it shall be settled by the highest judicial authority must say that I cannot vote for any express provision recognizof the country. While I am content thus to abide the result, I ing the right to carry slaves there."

To which Mr. Davis rejoined, that—

hope we have something of the same character of the hardy "It is said our Revolution grew out of a preamble; and 1 men of the Revolution who first commenced the war with the

mother country-something of the spirit of that bold Yankee who said he had a right to go to Concord, and that go he would; and who, in the maintenance of that right, met his death at the hands of a British sentinel. Now, sir, if our right to carry slaves into these Territories be a constitutional right, it is our first duty to maintain it."

suggestion of friends, modified his amendment from time Pending the discussion which ensued, Mr. Davis, at the to time, until it assumed the following shape:

"Nor to introduce or exclude African Slavery. Provided that nothing herein contained shall be construed so as to prevent said Territorial Legislature from passing such laws as may be necessary for the protection of the rights of property of every kind which may have been, of the United States, held in or introduced into said Terrior may be hereafter, conformably to the Constitution tory."

To which, on the same day, Mr. Chase, of Ohio, offered the following amendment:

"Provided further, That nothing herein contained shall be construed as authorizing or permitting the introduction of

« PreviousContinue »