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In 1787, still before the Constitution, but while the convention was in session framing it, and while the Northwestern Territory still was the only Territory owned by the United States, the same question of prohibiting slavery in the Territory again came before the Congress of the Confederation; and two more of the "thirty-nine" who afterward signed the Constitution. were in that Congress, and voted on the question. They were William Blount and William Few; and they both voted for the prohibition-thus showing that in their understanding no line dividing local from Federal authority, nor anything else, properly forbade the Federal Government to control as to slavery in Federal territory. This time the prohibition became a law, being part of what is now well known as the ordinance of '87.
The question of Federal control of slavery in the Territories seems not to have been directly before the convention which framed the original Constitution; and hence it is not recorded that the "thirty-nine," or any of them, while engaged on that instrument, expressed any opinion on that precise question.
In 1789, by the first Congress which sat under the Constitution, an act was passed to enforce the ordinance of '87, including the prohibition of slavery in the Northwestern Territory. The bill for this act was reported by one of the "thirty-nine❞— Thomas Fitzsimons, then a member of the House of Representatives from Pennsylvania. It went through all its stages without a word of opposition, and finally passed both branches without ayes and nays, which is equivalent to a unanimous passage. In this Congress there were sixteen of the thirty-nine Fathers who framed the original Constitution. They were John Langdon, Nicholas Gilman, William S. Johnson, Roger Sherman, Robert Morris, Thomas Fitzsimons, William Few, Abraham Baldwin, Rufus King, William Paterson, George Clymer, Richard Bassett, George Read, Pierce Butler, Daniel Carroll, and James Madison.
This shows that, in their understanding, no line dividing local from Federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the Federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.
Again, George Washington, another of the "thirty-nine," was then President of the United States, and as such approved and signed the bill, thus completing its validity as a law, and thus showing that, in his understanding, no line dividing local from Federal authority, nor anything in the Constitution, for
bade the Federal Government to control as to slavery in Federal territory.
No great while after the adoption of the original Constitution North Carolina ceded to the Federal Government the country now constituting the State of Tennessee; and a few years later Georgia ceded that which now constitutes the States of Mississippi and Alabama. In both deeds of cession it was made. a condition by the ceding States that the Federal Government should not prohibit slavery in the ceded country. Besides this, slavery was then actually in the ceded country. Under these circumstances Congress, on taking charge of these countries, did not absolutely prohibit slavery within them. But they did interfere with it-take control of it even there, to a certain extent. In 1798 Congress organized the Territory of Mississippi. In the act of organization they prohibited the bringing of slaves into the Territory from any place without the United States, by fine, and giving freedom to slaves so brought. This act passed both branches of Congress without yeas and nays. In that Congress were three of the "thirty-nine" who framed the original Constitution. They were John Langdon, George Read, and Abraham Baldwin. They all probably voted for it. Certainly they would have placed their opposition to it upon record if, in their understanding, any line dividing local from federal authority, or anything in the Constitution, properly forbade the Federal Government to control as to slavery in Federal territory.
In 1803 the Federal Government purchased the Louisiana country. Our former territorial acquisitions came from certain of our own States; but this Louisiana country was acquired from a foreign nation. In 1804 Congress gave a territorial organization to that part of it which now constitutes the State of Louisiana. New Orleans, lying within that part, was an old and comparatively large city. There were other considerable towns and settlements, and slavery was extensively and thoroughly intermingled with the people. Congress did not, in the Territorial Act, prohibit slavery; but they did interfere with it. -take control of it-in a more marked and extensive way than they did in the case of Mississippi. The substance of the provision therein made in relation to slaves was:
1st. That no slave should be imported into the Territory from foreign parts.
That no slave should be carried into it who had been
1 The cession by North Carolina was accepted by Congress in 1790; that by Georgia in 1798.
imported into the United States since the first day of May, 1798. 3d. That no slave should be carried into it, except by the owner, and for his own use as a settler; the penalty in all the cases being a fine upon the violator of the law, and freedom to the slave.
This act also was passed without ayes and nays. In the Congress which passed it there were two of the "thirty-nine." They were Abraham Baldwin and Jonathan Dayton. As stated in the case of Mississippi, it is probable they both voted for it. They would not have allowed it to pass without recording their opposition to it if, in their understanding, it violated either the line properly dividing local from federal authority, or any provision of the Constitution.
In 1819-20 came and passed the Missouri question. Many votes were taken, by yeas and nays, in both branches of Congress, upon the various phases of the general question. Two of the "thirty-nine"-Rufus King and Charles Pinckney-were members of that Congress. Mr. King steadily voted for slavery prohibition and against all compromises, while Mr. Pinckney as steadily voted against slavery prohibition and against all compromises. By this Mr. King showed that, in his understanding, no line dividing local from Federal authority, nor anything in the Constitution, was violated by Congress prohibiting slavery in Federal territory; while Mr. Pinckney, by his votes, showed that, in his understanding, there was some sufficient reason for opposing such prohibition in that case.
The cases I have mentioned are the only acts of the "thirtynine," or of any of them, upon the direct issue, which I have been able to discover.
To enumerate the persons who thus acted as being four in 1784, two in 1787, seventeen in 1789, three in 1798, two in 1804, and two in 1819-20, there would be thirty of them. But this would be counting John Langdon, Roger Sherman, William Few, Rufus King, and George Read each twice, and Abraham Baldwin three times. The true number of those of the "thirtynine" whom I have shown to have acted upon the question, which, by the text, they understood better than we, is twentythree, leaving sixteen not shown to have acted upon it in any
Here, then, we have twenty-three out of our thirty-nine fathers "who framed the Government under which we live," who have, upon their official responsibility and their corporal oaths, acted upon the very question which the text affirms they "understood just as well as, and even better than, we do now";
and twenty-one of them-a clear majority of the whole "thirtynine"-so acting upon it as to make them guilty of gross political impropriety and wilful perjury if, in their understanding, any proper division between local and Federal authority, or anything in the Constitution they had made themselves, and sworn to support, forbade the Federal Government to control as to slavery in the Federal Territories. Thus the twenty-one acted; and, as actions speak louder than words, so actions under such responsibility speak still louder.
Two of the twenty-three voted against congressional prohibition of slavery in the Federal Territories, in the instances in which they acted upon the question. But for what reasons they so voted is not known. They may have done so because they thought a proper division of local from Federal authority, or some provision or principle of the Constitution, stood in the way; or they may, without any such question, have voted against the prohibition on what appeared to them to be sufficient grounds of expediency. No one who has sworn to support the Constitution can conscientiously vote for what he understands to be an unconstitutional measure, however expedient he may think it; but one may and ought to vote against a measure which he deems constitutional if, at the same time, he deems it inexpedient. It, therefore, would be unsafe to set down even the two who voted against the prohibition as having done so because, in their understanding, any proper division of local from federal authority, or anything in the Constitution, forbade the Federal Government to control as to slavery in Federal territory.
The remaining sixteen of the "thirty-nine," so far as I have discovered, have left no record of their understanding upon the direct question of federal control of slavery in the Federal Territories. But there is much reason to believe that their understanding upon that question would not have appeared different from that of their twenty-three compeers, had it been manifested at all.
For the purpose of adhering rigidly to the text I have purposely omitted whatever understanding may have been manifested by any person, however distinguished, other than the thirty-nine fathers who framed the original Constitution; and, for the same reason, I have also omitted whatever understanding may have been manifested by any of the "thirty-nine" even on any other phase of the general question of slavery. If we should look into their acts and declarations on those other phases, as the foreign slave-trade, and the morality and policy of slavery
generally, it would appear to us that on the direct question of federal control of slavery in Federal Territories the sixteen, if they had acted at all, would probably have acted just as the twenty-three did. Among that sixteen were several of the most noted antislavery men of those times-as Dr. Franklin, Alexander Hamilton, and Gouverneur Morris-while there was not one now known to have been otherwise, unless it may be John Rutledge, of South Carolina.
The sum of the whole is that, of our thirty-nine fathers who framed the original Constitution, twenty-one-a clear majority of the whole certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the Federal Territories; while all the rest had probably the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question "better than we."
But, so far, I have been considering the understanding of the question manifested by the framers of the original Constitution. In and by the original instrument a mode was provided for amending it; and, as I have already stated, the present frame of "the Government under which we live" consists of that original, and twelve amendatory articles framed and adopted since. Those who now insist that federal control of slavery in Federal Territories violates the Constitution point us to the provisions which they suppose it thus violates; and, as I understand, they all fix upon provisions in these amendatory articles, and not in the original instrument. The Supreme Court, in the Dred Scott case, plant themselves upon the fifth amendment, which provides that no person shall be deprived of "life, liberty, or property without the due process of law"; while Senator Douglas and his peculiar adherents plant themselves upon the tenth amendment, providing that "the powers not delegated to the United States by the Constitution" "are reserved to the States respectively, or to the people."
Now, it so happens that these amendments were framed by the first Congress which sat under the Constitution-the identical Congress which passed the act, already mentioned, enforcing the prohibition of slavery in the Northwestern Territory. Not only was it the same Congress, but they were the identical, same individual men who, at the same session, and at the same time within the session, had under consideration, and in progress toward maturity, these constitutional amendments, and this act prohibiting slavery in all the territory the nation then owned.