|

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.'

66

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:

"No person heid to service or labor in one State, under the any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

The question recurs, then, if the Constitution does estab-laws thereof, escaping into another, shall, in consequence of lish Slavery in Kansas or any other Territory beyond the power of the people to control it by law, how can the conclusion be resisted that Slavery is established in like manner 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 stitution of the United States, nor by the laws thereof, nor one State, under the laws thereof"-not under the Conby virtue of any federal authority whatsoever, but under labor may be due. the laws of the particular State where such service or

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.

between them.

Upon this point the Court say:

"Now as we have already said in an earlier part of this opinion, upon a diferent point, the right of property in a slave is distinctly and expressly allirmed in the Constitution. And if the Constitution recognizes the right of property of the master in a slave, and inakes no distinction between that description 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 only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights."

government.

owner."

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 Territories. Northern States united in giving a unanimous vote in the 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 government, in express terms, is pledged to protect it (slave property, in all future time, if the slave escapes from his This is the only contingency, according to the plain reading of the Constitution, as authoritatively interpreted by the Supreme Court, in which the Federal Government is authorized, required, or permitted to interfere with 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 owner in his rights" to reclaim his slave property. In all other respects slaves stand on the same footing with all other property-" the Constitution makes no distinction between that description of property and other property owned by a citizen;" 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." This is the basis upon which all rights pertaining to slave property, either in the States or the Territories, stand under the Constitution as expounded by the Supreme Court in the Dred Scott case.

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

It will be observed that the term "State" is used in this provision, as well as in various other parts of the Constitution, in the same sense in which it was used by Mr. Jefferson in his plan for establishing governments for the new States in the territory ceded and to be ceded to the United States; and by Mr. Madison in his proposition te confer on Congress power" to institute temporary governlands of the United States," to designate the political communities, Territories as well as States, within the dominion of the United States. The word "States" is used in the same sense in the ordinance of the 13th July, 1787, for the government of the Territory northwest of the river Ohio, which was passed by the remnant of the Congress of the Confederation, sitting in New York while its most eminent members were at Philadelphia, as delegates to the Federal Convention, aiding in the formation of the Constitution of the United States.

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 authority 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.

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 will be absolutely necessary with such property as that to secure its beneficial use to its owner. With this brief explanation I submit the amendment."

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

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. ance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, e post facto law, or law impairing the obligation of contracts, or grant any title of nobility."

"I am not perfectly sure that I comprehend he full meanIf I do, I think he accomplishes nothing by striking out the clause now in the bill and inserting that which he proposes to insert. The clause now in the bill is, that the Territorial legislation shall not extend to anything respecting African Slavery within the Territory. The effect of retaining the clause as reported by the Committee will be this: That if in any of the Territories Slavery now exists, it shall not be abolished by the Territorial Legislature; and if in any of the Territories Slavery does not now exist, it cannot be introduced by the Territorial Legislature. The clause itself was introduced into the bill by the Committee for the purpose of tying up the at all, one way or the other, upon the subject of African Slavery. It was intended to leave the legislation and the law of the respective Territories in the condition in which the Act will find them. I stated on a former occasion that I did not, in Committee, vote for the amendment to insert the clause, though it was proposed to be introduced by a majority of the Committee. I attached very little consequence to it at the time, and I attach very little to it at present. It is perhaps of no particular importance whatever. Now, sir, if I understand the measure proposed by the Senator from Mississippi, it 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 there the Legislative hands of the Territorial government should be so tied as to prevent it saying he shall not enjoy the fruits of their labor. If the Senator from Mississippi means to say that-"

It must be borne in mind that in each of these cases where the power is not expressly delegated to Congress the prohibition is not imposed upon the Federal Government, but upon the States. There was no necessity for any such prohibition upon Congress or the Federal Go-hands of the Territorial Legislature in respect to legislating verament, for the reason that the omission to delegate any such powers in the Constitution was of itself a prohibition, and so declared in express terms by the 10th amendment, which declares that "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." 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

Founded.

Mr. Davis:

"I do mean to say it."
Mr. Clay:

"If the object of the Senator is to provide that slaves may be introduced into the Territory contrary to the lex loci, and, being introduced, nothing shall be done by the Legislature to impair the rights of owners to hold the slaves thus brought contrary to the local laws, I certainly cannot vote for it. doing so I shall repeat again the expression of opinion which announced at an early period of the session."

In

Here we find the line distinctly drawn between those who contended for the right to carry slaves into the Territories and hold them in defiance of the local law, and those who contended that such right was subject to the local law of the Territory. During the progress of the discussion on the same day, Mr. Davis, of Mississippi, said:

"We are giving, or proposing to give, a government to a Territory, which act rests upon the basis of our right to make such provision. We suppose we have a right to confer 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:

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 Miss-power. If so, we may mark out the limit to which they may issippi, 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:

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 of the country. While I am content thus to abide the result, I willing that it shall be settled by the highest judicial authority must say that I cannot vote for any express provision recogniz ing the right to carry slaves there."

To which Mr. Davis rejoined, that

"It is said our Revolution grew out of a preamble; and 1 hope we have something of the same character of the hardy 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."

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

"Nor to introduce or exclude African Slavery. Pro vided that nothing herein contained shall be construed s 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, or may be hereafter, conformably to the Constitution of the United States, held in or introduced into said Territory.' ""

"I offer the following amendment. To strike out, in the sixth line of the tenth section, the words in respect 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 the following amendment: against the rights of property growing out of the institution of Slavery. .. It will leave to the Territorial Legisla

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

"Provided further, That nothing herein contained shall be

tures those rights and powers which are essentially necessary, construed as authorizing or permitting the introduction of

lavery or the holding of persons as property within said Teritory."

Upon these amendments-the one affirming the Proslavery, and the other the Anti-Slavery position, in opposition to the right of the people of the Territories to decide the Slavery question for themselves-Mr. Douglas said: | "The position that I have ever taken has been, that this, and all other questions relating to the domestic affairs and domestic policy of the Territories, ought to be left to the decision of the people themselves; and that we ought to be content with whatever way they may decide the question, because they have a much deeper interest in these matters than we have, and know much better what institutions suit them than we, who have never been there, can decide for them. I would therefore have much preferred that that portion of the bill should have remained as it was reported from the Committee oa Territories, with no provision on the subject of Slavery, the one way or the other. And I do hope yet that that clause will be stricken out. I am satisfied, sir, that it gives no strength to the bill. I am satisfied, even if it did give strength to it, that it ought not to be there, because it is a violation of principle-a violation of that principle upon which we have all rested our defense of the course we have taken on this question. I do not see how those of us who have taken the position we have taken-that of non-intervention-and have argued in favor of the right of the people to legislate for themselves on this question, can support such a provision without abandoning all the arguments which we used in the Presidential campaign in the year 1818, and the principles set forth by the honorable Senator from Michigan (Mr. Cass) in that letter which is known as the 'Nicholson Letter.' We are required to abandon that platform; we are required to abandon those principles, and to stultify ourselves, and to adopt the opposite doctrine-and for what? In order to say that the people of the Territories shall not have such institutions as they shall deem adapted to their condition and their wants. I do not see, sir, how such a provision can be acceptable either to the people of the North or the South."

Upon the question of how many inhabitants a Territory should contain before it should be formed into a political community with the rights of self-government, Mr. Doug

las said:

Your

"The Senator from Mississippi puts the question to me as to what number of people there must be in a Territory before this right to govern themselves accrues. Without determining the precise number, I will assume that the right ought to accrue to the people at the moment they have enough to constitute a government; and, sir, the bill assumes that there are people enough there to require a government, and enough to authorize the people to govern themselves. bill concedes that a representative government is necessarya government founded upon the principles of popular sovereignty and the right of a people to enact their own laws; and for this reason you give them a Legislature composed of two branches, like the Legislatures of the different States and Territories of the Union. You confer upon them the right to legislate on all rightful subjects of legislation,' except negroes. Why except negroes? Why except African Slavery? If the inhabitants are competent to govern themselves upon all other subjects, and in reference to all other descriptions of property-if they are competent to make laws and determine the relations between husband and wife, and parent and child, and municipal laws affecting the rights and property of citizens generally, they are competent also to make laws to govern themselves in relation to Slavery and

negroes."

With reference to the protection of property in slaves, Mr. Douglas said:

Which was rejected-Yeas, 23; Nays, 33.

After various other amendments had been offered and voted upon-all relating to the power of the Territorial Legislature over Slavery-Mr. Douglas moved to strike out all relating to African Slavery, so that the Territorial Legislature should have the same power over that question as over all other rightful subjects of legislation consistent with the Constitution-which amendment was rejected. After the rejection of this amendment, the discussion was renewed with great ability and depth of feeling in respect to the powers which the Territorial Legislature should ex ercise upon the subject of Slavery. Various propositions were made, and amendments offered and rejected-all relating to this one controverted point-when Mr. Norris, of New-Hampshire, renewed the motion of Mr. Douglas, to strike out the restriction on the Territorial Legislature in respect to African Slavery. On the 31st of July this amendment was adopted by a vote of 32 to 19-restoring this section of the bill to the form in which it was reported from the Committee on Territories on the 25th of March, and conferring on the Territorial Legislature power over "all rightful subjects of legislation consistent with the Constitution of the United States," without excepting African Slavery.

Thus terminated this great struggle in the affirmance of the principle, as the basis of the Compromise Measures of 1850, so far as they related to the organization of the Territories, that the people of the Territories should decide the Slavery question for themselves through the action of their Territorial Legislature.

This controverted question having been definitely settled, the Senate proceeded on the same day to consider the other portions of the bill, and after striking out all except those provisions which provided for the organization of the Territory of Utah, ordered the bill to be engrossed for a third reading, and on the next day-August 1, 1850-the bill was read a third time, and passed.

On the 14th of August the bill for the organization of the Territory of New-Mexico was taken up, and amended so as to conform fully to the provisions of the Utah Act in respect to the power of the Territorial Legislature over "all rightful subjects of legislation consistent with the Constitution," without excepting African Slavery, and was ordered to be engrossed for a third reading without a division; and on the next day the bill was passed-Yeas, 27; Nays, 10.

These two bills were sent to the House of Representatives, and passed that body without any alteration in respect to the power of the Territorial Legislatures over the subject of Slavery, and were approved by President Fillmore, September 9, 1850.

In 1852, when the two great political parties-Whig and Democratic-into which the country was then divided, assembled in National Convention at Baltimore for the purpose of nominating candidates for the Presidency and Vice-Presidency, each Convention adopted and affirmed the principles embodied in the Compromise Measures of 1850 as rules of action by which they would be governed in all future cases in the organization of Territorial governments and the admission of new States.

On the 4th of January, 1854, the Committee on Territo"I have a word to say to the honorable Senator from Mis-ries, of the Senate, to which had been referred a bill for sissippi (Mr. Davis). He insists that I am not in favor of pro- the bill back, with an amendment, in the form of a substithe organization of the Territory of Nebraska, reported tecting property, and that his amendment is offered for the purpose of protecting property under the Constitution. Now, tute for the entire bill, which, with some modifications, is sir, I ask you what authority he has for assuming that? Do I now known on the statute book as the "Kansas-Nebraska not desire to protect property because I wish to allow the Act," accompanied by a Report explaining the principles people to pass such laws as they deem proper respecting upon which it was proposed to organize those Territories, their rights to property without any exception? He might just as well say that I am opposed to protecting property in as follows: merchandise, in steamboats, in cattle, in real estate, as to say that I am opposed to protecting property of any other description; for I desire to put them all on an equality, and allow the people to make their own laws in respect to the whole of them."

Mr. Cass said (referring to the amendments offered by Mr. Davis and Mr. Chase):

"Now, with respect to the amendments. I shall vote against them both; and then I shall vote in favor of striking out the restriction in the bill upon the power of the Territorial governments. I shall do so upon this ground. I was opposed, as the honorable Senator from Kentucky has declared he was, to the insertion of this prohibition by the Committee. I consider it inexpedient and unconstitutional. I have already stated my belief that the rightful power of internal legislation in the Territories belongs to the people."

After further discussion the vote was taken by yeas and nays on the amendment of Mr. Chase, and decided in the negative: Yeas, 25; Nays, 30. The question recurring on the amendment of Mr. Davis, of Mississippi, it was also rejected: Yeas, 25; Nays, 30. Whereupon Mr. Seward offered the following amendment:

"Neither Slavery nor involuntary servitude, otherwise th an by conviction for crime, shall ever be allowed in either of said Territories of Utah and New Mexico.'

"The principal amendments which your Committee deem it their duty to commend to the favorable action of the Senate, in a special report, are those in which the principles established by the Compromise Measures of 1850, so far as they are applicable to territorial organizations, are proposed to be affirmed new Territory. The wisdom of those measures is attested, and carried into practical operation within the limits of the not less by their salutary and beneficial effects in allaying sectional agitation and restoring peace and harmony to an irritated and distracted people, than by the cordial and almost universal approbation with which they have been received and sanctioned by the whole country.

"In the judgment of your Committee, those measures were intended to have a far more comprehensive and enduring effect than the mere adjustment of the difficulties arising out of the recent acquisition of Mexican territory. They were designed to establish certain great principles, which would not time to come, avoid the perils of a similar agitation, by withonly furnish adequate remedies for existing evils, but, in all drawing the question of Slavery from the Halls of Congress and the political arena, and commtiting it to the arbitrament of those who were immediately interested in and alone responsi action to the settled policy of the Government, sanctioned by ble for its consequences. With a view of conforming their the approving voice of the American people, your Committee have deemed it their duty to incorporate and perpetuate, it their territorial bill, the principles and spirit of those

measures."

To which was added, on motion of Mr. Badger, the fol- Whether the number shall be fixed at ten, fifteen or lowing: