Chap. I.

ascribed to Territorial Legislatures, which are subordinate and temporary; and that slaves were a species of property. The conclusion from these premises was, that slavery ought to be recognised and protected by law in all the Territories up to the moment at which they were converted into States. The most determined adversaries of this view arrived, by a different course of reasoning, at a diametrically opposite conclusion. Freedom, they said, was, according to the principles of the Constitution, the normal condition of the Territories; slavery had and could have no legal existence there, being a status created entirely by the local laws of some particular States; and, where it did not exist, Congress had no power to permit or uphold it, nor, of course, had any Territorial Legislature. These conflicting views, the former of which was affirmed by the Supreme Court of the United States in the Dred Scott case,1 were not distinctly asserted in the earlier stages of the contest; but on each recurrence of

1 "The United States, under its present Constitution, cannot acquire territory to be held as a colony to be gverned at its will and pleasure. But it may acquire territory which, at the time, has not a population that fits it to become a State, and may govern it as a territory until it has a population which, in the judgment of Congress, entitles it to be admitted as a State of the Union. During the time it remains a territory Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United States, and may establish a Territorial Government; and the form of this local Government must be regulated by the discretion of Congress, but with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States, in respect to their rights of persons or rights of property. The territory thus acquired is acquired by the people of the United States for their common and equal benefit; and every citizen has a right to take with him into the territory any article of property, including his slaves, which the Constitution recognizes as property, and pledges the Federal Government for its protection."Dred Scott v. Sandford, Howard's R., xix, 395.

The clause of the Constitution on which the question turned is Art. IV, § iii, 1, 2, "New States may be admitted by the Congress into this Union. The 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."

the question they were advanced with greater sharpness Chap. I. and precision. Four times it became formidable; each time-the last perhaps excepted-it was composed by an arrangement which had more or less the character of a compromise. The Ordinance passed on the 13th June, 1787, by the Congress of the Confederation, for regulating the government of the waste lands then called the North-Western Territory, now forming Ohio, Indiana, Illinois, Michigan, and Wisconsin, prohibited slavery within that region; but it provided, in terms nearly the same as the general clause which was afterwards embodied in the Constitution (Art. IV, sec. ii, 3) that should any person escape into the same "from whom labour or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid." The Missouri Compromise, in 1820, extended the same prohibition, guarded by the same proviso, to so much of the tract between the Mississippi and the Rocky Mountains (then called the Missouri Territory)

1 This question was twice dealt with by the Continental Congress—in 1784, when an Ordinance was adopted extending in terms over the whole unoccupied territory above the 31st parallel north latitude, and including tracts not at that time ceded by North Carolina and Georgia, which now form the States of Alabama, Mississippi, and Tennessee, and again in 1787. The Ordinance of 1784, as drawn by the Committee of Congress, of which Jefferson was the principal member, contained the following clause:

66

That after the year 1800 of the Christian era there shall be neither slavery nor involuntary servitude in any of the said States, otherwise than in punishment of crimes whereof the party shall have been duly convicted to have been personally guilty."

"The votes in Congress," says Mr. Greeley, "were 16 for Mr. Jefferson's interdiction of slavery to 7 against it, and the States stood recorded 6 for it to 3 against it; but the Articles of Confederation required an affirmative vote of a majority of all the States to sustain a proposition, and thus the restriction failed through the absence of a member from New Jersey, rendering the vote of that State null for want of a quorum." In the Ordinance of 1787 the clause was inserted, but with the addition mentioned in the text. This Ordinance was adopted and re-enacted, with the clause unaltered, by the first Congress of the Union in 1789.

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as lay to the north of the parallel of 36° 30′ north latitude-in other words, above a prolongation of the line which divides Virginia and Kentucky from South Carolina and Tennessee, excluding, however, the new State of Missouri itself, which lies altogether north of the line and indeed extends nearly to the latitude of New York. But the annexation of Texas, and the acquisition, by the Oregon Treaty with Great Britain. and by conquest and purchase from Mexico, of the whole region west of the Rocky Mountains, caused the struggle to be again and again renewed; and the adoption, in 1850, of Mr. Clay's suggestion that the settlers in New Mexico and Utah should be permitted. to choose for themselves between the admission and the prohibition of slavery, coupled, as it was, with the enactment of a very stringent Fugitive Slave Law, shook, if it did not displace, the precarious fabric of the Missouri Compromise. That arrangement was completely overthrown in 1854, when a part of the district which it embraced came before Congress for organization into two new Territories. The Compromise, after an obstinate struggle, was formally declared inoperative and void, the prohibition was cancelled, and the same option which Clay's Act had given to New Mexico and Utah was extended to Kansas and Nebraska.

In this long warfare the final advantage rested with the South. If a line be drawn from Delaware Bay to the Ohio, and along the course of that river to its confluence with the Mississippi, ascending the Mississippi and Missouri as far as the northernmost limit of Iowa, thence carried to the crest of the Rocky Mountains, and beyond them to the boundary of California, we shall see that the whole dominion of the Republic south of that line was either occupied by Slave States or by express declaration thrown open to slavery should the inhabitants think fit. Indeed, the decision in the Dred Scott case had virtually rivetted the institution on all the Territories

of the Union so long as they should remain in the condition of Territories.

Yet the apparent magnitude of these successive conquests far exceeded their real value. Throughout the vast tracts of land which had been the chief subjects of dispute, there was but little on which slave-labour could be profitably employed; and though, in the neighbourhood of the planting States, negroes might be bred for sale, this had its geographical limits, which were soon reached. In West Virginia and those counties of Kentucky which border on the Ohio, slaves were few. Kansas, after a desperate internal struggle, finally organized herself as a free-labour State; and the adoption of Clay's Compromise in respect of New Mexico was advocated by Mr. Webster on the express ground that the character of the country, composed of high barren mountains and deep valleys with some narrow strips of river land rendered cultivable only by irrigation, made it impossible. that slavery should ever flourish there. In fact, although the Legislature of New Mexico passed in 1859 very stringent laws for the protection of slave property, there were at the date of the Census of 1860 no slaves within that Territory. In Utah there were 29, in Nebraska 15, in Kansas 2, in Nevada, Washington, Colorado, and Dakota none.1 It was clear also that, whilst these victories, such as they were, promised little in the way of

1 "Mr. Seward made another speech in the Senate on the 2nd instant. He expressed perfect confidence that the Union would be preserved (he would not admit that it was already impaired and required to be restored), and he pointed out with considerable effect the unpractical character of the question which is nominally at all events the cause of the dispute. This question is that of the 'territories' of the United States. What, Mr. Seward asked, is the extent of the territories which remain after the admission of California, of Oregon, of Kansas? 1,063,307 square miles, an area twenty-four times that of the State of New York, the largest of the old and fully developed States. How many slaves are there in it? How many have been brought into it during the twelve years in which it has been not only relinquished to slavery, but in which the Supreme Court and the Legislature and the Administration have

Chap. I.

Chap. I.

profit, not much more was to be expected from them in the way of political power. Wherever slavery proved unprofitable, the interests and influence of the white population must in the long run add their weight to the other scale. To retard this process might be possible, but not to arrest or reverse it. Outnumbered decisively and irrevocably in the House of Representatives, which is elected on the basis of population, the South struggled to keep its hold on the Senate, which is elected by States. The admission of Free and Slave States to the Union went on for a considerable time nearly at an even pace, and it was this which gave such extraordinary keenness to the contest for Missouri, Kansas, and the Valley of the Platte. But the endeavour to cut new Slave States out of countries in which slavery could not strike root was destined to fail; the balance, long preserved, was at length destroyed, and the future offered no prospect of its restoration.1

Meanwhile the struggle itself, its many vicissitudes, the heat and pertinacity with which it was carried on, the violences of speech and action by which it was occasionally sullied even within the walls of Congress, were gradually dividing the nation into hostile camps and embittering

maintained, protected, defended, and guaranteed slavery there? Twentyfour African slaves-one slave for every 24,000 square miles."-Lord Lyons to Lord John Russell, 4th February, 1861.

"It is true," says Mr. Pollard, speaking of the interest which the South had in passing the Act which cancelled the Missouri Compromise, "it is true that her Representatives in Congress were well aware that under the operation of the new Act their constituents could expect to obtain but little, if any, new accessions of Slave territory; while the North would necessarily, from the force of circumstances, secure a number of new States in the North-West, then the present direction of our new settlements. But, viewed as an act of proscription against her, the Missouri Compromise was justly offensive to the South, and its abrogation in this respect strongly recommended itself to her support."Pollard's Southern History of the War, Richmond, 1862 (reprinted at New York, 1863), p. 20.

1 The progressive increase in the representation of the Free States in