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and the South. I saw, too, that our seeking this new defence implied that the Constitution and laws of our forefathers were insufficient barriers for our protection, and that this seeming confession of weakness and fear on our part had encouraged our adversaries, and stimulated them to fresh attacks. For these, and other reasons which have heretofore been stated, I opposed that rule, and I now recur to it merely to say that subsequent experience has given me additional reason to be satisfied with my course.
That obstacle has been removed, and we are now thrown back to our old position, the original ground of defence occupied by us in the morning of our Government, when the sun of the Constitution, just risen, shed its freshest and purest light over the Union. Thirteen States, till then independent, sovereign and equal, had united to form a government for their common benefit. It was their avowed purpose to create such a system as would confer equal advantages on each State and its citizens. If, in the formation of that government any inequality was produced, (which is not admitted,) that injustice was not the object of the makers, and not intended by them. It was their plain purpose, not only to give each of the States and its citizens equal advantages throughout the Union and its territories, but, out of abundant caution, they provided that every citizen of the United States should in each State be entitled to all the privileges of a citizen of that State; each State and its citizen might claim a fair share, not only of all that the Government had in possession, but of all it had a prospect of acquiring. Not only was each State entitled to the equal protection of such armies and fleets as the Goverment then had, but should new armies be raised, or other ships be built in aftertimes, they were to stand on the same footing. Whatever the government might acquire, simply because it was the government of the United States, it would hold in trust for the use of all the States. For example, when afterwards the lower Mississippi was acquired from France, all the States were equally entitled to the benefits of its navigation. Had Congress excluded the citizens of any State from its use, and had it said to them: "You have no right to complain of this; all the rivers within the limits of of the United State to which you became a party are still open to you. There are the Hudson, the Potomac, the Ohio, and others; we do not exclude you from them; as to this lower Mississippi, you never had any right to its use, and have no grounds to complain of the exclusion." Sucli an act and such reasoning would have been at war with the spirit and against the plain intent of the Constitution. This view, that all the States and their citizens were equally entitled to the advantages of the government, both in possession and in prospect, is so obvious, that I need not dwell on it.
It has been contended, however, that the Constitution intended to limit slavery to the States where it then existed, and to exclude it from the Territories of the United States. Of the thirteen States which created the Constitution, twelve were then slaveholding: Massachusetts alone having, during the war of the Revolution, abolished slavery. The supposition that the States would exclude from all the Territories of the United States an institution which prevailed so generally among
them, seems improbable in itself, and those who maintain it, may well be required to furnish the evidence. There is not, sir, in the whole Constitution any one clause which, either directly or indirectly, favors the idea that slavery was to be limited to the States where it then existed, or to be excluded from any part of the territory of the United States. The idea of identifying slavery with territory, seems never to have entered the minds of the framers of the Constitution. There is, however, Mr. Chairman, another limitation of slavery of a different character, to which I will beg leave to call the attention of the House. The Constitution provides that Congress may, in its discretion, after the year 1808, prohibit the importation of slaves into the United States. The circumstances under which this provision was adopted may properly be brought to mind. It is well known that in the Convention which framed the Constitution there was great difficulty upon the subject of allowing slaves to be represented. After, however, it had been settled, by repeated votes of the Convention, that three-fifths of the slaves should be counted in apportioning representation among the States, Luther Martin, of Maryland, (the subject of the regulation of trade being under consideration,) said that, as three-fifths of the slaves were to be counted in representation, that circumstance might operate as an inducement to the importation of such persons, and he moved to give Congress the power to prohibit or tax the importation of slaves. This motion met strenuous opposition from the members of the Convention from South Carolina and Georgia. They were supported in their opposition by the members from Connecticut and Massachusetts, who insisted that each State should be allowed to import what it pleased; that the morality or wisdom of slavery belonged to the State alone; that it was a political matter, which should be left to it; while, on the other hand, the members from Virginia and Pennsylvania were, with Martin, in favor of giving the power of exclusion. The debate was long and excited. There was also much difficulty on the subject of giving the power to regulate trade by navigation acts. It was contended that the principal inducements which the North had to form the Union, was the benefit which they expected to derive from the exercise of this power; while the Southern members insisted that a vote of two-thirds in Congress should be necessary to give validity to navigation acts; which would, in effect, have rendered the power nugatory. In the midst of these difficulties, which seemed likely to render the attempt to form a common government abortive, Gouverneur Morris, of Pennsylvania, suggested that the subject of the importation of slaves, and that of a tax on exports, and navigation acts, should all be committed, so as to form a bargain between the Northern and Southern States. The report from the committee provided that the importation might be prohibited after the year 1800; but, on the motion of General Pinckney, the time was extended till 1808; the members from New England voting with Maryland and the threeSouthern States; while Virginia, who was said to have then more slaves than she needed, voted against the amendment, with New Jersey, Pennsylvania and Delaware. In this form it was ultimately adopted, as a consideration for the power given the government to pass
navigation acts and regulate trade. It would be out of place here to inquire which section has gained most by the bargain-whether the North has been more benefitted by our tariff laws than the South by the importation of slaves.
My purpose is to call the attention of the House to the nature of the limitation of slavery established by the Constitution. It not only preserved the institution as it then existed, and provided for the representation of the slaves, but it allowed their numbers to be indefinitely increased for the next twenty years by importations; after which it was to cease, if Congress saw fit. But there was no power given to exclude free persons. The Constitution of the United States, therefore, was obviously made to govern all those who were then in the country, whether freemen or slaves, and their descendants-all free persons who might come into the country in all time, and also all slaves which might be imported up to the year 1808. The partnership or compact of government embraced all of these. It permitted an indefinite increase of free persons, but limited the number of slaves. That limitation was most clearly of the numbers of the slaves, not of the territory they might occupy. The framers of the Constitution seem to have entertained, with respect to liberty and slavery, the old fashioned notions-such notions, I mean, as prevailed among the civilians and common lawyers of the world; among political and philosophical writers, and mankind generally-that is, that liberty was a personal right, and not one annexed to land or territory. They supposed that they were promoting the cause of liberty by limiting the number of persons who might become slaves, and thereby preventing an indefinite extension of slavery. But, the number of slaves being limited and fixed, it did not seem to be a matter of moment to confine their residence to particular portions of territory. They seem to have had no conception of the fashionable phrase of our day, area of slavery, which must not be extended.
I am now brought, Mr. Chairman, to the direct consideration of the great question as to the extent of the powers and duties of Congress in relation to slavery in the territories of the United States. Upon this subject a distinguished politician from the South, (Mr. Calhoun,) in the other wing of this building, some twelve months since, laid down certain doctrines, which are, in substance, as near as I can remember them, these: The territories of the United States, being the common property of the Union, are held by Congress in trust, for the use and benefit of all the States and their citizens; secondly, that Congress has no right to exclude by law any citizens of the United States from going into any part of said territories, and carrying with them and holding any such property as they are allowed to hold in the States from which they come. This view, though perhaps plausible at the first glance, is really the most shallow and superficial that could possibly be presented. Admitting the first general proposition to be true, (and no fair mind can question it,) that the territories of the United States are held by Congress in trust for the use and benefit of all the States and their citizens, I am free to confess, that if Congress should see that it was most advantageous to allow all the citizens to occupy
all the territory in common, with their property, it doubtless ought so to provide. But it is equally clear that if, on the other hand Congress should see that all the other citizens of the United States could not thus advantageously occupy the territory in common, it might divide the same so as to assign certain portions to particular classes or persons. Why, sir, according to this mode of reasoning, it might be insisted that the army could not be divided so as to place particular regiments and companies to defend certain points in exclusion of others, because each regiment and each man belongs to the whole United States, and Congress has no right to deprive any State of the services of any one soldier. Each national ship must be employed to convoy every merchantman at the same moment. Yes, sir, according to this system of ratiocination, inasmuch as the National Treasury belongs to the whole United States, each dollar therein belongs to all the citizens, and Congress, therefore, has no right to direct the expenditure of a particular dollar in one State, and thereby deprive all the other citizens of its enjoyment. But these propositions, sir, are too absurd in themselves to justify serious consideration, and I only have referred to them at all because of the high quarter from which they come.
I return, then, to the great question. What is the condition of the territory of the United States? It might possibly be argued, that inasmuch as the Constitution provides for the representation of slaves and for their admission up to 1808, and is totally silent as to what part of the United States they should be confined to, that it may fairly be presumed that they were intended to be excluded from no part of the Union, except as far as the States themselves might determine to exclude them, and that therefore Congress had no right to interfere in the matter at all. I lay no stress, however, on this argument, but think that the question must be settled on other principles. The Constitution gives Congress "power to dispose of and make all needful rules and regulations respecting the territory of the United States." This grant of power is general and vague. To ascertain its extent we must resort to implication. It has sometimes been contended that the right of self-government was for a time in abeyance or suspended as to the territories. To this view I cannot assent; the right of self-government naturally belongs to every community; that right can never be annihilated or destroyed, though it may be transferred. Unless some other community or sovereign has acquired the authority to control it, the first community always possesses the right of self-government. So neither can these powers be in a state of suspension, except by their being temporarily transferred to some other sovereign or government. It is conceded on all hands that the inhabitants of the territory have no rights of legislation, and it is equally clear that none of the States have any power to govern it. All the powers that can be exercised belong to Congress alone; Congress has powers to make all needful rules and regulations. But the wants of all communities are in legal contemplation the same; the wants of the territorics may be, and in fact are, just as great as those of the States. It seems to me then, Mr. Chairman, with due deference to those who have given the subject graver consideration than I have been able to do, that Congress in leg
islating for the territories is controlled only by the Constitution of the United States. It is equally true, however, that the people of the several States are likewise controlled by this Constitution; whether acting in convention or through their ordinary legislative govern. ments, they can do nothing contrary to it. Congress has then over the territory just such powers as its legislature would have after it became a State. Both are controlled by the Constitution of the United States, the supreme law of the land. As this Constitution is silent in relation to slavery, it has been argued on the one hand that Congress can do nothing to exclude it from the territory; on the other hand, it is asserted with equal confidence that for the same reason there is no power to establish the institution. These two opposite views are worthy antagonists, and I shall leave them to contend, not fearing that either will ever obtain a victory over the other.
Congress has general legislative powers over the territories; but one of the most important duties of the law-making power is to determine the rights of property. What shall be property, how titles shall be acquired and maintained, it is the province of the municipal law of every country to determine. This principle is so generally recognized, and has been so universally acted on among mankind, that it need not be enlarged upon. It has been insisted in certain quarters, however, that liberty being the natural right of all, no property could be acquired over persons, and that all attempts of government to legalize slavery in any form, are to be esteemed unnatural, illegal and utterly void. To deny the right of government to recognize property in persons is easy, because it is easy to deny anything; but to determine what is natural among men, you must refer to the conduct and practice of mankind generally. To ascertain what powers governments may properly exercise, you must refer to the action of political States and the conduct of nations generally. In this mode we determine the laws of nations and the rights and duties of governments. Under the guidance of these principles, how are we to determine the question? We find that the nations of the earth, from the earliest historic ages, have generally recognized and established the system of slavery. As to how the matter was between the Creation and the Deluge we have no knowledge, but we do know that shortly after the latter event the institution existed, not only among the patriarchs of the Jewish people, but among all the nations from which we have any accounts. Among the Jews slavery was limited in this respect. If a male Hebrew became a slave to one of his own countrymen, after seven years service he was made free. But this privilege seems not have extended to his wife, if a slave, nor to his children, nor was it ever held to apply to slaves obtained from other nations. From those times downward the institution seems gencrally to have prevailed among the nations of the earth. If the free States of Greece, Rome and Carthage seem to have had a larger proportion of slaves than most of the nations of their day, it is doubtless to be attributed to the fact that those Republics, by reason of their superiority both in civil and military art and science, were more powerful than their contemporaries, and thereby able to make a greater number of captives in war. So general was the system, that, while it