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This Jeffersonian Plan of Government embodies and interpreted and expounded by the Colonies during thefr carries at 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 ries 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 Having thus divided the powers of government into the should graciously condescend to bestow upon them. three appropriate departments, with which they had alThis Plan recognizes by law and irrevocable compact" ways been familiar, they proceeded to confer upon the the existence of two distinct classes of States under our Federal Government substantially the same powers which American system of government-the one being mem- they as colonies had been willing to concede to the British bers of the Union, and consisting of the original thi teen Government; and to reserve to the States and to the peoand such other States, having the requisite population, ple the same rights and privileges which they as colonies as Congress should aúmit inio the Federal Union, with had denied to the British Government during the entire an equal vote in the management of Federal affairs as struggle which terminated in our Independence, and well as the exclusive power in regard to their internal which they had claimed for themselves and their posterity polity respectively-the other, not having the requisite as the birthright of all freemen, inalienable when organ. population for admission into the Union, could have no ized into political communities, and to be enjoyed and ex. vote or agency in the control of the Federal relations, ercised by colonies, territories, and provinces as fully and but possessed the same exclusive power over their completely as by sovereign States. Thus it will be seen domestic affairs and internal policy respectively as that there is no organic feature or fundamental principle the original States, with the right, while they have embodied in the Constitution of the United States which less than twenty thousand inhabitants, to choose for had not been familiar to the people of the Colonies from their government the Constitution and laws of any the period of their earliest settlement, and which had one of the original States ; and when they should have not been repeatedly asserted by them when denied by more than twenty thousand, but less than the number Great Britain during the whole period of their colonial hisrequired to entitle them to admission into the Union, tory. they were authorized to form for themselves" a perma- Let us pause at this point for a moment, and inquire nent Constitution and government;" and in either case whether it be just to those illustrious patriots and sages who they were entitled to keep a delegate in Congress with formed the Constitution of the United States, to assume the right of debating, but not of voting. This “ Charter that they intended to confer upon Congress that unlimited of Compact,” with its “ fundamental conditions," which and arbitrary power over the people of the American Ter. were declared to be “unalterable" without “the joint ritories, which they had resisted with their blood when consent” of the people interested in them, as well as of claimed by the British Parliament over British colonies in the United States, thus stood on the statute book un e- America ? Did they confer upon Congress the right to pealed and unrepealable--furnishing a complete system bind the people of the American Territories in all cases of government for all" the territory ceded or to be ceded” whatsoever, after having fought the battles of the Revoluto the United States, without any other legislation upon tion against a “Preamble" declaring the right of Parthe subject, when, on the 14th day of May, 1787, the Fede- liament" to bind the Colonies in all cases whatsoever ?” ral Convention assembled Philadelphia and proceeded If, as they contende before the Revolution, it was the to form the Constitution under wnich we now live. Thus birthright of all Englishmen, inalienable when formed into It will be seen that the dividing line between Federal and political communities, to exercise exclusive power of legis Local authority, in respect to the rights of those political lation in their local legislatures in respect to all things communities which, for the sake of convenience and in affecting their internal polity-Slavery not excepted-did
ontradistinction :o the Sates represented in Congress, not the same right, after the Revolution, and by virtue of re now call Territories, but which were then known as it, become the birthright of all Americans, in like manner "States," or "new States," was so distinctly marked at inalienable when organized into political communities-no that day that no intelligent man could fail to perceive it. matter by what name, whether Colonies, Territories, Pro
It is true that the government of the Confederation had vinces, or new States ? proved totally inadequate to the fulfillment of the ends Names often deceive persons in respect to the nature for which it was devised; not because of the relations be- and substance of things. A single instance of this kind jween the Territories, or new States, and the United States, is to be found in that clause of the Constitution which but in consequence of having no power to enforce its de- says: crees on the Federal questions which were clearly within
“Congress shall have power to dispose of, and make all the scope of its expressly delegated powers. The radical needful rules and regulations respecting the territory or other defects in the Articles of Confederation were found to con property belonging to the United States." sist in the fact that it was a mere league between sove. This being the only clause of the Constitution in which reign States, and not a Federal Government with its ap- the word " Territory” appears, that fact alone has doubtpropriate departments --Executive, Legislative, and Ju- less led many persons to suppose that the right of Con. dicial-each clothed with authority to perform and carry gress to establish tempurary governments for the Terri. into effect its own peculiar functions. The Confederation tories, in the sense in which the word is now used, must naving no power to enforce compliance with the resolves, be derived from it, overlooking the important and con. " the consequence was, that though in theory its resolu- trolling facts that at the time the Constitution was formed tions of Congress were equivalent to laws, yet in practice the word " Territory" had never been used or understood they were found to be mere recommendations, which the to designate a political community or government of any States, like other sovereignties, observed or disregarded, kind in any law, compact, deed of cession, or public according to their own good-will and gracious pleasure.'
document; but had invariably been used either in its Congress could not impose duties, collect taxes, raise geographical sense to describe the superficial area of a armies, or do any other act essential to the existence of State or district of country, as in the Virginia deed of government, without the voluntary consent and coöpera- cession of the “ Territory or tract of country' northwest tion of each of the States. Congress could resolve, but of the river Ohio; or as meaning land in its character could not carry its resolutions into effect-could recom- as property, in which latter sense it appears in the clause mend to the States to provide a revenue for the necessi- of the Constitution referred to, when providing for the ties of the Federal Government, but could not use the disposition of the “ Territory or other property belongo means necessary to the collection of the revenue when the ing to the United States." These facts, taken in connecStates failed to comply—could recommend to the States to tion with the kindred one that during the whole period provide an army for the general defense, and apportion of the Confederation and the formation of the Constituamong the States their respective quotas, but could not en- tion the temporary governments which we now call list the men and order them into the Federal service. For “Territories," were invariably referred to in the deeds these reasons a Federal Government, with its appropriate of cession, laws, compacts, plans of government, resoludepartments, acting directly upon the individual citizens, tions of Congress, public records, and authentic docuwith authority to enforce its decrees to the extent of its ments as “States," or "new States," conclusively show delegated powers, and not dependent upon the voluntary that the words “Territory and other property" in the action of the several states in their corporate capacity, Constitution were used to designate the unappropriated became indispensable as a substitute for the government lands and other property which the United States owned, of the Confederation.
and not the people who might become residents on those In the formation of the Constitution of the United States lands, and be organized into political communities after the Federal Convention took the British Constitution, as' 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 “K 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 iperty 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 tema. any public purpose. It refers exclusively to property in porary governments for the new States arising in the un. contradistinction 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 na. of ; 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 haad, 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 (be- New States may be admitted by the Congress into this cause it authorizes the Federal Government to control Union." the municipal affairs and internal polity of the people in The power to admit “new States," and "to make all certain specified, limited localities), was not left to vague laws which shall be necessary and proper" to that end, inference or loose construction, nor expressed in dubious may fairly be construed to include the right to institute or equivocal language; but is found plainly written in temporary governments for such new States or Territories, that Section of the Constitution which says:
the same as Great Britain could rightfully institute similar “ Congress shall have power to exercise exclusive legisla- governments for the Colonies; but certainly not to author. tion in all cases whatsoever, over such district (not exceeding ize Congress to legislate in respect to their municipa. sen miles square) as may, by cession of particular. States, and affairs and internal concerns, without violating that great the acceptance of Congress, become the seat of the govern: fundamental principle in defense of which the battles of al places purchased by the consent of the Legislature of the the Revolution were fought. State in which the same shall be, for the erection of forts,
If judicial authority were deemed necessary to give magazines, arsenals, dock-yards and other needful buildings."' force to principles so eminently just in themselves, and
No such power “to exercise exclusive legislation in all which form the basis of our entire political system, cases whatsoever," nor indeed any legislation in any such authority may be found in the opinion of the Supreme case whatsoever, is conferred on Congress in respect to Court of the United States, in the Dred Scott case. in the municipal affairs and internal polity, either of the that case the Court say: States or of the Territories. On the contrary, after the “This brings us to examine by what provision of the ConConstitution had been finally adopted, with its Federal stitution the present Federal Government, under its delegated powers delegated, enumerated, and defined, in order to and restricted powers, is authorized to acquire territory outguard in all future time against any possible infringement it may exercise therein over the person or property of a citiof the reserved rights of the States, or of the people, an zen of the United States, while it remains a territory, and unamendment was incorporated into the Constitution which til it shall be admitted as one of the States of the Union. marks the dividing line between Federal and Local “There is certainly no power given by the Constitution to authority so directly and indelibly that no lapse of time, the Federal Government to establish or maintain colonies, no partisan prejudice, no sectional aggrandizement, no bordering on the United States or at a distance, to be ruled frenzied fanaticism can efface it. The amendment is in and governed at its own pleasure; nor to enlarge its terri
torial limits in any way except by the admission of new these words:
States. “The powers not delegated to the United States by the “The power to expand the territory of the United States by Constitution, nor prohibiteå by it to the States, are reserved the admission of new States is plainly given; and in the conto the States respectively, or to the people."
struction of this power by all the departments of the Govern
ment, 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 tho cord says:
other States, must rest upon the same discretion." "Mr. Madison submitted, in order to be referred to the Com- Having determined the question that the power to acmittee of Detail, the following powers, as proper to be added quire territory for the purpose of enlarging our territorial to those of the general Legislature (Congress) :
limits and increasing the number of States, is included " To dispose of the unappropriated lands of the United States. within the power to admit new States and conferred by
"To institute temporary governments for the new States the same clause of the Constitution, the Court proceed to arising therein.
"To regulate affairs with the Indians, as well within as say that “the power to acquire necessarily carries with it without the limits of the United States.
the power to preserve and apply to the purposes for which “To exercise exclusively legislative authority at the seat of it was acquired." And again, referring to a former decithe General Government, and over a district around the same sion of the same court in respect to the power of Congreso not exceeding square miles, the consent of the legisla- to institute governments for the Territories, the Court say: ture of the State or States comprising the same being first ob. tained.
“The power stands firmly on the latter alternative put by
the Court—that is, as the 'inevitable consequence of the right | footing with citizens of the States, and guards them as firmly to acquire territory.'”
and plainly against any inroads which the General Government The power to acquire territory, as well as the right, in might attempt under the plea of implied
or incidental powers. the language of Mr. Madison, “to institute temporary powers conferred on the Federal Government–it will be ad. governments for the new States arising therein" (or Terri- mitted, we presume, that it could not authorize a Territorial torial governments, as they are now called), having been government to exercise them. It could confer no power ou traced to that provision of the Constitution which provides any local government, estavlished by its authority, to violate for the admission of “new States," the Court proceed to the provisions of the Constitution." consider the nature and extent of the power of Congress Nothing can be more certain than that the Court were over the people of the Territories :
here speaking only of forbidden powers, which wers
denied alike to Congress, to the State Legislatures, and “All we mean to say on this point is, that, as there is no ex: to the Territorial Legislatures, and that the prohibition press regulation in the Constitution defining the power which the General Government may exercise over the person or pro
extends “everywhere within the dominion of the United perty of a citizen in a territory thus acquired, the Court must States," applicable equally to States and Territories, as necessarily look to the provisions and principles of the Consti- well as to the United States. tution, and its distribution of powers, or the rules and princi- If this sweeping prohibition--this just but inexorable ples by which its decision must be governed.
restriction upon the powers of Government- Federal, "Taking this rule to guide us, it may be safely assumed that state, and Territorial-shall ever be held to include the citizens of the United States, who emigrate to a territory be: Slavery question, thus negativing the right of the
people longing to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Govern. of the States and Territories, as well as the Federal ment, and to be governed by any laws it may think
proper to Government, to control it by law (and it will be observed The Territory being a part of the United that in the opinion of the Court "the citizens of a TerriStates, the Government and the citizen both enter it under the tory, so far as these rights are concerned, are on the authority of the Constitution, with their respective rights de same footing with the citizens of the States.") then, fined and marked out; and the Federal Government can exercise no power over his person or property beyond what that indeed, will the doctrine become firmly established that instrument confers, nor lawfully deny any right which it has the principles of law applicable to African Slavery are reserved.”
uniform throughout the dominion of the United Hence, inasmach as the Constitution has conferred on States, and that there “is an ii repressible conflict the Federal Government no right to interfere with the pro, that the United States must and will, sooner or later,
between opposing and enduring forces, which means perty, domestic relations, police regulations, or internal polity of the people of the Territories, it necessarily fol- become either entirely a slaveholding nation or enti ely lows, under the authority of the Court, that Congress can
a free labor nation." rightfully exercise no such power over the people of the
Notwithstanding the disastrous consequences which Territories. For this reason alone, the Supreme Court would inevitably result from the authoritative recogni. were authorized and compelled to pronounce the eighth tion and practical operation of such a doctrine, there section of the Act approved March 6, 1820 (commonly are those who maintain that the Court referred to and called the Missouri Compramise), inoperative and void | included the Slavery question within that class of there being no power delegated to Congress in the Consti- forbidden powers which (although the same in the Territution authorizing Congress to prohibit Slavery in the Ter. tories as in the States) could not be exercised by the ritories.
people of the Territories.
If this proposition were true, which fortunately for the In the course of the discussion of this question the peace and welfare of the whole country it is not, the Court gave an elaborate exposition of the structure, conclusion would inevitably result, which they logically principles, and powers of the Federal Government; deduce from the premises-that the Constitution by the showing that it possesses no powers except those which recognition of Slavery establishes it in the Territories are delegated, enumerated, and defined in the Constitu, beyond the power of the people to control it by law, tion; and that all other powers are either prohibited and guarantees to every citizen the right to go theie altogether or are reserved to the States, or to the people. and be protected in the enjoyment of his slave In order to show that the prohibited, as well as the property; and when all other remedies fail for the delegated powers are enumerated and defined in the protection of such rights of property, it becomes the Constitution, the Court enumerated certain powers imperative duty of Congress (to the performance of which cannot be exercised either by Congress or by the which every member is bound by his conscience and his Territorial Legislatures, or by any other authority what- oath, and from which no consideration of political policy ever, for the simple reason that they are forbidden by or expediency can release him) to provide by law such the Constitution.
adequate and complete protection as is essential to the Some persons who have not examined critically the enjoyment of an important right secured by the Constiopinion of the Court in this respect bave been induced tution. If the proposition be true, that the Constitution to believe that the slavery question was included in this establishes Slavery in the Territories beyond the power class of prohibited powers, and that the Court had of the people legally to control it, another result no less decided in the Dred Scott case that the Territorial Legis. startling, and from which there is no escape, must inevilature could not legislate in respect to slave property | tably follow. The Constitution is uniform “everywhere the same as all other property in the Territories. A few within the dominions of the United States”—is the same extracts from the opinion of the Court will correct this in Pennsylvania as in Kansas--and if it be true, as error, and show clearly the class of powers to which the stated by the President in a special message to Congress, Court referred, as being forbidden alike to the Federal “ that Slavery exists in Kansas by virtue of the ConstiGovernment, to the States, and to the Territories. The tution of the United States," and that “ Kansas is thereCourt say:
fore at this moment as much a Slave State as Georgia or
South Carolina," why does it not exist in Pennsylvania “ A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no cne, we pre- by virtue of the same Constitution ? sume, will contend that Congress can make any law in a Ter
If it be said that Pennsylvania is a sovereign State, and ritory respecting the establishment of religion, or the free ex- therefore has a right to regulate the Slavery question ercise thereof, or abridging the freedom of speech or of the within her own limits to suit herself, it must be borne in the press, or the right of the people of the territory peaceably mind that the sovereignty of Pennsylvania, like that of to assemble, and to petition the Government for the redress of every other State, is limited by the Constitution, which grievances.
"Nor can Congress deny to the people the right to keep and provides that: bear arms, nor the right to trial by jury, nor compel any one “This Constitution, and all laws of the United States which to be a witness against himself in a criminal proceeding. shall be made in pursuance thereof, and all treaties made, or So too, it will hardly be contended that Congress could by law which shall be made, under the authority of the United States, quarter a soldier in a house in a territory without the consent shall be the supreme law of the land, and the judges in every of the owner in a time of peace ; nor in time of war but in & State shall be bound thereby, anything in the Constitution or manner prescribed by law. Nor could they by law forfeit the laws of any State to the contrary notwithstanding." property of a citizen in a territory who was convicted of treason, for a longer period than the life of the person convicted, Hence, the State of Pennsylvania, with her Constitution nor take private property for public use without just compen- and laws, and domestic institutions, and internal policy, mation."
is subordinate to the Constitution of the United States, in “The powers over persons and property, of which we speak, are not only not granted to Congress, but are in ex
the same manner and to the same extent as the Territory press terms denied, and they are forbidden to exercise them.
of Kansas. The Kansas-Nebraska Act says that the TerAnd this prohibition is not confined to the States, but the ritory of Kansas shall exercise legislative power over "all words are general, and extend to the whole territory over rightful subjects of legislation consistent with the Constiwhich the Constitution gives it power to legislate, including tution,” and that the people of said Territory shall be left those portions of it remaining under Territorial governments, "perfectly free to form and regulate their domestic insti
" It is a total absence of power, everywhere within the tutions in their own way, subject only to the Constitution dominion of the United States, and places the citizens of a
of the United States.” The provisions of this act are beTerritory, so far as these rights are concerned, on the same lieved to be in entire harmony with the Constitution, and ander them the people of Kansas possess every right, I only recognizes the right of property in slaves, as slatod privilege, and immunity, in respect to their internal polity by the Court, but explicitly states what class of persons and domestic relations, which the people of Pennsylvania shall be deemed slaves, and under what laws or authority can exercise under their Constitution and laws. Each is they may be held to servitude, and under what circuminvested with full, complete, and exclusive powers in this stances fugitive slaves shall be restored to their owners, respect, “subject' only to the Constitution of the United | all in the same section, as follows: States.'
The question recurs, then, if the Constitution does estab- “No person held to service or labor in one State, under the Ish Slavery in Kansas or any other Territory beyond the any law or regulation therein, be discharged from such ser
laws thereof, escaping into another, shall, in consequence of power 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 waom 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
Thus it will be seen that a slave, within the meaning of provide by law for the protection of slave property in the
the Constitution, is a "person held to service or labor in Territories upon the ground that “Slavery exists in Kan- one State, under the laros thereof”—not under the Consas” (and consequently in every other Territory)" by stitution of the United States, nor by the laws thereof, nor virtue of the Constitution of the United States," why is it by virtue of any federal authority whatsoever, but under not also the duty of Congress, for the same reason, to pro: labor
may be due.
the laws of the particular State where such service or vide similar protection to slave property in all the States of the Union, when the legislatures fail to furnish such in the Constitution in order to satisfy the people of the
It was necessary to give this exact definition of Slavery protection?
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 subject every 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 between them.
which prevailed at that period, might destroy the instituUpon this point the Court say:
tion, and divest those rights of property in slaves which
were sacred under the laws and constitutions of their re"Now as we have already said in an earlier part of this spective States so long as the Federal Government had no opinion, upon a diferent point, the right of property in a slave power to interfere with the subject. is distinctly and expressly affirmed in the Constitution.
In like manner, the non-slaveholding States, while they And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that des
were entirely willing to provide for the surrender of all cription of property and other property owned by a citizen, fugitive slaves-as is conclusively shown by the unanimous no tribunal acting under the authority of the United States, vote of all the states in the Convention for the provision whether it be legislative, executive or judicial, has a right to now under consideration—and to leave each state perdraw such a distinction, or deny to it the benefit of the pro- fectly free to hold slaves under its own laws, and by virtue visions and guaranties which have been provided for the pro- of its own separate and exclusive authority, so long as it tection of private property against the encroachments of the pleased, and to abolish it when it chose, were unwilling to terms is pledged to protect it in all future time, is the store become responsible for its existence by incorporating it escapes from his owner. This is done in plain words—100 into the Constitution as a national institution, to be proplain to be understood. And no word can be found tected and regulated, extended and controlled by Federal in the Constitution which gives Congress a greater power authority, regardless of the wishes of the people, and in over slave property, or which entitles property of that kind to defiance of the local laws of the several States and Terriless protection than property of any other description. The only power conferred is the power coupled with the duty of Northern States united in giving a unanimous vote in the
tories. For these opposite reasons, the Southern and guarding and protecting the owner in his rights."
Convention for that provision of the Constitutiou which The rights of the owner, which it is thus made the duty recognizes Slavery as a local institution in the several of the Federal Government to guard and protect, are those states where it exists, "under the laws thereof,” and proexpressly provided for in the Constitution, and defined in vides for the surrender of fugitive slaves. 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. oroner. 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 to 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 case ments 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 do other 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 13th 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 loss 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 In this sense the word “States" is used in the clause prounder the Constitution as expounded by the Supreme viding for the rendition of fugitive slaves, applicable to Court in the Dred Scott case.
all political communities under the authority of the United Inasmuch as the Constitution has delegated no power States, including the Territories as well as the several to the Federal Government in respect to any other kind States of the Union. Under any other construction, the of property belonging to the citizen-neither introducing, right of the owner to recover his slave would be restricted establishing, prohibiting, nor excluding it anywhere within to the States of the Union, leaving the Territories a secure the dominion of the United States, but leaves the owner place of refuge for all fugitives. The same remark is apthereof perfectly free to remove into any State or Terri- plicable to the clause of the Constitution which provides tory, and carry his property with him, and hold the same that “a person charged in any State with treason, felony, subject to the local law, and relying upon the local author- or other crime, who shall flee from justice, and be found in ities for protection, it follows, according to the decision of another State, shall, on the demand of the executive au. the Court, that slave property stands on the same footing, thority of the State from which he fled, be delivered up to is entitled to the same rights and immunities, and, in like be removed to the State having jurisdiction of the crime." manner, is dependent upon the local authorities and laws Unless the term State, as used in these provisions of the for protection.
Constitution, shall be construed to include every distinct The Court refer to that clause of the Constitution which political community under the jurisdiction of the United provides for the rendition of fugitive slaves as their States, and to apply to Territories as well as to the States authority for saying that “the right of property in slaves of the Union, the Territories must become a sanctuary for is distinctly and expressly affirmed in the Constitution."
all the fugitives from service and justice, for all the felons By reference to that provision, it will be seen that, while and criminals who shall escape from the several States tho word “slaves ” is not used, still the Constitution not and seek refuge and immunity in the Territories.
If any other illustration were necessary to show that not only to the preservation of property, but to the peace of the political communities which we now call Territories the Territory. It will leave the right to make such police (but which, during the whole period of the Confederation will be absolutely necessary with such properly as that is and the formation of the Constitution, were always re- secure its beneficial use to its owner. With this brief ex. ferred to as "States" or "new States'), are recognized planation I submit the amendment." “States" in some of the provisions of the Consti
Mr. Clay, in reply to Mr. Davis, said: tution, 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 mean. ance, or confederation; grant letters of marque and re- it I do, I think he accomplishes nothing by siriking out the prisal; coin money ; emit bills of credit; make anything clause now in the bill and inserting that whixh 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, er post fucto 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 nobility.”
clause as reported by the Committee will be this : That if in It must be borne in mind that in each of these cases ished by the Territorial Legislature; and if in any of the Ter.
any 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 lying 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, he respective Territories in the condition in which the Act and so declared in express terms by the 10th amendment, will tind 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 io ii at the the people."
time, and I attach very little to it at present. It is perhaps of Hence it would certainly be competent for the States stand the measure proposed by the Senator from Mississippi,
no particular importance whatever. Now, sir, if I underand Territories to exercis these powers but for
pro- it aims at the same thing. I do not understand him as proposhibition contained in those provisions of the Constitution; ing that if any one shall carry slaves into the Territoryand inasmuch as the prohibition only extends to the although by the laws of the Territory he cannot take them * States," the people of the “Territories” are still at liberty should be so tied as to prevent it saying
he shall not enjoy the to exercise them, unless the Territories are included withi- fruits of their labor. If the Senator from Mississippi means in the term States, within the meaning of these provisions to say that of the Constitution of the United States.
Mr. Davis: It only remains to be shown that the Compromise Measures of 1850 and the Kansas-Nebraska Act of 1854 are in
"I do mean to say it." perfect harmony with, and a faithful embodiment of, the
Mr. Clay: principles herein enforced. A brief history of these mea- " If the object of the Senator is to provide that slaves may sures will disclose the principles upon which they are be introduced into the Territory contrary to the lex loci, and,
being introduced, nothing shall be done by the Legislature to founded. On the 29th of January, 1850, Mr. Clay introduced into contrary to the local laws, I certainly cannot vote for it. In
impair the rights of owners to hold the slaves thus brought the Senate a series of resolutions upon the Slavery ques-doing so I shall repeat again the expression of opinion which tion which were intended to form the basis of the subse- 1 announced at an early period of the session.” quent legislation upon that subject. Pending the discus- Here we find the line distinctly drawn between those who sion of these resolutions, the chairman of the Committee on contended for the right to carry slaves into the Territories Territories prepared and reported to the Senate, on the and hold them in defiance of the local law, and those who 25th of March, two bills-one for the admission of Califor-contended that such right was subject to the local law of nia into the Union of States, and the other for the organi. the Territory. During the progress of the discussion on zation of the Territories of Utah and New Mexico, and for the same day, Mr. Davis, of Mississippi, said : the adjustment of the disputed boundary with the State of Texas, which were read twice and printed for the use Territory, which act rests upon the basis of our right to make
“We are giving, or proposing to give, a government to a of the Senate. On the 19th of April a select committee of such provision. We suppose we have a right to confer thirteen was appointed, on motion of Mr. Foote, of Miss- power. If so, we may mark out the limit to which they may
, , which were referred all pending propositions relating to the which exists in Congress. If we give them power to legislate slavery question. On the 8th of May, Mr. Clay, from the beyond that, we commit a fraud or usurpation, as it may be
done openly, covertly, or indirectly.” select committee of thirteen, submitted to the Serate an elaborate report covering all the points in controversy,
To which Mr. Clay replied : accompanied by a bill which is usually known as the Now, sir, I only repeat what I have had occasion to say ho"Omnibus Bill." By reference to the provisions of this fore, that while I am willing to stand aside and make no legisbill, as it appears on the files of the Senate, it will be lative enactment one way or the other–10 lay off the Territo seen that it is composed of the two printed bills which
had ries without the Wilmot Proviso, on the one hand, with which
I understand we are threatened, or without an attempt 10 been reported by the Committee on Territories on the introduce a clause for the introduction of Slavery into the 25th of March previous ; and that the only material Territories-while I am for rejecting both the one and the change in its provisions, involving an important and es- other, I am content that the law as it exists shall prevail ; and sential principle, is to be found in the tenth section, which if there be any
diversity of opinion as to what it means, I am prescribes and defines the powers of the Territorial Legis- willing
that it shall be settled by the highest judicial authority lature. In the bill, as reported by the Committee on Ter, must say that i cannot vote for any express provision recogniz
of the country. While I am content thus to abide the result, 1 ritories, the legislative power of the Territories extended ing the right to carry slaves there." to “ all rightful subjects of legislation consistent with the
To which Mr. Davis rejoined, that, Constitution of the United States," without excepting African Slavery; while the bill, as reported by the com- hope we have something of the same character of the hardy
"It is said our Revolution grew out of a preamble ; and 1 mittee of thirteen, conferred the same power on the Terri- men of the Revolution who first commenced the war with the torial Legislature, with the exception of African Sla mother country-something of the spirit of that bold Yankee tory. This portion of the section in its original form read who said he had a right to go to Concord, and that go he would ; thus :
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 “And be it further enacted that the Legislative power of the slaves into these Territories be a constitutional right, it is our Territory shall extend to all rightful subjects of legislation first duty to maintain it." consistent with the Constitution of the United States and the provisions of this act; but no law shall, be passed interfering suggestion of friends, modified his amendment from time
Pending the discussion which ensued, Mr. Davis, at the with the primary disposition of the soil.”
to time, until it assumed the following shape : To which the committee of thirteen added these words: "Nor in respect to African Slavery.". When the bill vided that nothing herein contained shall be construed so
“Nor to introduce or exclude African Slavery. Procame up for action on the 13th of May, Mr. Davis, of Mis- as to prevent said Territorial Legislature from passing sissippi, said:
such laws as may be necessary for the protection of the "I offer the following amendment. To strike out, in the rights of property of every kind which may have been, sixth line of the tenth section, the words 'in respot to African of the United States, hela in or introduced into said Terri.
may be hereafter, conforınably to the Constitution Slavery,' and insert the words, with those rights of property growing out of the institution of African Slavery as il exists in any of the States of the Union. The object of the amendment To which, on the same day, Mr. Chase, of Ohio, offered 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- “Provided further, That nothing herein contained shall bo tures those rights and powers which are essentially nocessary, construed as authorizing or permitting the introduction of