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Henry Clay, in his speech of January 28, 1841, said: "The Republican party, in whose school I was brought up, and to whose rule of interpreting the Constitution I have ever adhered, maintained that this was a limited Government; that it had no powers but granted powers, or powers necessary and proper to carry into effect the granted powers; and that, in any given instance of the exercise of power, was necessary to show the specific grant of it, or that the proposed measure was necessary and proper to carry into effect a specifically granted power, or powers." The same thing is professed by every man in the Union, and by the Committee themselves in their report mentioned before; above all, it manifestly results from both the letter and spirit of the Constitution. Does this Instrument give Congress the power of which we are now speaking, or even that of making the above-quoted resolution?
The powers expressly granted to Congress, which might refer to the present subject, and which are, in fact, sometimes the one, sometimes the other, adduced to justify their action in it, are first, "The power to admit new States into the Union;" and secondly, " The power to dispose of, and make all needful rules and regulations respecting the Territory and other property belonging to the United States." Neither of these two grants mentions the making settlements in the Territory, or prescribing to them a temporary government, or compelling them to enter the Union. Nor can any of these things be considered as granted by impliçation; as if they were means necessary to the exercise of either of the two powers expressly granted. For, both of these may very well be carried into effect and have full scope, without the help of any of those things. Even without them, Congress may "admit new States into the Union," and may "regulate and dispose of the Territory and other property belonging to the United States."
Unless it is here proceeded from induction to induction, and from implication to implication, which would make in the end a complication never to be extricated, we see
no necessary connection between these two propositions : "Congress may admit a new State into the Union, therefore Congress may compel her to be one of the United States;" nor between these: "A settlement in the common Territory may grow up to be a State, therefore Congress have the power to give it a temporary government, and thus prepare it to become a State;" nor between these: "A temporary government in the settlement is a means to its becoming a State and being admitted into the Union, therefore Congress have the power to organize and impose on the settlement a temporary government. Yet all this, and more, should have been positively demonstrated by the Committee before they could affirm that Congress have the power to organize a temporary government for the settlers in the Territory.
If everything else, that is alleged, or taken for granted, in favor of Congress in this matter, were true and proved, which is not, it would yet remain to be proved that there is for the settlers no other possible way to have this temporary government among them, but that Congress must give it to them. We see no such necessity in the case. Cannot they themselves organize it? It seems they can. If they may, on your confession, frame for themselves a constitution and permanent government, which is more; we do not perceive why they cannot also a temporary one, which is less. And if this their capacity were even doubtful, as it appears to be certain, it would still be enough to exclude the asserted power of Congress.
BOST.-But they being very few at first, and apparently incapable to organize among themselves even a temporary government, it seems fit and more regular that Congress should give it to them.
WASH.-Even admitting it might be so; still firm it would remain that Congress, in order to do it lawfully, must have the right of doing it first. Their power must rest on a foundation that is certain and immovable. It cannot depend on fitness, on more or less regularity. Could such a field of discussion be ever allowed in order to determine the
powers of Congress on any subject, there would be no possibility of agreement, but an endless doing and undoing. The understandings of men, their views and opinions in all matters relating to aptness, regularity, expediency, convenience, use, more, less, better, worse, and not unfrequently even on positive things and principles universally recognized as fixed, are as much different from one another's, as their faces. Thus, in the present instance, others may believe, and it seems with better reason, that it is fit and more regular, and more consistent with republican principles, which recognize in the people the right of making their own laws, and regulating their concerns in the manner they think best for their welfare, to leave to the settlers to organize their own temporary as well as permanent government.
When few and sparse at distances, they have no need of a government, as if they lived in a community: as they are growing in number and thickening in neighborhoods, so can they adjust among themselves their own affairs, and frame what rules they see fit to peaceably live together; adapting and modifying them according to circumstances. And this they seem the better able to do, because, coming generally from the States, they are already imbued with the notions of their respective laws which, though peculiar or different in some respects, yet are not conflicting in regard to the essential points of political and civil life. Especially, if they are friends, or intend to live as good neighbors, as their own interest urges them to do.
For, if they are enemies, the government given them by Congress will not pacify them. It is they who must obey its prescriptions. Perhaps it will be apt, on the contrary, to increase and sharpen their animosities. It is but a natural occurrence if, knowing that the Federal Government concerns herself, or interferes with the affairs of the settlement, the contending parties do count on her for help or protection, which is not impossible being wrongly asked for, or misapplied. Even in their attempts against each other they will measure their strength, not so much by
their number, or the means they have at hand in the Territory, as by the aid they expect to receive from their partisans abroad, chiefly according to their influence, true or supposed, with the Administration and the Congress of the General Government. Hence their strifes, failures, and victories by turns. Had Kansas been allowed to settle from the beginning by the free will and action of its inhabitants, perhaps no contending parties would have been formed there; or rather they would not have dared to go thither to meet and fight as on a battle field. We believe it would not have been the theatre of such and so many enormities. The numerous acts of Congress which have taken place concerning that Territory, and the officers sent thither by the Federal Government, though good and well intentioned, it is not improbable have made a bad case worse. .
But, in regard to the power of Congress to legislate for or against Slavery in the Territories, were the matter doubtful, as it is certain and evident, yet the conclusion to be arrived at should be that Congress cannot do it; upon the uncontroverted principle that no power which is doubtful can be exercised to destroy rights which are certain. The right of a slaveholder to settle with his property in the Territory, is both certain and clear, resulting from express provisions of the Constitution: therefore Congress cannot deprive him of it by virtue of a power, which it is only by supposition we do here call doubtful; for it has been positively denied them. Were there no other reason for this, it would be enough to consider that the Constitution cannot possibly have given Congress a power, the use of which must resolve itself into the subversion of principles on which the Constitution itself stands. For, that to exclude Slavery from the Territory, is to deprive citizens of the United States of the use of their property upon the common soil of the Union, appears too evident to be insisted upon.
It is commonly said that the people themselves, in the Territory, when they frame a permanent Constitution for its being received as a State into the Union, may exclude
Slavery from it, even to the prejudice of those slaveholders who, till then, have lived there with their slaves on their own ground. We do not see whence such a right may be derived. If the slaveholder cannot be refused to settle in the Territory at first, much less can he be excluded afterward, when he has settled in it. It were a less wrong to refuse him admittance before he enters, than to expel him after he has been admitted. The Latin verse says:
"Turpius ejicitur quam non admittitur hospes ;"
although the slaveholder is not a guest, but as much a master as the host himself. When you have lived with him. as neighbor in the same place during the territorial condition of the settlement, and, perhaps, after he has helped you to make it a State, you compel him to leave it.
BOST.-But the slaveholder, on his first entering the Territory, is aware of this condition that, when the place is grown up sufficiently to be a State and have a permanent constitution, then, if the majority of its people should declare it a free State, he must leave the place, because slaves cannot be there. For, if, knowing beforehand the possibility of such an event, he settles in the Territory notwithstanding, it seems that, when such an event happens to be verified, he cannot complain as if anything had been done against his rights, or against his will. At the very moment of his entering the Territory, he must be understood to have given his consent in advance of leaving it, should Slavery be excluded from it afterward; by just the same reason as a freesoiler must submit, if the majority of the people declare it a slaveholding State.
WASH.-This would take away some of the case's sharpness, but does not answer the question involved, and much less justifies, or even excuses such treatment. We might say that there would yet remain a great difference between the condition of the slaveholder and that of the freesoiler. The former is obliged to leave the place and seek other