CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 THIS BOOK IS ONE OF A 
 COLLECTION MADE BY 
 
 BENNO LOEWY 
 1854-1919 
 
 AND BEQUEATHED TO 
 CORNELL UNIVERSITY 
 
JK318 .wSr" """'«""«y Ubrary 
 
 olin 
 
 3 1924 030 469 765 
 
TERRITORIAL GOVERNMENT, 
 
 AND 
 
 THE ^DMISSIOISr 
 
 OF 
 
 iEW STATES iTO THE UilOi: 
 
 A HISTORICAL AND CONSTITUTIONAL 
 
 TREATISE. 
 
 BY HEISri^Y A.. WISE, 
 
 GOVERNOR OF VIRGINIA. 
 
S7' .9i •V'< 
 
WW 
 
 Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030469765 
 
LETTER 
 
 OP 
 
 WILLIAM F. SAMFOED, ESQ. 
 
 OF ALABAMA, 
 
 TO 
 
 GOVERNOR WISE 
 
 SUNNY SLOPE, Near Auburn, Ala. 
 March 16th, 1859. 
 
 Hon. Henry A. Wise, Governor of Virginia : 
 
 My Dear Sir, 
 
 The destinies of our great country, 
 under the Divine Providence, seem now to demand the ut- 
 most caution — the most devoted labor — the calmest and wisest 
 counsels and the bravest and most self-sacrificing advocacy of 
 the very truth, of her most gifted and conspicuous sons. 
 
 Among those patriots of large experience, established prin- 
 ciples, well*tried and long tested capacity in practical states- 
 manship, firmness, courage and unselfishness, to whom it is our 
 privilege to look, in the trials which now beset us, for instruc- 
 tion, guidance, inspiration and hope, you have not now to 
 
learn, for the first time, that I have long and ever accorded 
 to you one of the very highest seats in our grand temple of con- 
 stitutional liberty. 
 
 While clamor has sonoetiHies and recently attempted to 
 drown the voice of your counsel, you kaow that I have con- 
 stantly known and labored to expose its injustice, its selfish- 
 ness and its insolence. I have not ceased to point my friends 
 to your great services and acknowledged faculties, to your 
 generous devotion to principle and unselfish advocacy of the 
 truth, as living and incontestable evidences of your orthodoxy 
 and reliability in this crisis of our affairs. 
 
 I need not suggest to you that, more than all other causes 
 of distraction to the Aroerican people and threatened over- 
 throw of our confederated system of free republics, remains 
 the embittered controversy about African slavery, which, for 
 generations, amidst all the changes of national fortunes, has 
 increased in malignancy, and to-day wears an aspect of most 
 fearful import and thrilling interest to every patriotic heart in 
 the Union. 
 
 The grand old democratic party has hitherto been equal to 
 the issues to which it has given rise, and if they have not 
 always been disposed of satisfactorily to every section, and 
 constitutionally and justly, it has not often, if at all, been its 
 fault. 
 
 The democratic party has always been ready to admit 
 slave states into the Union. It has put and retains upon the 
 federal statute book the fugitive slave law, and done what it 
 could to have its provisions respected and enforced. 
 
 It has repealed the Missouri restriction. It has wrested 
 from congress the assumed power to intervene for the prohi- 
 bition or destruction of slavery in the common territories ; and 
 if, for a moment, it now flounders in the bog of non-interven- 
 tion for the protection of slavery, as property, and a recognized 
 element of our constitutional compact, I trust and Believe that 
 it is only for a moment, i 
 
 There remains now, respecting slavery in the territories, 
 this only and most menacing issue of our right to govern- 
 
mental protection in the territories-pa right seriously embar- 
 rassed by the heresies of " non-intervention " and "squatter 
 sovereignty ;" heresies with respect to which I am sure your 
 enemies have done your name and position the greatest injus- 
 tice, to the detriment of the interests of the south and of the 
 republic. 
 
 Early in January last I took charge of the "Signal" news- 
 paper, and hoisted your name for the presidency of the United 
 States, with the best motives and most earnest desire that in 
 its strength and shadow the Union and the interest of all sec- 
 tions might find defence and protection, and expansion and 
 perpetuation. One of my first announcements was to the 
 effect that you do not, and never did, sanction these anti- 
 constitutional and ftvolutionary heresies of "non-intervention" and 
 "squatter sovereignty." You well know that I was assured 
 of this, not only from an impartial reading of your public 
 acts and performances, but doubly so by the plain and reite- 
 rated avowals, ever and consistently made to me by you, in 
 the course of our long and free correspondence. 
 
 Well, my dear sir, the southern press in this section df the 
 confederacy listened to my avowals — came at length to doubt 
 the sincerity, truth and patriotism of the clamor which your 
 enemies but too persistently indulged, until its voice of con- 
 demnation has been hushed and its ear of righteous judg- 
 ment is open for instruction. 
 
 I feel the deepest personal interest, as you may well ima- 
 gine, to be put right upon the public record, as well as the 
 profoundest conviction that your plain and open avowal of 
 the sentiments so often expressed to me, will be of the utmost 
 utility to the republic. 
 
 If, therefore, you can consent to appear before the public, 
 at this time, upon any subject, and this mode of application 
 is agreeable to you, I should esteem it no less a public benefit 
 than a personal favor, if you would submit your views at 
 large to the people, through some available medium, upon 
 this interesting topic of our territorial rights and their secu- 
 rities. 
 
I realize the delicacy of the position in which a compliance 
 with this request naay put you, but I feel assured that you 
 would not even suppress an opinion of importance to the 
 country to be made its president. 
 
 Whether, therefore, your opinion may advance or hinder 
 your progress to the chief magistracy, is not the question with 
 me, and will not be with you. That opinion may be valua- 
 ble to the country in helping us to a solution of the difficulties 
 which surround us, and this consideration will be controllirig 
 with a PATRIOT, who has never calculated the chances of 
 promotion, in his courageous devotion to its fortunes. 
 
 I am, as ever, your true friend, 
 
 WM. F. SAMFORD. 
 
GOV. VISE'S REPLY, 
 
 RICHMOND, VA., April 4, 1869. 
 To Wm. F. Samford, Esq. of Auburn, Ala. 
 
 My Dear Sie, 
 
 Yours of the 16th was received about 
 the satne time that the roUowing official communication came to 
 hand, from the executive department of the state of Vermont : 
 
 "STATE OF VERMONT, 
 
 Executive Department, 
 
 Woodstock, March 15, 1859. 
 Sir, 
 
 I am directed by his excellency Gov. Hall, to trans- 
 mit to you the accompanying copy of 'joint resolutions rela- 
 tive to slavery and the Dred Scott decision,' adopted by the 
 legislature of this state at its recent session in October and 
 November 1858. 
 
 I have the honor to be. 
 
 Very respectfully, 
 
 Your obedient serv't, 
 
 WILBUR P. DAVIS, 
 
 Secretary of Civil and Military Affairs. 
 His Excellency Gov. Wise. 
 
 Joint Resolution relative to Slavery and the Dred Scott Decision. 
 
 Resolved by the senate and house of representatives of the 
 state of Vermont, that the constitution of the United States 
 invests congress with the sole power to govern the territories — 
 a power always exercised, and never quftstioned by any de- 
 partment of the government, for more than sixty years after 
 the adoption of the constitution. 
 
6 
 
 Resolved, further, that, in the exercise of this power, con- 
 gress has the same right to exclude slavery, or any other evil, 
 from the territories of the United Slates that the states have, 
 by state legislation, to prohibit the same in the states; and, 
 as guardians of thfe public interests, it is the duty of congress 
 to exercise this fight. 
 
 Resolved, that Vermont will continue to resist the admis- 
 sion of new slave states into this Union, and the extension of 
 slavery into the territories of the United States ; and, now as 
 ever, will seek the abolition of slavery at the national capital, 
 and in all places under federal jurisdiction. 
 
 Resolved, that ail laws of congress which recognize the 
 right of property in man, or deprive any person of liberty 
 without due process of law, and a jury trial, or provide that 
 any person shall be delivered up, as owing service to another, 
 without such trial, are unconstitutional, void, and of no effect. 
 
 Resolved, that property in slaves exists only by positive 
 law of force in the states creating it. The moment it passes 
 from under the operation of these laws, it is property no 
 longer. 
 
 And whereas, the present federal administration and judi- 
 ciary have denied to the government and people of the United 
 States the right which the constitution guarantees to them, of 
 prohibiting the introduction of slavery into the territories ; and 
 have denied the right of the citizens of the independent states 
 of this Union to protect their liberties or property, by insti- 
 tuting suits in the courts of the United States ; therefore. 
 
 Resolved, further, by the senate and house of representa- 
 tives, that the. doctrine maintained by a majority of the judges 
 of the supreme court, in the case of Dred Scott, that slavery 
 now exists, by virtue of the constitution of the United States, 
 in all the territories, and in all places where the federal go- 
 vernment has jurisdiction — that the constitution carries slavery 
 wherever it extends — has no warrant in the constitution, or in 
 the legislative or judicial history of this country. 
 
 Resolved, that these extra judicial opinions of the supreme 
 court of the United Stales are a dangerous usurpation of 
 power, and have no binding authority upon Vermont, or the 
 people of the United States. 
 
 Resolved, that no ingenious sophistry of the judges of that 
 court can make it appear that the citizens of each state are 
 not citizens of the United Slates, and citizens when in the 
 OTHER STATES ; and entitled, as such, to all rights and privi- 
 leges of citizens inj|he several states. 
 
 Resolved, that, whenever the government or judiciary of 
 the United States refuses or neglects to protect the citizens of 
 
each slate in their lives of liberty, when in another state or 
 territory, it becomes the duty of the sovereign and indepen- 
 dent states of this Union to protect their own citizens, at what- 
 ever hazard or cost. 
 
 Resolved, that the senators in congress from this state be 
 directed, and our representatives requested, to use their utmost 
 endeavors to induce congress to propose amendments to the 
 constitution of the United States, so that the president and 
 vice-president of the United States be elected every fourth 
 year, by the ballots of the legal voters in the states, — a ma- 
 jority of all the votes cast at said election, in all the states, 
 constituting a choice. 
 
 Resolved, that in case of no election of president or vice- 
 president, in the manner prescribed in the preceding resolu- 
 tion, they should then be chosen, as such officers are now 
 chosen, by congress. 
 
 Resolved, that the governor of the state be, and he is 
 hereby requested to transmit a copy of these resolutions tp 
 the governors of the several stales, and to each of our sena- 
 tors and representatives in congress. 
 
 G. F. EDMUNDS, 
 
 Speaker of the House of Representatives. 
 
 BURNAM MARTIN, 
 
 President of the Senate." 
 
 These two communications, starting, the^ne from Alabama, 
 near the extreme south, and the other from Vermont, near the 
 extreme north, within a day of each other, and without con- 
 cert, addressed to me, at Richmond, Virginia— a middle point 
 between the two extremes — are ominously suggestive of the 
 sectional issues which are now agitating our counlry, and of 
 the results which threaten our peace. These issues have as- 
 sumed so grave and concrete a form that they can no longer 
 be put aside or postponed. As the chief executive of this 
 commonwealth, I shall present to its next general assembly 
 the answers and arguments I deem proper to be made in reply 
 to these resolutions of the state of Vermont ; and I cheerfully 
 avail myself of your request of my views, by furnishing you 
 with them, that they may have all the consideration they are 
 entitled to receive from the public mind of the whole country, 
 before that body convenes in December next. 
 
8 
 
 The whole subject resolves itself into these questions : 
 The Question, 
 
 Whether it is the duty of congress, and whether congress has 
 the powm' to ^protect the rights of ipersons and of property in the 
 territories, districts and other places belonging to the United 
 States? and 
 
 What rights of persons and of property may congress pro- 
 tect, and how protect t"hem, throughout the United States ? 
 
 Whatever were the relations existing between the colonial 
 and mother governments prior to the revolution; whatever 
 powers the colonial governors and legislatures may have pos- 
 sessed, whether vicegerent or primordial, whether imperial 
 at all, or belonging to the crown, merely, or whether com- 
 ponent or independent, in whole or in part, of parliament ; 
 whether parliament could tax without representation, or to 
 what extent discriminate in legislation between the colonies 
 and the original kingdom, the colonial relations bear no ana- 
 logy to our territorial relations, are not the foundation of them, 
 and cannot be referred to for argument either way, as'to the 
 power of congress on the subject under discussion. Parlia- 
 ment was supreme^— congress is not; the colonies were crea- 
 tures of parliament — the territories are oS'springs of deeds of 
 cession, and of a constitution of limited powers, duties and 
 prohibitions, created by independent states, which exercise 
 their own sovereignty, in defined parts, by an agent of the con- 
 federacy. The colonies were without and abroad to the mother 
 country ; the territories are within and at home to the United 
 States; a part of their eminent and useful domain, within 
 coterminous jurisdiction, and regulated in all their relations 
 by the same instrument which defines the state relations them- 
 selves. The colonies were governed by a very vague tradi- 
 tion of common law, and the territories are governed by a 
 very novel and definite charter of federal relations, among 
 sovereign states, which have reserved all powers to them- 
 selves which they have not granted expressly to a common 
 
9 
 
 national government by a written constitution ; and our terri- 
 tories are not known to the common law, but they are expressly 
 common themselves to all the confederate states. 
 
 Under 'the Confederation. 
 
 We begin, then, with the condition of things after revolu- 
 tion and independence, to obtain data for adjudicating the 
 powers of the government of the United States over the svl^ect 
 of real estate, its domain, its propriety, its regulation, its organiza- 
 tion, and its municipal control, and its final fixed state organiza- 
 tion. 
 
 A continent was laid out before the colonists, to be subdued 
 by their conquests and labors. Discovery acquired some of 
 it, in North America, for France, some for Spain, and some 
 for Great Britain. Before 1776, the northern British colonies 
 had subdued and acquired all French Acadie north of the 
 lakes ; and Virginia, by her colonial arms alone, in the great 
 expedition under George Rogers Clarke, had penetrated be- 
 yond the Ohio to Kaskaskia and Vincennes, and taken all the 
 territory northwest of the river Ohio ; and all the colonies 
 had respectively invaded the Indian territorial domain in their 
 limits, and claimed, by defined boundaries of charter and 
 conquest, far beyond their settlements. Virginia, for example, 
 had grown immensely beyond the limits of the charter of 
 King James, and so out of all proportion to the other states, 
 that from 1783 to 1787 she acceded to the land ordinances of 
 that period, particularly that of 1787, and ceded to the con- 
 federation the vast domain which she had acquired from the 
 French, and which had been acknowledged to be in our limits 
 by the treaty of peace and independence with Great Britain. 
 Great Britain had retained Acadie, now the Canadas, but Vir- 
 ginia acquired for the confederacy and ceded to it the vast 
 territory, its towns and settlements, and lands and people, 
 northwest of the river Ohio. 
 
 The present constitution was not formed until after all these pro- 
 minent and most suggestive facts toere existing. When the con- 
 2 
 
10 
 
 vention deliberated, on the framing of a constitution in 1789, 
 they found the old confederation in full governmental posses- 
 sion of all this territory, already acquired, already governed . 
 and to be governed. " Territory" in what sense ? " Territory" 
 in the sense of land, "territory" in the sense of eminent and 
 useful domain, and "territory," too, in the sense of land in 
 the occupancy of the Indians, in a state of pupilage, whose titles 
 had not been extinguished, for the most part, and land settled in 
 part by civilized white subjects, who had, and required to have, 
 codes of municipal jurisdiction under the government of the 
 United States. It was territory in every sense of property, 
 « people and government. 
 
 These were the facts ; this was the condition of the sub- 
 jects of government, and so the convention which framed the 
 constitution of the United States found them to exist. Before 
 we enquire what disposition that cqnstitution made of them 
 in 1789, let us first ask the question : What powers over this 
 ceded territory and its settlers had the old confederation be- 
 fore 1789 ? Was there any other limit to its powers than that 
 defined by the ordinances and deeds of cession prior to 1789 ? 
 None that I know of. The powers in those limits, fixed by 
 the ordinances and deeds of cession, pertained to every sub- 
 ject of eminent domain and municipal authority within the 
 bounds of republican government. The territory, its settlers 
 and Indian tribes, were entirely, in other words, under the 
 control and protection of the confederation. 
 
 Was any of this property in domain, or power over it and 
 its settlers and occupants, taken away from the government 
 of the United States or from congress by the constitution of 
 the United States? On the contrary, by the 1st clause of 
 article 6th : " All debts contracted, and engagements entered 
 into before the adoption of this constitution, shall be as valid 
 against the United States under this constitution, as under the 
 confederation." This property was thus clearly recognized 
 as existing, and the powers over it were made valid, and other 
 powers were given confirming the rule and regulation of it, 
 and the means and the authority both were given for further 
 
11 
 
 and indefinite acquisitions of territory, to be governed by con- 
 gress until new states should be formed of it and admitted 
 into the Union. These particular provisions we will now 
 proceed to examine in limine. 
 
 Some enquire : in what clause of the constitution of the 
 United States is it given to govern and control the territories 
 of the United States? My answer is, that the power runs 
 through the whole frame work of that instrument ; it is in 
 every article, if not in every section and clause. We will 
 begin at the beginning of it. 
 
 Under the Constitution. 
 
 FiKST — The preamble. We will not follow the federal 
 example of Mr. Webster, in going to the preamble for powers ; 
 but we will go to it to ascertain what were the ends and ob- 
 jects of the powers granted. 
 
 We see it formed, not by masses in the aggregate, not by 
 a nationally consolidated people, but by " the people of the 
 United STATES." They were STATES, states UNITED, 
 and they were that people who were "united" in separate and 
 independent "states." They thus, in their federal state capa- 
 cities, not in their individual and personal masses, said : " We, 
 the people of the United States, in order" — that is, to the end 
 and uokh the dbject : 
 
 1st. To form a more perfect union. 
 
 2nd. To establish justice. 
 
 3rd. To insure domestic tranquillity. 
 
 4th. To provide for the common defence. 
 
 5th. To promote the gfeneral welfare. And 
 
 6th. To secure the blessings of liberty to ourselves and 
 our posterity — 
 " Do ordain and establish this constitution for" — not an aggre- 
 gate mass, not a consolidated people' — not for any people, in 
 their individual persons as people, but "for the United STATES 
 of America." 
 
 Those who rely on this preamble for a consolidating con- 
 
12 
 
 slruction, emphasize the words, " We, the people," and give no 
 effect to the words, "of the United States;" but I cite it to 
 show the ends and objects of the government of the United 
 Stales, which must be aimed at by every construction of 
 powers ; and which no exercise of power must ever be al- 
 lowed to destroy, and no want of exercise of power must ever 
 permit to fail. 
 
 These ends and objects are, undoubtedly, common, to the 
 whole confederacy ; they are national and not local. They 
 are the aims of "a more perfect union" of the states; and no 
 federal nor local legislation which impairs that perfection of 
 union between the states, which does any injustice between 
 them, or their citizens, which incites to any domestic violence, 
 which does not provide for the " common defence," which does 
 not promote the "general welfare," and which does not secure 
 that equality of dignity, rights and privileges, without which 
 the blessings of liberty cannot exist to ourselves, nor be per- 
 petuated to our posterity, can be rightly judged, as consistent 
 with the ends and aims of the constitution of. the United 
 States, made. expressly to perfect, preserve, protect and per- 
 petuate common and reciprocal rights, as between sovereign 
 and coequal states, in a common confederacy of states. All 
 its ends are common, all its possessions are common, all its 
 powers are common, all its rights and privileges are common, 
 its defence of all these is common, and itself is common to 
 all its sovereigns who formed it — the United Stales of America. 
 It cannot exclude one and prefer another of these states or its 
 subjects and citizens without violating the very ends and ob- 
 jects of its own existence. It could not do so without marring 
 the perfection of the Union, without doing injustice, without 
 destroying domestic tranquillity, without failing to provide for 
 the common defence, without impairing the general welfare, and 
 without exposing " the blessings of liberty to ourselves and 
 our posterity" to the risks and dangers and damage, and it 
 would liisely be the destruction, of revolution. 
 
 The least exercise of mind upon this remarkable and preg- 
 nant preamble, shows j'ou that, as an enumeration of the ends 
 
13 
 
 of government, it is definite and limited ; but, viewed as an 
 enumeration of the powers of government, it is indeOnite and 
 unlimited. In the one view it is clear and distinct, and in the 
 other it is vague and indescribable. It defines merely the 
 ends ; and the body of the constitution proceeds to form the 
 parts of the government; and then to endow it with its sped- 
 Jied, limited and express powers. It would be absurd to say, 
 for example, " to form a more perfect union," is a power 
 granted. What sort of a power is that, or would that be, if 
 meant as a power or function of congress ? would be aptly 
 asked, and no definition of power could be given in answer. 
 But, viewed as an end, it is definite in itself, and no question 
 could confuse its terms or meaning. And the first, and the 
 second, and the third, and the sixth, being clearly and obvi- 
 ously meant, necessarily, as ends, not powers, the foarth and 
 the fifth, of "common defence" and "general welfare," are in 
 the same category, evidently, and cannot be construed as 
 powers, and not ends. We see, then, that the true interpreta- 
 tion of the preamble is, that it defines the ends and objects of 
 the constitution to be to establish between the states and the 
 people a community, reciprocity and equality of rights, privi- 
 leges and protection in a more perfect union of justice, peace, 
 stienglh, prosperity and liberty. 
 
 Article I. 
 
 II. The constitution itself, article first, vests in a congress 
 of the United States, to consist of a senate and house of re- 
 presentatives, " all legislative powers herein granted." This 
 cautiously limits the powers of congress by the words, "herein 
 granted." No men knew better than did the framers of the 
 constitution that the words " legislative," " executive," and "ju- 
 dicial," were words of technical and well received meaning. 
 Had they said " all legislative powers shall be vested," they 
 would have granted powers far beyond the limitations of the 
 grants they intended. They meant to confer upon congress 
 no executive, and no judicial powers, except those they de- 
 
14 
 
 fined ; and not even all the powers which are, in their nature, 
 legislative. They expressed, therefore, precisely what they 
 meant ; to vest in congress none other than granted legislative 
 powers, but not all powers which were " legislative." And by 
 the 3rd clause of section 2nd of article 1st, they, in the ap- 
 portionment of taxation and representation among the "several 
 states" — not among the people in the aggregate — recognized 
 that property which was called and known as slave property, 
 in the terms " ihree-Jifihs of all other 'persons" besides *^free per- 
 sons, including those bound to service for a term of years, and 
 excluding Indians, not taxed." Representation — a voice in 
 congress was thus given to this particular and peculiar species 
 of property, distinct from all other property, because it is a 
 property which, though it has no more voice in the state elec- 
 tions for representation in congress than any other property, 
 yet numbers in the persons of their population of the states. 
 It was then, and is now, property in ^persons — the persons were 
 and are negro slaves, and were then known and recognized as 
 such. And thus, by federal enumeration and apportionment, 
 this property was made to enter into the very representation 
 in congress, and there, in considerable and very appreciable 
 force, to partake, by its representatives, in the legislative 
 powers of congress. This participation in legislative powers 
 was given it expressly for its special protection*. Let those, 
 then, who ridicule the term "peculiar institution" so much, ask 
 themselves whether there is not an institution in the property in 
 persons here recognized, and an institution of representation of 
 slaves here agreed to, and an institution of legislative powers 
 established to enable that property in slaves in part to protect 
 itself — to protect itself under a common government in the en- 
 joyment of its common privileges? And, if in answering this 
 question, any scoffer remains still to scoff, let him avowedly 
 and shamelessly scciff, not at the despised slave states for their 
 " peculiar institution," but at this express provision of the con- 
 stitution of the United States, in which it is, as herein insti- 
 tuted, a more " peculiar institution" than as any where else 
 established in any of the states, of the more perfect union of 
 which it is thus made a peculiar element of legislative powers. 
 
15 
 
 Direct Taxation. 
 
 The representatives of these slaves, their portions of fede- 
 ral powers, are to be apportioned together with "direct taxes." 
 What are " direct taxes?" If the case of Hylton, plaintiff in 
 in error vs. the United States, which raised this question under 
 the act of congress of the 5th June 1794, laying a tax upon 
 carriages, decided by the supreme court in 17i96, is still to be 
 regarded as law, it is doubtful whether any tax is a " direct 
 tax" except "a capitation or yoll tax, simply without regard to 
 property, profession, or any other circumstance, and a tax on 
 land" However that may be, the supreme court of the 
 United States decided in that case, that " the great object of 
 the constitution was, to give congress a .power to lay taxes 
 adequate to the exigencies of government ; but they were to 
 observe two rules in imposing them, namely, the rule of uni- 
 formity., when they laid duties, imposts or excises; and the rule 
 of apportionment, according to the census, when they laid a di- 
 rect tax." " A general power is given to congress to lay and 
 collect taxes, of every kind or nature, without any restraint, ex- 
 cept only on exports; but two rules are prescribed for their 
 government, namely, uniformity and apportionment; three kinds 
 of taxes, to wit, duties, imposts and excises by the first rule, 
 and capitation or other direct taxes by the second rule." " The 
 constitution evidently contemplated no taxes as direct taxes, but 
 only such as congress could lay in proportion to the census. The 
 rule of apportionment is only to be adopted in such cases where 
 it can reasonably apply ; and the subject taxed, must ever de- 
 termine the application of the rule." Patterson, justice, said : 
 " I never entertained a doubt that the principal, I will not say 
 the only objects that the framers of the constitution contem- 
 plated as falling within the rule of apportionment, were a 
 capitation tax and a tax on land. Local considerations, and 
 particular circumstances and relative sftuations of the states, 
 naturally lead to this view of the subject. The provision was 
 made in favor of the southern states. They possessed a large num- 
 
16 
 
 ber of slaves; they had extensive tracts of territory, thinly set- 
 tled, and not very productive. A niajority of the states had 
 but few slaves, and several of them a limited territory, well 
 settled and in a high stale of cultivation. The southern states, 
 if no provision had been introduced in the constitution, would 
 have been wholly at the mercy of the other slates. Con- 
 gress, in such case, might tax slaves, at discretion, or arbitra- 
 rily, and land in every part of the Union after the same rate 
 or measure, so much a head in the first instance, and so much 
 an acre in the second. To guard them against imposition in 
 these particulars, was the reason of introducing the clause in 
 the constitution, which directs that representatives and direct 
 taxes shall be apportioned among the states, according to their 
 respective numbers. He argued, further, that the rule of ap- 
 portionment was not to be preferred to. the rule of uniformity ; 
 but the former was to be applied only where the constitution 
 imperatively requires it to be applied, to wit, to " capitation or 
 other direct taxes," and where it would reasonably apply. He 
 considered it radically a wrong rule, and asks, "why should 
 slaves, who are a species of properly, be represented more 
 than any other property ?" Yet they are represented in part 
 as persons, and ■ he therefore yielded that the rule of appor- 
 tionment applied to them, because they were represented, but 
 contended that it " ought not to be extended by the constitu- 
 tion." There was no dissenting voice to this decision of a 
 court consisting of Chase, Patterson, Iredell and Cushing, the 
 latter of whom gave no opinion. It settled that all taxes, 
 whether direct or indirect, under the laws of congress must 
 be governed by one of two rules — apportionment or uniformity. 
 The tax upon slaves must be a poll or capitation tax, and is 
 therefore a direct tax, and must be apportioned among the several 
 states. How, then, can a territorial legislature tax them, or 
 congress give to such legislature the power to tax ihem, with- 
 out apportioning a capitation tax among the several states, ac- 
 cording to the census ? or, if the lax be not a direct tax to be 
 apportioned, but such as the tax on stage coaches in this case, 
 without making it a uniform tax throughout the United States 
 
17 
 
 under the rule of uniformity ? It would have to be uniform or 
 apportioned, and apply to all the states and territories alike. 
 Will it be said that the power and duty of apportionment and 
 uniformity apply only to the " several states," and not to the 
 territories ? If so, the supreme court has given the answer to 
 this question in the decision by Judge Marshall in the case of 
 Loughborough vs. Blake, 5 Wheaton 317 : 
 
 " The 8th section of the first article gives to congress the 
 'power to lay and collect taxes, duties, imposts and excises,' 
 for the purposes therein mentioned. This grant is general, 
 without limitation as to place. It consequently extends to all 
 places over which the governmenr extends. If this could be 
 doubted, the doubt is removed by the subsequent words, 
 which modify th^ grant. These words are, 'but all duties, 
 imposts and excises shall be uniform throughout the United 
 States.' It will not be contended that the modification of the 
 power extends to places to which the power itself does not 
 extend. The power, then, to lay and collect duties, imposts 
 and excises, may be exercised, aTid must be exercised, through- 
 out the United States. Does this term designate the whole, 
 or any particular portion of the American empire ? Certainly 
 this question can admit of but one answer. It is the name 
 given to our great republic, which is composed of states and 
 territories. The district of Columbia, or the territory west 
 of the Missouri, are not less within the United States than 
 Maryland or Pennsylvania ; and it is not less necessary, on 
 the principles of our constitution, that uniformity in the impo- 
 sition of imposts, duties and excises, should be observed in 
 the one than in the other. Since, then, the power to lay and 
 collect taxes, which includes direct taxes, is obviously co- 
 extensive with the power to lay and collect duties, imposts 
 and excises, and since the latter extends throughout the United 
 States, it follows that the power to impose direct taxes also 
 extends throughout the United States." 
 
 Owing to the peculiar phraseology of the various clauses of 
 the constitution, the judge, after showing the power to be co- 
 extensive with the limits of the great republic, admits that 
 3 
 
18 
 
 "the words of the ninth section do not in terms require that 
 the system of direct taxation, when resorted to, shall he ex- 
 tended to the territories, as the words of the second section 
 require that it shall be extended to all the states." But that 
 they are to "be understood to give a rule when the territories shall 
 he taxed, without imposing the necessity of taxing them. In 
 other words, the congress may or may not lax the territories ; 
 but, if they are taxed, it must be by the same rule as that of 
 taxing the states ; either of apportionment or uniformity. If we 
 are to be governed by these clear decisions and the rule of 
 respect for the supreme court, et stare decisis, what becomes 
 of the idea*of territorial legislatures having the power to ex- 
 clude slaves, or hinder slave property, by discriminating local 
 taxes ? No such territorial legislative power can exist. What 
 is a territory, or territorial legislature? It is a creature of 
 congress. It is derivative federal power. Can it do more 
 than congress ? Can congress delegate to it more power than 
 it can exercise itself? Congress can lay no taxes which are 
 not uniform or apportioned — uniform if indirect, apportioned if 
 direct — can a creature of congress do more? If congress 
 cannot discriminate and make one state and its citizens pay 
 more taxes than another and its citizens, neither can its creature. 
 If congress is obliged to make its indirect taxes uniform, and 
 to apportion its direct taxes among the " several states," still 
 more is the territory, if taxed at all by federal authority, 
 boun,d to observe the two rules of uniformity and apportion- 
 ment, or the one or the other. But indirect taxation cannot 
 apply to slaves. Their tax must be a poll or capitation tax, 
 and that is a "direct tax," and must be apportioned according 
 to the census. Slaves are not treated as free persons bound 
 to service for a term of years, or as Indians, taxed or not taxed, 
 but they are called in the constitution "other persons," known 
 to be of the negro race, themselves and their generations en- 
 slaved for ages. They are rated as persons, it is true, of an 
 inferior race, and so conceded to be by the states of their 
 masters. Only three-fifths of their number were allowed and 
 conceded to be entitled to representation, in comparison with 
 
19 
 
 persons free, and bound only for a term of years ; but accord- 
 ing to their personal value or grade of persons, their portion 
 of legislative powers was conceded to them. How the rela- 
 tive value came lo be fixed at three-fifths of their number, it 
 is needless to enquire ; it is suflBcient that free persons would 
 not admit slaves to be their equals, and the masters of slaves 
 were bound to concede their inferiority as persons, in some 
 proportion, and this proportion was assumed. But, in this 
 proportion, at least, they are to be counted as persons entitled 
 to representatives. They count not themselves, but their 
 masters count them ; and they, the masters, are multiplied in 
 their slaves, in that proportion. In that proportion this pro- 
 perty has representation apportioned to it in the states. They, 
 the slaves, in the states, have senators, and they have repre- 
 sentatives in congress, too. And yet the territories and dis- 
 tricts, and other places, have no representation apportioned 
 to them, and have no senators. And can it be so, with this 
 marked "peculiarity" of a participation in the powers to 
 create "territories, districts or other places," or to modify, or 
 even repeal, the laws creating them, that this power, as well 
 as property in persons, is not entitled to protection within its 
 own creatures, in part — the territories ? Is it not absurd to 
 say that the legislatures of a territory, created by congress, 
 and having no representation in congress, may exclude the 
 slave power and the slave property from the territory, or so 
 impair its value as to exclude it, and that congress may not 
 interpose to establish justice, to insure peace, to provide for 
 the common defence of persons and of property, to promote 
 the general welfare of all the states and their citizens, and to 
 secure the equal blessings of the liberty to settle common 
 territory out of which state power and representative power 
 are to be created ; when that very slave property is an ele- 
 ment of the existing power of territories ; is an element of 
 the legislative power of congress itself; is a part of the crea- 
 tor over the creature itself? This yroperly is, in its nature, 
 persons, federal persons enumerated by census — persons to 
 
20 
 
 whom representation is apportioned, and to whom direct taxes 
 must, in part, be apportioned. The direct tax, which alone 
 can reach it, under federal legislation, is the poll tax, and that 
 must be laid by the federal rule. The territorial power is but 
 derivative federal power, and must observe the law of its 
 own being — the federal rule as prescribed by the constitution. 
 Slaves, then, under the constitution, as expounded by the supreme 
 court, cannot be excluded from the territories or oppressed within 
 them, by any local taxation wanting apportionment. Thus the 
 constitution protects against the unequal taxation of persons or 
 property in the territories. 
 
 We now are prepared to proceed to the next clauses of the 
 constitution. The section of specific powers of congress, 
 section 8th. 
 
 By the 3d clause of section 2d of article 1st : "Represen- 
 tatives and direct taxes shall be apportioned among the several 
 states which may be included within this union, according to 
 their respecnve numbers, which shall be determined by adding 
 to the whole number of free persons, including those bound 
 to service for a term of years, and excluding Indians not 
 taxed, three-fifths of all other persons," &c. 
 
 By this clau'se of section 8th : 
 
 "The congress shall have power to lay and collect taxes, 
 duties, imposts and excises, to pay the debts, and provide for 
 the common defence and general welfare of the United States ; 
 but all duties, imposts and excises shall be uniform throughout the 
 United States." 
 
 And, by the 4th clause of section 9th of article 1st: 
 
 '^No capitation, or other direct tax shall be laid, unless in pro- 
 portion to the census or enumeration herein before directed to 
 be taken." 
 
 It was under these clauses, to recbncile and expound them, 
 that the decisions of the supreme court referred to, were 
 made. Federal taxation, it is shown, consists of two classes 
 of taxes : 
 
 1st. Direct; supposed to be capitation and land tax alone. 
 And, 
 
21 
 
 2d. Indirect taxes, embracing duties, inoposls and excises. 
 And, 
 
 1st. The first are always to be apportioned with represen- 
 tatives among the several states, according to their respective 
 numbers of described persons; and among these are three- 
 fifths of the slaves ; and no direct tax can ever be laid, unless 
 in proportion to this census thus described to be enumerated; 
 and, 
 
 2d. The second, consisting of duties, imposts and excises, 
 are always to be "uniform throughout the United Slates;" and, 
 
 3d. Congress may or may not tax the territories ; as inclu- 
 ded under the first clause of section 8lh, in the United States, 
 but not necessarily included among the "several states," in the 
 apportionment required by the 3d clause of section 2d ; but 
 if congress, or power derived from congress, does lax the ter- 
 ritories as well as states, it must be done by one of the two 
 rules above, of apportionment or uniformity. And, 
 
 4th. If slaves, or "other persons," in states or territories, 
 are taxed by congress or its authority, it must be done under 
 the clauses apportioning representatives and capitation or 
 other direct taxes, taxes upon persons being capitation and di- 
 rect taxes throughout the United States. 
 
 By these decisions of the supreme court also, the word 
 "taxes" in this 1st clause of section eight includes direct as 
 well as indirect taxes. And all taxes, whether direct or in- 
 direct, n»ust be laid and collected for the same federal ends as 
 those for which the preamble of the constitution provides : 
 
 1st. ^To pay the debts of the United States. 
 
 2d. To provide for the common defence of the United States. 
 And, 
 
 3d. To provide forlhe general welfare o^ the United States. 
 
 The power is to " lay and collect taxes," &c. but the ends 
 and objects are those just enumerated expressly. Could any 
 taxes, then, laid and collected upon slaves in territories, under 
 authority conferred by congress, be other than a direct or poll 
 tax, to be apportioned througnout the several states and terri- 
 tories of the United States ? Or, if duties, imposts or excises, 
 
22 
 
 or other indirect taxes, can be laid and collected upon them at 
 all, under federal authority, must they not be laid to pay the 
 debts, or to provide for the common defence and general wel- 
 fare — not of a territory, not of a locality, not of one portion 
 of the United States — but for those ends and objects, of the 
 whole United Stettes ? Can federal taxes be laid and collected 
 from these " other persons," unless they be direct taxes, unless 
 they be for national debts, common defence, or general welfare 
 of the whole United States, and unless they be apportioned 
 among the Several states or throughout the United Stales ? 
 Can they be laid and collected by local, federal legislatures in 
 territories, for separate territorial purposes, or for objects of 
 philanthropy or fanaticism, or other objects than those of pay- 
 ing the debts and providing for the common defence and gene- 
 ral welfare of the United States? They must not be taxed 
 at all in the territories, then, or be taxed by direct taxes only ; 
 which must be apportioned according to the census throughout 
 the United States ; or, if by indirect taxes at all, for the ex- 
 press objects named by the constitution, for national, or 
 " United Slates" objects, not for local and special territorial or 
 corporate and municipal purposes; and these propositions ap- 
 ply alike to all persons, and to all subjects of taxation, as well 
 as to the persons and property in slaves, denominated " other 
 persons," in the constitution, to whom representatives and 
 direct taxes have to be apportioned. 
 
 Again : Congress has laid and collected an immense amount 
 of taxes, dutiesi, imposts and excises* This revenue has been 
 raised from the common consumption or property of the United 
 States, or from the federal persons enumerated by the consti- 
 tution. And it has been expended in immense sums for public 
 lands* First, in clearing off Indian titles, in Indian treaties, 
 on Indian agencies, in Indian wars, in a purchase from Spain, 
 in a purchase from France, in annexation of Texas, in a war 
 with Mexico, and in a purchase froiil Mexico ; and in sur- 
 veyors, and registers' and receivers' offices of the land office ; 
 and in the endowment of territories with school lands and 
 public buildings, and salaries of officers, and on their admis- 
 
23 
 
 sion as states ; and in their protection fronn Indians, in time of 
 peace, and in their roads and other improvements, and in pen- 
 sions and in treaties with Great Britain. The larger extent 
 of our present territory has been added since the formation of 
 the constitution in 1789. If a strict account was stated with 
 the public lands and public treasury since that period, it would 
 be found that the lands have cost the United Stales far more 
 than the sum total of their-sales. But, however that may be, 
 whether the lands, or the money in the treasury, or both were 
 expended, the fund expended was a common fund, and an 
 immense amount of both have been expended on the territo- 
 ries, and their admission as new states. The existing states, 
 then, having expended their common blood and treasure for 
 this common territory, shall they not be put upon a common 
 fooling of equality in its limits? shall anyone or portion of 
 the states and their citizens have their common lands, taxes, 
 imposts or excises taken from them and expended on these 
 common territories, and be excluded from their common bene- 
 fits and enjoyments? Shall any of them be excluded by any 
 trick or device of local territorial legislation ? If that be at- 
 tempted, shall not congress, the common trustee and agent, 
 with full power under the constitution, be required to inter- 
 pose protection? Is ii not the duty of congress, the power 
 clothed with the authority under the constitution, to exercise 
 its authority to preserve equality to the weak against the 
 strong, to the few against the many, in the cqrnmon privileges 
 and immunities of citizens of the United States, if they be 
 invaded in their rights, whether invaded by unlawful arms or 
 by unequal or unconstitutional laws, in the territories of the 
 United States, purchased and nurtured by the common trea- 
 sures of the United States ? To ask these questions is to an- 
 swer them. 
 
 Not only does this reasoning apply to the territories under 
 the power of congress to lay and collect taxes, but it applies 
 under every specific power of congress enumerated in the 
 1st article. It applies under the powers to borrow money; to 
 regulate commerce among the several stales and wiih the 
 
24 
 
 Indian tribes ; to establish the rule of naturalization and laws 
 of bankruptcy ; to coin money and regulate its value, and to fix 
 the standard of weights and measures ; to punish counterfeit- 
 ing the securities and current coin of the United States ; to 
 establish post oflBces and post roads ; to promote science and 
 useful arts ; to constitute inferior judicial tribunals ; to define 
 and punish offences against the laws of nations j to declare 
 war and make rules concerning captures; to raise and sup- 
 porfarmies ; to provide and maintain a navy; to make rules 
 for the land and naval forces, and to provide for the calling 
 forth the militia to execute the laws of the Union, suppress insur- 
 rectimis and repel invasions; and to provide for organizing, arm- 
 ing and disciplining the militia; and though it is reserved to 
 the states, respectively, to appoint the officers and tojrain 
 the militia, according to the discipline prescribed by congress, 
 yet there is no such power reserved to territories. And, if 
 equality of rights, and right to protection in the enjoyment of 
 common privileges in common territory, is part of the laws of 
 the Union, then congress may and must provide for executing 
 it, and for suppressing all insurrections against it, or to repel 
 any invasion of that right. Besides these express and specific 
 powers of congress touching territories, as well as states, and 
 more absolute or unqualified over the territories than over the 
 states, there are the conditions prescribed in the deeds of 
 cession and land ordinances, which declare the objects of the 
 cessions of the public lands, particularly by Virginia, in the 
 northwest lerritor}'. They es_pecially provide that the lands 
 shall be in all respects applied to common, federal purposes* 
 according " to the general gharge and expenditure." 
 
 Can it be supposed that cessions by the particular states, 
 and especially by the slave states, which made all the prin- 
 cipal early cessions, would ever have been made to the United 
 Stales, if they had ever intencled that congress might discri- 
 minate, or create territorial legislatures to discriminate, against 
 them and their persons, in legislation for the territories? Would 
 they ever have consented to the expenditure of their common 
 treasure for the acquisition of additional territory, if they could 
 
25 
 
 be excluded from its use and occupancy, in common with the " 
 confederate states ? Never ; and every thing in the deeds of 
 cession and in the constitution of the United States excludes 
 and forbids such a conclusion. 
 
 Powers of Congress over District of Columbia, &c. 
 
 But, it is said that congress is given " exclusive legislation 
 in all cases whatsoever," over the district which is, or may 
 be, the seat of government of the United States ; and over 
 all places purchased for the erection of forts, magazines, 
 arsenals, dock yards, and other needful buildings ; and that 
 this power is absolute and unconditional, and most analogous 
 to that over the territories, if not the same. This brings us 
 to consider the 17th clause of section 8th: 
 
 " 17. To exercise exclusive legislation in all cases whatsoever, 
 over such districts (not exceeding ten miles square) as may, 
 by cession of particular states, and the acceptance of congress, 
 become the seat of the government of the United States, and to 
 exercise lUce authority over all places purchased by the consent 
 of the legislature of the state in which the same shall be,/or 
 the erection of forts, magazines, arsenals, dock yards, and other 
 needful buildings." In a debate in the house of representatives, 
 December 22d, 1835, 1 took occasion to view this clause in all 
 its bearings upon the then pending question : " Has congress 
 
 THE power to abolish SLAVERY IN THE DISTRICT OF CO- 
 LUMBIA ?" The argument then made I have carefully re- 
 viewed, and now adopt it as sound, and condense it as a com- 
 mentary on this clause. (See Gales & Beaton's Register of 
 Debates, December 22, 1825, H. R., vol. 12, part 2d, 1835-6.) 
 With very little alteration, addition, or amendment, I adopt 
 and apply it again. 
 
 By this clause, congress is constituted a legislature in two 
 characters, and in a twofold relation : 
 
 1st. It is a national legislature for the Union, with specific 
 and enumer,ated powers ; and, 
 
 2d. It is a local legislature, with power of «' exclusive le- 
 4 
 
26 
 
 gislatian, in all cases whatsoever," over the district of Colum- 
 bia ; but, 
 
 3d. Its powers, as a local legislature, even over the district, 
 and other places, are given to be exercised hr the. common and 
 Jkderal purposes of the confederacy or union of slates. And 
 herein, at once, is a marked distinction between the district 
 for a seat of government of the United States, and other places 
 ceded for the purposes of forts, magazines, arsenals, dock yards and 
 other needful buildings, on the one hand, and the territory of 
 the United States, on the other hand. Congress must legislate 
 for the district of Columbia, and these places, as a legislature 
 created as to them, for local as well as national purposes, with 
 local as well as national powers. But in legislating for the 
 territory of the United States, it is given no powers of a local 
 legislature at all; but all its powers are national and federal. 
 For the district of Columbia, it may lay and collect merely 
 local and municipal taxes, and grant corporate powers to tax 
 for police and other municipal and local purposes ; but in 
 legislating for the territory of the United States, it may do 
 nothing but what is for national and confederate uses and pur- 
 poses; because, in that relation it can act only as a national 
 legislature, and has no power of merely local legislation at 
 all. But whether legislating for the district and other places 
 as a local legislature, or for the district and other places, and 
 the territory of the United States, as a national legislature, 
 yet all its legislation must be federal legislation, or such only 
 as is consistent with common and confederate ends and ob- 
 jects and interests. There is no absolute and unrestricted 
 power of legislation given in either case. 
 
 What do the words : " to exercise exclusive legislation, in 
 all cases whatsoever," mean ? Do they confer absolute power 
 of legislation? The word is " exclusive," not " absolute;" and 
 "in all cases whatsoever" the power is to be *^ excltisive," not 
 "absolute." The phrase, truly interpreted, is, that congress, 
 " in all cases whatsoever," of legislation at all, shall have 
 " exclusive" legislation ; but the power is not given to legislate 
 " in all cases whatsoever ;" " exclusive legislation" only is given 
 
27 
 
 " in all cases whatsoever." And what power of legislation 
 is excluded by this grant of " exclusive legislation in all cases 
 whatsoever?" 
 
 These words certainly give to congress aliane, exclusively, 
 the power to legislate for the district of Columbia, for a se^ 
 of governmenti a;nd for all places for the. erection of forts, 
 arsenals, magazines,, dock yards, &c. No state can legislate 
 for them ; and they, not being- represented,] cannot legislate 
 for themselves. It is readily admitted' that congress, as a 
 local legislature,, has, to some extent, a power of legislation 
 over the district and these places, which it has not as a na- 
 tional legislature over the states and their people; This clause 
 of the constitution, undoubtedly, does not mean that the enu- 
 merated powers of congress to legislate over the states only, 
 shall be exercised exclusively over the district ; for many of 
 these powers, belonging to the national Itegislature, are wholly 
 inapplicable, and all wholly inadequate to the various local ob^ 
 jects of municipal regulations, for which congress alone can 
 and must provide by law, in the district. But, whilst the 
 constitution give® " exclusive legislation" over the district, it 
 does not define the powers of that legislation. It uses the 
 sweeping and apparently absolute term, " in all cases what- 
 soever ;" but still the question remains : Is this legislation 
 absolute and unlimited? Is it supreme and uncontrolled? 
 Is this " exclusive legislation in all cases whatsoever," a "su- 
 preme power" to " prescribe" any "rule of civil conduct" in 
 the district, &ev, as pairliament may in the kingdom of Great 
 Britain ? If it be so, let us fellowthei results to their extreme 
 absurdities. 
 
 There are certain clauses of th& constitution of the United! 
 States which resl'rain congress, as the national legislature, 
 from passing certain laws — as that which forbids the suspen- 
 sion of the writ of habeas corpus, the passage of a bill of at- 
 tainder or ex pose facto law ; a law respecting the establish- 
 ment of religion, or prohibiting the free exercise thereof; or 
 abridging the freedom of speech, or of the press ; or the right 
 of the p©(S«ple to assemble and petition for the redress of grie- 
 
28 
 
 vances ; or the right of the people to keep and bear arms ; 
 or the right to be secure in persons, houses, papers and 
 efFects ; as in that which says : " Nor shall private property 
 be taken for public use, without just compensation." Will it 
 bte contended that congress, as the local legislature of the 
 district of Columbia, under the power of "exclusive legisla- 
 tion in all cases whatsoever," has unlimited power to pass 
 laws impairing any of these rights in the district, any more 
 than in the stales ? To go further. Congress is prohibited 
 from passing certain laws, partial in their operation, as be- 
 tween the states only, eo nomine: As in. that clause which 
 provides that " no tax or duly shall be laid on articles ex- 
 ported from any state. No preference shall be given to the 
 ports of one state over those of another ; nor shall vessels 
 bound to or from one state, be obliged to enter, clear, or pay 
 duties, in another." Can congress, under this clause of '» ex- 
 clusive legislation," &c., pass a law taxing articles exported 
 from any port or place in the district? Can it give any pre- 
 ference to the ports of the district over those of the states of 
 the Union ? Can it oblige vessels to or from either or all of 
 the states, to enter, clear, or pay duties in the district ? We 
 presum^ not — that no one would contend for such authority. 
 Yet, why not? if this power of "exclusive legislation, in all 
 cases whatsoever," is to be construed as absolute and un- 
 limited ; for the district is not named in any of these clauses 
 of prohibition. The states only, are named, and the prohibi- 
 tions apply only to them by name. The argument applied 
 by Judge Marshall to the words " United States," as " the 
 name of the Great Republic," in the case of Blake vs. 
 Loughborough, does not apply to the word " state" or " states." 
 The answer is, because the power of " exclusive legislation" 
 is not an absolute and unlimited power. 
 
 Again: The constitution requires certain duties and obli- 
 gations from one state to another, to be discharged and ob- 
 served. " The citizens of each state shall be entitled to all 
 privileges and immunities of citizens in the several stales." 
 And, "No person held to service or labor in one stale, under 
 
•29 
 
 the laws thereof, escaping into another, shall, in consequence 
 of 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." Will it 
 be contended that congress, as the local legislature of the dis- 
 trict, is not bound to observe these duties and obligations in 
 the district, though the district be not named in these clauses? 
 These are vital questions, which can be answered but in one 
 way. The district is included in these clauses, though not 
 named ; and Attorney General Gushing rightly construed the 
 existing fugitive slave law as applying to the Indian reserva- 
 tions and territories, as well as to the states and other territo-* 
 ries and districts, because the jurisdiction is a federal jurisdic- 
 tion, and all these places are within the jurisdiction of the 
 United States. 
 
 Again : The constitution prohibits the states from doing 
 many acts, without mentioning the district of Golumbia. " No 
 state shall enter into any treaty, alliance or confederation ; 
 grant letters of marque and reprisal ; coin money," &c. (Sec. 
 10th, art. 1st, &c.) Gan congress for this district do any of 
 these acts? Gertainly the district of Golumbia can do what 
 none of the states of the Union can do, if this construction of 
 the phrase, "exclusive legislation in all cases whatsoever," as 
 necessarily contended for by those who attempt to abolish or 
 oppress slave property in the district, be correct, and this 
 power be unlimited and absolute. In short, if this construc- 
 tion of these words be correct, there is no restraint upon the 
 general powers of congress, in favor of civil rights and privi- 
 leges of any sort in the district ; there is no prohibition of the 
 passage of partial laws, by the local legislature of this dis- 
 trict, injuriously affecting, in fact destroying, all the rights 
 and balances of the states of the confederacy ; none of the 
 reciprocal and mutual duties and obligations of the people of 
 the states belong to the people of the district of Columbia ; 
 and the local legislature of the district of Columbia, distinct 
 from the legislature of the Union, and from the state legisla- 
 tures, may do what neither the legislature of the Union nor 
 
30 
 
 the state legislatures may do, and what the constitution never 
 intended should be d'one by any power whatever. The dis- 
 trict of Columbia might be either the most favored and free, 
 or it might be the most enslaved and oppressed, of any por- 
 tion of the Utiited States; and there would be an absolute, 
 unrepresented, untaxed', irresponsible, intangible; central deh" 
 potism, at once established; without the slow pace of pro' 
 gressive steps, to disturb and d'estroy all the! balances of t'he 
 constitution, all piefsonal privileges, all protection of property, 
 and the whole harmony of the Union. 
 
 If, then, the absolute sense of these terms is absurd, and 
 this clause of the constitution does not confer power of abso- 
 lute, but exclusive legislation only; by' what is the local legis- 
 lation of congress restrained, and how far ? Frotn what has 
 been said, we may lay down certain general rules : 
 
 1st. This power, liite every other power given to congress, 
 is a federal power, for express common and confid'&ate ends of 
 the United States. It is for no local and individual' ends, but 
 national. 
 
 The object of the power over 
 
 1. The district is "the seat of the government of the United 
 States;" and the object of the " like authority" over 
 
 2. "All places purchased," &c. is "the ei'ectioil efforts, 
 magazines, arsenals, dock yards, and other needful build- 
 ings." 
 
 The powej- conferred is a power of exclusive legislation for 
 these specific ends. No' legislsttiort which does not coniport 
 with these ends is fegltimate. The seni' of government, and 
 \he forts, magazines, arsenals, &c. are for all the s'tates, and 
 their citizens equally and in commort. None can be excluded ; 
 no persons, and no prbperty, recognized and permittefd by the 
 laws of the respective States. 
 
 2d. Nothing Vhich cong're'ss' is expressly prohibited by the 
 cohsiitution from doing, as a national legislature, can it do as 
 a local legiskrure for tbd district of Columbia. 
 
 3d. All fhe dutifes and obligations which the states afe 
 bound, by the constitution, to discharge and observe from the 
 
31 
 
 one to the other, the legislature of the district is bound to dis- 
 charge and observe towards the respective states. 
 
 4th. The local legislature of the district of Columbia can 
 do no act or pass no law whch the states are prohibited from 
 doing or passing, by the constitution. 
 
 In addition to these rules, there are other considerations re- 
 straining the power of legislation in the district of Columbia, 
 from impairing slave property. In Fletcher vs. Peck, 6 
 Cranch, Judge Marshall said: "It may well be doubted 
 whether the nature of society, and of government, does not 
 prescribe some limits to the legislative power ; and, if any be 
 prescribed, where are they to be found, if the property of an 
 individual, fairly and honestly acquired, may be, seized with- 
 out compensation? To the legislature all legislative power is 
 granted ; but the question whether the act of transferring the 
 property of an individual to the public he in the nature of 
 the legislative power, is well worthy of seriofts reflection." 
 * * * " How far the power of giving the law may involve 
 every other power, in cases where the constitution is silent, 
 never has been, and perhaps never can be, definitely stated." 
 But, here the constitution is not. silent; it speaks plainly, that 
 "private property can only be taken for public use." What 
 "use" is a slave taken for, who is taken for emancipation? 
 You may say 'that there is a use of philanthropic policy in it ; 
 but that does not satisfy the sense of the constitution. The 
 only foundation of the government|s right to take a slave or a 
 horse, is that he is required for the employment of the gov- 
 ernment, necessarily and immediately for public use. And 
 the government cannot change the relation of master and 
 slave, of owner and property, even for public use. If taken 
 for that even, it is still private property, which is taken and 
 applied to the public use. The government may impress a 
 horse or a slave for the public use of defending a city, as 
 General Jackson did at New Orleans (though the slaves" have 
 never been paid for), and the property may be consumed or 
 destroyed in the use or not. If destroyed,, the government 
 must make compensation for the whole value, its principal 
 
32 
 
 and its use ; and if not destroyed, the principal must be re- 
 turned to the owner, and the government must compensate 
 him for the use and any injury, only. In neither case is the 
 relation of private ownership and private property destroyed. 
 Emancipation, without or with compensation, would destroy 
 that relation, which the constitution recognizes, and which is 
 the foundation of its grant of power — that the private property 
 exists and continues. 
 
 Several of ^he states of the Union have gradually emanci- 
 pated their slaves in their borders in their own way and own 
 time. But no state, by its acts of emancipation, has ever 
 pretended to violate the great principle of vested rights. 
 None of them have ever taken slave property, against the 
 consent of the owners, without compensation. I state it as a 
 fact, that they claim they have gone no farther than with the 
 consent of masters, to adopt what is called the post nati prin- 
 ciple, and to enact that property which did not exist at the 
 lime should never exist — to make those free, born in the fu- 
 ture, which would have been slaves. It may well be said, in 
 reference to state legislation, that " private property can only 
 be taken for public use, with just compensation." The 
 power to change all the relations of property and ownership, 
 or to destroy vested rights, cannot be admitted to be in the 
 state legislatures even. But the " nature of society, and of 
 government," in the district of Columbia, restrains the local 
 legislature there, much more than the " nature of society, and 
 of government," in the states, restrains their legislatures. 
 The purpose of this district is to he a seat of government, a com- 
 mon ground for all the country, and all its parts and people. 
 Here all must be allowed to come and to go, or to abide, with 
 all the privileges and rights known to their respective states — 
 if one may come and abide with " an ox or an ass," another 
 may come and abide with "a man servant or maid servant ;" 
 and the common guardian, congress, must protect all alike, 
 and equally on common ground. 
 
 Again : The local legislature here is distinct from the na- 
 tional; the district, created. for a common and special pur- 
 
33 
 
 pose, is distinct from the Union, and nation at large. Where, 
 then, are the coffers of the legislature of the district, from 
 which to make just compensation? Can this local legislature 
 take from the national treasury the money necessary to com- 
 pensate for slaves emancipated here ? The entire revenue of 
 which congress has control belongs to the treasury of the 
 United States, and not to the treasury of the district of Co- 
 lumbia. The district, as a political corporation, has no trea- 
 sury. The purposes for which the national treasures shall be 
 appropriated are specified, the powers all enumerated which 
 can touch them. Is there such a power as that to purchase 
 slaves for emancipation? Where? If any where, to pur- 
 chase them for freedom ; then and there it is to purchase them 
 for bondage. Can the general government become a slave- 
 holder and task-master? And if the local legislature may 
 not appropriate the national funds for either the use of eman- 
 cipation or bondage, may it tax the people of the district to 
 pay the slaveholders in the district for their own slaves ? No 
 such power is consistent with the federal purpose and end of 
 a seat of the government of the United States ; and it would, 
 at best, be but to tax slaveholders to pay themselves. You 
 would take, at last, private property for no public use, for no 
 use of a seat of the government of the United States, without 
 just compensation from a people without representation. These 
 people have no voice in electing their representatives; they 
 are elected for them in the states, and they are given national 
 guardians, expressly in order that no legislation may be exer- 
 cised in this seat of the government of the United States, in- 
 consistent with the national interests, or conflicting with the 
 common confederate purposes of all the states of the Union. 
 " The nature of society, and of government," then, in the dis- 
 trict, peculiarly protects private property there from being 
 taken, except for the use of the United States, in the true con- 
 stitutional sense of a seat of government, and with compensa- 
 tion, without taxing a people who are without representation. 
 And the local legislation in the district is still more restrained 
 by its affinity in congress, to the national legislation. The 
 5 
 
34 
 
 latter necessarily restrains the former. Congress constitutes 
 two legislatures, one national, and one local; but it is' the 
 same body of men. The same representatives who enact 
 municipal laws for the district, are the law-givers of the peo- 
 ple of the United States ; and are bound to protect the greater 
 interests of the states, and to look to the " conimon defence 
 and general welfare" of all the people in. all parts of the 
 country. It was for this paramount reason that the district 
 seat of government was deprived of representation, elected 
 by themselves. 
 
 Again : The power to •' exercise" like authority over " all 
 places purchased by the consent of the legislature of the state 
 in which the same shall be, for the erection of forts," Sec, re- 
 strains this local legislation for the district, and these places. 
 If the power is absolute in the district, it is absolute in these 
 places too. Where are these places? Everywhere in the 
 heart and strong places of every stale, slave or free. Will it 
 be contended that this power of legislatipn is absolute and 
 unlimited at Old Point Comfort, in Virginia, or at Fort Moul- 
 trie, in South Carolina? 
 
 • Can congress, the common guardian of all in an equal con- 
 federacy, convert all the places ceded for forts and arsenals 
 into so many outposts of abolition? An affirmative answer 
 to this would dissolve the nature of society and of govern- 
 ment ; or it would leave one-half the country without forts 
 and arsenals ! 
 
 Again : The " nature of society and of government" in 
 Maryland, where alone the district now is, restrains this local 
 legislation. Virginia's part of the district has been ceded 
 back, and her part of the district has been restored to statu 
 quo. If congress can now free the slaves in the Maryland 
 part, what will be the condition of things hereafter, if Mary- 
 land remains a slave state and the seat of the government of 
 the United States shall be changed to a centre, more midway 
 between the Atlantic and Pacific oceans, and between the 
 Gulf and the Lakes? Could you return the trust to Mary- 
 land as it was committed to the charge of congress ? Could 
 
35 
 
 you place the Mar5'lan(] part in statu quo? Woulc^the freed- 
 men again become slaves? Would the state of Maryland 
 permit the district to remain free soil ? Emancipation of 
 slaves in the district would violate the faith of the deeds of 
 cession, and the acceptance by congress not to impair indivi- 
 dual and federal rights. The power of emancipation, or to 
 impair property in slaves in the district, must be left, then, 
 where it was left by Maryland laws, to the consent of owners 
 and masters, acting in their individual rigl^ts to grant by deed 
 or by will. 
 
 We see, then, that so far from there being any thing in the 
 clause respecting the district of Columbia, or other places 
 ceded, to aid the construction that congress or the local legis- 
 latures have power to abolish or oppress slave property ir^ the 
 territory of the United States, it is' a powerful argument to 
 forbid the exercise of any such power. 
 
 We proceed to the next clause of this section of article 1st : 
 
 18. " To make all laws which shall be necessary and -proper 
 
 for carrying into execution the foregoing jpowers, and all other 
 
 powers vested by this constitution in the government of the 
 
 United States, or in any department or officer thereof." 
 
 This, loo, instead of being an enlarging is a restricting 
 clause. 
 
 1st. It makes all laws, providing for the exercise of result- 
 ing and incidental powers, such as shall be — 
 1st. Necessary. 
 2d. Proper to the end — 
 2d. Of carrying into execution : — 
 1st. The foregoing powers : — 
 2d. All other powers, vested by this constitution : — 
 1st. In the government of the United States : . 
 2d. In any department of the government of the' Uni- 
 ted States, or : — 
 3d. In any officer of any department of the govern- 
 ment of the United States. 
 There can be no resulting or incidental federal powers, but 
 such as are necessary and proper to the end of carrying into 
 
36 
 
 execution Sbme one or more of the granted or vested powers. 
 There is no such thing under the constitution as implied powers, 
 in the strict sense of that term. If any power is necessary 
 and proper to the end of executing any granted and specified 
 power, then the power to execute, is expressly and not im- 
 pliedly granted by this clause. If it is not necessary and 
 proper to the execution of some expressly granted power, 
 then it is expressly prohibited lo congress ; for the powers not 
 granted are expressly reserved to the states. Now, what 
 granted power to the congress or the government of the 
 United States, or to any department, or officer thereof, re- 
 quires for its execution the prohibition of slavery in the terri- 
 tories of the United States? And what power is it that does 
 not .necessarily and properly require to be executed in order 
 to protect the persons and property of confederates in the 
 com'mon territory of the United States? The means, then, to 
 prohibit slavery is forbidden, whilst the means to protect it are ex- 
 pressly given to congress, in the territories, and districts, and other 
 places ceded. 
 
 Again : This is a power which, by this clause, is given by 
 peculiar operation and effect to congress, and to congress 
 alone. To illustrate this I cite a remarkable variation, of 
 language or phrases in the 1st, 2nd, yrd and 4th sections of 
 article 4th of the constitution ; and numerous others might be 
 cited. By the 1st section of that article, " The congress" is 
 named as the depository of the power to prescribe the man- 
 ner of authenticating acts, records and proceedings between 
 states. Section 2nd in no one of three clauses names the de- 
 partment or officer of government in which the powers are 
 placed. Section 3rd, clause 1st, gives "the congress" the power 
 to admit new states. By clause 2nd of this section, "iAe con- 
 gress," again, shall have power to dispose of and make all 
 needful rules and regulations respecting the territory, &c. 
 And, then, immediately in juxtaposition to thege sections and 
 clauses, comes section 4th, saying *^the United States" shall 
 guarantee to every state in this Union, a republican form of 
 government, &c. 
 
37 
 
 Now, the question arises, does the constitution, by this vary- 
 ing expression, naming congress in one clause, naming no de- 
 pository of the power in three clauses of another section, 
 and naming "the United States" in the last, mean to vest the 
 different powers in different departments, or in the last in no 
 department or officer at all of the federal government, but to 
 leave the guarantee of republican forms to the states — the 
 United States ? 
 
 The puzzle, viewing this 4th section alone, vanishes when 
 you refer back to the 18th clause of section 8th of article 1st of 
 the constitution. By this we see tljat it matters not whether 
 the power granted is one of " the foregoing powers" of this 
 article 1st, or it is one of the after grants in the constitution, 
 as in article 4th, and it matters not whether it is vested in con- 
 gress or in the government of the United States, or in any de- 
 partment or officer thereof, or in the United States — to " the 
 congress" is given the power to make all laws which shall be 
 necessary and proper for carrying into execution not only the Jbre- 
 going powers of its own, but all other powers vested by the 
 constitution in the government of the United States, or in any 
 department or ojicer thereof. 
 
 If the means necessary and proper to execute any pow- 
 er, legislative, executive or judicial, federal in its trust and 
 nature, are wanting, the executive and judicial, or territorial 
 or district department or officer, must not provide nor pre- 
 scribe the means, but they must go to the congress to pass the 
 laws necessary and proper for carrying into execution the 
 powers of the whole government of the United States, in«Il 
 its functions and offices. If congress may grant the means, 
 they may be exerted. If congress does not or cannot, they 
 may not be exerted. The constitutional limitations must be 
 consulted for the necessary and proper laws, and the laws of 
 congress alone must reign and be looked to for the execution 
 of federal powers. If, then, congress itself cannot intervene 
 to abolish slavery, or discriminate by taxes against it in the 
 territories, neither can its federal creature, a territorial legis- 
 lature,*which must derive its laws, and their execution, too. 
 
38 
 
 from the congress. And if these creatures of congress assume 
 to tax or oppress, in any form, any personS^ or property in 
 their limits, beyond the powers of the government of the 
 United States, or any department or officer thereof, congress 
 is bound to interpose for their protection by necessary and 
 proper laws, which are made the paramount laws of the land. 
 With the comments already made upon them, I pass over 
 the remaining clauses of sections 9th and 10th of article 1st, 
 adding only that congress is especially bound to protect per- 
 sons and property throughout the United States, by the mili- 
 tary and naval arms of the Union ; because by the 3rd clause 
 of the 10th section of this 1st article : " No state shall, with- 
 out the consent of congress, keep troops or ships of war in 
 time of peace, or engage in war, unless the state itself be 
 actually invaded, or in such imminent danger as will not ad- 
 mit of delay." If the citizens of the slave states, then, are 
 invaded, either by arms or unconstitutional legislation in the 
 territories or elsewhere, the congress is bound to protect them. 
 And thus far in our history congress has never failed to inter- 
 pose, to intervene and to protect, by passing the necessary 
 and proper laws. We have seen the intervention and its 
 effect in states as well as territories, in the signal cases of 
 Shay's rebellion ; of the rebellion of the state of Franklin to 
 the mother state of North Carolina, a case of nullification of 
 state sovereignty ; in the case of the whisky insurrection in 
 Pennsylvania during Washington's administration; in the case 
 of the Dorr revolution in Rhode Island ; in the case of the 
 copimittee of vigilance in the state of California ; and whilst 
 the power of congress to intervene was actually under discussion in 
 Illinois, last year, we saw the armies of the United States marching 
 to Utah, to put down Brigham Young and his invasion of all 
 morals as well as federal laws in a territory of the United States,. 
 If non-intervention to protect in territories be the order of the error 
 of the times, how comes it, that all parties concurred in costly arma- 
 ments against the satyr of Utah but yesterday, and that armies were 
 marching, against the Mormon's harems of Salt Lake, whilst non- 
 intervention against territorial sovereignty was so blatant nith the 
 advocates of Kansas-Nebraska bills ? 
 
39 
 
 I have not cited the case of South Carolina's nullification ; 
 because, though opposed to her departure from the doctrines 
 of state rights, as expounded by Mr. Madison and founded by 
 Virginia, I was utterly opposed to the attempt to coerce that 
 state by the arms of the federal government, without at least 
 an appeal first to the confederate states. She was the only 
 state which had ever formally thrown herself upon her re- 
 served rights of sovereignty, by calling a solemn convention 
 of her people, and passing an ordinance declaring the acts of 
 congress unconstitutional. Hers was an appeal formally made 
 to the cosovereign and confederate states against the acts of 
 the federal agent which she had in part created. Each state 
 was the judge of the infraction, as well as of the mode and 
 measure of redress. She had a right lo the judgment of 
 each upon the question, whether the act of the agent, or her 
 resistance to it, was unconstitutional? and this before the 
 agent could proceed to enforce its own construction of its 
 own act. If the states had decided that she was guilty of an 
 infraction by her resistance, and that their mode and measure 
 of redress was by enforcing the law of congress, it was time 
 enough then for her to decide whether she would continue to 
 resist. Happily the force-bill was never exerted in her case, 
 and I trust that no such act will ever be repeated. 
 
 I here conclude my commentary on the 1st article of the 
 constitution of the United States, which, I think, I have shown 
 to be pervaded with the principle and the power of protec- 
 tion, to persons and to property, in the states, territories, dis- 
 trict and other places of the United States. 
 
 Executive. 
 
 I proceed to ARTICLE II. 
 
 1st. This article vests the executive power in a presi^ 
 DENT OF THE United States. In the election of that officer, 
 the federal power of three-fifths of the slaves, enumerated by 
 the census, is felt in the electoral college. These " other 
 persons" are here, as well as in the taxation and representa- 
 
40 
 
 tipn clauses, recognized as elements of the federal power, 
 vAiilst the people of the territories have no power in the elec- 
 tion of the chief executive officer. And can this be so, and 
 yet the people in the territories have the power, in their terri- 
 torial condition, to exclude the slave persons and the slave 
 property from their limits? 
 
 Again: that president, when elected, is by the 8th clause 
 of section 1st of this article, bound, before he enters on the 
 execution of his office, to take the following oath or affirma- 
 tion : 
 
 " I do solemnly swear (or affirm) that I will faithfully exe- 
 cute the office of president of the United States ; and I will, 
 to the best of my ability, preserve, "protect and defend the consti- 
 tution of the United States." 
 
 Here is room for a broad commentary, comprehensive as this 
 oath of guardianship to all the common and equal privileges 
 granted and guaranteed by this constitution to all the states 
 and citizens of this Union. The president is not sworn to 
 guard any particular rights, or any particular persons. There 
 might have been a failure, or defect of enumeration or specifi- 
 cation. The wise and jealous framers did not trust to their 
 certainty of naming every precious subject worthy of pre- 
 servation, protection or defence. No, they swear the chief 
 magistrate only : — 
 
 1st. To faithfully execute the office af president of the 
 United States. And 2nd. To " the best of his ability to pre- 
 serve, protect, and defend the constitution of the United States." 
 
 The office is well clothed with the powers of preservation, 
 protection and defence; and the glorious constitution of con- 
 federate and individual freedom covers all persons and all 
 things of federal relations, by its ample provisions. And 
 here we see its operation, propria vigore, clearly illustrated. 
 Its powers are all specified, limited and guarded ; and they 
 are to be executed according to the laws necessary and pro- 
 per to execute ihem, and for the federal ends and objects ex- 
 pressed, and an executive is here sworn to obey and to execute 
 the mandates of preservation, protection and defence pre- 
 
41 
 
 scribed by the constitution of the Union, and laws of con- 
 gress. And, whether laws are passed or not, if the constitu- 
 tion itself provides the means, he is bound to employ them to 
 preserve, protect and defend the constitution of the United 
 States, by all the means, to the best of his ability. Now, how 
 could any unconstitutional laws in a territory of the United 
 States, excluding or oppressing slavery, or any other rights of 
 persons or of properly, be executed or be allowed to be exe- 
 cuted, as long as the president of the United Stales observes 
 this solemn oath? In the exercise of this power, of course, 
 he would be responsible for a sound discretion, and for the 
 exercise only of executive powers. By the very next section, 
 2d, he is clothed with the full command in chief of the army 
 and navy of the United States, and of the militia, when called 
 into actual service. He cannot want, then, the means of pre- 
 servation,* protection and defence of the constitution and all 
 that it guards. 
 
 Treaty and Appointing Power. 
 
 And, by the 2d clause of section 2d, of article 2d : 
 " He shall have power, by and with the advice and consent 
 of the senate, to make treaties, provided two-thirds of the 
 senators present concur; and he shall nominate, and by and 
 with the advice and consent of the senate, shall appoint am- 
 bassadors, other public ministers and consuls, judges of the 
 supreme court, and all other officers of the United States, 
 whose appointments are not herein otherwise provided for, 
 and which shall be established by law ; but the congress may, 
 by law, vest the appointment of such inferior officers as they 
 think proper, in the president alone, in the courts of law, or 
 in the heads of departments." 
 
 It_was under this clause that Mr. John Quincy Adams con- 
 tended, in the house of representatives, that congress had the 
 power to abolish slavery in the states, as well as in the territo- 
 ries of the Union. When asked for such power, what it was, 
 and where it was to be found, he replied that he referred to 
 6 
 
42 
 
 "the Cudjo power." He referred to that black dwarf of the 
 African or negro race, of that name, who, excoriated in his^ 
 limbs by the bites of the insects of the island, and by the 
 lashes of a cruel English overseer and taskmaster, with his 
 confederates in insurrection, had fled to the cock-pits of Ja- 
 maica, and successfully resisted and defied all the force of 
 British power to dislodge and subdue him. That he had 
 maintained his position of defence .and successfully pursued 
 his depredations in that island, until he drove the British go- 
 vernment to a treaty of amnesty and emancipation ; which 
 treaty that government had faithlessly, to its eternal disgrace, 
 violated. But the example was set, that the slave Cudjo 
 could drive the government of masters to a treaty. The 
 treaty power was the power of Cudjo. And he significantly 
 inquired whether the government of the United States, in the 
 midst of a desolating war, might not make a treaty'which, to 
 secure peace, could provide the condition of emancipation ? 
 The reply was easy: that the exigencies of war could be no 
 rule for constitutional construction ; that none but traitors 
 could be driven to such a treaty; that if an executive could be 
 found false enough to propose such conditions to the senate, 
 the guard would be found in more than one-third of that 
 body; and that, if that body proved wanting in patriotism to 
 protect our people and their property, the congress, consisting 
 of representatives, as well as senators, would never pass the 
 laws necessary and proper to carry such a treaty into effect ; 
 and, if they did, the people thus wronged would disregard it, 
 and fight the war out to perfect independence or absolute sub- 
 jugation. But here was illustrated the error of extreme con- 
 struction, and the check, by congress, in having the power 
 ultimately, of passing or refusing to pass the necessary and 
 proper laws, for executing all powers of the government. 
 To base any other power upon the war power illustrates the 
 extremity of latitudinarian construction. But, however this 
 may be, by this clause the president of the UnitecL States has 
 the appointment of all officers in the territories, whose ap- 
 pointments are liot otherwise provided for in the constitution. 
 
43 
 
 or vested by congress in the courts of law or in the heads of 
 departments. The ofiBcers of the United States in the terri- 
 tories cannot be appointed otherwise, because all officers of 
 the territories are officers of the United States. For this rea- 
 son congress cannot provide that the governors and secreta- 
 ries of territories shall be elected. And in this the executive 
 and congress of the federal government have the additional 
 power and duty of protecting equal rights in the territories. 
 The president has also the power of removing all officers in 
 the territories, and thus of enforcing the execution of the laws 
 and constitution, and of protecting persons and property 
 there. 
 
 Article III. — Judicial Power. 
 
 We now come to ARTICLE III of the constitution, pro- 
 viding for the " JUDICIAL power of the United States." 
 This power embraces " all cases in law and equity arising 
 under this constitution, the laws of the United States, and 
 treaties," &c. ; all, in a word, of federal jurisdiction which 
 can arise in a territory. The legislature of a territory can 
 pass no law which does not come under the jurisdiction of the 
 supreme and inferior courts of the United States. The juris- 
 diction of the supreme court is fixed in its general outline by 
 thov constitution, and congress may constitute such inferior 
 courts as its discretion may, "from time to time, ordain and 
 establish." The powers of the courts and the powers of the 
 congress combined reach every conceivable case of grievance 
 or complaint. The whole civil as well as military powers of 
 the nation are bound to preserve, protect and defend every 
 right guaranteed by I he constitution. I regret to see that in 
 a late debate in the senate, this judicial poWer alone was re- 
 lied on. We have shown, I think, that congress and the ex- 
 ecutive are alike bound to this duty of protection ; but still 
 this judicial power alone, if exerted and faithfully applied, is 
 all-sufficient in itself to prevent the execution of unconstitu- 
 tional laws. Yet it can aSbrd protection only against uncon- 
 
44 
 
 slitutional laws or against the infraction of constitutional laws. 
 In the case where persons or property may be left without 
 Sufficient protection by legislative enactment, the courts have 
 no power whatever to supply the deficiency of protection oc- 
 casioned by such legislative omission. Bear in mind that we 
 have shown that there can be no such thing as local legisla- 
 tion, strictly speaking, in a territory. It can have a legisla- 
 ture of its own, if authorized by congress, but that legislature 
 is not local in any sense like that for the district of Columbia, 
 as we have shown. It is federal and national in every sense. 
 Its authority is federal — its ends and aims must all be federal, 
 and its laws must conform to national and federal uses and 
 purposes. Does it provide for police? Does it authorize a 
 ferry, or the building of a bridge, or the establishment of 
 schools ? Remember that all these things are done deriva- 
 tively by authority of congress, and none can be done but 
 what congress may authorize in a territory, and that alt these 
 things are done in a territory of the United States for the 
 federal purpose of improving, developing and settling a part 
 of the national domain. They are done more for the United 
 States, by United States authority, than for any territorial or 
 local ends; the territory has no ends not ends of the United 
 States, and no authority whatever but what is conferred by 
 congress. When a territorial legislature, therefore, lays taxes 
 of any sort, will it not be for the judicial power of the United 
 States to adjudge — 
 
 1st. Has congress conferred authority ? 
 
 2d. Could congress confer it ? 
 
 3d. What authority may congress confer? 
 
 Thus, suppose a tax laid upon slaves to exclude them from 
 the territory, the judicial power of the United States would 
 enquire — 
 
 1st. Is the tax a direct tax ? It would be, if a capitation 
 tax ; and if a capitation tax, laid by federal authority, origi- 
 nal or derivative, it would have to be apportioned among the 
 several states, according to the census, or it would not be 
 constitutional. This would be protection enough against di- 
 rect taxes. 
 
. 45 
 
 2d. May any other ihan a direct or poll tax be laid on 
 "persons" among whooi representatives and direct taxes are 
 to be apportioned according to the federal enumeration by 
 the census? If not, then slaves, by federal authority, either 
 territorial or congressional, in a territory, cannot be taxed 
 otherwise than by direct taxes, which must be apportioned. 
 
 3d. If any tax in a territory may be laid on them as pro- 
 perty and not as persons, to operate in rem, as it were, and not 
 in ■personam; as slaves are taxed in Virginia, for example, ad 
 valorem with land ; still any indirect tax would have to be a 
 "duty, impost, ov excise," because it is laid by federal authority, 
 or by authority of congress, and the territory could lay only 
 such taxes as congress may lay and collect. We have seen 
 what sort congress may lay and collect — either, 
 
 1st. Capitation, or other direct lax ; or, 
 
 2d. Indirect taxes. And the first must be apportioned, and 
 the second must be uniform. And this would be protection 
 enough ; for if the tax is obliged to be uniform, it cannot be 
 exclusive or oppressive. And it is questionable whether the 
 territorial legislature can levy taxes like Virginia. 
 
 Thus, in every aspect, federal taxes cannot be oppressive 
 or discriminating against any persons or property, in the 
 United Stales, without being unconstitutional, and the courts 
 would have so to decide. It is not, then, until the congress, 
 and the executive and the judicial power would all become 
 partial, corrupt, forsworn, or ignorant, that the persons and 
 properly of the citizens of the United Stales can become 
 unsafe and unprotected in our common territories. 
 
 3d. I have thus gone through the entire three departments 
 of government — the congress, the executive and judicial — 
 and we now come to the general provisions of the con- 
 stitution. 
 
 Article IV. — General Powers. 
 
 Article 4lh establishes by its 1st section the " full faith and 
 credit" between the states. By its 2d section, clause 1st, it 
 
46 , 
 
 gives to "the citizens of each' state all privileges and immu- 
 nities of citizens in the several states." 
 
 I will not stop to diefine here what " privileges and immu- 
 nities" are meant by this clause to be common and reciprocal. 
 In a leading case from New Jersey, Judge Washington, in 
 the circuit court of the United States, elaborated this subject 
 very ably; but I will observe, that if this clause does not 
 grant the common and reciprocal right to the citizens of the 
 respective states to emigrate to, and occupy and settle com- 
 mon territory of the United States, equally and alike: if it 
 does not grant to citizens of Virginia and Georgia, holding 
 slaves under the ,]aws of their respective states, the right to 
 remove to the territories of the United States', open to settle- 
 ment under the laws of congress, with their maid servants 
 and men servants, equally with citizens of Massachusetts and 
 Ohio to remove to the same common lands, with their " oxen 
 and asses," or any thing else that is theirs, then it grants no 
 equal, or reciprocal, or common " privileges and immunities" 
 whatever. And mark that the word ^^ privileges" is no more 
 precious to the citizens of each state than is the word " immu- 
 nities" These are strong words — " privilege" imports the 
 right of exemption, and "immunity" imports the powers and 
 means of defending the rights, And both terms are peculiar 
 in the import of special advantages, of right not universal, 
 and of exemption from censure or danger, or onerous duties. 
 And this, like the two immediately following clauses, where 
 the states, eo nomine, are named, applies throughout the United 
 States to states, territories, district and other places ceded. 
 Under the 2d clause of section 2d, fugitives from justice, and 
 under the 3d clause of the same section, fugitives from " ser^ 
 vice or labor," escaping from one state into another state, may 
 be pursued, and must be delivered up in the district and ter- 
 ritories, and places ceded, and even in the Indian reserva- 
 tions of the United States. And all these are cases where the 
 constitution itself prescribes intervention in the states as well 
 as territories, and penetrates every where with its protecting 
 and restoring power. And to, put on the crowning sheaf of 
 
47 
 
 protecting power, by the 2d clause of section 3d of the 4th 
 article : • 
 
 Territory and Other Property. 
 
 " 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 ; and nothing in this 
 constitution shall- he so construed as to i^r^udice any claims of the 
 United States, or of any particular state." 
 
 Here is an exclusive power in the congress. It is not abso- 
 lute, but as all other federal powers, it must strictly obsisrVe 
 the federal ends and objects of constitutional grants for con- 
 federate purposes. The congress may dispose of and make 
 all needful rules and regulations respecting the territory or 
 other property belonging to the United States. The territory is 
 to be treated precisely as olher property of the United Stales. 
 It is recognized, and ruled and regulated as belonging to tKe 
 United States — not to the settlers, not to any local authority, 
 but to the United States, and to be ruled and regulated by the 
 congress as in case of other property. But this power must 
 especially be exercised, so as not to prejudice any claims of 
 the United States, or of any particular stale. The general 
 welfare must be observed and conserved, and the particular in- 
 terest of each state must be guarded and protected, without 
 prejudice either to the United States or any one state. 
 
 A commentary on the remaining articles of the constitution, 
 but repeats the views already presented. Article 6th provides 
 for " amendments," and in this, as in the representative and 
 tax clauses, the " olher persons," the slaves, enter as an ele- 
 ment of federal power. The 1st clause of article 6th, and its 
 effect upon the ordinance of 1787, has already been described. 
 The 2nd clause of this article makes the constitution and the 
 laws of the United States, which shall be made in pursuance 
 thereof, &c. "the supreme law of the land ; and the judges in 
 every state shall be bound thereby, any thing in the constitu- 
 tion or laws of any state to the contrary notwithstanding." 
 
48 
 
 Thus the constitution and laws of the United States are made 
 supreme by the constitution itself. It» was unnecessary, 
 wholly, in any territorial bill to make the laws of the territory 
 subject to the constitution. That is fixed by organic law, in- 
 dependent of and even contrary to any statute. And the 
 laws of the United States are supreme over any state. or terri- 
 torial laws. And the latter words, " any thing in the consti- 
 tution or laws of any state" eo nomine, " to the contrary not- 
 withstanding," apply .to the laws of a territory as well as of 
 a state, for the constitution and laws of the United States 
 reign throughout the United States, and overrule all other 
 laws, provided the laws of the United States are made " in 
 purstmnce" of the constitution. That word ^^ pursuance," too, 
 has a precise and definite meaning. The laws, to be supreme, 
 must " follow after," must "continue to follow" after the con- 
 stitution; and mnsi seek its ends and pbjects, to its consequences 
 and none other. The territorial laws, so far from being sove- 
 reign, and unquestionable and supreme, are merely derivative 
 municipal laws, subject not only to this constitution, but to 
 the merely municipal laws of the United Slates made in pur- 
 suance thereof. The laws of the United States themselves 
 can follow after no other ends than constitutional, federal, na- 
 tional ends; and any thing in the laws of stales or territories 
 contrary thereto is null and void, and the judges are all 
 bound by this imperative rule. And, lastly, the 3d clause of 
 article 6th provides that the senators and representatives of 
 congress, and the members of the several slate legislatures 
 (including, of course, the members of territorial legislatures), 
 and all executive and judicial officers, both of the United 
 Slates and of the several states, shall be bound, " by oath or 
 affirmation, to support this constitution." Thus the whole is 
 bound solemnly in the sacred sanction of an oath. Could 
 protection be better guarded or guaranteed by every possible 
 muniment of right and of power? 
 
 Such are the constitutional provisions from the preamble to 
 its last article of ratification. From frontispiece to finis, pro- 
 tection of persons and of property reigns throughout, as I 
 
49 
 
 avowed, in almost every clause, and its supremacy is bound 
 by the oaths of all officers, state, and federal, and territorial. 
 These vievps are fortified by the amendments to the constitu- 
 tion, which it is needless to pursue. 
 
 Acts of Congress Orgjvnizing Territories. 
 
 I now propose to show, that up to the Kansas-Nebraska 
 acts, the laws of congress, organizing territories, were made 
 in pursuance of this construction given to the constitution. 
 
 Cessions by States under the Confederation. 
 
 On the 6th September 1780, congress, by act of that date, 
 recommended to the several states, having claims to waste 
 and unappropriated lands in the western country, to make 
 liberal cessions to the United States of portions of their re- 
 spective claims, for the common benefit of the Unioji. In Janu- 
 ary 1781, Virginia offered to cede her territory northwest of 
 the river Ohio, ybr the benefit of the states, on certain terms and 
 conditions. On the 13th September 1783, congress passed 
 another act stipulating other terms on which they agreed to 
 accept the cession of Virginia ; and Virginia on the 20th of 
 October 1783, passed an act to authorize her delegates in 
 congress to convey to the United States, in congress assembled, 
 in conformity to the terms of the act of congress of Septem- 
 ber 1783, all the right of that commonwealth to the territory 
 northwest of the river Ohio. And, thereupon, Thomas Jeffer- 
 son, Samuel Hardy, Arthur Lee and James Monroe, delegates 
 for the commonwealth in the congress, on the 1st March 
 1784, executed the deed pursuant to the act. Its conditions 
 were : 
 
 " 1st. That the territory ceded should be laid out and 
 formed into states, of certain dimensions. 
 
 2d. That the states so formed should be distinct republi- 
 can slates. 
 
 3d. Admitted members of the Federal Union. 
 7 
 
50 
 
 4th. Having the same rights of sovereignty, freedom and 
 independence as the other states. 
 
 5lh. Stipulating for the reimbursement of the expenses of 
 Virginia in subduing or defending the ceded territory; that 
 the French inhabitants should have their possessions con- 
 firmed ; for certain grants to the regiment of George Rogers 
 Clarke, &c. And 
 
 6th. That all the lands within the territory so ceded to the 
 United States, and not reserved for, or appropriated to, any of 
 the before mentioned purposes, or disposed of in bounties to 
 the officers and soldiers of the American army, shall be con- 
 sidered as a common fund for the use and benefit of such of 
 the United States as have become, or shall become, members 
 of the confederation or federal alliance of the said states, Vir- 
 ginia inclusive, according to their usual respective proportions 
 in the general charge and expenditure, and shall be faithfully 
 and bona fide disposed of for that purpose, and for no other 
 use or purpose whatsoever." 
 
 Congress signified its readiness to receive the grant on these 
 conditions. ' The delegates of Virginia then proceeded to sign, 
 seal and deliver the deed, and congress resolved " that the 
 same be recorded and enrolled among the acts of the United 
 States, in congress assembled." Thus the cession by Vir- 
 ginia was completed. 
 
 Here we have the main objects, uses and purposes of grants 
 of territory to the federal government clearly defined. They 
 are all " common." The " fund" is to be " a common fund.'''' 
 It is to be for the use and benefit of such of the United States 
 as become members of the Union. It is for each state of the 
 alliance. Here is apportionment, too, according to their usual 
 respective proportions in the general charge and expenditure. 
 And here the precise meaning of the words " dispose of " as 
 they afterwards appeared in the constitution of the United 
 States in reference to territory or other property is clearly de- 
 fined — they are to be faithfully and hona fide disposed of for the 
 use and benefit of such states as are members of the Union, in the 
 proportions prescribed, " and for no other use or purpose whatso- 
 ever" The meaning of the constitution could not but partake 
 of the meaning of this deed of cession. The same words are 
 used in reference to the same subject, and the objects and 
 
51 
 
 powers and limitations expressed in the one, are obviously the 
 objects and powers and lioiitations implied in the other. 
 
 On the 7th July 1786, congress resolved to recommend to 
 the legislature of Virginia to revise the act of cession with a 
 view to a division of the territory into not more than five, and 
 not less than three " distinct republican states" to become 
 members of the federal Union, and have the same rights of sove- 
 reignty, freedom and independence as the original slates. And 
 on the 13th July 1787, the ordinance for the government of 
 the territory northwest of the Ohio, was passed. That ordi- 
 nance intervened in every possible shape of municipal power, 
 to govern, regulate, and protect the territory. 
 
 It controlled the divisions of the territory ; it prescribed 
 the rules of inheritance ; it gave the law of wills and convey^ 
 ances ; the law of personal property ; it preserved the laws of 
 the conquered people ; it appointed and removed a governor 
 by congress, and prescribed his term of oflSce, and residence 
 and qualification of freehold ; in like manner a secretary ; it 
 appointed a court of three judges, its quorum, its jurisdiction, 
 the qualification of the judges, their residence, and their terms 
 of office. It prescribed the passage only of such laws of the 
 original states, criminal and civil, as best suited to the district ; 
 required them to he reported to congress from time to time, and 
 to have no force if disapproved by congress. It prescribed the 
 powers of the governor ; the appointment of magistrates ; the 
 civil divisions; the right of representation for 5,000 free male 
 inhabitants; the number of representatives, and their qualifi- 
 cations, and their terms of service. It constituted the legisla- 
 tive power, giving the governor, legislative council and house 
 of representatives of the territory " authority to make laws, 
 in all cases, for the good government thereof, Tiot repugnant to 
 the principles and articles of the ordinance," It prescribed aa 
 oath of fidelity, and gave a delegate in congress, to sit but not 
 vote. " And," finally, " for extending the fundamental princi- 
 ples of civil and religious liberty, which form the basis where- 
 on these republics, their laws and constitutions, are erected ; 
 
52 
 
 to fix and establish those principles as the basis of all laws, 
 constitutions and governnnents, which forever shall be formed 
 in the said territory ; to provide, also, for the establishment of 
 states, and permanent government therein, and for their ad- 
 mission to a share in the federal councils, on an equal footing 
 with the original states, at as early periods as may be consistent with 
 the general interest," certain articles of compact, from one to 
 six, inclusive, were ordained and declared between the original 
 states and the people and states in the said territory. Reli- 
 gious worship and opinions were guarded ; the benefits of 
 habeas corpus, of proportionate representation ; judicial pro- 
 ceedings according to the common law ; bail ; reasonable 
 fines; prohibition of cruel and unusual punishments ; judg- 
 ment of the peers ; compensation for private property taken for 
 public use ;" and " in the just preservation of rights and property, 
 it is understood and declared, that no law ought ever to be made, or 
 have force in the said territory, that shall, in any manner whatever, 
 interfere with, or affect private contracts or engagements, bona 
 fide and without fraud, previously formed." Schools and edu- 
 cation were to be encouraged ; good faith towards the Indians 
 was to be forever observed ; the territories were to remain in 
 the Union, subject to the articles of confederation and their 
 alteration, and to all the acts and ordinances of the United States 
 in congress assembled, conformable thereto." The territory was 
 made subject to its proportion of federal debts, according 
 to apportionment among the several states ; the primary dis- 
 posal of the soil was reserved to the United States, and the 
 lands of the United States were reserved free of taxation ; 
 non-resident proprietors, too, were protected against unequal 
 taxes. The navigable waters were made common highways, 
 forever free. The number of states was prescribed ; their 
 boundaries; and it was provided, " that whenever any of the 
 said slates should have sixty thousand free inhabitants therein, 
 such state should be admitted, by its delegates, into the con- 
 gress of the United States, on an equal fooling with the origi- 
 nal stales, in all respects whatever ; and shall be at liberty to 
 
53 
 
 form a permanent constitution and state government : pro- 
 vided, the constitution and government so to be formed shall 
 be republican, and in conformity to the principles contained 
 in these articles ; and, so far as it is consistent with the general 
 interest of the confederacy, such admission shall be allowed at an 
 earlier period, and when there may he a less number of free inhabi- 
 tants in the state than 60,000. 
 
 This provision, contained in the 6lh article of compact, and 
 in such striking contrast with the received opinions of the pre- 
 sent day, as to whether a territory should contain, or not, the 
 number of inhabitants which amounts for the time being to 
 the ratio of federal population required for one representa- 
 tive in congress, at least, had to be submitted to the common- 
 wealth of Virginia; and on the 30th December 1788,, this" 
 state passed the act necessary to alter the cession, and de- 
 clared her assent to this article, and ratified and confirmed it 
 "between the original states and the people and states in the ter- 
 ritory." 
 
 In like manner cessions were made by Connecticut, Massa- 
 chusetts, New York, South Carolina and Georgia, and all are 
 imbued with the same spirit of common interest and federal 
 use and benefit. 
 
 But all these cessions and ordinances, made prior to the 
 constitution of the United States, applied only to the special 
 territories then ceded, as these articles of compact, prohibiting 
 slavery particularly, under the confederation, applied only to 
 the territory northwest of the Ohio. Yet, so far as that terri- 
 tory, even, is concerned, the grants of Virginia, and the ordi- 
 nances in respect to them, are unmistakable in the meaning 
 that no such thing as sovereignty or independence of congress 
 was ever intended or countenanced until" the territory was 
 formed, or about to be formed, into one or more " distinct re- 
 publican states." The people, in their territorial condition, 
 were secured in their perfect republican freedom, but were 
 made wholly dependent on and governed by the United States 
 in congress assembled, under the old articles of confederation. 
 
54 
 
 This was commenced in 1780 and ended in 1789, by the very- 
 men, in part, who declared a little more strongly and earnestly 
 against " taxation without representation," in the declaration 
 of independence, and understood what they themselves meant 
 thereby a little better than our patriots of the present day. 
 
 Having shown that the territories, under the confederation, 
 belonging to the United States, were all acquired by deeds of 
 cession from particular states, and that these deeds or grants, 
 and the compacts and ordinances under them, were the foun- 
 dations of government in these territories, prior to the forma- 
 tion of the constitution of the United States, and that the 
 terms and conditions of these cessions made them wholly de- 
 pendent upon congress for their municipal rule and regulation,' 
 I proceed now to inquire : 
 
 Have the territories been made less dependent upon con- 
 gress or the constitution, or less dependent by the laws of 
 congress organizing them under the constitution ? We have 
 seen what the constitution makes them. Let us examine some 
 of the leading laws organizing territories from 1789 to 1854, 
 inclusive. 
 
 Acquisitions under the Constitution. 
 
 We have seen that the only territory acquired by the con- 
 federation was by cessions from several of the old states, and 
 that these constituted the territories northwest of the Ohio 
 and south of Tennessee, governed by the deeds of cession 
 and the laws and ordinances of compact with the ceding 
 states. The first foetus of territory after the constitution of 
 the United States was formed, was what is now included in 
 the boundaries of the state of Tennessee, ceded by the state 
 of North Carolina, by a deed executed by her senators, under 
 authority of her law, dated the day of December A. D. 
 
 1789, and accepted by act of congress April 2d, 1790. And 
 in the history of this territory, prior to this cession, is to be 
 found the first and only instance of real de facto " squatter 
 sovereignty" known in the United States up to the period of 
 
55 
 
 the Mormon monstrosities in Utah. The people in the then 
 state of North Carolina, west of the Stone mountain, com- 
 plaining that they were not afforded the protection due their 
 allegiance to the parent state, declared their independence, 
 and set up the sovereignty of " the state of Franklin." They 
 actually organized a state government, with all the municipal 
 departments of an executive, a legislature and a judiciary. 
 There are many traditions, and some authentic evidences, in 
 Tennessee, of this usurped state authority, nullifying, in her 
 own borders, the sovereignty of peaceful and quiet North 
 Carolina. Among other thin^, they had a currency, especially 
 of raccoon skins, and the governor (Sevier, I believe,) once 
 complained bitterly, it is said, that he was cheated grievoiisly in 
 the payment of his salary by having put upon him a parcel of 
 opossum skins with raccoon tails sewed to them. He was a bad 
 judge, it seems, of the peltry of these well known animals in 
 the west. But, ridiculous as were its straits of revenue, it 
 was a serious and de facto rebellion against the state sovereignty, 
 and I have but little doubt that it was one of the causes, ad- 
 ded to her patriotism and devotion to the Union, which caused 
 that generous commonwealth to cede the territory to the 
 United States. The moment the deed was signed by her 
 senators, Samuel Johnson and Benjamin Hawkins, and ac- 
 cepted by congress, the sovereignty of the state of Franklin 
 was dispelled, like raccoons and opossums are driven or killed 
 off before the march of settlement and culture and civiliza- 
 tion. The moment the United States took it in hand, the 
 state of Franklin receded into a territory called Tennessee. 
 The deed making it a territory provided the conditions of 
 government. It defined its boundaries; it excluded these 
 lands and inhabitants westward from federal enumeration in 
 North Carolina after the cession ; it made reservations of lands 
 for the oflScers and soldiers of that state ; it made other special 
 reservations; and it provided "That all the lands. intended 
 to be ceded, by virtue of this act, to the United States of 
 America, and not appropriated as before mentioned, shall be 
 considered as a common fund for the use and benefit of the United 
 
56 
 
 States of America, North Carolina inclusive, according to their 
 respective and usual proportion in the general charge and expendi- 
 ture, and shall be faithfully disposed of for that purpose, and for 
 no other purpose whatever; that the territory shall be laid out 
 and formed into a state or states, as in the cases of the north- 
 west territory : " Provided, always, that no regulations, made or 
 to he made hy congress, shall tend to emancipate slaves," Sec. Sec, 
 
 In May 1800, the northwest territory was divided into two 
 separate governments, one called Indiana, and congress or- 
 ganized the municipalities of both, in all respects. In like 
 manner, a government was established in the same month 
 and year for the Mississippi territory. 
 
 Acquisitions from Foreign Governments. 
 
 We now come to the acquisition of territory by the United 
 States themselves, from foreign governments. The first ac- 
 quisition by the federal union, under the constitution, other- 
 wise than by cessions of the states, was by the purchase of 
 Louisiana from France. That whole territory, ceded, first by 
 France to Spain, in 1764, on the 1st of October 1800, by the 
 treaty concluded at St. Ildefonso, was retroceded to France, 
 and its boundaries, as between the United States and Spain, 
 had been determined by the treaty of San Lorenzo, between 
 the United Stales and Spain, made by Thomas Pinckney and 
 the Prince of Peace, on the 27th October 1795. The south- 
 ern boundary between the two Floridas and the United States 
 was "designated by a line beginning on the river Mississippi, 
 at the northernmost part of the 31st deg. of latitude, north of 
 the equator ; and to be drawn thence, due east, to the middle 
 of the river Apalachicola ; and thence, along the middle 
 thereof to its junction with the Flint ; and thence, straight to 
 the head of St. Mary's river ; and thence down the middle 
 thereof to the Atlantic ocean." And it was likewise agreed 
 that the western boundary of the United States, which sepa- 
 rated them from the Spanish colony of Louisiana, should be 
 " in the middle of the channel, or bed of the river Mississippi, 
 
57 
 
 from the northern boundary of the United States to the com- 
 pletion of the 3 1st degree of latitude north of the equator." 
 With the same extent that it had in the hands of Spain, 
 Louisiana was ceded, by France, to the United States, on the 
 30ih April 1803. And the United States, in this treaty stipu- 
 lated : 
 
 "Art. 3d. The inhabitants of the ceded territory shall be 
 incorporated in the Union of the United States, and admitted 
 as soon as possible, according to the principles of the federal consti- 
 tution, to the enjoyment of all the rights, advantages, and immuni- 
 ties of citizens of the United States ; and in the mean time, they shall 
 he maintained and protected in the free enjoyment of their liberty, 
 property and the religion which they profess." 
 
 Thus, we made the first acquisition, with this fundamental 
 law guaranteeing to the persons inhabiting it : 
 
 1st. The right of incorporation in the Union. 
 
 2d. Admission as so6n as possible, according to the princi- 
 ples of the federal constitution. 
 
 3d. All the rights, advantages and immunities of citizens of 
 the United States. And 
 
 4th. "In the mean time," that is, in the territorial condition, 
 before admission as states, "they shall be maintained and pro- 
 tected in the free enjoyment of their liberty, properly, and the 
 religion which they profess." 
 
 Whether the United States had constitutional power to pur- 
 chase this territory as they did, is a question now needless to 
 be discussed. But, in justice to Mr. Jefferson, then presi- 
 dent, I cannot omit to say that I have no doubt he was fully 
 convinced of the constitutionality of the act before he ever 
 sanctioned it. It was absurd to say that the United States 
 government could not acquire territory by purchase or by 
 arms, as well as any other national sovereignty upon earth. 
 Were we to be circumscribed in our limits, and not to be 
 allowed to make the necessity of the outlet like that of the 
 Mississippi river our own ? Could other nations take territory 
 by arms, to enforce indemnity, or purchase it for the sake of 
 peace and safety, and a country like the United States, be 
 obliged to grow in confined boundaries, and be cramped to 
 8 
 
58 
 
 death, it might be, for want of the power of expansion ? No ; 
 the president and senate had the treaty-making power; and 
 the congress was expressly given the power to pass all laws 
 necessary and. proper to carry that power and all other 
 powers vested in the government, into execution. This 
 power of acquisition and expansion is an absolutely necessary 
 power, resulting from the very existence of every nation, and 
 essentially vital to our institutions, capable of bearing, like 
 Atlas, a world in their embrace of freedom. The separate 
 states could not acquire the territory ; and if congress could 
 not, the progress of civil liberty itself was constrained and 
 stopped within our infant dimensions. Whatever doubts Mr. 
 Jefferson had, or whatever contrary opinions he expressed 
 previously, he must have been convinced in the strictest and 
 most absolute sense of the words, "necessary and proper;" 
 and he did recommend the treaty, apd it was advised and 
 consented to by the senate ; and I beg leave to call your at- 
 tention, especially, to the first act which the congress passed 
 to carry it into execution. (See acts of the 8th congress, 
 statute 1st, passed October 31, 1803, ch. 1st, "An act to en- 
 able the president of the United States to take possession of 
 the territories ceded by France, &c. and for the temporary 
 government thereof.") 
 
 " Sec. 2d. That until the expiration of the present session 
 of congress, unless provision for the temporary government of 
 the said territories be sooner made by congress, all the military, 
 civil and judicial powers, exircised by the officers of the existing 
 government of the same, shall be vested in such person and persons, 
 and shall be exercised in such manner as the president of the United 
 States shall direct for maintaining and protecting the inhabitants 
 of Louisiana in the free enjoyment of their liberty, property and 
 religion" 
 
 Here was the idea which that congress, under Mr. Jefferson, 
 had of intervention, with a vengeance. So far from any territo- 
 rial sovereignty being recognized, even where derivative law 
 already existed, congress vested all military, civil and judicial 
 powers, as themme existed in officers under an imperial govern- 
 ment, in such person or persons as the president of the United States 
 
59 
 
 might direct. This was very nearly, if not fully, a dictator- 
 ship, absolute and unconditional, in the president of the United 
 States, created by congress. Its only restraint was the con- 
 stitution of the United States, and the clause of the treaty 
 maintaining and protecting the inhabitants in their persons, 
 liberty, property and religion. All these were protected and 
 are still protected, as I contend, under the two supreme laws 
 of the constitution of the United States, and the treaty with 
 France, made in pursuance thereof. And, by the act of March 
 26th, 1804, Louisiana was erected into two territories, and 
 temporary government thereof was provided. This act, in 
 every conceivable form, interposed the power of congress in 
 the territory. Various acts followed this, until after a part of 
 Louisiana territory was admitted a state of that name; and 
 then, in June 1812, the name of Louisiana was changed ijito 
 that of Missouri, for the remaining portion of ihe territory. 
 This act, too, provided a temporary government, and inter- 
 posed the power of congress in every form. 
 
 And it must be kept in mind that the Spanish and French 
 laws both, which governed this whole territory before and 
 when it was ceded to us, authorized and protected property 
 in slaves as well as any other species of properly. And it 
 was in the enjoyment of this, as well as of every species 
 of property, that the 3rd article of the treaty with France 
 provided that the inhabitants of the Louisiana territory should 
 be maintained and protected. 
 
 We next come to the acquisition of the Floridas from 
 Spain; and in approaching this part of territorial history, we 
 are struck by some singular and strong statutes passed by 
 congress. See Little & Brown's edition of the Laws of the 
 U. S., vol. 3, p. 471. 
 
 January 15th, 1811, congress, nearly ten years before the 
 cession by Spain, passed the resolution : " That the United 
 States, under ihe peculiar circumstances, of the existing crisis, can- 
 not, without serious inquietude, see any part of the said territory 
 pass into the hands of any foreign power ; and that a due regard 
 to their own safety compels them to provide, under certain contin- 
 
60 
 
 gencies, for the temporary occupation of the said territory; they, at 
 the same time, declare that the said territory shall, in their hands, 
 remain subject to future negotiation." On the same day they 
 passed an act that, in case of an arrangement with the local 
 authority, or an attempt by any foreign government to occupy 
 it, the president was authorized to take possession of the ter- 
 ritory east of the Perdido. One hundred thousand dollars 
 was appropriated to defray the expenses of taking possession ; 
 and in case of taking possession, the president was authorized 
 to establish a temporary government, "and the military, civil 
 and Judicial powers thereof were vested in such a person and per- 
 sons, and to be exercised in such manner as he might direct, for the 
 protection and maintenance of the inhabitants of the said territory 
 in the full enjoyment of their liberty, property and religion" 
 
 March 3d, 1811, it was enacted that this act, and the one 
 preceding, " be not printed or published until the end of the next 
 session of congress, unless directed by the president," &c. 
 
 Again : On the 12th February 1813, congress authorized 
 the president to occupy West Florida, west of the Perdido, 
 and to employ the military and naval force for holding the 
 country; and $20,000 was appropriated to defray the ex- 
 penses of occupation. 
 
 These acts and this resolution " were not promulgated until 
 their publication in the Sessions Acts of the 15th congress, 
 ending April 20th, 1818, or just before the treaty with Spain 
 for the cession of the Floridas, which was concluded at Wash- 
 ington the 22d February A. D. 1819, by John Quincy Adams 
 and Luis de Onis. 
 
 These resolutions and acts were the first evidences of a 
 disposition to conquest in congress. Here was set the first 
 example of legislative fiUibustering. It was done in secret 
 session, and, whether from shame or policy, or both, I cannot 
 say ; but this legislation was not proclaimed nor published 
 until the trea^ty was certain of consummation. 
 
 The treaty with Spain in 1819, for the cession of Florida, 
 in connection with that of France in 1803, for the cession of 
 Louisiana, show what we accepted as the territory of Lou- 
 
61 
 
 isiana, as well as that of the Floridas. We acquired the East 
 and West Florida, east of the Mississippi ; and the boundary 
 line west of the Mississippi, beginning on the Gulf of Mexico, 
 at the mouth of the river Sabine, in the sea, running north 
 along the western bank of that river to the 32d degree of 
 north latitude, thence due north to the Red river; thence, fol- 
 lowing that river westward to the degree of longitude 100 
 west from London and 23 from Washington ; thence across 
 the Red river due north to the Arkansas river; thence, fol- 
 lowing that river on the southern bank, to its source in 42 de- 
 grees north ; and thence, by that parallel of latitude to the 
 South sea. The United States renounced all claim to terri- 
 tory lying west and south, an(d Spain all lying east and north 
 of the above described line. 
 
 This was the territory of, Louisiana and of the Floridas to 
 which the guarantees of the treaties, with France and Spain 
 applied. 
 
 The guarantees of the treaty with Spain, especially to the 
 inhabitants, were — 
 
 "Art. 5th. The inhabitants of the ceded territories shall be 
 secured in the free exercise of their religion, without any re- 
 striction," &c.; and 
 
 "Art. 6th. The inhabitants of the territories which his 
 Catholic Majesty cedes to the United States by this treaty, 
 shall be incorporated in the Union' of the United States as soon as 
 may be consistent with the principles of the federal constitution, and, 
 admitted to the enjoyment of all the 'privileges, rights and immuni- 
 ties of the citizens of the United States." 
 
 The property of these inhabitants also consisted, in part, 
 of slaves. And in this they were protected, as in the case of 
 Louisiana. By act of March 3d, 1821, the president 'was 
 authorized to take possession of the two Floridas ; and by 
 section 2d of that act, he was again made dictator, combining 
 in himself, or his appointees, "all the military, civil and judi- 
 cial powers exercised by the ofiScers of the existing govern- 
 ment." 
 
 Here again was all sovereignty or its semblance in the ter- 
 ritories absolutely excluded. 
 
62 
 
 This dictatorship continued until March 30th, 1822, when 
 a territorial government was established by law in Florida. 
 The territory was reorganized by act of March 3d, 1823, and 
 various acts have since been passed, but none to change or 
 innpair the entire control by congress. 
 
 Rights of Property first Assailed by Congress in 
 
 Missouri. 
 
 We must now go back a little, in point of time, to consider 
 the first provision by congress of.any law to impair or destroy 
 the rights and privileges of property in any of the territories 
 we have been thus far considering. By the 8th section of 
 the act, approved March 6th, 1820, to authorize the people 
 of the Missouri territory to form a constitution and state 
 government, it was enacted : " That in all that territory ceded 
 by France to the United States, under the name of Louisiana, 
 which lies north o/" 36.30 ruyrth latitude, not included within the 
 limits of the state contemplated by this act, slavery and involuntary 
 servitude, otherwise than in the punishment of crimes, whereof 
 the parties shall have been duly convicted, shall be, and are 
 hereby, forever prohibited," &c. 
 
 Now, it is to be observed : 
 
 1st. That this clause itself is an act of intervention by 
 congress to exclude property. 
 
 2d. That this section applied in its terms expressly to a 
 part of the territory ceded by France to the United States, 
 and as to which, of course, the treaty was the supreme law and 
 its 3d article bound congress to protect the property of the 
 territory. 
 
 3d. It was not one of the conditions proposed by congress 
 for the acceptance or rejection of the convention of Missouri 
 to form a state constitution. But — 
 
 4th. It was an independent section, applying to territories 
 entirely without " the limits of the state contemplated by this 
 act." And — 
 
 5th. It was in direct conflict with the constitution of the 
 
63 
 
 United Stales, according to, the interpretation for which we 
 have argued, and with the 3d article of the treaty with France 
 which we have cited. 
 
 When we come to the history of the admission of new 
 states, we will show what was the only condition imposed 
 upon the state of Missouri. 
 
 Annexation of Texas. 
 
 The territory which the United States acquired next was 
 by the annexation of Texas. This had been a part of the 
 Spanish, and then of the Mexican dominion, and had become 
 de facto and de jure, an independent national sovereignty ; a 
 republic after our own model. The boundaries actually ac- 
 quired and occupied by Texas were not precisely settled at 
 the period of annexation, or during the time of her separate 
 independence, for she had continued all her existence in war 
 with Mexico. But as she was, that republic was admitted 
 into the Union, in the following manner : 
 
 By ajoint resolution, approved March 1st, 1845, it was re- 
 solved : 
 
 " That congress doth consent that the territory properly in- 
 cluded within, and rightfully belonging to the republic of Texas 
 may be erected into a new state, to be called the slate of 
 Texas, with a republican form of government, to be adopted 
 by ihe people of said republic, by deputies in convention as- 
 sembled,' with the conserit of the existing government, in 
 order that the same ,may be admitted as one of the stales of 
 this Union." This was the alternative of negotiation, and 
 was subject to certain conditions, among which were : that 
 the said slate was to be formed, mbject to the adjmtment hu this 
 government of all questions of boundary that may arise with other 
 governments; that Texas should retain all her public funds, 
 debts, taxes and dues of every kind, and all the vacant and 
 unappropriated lands in her limits to be applied to her debts, 
 and to be disposed of by her ; that new states, not exceeding 
 four in number, in addition to the state of Texas, may here- 
 after, by her consent, be formed out of her territory, and be 
 entitled to admission under the provisions of the federal constitu- 
 tion ; " and such states as may be formed out of that portion of said 
 territory lying pouth of 36 deg. 30 min., north latitude, com- 
 
64 
 
 monly known as the Missouri compromise line, shall be ad- 
 mitted into the Union with or without slavery, as the people of 
 each state asking admission may desire. And in such state or 
 states, as shall be formed out of said territory, 'wortA of said 
 Missouri compromise line, slavery or involuntary servitude (ex- 
 cept for crime) shall be prohibited." 
 
 Now, let it be remembered, that this was but a resolution of 
 congress, and the alternative of negotiation a mere municipal 
 law, and not of the dignity in legislation of a treaty. Con- 
 gress had no more authority, by act or resolution, to offer such 
 a condition to a foreign government in this form, if at all, than 
 it had to pass the Sth section of the Missouri law, in relation 
 to any portion of the Louisiana territory already acquired. 
 But Texas assented to the convention, by her people, and 
 their deputies assembled, adopted a constitution in 1845, 
 erected a new state, and ordained and declared that they as- ' 
 sented to and accepted the proposals, conditions and guaran- 
 tees contained in the resolution of congress. The new con- 
 stitution of Texas was transmitted to the president of the 
 United States, laid before congress, and con^gress declared 
 the state of Texas admitted into the Union, "on an equal 
 footing with the original states, in all respects whatever." The 
 same day the laws of the United States were extended over 
 the state by an act of that date. Extended to what territory? 
 Why, these laws were claimed to operate to the Rio Bravo 
 del Norle ; all east of that river was claimed as Texas by 
 the United States up to the war with Mexico, and afterwards 
 until congress came to adjust the boundaries of Texas after 
 the peace vyith Mexico. The annexation of Texas brought 
 on tiie war with Mexico, and that war acquired other terri- 
 tory adjoining Texas, which became so mingled with it as to 
 confuse boundaries and legal questions touching both. The 
 peace with Mexico, by the treaty of Guad'aloupe Hidalgo, on 
 the 2nd February 1848, established the boundaries between 
 the United States and Mexico, still without definitely settling 
 what were, or had been, the limits of Texas ; but Texas was 
 taken as she' existed in her independent state. 
 
 Texas had been admitted into the Union subject to the con- 
 
65 
 
 dilion, among others, of the adjustment of her boundary by 
 the United States ^^wkh other governments.^'' The United 
 States did not adjust them with Mexico, and there was no 
 other government with which to adjust them. Before annex- 
 ation Texas claimed to the Rio Bravo del Norte, west, up to 
 the boundary of the United States, north. And from 1845 to 
 the 2nd February 1848, as against Mexico, the United States, 
 by arms, defended Texas to the .full extent of boundary 
 which she had claimed whilst an independent republic. Yet, 
 in a short time after the treaty of peace with Mexico, congress 
 on the 9th September 1860, passed an act proposing the ad- 
 justment of boundary with Texas. That her boundary on 
 the north should " commence at the point at which the meridian 
 of 100 deg. west of Greenwich is intersected by the parallel 
 of 36 deg. 30 min. north latitude, and shall run from that 
 point due west to the meridian of 103 deg. west from Green- 
 wich ; thence due south to the 32nd deg. of north latitude; 
 thence on the said parallel to the Rio Bravo del Norte, and 
 thence with the channel of said river to the gulf of Mexico." 
 All exterior to these boundaries Texas was to cede to the 
 United States ; and for these boundaries the United States 
 offered $10,000,000 in 5 per cent, stocks, &c. "Provided, 
 that nothing herein contained shall be construed to impair or 
 qualify any thing contained in the third article of the second 
 section of the 'joint resolution for annexing Texas to the 
 United States, approved March 1st, 1845, either as regards the 
 number of states that may hereafter be formed out of the state 
 of Texas, or. otherwise.^ " And thus the part of New Mexico, 
 which had been part of the republic, and thereafter part of 
 the state of Texas, was attached to a portion of the territory 
 acquired by conquest from Mexico. This part lies between 
 the meridians of 100 and 103 deg. west of Greenwich, east, 
 and the Colorado river, west, and the 38th and 32nd degi 
 north latitude. This part of what is now called New Mexico 
 was derived from a slave state, and the balance of the terri- 
 tory was derived from a state which, it is claimed, had abo- 
 lished slavery. On the 25th November 1850, Texas assented 
 9 
 
66 
 
 to the terms proposed by congress, and her boundaries were 
 thus fixed, and have thus complicated the questions which 
 may arise in the future as to slavery in this territory. On the 
 13th December 1850, the president of the United States pro- 
 claimed her assent. As to this territory, thus taken from 
 Texas, I contend : 
 
 1st. That Texas was admitted by act of congress, with the 
 assent of Texas, but not by treaty with her. On the con- 
 trary, negotiation, as an alternative, was rejected. 
 
 2d. That if admitted by treaty, or quasi treaty, no treaty 
 with a foreign power could alter the rights, privileges and im- 
 munities guaranteed to states and their citizens under the con- 
 stitution of the United Slates. That if that constitution 
 makes territory of the United States a common fund, it must 
 be so in spite of arry treaty, when once acquired ; for the con- 
 stitution is the supreme law ; and if the president and senate 
 may treat away equality of settlement on common domain, 
 then any other right, immunity and privilege of any or all of 
 the states, and their people, may be treated away. Habeas 
 corpus, trial by jury, religious freedom, as well as equality 
 in a common fund, or rights of property, may be treated 
 away in like manner. 
 
 3d. The joint resolution of congress itself proposed that 
 the new states to be formed out of Texas should be admitted 
 "M?M?er the provisions of the federal constitution;" and the sub- 
 sequent clause excluding slavery north of 36 deg. .30 min. in 
 this territory is entirely inconsistent with these provisions, 
 which we have so elaborately expounded, and consequently 
 the resolution is inconsistent with itself. This part of the ter- 
 ritory of Texas, originally, must stand precisely in the same 
 category as that we acquired under the treaty with France. 
 The laws of Texas and of Louisiana alike allowed the hold- 
 ing of slaves, before and when they were acq^uired ; and 
 whether they did or did not, the constitution of the United 
 States protects all persons and all properly in the common 
 territories, and they must all be necessarily acquired subject 
 to its provisions. I have shown how they operate. It was a 
 
67 
 
 piece of legislative legerdemain to change the title of this ter- 
 ritorj' from the annexation of Texas to the treaty with Mexico. 
 
 The next and last territory acquired by the United States, 
 was that conquered and purchased from Mexico. By the 
 treaty of Gaudaloupe Hidalgo of February 2d, 1848, we ob- 
 tained from the mouth of the Rio Bravo del Norte, up that 
 river to the line of New Mexico, thence westward along the 
 whole southern boundary of New Mexico to its western ter- 
 mination, thence northward alongf the western line of New 
 Mexico to the first branch of the Gila, down that river to the 
 Colorado, &c. &c. And, since, we have purchased Arizona. 
 
 This treaty provides protection, also, for the persons and 
 property in the territory. By article 9lh, the citizens remainr 
 ing in the territory " shall he incorpgrated into the Union of the 
 United States, and be admitted at the proper time (to be 
 judged of by the congress of the United States) to the enjoy' 
 ment of all the rights of citizens of the United States, according 
 to the 'principles of the constitution, and, in the mean time, shall he 
 maintained and protected in the frqe enjoyment of their liherty and 
 property, and secured in the free exercise of their religion without 
 restriction." 
 
 Summary of Territorial Acquisitions by the United 
 
 States. 
 
 We thus have mapped the various acquisitions of territory 
 and given the outline of the fundamental laws by which they 
 are governed : 
 
 First, under the confederation — 
 
 1st. The northwest territory, by deeds of cession from Vir- 
 ginia and other states. , 
 
 2d. The Yazoo or Mississippi territory, by deeds of cessfcn 
 from South Carolina and Georgia. 
 
 Second, under the constitution — ^ 
 
 3d. The Tennessee territory, by deed from North Carolina. 
 
 4th. The Louisiana territory, by treaty with France. 
 
 5th. The Floridas, by treaty with Spain. 
 
68 
 
 6th. The slate of Texas, by joint resolution and acts of 
 congress, with the assent of the republic of Texas. 
 
 7th. The part of New Mexico between the Rio Bravo del 
 Norte, by joint resolution and acts of congress, with the as- 
 sent of the republic of Texas, but by the legerdemain of le- 
 gislation changed to the chapter of treaty with Mexico. 
 
 8th. The territory of California, New Mexico and Arizona, 
 by the treaty of Guadaloupe Hidalgo, with Mexico, and the 
 Gadsden treaty. 
 
 General Observations. 
 
 We have deeds and ordinances, and resolutions and acts, and 
 treaties, and almost every form of acquisition, but the consti- 
 tution of the United States, at last, covers and governs all. 
 It operates by acts and agents at times, but in most important 
 cases propria vigore. One operation, jproprio vigore, is to over- 
 rule all laws and treaties and acts which contravene its pro- 
 visions. 
 
 We have seen that in one section, that of the northwest 
 territory, made by the states of Virginia, New York, Massa- 
 chusetts and Connecticut, under the articles of confederation, 
 'prior to the constitution, there was a compact against involuntary 
 slavery, except for crimes. This was an "existing engngC' 
 ment," imposed by the grantors of this territory, which was one 
 made binding under the constitution, by one of its express 
 clauses, as it had been under the articles of confederation. 
 But, after 1789, the constitution itself began to operate, and 
 formed the relative rights, immunities and privileges of the 
 states and their citizens in the common territory. And we 
 have shown that under that instrument no such exclusion of 
 any description of rights, recognized by the laws of the con- 
 federate states, could exist. No matter how territory has been 
 acquired, under the constitution, it must be 
 
 1st. Common to all. ' 
 
 2d. For confederate uses and purposes. 
 
 3d. Governed by federal legislation, whether it be local or 
 congressional — sliW federal and national. And 
 
69 
 
 4lh. It matters not whether the laws of the country from 
 which the territory was derived recognized the right or not 
 before, th^ right immediately arose and became positive the 
 moment the territory became the common territory of the 
 United States. And 
 
 6th. No treaty could or can control this supremacy of the 
 constitution of the United States, securing equality and com- 
 munity of rights, privileges and immunities in the territory of 
 the Union. 
 
 Intervention. 
 
 But the question still remains : What powers of interven- 
 tion has congress exercised, by law, in the various territories 
 thus acquired? 
 
 It would be too voluminous to examine every instance of 
 organization of territories, much more all the laws passed in 
 respect to them, general or special ; but we will give an in- 
 stance under every groupe of grants or of acquisition. 
 
 1st. We have already shown by the ordinance of 1787 
 what powers cong^pss was bound to exercise and did exercise 
 in the territory northwest of the river Ohio. 
 
 Every power of provincial control was exercised. 
 
 By act approved May 7th, 1800, the northwest territory 
 was divided by congress into two governments ; boundaries 
 were prescribed ; they were given the law of the ordinance of 
 1787 ; their officers were to be appointed by the president of 
 United States; their powers and duties defined ; their gene- 
 ral assemblies were organized and defined; the number of 
 representatives ; change of boundary was reserved ; and the 
 seats of the two governments were fixed. 
 
 By act approved February 3d, 1809, the territory of Illinois 
 was formed out of that of the Indiana territory ; boundaries 
 were fixed ; the ordinance of 1787 was prescribed ; the appoint- 
 ment of officers in the president ; Kaskaskia was given for the 
 seat of government ; and by act of May 20th, 1812, [he exten- 
 sion of suffi-age was prescribed by congress ; the time of elect- 
 
70 
 
 ing members of legislative council was prescribed, and of elect- 
 ing delegates to congress ; the duty of sheriffs in elections was 
 prescribed and penalties for neglect imposed by congress ; and 
 the general assembly was granted power to apportion repre- 
 sentatives. 
 
 2d. The territory ceded by Georgia, &c. 
 
 By act of April 7th, 1798, the Mississippi territory was laid 
 off" by fixed boundaries, and the president of the United States 
 was authorized to establish therein a government in all respects 
 similar to that exercised in the territory northwest of the river 
 Ohio, excepting the article of the ordinance of 1787 exclu- 
 ding slavery ; he was given power to appoint and commission 
 all officers ; congress reserved the right to divide the district. 
 Georgia's rights and individual rights of soil were saved ; a 
 penalty was put upon the importation of slaves from foreign parts 
 but none upon citizens introducing slaves from other states. 
 
 3d. The territory ceded by North Carolina : This was 
 accepted April 2d, 1790. In May 26lh of that year the ordi- 
 nance of 1787 was established over it, except the article ex- 
 cluding slavery; and the president was given appointment of 
 officers and their salaries fixed. And by act of May 8th, 
 1792, it directed the publication of laws for Northwest and 
 Southwest territories; it gave power to the governor and judges 
 torepeal improper laws, a power they did not possess before, and then 
 only by act of congress; a supreme judge was allowed to hold 
 a court; the power of the secretaries was defined; directed 
 how seals for public offices were to be procured ; and disap- 
 proved of an act passed by the governor and judges of the 
 territory; and allowed certain expenses of an individual. 
 And by act of December 3d, 1794, the delegate in congress, 
 James White, was allowed franking privilege and pay, &c. 
 for attending congress. 
 
 4th. The Louisiana territory, by treaty with France : 
 
 By act of October 31st, 1802, there was a dictatorship 
 established. By act of March 26lh, 1804, Louisiana was 
 erected into two territories — Louisiana and Orleans. It de- 
 fined the executive power, the tenure of office, and the powers 
 
71 
 
 and duties of the governors ; the oflBce of secrelar}' ; the cases 
 of vacancy in office ; a fegislative council to be appointed by the 
 president, and their qualifications ; the legislative pmvers of the 
 governor and council, prohibiting, expressly, "aZZ restraint, hur^ 
 then or disability on .account of religious opinions, ^professions or 
 worship ;" provided for the publication of laws, and their sub- 
 mission to congress,. and to be of no force if disapproved; the pri- 
 mary disposal of the soil was reserved ; the judicial power 
 was defined and vested in certain courts and judges; the 
 tenures of their offices fixed ; the terms of courts prescribed ; 
 the mode of tri^ was prescribed ; habeas corpus and bail 
 guarded, and cruel and unusual punishments prohibited; and 
 the governor, secretary, judges, district attorney, marshal, 
 and all general officers of militia, were appointed and re- 
 movable by the president of the United States ; the oaths of 
 all officers were prescribed ; salaries were prescribed, and 
 certain acts to be in force; the mode of selecting juries. And 
 slaves from foreign parts were forbidden to be imported into 
 the Orleans territory ; but it was expressly enacted in section 10, 
 that slaves might be imported from other states by citizens of the 
 United States, " removing into said territory for actual settlement, 
 and bdng at the time of such removal bona fide owners of such slave 
 or slaves." And this is precisely one of the instances of pro- 
 tection by congress which is claimed, and now denied. Here 
 was intervention to allow slaves to be introduced by citizens 
 from other states into that territory ; and the Missouri com- 
 promise was intervention, too, to exclude them from the Lou- 
 isiana territory north of 36 deg. 30 min. north latitude ! In 
 either case it was intervention by congress ; in the former in- 
 stance constitutional, and in the latter unconstitutional. 
 
 6th. Florida ceded by Spain. By act approved March 
 3rd, 1819, the president of the United States was created 
 dictator, as I have shown. Again, this was done by act of 
 March 3rd, 1821. 
 
 By act of March 30th, 1822, a territorial government, very 
 similar in all respects to that of Louisiana, was passed ; as to 
 boundaries, the governor, secretary, legislative powers in go- 
 
72 
 
 vernor and councils, their qualifications, tenures, appointment 
 and removal, judicial powers, &c. And it provided : 
 
 " Section 10. That to the end that the inhabitants may he 
 protected in their liberty, property, and the exercise of their religion, 
 no law shall ever be valid which shall impair, or in any way 
 restrain the freedom of religious opinions, professions or wor- 
 ship. They shall be entitled to the benefit of the writ of 
 habeas corpus. They shall be bailable in all cases, except 
 for capital oSences, where the proof is evident, or the pre- 
 sumption great. All fines shall be moderate, and proportioned 
 to the offence ; and excessive bail shall not be required, nor 
 cruel nor unusual punishment inflicted. No ex post facto law, 
 or law impairing the obligation of contracts, shall ever be 
 passed ; nor shall private property be taken for public uses without 
 Just compensation." 
 
 Here was intervention by congress of the most conservative 
 order, of a bill of rights. The importation of slaves from 
 foreign parts was prohibited, and the migration of our own citi- 
 zens with their slaves was expressly protected under the above 10th 
 section. This law intervened to the minutest particulars of 
 provision. 
 
 6th. The territory of Texas was admitted as a state, 
 directly into the Union. 
 
 7th and 8th. New Mexico, obtained by annexation of Texas 
 and conquest from Mexico. 
 
 By the act of Septennber 9th, 1850, a territorial govern- 
 ment was established for New Mexico. The ] st section con- 
 tained propositions to Texas to fix the boundaries, &c., the 
 5th of which concluded with the proviso : 
 
 " That nothing herein contained shall be construed to im- 
 pair or qualify any thing contained in the 3rd article of the 
 2nd section of the 'joint resolution for annexing Texas to the 
 United States,' approved March 1st, 1845, either as regards the 
 number of states that may hereafter be formed out of the state of 
 Texas, or otheruise." The 3rd article of the 2nd section of 
 that joint resolution was, it will be remembered : 
 
 " Third. New states, of convenient size, not exceeding four 
 in number, in addition to said state of Texas, and having suffi- 
 
73 
 
 cient population, may hereafter, by the consent of said state, 
 be formed out of the territory thereof, which shall be entitled 
 to admission under the provisions of the federal constitution. And 
 such stales as may be formed out of that portion of the said 
 territory lying south of 36 deg. 30 min. norlh latitude, com- 
 monly known as the Missouri compromise line, shall be ad- 
 milted into the Union with our mthout slavery, as the people of 
 each state asking admission may desire. And iti such state or 
 states .as shall be formed out of said -territory north of said 
 Missouri compromise line, slavery, or involuntary servitude, ex- 
 cept for crime, shall be prohibited." 
 
 I have already commented upon this provision of the joint 
 resolution for the admission of Texas; but I now amplify by 
 adding : 
 
 1st. The clause, that these additional states, to be formed 
 out of this territory, are to be admitted "under the provisions 
 of the .federal constitution," is wholly irreconcilable with the 
 clause that, in the states formed out of this territory north of 
 the Missouri compromise line, " slavery, or involuntary servi- 
 tude (except for crime), shall be prohibited." For, 
 
 2d. The provisions of the federal constitution forbid, as I 
 have shown, the exclusion of any property, privileges, immu- 
 nities or rights recognized by any of the United States. And, 
 
 3d. That they forbid the congress to adopt any rule as to 
 common territory, which is not uniform and common to all 
 the states ; and that, therefore, congress could not allow states 
 south of any line to elect to hold any species of property as 
 a condition of»admission into the Union, and at the same time 
 deny to the people of the states Tiorth of the line the same 
 rights of election. And, 
 
 4th. That the prohibition to the states north of the line of 
 36 deg. 30 min. was p5silive, and liable to the same constitu- 
 tional objection as the Missouri compromise itself. And, 
 
 5th. It was just as obnoxious to repeal by the subsequent 
 act for the organization of the Kansas and Nebraska territo- 
 ries, for instance, as was the 8th section, establishing the Mis- 
 souri compromise line; and the one was constructively re- 
 pealed by the repeal of the other ; but, 
 10 
 
74 
 
 6th. It was unnecessary to repeal it, after the passage of 
 this act under consideration, for this act itself, after declaring, 
 in the Isl section, as above quoted, that nothing in it con- 
 tained should be construed to impair or qualify this positive 
 prohibition of slavery in the territory north of 36 deg. 30 nain., 
 goes on to declare, in 
 
 Sec. 2d, the boundaries of New Mexico : " Provided nothing 
 in the act was to prevent congress, thereafter, from dividing 
 the same, or attaching any portion of it," &c.; and, provided 
 further, "That, when admitted as a state, the said territory, 
 or any portion of the same, shall be received into the Union, 
 with or without slavery as their constitution may prescribe at the 
 time of their admission." 
 
 This was the triumph of free admission over prohibition in 
 the same statute which, in the first section, denies the right of 
 equality; and in the 2d, in direct contradiction, establishes it. 
 And here, not in the English compromise bill, was the gain of 
 .the principle: 
 
 1st. That states, as well with slavery as without it, as well 
 without it as with it, should be admitted into the Union. That 
 that should not be constitutional on one side of a line which 
 was unconstitutional on the other; that there was no sectional 
 geographical line of rights in the constitution. And, 
 
 2d. That the organic will of the people, their state constitu- 
 tion, not territorial laws, might prescribe, "at the time of their 
 admission," whether they would have slavery or not, or be 
 admitted with or without it. 
 
 The act then proceeds to enadt the territorial government, 
 and enters into the minutest of details. . It provided for the 
 office of governor and his duties, of secretary and his duties, of 
 vacancy in the oflSce of governor, for the legislative power, for 
 representation, for the census, for elections, where legislative 
 assembly should meet, the period and duration of sessions, 
 the qualifications of voters ; it defined the legislative powers, 
 and limited them, and required "all laws passed, by the legisla- 
 tive assembly and governor to he submitted to the congress of the 
 United States, and ^if disapproved, shall be null and of no effect ; 
 
75 
 
 it provided how all township, district and county officers should 
 be appointed or elected ; restrained the members of the le- 
 gislature from holding certain offices ; it defined and limited 
 the judicial power, and the jurisdiction of courts and justices ; 
 the appointment of clerk, &c., and provided for appeals to the 
 supreme court of the United States, and " that in all cases involving 
 title to slaves, the said writs of error or appeals shall he allowed 
 and decided by the said supreme court without regard to the value 
 of the matter, property or title in controversy," Sec, 
 
 Now, note that this was one of the new provisions of the 
 modern statutes for territorial organization, which is called of 
 late, in the senate of the United States, " remitting the question 
 of slavery to the Judicial tribunals." What that means I do not 
 know. Does it mean that before this provision was intro- 
 duced in territorial laws, slave property was not Secured the 
 protection of judicial proceeding and appeal? If so, I reply 
 that congress could neither give or take away the right of de- 
 cision by the judiciary, of all cases where the constitution or 
 laws and treaties of the United States are brought in question. 
 The value in controversy cannot withhold or give jurisdiction 
 of a case involving the constitutionality of laws. And, in the 
 older statutes, as that organizing the temporary government 
 of Oregon, for example, the provision was more general, more 
 comprehensive and better, because more generic in its effect. 
 See section 9lh of the act of August 14th, 1848, as to that 
 territory, which provided that writs of error and appeals shall 
 be taken, &c. to the supreme court of the United States, &c., 
 where the value of the property, &c. shall exceed $2,000; 
 " and in all cases where the constitution of the United States, or 
 acts of congress, or a treaty of the United States is brought' in 
 question," &c. I say that this old was better than the new 
 provision, because it embraced cases of all descriptions of pro- 
 perly alike, where the constitution, or acts, or treaties of the 
 United States were brought in question ; and did not except 
 slavery alone, from the rule of valuation, which must be, and 
 ought to be uniform as to the matter or thing of controversy 
 to be valued, in order to give jurisdiction to the courts. Con- 
 
76 
 
 stitutionality of laws or treaties cannot be made lo depend on 
 amount or value. The matter of the constitution is invaluable; 
 and there ought to be no discrimination for or against slavery, 
 or any other property, otherwise than its peculiar nature may 
 require. Whatever that requires should be prescribed. Each 
 is good in its kind ; and each, in its kind, as it was created, 
 should be protected ; and the question of constitutionality be- 
 longs to each part and particular of every matter and subject 
 of adjudication by courts of justice. Congress cannot allow 
 the constitution to be violated in cases of less value than 
 $1,000 any more than in cases exceeding that amount in 
 value. But for the present my object is only to say : that this 
 exception in the act organizing the territorial government of 
 New Mexico was an innovation, in making special provision 
 as to slaves only; but it was not new in principle as to them, 
 and no argument can be founded on it either way, except that 
 it "proves the power of congress to intervene to protect slavery as 
 well as every species of property in the territories. This 
 itself is an act of intervention, of the strongest kind of pro- 
 tection, inasmuch as it makes an exception in favor of slaves 
 only, which belongs of right to every other matter of contro- 
 versy which may raise a question of the constitutionality of 
 laws. 
 
 The act further required the governor, secretary, judges, at- 
 torney and marshal to be appointed by the president of the 
 United States ; it prescribes the oath of judges; the salary of 
 governor, judges, secretary, pay of members of the assem- 
 bly, and the contingent expenses ; how the first assembly 
 should be held ; the seat of government ; and allowed a dele- 
 gate to congress, and extended the constitution and laws of 
 the United States over the territory, and concluded with Sec. 
 19 : " That no citizen of the United Stales shall be deprived 
 of his life, liberty or property, in said territory, except by the 
 judgment of his peers and the laws of the land." 
 
77 
 
 Kansas-Nebraska Act. 
 
 Such is an outline of the character of general laws protect- 
 ing persons and property in the territories of the United States 
 up to the 30th May 1854, when " an act to organize the ter- 
 ritories of Nebraska and Kansas" was passed. The one law 
 embraced the same provisions for both territories. 
 
 Did this act change the law of protection? Take the pro- 
 visions as to Kansas, and .let us see : 
 
 In the 14lh section ais to Nebraska, and in the 32d section 
 as to Kansas, the one mutatis mutandis, a copy'of the other, 
 we see the main peculiarity of its provisiotis. It says : 
 
 " That the constitution, and all laws of the United States 
 which are not locally inapplicable, shall have the same force 
 and effect within the said territory of Kansas as elsewhere 
 within the United Stales, except the 8th section of the act pre- 
 paratory to the admission-of Missouri into the Union, approved 
 March 6th, 1820, which, being inconsistent with the principles 
 of non-intervention by, congress with slavery in the states and terri- 
 tories, as recognized by the legislation of 1S50, commonly called 
 the compromise measures, is hereby declared inoperative and void; 
 it being the true intent and meaning of this act not to legislate 
 slavery into any territory or state, nor to exclude it therefrom, but 
 to leave the people thereof perfectly free to form and regulate their 
 domestic institutions in their own waj', subject only to the constitu- 
 tion of the United States: provided, that nothing herein con- 
 tained shall be construed to revive or put in force any law or 
 regulation which may have existed prior to the act of 6th 
 March 1820, either protecting, establishing, prohibiting or 
 abolishing slavery." 
 
 This contains several propositions : 
 
 1st. It extends the constitution and laws of the United 
 States over the territory. But — 
 
 2d. Excepts the 8lh section of the act of 6th March 1820, 
 which it declares inoperative and void. And — 
 
 3d. It connects the repeal of this clause of that act prohi- 
 biting slavery north of 36 deg. 30 min. north latitude, with 
 the offset of the proviso: "That nothing herein contained 
 shall be construed to revive or put in force any law or regular 
 
78 
 
 tion which may have existed jprior to the act of 6th March 
 1820, either "protecting, establishing, prohibiting or abolishing 
 slavery." And — 
 
 4:th. That it is " the true intent and meaning of this act 
 not to legislate slavery into any territory or state, nor to exclude 
 it therefrom, but to leave the people thereof perfectly free to 
 form and regulate their domestic institutions in their own way, 
 subject only to the constitution of the United States." 
 
 Upon these propositions it behooves us to observe as to the 
 1st, that it was what had always been done, but would have 
 been done by necessary operation of law without being de- 
 clared. And as to the 2d proposition, it would have been 
 well to have simply declared the 8th section of the Missouri 
 law inoperative and void. It was not the fact that it was in- 
 consistent with the compromise measures of 1850. Those 
 measures, so far from establishing any principle of non-inter- 
 vention by congress with slavery in the states and territories, 
 had intervened in several ways most fatally against slavery in 
 both the states and territories. They had made the same pre- 
 cise prohibition of slavery in that part of New Mexico north 
 of 36 deg. 30 min. which belonged to Texas, and they had 
 abolished certain rights of slavery in the district of Columbia, 
 and neither of these acts were declared inoperative and void. 
 It was a fatal admission on the part of southern senators and 
 representatives who voted for this clause tif the Kansas bill 
 ever to make, that the compromise measures established the 
 principle of non-intervention by congress with slavery any 
 where. If their legislation was Mow-inlervention, I should like 
 to know what intervention consists in. These measures, in 
 many respects, were more obnoxious to constitutional objec- 
 tions, and to the rights and interests of slavery, than was the 
 Missouri prohibition itself. Indeed, almost immediately prior 
 to the compromise measures of 1860 the movement had ac- 
 tually been made by Mr. Calhoun in the lead and Mr. Buch- 
 anan following, to extend the Missouri compromise line to the 
 Pacific ocean. Mr. Calhoun had, in effect, proposed it in the 
 senate, and Mr. Polk, then president of the United States, 
 
79 
 
 sanctioned the Oregon bill without Mr. Calhoun's amendrnent, 
 because he conceived that the Missouri compromise-Jine ex- 
 tended already to the Pacific. The Missouri line, or that of 
 36 deg. 30 min., it was supposed had become fixed across the 
 continent. Whether fixed or not in law, practically, it was a 
 f^ct fixed by climate, that African slavery would hardly ever 
 go north of that line ; it was forbidden by the region of frost. 
 It would be something gained, then, to have the line fixed 
 beyond which abolition or prohibition of slavery could not 
 come south. Whilst slavery could not, by reason of climate, 
 go north, free soil might, if not prevented, come south of 36^ 
 deg. 30 min. This was undoubtedly the conviction and 
 course of the south from about 1845 to 1850. Suddenly the 
 compromise measures of 1850 were adopted, which admitted 
 Calitornia,' without organization by congress, under a military 
 proclamation, from the camp of a brigadier general, into the 
 Union ; which cut off from the slave state of Texas 44,000 
 square miles, and converted it into a ]iart of a territory, and 
 prohibited slavery in it in the very language of the Missouri 
 compromise, by name, and which abolished the slave trade 
 in the district of Columbia. This, to be recognized by slave- 
 holding senators and representatives as non-intervention by 
 congress with slavery, in the states and territories, was to 
 yield the whole of protection, and to grant the whole of pro- 
 hibition of slavery by congress. But yielded it was, by recog- 
 nizing such non-intervention as that established '^by the legislation 
 of 1850, commonly called the compromise measures," in this provi- 
 sion of the Kansas act. 
 
 It was true that this fatal concession was overlooked in the 
 eagerness to nullify the Missouri compromise. But the repeal 
 of that measure by congress j^ias developed a curious mani- 
 festation of results. After this Nebraska-Kansas act was 
 passed. May 30th, 1854, there was great excitement in the 
 northern and non-slaveholding states against Mr. Pierce and 
 the northern members of his -cabinet, for the repeal of the 
 Missouri compromise line. When Mr. Cushing, his attorney 
 general, from Massachusetts, went home, it was demanded of 
 
80 
 
 him how such a measure was ever perpetrated, in part, undei 
 his auspices, as one of the advisers of the New Hampshire 
 president. His reply, in a speech at Newburyport, I believe, 
 was very characteristic. He said, in substance, according to 
 my recollection : " Here was white acre, north, with 200 sheep 
 grazing on it, and there was black acre, south, with but 100 
 sheep grazing on it, and the line of 36 deg. 30 min. ran be- 
 tween them, making a compromise wall of partition ; whilst 
 that wall of partition stood, which sheep got the most of the 
 pasture? the 100 on one half, or the 200 on the other half of 
 the territory?" Why, this sum was worked by simple pro- 
 portions, and any urchin of a common school could reply, 
 that so long as the wall divided them, the 100 sheep on black 
 acre got just double the amount of grazing enjoyed by the 
 same number on white acre. " But," said he, " I, of the 
 white acre flock, aided in breaking down the wall, and suc- 
 ceeded in throwing the sheep all together on the two acres, 
 and now tell me the proportion of pasturage to the 100 and 
 to the 200 sheep ?" Why, it was thought that it was an easy 
 answer to say that, whereas the 100 got half before the wall 
 was thrown down, they got but a third afterwards. This was 
 thought to be good arithmetic, according to Dilworth. But 
 an eminent member of congress, who had studied migration 
 more profoundly, the Hon, Eli Thayer, went to Boston and 
 proved that Mr. Gushing did not understand the arithmetic of 
 •free soil at all. Mr. Gushing thought that his rule proved 
 enough 'by showing that the white acre sheep had gained the 
 difference between a third and a half in the sum total of 
 pasturage. But Mr. Thayer proved that the 200 got all of 
 the two acres. He dropped the sheep diagram of demonstra- 
 tion and took the actual relatioji of distinctive population be- 
 tween the slaveholding and non-slaveholding states. He saw 
 what had been the effect of a line of latitude. That as far 
 north as 36 deg. 30 min. it was not needed to prevent slavery 
 from going north. Jack Frosf would do that effectively ; and 
 cotton and sugar would draw slaves further south than hemp 
 <;ould hold ihem in the middle latitude. And he saw, further 
 
81 
 
 that the line of partition prevented a free and uninterrupted 
 race of competition in settleaients south of 36 deg. 30 min., 
 between slavery and free soil. He concurred with Mr. Gush- 
 ing, then, in breaking down the partition, in order that that 
 race might be started between a population north, which was 
 comparatively redundant, and a population south, which was 
 comparatively sparse. And not only was the one redundant 
 and the other sparse, but the ene was congregated in towns, 
 and factories and cities, and skilled in mechanic arts, and the 
 other was purely agricultural, separated on large plantations, 
 and without the concert of association and without mechanic 
 arts or much money capital ; and, above all, all the male la- 
 borers and operatives of the one would count at the election 
 polls, whilst the votes of the others would diminish in their 
 numbers exactly in the relative proportion of the number of 
 slaves to the number of masters. Every five or fifty from 
 New York or New England would count five or fifty; but one 
 master and four slaves, or one master and forty-nine slaves, 
 would count but one. The proportion of votes then might 
 be, when slavery and free soil met at the polls in a territory, 
 as five, or possibly fifty, to one in favor of the latter. If it 
 was but two to one, that disparity would be enough to drive 
 all the blacks from the settlements and give the territories to 
 the whites. With sagacious boldness, then, he said openly 
 to black republicans : " I take southern and slaveholding ad- 
 vocates of the Nebraska-Kansas bill at their vi'ords. I agree 
 gladly— 
 
 " 1st. That the line of partition shall be broken down. 
 
 "2d. That a tabula rasa shall be made of all laws prior 
 to 1820, either protecting or establishing, prohibiting or abol- 
 ishing slavery. And, 
 
 " 3d. Non-intervention shall be the order of the law, and 
 no power shall be exercised by congress to protect the federal 
 right of holding slaves in a territory." 
 
 With this fair field for the race of settling the western ter- 
 ritories, and all the odds in his favor, he began the training 
 which would win or lose all the stakes. Mighty stakes they 
 11 
 
82 
 
 were — the stakes of the stales of empire on a continent of 
 waste and unappropriated lands — stakes which, if won there, 
 would lose to us all that we have in hand at home. Accord- 
 ingly, emigrant aid societies were formed, and the emigrants 
 were armed with Sharpe's rifles, to meet in hostile array those 
 who were denounced as border ruflSans. It was likely to be 
 a battle rather than a race — a contest to be decided by the 
 cartridge box, rather than by the ballot box. But the wrongs 
 and outrages committed on both sides are not in this discus- 
 sion. My object now is only to show how the weaker was 
 given over to the tender rivalry and competition of the stronger 
 section. Protection to slavery was doomed by the Badger amend- 
 ment. Up to the passage of that proviso, the laws of the 
 Louisiana territory, establishing and protecting slavery south 
 of 36 deg. 30 min. at least had never been doubted or ques- 
 tioned. And, 
 
 3d. In reference to the third proposition contained in this 
 provision, then, that nothing in that act should be construed 
 to revive or put in force any law or regulation which may 
 have existed prior to 1820, either protecting, establishing, pro- 
 hibiting or abolishing slavery, I say — 
 
 Isl. That there had been no laws "prohibiting or abolish- 
 ing" slavery in all the territories acquired from France prior 
 to 1820 ; that the Missouri compromise never was law — it 
 was in the face of the 3d article of th§fc treaty with France 
 and of the constitution of the United Slates ; that this act 
 itself declares it was inoperative and null, and that compro- 
 mise could never, for this reason, be revived. It had only to 
 be let alone to be decided by the supreme court to be void from 
 the beginning, and needed not to be declared to be null and 
 inoperative by this act at the expense of implying that the 
 laws existing prior to 1820, " protecting and establishing" 
 slavery, should not be " revived and put in force." I say 
 of "implying" this, because, 
 
 2d. This provision simply declares, that nothing herein 
 contained shall be construed to revive or pvt in force any law 
 or regulation which may have existed," &c.; and it may well 
 be said that no one who understands the previous laws will 
 
83 
 
 depend on any thing contained in this to revive them or put 
 them in force. The laws establishing and protecting slavery 
 in this territory, prior to 1820, have never expired, and, there- 
 fore, need not look to this act, or any other, to "revive" them; 
 and they are laws which put themselves in force. They are 
 the constitution of the United States and the third article of 
 the treaty with France, neither of which could have been re- 
 pealed by this act, had it used express words to that intent. 
 They are surviving and operating in force now. And, 
 
 3d. If they are not, or if they — the laws of France recog- 
 nizing slavery in all Louisiana territory, the constitution, and 
 the treaty under it — are not to be regarded as surviving and 
 of force in Kansas and Nebraska, and all laws establishing 
 and protecting slavery there, prior to 1820, are to be regarded 
 as repealed by this proviso, then this proviso has most wan- 
 tonly stripped us of the benefit of judicial as well as legisla- 
 tive protection, by not wailing for the decision of the supreme 
 court of the United States in the case of Dred Scott. For, if 
 congress bad not declared the Missouri compromise null and 
 void, coupled with the repeal of all laws prior to 1820, es- 
 tablishing and protecting slavery in this territory, the decision 
 of the supreme court would more effectually have settled the 
 unconstitutionality and nullity of the Missouri compromise, 
 and have left the laws establisliing and protecting slavery un-« 
 repealed. In, either alternative, we are worse off by this pro- 
 viso ; for the laws, prior to 1820, are meant to be repealed or 
 not by it. If not repealed, as they could not be, I contend 
 they were brought into question and impaired by doubts as to 
 their enforcement; and if they could be repealed, and were 
 repealed by this proviso, we can take nothing. by the decision 
 in the Dred Scott case, unless we are saved by the words 
 " svhject only to the constitution of the United States" Why 
 were the laws and treaties which goyerned the territory prior 
 to 1820 thrown out of the saving clause, by southern legisla- 
 tors ? A senator from North Carolina proposed this proviso ; 
 but it is believed that he was not the author of it. It was the 
 compromise of a few who, apart, concurred in it, and it was 
 
84 
 
 passed, late at night, by an exhausted senate. It received 
 but little consideration before it was first passed in that body; 
 its reputed author had it in hand but a short time before he 
 offered it ; and the contradiction and confusion on its face 
 shows it to have been but badly digested. It is not like the 
 older and the better statutes in its terms. There is more of 
 the hustings meetings than the dignity of the senate chamber 
 in its. tone. But, 
 
 4th. The proposition of " non-intervention" is that 
 at which I am aiming. It says : 
 
 1st. •' The true intent and meaning of this act is not to 
 legislate slavery into any state or territory." Nor, 
 
 2d. " To exclude it therefrom." But, 
 
 3d. " To leave the people thereof perfectly free to form and 
 regulate their domestic institutions in their own way, subject only 
 to the constitution of the United States" 
 
 Such is " non-intervention," defined by this clause. Upon 
 each branch of it, I have to observe : 
 
 As to the 1st. It is a curious phase of positive law to an- 
 nounce by statute what its true intent and meaning is not. It 
 does not ^^ sound" like the affirmation of a uniform, universal 
 rule of law, commanding what is right and prohibiting what is 
 wrong. It seems to be a mode, occult, of approaching some 
 equivocal end. It was enough to denote danger of miscon- 
 struction, and that danger ought to have been " snuffed" by 
 the southern senators and representatives. Not to " legislate" 
 slavery into any state by congress. 
 
 How could southern, strict constitutionists and states rights 
 senators and representatives, tolerate this negative pregnant? 
 Pregnant of the implication that congress might legislate slavery 
 into a state ? If it be said that this is hypercritical, I reply 
 that effect must be given to every word and phrase of a sta- 
 tute. It means something or nothing, and must be made to 
 mean whatever it may most reasonably and legitimately mean. 
 To say the least it imports a fact which never existed, that a 
 question had been made whether congress might not legislate 
 slavery into a stale. What mean the words "legislate into?" 
 
85 
 
 To force or drive slavery by law into a state or territory, 
 where it would not exist otherwise ? Such an attempt had 
 never before been noade. The truth is, that the only saving 
 from all dangerous implication of these terms is in the legiti- 
 mate and reasonable interpretation that they meant to express, 
 that congress would not attempt to do by ^'■legislation" what 
 required no legislation^ but what was done in the territory, or 
 would be done in the new state when admitted in the Union, 
 by the operation, as we have shown, of the constitution of the 
 United States. And the termination of the whole clause, in 
 the words "subject only to the constitution of the United 
 States," shows this construction to be right. But, then, by 
 subjecting the territory and state, in this clause, to the consti- 
 tution of the United States, as to slavery, they did legislate 
 slavery into the territory, in the very act of subjecting the ter- 
 ritory to the constitution. True, it was subject to that instru- 
 ment without this law, but still this law too subjected it to 
 that instrument, and it authorizes and protects slavery, not 
 into but in the territories of the United States, and the settlers 
 and people therein are subject to its supreme law, and cannot 
 contravene it. This phrase, then, was, in this sense of sub- 
 jecting the whole question to the constitution, a mere pleonasm, 
 and it was a " pleonastic contradiction" too. Congress legis- 
 lated to say it would not legislate, and intervened to say it would 
 would not intervene. But — 
 
 2d. Neither vt'ould it legislate t6 " exclude" slavery " there- 
 from." Here too the same course of observation as that just 
 made, applies. And yet congress in this very act, in the 1st 
 and 19th sections both, gave the people of the territory power 
 by their own constitution, to elect at the time of admission 
 into the Union, whether slavery should be excluded or not ; 
 and by the 9th and lOlh and 27th and 28lh sections "fugitive 
 slaves" are very " properly legislated" out o/" the territorjf in 
 being delivered up to their " masters" 
 
 Thus, by this very act, did congress legislate slavery both 
 into afid out of their territories. In both cases it did precisely 
 what it declares it was its true intent and meaning not to do. 
 
86 
 
 But the main matter at last, and that in aiming at which It 
 perpetrated all these crudities and contradictions, was its pro- 
 position : 
 
 3d. " To leave the people thereof perfectly free to form and 
 regulate their domestic institutions in their own way, subject only 
 to the constitution of the United States." 
 
 Now what does this mean ? 
 
 1st. One class of persons claim under this clause what is 
 called " squatter sovereignty ;" an absolute and irresponsible 
 power to those who happen for the lime to be settlers of the 
 public lands of a territory, to admit or exclude what they 
 p.lease, and to adopt their own system of laws at will, both in 
 respect to persons and to property. 
 
 2d. A second class claim that this authorizes the people 
 of a territory without being sovereign, to adopt for themselves 
 their own local and municipal laws, independent of the control 
 of congress. And 
 
 3d. A third class hold that all the laws of a territory are 
 legitimately either enacted by congress or derived in their au- 
 thority from the acts of congress, and that congress may at 
 any time intervene to modify or repeal, or enact laws for a 
 territory, and is bound to protect all persons and property in 
 territories against unconstitutional, oppressive, or unequal legis- 
 lation in violation of the federal rights of the states and the^r 
 citizens. 
 
 If either the 1st or 2nd of these interpretations be the true 
 one, I would like for those of either class of opinion, who 
 voted for the Kansas-Nebraska bill, to tell me how it came 
 that they, in this very bill, allowed congress to intervene : 
 
 To fix its boundaries; to give the people of the territories 
 the power to form a constitution, with or without slavery; to 
 reserve to congress the right to divide the territory, or to at- 
 tach any portion of it to any other state or territory, and thus 
 to blot the organization of the territory out of existence ; to 
 reserve Indian rights,. and authority over Indians; to vest the 
 executive power and authority in and over the territory in a 
 governor ; to fix his term of office, and to make him remova- 
 
87 
 
 ble by the president of the United Slates ; to fix his residence, 
 and make him commander of the militia ; to give him the 
 power of pardons and respites, and to prescribe all his powers 
 and duties; to provide a secretary of the territory, and pre- 
 scribe his powers and duties, and when he should act as gov- 
 ernor ; to vest the legislative power and authority of the terri- 
 tory in a governor and legislative assembly, to consist of a 
 council and house of representatives ; to fix their number, and 
 qualifications and apportionment ; to cause a census to be 
 taken ; to provide for a first election, and for vacancy or fail- 
 ure of election, and for subsequent elections; to prescribe 
 sessions of assembly, to declare who shall be voters, to con- 
 fine suffrage to citizens, and to exclude soldiers or seamen of 
 the United States from voting or holding oflSce ; to define the 
 legislative power, and prescribe a veto on laws qualified ; to 
 provide for the appointment of township and county ofiicers ; 
 to exclude members of the legislature from certain oflSces ; 
 to exclude officers of the United Slates, except postmasters, 
 from being members of assembly; to vest the judicial power 
 in certain courts and justices of the peace ; to constitute the 
 judicial tribunals and districts, and the jurisdiction of courts 
 and of justices of the peace ; to fix the appointment of clerks 
 of courts ; to prescribe writs of error and appeals, and how 
 taken ; to fix the value in controversy on appeals, and to ex- 
 cept slaves from the limitation of value in controversy, and except- 
 ing, also, that writs of error shall be allowed in all cases in- 
 volving PERSONAL FREEDOM ; to providc for the operation of 
 the fugitive slave acts; to give precedence of trial to slave 
 cases of error and appeal ; to prescribe fees of clerks ; to 
 provide for the appointment and removal of district attorney 
 and marshal; to provide that the governor, secretary, judges, 
 attorney and marshal, shall be appointed by the president of 
 the United Stales, and removable at his will; to prescribe 
 their oaths of office, and the salaries of officers, and the pay 
 of members of the assembly and of the officers of the houses; 
 to provide that there shall be but one session annually, and for 
 the contingent expenses of the territory, and for expenditures 
 
88 
 
 by assembly made subject to appropriations by congress ; to 
 locate the seat of government, and provide public buildings; 
 to allow a delegate to congress ; to extend the laws of the 
 United States, except the Missouri compromise, and to declare 
 non-intervention, and to enaCt against reviving and putting in 
 force any laws passed before 1S20, for or against slavery ; to 
 grant appropriations for public buildings and library ; to re- 
 serve every 16th and 36th section of lands for schools ; to de- 
 fine temporarily judicial districts ; to require certain oflScers to 
 give security for moneys entrusted to them ; and to prevent 
 interference with Indian rights under the laws, treaties and 
 other engagements ? 
 
 Now, such are the powers, most plenary and pertaining to 
 the minutest details, which congress exercised and still exer- 
 cises over these very territories in this very act. Does this 
 prove either that there is a particle of sovereignty recognized 
 in the territorial people, or that there is in them what any in- 
 dependent people would call municipal and local self-govern- 
 ment even? Is this what is meant by being left " perfectly 
 free to form and regulate their domestic institutions in their 
 own way ?" They did not ^^form" and they do not " regulate," 
 this temporary territorial government at all. Congress formed 
 it for them, prescribed every particular provision, and what 
 Utile modicum of power they possess is jealously guarded and 
 limited, under sp.ecial grant to them for atime only, and under 
 strict responsibility to the congress, the judiciary, and the ex- 
 ecutive, too, of the United States. If this be squatter sovereign- 
 ty, it has not the attributes of a town corporation, has not a 
 vested power which may not be absolved in a moment, can 
 make no laws which may not be repealed by a single line of 
 congressional legislation, and if .congress will faithfully dis- 
 charge its duty, it cannot do any harm, need not excite any 
 alarm of usu rpation, or cause an apprehension of danger to any 
 federal rights whatever. And I am sure that no proud people 
 will ever claim this to be a system of self-government which 
 recognizes "the principle of non-intervention by congress" 
 with any thing, and especially slavery, in the territories of the 
 United Stales. 
 
89 
 
 The bill ilself, then, so contradicts this interpretation of this 
 clause, that we must look for son:)e other meaning. What 
 other? There is but one olher which is at all rational or con- 
 sistent. 
 
 The words of the clause clearly show what other interpre- 
 tation was meant at the time. The "institutions" which the 
 "people" were to be left "perfectly free" to adopt were : 
 
 1st. Such as they themselves, not congress, were to "form," 
 
 2d. Such as they themselves, not congress, were to " regulate." 
 
 They neither "formed^" nor do they "regulate" this tempo- 
 rary territorial government. It was "formed" by congress, 
 and ia "regulated," and may at any time be repealed, by 
 congress. And, 
 
 3d. They are to "form and regulate their domestic institu- 
 tions in their.own. way" 
 
 Temporary territorial institutions are not theirs alone, but 
 they belong to the whole United States. A territory has no 
 sovereignty and no self-government; it is a province in pupil- 
 age, wholly, nationally and municipally, subject and subordi- 
 nate to a parent and patron power. And territorial institutions 
 are not the "domestic," but a part of the "federal" institutions 
 of all the people of the United States. The United States 
 have federal and national "institutions," and the sovereign 
 states only of the Union have "domestic institutions." These 
 temporary territorial institutions are institutions of the United 
 States; the "domestic institutions" ave those of the separate, 
 sovereign and independent states only of the confederacy. It 
 was, then, clearly concerning state institutions that the people 
 are to be left " perfectly free ;" that they are to " form and re- 
 gulate" them in their own way, subject only to the constitution 
 of the United States. And this construction is supported, not 
 only by the general fact that the whole of this act and of 
 every other act organizing such temporary governments inter- 
 venes with territorial affairs in every form and regulation, but 
 by the particular fact that the 1st and 19lh sections declare, 
 that the " territory, or any portion of it, when admitted as a 
 state or states, shall be received__into the Union with or without 
 12 
 
90 
 
 slavery, as their constitution may prescribe at the time of their 
 admission." What constitution of theirs? Their state, not 
 their territorial constitution ; and then, " at the time of their 
 admission," and not before, they may elect to have slavery 
 among them or not, as their state constitution, not their terri- 
 torial laws, may prescribe. Then they will have institutions — 
 institutions of their own — and they, and they alone, shall be, 
 and ought to be, " perfectly free" to " form and regulate their 
 domestic institutions in their own way, subject only to the 
 constitution of the United States." Never until then and their 
 admission have they domestic institutions, and never until 
 then have they institutions solely their own at all to have their 
 own way about. 
 
 Those words " domestic institutions," so much derided, are 
 precious words to the American people. Never was there so 
 narrow a view as that which regards these words in this act 
 as relating to slavery alone. Such a construction is not only 
 against the true intent and meaning of the statute, but it is 
 against the national sense and sensibilities. 
 
 The word " country" gathers together the " United States," 
 and all their federal and national relations in dependencies of 
 districts and other places and territories. The word "states" 
 gathers together the municipalities and communities of the 
 people, who govern themselves ; and they who govern them- 
 selves alone have " institutions," enactments, decrees, establish- 
 ments, appointments and ordinances of their own, and their 
 own way about them ; and those alone who of themselves 
 have their own way among themselves about and concerning 
 their own, have "Aome" or " domesti(^' institutions. A peo- 
 ple in Nebraska or Kansas territories, with a temporary go- 
 vernment prescribed to them by congress at Washington city, 
 have no home or " domestic institution" in the sense of .self- 
 government at all. The states are guardians of the homes — 
 ihey are the household gods the penates of the people of the 
 United States. They are the sacred sovereignties who alone 
 are free to form and regulate their domestic institutions in 
 their own way, subject only to the supreme federal law of 
 
91 
 
 their own wills — the blessed constitution of their own crea- 
 tion ! It is in this precious and comprehensive sense of self- 
 government, of sovereign slate organization, of municipal con- 
 trol, of patriarchal domestic providence over the people at 
 home, that the freedom of the people to form and regulate 
 their domestic institutions is recognized by this law of con- 
 gress. It can have no other practical and potential meaning. 
 And even in this sense this freedom must be still " subject 
 only to the constitution of the United Slates" as the great 
 supreme law of liberty and equality, guiding, guarding, pro- 
 tecting, preserving and perpetuating all confederate rights and 
 privileges. And no federal, any more than any local, or dis- 
 trict, or territorial power can rightfully set its authority at 
 naught. And this brings us back to its provisions touching — 
 
 The Formation and Admission of Nbw States into 
 THE Union, and Popular Sovereignty. 
 
 We are now prepared to turn back to the provisions of the 
 constitution of the United States touching — 
 
 The formation and admission of new states in this Union. 
 
 And here we approach the steps of the heights of sove- 
 reignty in the people. Thus far they are, and have been con- 
 sidered, in the territorial state, and now they are to make a 
 sovereign state of a territory. They have been in provincial 
 pupilage, under the protecting power and patronage of the con- 
 gress, as trustee and agent of the whole United States. Now, 
 they are to put away pupilage and patronage, and be a peor 
 pie with a sovereign being of their own self-government. 
 And it is well for ihem that this has been and is the case. 
 They have had lands purchased or acquired by conquest for 
 them, with all the power of the whole nation to take it, and 
 pay for it, and hold it for their occupancy; without other cost 
 to them than the cost common to the whole confederacy. 
 They have had these lands cleared for them of the Indian 
 titles and contiguity ; and the lands have been, at great cost, 
 surveyed and sectioned for them ; so that litigation shall not 
 
92 
 
 disturb the peace or safety of real property among themselves. 
 By lines of latitude and longitude, north and south and east 
 and west, and by natural monuments, their homes have been 
 laid off for them. They have been protected from Indians 
 v^hilst wielding the log-wood axe, to hew dbwn the forests 
 and build the log-cabins of their frontier homes. They were 
 poor, but the United States were rich ; and their whole coun- 
 try, with all its purse and patronage, has established forls and 
 magazines, and military roads, and ferries for them ; and has 
 erected for them court-houses, and state-houses, and other 
 public buildings ; and has paid the salaries of their ofiBcers of 
 municipal government and police; and the United States has 
 reserved, nobly reserved, for them, the 16th and 36th sections 
 for the common schools, to educate their children. In a word, 
 a munificent and beneficent free federal government has led 
 them by the hand, during their infaint weakness and poverty, 
 in the wilderness, until they have grown strong and able to 
 stand and walk and run, with vigorous strides, alone. And 
 now, they are to put on the attributes of sovereignty ; the po- 
 tentiality and puissance of self-government. They are to put 
 away childish things, and become more than men — an Ame- 
 rican, self-governed, sovereign people. Ah, what beauty and 
 beneficence and power there have been in the operation of 
 our constitution, and land laws and ordinances, when allowed 
 to operate in the full virtue and wisdom of their grand origi- 
 nal conception. There was no precedent for them in human 
 history. They are original. The feudal system, the system 
 of the common and civil laws, were nothing like them, and 
 nothing to compare with them. Next to the wisdom of the 
 constitution itself, is the wisdom of the land system of the 
 United States. Old Nathan Dane, I believe, is as much en- 
 titled to the credit of that system as any one else, and I honor 
 New England, in him, for that institution of federal policy, if 
 for no other. It opened the western forests, and forded the 
 western mighty rivers, and bridged streams, and made wagon 
 roads over mountains, and built the millions of happy homes 
 which now shelter the valleys and plains of our vast western 
 
93 
 
 world. Never before has any land system worked such won- 
 ders of settlement and civilization, and physical and moral 
 subjugation for man's development. Never before has migra- 
 tion been poured from overflowing fountains of population into 
 a wild, wide world, waiting for man, his axe, his hoe and his 
 plough, and his school-house, and his court-house, and his 
 State-house ! And now that the territory is ready for it, and 
 so soon as it is ready for it, it shall have its state-house; its 
 own constitution, its own laws, its own legislature and execu- 
 tive and judiciary. When ready it shall ascend to the high 
 priesthood of political rights, and it shall minister at the altar 
 of civil and religious lil^rty, with sovereign power. 
 
 No people should assume that holy office without their pro- 
 per probation and preparation. To create a new state is the 
 highest attribute of man. li comes next to the attribute of 
 Deity, to create a sentient, responsible being, clothed with 
 the fearful powers of good and evil over thousands and mil- 
 lions, for generations and ages. There must, then, be some 
 ceremony and some sanctity in giving birth and being and 
 sovereignty to a new state, to control the persons of men, their 
 properly, happiness, freedom and destiny in all time. And it 
 is now, after passing through their preparatory, temporary, 
 territorial government, under the rule and regulation of con- 
 gress, that the people about to form a new state, rise nearly 
 to their full majesty. They do not and cannot rise up to it 
 fully until they have fully and fairly adopted a constitution of 
 government, and congress has assented to their admission into 
 the Union, ^ui'they are entitled to full and free conventional 
 power in deliberating upon their constitution and in submitting it 
 to congress for approval. If that be approved and the new 
 state be admitted, then, and not till then, are they made a 
 separate, independent and sovereign state, with full powers of 
 self-government within the limits of republican forms. 
 
 Section 3d, clause 1st, of article 4th of the constitution of 
 the United States, prescribes : — 
 
 "New states may be admitted by the congress into this 
 Union; but no new state shall be formed or erected within 
 
94 
 
 the jurj^diclion of any other state ; nor any state be formed 
 by the junction of two or more states, or parts of states, with- 
 out the consent of the legislatures of the states concerned as 
 well as of the congress." 
 
 The congress is clothed with this high power to admit a 
 new state into this Union. If it be a foreign state, as was 
 Texas, already created and existing, the consent of the state 
 as well as of congress, must be obtained by negotiation of 
 treaty, or by laws passed by both. But if the new state be 
 formed out of territory of the United States settled by their 
 citizens, it must first be created by the people to he governed by it, 
 and its constitution must be submitted to congress for the admis- 
 sion of the state into the Union. This necessarily involves 
 the power and the duty to examine : — 
 
 1st. Was the constitution of state government the act and 
 deed of the people, made by their will, legally expressed, and 
 fairly and fully exercised ? And — 
 
 2d. Is its form such as is recognized by the United States 
 as republican and admissible into this Union ? 
 
 This must all be deliberated upon and decided by the peo- 
 ple and the congress both, before a territory can be elevated 
 to the sovereignty of a stale. Otherwise, if a people may 
 assume sovereignty and self-government, independent of con- 
 gress and beyond its control, then independent sovereignty 
 and self-government may exist in the United States without 
 being admitted into this Union. The solecism of a sovereign 
 state in the United States, without admission into the Union, with- 
 out representation in the senate and> house of representatives, 
 without a voice in the election of the chief executive, without 
 the power to appoint its own judges and other officers, with- 
 out the power to pass its most important municipal laws, and 
 without authority over its eminent or useful domain, and with- 
 out the commonest attribute of an independent power, is too 
 absurd to be debated. If not a sovereign state, then, before 
 admission as a sovereign, what is it ? It is a sovereign nothing 
 at all — it is a dependent territory;, dependent upon congress 
 for its government, and dependent upon congress for its ad- 
 
95 
 
 missioa into the Union as a sovereign slate. Congress may 
 not impose any conditions of admission which will impair the 
 state sovereignty when admitted ; and, mark, no conditions 
 can be imposed upon, congress to admit the new state into 
 the Union. 
 
 Popular Sovereignty. 
 
 It is here, in the act of forming a constitution for a new 
 state and of admitting her into this Union, that the doctrine of 
 popular sovereignty in a territory, and of non-intervention by 
 congress or any other power, both apply. 
 
 1st. It is here that the people of a territory, in the act of 
 forming the constitution of their new state, must be left " per- 
 fectly free to form and regulate their domestic institutions in 
 their own way, subject only to the constitution of the United 
 States." 
 
 2d. It is here, in forming their conslitulion for the new stale, 
 and in regulating the state or domestic institutions under its 
 supreme law, that congress or any other power cannot right- 
 fully intervene. 
 
 Popular and state sovereignty both forbid congress to inter- 
 vene in forming or regulating slate constitutions or institutions. 
 
 Congress may exercise its constitutional power to admit the 
 new state into this Union, or it may reject the application for 
 admission. But it cannot dictate the mode of forming the 
 constitution of the new stale, nor what shall be the provisions 
 of the constitution itself of the new state. 
 
 These doctrines ,and the violation of them were all fully 
 illustrated in the case of Kansas. A convention at Le- 
 coMPTON, in that territory, sent to congress a paper, purport- 
 ing to have been legally adopted by the people of Kansas as 
 their constitution of government for a new stale, and sub- 
 mitted an application for admission into the Union. The first 
 objection urged against it was : 
 
 1st. That the elections of the members of the convention 
 were fraudulent and by force. 
 
96 
 
 To this it was replied that congress had no power to inter- 
 vene to regulate the elections an'd to prevent fraud or force; 
 and that to look behind the returns to inquire into fraud or 
 force, would be unauthorized intervention. 
 
 The answer was, that whilst congress might not intervene 
 to prescribe the law of the election, yet it was the duty of the 
 executive of the United States to protect the people of the 
 territory in the exercise of their freedom of election, to sup- 
 press all violence at the polls, and to see by proper police 
 guard, that the polls themselves were protected against force 
 and fraud ; and that this was the only way in which the peo- 
 ple could be left perfectly free to form and regulate th^ir do^ 
 mestic institutions in their own way. It was no intervention 
 with their freedom to form and regulate their domestic institu- 
 tions in their own way, to see that their own way was allowed 
 to prevail, and that it was not prevented by force and by 
 fraud. That the laws required protection in their execution, 
 in order to obtain freedom and fairness in elections. And if 
 congress might not look behind the returns to see that fraud 
 and force had been perpetrated against the freedom and. fair- 
 ness of elections, they certainly would not or should not, 
 without looking behind the returns, or inquiring in some way — 
 and there was no other way to inquire^decide that force and 
 fraud had not been perpetrated ; that if congress could not 
 inquire into the facts at all, then congress could not decide at 
 all, and they could not admit the new state into the Union 
 without deciding that the people had adopted a constitution of 
 government. If they had not in fact adopted it, the admis- 
 sion into the Union with it would be to decide it was valid 
 whether it was fair or fraudulent, by force or free, and this 
 would be — in the act of imposing upon the people a constitu- 
 tion not their own and against their will — a form of interven- 
 tion much more odious, oppressive and offensive than the act 
 merely of looking behind the returns. And it was contended 
 that, on this ground, the only course was for congress to susr 
 pend the question of admission until the question whether the 
 constitution was the act and will of the people, fairly per- 
 
97 
 
 formed and expressed, was decided in some legitimate mode 
 " by themselves." But, 
 
 2d. Grant that congress could not look behind the returns 
 to see whether the allegations of fraud and force at the va- 
 rious precincts of the elections of members of the convention 
 were true or false, j'et it could look at the face of the returns, 
 and was bound to look to them and see whether they were 
 free from fraud or not. Grant that all the elections were 
 obliged to be taken as legitimate in fact, yet that a fraud, 
 grosser than all alleged at the polls or precincts, perpetrated by 
 the Lecompton convention itself, appeared on its very returns them- 
 selves. The constitution was returned with and by a schedule 
 or ordinance, which was itself a fraud of the most monstrous 
 kind upon the freedom of elections. 
 
 It involved no questions whether the power of a convention 
 to proclaim as well as form a constitution, need or need not 
 be prescribed to it — or whether, if not prescribed to it, and it 
 proclaims a constitution without the express prescribed power 
 to proclaim it, the people may not sanction the constitution 
 by acquiescence and submission — or whether, if the power to 
 proclaim is not expressly prescribed to it, the constitution 
 must or must not be submitted to the people for their appro- 
 val. However all these questions may have been settled by 
 precedents, both ways or either way, this proposition of'a 
 constitution was expressly " submitted to all the white male in-r 
 habitants for approval or disapproval, ratification or rejection;" 
 and then it was not submitted in such a way at dll that all the 
 white male inhabitants except one could disapprove of it 
 against that one, but that one might, by approving of all the 
 provisions except that pej-mitting slavery, adopt it against all the 
 rest of all the free white male inhabitants who disapproved 
 and voted against every thing in it except the admission of 
 slavery, as appears fully and boldly on the face of the fol- 
 lowing: 
 
 " Sec. 11. Before this constitution shall be sent to congress, 
 for admission into the Union as a state, it shall be submitted to 
 all the white male inhabitants of this territory for approval or dis- 
 approval, as follows : The president of this convention shall, 
 13 
 
98 
 
 by proclamation, declare that on the 21st day of Deceoifaer 
 1867, at the different election precincts now established by 
 law, or which may be established, as herein provided, in the 
 territory of Kansas, an election shall be held, over which 
 shall preside three judges, or a majority of three, to be ap- 
 pointed as follows : The president of this convention shall 
 appoint three commissioners in each county in the territory, 
 whose duty it shall be to appoint three judges of election in 
 the several precincts of their respective counties, at which elec- 
 tion the constitution framed by this convention shall he submitted to 
 all the white male inhabitants of the territory of Kansas in the said 
 territory upon that day, and over the age of twenty-one years, for 
 ratification or rejection in the following manner and form : The 
 voting shall be by ballot. The judges of election shall cause 
 to be kept two poll books by two clerks, by them appointed. 
 The ballots cast at said election shall be endorsed "constitu- 
 tion with slavery" and " constitution with no slavery." One of 
 said poll books shall be returned within eight days to the pre- 
 sident of this convention, and the other shall be retained by 
 the judges of election and kept open for inspection. The 
 president, with two or more members of this convention, shall 
 examine said poll books, and if it shall appear upon said ex- 
 amination that a majority of the legal votes cast at said elec- 
 tion be in favor of the constitution with slavery, he shall im- 
 mediately have the same transmitted to the congress of the 
 United States, as herein before provided. But if, upon such 
 examination of said poll books, it shall appear that a majority 
 of the legal votes cast at said election be in favor of the 
 " constitution with no slavery," then the article providing for 
 slavery shall be stricken from the constitution by the president 
 of this convention, and no slavery shall exist in the slate of 
 Kansas, except that the right of property in slaves now in this 
 territory shall in no manner be interfered with, and he shall 
 have transmitted the constitution so ratified to the congress of 
 the United States, as herein before provided. In case of the 
 failure of the president of this convention to perform the 
 duties, by reason of death, resignation or otherwise, the same 
 duties shall devolve upon the president pro tern." 
 
 From this it is plain : 
 
 1st. That the constitution was professedly submitted to the 
 people for "approval or disapproval, ratification or rejection." 
 There was a profession of alternative choice ; and yet, when 
 you come to the mode of voting prescribed, you find that the 
 people were allow^ed to vote against one feature alone, and 
 that was slavery. 
 
99 
 
 2d. They were obliged to approve and ratify every thing 
 else, or the negative votes were not to be counted ; there was 
 no power to "disapprove" or to reject any thing else but 
 slavery. And, 
 
 3d. This was not in effect subnnitting slavery alone to disr 
 approval and rejection, for it was made obligatory on every 
 voter to "approved/" and "ratify" every thing else in the 
 constitution, however objectionable. 
 
 Again : By 
 
 " Sec, 14. Every person offering to vote at the aforesaid 
 election upon said constitution shall, if challenged, take an 
 oath to support the constitution of the United States, and to 
 support this constitution, if adopted, under the penalties of 
 perjury under the territorial laws." 
 
 Here was a test oath applied at the polls, upon challenge of 
 the voter, compelling him to swear, before it was adopted, to 
 support a constitution if it was adopted, under pains and 
 penalties of perjury. 
 
 Now, it was contended that both of these provisions were 
 tyrannical, unjust and unequal, and could not and should not 
 be approved by congress, because they were on their face 
 anti-republican. 
 
 Again : There were other terms proposed by this conven- 
 tion which could not be approved, such as that claiming an 
 excessive (quantity of public lands, 25 millions acres, to be re- 
 served for the new slate. 
 
 Here, then, we see that: 
 
 1st. This ordinance showed on its face that the constitution 
 it proposed could not be claimed to be the act and deed of 
 the people; that the very mode prescribed by it of ascertain- 
 ing their will, was contrived to control and smother the' ex- 
 pression of their will. 
 
 2nd. That its terms were inadmissible. 
 
 What, then, was the duty of congress? It was at this 
 point in the controversy that I ventured, on the 30th Decem- 
 ber 1857, to address a letter to the New York Tammany So-" 
 ciety, offering the following solution of the difficulty : 
 
100 
 
 " II is the very gladness and glory of our state governnients, 
 when organized, that they guard and govern the hearlh-stones 
 and homes of the people of the United Slates. The state 
 governments are the municipalities of sovereignty, which em- 
 brace especially the individual persons, the families, the house- 
 holds, the altars and the homes of our people. It is that 
 which makes state rights, state laws, state organization, stale 
 action, so precious, because so domestic, in our confederacy. 
 The federal government embraces rather national and foreign 
 subjects of jurisdiction, and, therefore, it ought to leave all 
 domestic questions to the states and the people. What then? 
 Why, then, if the schedule of submission was anti-republican, 
 if it was partial, if it did not acknowledge and allow the so- 
 vereign right of the people to judge for themselves on the 
 question of highest dignity, the organic law of their govern- 
 ment, and discriminated unequally between the subjects of 
 property, the congress of the, United Slates ought not to r^ect 
 the legitimate and republican constitution, hut ought to adopt it 
 subject to a fair and legal vote of the people of Kansas, according 
 to a law to be prescribed by their territorial legislature, and to ad- 
 mit the state under the constitution whenever the territory shall pro- 
 claim its approval and adoption by the people. If they adopt it, 
 to admit her into the Union ipso facto; and if they reject it, to 
 leave the people of Kansas in their own way to organize another 
 convention, and to submit another constitution to congress for ap- 
 proval." 
 
 This was 
 
 1st. Not to reject nor adopt by congress absolutely. 
 
 2nd. .But to adopt the constitution subject to a fair and le- 
 gal vote of the people, to ascertain whether they " approved 
 or disapproved," " ratified or rejected it," as they had never 
 been allowed to disapprove or reject it. 
 
 3d. That this was to be done by a law of their own terri- 
 torial legislature, and not by the intervention of congres^. 
 And 
 
 4th. That the new state was to be admitted or not into the 
 Union whenever the people themselves should, in their own 
 modes, approve or disapprove, ratify or reject the proposed 
 constitution. 
 
 But, after altering the terms of the ordinance, and after chang- 
 ing the provisions of the constitution itself, the senate of the 
 United Slates attempted to pass a law forcing the constitution, 
 
101 
 
 thus changed, without consulting them or their convention, upon an 
 unwilling people. We have witnessed the resuh. It has 
 proved who was right and who wrong in their judgment upon 
 what was politic as well as just in the case. I am happy that 
 my general view of the matter has been endorsed by some of^, 
 the senators since. Senator Davis, of Mississippi, for exam- 
 ple, in a speech in the legislative hall of Mississippi in No- 
 vember last clearly elucidates the subsequent agreement and 
 difference between his position and mine. I quote from a 
 report published in the Huntsville (Ala.) Democrat, of De- 
 cember 1st, 1858, which I suppose to be correct. In ac- 
 counting for his course on the compromise, or English bill, he 
 says : 
 
 " The ordinance which was attached to the constitution, 
 was not«a part of it, hut a condition annexed to the application 
 for admission. If congress had stricken the ordinance out, the 
 effect, I believe, would have been that of admitting the slate 
 without arty reservation of the public land ; would have 
 transferred as an attribute of sovereignly the useful as well as 
 the eminent domain. The southern senators who received 
 the soubriquet of southern ultras, held that position in 1850, 
 in relation to the public lands of California, and it constituted 
 one of their objections to the admission of that state at the 
 time it was effected. To modify the ordinance, that is, to change 
 the condition on which the inhabitants of Kansas proposed to enter 
 into the Union, was necessarily to give them the right to withdraw 
 their proposition. 
 
 "It remained, then, for congress, if they reduced the 
 amount of land asked for in the ordinance, either lo provide 
 the mode in which the inhabitants should accept or reject the 
 modification, or leave them to do it in such manner as they 
 might adopt. The convention was defunct, the legislature 
 was Black Republican and thought to be entitled to Utile con- 
 fidence, and it seemed to be better that congress should itself pro- 
 vide the mode of ascertaining the public will, than leave that duty 
 to the territorial legislature, such as it was believed and proven 
 to be. It was a mere question of expediency, and I think the 
 best course was pursued. 
 
 " To have admitted the state without modification of the 
 ordinance, would have been to grant five times as much of 
 the public land as had ever been given to a state at the pe- 
 riod of admission. 
 
102 
 
 «« There was nothing to justify such a discrimination, and 
 otherwise the state could not he admitted without referring the ques- 
 tion or violating the principle of stale sovereignty. 
 
 "As a condition precedent, the general government may 
 require the recognition of its right to control the primary dis- 
 posal of the land, but can have no right to impose a condition 
 with the mandate that it shall be subsequently fulfilled, and 
 no power to enforce the mandate if the state admitted should 
 refuse to comply. Not for all the land of the continent of North 
 America, would I agree that the federal government should Jiave 
 power to coerce a state." 
 
 The propositions in this which I note, are : 
 
 1st. " That the ordinance, which was attached to the con- 
 stitution, was not a part of it, but a condition annexed to the 
 application for admission."' 
 
 2d. That " to modify the ordinance, that is, to change the 
 condition on which the inhabitants of Kansas proposed to 
 enter into the Union, was necessarily to give them the right to 
 withdraw their proposition." 
 
 3d. That it was " better that congress should itself provide 
 the mode of ascertaining the public will, than leave that duty to 
 the territorial legislature; and that this was a mere question of 
 expediency." 
 
 4th. That there was nothing to justify a discrimination giv- 
 ing this territory more of the public lands than had been given 
 to other territories ; and " otherwise the state could not he admit- 
 ted without referring tJie question, or violating the principle of state 
 sovereignty." 
 
 5th. That " not for all the land of the continent of North 
 America, should the federal government have power to coerce 
 a state." 
 
 With the first of these propositions 1 agree, that the ordi- 
 nance contained conditions only annexed to the application 
 for admission ; and I agree with the second, also, that to 
 change the conditions of the proposition of admission, by con- 
 gress, was necessarily to give the people of the territory the 
 right to withdraw their proposition. And with the fourth, 
 also, I agree, that after changing the conditions of the appli- 
 cation by congress, the territory could not be adinitted as a 
 
103 
 
 state without referring the question of the change of conditions 
 back to the people, or violating the principle of state sove- 
 reignty. And I agree, in a qualified sense, with Mr. Davis, 
 in the fifth also, that " not for all the land of the continent of 
 North America, would I agree that the federal government 
 should have power to coerce a state." 
 
 But this surely cannot be meant to be understood in an 
 absolute sense: either that a state cannot be coerced, or that 
 in some cases she ought not to be coerced. If so, a case can 
 be put in which, I presume, every patriot ought to be willing 
 to give the price of all the waste lands of the continent, if ne- 
 cessary, to coerce her. For example : Vermont resolves by 
 her legislature that the fugitive slave law, as it is passed by 
 congress and decided to be valid by all the courts, shall not 
 be executed in' her limits. Suppose she throws herself upon 
 her ultimate resort of sovereignty, calls a convention, and by 
 that highest form of declaring her will^ resolves that any Vir- 
 ginian or Mississippian, any slaveholder or his agent, who 
 pursues a fugitive slave, and apprehends him in her borders, 
 under the laws of the United States, shall be deemed guilty 
 of felony, and be punishable therefor, without bail or main- 
 prize, in the penitentiary. Instead of delivering up the fugi- 
 tive to the person claiming and proving service and labor to 
 be due him by the slave, that Vermont swears her governor 
 and judges, and other ofl&cers, by a test oath, not to arrest 
 and deliver up the slave, but to seize and imprison the claim- 
 ant of his services in her borders. Suppose, further, that she 
 orders her magistrates and courts not to obey the process 
 issued by federal authority, and especially not to obey the 
 writ of habeas corpus issued by federal judges, to relieve 
 the master or his agent from unlawful arrest and imprison- 
 ment. The master or agent thus falsely imprisoned, applies 
 to a state judge ; he is sworn by a test oath not to obey the 
 laws of the United States, and refuses the writ of habeas 
 corpus. He applies then to a federal judge, who issues the 
 writ of habeas corpus ; a marshal serves it upon the person 
 holding the prisoner, the keeper of the penitentiary, and he 
 
104 
 
 refuses to obey the mandate of the federal judge to bring the 
 body of the prisoner before him. The marshal of the United 
 Stales returns the refusal, and the federal judge issues pro- 
 cess of contempt against the jailor ; the marshal attempts to 
 execute this, and he is resisted by superior force ; he theii 
 summons a posse comitatus, and he is resisted by the execu- 
 tive of the state, who calls out the militia and overpowers the 
 posse. The marshal returns to the federal judge that he is 
 resisted by the powers of the stale of Vermont, and that the 
 execution of the law of the United States is overcome. The 
 federal judge then reports that fact to the president of the 
 United States. What is his duty? Why, the same it was in 
 the Anthony Burns case at Boston. The president must com- 
 mand a sufficient force of the army or navy or militia of the 
 United States, to overcome the rebellion and treason, and re- 
 lease the person of the master from prison, and deliver his 
 body over to the fedeiial judge, to be dealt with according to 
 law. And that would not be all, the jailor, and judges and 
 governor of Vermont, and all persons guilty with them of re- 
 bellion against the faithful execution of the laws of ihe United 
 States, vi'ould have to be arrested and tried also, according 
 to law. Or, if their resistance was serious enough to require 
 it, to be slain in battle of rebellion against the laws of the 
 Union. And I am sure that if civil war should thus be 
 brought on to battle and carnage, every patriot and lover of 
 ihe laws would march to the order of coercing a stale, to 
 compel her authorities and her people to obey the supreme 
 laws, and to lay down their weapons, and to renounce the 
 state laws and ordinances commanding their rebellion. And 
 among the foremost of these would be the gallant and glorious 
 soldier whose form of receiving an enemy was the very V of 
 valor at Buena>. Vista. 
 
 This, then, cannot be the meaning intended. It must not 
 be understood in the absolute, but in a qualified sense. And 
 if the qualification be what I understand it to be from its con- 
 nection, I agree with the proposition, to wit : 
 
 That " not for all the land of the continent of North Ame- 
 
105 
 
 rica, would I agree that ihe federal government should have 
 power to coerce a state," by changing the conditions of her ap- 
 plication for admission, and then, without referring to her will at 
 all, impose the constitution upon her without first obtaining 
 her assent to the change of the conditions. I agree that it 
 seems just that if A makes a proposition of compact to B, 
 with conditions annexed to it, that B may not arbitrarily 
 change the conditions without the assent of A, and yet fojce 
 upon A the proposition without the conditions as proposed ; 
 for to change the conditions in ijfiost, if not in all cases, is to 
 change the proposition itself. This was exactly my view 
 when I wrote my Tammany letter, and with it I fully agree 
 now ; though this view had not, I knew, been always re- 
 spected by congress. In most cases it had been respected. 
 In the act of June 15th, 1836, congress imposed upon Michi- 
 gan a condition of boundary different from the limits she 
 claimed on admission, and by the SrcT section of the act, the 
 change of .condition, and the admission into the Union depen- 
 dent upon that change, were made to depend upon the assent 
 of a convention in the territory. On, the other hand, and on 
 the very same day, Arkansas was " admitted into the Union 
 upon the express condition," among others, that " nothing in 
 this act shall be construed as an assent by congress to all or 
 to any of the propositions contained in the ordinance of the 
 said convention of the people of Arkansas," &c. Thus, in 
 the latter case, the conditions were not assented to, and yet 
 the state was admitted, without referring back the propositions 
 of the ordinance ; but they were not changed. Again, Sep- 
 tember 9th, 1850, congress admitted California, and imposed 
 certain conditions, some new, and " provided that nothing 
 herein contained shall be construed as recognizing or rejecting 
 the propositions tended by the people of California, as articles 
 of compact in the ordinance adopted by the convention which 
 formed the constitution of that state." Here, again, the con- 
 ditions were not changed, nor accepted nor rejected, nor the 
 question referred back ; but the state was admitted as con- 
 gress prescribed. Another instance previous was the case of 
 14 
 
106 
 
 Iowa, admitted March 3rd, 1845, and her ordinance declared 
 not obligatory on the United States, without changing or refer- 
 ring it back. But in the case of Kansas, according to Mr. 
 Davis' own account of the original bill passed by the senate, 
 and which failed in the house, as stated in the same speech, 
 immediately before the paragraph already cited touching the 
 English compromise, he himself participated, with a majority 
 of the senate, in changing the conditions annexed by the proposed 
 state, and yet voted for the passage of the bill to impose a con- 
 stitution upon her, withouj proposing to refer the question of 
 change back to her people, or to any convention of theirs. 
 He says : 
 
 " When the bill was presented to the senate for the admis- 
 sion of the state of Kansas, after a long discussion, it was 
 adopted with a iirovision which required the state after admission to 
 relinquish its claim to all the land asked for in its ordinance, except 
 5,000,000 acres, that being the largest amount which had ever been 
 granted to a state at the period of its admission. There was also 
 a provision declaratory of the right of the people to change their 
 constitution at any time ; though the instrument itself had restricted 
 them for a term of years. I considered both those provisions 
 objectionable ; the first, because it was directory of legislation 
 to be enacted by a state; and the second, because it was in- 
 viting to a disregard of the fundamental law, and had too 
 much the seeming of a concession to the anti-slavery feeling, 
 which was impatient for a change of the constitution. That 
 bill failed in the house, and was succeeded by a bill of the 
 opposition which recognized the right of Kansas to be ad- 
 mitted with a pro-slavery constitution, provided it should be 
 adopted by a popular vote. This also failed, and in ihe divi- 
 sion between the two houses, a committee of conference was 
 appointed, which framed the bill which became a law." 
 
 In the senate's bill passed by that body, there was a change 
 of the proposition of Kansas, hy — 
 
 1st. Reducing the quantity of lands reserved. 
 
 2nd. Giving the immediate right to change the pro-slavery con- 
 stitution, " though the instrument itself had restricted them for 
 a term of years." 
 
 The constitution itself provided that it should not be changed 
 before 1864; and the 10th section of the ordinance provided 
 
107 
 
 for the change after that period. The senate changed not 
 only both as to the lands, but both the ordinance and the con- 
 stitution itself, as to the time when the constitution might be 
 changed, and consequently when slavery might be abolished ; 
 and yet the senators who voted to enforce that Lecompton 
 constitution thus changed into a nearer approach to free soil, 
 did not refer these changes back for the assent of the people 
 of Kansas, by themselves, or by any convention. The En- 
 glish compromise act, the third effort of that congress to com- 
 pose the strife, changed only the ordinance, Mr. Davis says, 
 as to the lands, and the change of that condition "was weces- 
 sarily to give them the right to withdraw their proposition" 
 for admission into the Union ; and yet immediately previous 
 two changes, one the same and the other much more serious 
 than the same, gave no such right of withdrawal ! Again, 
 under the English compromise act, he says, that after the 
 change of the condition annexed, " the state could not be ad- 
 mitted without referring the question, or violating the principle of 
 state sovereignty.''^ So I thought, and yet the senate had just 
 before changed, not only the condition annexed, but the state 
 constitution itself, and refused to refer it back, and persisted 
 in the attempt to violate state sovereignty by changing her 
 constitution without her consent ! 
 
 Again : — The Kansas-Nebraska act solemnly declared that 
 " the people of the territory should be left perfectly free to 
 form and regulate their domestic institutions in their own 
 way," and that non-intervention by congress should be a 
 canon in forming the constitutions of new slates, at least, and 
 in regulating their admission into the Union ; and yet we are 
 here told it was better that congress should itself provide the mode 
 of ascertaining the public will, than leave that duty to the territo- 
 rial legislature." 
 
 Now, I could not regard this as a " mere question of ex- 
 pediency." The questions were all vital ones of elementary 
 and essential principle. If the single change in the ordinance 
 alone, made by the English bill, was necessarily to withdraw 
 the proposition or refer it back to the people, the more mo- 
 
108 
 
 mentous change, by ihe original bill, made it more necessary 
 to withdraw the proposition altogether, or to refer the change 
 in the constitution back to the will of the people who made 
 it. And if either, or any change in the conditions annexed, 
 or in the instrument itself, was to be referred back to ascer- 
 tain the popular or public will, their own territorial legislature 
 was the proper agent, and not congress, to provide the mode 
 of ascertaining it. If that legislature was so constituted as to 
 provide a mode adverse to slavery, it was because the public 
 will had so constituted it ; and it could not have abolished 
 slavery in the new stale by its mode of ascertaining the public 
 will, any sooner or more certainly than it would have been 
 abolished had the original bill of the senate of the United 
 States been passed into a law, changing t^e constitution of 
 the new slate so as to permit the abolition of slavery imme- 
 diately after the stale was formed, with power to change her 
 constitution before the year 1864. And, if " not for all the 
 land of the continent of North America, should _the federal 
 government have had power to coerce a state," to submit to a 
 mere change of conditions as to lands, not for all the lands of 
 two continents should congress have attempted to adopt and 
 enforce a constitution for an -unwilling people, after changing 
 its provisions, without referring the change to their assent, and 
 without leaving them to their own mode of expressing their 
 own will. If the original bill passed by the senate for the 
 admission of Kansas as a state in the Union, which failed in 
 the house of representatives, and which changed both the con- 
 stitution and the ordinance annexed of the new state, was not 
 an act both of intervention and o( coercion by congress, then I am 
 at a loss to know what non-intervention by congress, and per- 
 fect freedom by the people in the formation of a state consti- 
 tution are. Both the original bill which failed and the act 
 which was passed, intervened against the law of the very ter- 
 ritory whose organization established non-intervention by con- 
 gress with the formation and regulation of state institutions ; 
 and both proposed to " coerce a state" to take a constitution, 
 which the people have since shown by their rejection to be re- 
 
109 
 
 pulsive to the " public will," ascertained in the mode pre- 
 scribed by the congress itself; and both hastened the admis- 
 sion of a new state in a way lo hasten the abolition of slavery 
 as soon as the state was formed and could act to that end. 
 
 But it is not my purpose to discuss the merits of a bill 
 which failed in congress and before the people. I do not 
 mean to assail or defend, the course of any body about it 
 here. My object is simply, now, to_elucidate the truths of 
 history and the construction of the constitution and laws per- 
 taining to territories and the admission of new stales by the 
 congress. My Tammany letter, more elaborated in the letter 
 to Philadelphia, defends itself. I will add only, that its ob- 
 ject was to defend popular ^sovereignly and the new states' 
 rights in their prerogatives to form constitutions and to be ad- 
 mitted into the Union upon equal terms with the other slates, 
 free from dictation or intervention, save as the constitution of 
 the United States provides, from any quarter — to contend for 
 justice and equality, against fraud and force and the exclusion 
 of any of the stales and their citizens from the common and 
 confederate privileges of the Union in common territory, and 
 to preserve the moral prestige of my own stale and section, 
 whilst contending for justice and equality, from the error of 
 snatching a temporary, local and illusory advantage per fas 
 aut nefas, and to save the south from rushing its property in 
 slaves upon the spears of popular sovereignty and political 
 and sectional prejudices, which land titles, much less chattels, 
 cannot encounter, and to base the great question of "«e«?e- 
 mmt" of the new lands of the country on permanent and 
 abiding principles, and not upon the expedients of fitful com- 
 promises, which are always entered into with opposing mean- 
 ing and purposes, and which are never kept in good faith. 
 They are made to be broken, and every time they ard broken 
 they rouse the worst of sectional passions and demoralize and 
 inflame the public mind. The great question of the " settle- 
 ment" of the territories and new states of the Union cannot 
 be '*temj)orized" and ''localized" as the fashionable phrase 
 is, by the patch-work of mere politicians and partisans. It is 
 
no 
 
 unphilosophical to attempt it, and the constitution of the- 
 -United States, and a sound, fixed rule of policy, should be 
 adopted and inflexibly be observed ; for it must be continually 
 recurring until our vast domain is all settled and admitted as 
 states, and the. question cannot be retired from congress. It 
 is the duty. of that body to dispose of and make all needful 
 rules and regulations respecting the territories and other pro- 
 perty of the United States. And, as far as the south and 
 slavery are concerned, I would say to them that .^sop taught 
 his cock in the fable the sense when he went into the stall of 
 the iron-shod steed to propose : " If you won't tread on my 
 toes, I won't upon yours!" It was folly in anyone in the 
 minority to play the game of brute force and of numbers 
 against a majority, where force and numbers, with right on 
 their side, were bound to prevail. A minority, fortified by 
 right and justice and lav?, can now, and I hope will forever, 
 prevail over a majority in the wrong. But if the minority 
 be wrong and the majority be right, the disparity will be 
 immeasurably too great to be overcome by any address or 
 skill in tactics. If we would have justice and equality, we 
 must be faithful and strict in doing both. The divine com- 
 mand, to " do justice to your own hurt," means that no in- 
 jury can ever be done to yourself by doing justice to others — 
 that justice is always most expedient ; and if we, a minority, 
 attempt to avail ourselves of fraud and force, to take all we 
 can get jper fas ant nefas, we must expect to be wronged in 
 turn, whether weak or strong, by force of the first law given 
 to the father of nations: " The spoiler shall be spoiled" — espe- 
 cially when the spoiler is the weaker to take and to hold that 
 which is not his own. 
 
 Modes of Admitting New States. 
 
 To proceed with the argument : Various modes and forms 
 have been pursued in admitting new states into the Union. 
 
 1st. Kentucky and Vermont were the two first new 
 
Ill 
 
 states. The former was first in her organization as a stale, 
 and the act for her adrtiission — February 4th, 1791 — was 
 passed by congress fourteen days before that for the admission 
 of Vermont ; but Kentucky's admission was postponed to 1st 
 June 1792, for reasons which appear in the act of the mother 
 state, Virginia, consenting to her formation into a state, parsed 
 December 18ih, 1789, and Vermont was actually admitted the 
 4lh March 1791. 
 
 Virginia, after ceding the whole of her vast domain in the 
 territory between the Ohio and Mississippi rivers and the lakes 
 to the Union (see map No. 1, Northwest territory), consented 
 that Kentucky also, another part of her domain, should be 
 formed into a slate. By her act of December ISth, 1789, she 
 organized a convention to form a state constitution for Ken- 
 tucky, and imposed various important conditions, which are 
 unnecessary to be recited here. But they show that she inter- 
 vened and prescribed the whole organization of the conven- 
 tion and. its powers, and limitations, and postponed the ad- 
 mission of the state until a day " posterior to the 1st day of 
 November 1791,": and "until the 1st day of May 1792, and 
 no longer," in order to give Virginia time to dispose of certain 
 "iinlocated lands," and for other reasons; apd she imposed 
 1)0 less than eight pretty stringent "conditions precedent" upon 
 which her consent was made dependent. The actual admis- 
 sion was postponed by congress until the 1st day of June 1792, 
 in order to conform to the act of Virginia; but congress im- 
 posed no conditions. By its act of February 4th, 1791, it 
 simply recited the act of Virginia, and the petition of the con- 
 vention of delegates of the " district" of Kentucky for the con- 
 sent of congress ; and congress that day consented that " the 
 said district of Kentucky, within the jurisdiction of the com- 
 monwealth of Virginia," according to its boundaries the 18th 
 December 1789, should, upon the 1st day of June 1792, " be 
 formed into a new state, separate from and independent of 
 the said commonwealth of Virginia, and that upon the day- 
 named the new state, by the name and style of the state of 
 Kentucky, should be received and admitted into this Union 
 as a new and entire member of the United States of America." 
 
112 
 
 2d. Vermont was treated, by the act of February 18th, 
 1791, which admitted her on the 4lh March 1791, as if she 
 was an organized state before her admission. She was so 
 organized, I believe, for the act says : " The slate of Vermont 
 having petitioned the congress to be admitted a member of 
 ihe United Stales," &c., " the state of Vermont shall be re- 
 ceived and admitted into this Union, a^ a new and entire member 
 of the United States of America." And congress imposed no 
 conditions upon her. [See map Kentucky and Vermont.] 
 
 3d. Tennessee was the third new state admitted. I have 
 already recited her territorial history. By the act of June 1st, 
 1796, congress acknowledged the obligation by its accep- 
 tance of the deed from North Carolina, " to lay out into one 
 or more states the territory ceded thereby to the United 
 Slates," and enacted that the ^^ whole of the territory" should 
 be one state, and " one of the United States of America, on 
 an equal footing with the original states, in all respects whatever, 
 by the name and title of the state of Tennessee." A dele- 
 gate in congress was apportioned to her, and the laws of the 
 United States extended over her; but no conditions whatever 
 were imposed upon her. [See map No. 3 — Tennessee.] 
 
 4th. Ohio was the fourth new state. In this case, congress, 
 by act of April 30th, 1802, intervened to authorize the inhabi- 
 tants of the eastern division of the Northwest territory "to 
 form for themselves a constitution and state government, and to 
 assume such name as they shall deem proper; and the said state, 
 when formed, shall be admitted into the Union iipon the same 
 footing with the original states in all respects whatever." 
 
 Boundaries were defined. The territory east was reserved 
 for the disposal of congress. The constitution was required 
 to " be republican, and not repugnant to the ordinance of July 
 13th, 1787, between the original states and the people and 
 states of the territory.;" and certain propositions were "of- 
 fered to the convention of the eastern state, when formed, for 
 their free acceptance or rejection^ which, if accepted by the con- 
 vention, should be obligatory on the United States." 
 
113 
 
 The 1st reserves ihe 16lh section of lands " for the use of 
 schools." 
 
 The 2nd relates to " the six mile reservation, including 
 certain salt springs," &c. ; and 
 
 The 3d, " that one-twentieth part of the net proceeds of 
 the lands lying within the said state, sold by congress, froin 
 and after the 30th day of June next, after deducting all ex- 
 penses incident to the same, shall be applied to the laying out 
 and making public roads, leading from the navigable waters 
 emptying into the Atlantic to the Ohio, to the said slate, and 
 through the same, such roads to be laid out under the authori- 
 ty of congress, with the consent of the several states through 
 which the road shall pass: provided, always, that the three 
 foregoing propositions herein offered, are on the conditions that 
 the convention of the said state shall provide, by an ordinance 
 irrevocable without the consent of the United States, that 
 every and each tract of land sold hy congress, from and after the 
 30lh day of June next, shall be and remain exempt from any 
 tax laid by order or under authofity of the state, whether for 
 state, county, township or any other purpose whatever,yor the 
 term of five years from and after the day of sale." 
 
 This act was complied with, and by act of February 19th, 
 1S03, the laws of the United States were extended over the 
 state of Ohio. 
 
 This was the first instance in which congress attempted to 
 impose conditions. And it was under this 3d proposition, ac- 
 cepted by Ohio, that the foundation was laid of the unconsti- 
 tutional system of internal improvements by the general gov- 
 ernment. It was under this that the celebrated Cumberland 
 road bill had its origin, and it was under this that a sovereign 
 slate was deprived of the power to tax the lands in her limits 
 for five years after they were sold by congress. These con- 
 ditions were directly in contravention of the deeds of cession 
 by Virginia, both in respect to the lands, which were to be , 
 forever a common fund for all the United States for federal 
 purposes, and to the states, which were to be admitted on an 
 15 
 
114 
 
 equal fooling with the original states, having sovereign control 
 over the eminent domain in their limits. 
 
 5lh. Louisiana. — By the act of April 8th, 1812, the laws 
 of the United States were extended over Louisiana ; and that 
 state was admitted into the Union " on an equal footing with 
 the original states, in all respects whatever," but upon all the 
 conditions and terms contained in the 3d section of the act of 
 February 20th, 1811, " an act to enable the people of the ter- 
 ritory of Orleans to form a constitution and state government," 
 &c. &c. This act, like the similar act for Ohio, ^^ authorized 
 the inhahitants of the territory to form for themselves a constitution 
 and state government, and lo assume such name as they may 
 deem proper, under the provisions and upon the conditions herein- 
 after mentioned." Thus, early in our history, in 1802-3 and 
 1811—12, the right of the people of a territory was recognized 
 " to form for themselves a constitution and state government." Not 
 territorial government, but a state government, and not territo- 
 rial laws, even, but " a constitution." The Kansas-Nebraska 
 act, then, introduced no new principle or provision ; but its ex- 
 cessive verbiage, clearly and rationally interpreted, was but a 
 repetition of the simple, plain and massive words of the older 
 and, in this respect, better statutes admitting Ohio and Louisi- 
 ana. The act of February 20lh, 1811, organized a convention 
 and defined its powers and limitations. It absurdly required 
 the convention " to adopt the constitution (?f the United States," 
 in so many words: whereupon it was authorized to form a 
 constitution, provided it was republican, and consistent with 
 the constitution of the United States ; that it should contain 
 the fundamental principles of civil and, religious liberty, trial 
 by jury in all criminal cases, and the writ of habeas corpus; 
 that after the territory became a state, its laws should be pub- 
 lished, its records kept, and its judicial and legislative written 
 proceedings conducted, '* in the language of the laws, &c. of 
 the United States." In other words, congress undertook to 
 make Louisiana drop French, and not write good English, but 
 
115 
 
 the bad tongue " in which the laws and the judicial and legis- 
 lative proceedings of the United States are now published and 
 conducted ;" that there should be an irrevocable ordinance 
 " forever disclaiming all right or title to the waste or unappro- 
 priated lands ; that the sanne should be at the sole and entire 
 disposition of the United States, and that sold by the United 
 States to be exempt from any lax for five years ; that non-re- 
 sident proprietors should not be taxed higher than residents on 
 their lands ; that no taxes should be imposed on lands of the 
 United States ; and the Mississippi river and tributaries should 
 be highways, and forever free from any tax, duty, impost or 
 toll imposed by that state. . 
 
 6th. Indiana. — By the act of April 19th, 1816, " the in- 
 habitants" of this territory were authorized " to form for them- 
 selves a constitution and state government," and conditions 
 were imposed and propositions made by congress similar to 
 those in the case of Ohio; and by a joint resolution, Decem- 
 ber lllh, 1816, the state was admitted into the Union, in con- 
 formity to the ordinance of 1787. The 4th proposition re- 
 served an entire township of land for a seminary of learning, 
 and by the 5th, four sections for the seat of slate government. 
 The public lands were in like manner, as in Ohio and Louisi- 
 ana, exempted from state taxes, after being sold, for five 
 years. 
 
 7th. MissisMPPi. — By act of March 1st, 1817, the same 
 authority was given the inhabitants of this territory " to form 
 for themselves a constitution and stale government," Sec, and con- 
 ditioQS were made, subject to the ordinance of 1787, and 
 similar to those of preceding states ; but by section 5th, five 
 per cent, of the net proceeds of lands was reserved "for 
 making piblic roads and canals," as well out of the state as in it. 
 And, December 10th, 1817, the state was admitted, by joint 
 resolution, " into ihe Union, on an equal footing with the origi- 
 nal states, in all respects whatever." 
 
 8th. Illinois.— By the act of April 1^18, the inhabitants 
 
116 
 
 of the territory of Illinois were in like manner " authorized to 
 form for themselves a constitution and state government"^ and to be 
 admitted into the Union upon the same footing with the origi- 
 nal states. The provisions were, in the general, the same as 
 those of Ohio and Indiana. The boundaries were fixed, ihe 
 convention organized, and the same propositions were made 
 by congress " for their free acceptance or rejection ;" the con- 
 vention met on the 26th August 1818, formed a constitution, 
 and it was approved by congress, and the state was admitted 
 by joint resolution, December 3d, 1818. There was nothing 
 peculiar in her admission worthy of note. 
 • 
 9lh. Alabama. — By the act of March 2d, 1819, the in- 
 habitants of this territory were authorized to form a constitu- 
 tion, &c., and the act was in every essential particular a copy 
 of that for Mississippi. The constitution was formed on the 
 2d of August 1819, and on the 14th December 1819, the state 
 was admitted, by joint resolution of congress, " into the Union, 
 on an equal footing with the original stales, in all respects 
 whatever." 
 
 10th. Maine. — By an act of the state of Massachusetts, 
 the 19th June 1819, the people of that state, known as the 
 " district of Maine," were authorized to " form themselves into 
 a separate and independent state," and to establish a constitu- 
 tion for the government thereof, agreeably to the provisions of 
 the act. They did form a separate state, and congress, by an 
 act of March 3d, 1820, declared the slate of Maine to be ad- 
 mitted into the Union on an equal footing with the original 
 states in all respects whatever. 
 
 11th. Missouri. — By an act of March 6ih, 1820, the in- 
 habitants of this territory were authorized " to form for them- 
 selves a constitution and state governrhent," and mutatis mu- 
 tandis, the provisions of the preceding acts are copied ; but a 
 new condition was made by 
 
 " Sec. 8ih. That all that territory ceded by France to the 
 
117 
 
 United Stales, ander the name of Louisiana, which lies north 
 of 36 deg. 30 min. N. latitude, not included within the limits 
 of the state contemplated by this act, slavery and involuntary 
 servitude, otherwise than in the punishment of crimes, whereof 
 the parties shall have been duly convicted, shall be and is 
 hereby forever prohibited : provided, always, that any person 
 escaping into the same, from whom labor or service is law- 
 fully clainled, in any state or territory of the United States, 
 such fugitive may be lawfully reclaimed and conveyed to the 
 person claiming his or her labor or service as aforesaid." 
 
 A common error exists in regarding this provision as the 
 Missouri compromise. On the contrary, it was made ex- 
 pressly not to apply to the state of Missouri, or to " the slate 
 contemplated by this act." This act was passed in March 
 
 1820, and the compromise on which Missouri was admitted 
 was made at the lime of her admission afterwards, in 1821. 
 Missouri was never required to assent, and never did assent, 
 to this proposition. 
 
 On the 19lh July 1820, the convention of Missouri, by " an 
 ordinance," declared its assent to the terms and conditions 
 proposed by congress in relation to " school lands, salt springs, 
 fund for roads and canals, lands for seat of government, and 
 university lands," &c. &c., and modified the proposition con- 
 cerning tax on lands, &c. ; and thus asserted and made its 
 ordinance irrevocable without the consent of congress ; and 
 adopted a constitution " to form and establish a free and in- 
 dependent republic, by the name of the state of Missouri," the 
 12th June 1820. In the 4th clause of the 26th Section of the 
 3d article of this constitution, in defining the powers, prohibi- 
 tions and duties of the general assemTjly, it provides : 
 
 " It shall be their duty, as soon as may be, to pass such 
 laws as may be necessary, 
 
 " First. To prevent free negroes and mulaltoes from com- 
 ing to and settling in this state, under any pretext whatso- 
 ever." 
 
 Missouri Restriction. 
 
 This constitution was submitted to congress, and March 2d, 
 
 1821, congress passed the joint resolution in these words : 
 
118 
 
 "That Missouri shall be admitted into this Union on an 
 equal footing with the original states, in all respects whatever, 
 upon the fundamental condition, that the 4th clause of the 
 26ih seclion of the 3d article of the constitution submitted on 
 the; part of said state to congress, shall never be construed lo 
 authorize the passage of any law, and that no law shall be 
 passed in conformity thereto, by which any citizen of either of 
 the states in this Union shall be excluded from the ^joyment of 
 any of the •privileges and immunities to which siich citizen is enti- 
 tled under the constitution of the United States: provided, that 
 the legislature of the said state, by a solemn, public act, shall 
 declare the assent of the said state to the said fundamental 
 condition, and shall transmit to the president of the United 
 States on or before the 4th Monday in November next, an au- 
 thentic copy of the said act; upon the receipt whereof,. the 
 president, by proclamation, shall announce the fact ; where- 
 upon, and without further proceeding on the part of congress, 
 the admission of the said state into the Union shall be consi- 
 dered as complete." 
 
 Such was the compromise offered to Missouri. She had 
 already accepted the terms and conditions first proposed, 
 and now, after her acceptance, another condition was made 
 fundamental. 
 
 This last condition, under the joint resolution : 
 
 " Not to exclude citizens of either of the states of this Union 
 from the enjoyment of any of the privileges and immunities to 
 which such citizens are entitled under the constitiition of the United 
 States" — 
 
 Was directly in the teeth of the 8th section of the act of 
 congress of March 6th, 1820, already cited, which excluded 
 citizens of many of the states of this Union from the enjoyment of 
 the privilege and immunity to which such citizens are entitled under 
 the constitution of the United States, to settle on common territory 
 of the United States, north of 36 deg. 30 min. north latitude, with 
 their property in slaves recognized by the sovereign states them- 
 
 1st. Missouri saw that the resolution of March ■2d, 1821, 
 tendering to her this last condition, necessarily was in conflict 
 with, and would repeal, in principle, at least, the 8th section 
 of the act of March 6tb, 1820. 
 
119 
 
 2d. She was required only to pass no law in conformity to 
 ihis clause of her constitution, excluding the "citizens of either 
 of the states of this Union," and she rightly judged that her 
 constitution would operate without a law, and that "free ne- 
 groes and mulattoes" were not citizens in the sense of the consti- 
 tution of the United States ; and a law might be .passed* to 
 exclude them without violating the condition. 
 
 Accordingly, on the 26th June 1821, she passed an act de- 
 claring her assent to this condition, in its very words : that 
 the 4th clause named should never " be construed to authorize 
 the passage of any law, &c. by which any citizen of either of 
 the United States shall be excluded," &c. This was com- 
 municated to the president of the United Stales, Mr. Monroe, 
 and on the 10th August 1821 he proclaimed that Missouri as- 
 sented to the fundamental condition, &c. ; whereupon the 
 admission of the stale into the Union was declared to be 
 complete. 
 
 Thus Missouri was proclaimed into the Union by the presi- 
 dent, under a joint resolution of congress, which, I repeat, 
 established the very principle for which the slaveholding 
 states are now contending. 
 
 The constitution of the United States does expressly pro- 
 vide, article 4th, section 2d, clause 1st — '■" The citizens of 
 each state shall be entitled to all privileges and immunities of 
 citizens in the several slates." 
 
 1st. The citeeras o/'eacA stoie are the persons entitled. And, 
 
 2d. The privileges and immunities to which they are en- 
 titled, are those of citizens in the several states. 
 
 Citizenship. 
 
 Prior to the constitution the states respectively passed a great 
 variety of laws respecting CITIZENSHIP. The native born 
 citizens, and those who had acquired citizenship previous to 
 the constitution, were then citizens of the several states. But 
 in respect to all who were not citizens of either of the states, 
 or of the United States, when the constitution was formed, 
 
120 
 
 and thereafter, that instrument provided that the congress 
 '•shall have power to -establish an uniform rule of naturaliza- 
 tion." Congress, and congress alone, could, by a " uniform 
 rule," establish who were to be citizens, and to be entitled to 
 the privileges and immunities secured under the constitution of 
 the' United States, No foreigner, for example, could be natu- 
 ralized or made as if native born, without being so made by 
 the " uniform rule" of congress. The states might each pass 
 its own laws to admit a foreigner to all its own franchises, 
 and privileges and immunities in its own limits, but it could 
 not thereby entitle a foreigner " to all privileges and immu- 
 nities of citizens of the several states," under the constitution 
 of the United Slates. To entitle him to those privileges, he 
 would have to comply with " the uniform rule" of congress. 
 In other words, to entitle him to the privileges and immunities 
 of the several states, he would have to be a citizen of the 
 United Stales under the laws of congress. For example, ihe 
 laws of congress require notice for several years of lime, at 
 one time five, and now two years' notice is required of an in- 
 tention to become a citizen ; and this notice is required to be 
 given in a particular way, before certain tribunals, according to 
 prescribed forms ; and at the end of the limitation of time he 
 must take an oath of allegiance to the United States, renounc- 
 ing allegiance to every prince, or potentate, or power of 
 which he had before been a subject. Now, suppose that any 
 state of the Union shall see fit to declare that the foreigner, 
 without this notice, without observing these forms before these 
 tribunals, and without taking the oalh of allegiance and of re- 
 nunciation, shall, upon arrivalin her limits and residing there 
 six months, be deemed one of her citizens ; that he shall vote, 
 hold lands, transmit inheritance, &c. — yet, would that entitle 
 him to the privileges and immunities of citizens of the several 
 stales, under the constilulion of the United States? Cer- 
 tainly not. If known to be a foreigner, and he came to Vir- 
 ginia from another slate, so treating hini as her citizen, and 
 purchased lands, they could be escheated according to the 
 laws of this commonwealth. He would have to be a citizen 
 
121 
 
 of the United States, in order to be a citizen of any one state. 
 And the converse of the rule is also true : a man may be a 
 citizen of the United States, entitled under this clause "to all 
 privileges and immunities of citizens of the several slates," 
 and not be a citizen of any state, territory, district or other 
 place in the United States. As for example, a foreigner ar- 
 rives in New York, and there gives notice in a United States 
 court of his intention to become a citizen ; and thence imme- 
 diately departs on a travel through the country to find a resi- 
 dence, but fixes upon none until the time is out for him to 
 take the oath of allegiance, and he returns to New York and 
 takes that oath, and becomes a citizen of the United States, 
 but he has gained a residence no where, and is not a citizen 
 of any particular state. So, where a citizen of Virginia shall 
 under her laws choose to go into court and renounce alle- 
 giance to her as a citizen, in order to migrate west, or else- 
 where in the United States, he is still a citizen of the United 
 States, but no longer a citizen of any particular state, until 
 he finds a residence, and still is entitled " to all privileges and 
 immunities of citizens in the several states," though they are 
 in terms secured only to citizens of each state. And this, be- 
 yond any thing else, proves what some extreme slate rights 
 professors deny_, that the United States, in their confederate 
 relation, have a sovereignty of their own» It is that sacred 
 sovereignty which floats a flag which is the emblem of na- 
 tionality, of sovereignty, of allegiance and of protection. 
 And this proves that this provision has no special state sense, 
 but a United States sense of " privileges and immunities of 
 citizens in the several states." They belong not only to the 
 " citizens of each state," and are not such as "each state" 
 only may define, but they belong to citizens of the United 
 States, and are such as can be conferred only by the " uniform 
 rule" of congress. And so with negroes or mulaltoes, bond 
 or free. They never were and never can be citizens of the 
 United Slates, entitled " to all privileges and immunities of 
 citizens in the several states." Foreigners of the white race, 
 without naturalization, cannot enjoy those privileges, because 
 16 
 
122 
 
 of their 'place of nativity ; but negroes and mulattoes are far- 
 ther removed, .and cannot be allowed to enjoy thena, because 
 of their race of nativity. The white foreigner may be natu- 
 ralized and become a citizen of the United States, or of any 
 state, in the sense of the constitution of the United States ; 
 but. a negro or mulatto cannot, by birth or naturalization, be 
 made a citizen of the United States, and " entitled to all pri- 
 vileges and immunities of citizens in the several states," 
 because he is incapacitated, by his very blood, to become a 
 citizen of the United States. Such is my understanding of 
 the decisions made by the supreme court of the United States. 
 
 And, if the constitution of Missouri had contained any pro- 
 vision infringing this clause of the constitution of the United 
 States, it was the duty of congress to reject her admission, or 
 to admit her upon condition, if necessary, that the constitution 
 of the United States should be observed by her laws. The 
 condition not to pass any laws "by which any citizen, of either 
 of the states of this Union, shall be excluded from the enjoy- 
 ment of any of the privileges and immunities to which such 
 citizen is entitled under the constitution of the United States,'^ 
 was a provision merely not to exclude any one entitled to 
 them from federal immunities and privileges, and was but to 
 require the state constitution to conform to the constitution of 
 the United Stales, as well as to be republican — to be consti- 
 tutional itself was as essential as to be republican. But the 
 exclusion of free negroes and mulattoes was not the exclusion 
 of citizens, under the constitution of the United States, and 
 therefore Missouri acted wisely and well in assenting to this 
 condition. It fixed a rule which has never been repealed, and 
 now stands, committing congress, by a law passed by the 
 non-slaveholding states themselves, that " any citizen of either 
 of the states in this Union shall not be excluded from the enjoy- 
 ment of any of the privileges and immunities to which such 
 citizen is entitled under the constitution of the United States." 
 
 And this illustrates the inconsistency and incongruity into 
 which fanaticism will run in legislation. The very men, or 
 the very same sectional feeling, which had passed the 8lh sec- 
 
123 
 
 tion of ihe act of the 6th March 1820, to exclude white clti- 
 sens of the slave states" from the Louisiana territory, north of 
 36 deg. 30 min., with their property in slaves, made this right 
 rule of equality ; but they intended it to apply, doubtless, to 
 admit free negroes and mulattoes into Missouri. But, fortu- 
 nately, the 8th section of the act of 1820 is repealed, and the 
 rule of equality, under the resolution of 1821, stands and 
 must stand unrepealed, because it is a part of the constitution 
 of the United Statps ; but it applies only to " citizens of either 
 of the states in this Union," under the constitution of the 
 United States. 
 
 Congress repealed the 8th section of the act of 1820, and 
 the supreme court, in the case of Dred Scott, decided : 
 
 1st. That the 8th section of the act of 6lh March 1820, 
 was unconstitutional, and — 
 
 2d. That a free negro or mulatto is not a citizen under the 
 constitution of the United States, and consequently the resolu- 
 tion of March 2d, 1821, don't apply to them. 
 
 By looking at the map annexed it will be seen how much of 
 the Louisiana territory the citizens of the slave states, with 
 their slaves, would have been 6xcluded from by the 8lh sec- 
 tion of the act of 1820; whereas they were admitted into all 
 by the principle of the resolution of March 2d, 1821. 
 
 The fanatics complain that the Missouri compromise is re- 
 pealed. It is not. The section of the law of 1820 prohibit- 
 ing and restricting and excluding citizens north of 36 deg. 30 
 min. is repealed, and declared by congress, and decided by 
 the supreme court, to be null and void, but the justice rule 
 established by the resolution of 1821 not to exclude any citi- 
 zen of either of the states under the constitution of the United 
 States stands unrepealed, and is no less binding than the con- 
 stitution of the United States itself. 
 
 So much for the Missouri compromise, and the Missouri line, 
 and the condition of the Missouri admission. The common 
 mind cannot be made too familiar with it. 
 
 12ih. Arkansas. — Up to the admission of this state, there 
 
124 
 
 had always been what is called " an enabling act" passed pre- 
 paratory to the admission : to fix boundaries, organize a con- 
 vention to form a constitution and state government, to be 
 submitted to congress, with or without conditions. The en- 
 abling acts were passed by the mother states, as in the cases 
 of Kentucky, Vermont, and Maine, where the districts, as 
 they were called, belonged to any one of the original thirteen 
 slates, and came into the Union without ever having been ter- 
 ritories of the United States ; but where they had remained 
 territories for a lime after being ceded, or were originally ac- 
 quired by the United States, and had not been territories, an 
 enabling act had always been passed by congress, as I have 
 shown. But, in this instance, the people of the territory of 
 Arkansas, on the 30th January 1836, assembled a convention 
 of delegates, and formed for themselves a constitution and 
 state government. This the congress, by act of June 15th, 
 1836, approved, and admitted the state of Arkansas into the 
 Union on an equal footing, &c. 
 
 And this act was the first to recite that the territory had the 
 number of population required to send a representative to 
 congress, then 47,700 persons*, computed according to the rule 
 prescribed by the constitution, of the United States. 
 
 The act of admission fixed boundaries also, and represen- 
 tation, and extended the general laws over the state. And 
 another peculiarity was, that it waived all " assent by con- 
 gress to all or to any of the propositions contained in the ordi- 
 nance of the convention of the people of Arkansas." And 
 afterwards, by act of June 23d, 1836, congress tendered the 
 usual five propositions to the state, as to school lands, salt 
 springs, &c., which had, before, always preceded admission 
 by being put in the "enabling acts." These were offered in 
 lieu of those of the ordinance of Arkansas, which were re- 
 jected. 
 
 13th. Michigan. — In this instance, there was a question of 
 boundaries with the state of Ohio. It became a serious trou- 
 ble, and congress, after having fixed the boundary in 1812, 
 
125 
 
 and after causing astronomical observations to be made for 
 boundaries in 1832, passed the act of June 15th, 1836, which 
 fixed the northern boundary of the state of Ohio; and the 
 people of Michigan having, in the mean time, without an 
 enabling act, formed for themselves a constitution and state 
 government, the congress, by this act, ^^ accepted, ratified and 
 confirmed" it, and declared the state admitted into the Union 
 on an equal footing, &c., provided that the state would con- 
 sent to the boundaries prescribed by the act. And here was 
 an instance where the congress referred the question of ad- 
 mission, dependent upon the acceptance of boundary, back 
 to a convention of Michigan, to receive its assent : " that, as a 
 compliance with the fundamental condition of admission, con- 
 tained in the last preceding section of this act (the second), 
 the boundaries of the said state of Michigan, as in that sec- 
 lion described, &c., shall receive the assent of a convention of 
 delegates, elected by the people of the said slate, for the sole 
 purpose of giving the assent herein required," &c. 
 
 Now, how can those who, with me, pursued this perfectly 
 legitimate and proper course in 1836, complain that I recom- 
 mended a reference back to the people of Kansas, to ascer- 
 tain a much more important assent than that to boundary — 
 assent to the constitution itself, which the people had not been 
 allowed to form for themselves? 
 
 Again : Congress, on the 23d June 1836, passed the sup- 
 plementary act tendering to Michigan, in lieu of her ordinance, 
 the five propositions which had been usual, as to " school 
 lands, salt springs," &c. • 
 
 On the 15th DecemBer 1836, a convention of the people of 
 Michigan, called for the sole purpose of giving assent to 
 boundaries, gave their assent; and on 26th January 1837, 
 congress passed an act admitting her into the Union, "on an 
 equal footing with the original states, in all respects what- 
 ever." 
 
 . 14lh and 15th. Florida and Iowa. — The admission of 
 these two states into the Union, was provided for the same 
 
126 
 
 daj', and in the same act— ^the one absolutely, and the other 
 qualifiedly ; and there was no " enabling act" for either. 
 
 On the 3d of March 1845, congress passed an act .for the 
 admission of both. It recited that Iowa, on the 7ih October 
 1844, and Florida, on the 11th January 1839, had formed for 
 themselves, respectively, a constitution and state government, 
 both deemed republican, and both were admitted as usual, 
 and boundaries of each fixed. But by section 4ih, it " was" 
 made and declared to be a fundamental condition of the ad- 
 mission of said state of Iowa "inio the Union, that so much of 
 this act as relates to the said state of Iowa, shall he assented to by 
 a majority of the qualified electors, at their toimship elections, in 
 the manner and at the time prescribed in the sixth section of the 
 13th article of the constitution, adopted at Iowa city the 1st of De- 
 cember 1844, or by the legislature of said state. And as soon as 
 such assent shall be given, the president of the United Stales 
 shall proclaim the same," &c. 
 
 Here is another stronger precedent for the course I recom- 
 mended, in the case of Kansas. The journals will show who 
 sustained this precedent: 
 
 The usual conditions as to rivers and lands were imposed ; 
 and another peculiarity and precedent was the proviso : 
 " That the ordinance of ilie convention that formed the constitu- 
 tion of Iowa, and which is appended to the said constitution, 
 shall not be deemed or taJcen to have any effect or validity, or to be 
 recognized as in any manner obligatory upon the government of the 
 United States." 
 
 Here is another precedent for the mode of proceeding as 
 to the ordinance appended to the constitution of Kansas. 
 The congress, not having been able to recognize the validity 
 of the ordinance of the Iowa constitution, the question was 
 referred back to the qualified electors, to be assented to by 
 them, in the manner prescribed by their constitution, or by 
 their own legislature. This was the very course I recom- 
 mended in the case of Kansas. By act of August 4lh, 1846, 
 the boundaries of Iowa were referred to the supreme court ; 
 and by joint resolution of December 28lh, 1846, Iowa was 
 
127 
 
 finally admitted after her convention had acted and assented 
 to the acts of congress of 1845, and of 1846. 
 
 16ih. Texas. — I have already commented upon the ad- 
 mission of this state, but not fully. I will add merely — 
 
 1st. That by the joint resolution of March 1st, 1845, con- 
 gress consented that the territory properly included within, and 
 rightfully belonging to the republic of Texas, may be erected 
 into a new state, to be called the state of Texas. 
 
 2nd. With a republican form of government, to be adopted 
 by the people of said republic, by delegates in convention assembled. 
 
 3d. With the consent of the existing government. 
 
 4th. In order that the same may be admitted as one of the 
 .states of this Union. 
 
 6th. That the foregoing consent was given upon three 
 named conditions : 
 
 1. As to adjustment of boundaries, by the United Staler, 
 with other governments, &c. 
 
 2. As to public edifices, and other property and debts, 
 taxes, &c., and the lands of the republic. And 
 
 3. The admission of new states, &c. 
 All of which conditions I have noted. 
 
 Section 3d. — Provided, negotiation by treaty, as an alterna- 
 tive, if the president of the United States should deem it most 
 advisable, instead of submitting the joint resolution to the 
 republic of Texas, as an overture for admission. 
 
 The president proceeded under the joint resolution, and 
 did not negotiate. A new stale was erected, called the state 
 of Texas, by the act of congress, and by the consent of the 
 republic of Texas. 
 
 Now, if no territory had afterwards been acquired from 
 AJexico, where would the United States have claimed the 
 boundaries of Texas to be ? They would, undoubtedly, have 
 claimed west to the Rio Bravo del Norte, and north to the 
 boundary of the United States. 
 
 With what other government had boundaries to be fixed? 
 With Mexico alone, and Mexico clajmed, as against Texas, 
 
128 
 
 all Texas. Why, then, did congress afterwards, as cited, cut 
 off any of Texas, or, if any, why not all, if the claim of 
 Mexico was to guide the quantum of territory of which that 
 state could be deprived ? The truth is, that it was an arbi- 
 trary act to deprive her of any ; and congress would not dare 
 to deprive her of all ; but the more territory Texas was 
 allowed to hold, the more would be subjected to slave state 
 laws, and, therefore, the territory was cut off from her juris- 
 diction, amounting to 44,000 square miles, in her northern 
 lirtiit, and carried to New Mexico as a part of territory ac- 
 (Juired by conquest from Old Mexico, under the idea that the 
 derivative law of Old Mexico was "free. soil," and that of 
 Texas was " slave slate." I have shown, already, that this 
 idea is untenable. That it matters not whether territory comes 
 in Under legislation or negotiation, or under one derivative 
 law or another, when once it is brought into the Union, it is 
 under the constitution of the United States, and is common to 
 equal privileges and immunities of, all the states and their 
 citizens. For the sake of the millions offered to her, Texas 
 assented and here was the example of a- part of a republic, 
 and then of a state, erected and admitted into the Union, be- 
 coming, afterwards, part of a territory. 
 
 On the 29lh December 1845, by joint resolution, Texas 
 was admitted into the Union on an equal fooling with the ori- 
 ginal states. This recites the assent and acts of both powers, 
 and completed the admission. Yet, afterwards, September 
 ■9th, 1860, by an act of that date, the propositions were sub- 
 mitted to her respecting boundaries. This act I have already 
 examined and discussed. One benefit, at least, was obtained 
 by it, as to New Mexico : 1st. To annul the latter clause of 
 the 3d condition of the joint resolution of March 1st, 1845, as 
 to the territory north of 36 deg. 30 min. north latitude ; and, 
 2d, to establish the rule, " that when admitted as a state, the 
 sa!id territory, or any portion of the same, shall be received 
 into the Union imth or without slavery, as their constitution may 
 prescribe at the time of their admission." [See map New Mexico 
 and territory cut off from Texas.] 
 
129 
 
 17th. Wisconsin. — On the 6th of August 1846, congress 
 returned to the usage of passing formally an enabling act, to 
 authorize the people of the territory of Wisconsin to form a 
 constitution and state government, in order to be admitted into 
 the Union. It fixed boundaries, to which it required the as- 
 sent of Michigan ; regulated the jurisdiction over certain rivers, 
 extended over the territory the lavvs of the United States» 
 fixed the number of representatives in congress, and made the 
 usual propositions for school lands and for a seminary of learn- 
 ing, and for public buildings and salt springs, and for the 5 
 per cent, fund, with the usual condition against interfering 
 with the primary disposal of the public lands, or the regula- 
 tions of congress in respect to them, and against taxing the 
 public lands of the United States. 
 
 A convention was held by the people of Wisconsin on the 
 16th December 1846, «' to form for themselves a constitution 
 and state government," which was done, and they asked for 
 admission. 
 
 By the act of March 3d, 1847, congress declared the state 
 of Wisconsin to be admitted on an equal footing, &c., as- 
 sented to a change of boundary and to certain resolutions of 
 the state convention relative to grants of land and the 5 per 
 cent, fund, subject to certain provisos, and then enacted-— in 
 
 " Sec. 4th. That it is made and declared to be a fundamental 
 condition of the admission of said state of Wisconsin into the Union, 
 that the constitution adopted at Madison on the 16th December 
 1S46, shall be assented to by the qualified electors, in the manner and 
 at the times prescribed in the 9th section of the 20th article of 
 said constitution. And as soon as such assent shall be given, 
 the president of the United States shall announce the same, 
 &c., and the admission shall be complete." 
 
 Here we see : 
 
 1st. That congress approved both of the constitution as 
 republican and of the ordinance appended to it as reasonable ; 
 
 but yet, 
 
 2d. Referred the constitution back for the approval of the 
 
 qualified electors; and 
 
 3d. It was at no loss as to the mode, but, as in preceding 
 17 
 
130 
 
 cases, adopted the mode proposed by iheir own constitution 
 itself — which might have been done in Kansas, but for the 
 reason that the mode prescribed by the ordinance in that case 
 was intolerable to freemen. 
 
 The people of Wisconsin did, on the 1st February 1848, 
 by a convention called and assembled for that purpose, form 
 for themselves a constitution and state government, and again 
 asked for admission. And by act of May 29th, 1848, con- 
 gress admitted her on an equal footing, whh boundaries as 
 previously prescribed, and assented to certain resolutions of 
 her convention, with special provisos. 
 
 Usurpation. 
 
 18th, California. — All of that territory was acquired by 
 the treaty of Guadaloupe Hidalgo, February 2d, 1848. The 
 revenue laws of the United States were extended over the 
 territory, and a collection district was established therein 
 March 3d, 1849. 
 
 By resolution of March 2d, 1849, the secretary of war was 
 authorized to furnish arms and ammunition to persons emi- 
 grating to the territories of Oregon, California and New 
 Mexico. 
 
 The treaty, and this act and this resolution, were all the 
 laws, besides the constitution of the United States, which go- 
 verned this territory, when a constitution was suhmitted to con- 
 gress by the president of the United States, in a message dated 
 February 13th, 1850, asking for the admission of California 
 as a state into the Union upon an equal footing in all respects 
 with the original states. 
 
 I confess that I cannot approach the admission of this ter- 
 ritory without great pain and impatience. It was the greatest 
 violation of the constitution of the United States which ever 
 had been perpetrated, and, considering all the circumstances, 
 it was as great a violation as ever can be perpetrated. It in 
 fact involved every conceivable principle of violation of the 
 constitution and of civil liberty, and yet was tamely submitted 
 
131 
 
 to. This is strong language, but analysis of the history will 
 sustain the indictment for the highest grade of offence against 
 freedom and all its receivefl forms. I will endeavor to state 
 the case fairly and impartially. 
 
 Congress had failed utterly to organize the territorial go- 
 vernment or to pass laws, save those I have described ; and 
 war, and the necessity of the case, had compelled the execu- 
 tive of the United States to station large military and naval 
 forces in and about the Pacific territory, and the laws of the 
 conquered cour^try south of the line of 42 deg. north latitude 
 were very inadequate to protect persons and property, but 
 there was much of the law of Mexico surviving the conquest 
 which was applicable, and there were the army and navy in 
 ample force to execute them and to meet the necessities of 
 flagrant cases of violence. This state of affairs in the terri- 
 tory was much magnified and exaggerated by the press ; and 
 at last the " National Intelligencer," then the executive organ, 
 gave out to the world the foreshadowing of coming events : 
 that congress having failed to provide government for the ter- 
 ritory, a government would be proclaimed by some other 
 authority from necessity. Soon thereafter the proclamation 
 appeared. It proceeded from a brigadier general of the 
 United States army, then in the camp of actual military 
 command. 
 
 The war ended, in a time of peace, but in full war pano- 
 ply, a military commander, from his camp, proclaimed a terri- 
 torial government — a legislature, a judiciary, and himself the chief 
 executive ! 
 
 That was not all. He proclaimed the entire government 
 of the territory "to be under the laws of Mexico," those de- 
 funct as well as those surviving. Overleaping all the inappli- 
 cable and incongruous features of the derivative law of a 
 state whose institutions were wholly inconsistent with the con- 
 stitution of the United States and the habits of our people and 
 the genius of our municipal and organic laws, he proclaimed 
 Mexican territorial organization. But whence he derived his 
 
132 
 
 «s 
 
 own chief executive authority, except from gross and palpa- 
 ble usurpation, cannot be shown. 
 
 If he had been called before a court martial, or prosecuted 
 for treason, he would, I have no doubt, have pleaded an order 
 from the executive of the United States. The then secretary 
 of state could have told how the military arm became ex- 
 tended over civil institutions, and, in fact, instituted them. 
 And if the secretary of state, or the president of the United 
 States, had been impeached, and it had been established that 
 they had ordered this violation through the war department, 
 they would have pleaded the necessity of wielding fence in the 
 absence of laws necessary to protect the people. And to have jus- 
 tified this usurpation upon the ground of necessity, owin^ to 
 the failure of congress to pass laws to preserve order, keep 
 the peace and protect the people, would have been the utmost 
 verge of leniency to which judgment could have gone on the 
 trial. The saliis populi will go far, very far, I admit, to jus- 
 tify bona fide assumptions of authority of great extent in ex- 
 treme exigencies; but the establishment of territorial govern- 
 ment, whether authorized or justified or not, satisfied the plea 
 of salvs populi in this case as well as was satisfied by it. 
 
 What, then, could justify the military usurpation in going 
 farther ? As if the territorial authority was usurped for the 
 very purpose, and no other, the military self-constituted gover- 
 nor, Brigadier General Riley, under executive orders from 
 Washington, without an act of congress, proclaimed a call for 
 a convention to form a constitution and state government for Cali- 
 fornia — for the whole of the territory. 
 
 He prescribed times, places and mode of holding elections, 
 the elective franchise and qualifications of voters and of mem- 
 bers of the convention, the organization of the convention and 
 the apportionment of representatives or delegates in it. In a 
 word, he usurped all the prescription, prerogative and autho- 
 rity of organic laws to constitute the highest order of power 
 which can be exercised by popular sovereignty itself, orga- 
 nized in state and municipal form — the representatives being 
 
133 
 
 called " a convention to form a constitution !" A constitution 
 of what? Of a state — a state to be attributed with sove- 
 reignty. This is the highest order of being, I repeat, which 
 man can create. This being was called into existence by this 
 second military proclamation, which went beyond all bound 
 of the first, in having no plea of necessity or of salus populi 
 to justify it. 
 
 The order from the military camp was obeyed. Inhabi- 
 tants and non-inhabitants, Californians and Chilians, citizens 
 of the old states and of the new, residents and new comers — 
 all descriptions of persons, in a word, who happened to be. 
 adventurously and adventitiously there were allowed not only 
 to vote but to be members of the convention. Thomas Butler 
 King, then a member elected and claiming his seat in con- 
 gress from Georgia, who happened to be there, was allowed 
 to vote at the polls and to be a member of this convention un- 
 der this proclamation. 
 
 I say " happened to be there." He was, I doubt not, the 
 messenger of the executive at Washington, to plan and exe- 
 cute the whole proceeding. The constitution was thus formed 
 and sent to the president of the United States, asking for ad- 
 mission into the Union. 
 
 By an act passed September 9th, 1850, congress declared 
 the state of California admitted into the Union, " on an equal 
 footing with the original states in all respects whatever." 
 
 The act recited : " Whereas, the people of California have 
 'presented a constitution, and asked admission into the Union, 
 which constitution was submitted to congress by the president 
 of the United States, by message dated the 13th February 
 1850, and which, on due examination, is found to be republieem 
 in its form of government," &c. 
 
 Now this preamble is very singular. In its first three or four 
 words it implies a gross exiox—that California had a " people." 
 That word "people" has a definite meaning in our American 
 systems of government. People may mean a mass of unor- 
 ganized human beings, collected together by design or acci- 
 dent ; or it means something very different — a mass of human 
 
134 
 
 beings, organized, by laws in municipalities and communities 
 of government. All the persons who happen to be in the 
 city of New York at any one time, for example, are, in the 
 one sense, people ; but they are not, in the other sense, people 
 of New York. Again, New York state and New York city 
 each have a " people" of their own, because they are an 
 organized state and community. Any ten thousand non-residents, 
 then, happening there, are no part of their people. To call 
 them people of New York, and allow' them to vote and repre- 
 sent the voters of New York, would be intolerable to those 
 who are " the people" of New York. Now, in California, the 
 "inhabitants" alone were "the people" of California, in any 
 legitimate sense — they were the people derived from Mexico, 
 and acquired, with the territory, to the United States. It was 
 not pretended that they formed this constitution. On the con- 
 trary, they were unorganized, and wholly ignorant of the forms 
 proclaimed by Gen. Riley, and very few of them participated 
 in them, or were capable of doing so. Therefore, the pre- 
 amble didn't pretend to affirm that the people of California 
 had, themselves, formed a constitution and stcite government; but it 
 affirms only, that " the people of California" had "presented 
 a constitution," and it does not say a constitution of what. 
 The truth is, that, in any lawful sense of organization, Cali- 
 fornia had no people, and legitimately organized no state go- 
 vernment whatever, and therefore the preamble did not pre- 
 tend so expressly to assert. It had the merest mass of con- 
 quered Mexicans, of adventurers from the states, and of 
 political and pecuniary speculators, collected together by the 
 most accidental and adventitious circumstances, and they 
 were under military orders, and obeyed military orders which 
 usurped and abused all civil authority, and put it in subordi- 
 nation to the military. And this was all recognized by con- 
 gress, and thus the slave stales, and their citizens with their 
 slaves, were excluded from this territory ; and they submitted 
 to this extreme, gross and palpable usurpation. In times to 
 come, this precedent, I hope and pray, will not tell upon the 
 liberties of the whole country. It excluded African slavery 
 
135 
 
 from ihe gold mines, and I hope it may never be used here- 
 after to enslave white men in them. If the usurpation may 
 be used for one violation of rights, it may be for any other, 
 for it prostrated all the powers of legitimate government, set 
 at naught all precedents and forms of civil proceedings, waited 
 not for organic laws and the action of congress, respected not 
 the only known American people, subordinated the civil to the 
 military authority, and by worse than squatter sovereignty 
 rushed ruthlessly over all the guards and limitations of the 
 constitution. But it proved the madness of fanaticism out- 
 done by the mammon of unrighteousness. The adventurers 
 would not allow slaves to be brought to the El Dorado to 
 compete with them in "digging for the vile dust," and that 
 saved Virginia, Maryland, North Carolina, South Carolina, 
 Tennessee, Kentucky, and Missouri and Arkansas, all the 
 slave stales except the extreme cotton and sugar planting 
 states from being depopulated of their laborers. If fanaticism 
 had not been blind it would have urged on, slavery, by the 
 " sacra fames auri," to the mines of California, and concen- 
 trated its strength there, and turned some ten or twenty sena- 
 tors of the United Slates into two ! Violence and usurpation 
 saved the south from this probable revolution, which would 
 have devastated our borders by a passion and a curse fiercer 
 than war and blinder than abolition. 
 
 Congress admitted California thus formed, a free state, 
 upon the usual conditions, but excluding either the precognition, or 
 rejection of her ordinance, appended to her constitution. 
 
 19th. Minnesota. — It is pleasant to turn from the usurpa- 
 tion in the case of California, to the usual and normal course 
 pursued in the instance of Minnesota. She has come into the 
 Union " decently and in order." 
 
 By an act of February 26th, 1857, the inhabitants of a part 
 of the territory of Minnesota, described by metes and bounds, 
 were " authorized to form for themselves a constitution and 
 state government, and to come into the Union on an equal 
 footing with the original states, according to the federal con- 
 
136 
 
 A convention was organized for them ; a census 
 was taken to ascertain the number of representatives she would be 
 entitled to in congress ; and the five usual propositions were 
 submitted to her as to " school lands, lands for a university, 
 lands for public buildings, salt springs, and the five per cent- 
 age on land sales ; on condition not to interfere with the 
 primary disposal of the soil within the same, by the United 
 States, or with regulations by congress for securing the title 
 in said soil to bona fide purchasers thereof; and that no tax 
 shall be imposed on lands belonging to the United States, and 
 that in no case shall non-resideni proprietors be taxed higher 
 than residents. 
 
 In pursuance of this enabling and organizing statute, a con- 
 vention assembled on the 29th day of August 1857, and by 
 delegates elected for that purpose, the people of said territory 
 formed for themselves a constitution and state government, 
 which was ratified and adopted by the people, at an election held 
 the 13lh of October 1857, for that purpose. And, on the lllh 
 May 1858, the congress of the United States approved of the 
 same, and declared " the state of Minnesota to be one of the 
 United States of America, and admitted into the Union on an 
 equal footing with the original states, in all respects what- 
 ever." She was allowed two representatives, and no condi- 
 tions besides those of the enabling act, which she accepted, 
 were imposed upon her. 
 
 Thus congress returned to the earlier and better prece- 
 dents, and this admission was peaceful and harmonious. 
 
 20th. Oregon. — The act for her admission has not been 
 received by me, but I presume that it was in character with 
 that of Minnesota ; and we owe Mr. Stephens, of Georgia, a 
 debt of acknowledgment for the manly and patriotic spirit 
 in which he, a southern representative, took this youngest 
 sister of sovereignty by the hand, and led her into this glo- 
 rious Union. 
 
137 
 
 Deductions fkom the History of the Admission of 
 New States. 
 
 I have now finished a rapid and condensed history of the 
 adntiission of twenty new states. What do we extract from it ? 
 We deduce : 
 
 1st. That the jurisdiction of congress attaches to "territory"' 
 as to '^ other property belonging to the United States," 
 
 2d. That, consequently, the states wherein no territory, as 
 properly, belonged to the United States, were admitted di- 
 rectly into the Union from the respective original states — as 
 Kentucky, Vermont, Maine and Texas. But, 
 
 3d. The states owning the domain of districts admitted 
 directly, as Virginia, Connecticut, Massachusetts, and the 
 republic of Texas, organized conventions and passed acts 
 authorizing "the people" of the districts or territories "to form 
 for themselves constitutions and stale governments." And, 
 
 4tb. That where the territory has been first ceded to the 
 United States, the territorial jurisdiction is then in congress, 
 and congress may and ought to organize conventions, and 
 pass laws authorizing the people of the territory " to form for 
 themsehes constitutions and state governments." And, 
 
 6th. Where the territory of a foreign state is erected into a 
 new state, and admitted into the Union, there must be con- 
 sent, both of the United States and of the foreign state, as in 
 the case of Texas. And, 
 
 6lh. In all cases of admission: first, in domestic cases of 
 direct admission, there must be a territorial organization, with 
 authority to form a state organization, by the original state, 
 with the consent of congress and of the people of the terri- 
 tory; or, in domestic cases, where the territory belongs to the 
 United States, the admission must be by the consent of con- 
 gress and of the people of the territory; or, in cases of foreign 
 territory, the admission must be by the consent of the presi- 
 dent and senate, under the treaty-making power, or of con- 
 gress under the law-making power, conjointly with the con- 
 18 
 
138 
 
 sent of the foreign state, ceding the new state immediately 
 into the Union. 
 
 7th. When states are admitted into the Union they come 
 in " as new and entire members of the United States of America," 
 or "ore an equal footing with the original states, in all respects 
 whatever." 
 
 8lh. New states " may be admitted, by the congress, into this 
 Unions" without limitation, upon the discretion of congress, 
 except that " no new slate shall be formed or erected within 
 the jurisdiction of any other state; nor any state be formed 
 by the junction of two or more states, or parts of states, with- 
 out the consent of the legislatures of the states concerned, as 
 well as of the congress ;" and the United States being bound, 
 under the 4lh section of the 4th article of the constitution, " to 
 guarantee to every state in the Union a republican form of 
 government," the congress cannot admit any new state into 
 this Union whose form of government, when admitted, is not 
 republican. But, 
 
 9th. The congress cannot impose any condition of admis- 
 sion upon a new state which impairs, or may impair, the sove- 
 reignty and independence of the new state, in her state or 
 federal relations, or her equality after admission, with the ori- 
 ginal states in the Union. And here I will observe, upon this 
 rule, that, undoubtedly, some conditions may and must be 
 required for admission — such as: 
 
 1. That the proposed constitution is the act and deed of 
 the people by whom it purports to be formed, and that it was 
 formed by their free election and assent. 
 '2. That the form of the government itself is republican. 
 
 3. To define boundaries and jurisdiction over cotermi- 
 nous rivers and waters. 
 
 4. To reserve government of the United States over In- 
 dians and their relations. 
 
 5. To reserve the control and primary disposal of the 
 United States over the public lands and other property belong- 
 ing to them in the limits of the new state ; and to protect non- 
 resident proprietors, who purchase lands belonging to the 
 United States, from unequal burthens, &c. &c. 
 
139 
 
 But many conditions have been imposed which are not 
 rightful or constitutional, and some have been acquiesced in, 
 even by all the states, which are very questionable, as : 
 
 1st. The ^^ compacts" as they are called, as to the fund of 
 five per cent, upon all the nett proceeds of sales of lands, for 
 the purpose of constructing roads and canals, in and out of 
 the new state, by congress, with the consent of the slates. 
 And, 
 
 2nd. Exemption of the lands of the United States from 
 state taxes, for five years, or any time after they are sold by the 
 United States. 
 
 These provisions, undoubtedly, do impair the sovereignty 
 of the new states, over the domain in their limits, not belong- 
 ing to the United States. They do place them not on an 
 equal footing with the original states. 
 
 Eminent domain is a very essential attribute of sovereignty. 
 To be deprived of the power of taxing lands in the hands of 
 private subjects and citizens, is to have state sovereignty im- 
 paired. The congress, by the constitutional power " to dispose 
 of and make all needful rules and regulations respecting the 
 territory or other property belonging to the United States," 
 may properly, perhaps, reserve the lands " belonging to the 
 United States" from state taxation or burthen, whilst they are 
 the property of the United States; and may justly stipulate that, 
 when sold, they shall not be taxed in the hands of venders, 
 residents or non-residents, more than other lands in the limits of 
 the new state. On these points, there has been a general and 
 continued acquiescence. But, the same clause of the constitu- 
 tion declares, that notding therein shall " prejudice any claims 
 of the United States, or of any particular state." And it is a 
 prejudice to the "particular" new state, without benefit to the 
 United States, to deprive her of the power to tax the lands in 
 her own limits, after they have been sold by the United States. 
 She, it is true, is given, in turn, five per cent, of the nett pro- 
 ceeds of sales, of lands within her limits, for roads and canals 
 through her borders, and those of other states ; but this con- 
 sideration is the very main objection to any such condition or 
 
140 
 
 compact, for the reason that it is a mode of attempting to cir- 
 cumvent the constitution of the United States, which grants 
 no power to congress to construct roads and canals. 
 
 It is called " a compact" with the new state- HoW a 
 " compact ?" If a treaty, it would have to be made by the 
 president and senate. It is no agreement, in any treaty sense, 
 and if it was it could givJB no additional power to congress. 
 It is but a condition of legislation — that is all the compact it is, 
 and so it is proposed as a fundamental condition, but a "rule 
 or regulation" made by congress ; and congress can make no 
 such rule or regulation " respecting any territory or other pro- 
 perty," but that which is " belonging to the United States." 
 When sold by the United States, the land no longer belongs 
 to the United States, and congress cannot, under any fair pre- 
 text, set up a power founded upon it as a consideration. This 
 was among the first and greatest errors committed in the ad- 
 mission of new states : 
 
 1. It impaired state sovereignty after admission. And 
 
 2. It bribed the new state with federal funds to assent to 
 an unconstitutional power in congress over her soil ; and, 
 
 3. This was no less prejudicial to her sovereignty than to 
 the United States in many aspects of impolicy and immorality. 
 
 And congress has imposed some ridiculous as well as vain 
 conditions, as 
 
 1st. That to make the state of Louisiana write laws and 
 records in congressional English! 
 
 2d. A condition to observe the constitution of the United 
 States is unnecessary and supererogatory ; and, 
 
 3d. Congress, it has been solemnly decided by the suprefne 
 court of the United States, has no power to impose any such 
 condition as that of the 8th section of the act of March 6tht, 
 1820, excluding slave property from all territory north of the 
 line of 36 deg. 30 min. north latitude. 
 
 10th. In all the acts passed for the purpose of organizing 
 and admitting new states, the congress has always recognized 
 the right of the "inhabitants" or "people" of the territories 
 " to form for themselves their constitutions and state governments." 
 
141 
 
 lllh. In some cases congressj as in that of Arkansas first, 
 and those of Florida and Iowa and other cases afterwards, 
 has sanctioned the right of the people in an organized terri- 
 tory "to form for themselves a constitution and state govern- 
 ment," without an enabling or prior act authorizing them so 
 to do. 
 
 12lh. Congress, as in the cases of Arkansas and other new 
 states, has recognized the duty of taking a census to ascertain 
 whether the proposed new state had the number of federal 
 population to entitle her to one representative at least in con- 
 gress, though in the first instances of admission no such enu- 
 meration was required, and Virginia's compact of cession 
 seemed to reauire less than the federal ratio of one repre^ein- 
 tative. ' 
 
 13th. Congress has sometimes waived rejection of, or as- 
 sent to, the ordinances appended to the constitutions of new 
 stales, but has never exactly changed them or the constitu- 
 tions themselves without referring them back to the people 
 for their approval or rejection. The attempt was made by 
 the senate of the United States, in the case of Kansas, to 
 change both the constitution and the ordinance without the 
 consent of the people, but it failed in the house of represen- 
 tatives and has been rebuked by the people. 
 
 14th. Where the conditions of the ordinance were neither 
 accepted nor rejected by congress before admission, congress, 
 as in the case of Arkansas, after admission, offered the usual 
 propositions for free acceptance or rejection. 
 
 15th. In some instances, as in the case of Michigan, con- 
 gress has referred special questions to a convention of the 
 people of the territory, constituted for the special purpose of 
 obtaining their consent or disapproval. 
 
 16th. Whenever congress referred its act of admission, 
 upon any conditions, to the people of the territory for theii: 
 assent, it'prescribed the mode of giving that assent, either by 
 the mode prescribed bythe people themselves in their pro- 
 posed constitution, or by leaving the mode to bfe prescribed 
 by the legislature of the territory, as in the case of Iowa. 
 
142 
 
 17lh. Congress cannol increase its legislative powers by 
 treaty, nor by compact of legislation with a foreign state, or 
 either of the United States ; therefore the last clause of the 
 conditions to exclude slavery from that part of the territory 
 north of 36 deg. 30 min. north latitude, in the act to annex 
 Texas, was unconstitutional, and it was abandoned by the 
 2d section of the act organizing the territory of New Mexico. 
 
 18th. The derivative law or status of a territory acquired 
 by the United States from a foreign power, cannot control the 
 question of admitting or excluding slave property therefrom 
 after the territory is once acquired, because the constitution 
 of the'United States governs all territory of the United States 
 equally and alike. 
 
 19th. The establishment of the boundaries of Texas, and 
 the organization of the territory of New Mexico, settled, by 
 general consent, in 1850, the rule : " That when admitted as 
 a state, a territory, or any portion of the same, shall be received 
 into the Union with or without slavery, as their constitution may 
 'prescribe at the tim£ of their admission." 
 
 20th. That though congress recognized the right of the 
 people to form for themselves a constitution and state govern- 
 ment, without an enabling act, as in the case of Arkansas ; 
 yet, in 1846, it returned to the usage of passing such an act, 
 in the case of Wisconsin. 
 
 21st. That congress has approved of the form of' govern- 
 ment adopted as republican, and has assented to the ordi- 
 nance appended thereto, and yet has referred both, after 
 being submitted to it, to the approval or disapproval of the 
 " qualified electors" of the territory, as in the case of Wis- 
 consin. And this was done for the reason that though the 
 form was republican and the ordinance fair and reasonable, 
 yet if they were not the acts of the people, adopted and ap- 
 proved by them, it would have been tyranny and dictation to 
 impose a state government upon them without their consent. 
 
 22d. A territory and its people must be " organized," whe- 
 ther authorized to form a constitution or not, as in the case of 
 Arkansas, Florida, Iowa, &c., in order to form for themselves 
 
143 
 
 a constitution and state government. But, if not organized, 
 as in the case of California, they have not the faculties and 
 powers of a people to form a constitution or state government 
 at all. This principle should have rejected the admission of 
 California until the territory was organized. Her admission 
 as a precedent should never be acted on. It was an instance 
 in which the very extravagance of sovereign pretension was 
 exceeded, and every guard of American system of govern- 
 ment was stricken down by military usurpation under execu- 
 tive dictation. 
 
 23d. That the executive of the United States has no power 
 or authority, as in the case of California, to organize a terri- 
 tory, and much lesS to organize or authorize the formation of 
 a constitution and state government for any people. The 
 first belongs to congress, to be done by the enactment of a law 
 which the executive is merely to execute; and the latter 
 belongs to the people, sovereign as to the act of forming, for 
 themselves their own constitution of state government. 
 
 24lh. The better, earlier and later, rule of usage seems to 
 be : — 
 
 1. For congress to " organize" the territory. - 
 
 2. For congress to " authorize" the inhabitants or people 
 of a territory to form for themselves their own constitution of 
 stale government. 
 
 3. Then to leave them perfectly free to exercise that au- 
 thority; protecting their freedom of election, and guarding 
 their right of assent and dissent to any change proposed in 
 their plan: of self-government. And — 
 
 4. That congress may rightfully approve or reject their 
 application for admission ; and — 
 
 ^. If there be any change of their proposed constitution 
 or ordinance appended to it, to refer the question of change 
 to the " qualified electors," to assent or dissent either in the 
 mode prescribed by their proposed constitution, or in a mode 
 to be prescribed by their own legislature. 
 
 Such are the teachings to me of our past history, and I 
 trust that I have now demonstrated in the second place: 
 
144 
 
 " That the inhahitanti or people of a territory are sovereign to form 
 for themselves a constitution and state government," as I have shown 
 in ihe first place, that in their territorial condition they are within 
 the entire control and Jurisdiction, or under the entire rule and re- 
 gulation of congress, subject to the constitution of the United States, 
 and that the citizens of each and all of the states are alike 
 equally entitled to proteclion in all the privileges and immu- 
 nities of persons and of property, common to equal con- 
 federates. 
 
 And this right and this duty of proteclion is not to be 
 evaded or avoided either by the false ad caytandum clamor 
 that a code is required to be enacted by congress for the pro- 
 tection of slave property. This is but to cast odium upon 
 slavery, by creating the impression that a discrimination is 
 necessary to distinguish it above what is due to other personal 
 and proprietary rights. On the contrary, no such code is re- 
 quired to create either the right or the duty of proteclion, and 
 no law is necessary to distinguish slave property from any 
 other property. All persons and all property, equally and 
 alike, require only not to be assailed and destroyed in, or ex- 
 cluded from the common territories. Every species of rights 
 require laws, it is true, suited to their character and to their 
 case. Personal properly, for example, must have a law that 
 it shall not be " taken and carried away ;" and land, which 
 cannot be " taken and carried away," must have a law that 
 it shall not be trespassed upon in some other way ; and so 
 with slaves and every thing else, they must have provisions 
 according to their kind. But the constitution of the United 
 Stales, and the laws of congress heretofore organizing terri- 
 tories are sufficient, and if amendments of the laws are re- 
 quired, it is the duty of congress to see that they are provided, 
 of the executive of the United States to see that they are ex- 
 ecuted, and of the judiciary to decide upon the rights under 
 the laws. The slave states should never pretend to any pe- 
 culiar privileges, and do not, so far^as I know. They ask 
 only that their rights shall not be- assailed and invaded, and, 
 if they be assailed, that they may be protected as other per- 
 
145 
 
 sonal and proprietary rights are protected ; that they may 
 have equal, confederate, federal privileges and immunities, 
 and they ask for no special or peculiar code. The sole ques- 
 tion is: What protection does the constitution guarantee in 
 the territories ? We contend that it guarantees all protection 
 required to all persons and all rights recognized within its 
 jurisdiction. What that jurisdiction is in the territories we 
 have endeavored to demonstrate. 
 
 Protection in the States. 
 
 Lastly, I have to show : — That the United States, through 
 congress, owe protection, not only to the people in the terri- 
 tories, but to the people in the states. Intervention for pro- 
 tection penetrates every where, and must not be denied any 
 where. 
 
 By the 4th article of the constitution of the United States, 
 section 4th, " The United States shall guarantee to every state in 
 this Union a republican form of government, and shall 'protect 
 each of them against invasion; and. on application of the legis- 
 lature, or of the executive (when the legislature cannot be con- 
 vened), against domestic violence" 
 
 " The United States shall guarantee" 
 
 1st. In commenting upon clause 18th of section 8th of ar- 
 ticle 1st of this constitution, and illustrating its meaning by 
 the variation of the phrase in this clause, now under review, 
 from the other clauses of this 4lh article, in juxtaposition with 
 it, I have shown that this "guarantee" power is one of "all 
 other powers vested by this constitution in the government of 
 the United States, which it is the duty of congress to make 
 all laws necessary and proper for carrying into execution." 
 
 2d. The act to be done is imperative, and it is to "guaran- 
 tee."^ According to the best authorities, that power is one 
 " to see stipulations performed," To "guarantee" is to " engage 
 and undertake to secure the performance of articles" 
 
 3d. The guarantee is " to every state in this Union." It is 
 not only to the district, and other places and territories, and 
 19 
 
14^ 
 
 embryo states not yet admitted in this Union and under ordi- 
 nary federal jurisdiction, but it is to the states themselves, 
 *' and to raery state in this Union." It is the United Slates, 
 the whole country, with all its united and connbined power, 
 engaging to "guarantee" to each and every state in this Union. 
 
 4th. The precious thing gwaxanieed^h a republican form of 
 government. The articles of "a republican form of govern- 
 ment" are what the United States engage and undertake to 
 secure the performance of. . And it is not only a republican 
 form of government in every state only in the Union, which is 
 guaranteed, as is the first impression from a slight reading of 
 this leading provision of protection ; but " a republican form 
 of government" is guaranteed every where throughout the 
 United States. The guarantee is " to every* state in the 
 Union ;" but it is of " every form," state or. federal, under the 
 jurisdiction of the United Slates. 
 
 5th. Congress must necessarily judge whether the form is 
 republican. And what form is republican is welldefined by 
 our various bills of rights and written and received constitu- 
 tions of government. And what is republican depends upon 
 fact as well as form — the fact of the will of the people, aS 
 well as the form of the instrument, the constitution purporting 
 to express that will. The constitution may in itself be repub- 
 lican in fortn, but if it is not the will of the organized people 
 or qualified voters, it is not their form, and therefore may not 
 be republican. It is not republican to impose the best forrti 
 of government upon a people against their will. And 
 
 6th; The United States " shall protect each" of the states : 
 
 1. " Against Invasion." This it is the duty of the United 
 States, by congress, to do without any application. This in- 
 tervention need not be called for. It is imperative upon con- 
 gress, whenever invasion approaches. The invasion here 
 meant is probably invasion by force and arms ; but this is not 
 express, and the question may well be considered whethet 
 congress is not in duty bound to " protect each" stale in the 
 Union against every kind of invasion, needing its power of 
 interposition. And 
 
147 
 
 2, "Against Domestic VioUnce.^* Congress can intervene 
 in the domestic affairs of any state,, only ^'on application of 
 ^he legislature, or of the executive (when the legislature can- 
 not be convened)." This power has been exerted in various 
 instances, and there is a general law to enforce it. The last 
 application came from th^ executive of California, in the case 
 of the vigilance committee, and I refer to Attorney Gener^tl 
 Cusbing'si opinion, under thej administration of Mr* Pierce, in 
 that case. 
 
 No application to congress is required, by the legislature or 
 the executive, against; either " invasion or dqmestic violence," 
 in a territory. All its affairs, internal and external, are fede- 
 ral, ^nd congress for them is itself thfi original and pritnary 
 legislature, and the president of the United States the original 
 and primary executive. 
 
 Thus it is shown that, intervention for protection, by the 
 United States, through congress, is all pervading. It pener 
 trales into states, territories, districts and, other places through- 
 out the United States, and is one of the most vitally essential 
 attributes of our blessed fedieral Union. No doctrine could 
 be more repugnant to its benign spirit, none more destructive 
 of federal inipriupitjiesi and privileges, and none more fatal to 
 state rights and the safety of individual persons and their pro- 
 perty, than this new light of " non-intervention" to protect all 
 and every thing in the jurisdiction of the United States, It 
 is a question which cannot be retired ffOOT discussion in copr 
 gress, where it rises up every day in every form, and where 
 it must be met with intelligence, integrity and courage. It 
 canqot be renounced or smothered, or the government must 
 relinquish its dominion over every subject of its jurisdiction. 
 
 PpwBR TO Destroy. 
 
 And this doctrine of " non-intervention for protection" is 
 only equalled in danger and destructiveness by; that cprrel$s- 
 tive error of some minds in these days : " That congress may 
 not intervene to protect; for if it ha? the power to protect, it 
 
148 
 
 has the power to destroy." This is a noii sequitur, and a weak 
 fallacy and gross delusion. The power ahd duty to protect is 
 the power and dtfty not only not to destroy, but something far 
 greater — it is the duty to intervene against invasion and vio- 
 lence. The whole American system of government through- 
 out is one to protect against destruction. Because congress may 
 and shall provide the writ of habeas corpus, trial by jury, 
 freedom of speech or of the press, &c. &c., shall it, there- 
 fore, be said to possess the power to withhold, deny or de- 
 stroy either or all of these rights ? 
 
 Butj say some, cui bono ? — if a majority of congress are op- 
 posed to the protection of the right, what use is there in 
 claiming the mere abstraction of the right ? I reply that there 
 is great use and practical effect in it too. ' 
 
 The proposition of non-intervention is : " by the compro- 
 mise of 1850, the Kansas-Nebraska act, and other declarations 
 of its yi'xW, congress renduncedjhe exercise of any direct jurisdic- 
 tion over the territories, and delegated its po^er to the local legisla- 
 tures." But it concedes that " congress could bestow no authority 
 on the local legislatures of ivhich it was not itself possessed" — in 
 other words, congress cannot delegate more power than it pos- 
 sesses itself; and it has none to prohibit slavery. Very well, 
 and so good as to the power. But there is a positive duty to be 
 discharged as well as a power not to be exercised. Suppose the 
 territorial legislature attempts to prohibit slavery, and thus to 
 do what congress itself cannot do in the territories. Has con- 
 gress renounced its jurisdiction in the case ? Could it or can 
 it do so? If not, what is its duty? Does non-intervention 
 renounce this duty of protection* in such a case, or not ? It 
 replies that this claim upon congress to discharge this duty 
 will be vain. Why ? There is a dead majority against us in 
 congress, and they will not heed the appeal to the legislative 
 department for protection. Well, but the case supposes a 
 like dead majority and an aggressive majority against us in 
 the territorial legislature too. What then ? There is no re- 
 fuge of safety from a majority against us in territorial legisla- 
 tures. Non-intervention quickly answers this dilempia, by 
 
149 
 
 saying : " let the courts determine between us and our adversaries*" 
 This is what is called " remitting" the question to the judicia- 
 ry, which may decide as well as the congress or the execu- 
 tive. True, the judiciary may and must decide, any how, in 
 either case, for that was no discovery of Mr. Calhoun, but a 
 constitutional function, which has ever belonged to the courts, 
 and of which congress and the executive and the territorial 
 authoriiies cannot deprive them; and, without any remission 
 by congress, the judicial department has the power of deci- 
 ding upon the validity of laws. And it can as well and more 
 directly pass upon the validity of laws enacted by congress itself as 
 upon the validity of those enacted by the territorial legislaturet If 
 congress passes an unconstitutional law we can go to the courts 
 just as easy as if the law was passed by its delegate, the ter- 
 ritorial legislature. And if congress does not renounce its di- 
 rect jurisdiction and delegate it to the territorial legislature, 
 then the latter will have no power to annoy the slave property 
 locally by its abuse of delegated power; and the territorial 
 legislature is more apt to pass a prohibition than congress is, 
 for very obvious reasons. The eye of the whole nation is 
 immediately upon congress, and no positive code is required 
 to establish its power and duty to protect persons and property. 
 The constitution itself dictates and enjoins both. And it is first 
 of all necessary, that neither the power nor the duty shall be 
 practically denied, embarrassed or obstructed, by the enact- 
 ment of unconstitutional laws of prohibition. Positive legis- 
 lation is more apt to be passed against slavery by local than 
 by national laws. In any practical view, then, we are at- 
 tempting to shear a lion instead of a wolf. Non-intervention 
 is simply absurd and impossible, and it is worse than imprac- 
 ticable. It openly avows the monstrous doctrine that congress, 
 the legislative department, the principal^ may renounce its jurisdic- 
 tion and delegate its powers and duties to an agent, a local territo- 
 rial legislature, and that if that does not exercise the power or vio- 
 lates the duty of protection, congress is released from its responsi- 
 bility, and we can look to the judiciary alone. But if one depart- 
 ment of government may renounce its jurisdiction and respon- 
 
150 
 
 sibility, so may another department — if congress may, so may 
 the judiciary and the executive. May the principal powers 
 thus renounce and delegate to agents ? The answer shows 
 this subterfuge of non-intervention to be futile and absurd, and 
 it is a cowardly concession not to claim both the duty and 
 power of protection. Whether^ we claim them or not, or 
 whether they be discharged and exercised or not, they both 
 exist in our favoj in all the departments of the federal govern- 
 ment. The moral power, rightly wielded, is bound to be 
 dominant in the end over mere numbers. But grant that it 
 is to be overcome by brute force, and crushed by the weight 
 of numbers, still, if the minority be not subjugated, they may 
 appeal to rightful resistance. In case they are compelled to 
 do so, it will be best for them never to have yielded the claim 
 of right. They must put in continued . claim for justice and 
 equality ; and, then, when they have been denied both, and 
 been oppressed and insulted beyond; sufferance, they may ap' 
 peal with effect to the moral sense of mankind to justify revo- 
 lution. If they concede that they are not entitled to protection, 
 and that it is not the duty of congress to guard and protect 
 their rights, then, when the last extremity comes, they may 
 not complain that they were not protected and defended 
 against wrong,, injustice and oppression, for the reason that 
 they have conceded that there was no power or no duty to 
 protect them. 
 
 General Summary. 
 
 The summary of the whole free and glorious, but complex 
 system, then, is— 
 
 First. Thirteen original, separate, sovereign and indepen- 
 dent states, of which the people are the source, and which 
 states are the fountain and source of all national power in the 
 United States. They formed-n- 
 
 Second. A constitution of Union, creating •• The United 
 States of America ;" embracing — 
 
 1st. A district of Cplumbia, for a seat of government, and 
 
151 
 
 other places for forts, magazines, arsenals, i&c., govierned by 
 congress as a local, as well as national legislature ; and created 
 by the constitution of the United States, 
 2nd. Territories — 
 
 1. Acquired under the confederation, and before the con- 
 stitution was fornied, by cessions from original states. 
 
 2. Acquired since the constitution Was formed-^ 
 1st. By cessions of original states. 
 
 2nd. Under purchase or conquest by the United States. ' 
 
 And all territoriesj however acquired, are either — 
 
 1st. Territories of unsurveyed and unappropriated lands, 
 unorganized, and in the occupancy of Indians, or other oc- 
 cupants. 
 
 2nd. Territories organized and appropriated to occupancy 
 by Indians. And 
 
 3d. Territories settled and surveyed in part, and organized 
 for the occupancy of citizens of the United States. 
 
 All under the jurisdiction and legislative protection of con- 
 gress, subject to the constitution of the United States. And 
 
 Third. New states. 
 
 1st. Those admitted directly into the Union, with the con- 
 sent and cession of the original states, and with the consent 
 of congress, without having been territories belonging to the 
 United States. 
 
 2d. Those admitted into the Union after having been ceded 
 to the United States, as tterritories, and remaining in that con- 
 dition, organized or unorganized, before admission. 
 
 These having the power of self-government, free, sovereign, 
 republican, separate and independent ; but not having com- 
 plete power over their own eminent domain. 
 
 All states, original or new, and districts and other places 
 and territories, under the guarantee of protection by the 
 United States. 
 
 The system is perfect in its kind. It requires study and 
 care, and great providence in its administration, and is sub- 
 ject to great revulsions and revolutions, and is seemingly, to 
 one wjjo looks at the mazes without understanding its order 
 
152 
 
 and checks and balances, a war of contending and opposing 
 contradictions and antagonisms. It would seem impossible 
 to reconcile them, and as if government was attempting to 
 bestride and rein fiery coursers running in opposite directions. 
 Well, it is what it seems ; has dangers which all government 
 is obliged to guard and provide against. The powers of good 
 and evil in it are terrible and conflicting. The steeds of the 
 sun are so too, and to control them is what a Sol has to do, 
 and a Phaeton cannot do. Government drives powers of high 
 and fearful metal. In weak or wicked hands they are wild 
 and unmanageable, or are driven to madness and dash down- 
 wards, or upwards, or any and every way to destruction. 
 But harnessed, braced, bitted, checked, curbed, restrained, 
 or compelled, they may be made to pull together, with incon- 
 ceivable power of good, and can, in beautiful and harmonious 
 style of action and motion, accomplish all the ends of human 
 happiness. They must not be allowed to dash off in oppo-r 
 site flirections, but are required to be driven all together, and 
 he is not fit to drive the powers of government at all who 
 cannot hold and wield all the reins in hand at once. The 
 conflict of laws and of interests, and of sections, and of pas- 
 sions and prejudices, must be reconciled and tamed under 
 the discipline of the rules which govern — the constitutions, 
 state and federal, of the United States. 
 
 To escape danger or disaster to themselves, your congress, 
 and executives, and judiciary, and state legislatures, shall 
 not, with my consent, be allowed to drop the reins of govern- 
 ment and leap from the seats of power and responsibility, 
 and renounce the duty of protection and preservation to all 
 within their care by the ignoring and stultifj'ing and disquali- 
 fying plea of negation — " non-intervention." There are too 
 many elements of discord in this country which require to be 
 restrained by the most active and positive, but prudent inter- 
 vention. These resolutions of Vermont, the tendency of 
 which is either to drive one section of the states out of the 
 Union, or to degrade and subjugate them in it, are an exam- 
 ple. If any thing can be worse than disunion to the United 
 
153 
 
 States, it would be the more dire alternative of degrading 
 and subjugating any one state by forcing her subnnission to 
 unequal laws and dishonorable conditions in the confederacy. 
 The state or section of stales thus subdued and humbled, 
 would be unworthy of the union with other free republics, and 
 such a union would be no longer what union now is. It 
 should, then, be the watchful concern of all to maintain and 
 support the honor, dignity and equality of each ; and equality 
 alone can reciprocally maintain the strength of all. If first 
 one and then another may be subdued, finally all but one will 
 become subject to that one, central and consolidated. This 
 should always combine the majority of states to support the 
 weaker portion of the Union against the very appearance of 
 oppression. But, alas! -such manifestations as these resolu- 
 tions of Vermont, daily admonish us that they are not the 
 only instance of the madness of a majority, and, more to be 
 lamented still, the madness of the majority drives the mi- 
 nority to opposing madness. The folly and wickedness of 
 one extreme drives the other to folly and wickedness. 
 
 All human rights, natural as well as any other, are social 
 and conventional ; and all rights spring from the nature of 
 things and their relations to each other. What is a natural 
 right at one moment and in one relation, may not exist at all 
 at another moment and in another relation. Time, habitude 
 and relations modify and mollify all rights and wrongs in mo- 
 rals as well as manners. Truth and justice, and all cardinal 
 principles, 1 know and plead, are externally the same; but 
 the misapplication of principles may pervert truth into false- 
 hood, justice into injustice, and right into wrong. Our hold- 
 ing and governing our slaves in the United States now, don't 
 depend upon the right or wrong of their original acquisition, 
 but upon existing relations^ — upon the lapse of time, upon the 
 laws of centuries, upon the habitudes of society, upon every 
 thing which can perfect a title to any thing. The masters are 
 born for generations to know their powers, duties and respon- 
 sibilities, and the slaves have been humanized, chastened and 
 christianized, and they have been, under the providence of 
 20 
 
154 
 
 God, blessed in their condition compared with what exists 
 among Africans any where else, and they have here gladly 
 and happily increased and multiplied. I am north of 36 deg. 
 30 min. north latitude, and am a slaveholder myself, by in- 
 heritance and by purchase ; and I would gladly own a great 
 many more than I do if I were able. I cherish a fond regard 
 for the race, and those of them who are my slaves love me. 
 Nobody shall ever disturb our patriarchal and happy home 
 relations if I can help it. I will fight first — I will fight for 
 them ; and they, I know, will fight for me. They are easily 
 made happy and easily elevated to a condition worthy of the 
 tenderest kindness and confidence ; but they need the care of 
 good guardianship, and they shall have mine while I live, and 
 that of my children when I die. 
 
 To defend our slave property at home, on the borders of 
 the free slates, requires all the aid we can obtain by sympathy 
 from within and without ; and we need especially that our 
 friends in the south shall do nothing to prejudice the cause of 
 African bondage, and of its defences as it exists in the United 
 Slates, in the minds of any. 
 
 For the south's sake, and for the sake of the border stales 
 of slavery, then, let us enforce the laws and entrench our- 
 selves behind their ramparts. If we would have justice, let 
 us do it to our own hurt even — if we will not submit to vio- 
 lations of the constitution of the United Slates, let us by all 
 means keep the faith of the covenant. And, then, if the 
 worst comes to the worst, we must throw away all vain 
 boasting and gasconade, and be prepared and purified as 
 men ought to be for the trials of a severe, stern struggle; to 
 .maintain the "very right," with steady purposes, with courage, 
 with truth, with constancy, with clear consciences, with in- 
 telligence, with integrity, and with trust in God. 
 
 This is not a contest to be decided by the laws of man, 
 but by the laws of nature, and by the providence of God ; 
 not by that "higher law" of high-handed aggression and ar- 
 rogant domlnancy which sets at naught constitutions and 
 statutes of human government, but by reverence for laws, 
 
155 
 
 human and divine, and by; enlightened reason and conscience, 
 which teach us to follow nature and to pursue the path of 
 experience and profit which she points out. The "fool in 
 his heart who says there is no God," sees the frost king shoot- 
 ing his borealis lights from the north pole, and he then looks 
 to the sun of the summer soltice which never crosses Cancer's 
 line north, and he says there is a war in the elements of na- 
 ture, and nature herself, he thinks, sets them contending — 
 frost with stin, cold with heat, north with south, and south 
 with north. But how differently does nature's music of the 
 spheres answer back in all ultimate harmony and peace ! 
 The law of frost and the law of the sun are reconciled and 
 kiss each other in the blending of lights and of temperature, 
 in the equipoise of expansion and contraction, in the variety 
 of climate and of production, in the supply and sustentation 
 of animal and vegetable life and health in every form of its 
 existence. Nature makes no wars, but arrays and mingles 
 elements, and subdues the one by the other only when her 
 course is opposed or obstructed. Her hyperborean cold piles 
 up icebergSj and these again her heat melts apart and sets 
 them floating towards an equator to refrigerate the seas of the 
 south, to make invigorating winds and airs and fructifying 
 dews and rains ; and frost and sun say how near boreas the 
 Africans, and how near the tropics the white men may labor 
 in the fields of the respective northern and southern climes ; 
 and all nature says that the apple and the o^'ange shall both 
 grow and be exchanged for each other — that wheat, and corn, 
 and tobacco, and cotton, and rice, and sugar, in a plantation 
 interest of the sunny fields of the south shall have, and must 
 have, the African operatives fitted for the climate, and that a 
 superior race must master and govern and guide and provide 
 for them ; and that wheat, and corn, and grass, and potatoes, 
 and cattle, in a farming interest adjacent to commerce and 
 manufactures and mechanics art, must in the regions of cold 
 have the superior race to be operatives and arlizans there, to 
 be masters of themselves, and the equals of masters any 
 
156 
 
 where, and to be benefitted by the labors of the slaves, in the 
 exchange of products, as the Kiasters of slaves are in the pro- 
 ductions themselves. This is all as harmonious as heat and 
 cold, if God alone be acknowledged the supreme providence, 
 and if his work and law be not obstructed and opposed by 
 the folly of man. The heat and the cold, the frost and the 
 sun seem to contend, but it is only at last to make harmony 
 and variety, and a perfect balance by counter-influence and 
 exchange of forces. And so this seeming war of north and 
 south would be ultimately happy and harmonious, but for the 
 ignorance and narrowness and short-sightedness of human 
 vision. The war of north and south sections in the United 
 States is no less strange than, in the language of a master 
 divine, "the strange anomaly of a religion of love producing 
 the keenest haters, and a gospel of peace engendering strifes and 
 animosities, more bitter than the disputes and rivalries of the 
 profane." It is all owing to the arrogance and vanity of men 
 attempting to assume the Deity's prerogatives, to change the 
 very laws of nature as well as of grace, and in presuming to 
 play providence itself for human affairs. This nation wants 
 reverence more than any thing else to preserve its peace and 
 prosperity. Let us, then, before the sword of civil war is 
 ever drawn in the United Stales, all kneel down in pious and 
 patriotic devotion before that God who led our fathers through 
 the gloom of revolution to sovereign independence, when we 
 were a poor, depised, needy and weak people, and pray fer- 
 vently that now we are a strong and prosperous nation, quin- 
 tupled in power and wealth and population and greatness, 
 we may not be allowed to throw all away by forgetting the 
 divine care, which is the only reliance, after all, of a free re- 
 public for protection. Despotisms are guarded by bayonets, 
 and the people are degraded in order that brute force may 
 easily subdue them to a tyrant's will. But we cannot and 
 dare not rely upon force ; we will not be degraded, and will 
 not submit to tyrants. The laws immediately guard us; but 
 what guards the laws ? Nothing but a religious sense and 
 
157 
 
 reverence, an enlightened christian conscience and reason, 
 which alone can preserve the wisdom and virtue of the 
 people. 
 
 To add my humble mite of enlightenment is the sole end 
 of this long essay, which I have snatched at intervals of con- 
 stant and heavy official labors. It has, doubtless, many de- 
 fects and errors, and I, therefore, reserve the privilege of 
 modification and correction, as may be necessary, hereafter. 
 But, I reply not at all to your personal allusions, because I 
 regard myself as nothing, if I can but aid the truth and serve 
 my whole country, whilst I am trying to secure the home in 
 which my destiny is fast fixed, now and ever through life, on 
 the love of which the love of a whole country is surest 
 founded. 
 
 With a dedication of this labor of love to you, whose kind 
 interest in me has drawn it forth for all, 
 
 I am your friend, 
 
 HENRY A. WISE. 
 

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