1st--That the slaveholding States are entitled under the Constitution to
representation in the national legislature upon three-fifths of their
slaves, so long as slavery exists in those States; and they are subject
to direct taxation accordingly.
2d--That the right under State laws to import slaves into _the then
existing_ States, was guaranteed for twenty years, or until 1808, and
the guarded concession of the right involved the converse, that after
1808 the foreign slave trade was to be prohibited by Congress, for the
reason already assigned, and any attempt by Congress now to open the
African slave trade, would be as direct a moral violation of this
compromise of the Constitution as if the Congress were to attempt
directly to abolish slavery in any State.
3d--It is equally plain that the right of slave owners to recover
fugitive slaves, escaping from the State where they are held, _under the
laws thereof_, into another, is guaranteed.
The Federal Constitution so far as relates to the subject of slavery
within the United States, involves the three propositions stated and
nothing more, and there is nothing in these in the least degree
expressing or implying a right in Congress to abolish or establish
slavery in any State or territory of the Union. On the contrary, the
whole tenor of the Constitution is, slavery is the creation of _local
law_, and Congress is to let it alone.
Now as to the question of slavery in the territories and the power and
policy of the Federal government concerning it there.
The power to acquire territory for the purpose of colonization or the
creation of States was not expressly granted to the Federal government,
either by the Articles of Confederation or by the Constitution, but it
has been largely exercised under both systems of government. The acts of
the government of the Confederation in accepting cessions from several
of the States of unoccupied territory, claimed by them in the west, and
organizing territorial governments therein, were declared in 1788, by as
high authority as James Madison, to be "_without the least color of
constitutional authority_." But as has been the case with many other
usurpations of the Federal and other governments, the value of the ends
to be attained seems to have justified the usurpation in the public
mind.
The territory acquired by Congress under the Confederation was territory
which was claimed by or belonged to certain of the original States. The
territory acquired under the Constitution has been foreign territory.
Louisiana was acquired in 1803 from France, Florida in 1819 from Spain,
Texas in 1846 by annexation as a State, a portion of Oregon in 1846 by a
boundary treaty, and a large territory including New Mexico, Utah and
California by treaty with Mexico in 1848.
The purchase of Louisiana was a measure of Mr. Jefferson, but so serious
were his doubts as to the constitutionality of the purchase, that he
advised an amendment of the Constitution, but no such amendment was
attempted, and the purchase was finally made and acquiesced in, upon the
principle that the end justified the means. It seems now, however, to be
generally conceded that the power of the Federal government to acquire
territory, exists by implications either in the treaty making power or
in the power to admit new States. In view of the only legitimate end
and purpose of all such acquisitions, it is natural to look upon the
power of acquiring as an incident of the power to admit new States.
The right or claim of some of the States, viz: New York, Virginia,
Massachusetts, Connecticut, North Carolina, South Carolina and Georgia
to a vast extent of waste and unoccupied territory, as embraced in their
original charters or territorial limits, was a subject of serious
concern in the Congress of the Confederation, and constituted for some
time the only obstacle to the ratification of the Articles of
Confederation. Delaware, Maryland and New Jersey, which had no such
territory, were especially jealous on this subject, the two former
peremptorily insisting upon the restriction of the boundaries of such of
the States as claimed to extend to the Mississippi River or South Sea,
to moderate limits, and that the property in the soil of the western
territories should be held by the Federal government for the common
benefit of all the States, as the same, to use the language of Delaware,
"_had been gained by the blood and treasure of all_."
To remove this subject of contention, New York was the first to tender
on 7th March, 1780, a surrender of her claim in western territory. On
6th Sept., 1780, the Congress, by resolution, recommended to the States
concerned "a liberal surrender of a portion of their territorial claims,
since they cannot be preserved entire without endangering the stability
of the general confederacy." On 10th October, 1780, the Congress, by
resolution, defined the condition upon which the cession of territory
was asked, declaring that "such territory shall be disposed of for the
common benefit of the United States, and be settled and formed into
distinct republican States, which shall become members of the Federal
Union, and have the same rights of sovereignty, freedom and independence
as the other States."
Governed by that noble patriotism and devotion to the good of the Union,
which marked the whole course of the revolution, and the foundation of
the general government, all the States rose above the dictates of
selfishness and State pride, and laid upon the altar of the Union, gifts
that have grown to empires. The surrender of territory asked for by New
Jersey, Maryland and Delaware, and recommended by Congress, was made.
All the States but Georgia had ceded prior to the adoption of the
Constitution. The cession of Georgia was completed in 1802. With the
immense domain of fair and fertile lands, thus freely given to the
Federal government by individual States, it was able to discharge the
debts of the war of the revolution, and in various ways to provide for
the common defence and promote the general welfare of the United States.
No man in whose bosom glows a generous sentiment, can read the record of
that period of our national history without feeling his heart swell with
admiration and affection for the fathers of the Republic. Would that
their sons would ever honor their memory by an imitation of their noble
example of devotion to the Union!
In this surrender of territory to the general government, we distinctly
mark, and it is for that purpose I have related the history, the same
"spirit of amity, and of mutual deference and concession," which
pervades the Constitution, and I would dwell here a moment to ask you,
and especially sectional Republicans, who think that no good thing can
come out of the Nazareth of the South, to note another fact: that of all
the territory ceded to the United States by individual States, for the
common benefit of the Union, by far the largest part was owned by what
were then and are now Slave States. Massachusetts, New York, and
Connecticut claimed largely, but without possessory right. Virginia,
North Carolina, South Carolina and Georgia had superior claims to nearly
all. The splendid empire that now embraces the States of Ohio, Indiana,
Illinois, Michigan, Kentucky and Wisconsin was most of it once the
property of the sovereign State of Virginia. Yet Virginia, then the
largest slaveholding State of the Union, laid all this vast territory at
the feet of the Union, with no other reward than the consciousness of
love of country. She did not even stipulate for the preservation of her
own "_peculiar institution_." Virginia has not alone given to the nation
Washington, Jefferson, Madison, Monroe, Harrison, Clay, Henry, Marshall,
heroes, statesmen and Presidents, whose valor aided to win our
independence, and whose wisdom laid deep and broad the foundations of
our Union, but by her magnanimity she added to the Union six of its
noblest States, and from their citizens at least she should never hear
the cry that taunts her with slavery. Rather let that cry go forth from
puritan and abolition Massachusetts, as her sons read over her ancient
Quaker laws, or count up the nefarious gains their slave-trading fathers
made, while enjoying the twenty years lease of the African slave trade,
granted by the Federal Constitution. Ridicule as we may the family pride
or State pride of Virginia, or the sometimes Quixotic chivalry of her
sons, they have reason to be proud of their noble mother, for her great
names belong to American fame, and her history is our nation's glory. In
view of all the past, I hope that day may never come when Virginia shall
cease to be one of the Union as our fathers made it.
Over the territory thus acquired, the Congress of the Confederation had
adopted two systems of government; viz: the ordinance of April 23, 1784,
prepared by Thomas Jefferson, soon superseded by the more celebrated
ordinance of July 13, 1787, prepared by Nathan Dane of Massachusetts. In
its extent the first ordinance covered _all territory_ ceded or to be
ceded; the second ordinance covered only the territory north west of the
Ohio.
I shall not refer to the Jefferson ordinance of 1784, further than to
note these points concerning it.
First--It provided for temporary government, by which the people of the
territory might regulate their own internal affairs free from the
control of Congress; and,
Second--It did not prohibit slavery--a provision for that purpose having
been stricken out by the vote of Southern States. This ordinance was
superseded, as before stated, by that of July 13, 1787.
On the terms of this ordinance and its subsequent recognition under the
Constitution, rests much of the argument of the advocates of
Congressional intervention to prohibit slavery in the territories. This
ordinance, as you doubtless all know, forever prohibited slavery in all
the North west territory, but contained also the proviso for the
surrender of fugitive slaves. I ask you to note in regard to the
ordinance.
First--It applied only to territory acquired from Virginia north of the
Ohio, and it was unanimously adopted; and it was a sufficient legal and
moral ground for its recognition by the Congress after the adoption of
the Federal Constitution, that the ordinance, whether made with or
without authority, was in its terms a compact between _all the States_,
and was recognized by all the States as such by tacit assent, if not
express legislation. It was expressly so recognized by Virginia, Georgia
and North Carolina. Consent had cured the usurpation of the Congress, if
such it was, as Madison affirmed, and therefore, the ordinance, when the
Constitution took effect, was legally and constitutionally _an
engagement of the United States, under the Confederation_, binding upon
the Federal government by express provision of the sixth article of the
Constitution, declaring that "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." It was upon this legal ground, as well as upon the
ground that Indiana was not adapted to and did not need slave labor,
that Congress refused to allow the petitions of Indiana while a
territory, which petitions were approved by William Henry Harrison, for
a suspension for a term of years of the sixth article of the ordinance
of 1787, prohibiting slavery. It was a compact to which all the States
were parties, and by its express terms, could not be repealed or
suspended without their common consent.
Second--The prohibition of the ordinance, applied to territory
substantially free from slavery, and which it was well understood was
not adapted to slave labor. It raised no such question, as would have
been raised, if it had been applied to territory where slavery then
largely existed, or which was adapted to negro slave labor. It is,
therefore, no precedent for Congressional action in such a case. The
precedent of one case is not a rule of decision for another, unless the
two are substantially alike. This noble ordinance of 1787, then rather
affirmed a principle of freedom, than imposed a necessary practical
prohibition, for it may be well to know, that notwithstanding the
ordinance, there were as late as 1810, in Indiana, 237 slaves, and as
late as 1820, in Illinois, 917 slaves, but upon a soil fitted by nature
for the vigorous growth of freedom, African slavery, the tree of tropic
climes, could not grow, and it withered and died, as it had done before
in New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New
York, New Jersey and Pennsylvania.
In connexion with the ordinance of 1787, another point may be alluded to
here. In a very able speech made by Mr. Upham of Massachusetts, in
opposition to the Kansas and Nebraska bill in the House of
Representatives on 10th of May 1854, the point is made, that the
prohibition of slavery in the ordinance of 1787, and the provisions of
the Constitution regarding slavery, were the result of a bargain between
the North and the South, by which the North gained on one hand exclusion
of slavery from the North-west territory, and the right first to tax,
and after twenty years to prohibit the African slave trade, and the
South on the other hand gained the right to representation in slaves,
the right to continue to import them for twenty years, and the right
forever to reclaim fugitive slaves. According to this theory, the slave
representation, the reclamation of fugitive slaves, and the right to
twenty years of the African slave trade, were, to use Mr. Upham's
language "the equivalent paid by the free States to the Slave States, in
consideration of the abandonment by the Slave States of all claim to
extend their slavery beyond their own limits." It is undoubtedly true,
that the ordinance of 1787 and the Constitution were almost concurrent
acts, but the facts of history will not sustain Mr. Upham's assumption
of a bargain to the extent stated, yet it has sufficient basis to
warrant the point, that the ordinance of 1787 was a compact and a
compromise, and was never intended by the South as a concession of any
right or power in Congress arbitrarily to prohibit slavery in any
territory of the United States. It may be true that for their consent to
have slavery excluded from the North-west territory, the South received
an equivalent, but the exclusion and the equivalent applied only to the
North west territory, and as to all territory thereafter acquired, the
question remained the same as before the ordinance of 1787, and must
depend on the Constitution itself, unaffected by the precedent of the
ordinance. Let us consider the question under the Constitution.
It was resolved at the Republican Convention of 1856 in Philadelphia,
and I do not understand the Republican party of 1860 to have abandoned
the position, "That the Constitution of the United States confers upon
Congress sovereign power over the territories of the United States for
their government, and that in the exercise of this power, it is both
_the right_ and _the duty_ of Congress _to prohibit_ in the territories,
those twin relics of barbarism, polygamy and slavery."
This sweeping assertion of sovereign power in Congress over citizens of
the United States in territories, of course affirms that Congress can do
for the territories all or even more than a State government can do for
a State. Mr. John Pettit, late United States Senator from Indiana, has
made the broadest assertion of Congressional sovereignty, for he has
said and endeavored to prove that it is "_absolute, unconditional,
unlimited authority_"; such, in fact, as would enable the Federal
government to sell the citizens of the territories into slavery. Power
to do an act is one thing--a constitutional right to do it is another. I
do not concede Mr. Pettit's authority for Congressional sovereignty,
even though he be one of Mr. Buchanan's Judges in Nebraska, but it is
interesting to note, by way of parenthesis, how wonderfully Republican
doctrine on one extreme, and Buchanan or Breckinridge doctrine on the
other, work together to a common center, Congressional or Federal
government despotism.
It is vain to look for any express warrant for any such power in the
Constitution, except in the language of the 3d section of the 4th
article, declaring that--"_The Congress shall have power to dispose of
and make all needful rules and regulations respecting the territory or
other property of the United States_."
Assuming that this is a grant of power to govern the people of United
States territory, in the ordinary sense of sovereign legislative power,
such as that possessed by the States for example, this anomalous
conclusion would follow: that there are under the Constitution two
distinct systems of government--one a strictly defined and limited
Federal government over the States, with a right of representation in
the governed; another a municipal government, almost arbitrary in its
character over the citizens in the territories as mere colonists,
without any right of representation in the governed. There is no
foundation for this conclusion. When the Constitution was adopted, the
territories were recognized as incipient or inchoate States. It was with
reference to them that the power to admit new States was incorporated in
the Constitution. People migrating to those territories carried with
them the inherent rights of self-government and the guarantees of the
Constitution. The Constitution was intended for the territories as much
as for the States that made it. Congress has no power but what it
derives from the Constitution. If it can acquire territory and govern
it, it can do so only by virtue of and in accordance with the
Constitution. We cannot suppose that the framers of the Constitution, or
the people of the States who spake through it, looking as many of them
did, to the fair lands of the west, as their own future homes and the
homes of brothers and children, where fortunes broken in the
revolutionary struggle might be retrieved, would impose on themselves or
those brothers and children a colonial bondage to the Federal
government, worse than that from which they had just escaped. Jealousy
of the power of the Federal government, as already shown, had been the
great drawback to the confederacy and to the formation of the
Constitution, and had carefully guarded in the Constitution the rights
of the States as to all matters of internal sovereignty, and it must be
so construed as equally to guard the rights of the people of the
territories or inchoate States, or the Constitution becomes incongruous
and inconsistent. Power of exclusive legislation was conferred on
Congress, as to certain defined localities acquired for specific
purposes, such as a seat of government, arsenals, &c., all other powers
of legislation were Federal, not municipal--powers to govern the States
or their people for national or Federal purposes, not powers to govern
the people in the States for internal or domestic purposes. This
reasonable view of the Constitution forces the conclusion that we must
regard the power to make rules and regulations as to the territory and
other property of the United States, as relating solely to the
protection and disposal of the public territory as land or property, and
we must therefore find the power to govern the territories involved or
implied, as it doubtless is in the power to admit new States. The end of
acquiring territory is the formation of States, and the powers of
territorial government, so far as power was conferred upon Congress,
must have had reference to that end. Therefore it is, that the duty and
the function of Congress are alike filled in the civil government of a
territory, when the Congress shall have defined a mode or an
organization by which the citizens in a territory shall be able to
exercise their inherent right of self-government in accordance with the
principles of the Constitution. No man pretends that Congress has any
power of legislation over the internal or domestic affairs of a
sovereign State. All matters of internal sovereignty are left to the
people of such State, and there is no reason to be found in the
Constitution or in the nature of the case, why Congress should have any
greater power over the internal or domestic concerns of citizens in a
territory than it has over those of citizens in a State. It is not true
that the territories are outside of the Constitution, and become
entitled to it and its sacred bill of rights by grace of an act of
Congress. That is, indeed, strange doctrine to apply to an American
citizen standing on his own territorial soil, which Congress had no
right to acquire or govern at all, except by virtue of the Constitution,
and it assumes too much, for this reason: All power not granted to
Congress is reserved to the States or the people; and if the territories
are not under the Constitution, there is no right in Congress to govern
them at all, and that right rests in the States or the people who settle
the territories. On the contrary, if the territories be under the
Constitution, then must they be governed according to its principles and
bill of rights, and not arbitrarily, and all powers of government over
them not granted to Congress are in the people of the territories
themselves. Powers of municipal legislation as to internal affairs, as
already stated, are not granted, therefore are they in the people. If
this doctrine of arbitrary Congressional sovereignty be correct, then
have citizens in the territories no constitutional rights, and no
franchise except at Congressional discretion--they may be put and kept
under martial law as long as Congress pleases, and this without respect
to population--they may be sold into slavery according to John
Pettit--and this system of military provincial government may be kept up
so long as the Federal government can control an army to carry it out.
Does any man believe there is any constitutional right in Congress to do
any such thing? The statement of the proposition is its best refutation.
How much more logical and consistent then, is it to refer the powers of
Congress to legislate for the territories, to the end of all legislation
either for acquiring or governing territory, viz: the formation of
States, equal in sovereignty on all questions to the original States. If
then, the question of domestic slavery be a local question to be decided
by the people of the States as they see fit, and such the whole theory
of the Constitution assumes it to be, it is equally a local question to
be decided by the people of the territories as they see fit. If the
people of a territory when they come to form a State Constitution, are
competent and have the right to decide the slavery question for
themselves, as all concede to be the case, then there is no argument
consistent with the principle on which our institutions are based, of
any avail to show, that the same territorial people have not equal right
and capacity under a territorial government, and before they form a
State Constitution, to decide the question of slavery for themselves by
local legislation. If the people of a territory are competent to make a
Constitution without the assent of Congress, for a stronger reason they
are competent to make a law below the dignity of a Constitution. It will
not do for any man to contend that mere change of residence from a State
to a territory, so changes the moral and intellectual character of the
man, as to unfit him for the exercise of self-government, or the high
duties of founder of a State. The experience of the nation disproves
this position. Some of the strongest and best minds known to American
history have grown up on the frontier and among the hardships of border
life. High mental cultivation or the refinements and elegancies of
social life are not necessary to the founders of States. Heroic and
manly virtues, and intellectual powers, are often developed amid the
trials which beset the emigrant and the pioneer. Like the oak which
takes deeper root from the rockings of the storm, true manhood enlarges
and strengthens itself by the conflict with adversity and privation.
History records the obligations Ohio and Kentucky owe to Daniel Boone
and Simon Kenton. Beneath the leathern hunting shirts of those bold
pioneers beat the hearts of heroes. They were types of many squatter
sovereigns known to history, and of many more
"Illustrious masters of a name unknown."
In the territory of Indiana, William Henry Harrison and Zachary Taylor,
two of the Presidents of the United States, laid in early manhood the
basis of character that has made them famous. If you would know of what
material squatter sovereigns are made, look over the territorial history
of the North-west. Look to the early history of Ohio, Indiana and
Illinois. Of one of these squatter sovereigns, Manasseh Cutler, of
Hamilton, Massachusetts, it has been said, "Beneath the shelter of the
covered wagon in which he started from his village home in Massachusetts
to found Marietta, the imperial State of Ohio was wrapped up. He was
truly a philosopher and a patriarch. He was more than a statesman--he
was the founder of a State."
What says Judge Burnett, of Cincinnati, himself a squatter sovereign, of
the first territorial legislature of the North-west territory? He says:
"In choosing members to the first Territorial Legislature, the people in
almost every instance, selected their strongest and best men in their
respective counties. Party influence was scarcely felt; and it may be
said with confidence, that no legislature has been chosen under the
State government which contained a larger proportion of aged,
intelligent men, than were found in that body. Many of them, it is true,
were unacquainted with the forms and practical duties of legislation;
but they were strong-minded, sensible men, acquainted with the condition
and wants of the country, and could form correct opinions of the
operation of any measure proposed for their consideration." He further
adds, "several members of that assembly were men of the first order of
talents; and, with scarcely an exception, they would all be now
estimated as well qualified for State legislation." Away then with the
idea that there are not in the manly form, the courageous and generous
heart, the clear and self-reliant, though, perhaps, untutored mind of
the pioneer of the forest and prairie, "native countryman," though he
may be, equally with "the exile from foreign lands," or the residents of
towns and cities, the inherent right of self-government, and the
elements that lay broad and deep the foundations of free and sovereign
States! As for me, I had rather trust the interests of American liberty
and the destiny of American institutions to the keeping of the men, who
in the encounter of hardships that make men heroes, have opened in the
wilderness the pathway of civilization, and made its waste places to
blossom like the rose, than to trust these priceless treasures to the
keeping of many of the merchant princes of our eastern cities, whose
warehouses and whose homes are palaces, "whose ledger is their Bible and
whose gold is their God"; or to the still worse keeping of such Federal
administrations as that of James Buchanan--a man in whose veins,
according to his own boast, never flowed a drop of democratic blood.
It is not to such men I would commit the welfare of the territories of
the United States. Rather let freeborn white men govern them _in their
own way_, unawed by Federal armies sustaining Lecompton Constitutions,
and I have no fear of the domestic institutions that will be formed in
the territories, nor any fears for the Union and the Constitution.
To sum up what I have said on this part of my argument, the proposition
is simply this: The Constitution, considered as a whole, and interpreted
as it should be, as the act of a moral person, made for great moral and
political ends, and not by the mere technical rules which lawyers or
impracticable theorists would apply to it, requires that the people of a
territory or inchoate State of the United States, preparatory to their
admission to the rank of a full grown State within the Union, shall have
as full power, through a legislature of their own choosing, to deal with
the subject of domestic slavery, and with other subjects of domestic
concern, as is possessed by the people of States in the Union. In other
words, I say, that whatever may be the right and duty of Congress under
the Constitution to guard and protect the territories from internal or
foreign violence, and to maintain their allegiance to the Union, it is
neither the right nor duty of Congress, under the Constitution, to
interfere with the question of slavery or any other domestic question,
so long as the people of the territories are faithful to their
allegiance to the Constitution and the Federal Republic.
I now proceed to state and confirm by brief historic evidence a
proposition already implied in what I have said upon the compromise
character of the Constitution and the ordinance of 1787. It is this: The
action of the Federal government on the subject of slavery has been
essentially compromise action. It recognizes the principle of the
co-existence and extension of Free States and Slave States, under and
within the confederacy, leaving the ultimate of the question of
abolition or extension, not with the Congress, but with the people of
the several States. Congress has never rightfully taken sides on this
question; for while on the one hand slavery has been forbidden in some
territories, it has been permitted in others. Slave territory and free
territory have alike been acquired by treaty, and Slave States and Free
States alike admitted to the Union. The action of Congress is therefore
no precedent for absolute slavery prohibition or indefinite slavery
extension. Having never been exercised but by way of compromise it
commits the government to neither extreme and is not a conclusive
precedent for the constitutional power of Congress over the subject.