It is plain from these provisions--

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.

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