slavery should deny the power of Congress to legislate on the subject
of slavery in the territories? If Congress has no such power, by
what right can a master recapture a fugitive slave escaping into a
territory? The constitution says, “No person held to service, or
labor, in one _state_, escaping into another,”--that is, another
_state_,--“shall be discharged from such service, or labor,” &c. The
act of 1793, chapter 7, § 3, provides that when a person held to labor,
&c., “shall escape into any other of the said states, _or territory_,”
he may be taken. By what other law than this can a runaway slave be
retaken _in a territory_? If Congress has no power to legislate on the
subject of slavery in any territory, then, surely, it cannot legislate
for the capture of a fugitive slave in a territory. The argument cuts
both ways. The knife wounds him who would use it to wound his fellow.
Further than this. If slavery is claimed to be one of the common
subjects of legislation, then any legislation by Congress for the
territories, on any of the common subjects of legislation, is a
precedent, going to prove its right to legislate on slavery itself. If
Congress may legislate on one subject belonging to a class, then it
may legislate on any other subject belonging to the same class. Now,
Congress has legislated for the territories on almost the whole circle
of subjects belonging to common legislation. It has legislated on the
elective franchise, on the pecuniary qualifications and residence of
candidates for office, on the militia, on oaths, on the _per diem_
and mileage of members, &c., &c. By statute 1811, chapter 21, § 3,
authorizing the Territory of Orleans to form a constitution, it was
provided that all legislative proceedings and judicial records should
be kept and promulgated in the English language. Cannot Congress make
provision for the rights of the people, as well as for the language in
which the laws and records defining those rights shall be expressed?
Any language is sweet to the ears of man which gives him the right of
trial by jury, of habeas corpus, of religious freedom, and of life,
limb, and liberty; but accursed is that language, and fit only for
the realms below, which deprives an immortal being of the rights of
intelligence and of freedom; of the right to himself, and the dearer
rights of family.
But all this is by no means the strongest part of the evidence with
which our statutes and judicial decisions abound, showing the power of
Congress to legislate over territories. From the beginning, Congress
has not only legislated over the territories, but it has appointed and
controlled the agents of legislation.
The general structure of the legislature in several of the earlier
territorial governments was this: It consisted of a governor and of two
houses,--an upper and a lower. Without an exception, where a governor
has been appointed, Congress has always reserved his appointment to
itself, or to the President. The governor so appointed has always had
a veto power over the two houses; and Congress has always reserved to
itself, or to the President, a veto power, not only over him, but over
him and both the houses besides. Congress has often interfered also
with the appointment of the upper house, leaving only the lower house
to be chosen exclusively by the people of the territory; and it has
determined even for the lower house the qualifications both of electors
and of elected. Further still: the power of removing the governor, at
pleasure, has always been reserved to Congress, or to the President.
Look at this: Congress determines for the territory the qualifications
of electors and elected,--at least in the first instance. No law of
the territorial legislature is valid until approved by the governor.
Though approved by the governor, it may be annulled by Congress, or
by the President; and the governor is appointed, and may be removed at
pleasure, by Congress or by the President.
To be more specific, I give the following outline of some of the
territorial governments:--
_Ohio Territory, statute 1789, chapter 8._--A governor for four years,
nominated by the President, approved by the Senate, with power to
appoint all subordinate civil and military officers.
A secretary for four years, appointed in the same way.
Three judges, to hold office during good behavior. Governor and judges
the sole legislature, until the district shall contain five thousand
free male inhabitants. Then,--
A House of Assembly, chosen by qualified electors, for two years.
A legislative council of five, to hold office for five years. The House
of Assembly to choose ten men, five of whom are to be selected by the
President and approved by the Senate. These five to be the “Legislative
Council.”
A governor, as before, with an unconditional veto, and a right to
convene, prorogue, and dissolve the Assembly.
Power given to the President to revoke the commissions of governor and
secretary.
_Indiana Territory, statute 1800, chapter 41._--Similar to that of
Ohio. At first, the lower house to consist of not more than nine, nor
less than seven.
_Mississippi Territory, statute 1800, chapter 50._--Similar to that of
Indiana.
_Michigan Territory, statute 1805, chapter 5._--Similar to that of
Indiana.
_Illinois Territory, statute 1809, chapter 13._--Similar to that of
Indiana.
_Alabama Territory, statute 1817, chapter 59._--Similar to that of
Indiana.
_Wisconsin Territory, statute 1836, chapter 54._--Governor for three
years, appointed as above, and removable by the President, with power
to appoint officers and grant pardons. Unconditional veto.
Secretary for four years, removable by the President. In the absence,
or during the inability, of the governor, to perform his duties.
Legislative Assembly to consist of a Council and a House of
Representatives, to be chosen for two years. Congress to have an
unconditional veto, to be exercised on laws approved by the governor.
_Louisiana Territory, statute 1803, chapter 1._--Sole dictatorial power
given to the President of the United States; and the army and navy
of the United States placed at his command to govern the territorial
inhabitants.--(This was under Mr. Jefferson, a strict constructionist.)
_Territory of Orleans, statute 1804, chapter 38._--Governor nominated
by the President, approved by the Senate, tenure of office three years.
Removable by the President. Secretary for four years, to be governor in
case, &c.
Legislative Council of thirteen, to be annually appointed by the
President.
Governor and Council, of course, a reciprocal negative on each other.
Congress an unconditional veto on both.
_District of Louisiana, statute 1804, chapter 38._--To be governed by
the governor and judges of the Territory of Indiana.
Congress an unconditional veto on all their laws.
_Missouri Territory, statute 1812, chapter 95._--A governor,
appointable and removable as above.
Secretary, the same.
A Legislative Council of nine. Eighteen persons to be nominated by
the House of Representatives for the territory; nine of these to
be selected and appointed by the President and Senate. A House of
Representatives, to be chosen by the people.
_Arkansas Territory, statute 1819, chapter 49._--A governor and
secretary, appointable and removable as above.
All legislative power vested in the governor and in the judges of the
superior court.
When a majority of the _freeholders_ should elect, then they might
adopt the form of government of Missouri.
_East and West Florida, statute 1819, chapter 93.--Statute 1821,
chapter 29.--Statute 1822, chapter 13._ From March 3, 1819, to March
30, 1822, the government vested solely in the President of the United
States, and to be exercised by such officers as he should appoint.
After March 30, 1822, a governor and secretary, appointable and
removable as above.
All legislative power vested in the governor, and in thirteen persons,
called a legislative council, to be appointed annually by the President.
Yet, sir, notwithstanding all this legislation of Congress for the
territories, on the subject of slavery itself; notwithstanding
its legislation on a great class of subjects of which slavery is
acknowledged to be one; notwithstanding its appointment, in some
cases, of the legislative power of the territory,--making its own
agent, the governor, removable at pleasure,--giving him a veto, in
the first place, and reserving to itself a veto when he has approved;
notwithstanding the exercise, in other cases, of full, absolute
sovereignty over the inhabitants of the territories, and all their
interests; and, notwithstanding such has been the practice of the
government for sixty years, under Jefferson, Madison, Monroe, Jackson,
and others, it is now denied that Congress has any right to legislate
on the subject of slavery in the territories. Sir, with a class of
politicians in this country, it has come to this, that slavery is the
only sacred thing in existence. It is self-existent, like a god, and
human power cannot prevent it. From year to year, it goes on conquering
and to conquer, and human power cannot dethrone it.
Sir, I will present another argument on this subject, and I do not see
how any jurist or statesman can invalidate it.
Government is one, but its functions are several. They are legislative,
judicial, executive. These functions are coördinate; each supposes the
other two. There must be a legislature to enact laws; there must be a
judiciary to expound the laws enacted, and point out the individuals
against whom they are to be enforced; there must be an executive arm
to enforce the decisions of the courts. In every theory of government,
where one of these exist, the others exist. Under our constitution they
are divided into three parts, and apportioned among three coördinate
bodies. Whoever denies one of these must deny them all.
If the government of the United States, therefore, has no right to
_legislate_ for the territories, it has no right to _adjudicate_ for
the territories; if it has no right to _adjudicate_, then it has no
right to _enforce_ the decisions of the judicial tribunals. These
rights must stand or fall together. He who takes from this government
the law-making power, in regard to territories, strikes also the
balances of justice from the hands of the judge, and the mace of
authority from those of the executive. There is no escape from this
conclusion. The constitution gives no more authority to adjudge suits
in the territories, or to execute the decisions of the territorial
courts, than it does to legislate. If Congress has no power over
territory, only _as land_, then what does this land want of judges
and marshals? Is it not obvious, then, that this new reading of the
constitution sets aside the whole legislative, judicial, and executive
administration of this government over territories, since the adoption
of the constitution? It makes the whole of it invalid. The Presidents,
all members of Congress, all judges upon the bench, have been in a
dream for the last sixty years, and are now waked up and recalled
to their senses by the charm of a newly-discovered reading of the
constitution.
Hitherto, sir, I have not directed my remarks to the actual legislation
by Congress on the subject of slavery in the North-western Territory,
so called. That territory was consecrated to freedom by the ordinance
of 1787. It has been said that the _Confederation_ had no power to
pass such an ordinance. But whether this be so or not, is immaterial,
for _Congress_ has ratified the ordinance again and again. The first
Congress at its first session passed an act whose preamble is as
follows: “Whereas, in order that the ordinance of the United States, in
Congress assembled, for the government of the territory north-west of
the river Ohio, may continue to have full effect,” &c. It then proceeds
to modify some parts of the ordinance, and to adopt all the rest.[1]
In the second section of the act of 1800, chapter 41, establishing the
Indiana Territory, it is expressly provided that its government shall
be “in all respects similar to that provided by the ordinance of 1787.”
In the act of 1802, chapter 40, section 5, authorizing Ohio to form
a constitution and state government, this ordinance of 1787 is three
times referred to as a valid and existing engagement, and it has always
been held to be so by the courts of Ohio.
So in the act of 1816, chapter 57, section 4, authorizing the erection
of Indiana into a state, the ordinance is again recognized, and is made
a part of the fundamental law of the state.
So in the act of 1818, chapter 67, section 4, authorizing Illinois to
become a state.
So in the act of 1805, chapter 5, section 2, establishing the Territory
of Michigan.
So of Wisconsin. See act of 1847, chapter 53, in connection with the
constitution of Wisconsin.
But all this is tedious and superfluous. I have gone into this detail,
because I understand the gentleman from Virginia [Mr. BAYLY] to have
denied this adoption and these recognitions of the ordinance. I hazard
nothing in saying that the ordinance of 1787 has been expressly
referred to as valid, or expressly or impliedly reënacted, a dozen
times, by the Congress of the United States; and, in the state courts
of Ohio, Illinois, Louisiana, Mississippi, and Missouri, it has been
adjudged to be constitutional. How, then, is it possible for any mind,
amenable to legal rules for the decision of legal questions, to say
that Congress cannot legislate, or has not legislated, (except once or
twice inadvertently,) on the subject of slavery in the territories?
On this part of the argument, I have only a concluding remark to
submit. The position I am contesting affirms generally that Congress
cannot legislate upon the subject of slavery in the territories.
The _inexpediency_ of so legislating is further advocated on the
ground that it is repugnant to democratical principles to debar the
inhabitants of the territories from governing themselves. Must the free
men of the territories, it is asked, have laws made for them by others?
No! It is anti-democratic, monarchical, intolerable. All men have the
right of self-government; and this principle holds true with regard to
the inhabitants of territories, as well as the inhabitants of states.
Now, if these declarations were a sincere and honest affirmation of
human rights, I should respect them and honor their authors. Did
this doctrine grow out of a jealousy for the rights of man, a fear
of usurpation, an assertion of the principle of self-government, I
should sympathize with it, while I denied its legality. But, sir, it
is the most painful aspect of this whole case, that the very object
and purpose of claiming these ample and sovereign rights for the
inhabitants of the territories is, that they may deny _all_ rights to
a portion of their fellow-beings within them. Enlarge, aggrandize, the
rights of the territorial settlers! And why? Because, by so doing, you
enable them to abolish all rights for a whole class of human beings.
This claim, then, is not made for the purpose of making freemen more
free, but for making slaves more enslaved. The reason for denying to
Congress the power to legislate for the territories, is the fear that
Congress will prevent slavery in them. The reason for claiming the
supreme right of legislation for the territorial inhabitants, is the
hope that they will establish slavery within their borders. Must not
that democracy be false which begets slavery as its natural offspring?
* * * * *
If it has now been demonstrated that Congress has uniformly legislated,
and can legislate, on the subject of slavery in the territories, I
proceed to consider the next question. _Is it expedient to exclude
slavery from them?_
Here, on the threshold, we are confronted with the claim that the gates
shall be thrown wide open to the admission of slavery into the broad
western world; because, otherwise, the southern or slave states would
be debarred from enjoying their share of the common property of the
Union.
I meet this claim with a counter-claim. If, on the one hand, the
consecration of this soil to freedom will exclude the slaveholders of
the south, it is just as true, on the other hand, that the desecration
of it to slavery will exclude the freemen of the north. We, at the
north, know too well the foundations of worldly prosperity and
happiness; we know too well the sources of social and moral welfare,
ever voluntarily to blend our fortunes with those of a community
where slavery is tolerated. If our demand for free territory, then,
excludes them, their demand for slave territory excludes us. Not one
in five hundred of the freemen of the north could ever be induced to
take his family and domicile himself in a territory where slavery
exists. They know that the institution would impoverish their estate,
demoralize their children, and harrow their own consciences with an
ever-present sense of guilt, until those consciences, by force of habit
and induration, should pass into that callous and more deplorable
state, where continuous crime could be committed without the feeling of
remorse.
Sir, let me read a passage from Dr. Channing, written in 1798,--fifty
years ago,--when, at the early age of nineteen, he lived for some time
in Richmond, Virginia, as a tutor in a private family. While there, he
wrote a letter, of which the following is an extract:--
“There is one object here which always depresses me. It is _slavery_.
This alone would prevent me from ever settling in Virginia. Language
cannot express my detestation of it. Master and slave! Nature never
made such a distinction, or established such a relation. Man, when
forced to substitute the will of another for his own, ceases to be a
moral agent; his title to the name of man is extinguished; he becomes
a mere machine in the hands of his oppressor. No empire is so valuable
as the empire of one’s self. No right is so inseparable from humanity,
and so necessary to the improvement of our species, as the right of
exerting the powers which nature has given us in the pursuit of any
and of every good which we can obtain without doing injury to others.
Should you desire it, I will give you some idea of the situation and
character of the negroes in Virginia. It is a subject so degrading to
humanity, that I cannot dwell on it with pleasure. I should be obliged
to show you every vice, heightened by every meanness, and added to
every misery. The influence of slavery on the whites is almost as
fatal as on the blacks themselves.”
This was written fifty years ago, by a young man from New England,
only nineteen years old. I know that, on all subjects of philanthropy
and ethics, Dr. Channing was half a century in advance of his age.
But the sentiments he expressed on this subject, at the close of the
last century, are now the prevalent, deep-seated feelings of northern
men, excepting, perhaps, a few cases where these feelings have been
corrupted by interest.
I repeat, then, that the north cannot shut out the south from the new
territories by a law for excluding slavery, more effectually than the
south will shut out the north by the fact of introducing slavery. Even
admitting, then, that the _law_ is equal for both north and south, I
will show that all the _equity_ is on the side of the north.
Sir, from the establishment of our independence by the treaty of
1783 to the time of the adoption of the constitution, and for years
afterwards, no trace is to be found of an intention to enlarge the
bounds of our republic; and it is well known that the treaty of 1803,
for acquiring Louisiana, was acknowledged by Mr. Jefferson, who made
it, to be unconstitutional. In 1787, the Magna Charta of perpetual
freedom was secured to the North-west Territory. But the article
excluding slavery from it had an earlier date than 1787. On the 1st
of March, 1784, Congress voted to accept a session from the state of
Virginia of her claim to the territory north-west of the Ohio river.
The subject of providing a government for this and other territory
was referred to a committee consisting of Mr. Jefferson, Mr. Chase
of Maryland, and Mr. Howell of Rhode Island. On the 19th of April,
1784, their report was considered. That report contained the following
ever-memorable clause:--
“That after the year 1800, of the Christian era, there shall be
neither slavery nor involuntary servitude in any of the said states,
[they were spoken of as states, because it was always contemplated
to erect the territories into states,] otherwise than in punishment
of crimes whereof the party shall have been convicted to have been
personally guilty.”
Sir, we hear much said in our day of the Wilmot proviso against
slavery. In former years, great credit has been given to Mr. Nathan
Dane, of Massachusetts, for originating the sixth article, (against
slavery), in the ordinance of 1787. Sir, it is a misnomer to call this
restrictive clause the “Wilmot proviso.” It is the _Jefferson proviso_,
and Mr. Jefferson should have the honor of it; and would to Heaven that
our southern friends, who kneel so devoutly at his shrine, could be
animated by that lofty spirit of freedom, that love for the rights of
man, which alone can make their acts of devotion sacred.
But what is most material to be observed here is, that the plan of
government reported by Mr. Jefferson, and acted upon by the Congress at
that time, embraced all the “western territory.” It embraced all the
“territory ceded, or _to be ceded_, by individual states to the United
States.”--See _Journals of Congress, April 23, 1784_. If, then, we
leave out Kentucky and Tennessee, as being parts of Virginia and North
Carolina, all the residue of the territory north _or south_ of the Ohio
river, within the treaty limits of the United States, was intended,
by the “Jefferson proviso,” to be rescued from the doom of slavery.
For that proviso there were sixteen votes, and only seven against it.
Yet so singularly were these seven votes distributed, and so large
a majority of the states did it require to pass an act, that it was
lost. The whole of the representation from seven states voted for it
unanimously. Only two states voted unanimously against it. Had but one
of Mr. Jefferson’s colleagues voted with him, and had Mr. Spaight, of
North Carolina, voted for it, the restrictive clause in the report
would have stood. But a minority of seven from the slaveholding states
controlled a majority of sixteen from the free states,--ominous even at
that early day of a fate that has now relentlessly pursued us for sixty
years.
That vote was certainly no more than a fair representation of the
feeling of the country against slavery at that time. It was with such
a feeling that the “compromises of the constitution,” as they are
called, were entered into. Nobody dreaded or dreamed of the extension
of slavery beyond its then existing limits. Yet, behold its aggressive
march! Besides Kentucky and Tennessee, which I omit, for reasons
before intimated, seven new slave states have been added to the
Union,--Mississippi, Alabama, Missouri, Arkansas, Louisiana, Florida,
and Texas,--the last five out of territory not belonging to us at the
adoption of the constitution; while only one free state, Iowa, has been
added during all this time, out of such newly-acquired territory.[2]
But there is another fact, which shows that the slaveholders have
already had their full share of territory, however wide the boundaries
of this country may hereafter become.
I have seen the number of _actual slaveholders_ variously estimated;
but the highest estimate I have ever seen is _three hundred thousand_.
Allowing six persons to a family, this number would represent a white
population of eighteen hundred thousand.
Mr. GAYLE, of Alabama, interrupted and said: If the gentleman from
Massachusetts has been informed that the number of slaveholders is only
300,000, then I will tell him his information is utterly false.
Mr. MANN. Will the gentleman tell me how many there are?
Mr. GAYLE. Ten times as many.
Mr. MANN. Ten times as many! Ten times 300,000 is 3,000,000; and
allowing six persons to each family, this would give a population of
18,000,000 directly connected with slaveholding; while the whole free
population of the south, in 1840, was considerably less than five
millions!