f-'. f % ^
je ■ i? ' > ■ f-' T\ f
^. '0
' 1^' Jfe. 'P._ w.^ f'
• 'V
» >< ^" > J^
■ - - - "^ ' ^ f. p > r
.»■ >
/•. J»
«■ »!' «■ > »
»; s K- >; »■" »" «» 5»'.-''".
V t »
.»' ». M
„/"i'%:-y >.'VK>.>=^
' fi' ft jB' * ft » #■. ^V.
jt |( i^ »■ ■ W *-' .■»■ . -. . * . ■»-- .^ •
. fe ^ H 1 1^- «»...,. ^' ^ !»• ii^ '^ h I
V' ^' ^' i^ V > '^
* > ->. ♦, >, >, ^^- V. k * \4 *>■ ^* V^' ^' ^'^
• ^^^' * ^ ir > <i. >.
»• u' j>. .*; ,»■ *■: >^. ?■■ 1 V I ^ .1 * * .«. >.
^ ¥:' *■ 4. «. .■
/" . »^ ^ «
■ ■ n' #' :Vb h- 1^
^ 1^.
1 - » t . t
SLAVERY IN THE TERRITORIES.
SPEECH
OF ,
HON. T. H. BAYLY, OF YIRGINIA,
IN THE HOUSE OP REPRESENTATIVES, MAY 16, 1848,
in Committee of the Whole on the state of the Union on the Bill making appropriation for the payment of navy pensions for the year ending 30th June, 1849.
Mr. BAYLY took the floor, and spoke as fol- lows:
I believe, Mr. Chairman, I have never before availed myself of the latitude of debate allowed in CorRmittee of the Whole, to discuss subjects not immediately under consideration. But it will be recollected that several speeches have been deliv- ered— doubtless designed to influence opinion out of this House — defending the power of Congress to prohibit slavery in the Territories of the United States, and also the expediency of its exercise. These speeches have not as yet been met. It is , important they should be; and this is my apology for entering upon the discussion now. And in doing so, I shall be compelled, however reluctantly, to repeat, to some extent, views which I had the honor to present at the last session of Congress.
I wholly deny the power of Congress to legislate for the Territories in respect to their domestic af- fairs. Sir, this Government is one of delegated powers; and all powers not delegated in the Cgn- stiiution, by the very terms of that instrument, are reserved to the States and the people. The Con- gress has no more authority to exercise a power not delegated, than it has one absolutely prohibited. This Government possesses no sovereignty. It is true, the States have delegated to it the exercise of certain sovereign powers; but the sovereignty itself is in the people, and is inalienable. This Govern- ment has no innate powers. Its powers are all ■derivative. These positions will not be disputed by any one who understands the first principles of the republican faith. Bearing them in mind, I ask, in what clause of the Constitution do you find the power to legislate at all, much less to adopt irrevocable legislation relative to the internal affairs of th-e Territories which wenov/hold,or may here- after acquire? Mark, I do not ask for the power to propose forms of government to the Territories, but for the power to legislate for them in respect to their domestic aflfairs. I do not concede the first; but it is not necessary for my argument that I should dispute it. I know it has been exercised from the foundation of the Government; and some very sound republicans have regarded it as fairly an incident to the power of acquiring territory. This is not satisfactory to me. I have great doubts
Printed at tUe Congressional Globe Office.
about our power to establish for th& Territories even temporary governments, and these doubts are strengthened by the proceedings of the Con- vention which framed the Constitution. On the 18th of Augu.st, Mr. Madison submitted, in order to be referred to the committee of detail, among others, the following power, as proper to be added to those of the general legislature:
"To dispose of the unappropriated lands of the United States.
"To institute temporary governments for the new States arising therein."
The first branch of this proposition was virtually adopted. What became of the second ? It shared the fate of the proposition to confer upon Congress the power to grant charters of incorporation, to establish a university, and to construct canals, &c. The Convention refused to confer thepower con- tained in it. In the only Territories which we then possessed, a temporary government already exist- ed, and the Convention was willing to leave it to the people of the Territory themselves to make such alteration.' as might become necessary. I am very much inclined to the opinion, that the only legitimate authority which the territorial gov- ernments possess over the people — I speak of the people at large, and not the officers of the territorial governments — is derived, not from the action of Congress, but the acquiescence by the people of the territories in them. tVe have performed the part of another Locke, and proposed constitutions in which the people of the Territories have acqui- esced ; but they have derived their sanction rather from the last proceeding than the first. Be this, however, as it may, I say the power of legislation is a very different thing.
This is no fanciful distinction. It is one which is very clear to my mind, and was familiar to the framers of our Constitution.
A constitution is that by which the powers of government are prescribed and limited; a law, by which the conduct of individuals is regulated and controlled. A constitution is a rule of action to the officers and the different departments of the gov- ernment; a law, the rule of action to the commu- nity at large. No matter from what source aeon- . stitution proceeds, all those who take and hold;
office under it, are bound by it aa long as ihey do so. ll 18 iheir commission. By acct-ptin^ office under it, lliey luivc consented to be bound by its provisions. And not only may pubbc otRceis be- come bound in takin;^ otfice undent by a constitu- tion which haa been propo.sed to tiieni by others, but a whole community may assent to it by com- plyinjj with its forms. But very ditFerent is the condition of the people at lar^e witli respect to laws. 1 know of no way by wliicli a community can assent to a law, except in its recognition or enactment l)y a legislative body comjiosed of their representatives. A constitution id ilie J'onnof ac- tion; legislation is action iisclf. The one is the means; the other the result.
This is a distinction familiar in our history. Our forefatlttrs never objected to the British King granting to the colonies charters containing forms of government; and they never were regarded as acts of legislation, which could only be instituted by Parliament. They were resii iclioiis on the gov-
• ernment, voluntarily iiii|iosed by the ijovcrnmenl itself, for th£ benefit of the Colonics. B'ut they al- ways denied the right of the mother country to legislate in reference to the domestic atTairs of the colonies. These charters were little else than con- stitutions, in our familiar political sense of the term, and in many instances were acquiesced in by the people long after the British authority was expelled; — indeed, in one case, until within a very late period. In others, they were ciianged in a short perioij after the declaration of independence, either at the instance of the colonies themselves, or in obedience to the recommendation of the Con- lincntal Congress; but generally by conventions, having-no direct authority to do so. And in con- sequence, ut one time the validity of lliose consti- tutions was very much questioned.. This was particularly the case in Virginia. The convention that framed^lier late constitution convened without any sanction of law; and it was not deputed by the people with express reference to the formation of a constitution. The result was, that its author- ity was quesiioned. But it was ntuintaiiied "that the people had refceived it as a constitution. The magistrates and officers, down to a constable, had been appointed under it. The peoole had felt its operatum and acquiesced; and it is confessedly Iheirassent which gives validity to aconstitution. These views prevailed, and the constitution, thus indirectly receiving the sanction of the people, en- dured for more than hcdf a century; and even afker such a lapse of time, many of our people were un- willing to change it J'or any other. In my view of the case, the territorial governments which we have cstaljlished have derived their sanction from the same source.
' l.recur to the question I just now asked : In what clause of the Constitution do you tiiid the power of Congress to legislate fur the territories relative to their domestic affairs ?
The clause from which the power in Congress to legislati; for the territories is most usually do- <riveii, by ilio.se who contend for it, is the 2d clause of the 3J section of the 4th article, wliich is in ihetie words:
•' TUr Cxiijrrsrf >\\M have power to disponirof, and ninke all nefdiul lulc-* arnl rt^^'ulHtioiw rt?i>(>i'<liii:f, Ike territory or
■ (UiT jiTJpcrty belonging lo Uie United Slates."
Now, it is perfectly evident, from the language
itself that the authority given is over the territory as property. The term "territory'' is here used in a very common sense, as synonymous with land; anu it is concerning this, when it belongs to- the United States, about which Congress may " make all needful rules and regulations." And it may, without douitt, under the authority given, pass such laws concerning the public lands situate in the territories as to it may seem needful. But surely this clause confers no power upon Congresa to make rules and regulations concerning ;)f;-so»ij in the territories or their private property. It is only concerning " the territory or other property hdongln-^ to the United States," that we can make rules and regulations.
When the Convention whicli framed the Consli- itution designed to confer powers of legislation, rl used ap[)ropriate lany;uage to convey its mCEUiing, and language very diHerenl from that of the clause under consideration. And here permit me to re- mark, before I refer to the clause in which this is done, that the Constitution is as remarkaljle f >r i'.s literary execution as for the great political wisdom imbodied in it. There are no useless phrases; there is no tautology; there is no looseness of e.x- pres.''ion. The precise lerir;, appropriate to con- vey the idea desi<rned to be conveyed, is always u.sed. Those who have studied the debates of the Convention must have been struck with the care and minuteness with whigh the exact meaning of every word and term was criiici.sed. There is no instance where, when different phraseology is used, it is not designed to convey different meanings. When the Convention designed to confer upon Congress the power of legislation, they did not use ambiguous and doubtful expressions, but such as « are precisely a|)propriate to ex|)ies5 the idea. Tiiis is done in the section in which the autliority is con- ferred ufion Congress " to exercise exclusive legis- ' lation in all cases whatever, oversuch district (not ' exceeding ten miles square) as may by cession of ' particular States, and the acceptance of Congress, ' become the seat of Government of the United ' States ; and to exercise like authority over all ' places purchased by the consent of the legislature ' of the State in which the sanie a\\a\\ be, for ' the erection of forts, magazines, arsenals, dock- ' yards, and other needful buildings." Here are words used appropriate to confer the power of legislation; and you are not pern)ittcd to suppose that the Convention designed to confer the same power in another clause, wlien they use different language, not at all appropriate. Indeed, in this clause, the power of legislation over distinct places t is conferred ; and if there was any other over I which it was designed to be conferred, here was the proper |ilace to have done it; and doubtless the place wiiere it would have been \.\oiui. For the ' Convention evinced, as was very natural, a pur- ' pose of grouping ail similar powers together. I But, so far from this being the case, the clause ! under consideration is not found in the section o^ the article containing an enumeration of the paw- I ers of Coni:ress, but in the one containing rcsiric- j lions upon the Stales. The Constitution is very remarkable for its order and arrangement; atten- tion to which, in construing its different provisions, I is exceedingly iin(iortant. The preamble declares I what are (the ends to be attained by rt.
The first article refercd to the legislative dej>arl-
ment. lis first section provides that "all legisla-
• tive powers herein granted shall be vested in a ' Congress of the United States, which siiall consist
• of a Senate and House of Representatives."
The next seven sections prescribe the mode of election, the qualification of members, and the form of proceeding in the two Houses. The 8th section defines the powers of Congress. It com- mences: "The Congress shall have power," and then follows an enumeration of the distinct and substantive powers of Congress, among which is the power of legislating fir several different places; but the Territories are not of the number. The 9th contains the absolute prohibitions upon Con- gress; and the lOlh, the absolute prohibitions upon the States.
Tiie 2d article relates to the Executive. It pre- scribes the mode of election, the qualification, and the duties of the President.
The 3d is concerning the Judiciary, and regu- lates its powers and duties.
The 4th article — the one in which the clause under consideration is found — contains restraints upon the States, coupled with the grant of power to the General Government to the extent of those restraints, but to no greater extent. This will be apparent upon a careful examination of its differ- ent sections. The 1st section declares that "full
• faith and credit shall be given in each State to the
• public acts, records, and judicial proceedings of
• every other State ; and the Congress may by gen- ' eral laws prescribe the manner in which such 'acts, records, and proceedings shall be proved, ' atid the effect thereof." Here the States are re- strained from passing any law which shall impair the full faith and credit which this section declares sliall be given to the public acts, records, and ju- dicial proceedings of the several States; and the power is given to Congress to provide for securing to them that full faith and credit. The 2d section declares that "the citizens of each State shall be entitled to all the privileges and immunities of citi- zens in the several States." This section restrains the States from passing laws interfering with the rights of general citizenship, which are secured to all the people of the United States, and enables Congress to pass laws to secure them.
The second clause of this section declares:
"ApiTson charged in .iny State with treason, felony, or other crime, who shall floe from ju^tice and lie found in an- other State, shall, on demand of the executive autliority of the Stale (>om which ho fird, be delivered up, to be removed to the Stale havinjr jurisdiction of the crime."
This clause forbids the States from making their territory an asylum for fugitives from justice from the other States, and empowers Congress to pass laws providing for the manner in which the fugi- tive shall be delivered up.
The third clause declares that —
"No person held to sprvice or labor in one State, under the laws thereof, escaping into another, shall, in conse- quence of any law or regulation therein, be discharged from such service or labor, but shall he delii crcd up on claim of the party to whom such service or labor may be due."
This clause is similar to the other. The States are prohibited from passing laws to obstruct the recovery of fugitive slaves, and Congress empow- ered to provide by law how they shall be delivered
"P- ....
The 3d section prohibits the States frorn forming
a new Slate within any of their jurisdictions, or
by the junction of two or more States without the consent of Congress; and it authorizes Congress to admit into the Union all other new States not thus formed. Then comes the clause under consideration: '• The Congress shall have power to dispose of and make all nt;<:dt"ul rules and regulations lespielirig the territory or other property belonging to ihe tJiiitcd States."
But for this clause, the States within which the territory and other property of the United States might be situated, could legislate in reference to it, precisely as they can legislate in reference to the land and other property of jjidividuals. And this clause was designed to restrain this right in the States by virtue of their general sovereignty, and confers the power on Congress to make all of those rules and regulations.
The fourth section declares that —
'•The United Slates .shall guarafity to every State in the Union a republican form of government, and shall protect each of tliem against invasion ; and, on the application of the Legislamrc, or of the Executive, (when the Legislature cannot be convened,) against domestic violence."
This clause (as Mr. Madison says in the Fed- eralist) presupposes the existence of a republican form of government in the several States; and it is designed to prohibit them from forming a mo- narchical, or any other than a republican form of government; and lest, perchance, it might be attempted, upon the pretext that a republican gov- ernmentdid notafford a suflicient protection against invasion and domestic violence — which notion a good many people at that time entertained — the last clause was inserted to provide against it; and it iiTiposes the duty in the first case, without qual- ification, upon all the States to protect each of them against invasion; but, to prevent them from interfering, unasked, with the domestic affairs of any of the States, they are only to act, in the second, upon the application of the State itself.
The fifth article provides the mode in which amendments of the Constitution are to be made; the sixth secures the supremacy of the Constitu- tion and laws of the United States; and the seventh provides for the manner of the ratification of the Constitution. Tliis is the whole of the Constitu- tion as it came originally from the hands of its framers. It will be seen that it contained many restraints upon the States, but comparatively few upon the General Government. Most of its re- strictions were such as grew out of its character as one of delegated powers. This excited the jeal- ousy of the States; and they proposed a number of amendments, every one of which created addi- tional restraints upon Congress, but not one en- larging its powers. Tiie most important of which is the tenth, which declares:
" The powers not delegated to the United Stales by the nonsiitulion,nor prohibited by it to tiie States, are reserved to the States respectively, or to the people."
Thus showing, that the feeling which prevailed was hostile to enlarged powers in this Govern- ment; and in construing the Constitution, the rule
! should be, to carry out the spirit in which it was adopted.
It is seen that each clause of the fourth article
j is in keeping with the rest, and that in every one of them there is a restraint of power in the States,
1 and a correlative power conferred upon Congress; and in no instance does the power conferred upon Congress go any further than to supply in it the
power prohibited to the Stales. When, therefore, you Imve ftscertaiiied the extent of tlie power pro- hibited to the Slates, you have ascertained the extent of power conferred upon Ci)ni;ress. ■ It seems to me tliat there ciin be no doubt about
waa to make nilrs and regulations, and not in re- spect to the Territories as political bodies.
It appears to me very cl'-ar, that the second clause of the 3d section of the 4th article, confers upon Coni;;reHS no power of legislation for the Ter-
thcse piincifiles. How do they apjily to the case ! ritories now held, or hereafur to be acquired, ex- jnhand? We have seen the extent of the pro- ' . ~ . •
hibnii'n upon the Slates; to that extent, and no
greater, is power conferred upon Congress. The Stales are forbidden " to dispo.se of, or to make rules and regulations re.spettin^, the territory or Other property of the United Stales;" and the powir to make siicli t| confided to Conj:;rcss, with iJie restriction that they shall be " jief(//i(/ rules and regulations." This is the extent of the powers l>rohibited and conferred; and it is seen that they are commensurate.
It will hardly be contended that the clause in question jnohibits the Stales in which the public
cept such as may concern the Terciiories as property. It is not pretended to be derived from any other clause. Those who talk about its being an inher- ent power, do not derive it from the Constitution, but from some other source than the Constitution; whence, I am sure I do not know, as I never heard till lately that this Government posses.sed any powers not granted to it in the Constitution, either expressly or by implication.
I have thus shown that the Constitution confers no authority upon Congress to legislate for the Territories, except in reference to the public lands. I now take higher ground. 1 maintain that not
lands are, from legislating upon the subject of , only no such auihority is delegated by any provis- slavery, or any other than the public lands and i ''^" '." ''"^ Constitution, but that it is in direct other property of the United States; or that it con- '"onflict with some of them, and with the spirit of fers any |)0wer oti Congress over slavery in those ' '''^ whole instrument.
Slates, or over anything else than the property of | ^ The Constitution of the United States provides the United States. As flir as the States are con- ! '^
cerned, there is no difference of opinion. But is there any difference, in this respect, between the States and the Territories? The power in Con- gress, conferred by the clau.se under consideration, *' to dispose of, and make all needful rules and regulations respecting, the territory or other prop- erty of the United States," is not confined to the Territories. Congress has the same power to make these rules and regulations in the States where "the territory or other property of the United States" is situated, as it has in the Territories. And this power is constantly exercised without question, liiit does any one suppose that that power
for the admission of new States into the Union. The third clause of the second section of the first article declares, "that repre.'>entalive3 and direct ' taxes shall be apportioned among the several States ' wliich may be included within this Union, accord- ' ing to their respective numbers, which shall be ' determined by adding to the whole number of free ' persons, including those bound to service for a ' term of years, excluding Indians not taxed, three- ' fifths of all other persons."
Here we find, that representation of slaves is expressly provided for in new States to be admit- ted into the Union. This proves conclusively that the framers of the Constitution contemplated
authorizes Congress to legislate in reference to any I ''^® future admission of slave States. The new
other subject within the States, than the territory and other property of the United States.' Does it authorize Congress to interfere with the subject of slavery in those States.' If it does not in the States, why should it in the Territories?
Before dismissing this branch of the argument, I desire to call the attention of the committee to the precise language of the Constitution. It is, •• the Congress shall have power to dispose of, and ' make all needful rules and regulations respecting, • the terrilonj or other property htlouging to the Uni- ' ted States." The word used is " the tkrkitory or other properly belovgins; to the I'nitid States," and not the word " Tn-ritories,'' as it is usually quoted by those who contend that the clause confers pow- ers of legislation on Congress.* Now, if the clause had been as it is quoted, there would have been more plausibility in the arjif^iment. Then it might have been argued with some show of rea.son, that the rules and regulations which Congress was au- thorized to make, was respecting " the Tenitorirs" Rs political organizations; but the fact that that word is not used, which was the appropriate one t ) convey that meaning, but the singular " territo- ry"— and that, too, in connection with '^ other prop- erty lyelonging to the United States" — shows that it was in reference to the territory as land, as prop- erty, belonging to the United States, that Congress
• .See thp ndilrfi's (irihc ll<?in»rratic nieiiit>erij of Uie Le- gi.-'Utuit: of .New York, .April, Iti-iti.
Slates to be admitted, which were more particular- ly in the mind of the Convention, were undoubt- edly those which it was contemplated would be carved out of the territories which we then pos- sessed, and which it was daily expected we would acquire by the cession of the States. It was known to the framers of the Constitution that ter- ritorial governments would, from necessity, pre- cede the organization of States. Can any one, at all conversant with the history of the Constitution, for a moment believe that it would have been adopted, if it had been understood that Congress might prohibit slavery in territories? Sir, if there was one feeling which more than any other char- acterized the proceedings of the Convention, it was a settled distrust on the [larl of the southern States of the northern and eastern States on the subject of slavery. The Constitution itself shows this. Look at the guarantees and safeguards contained in it, which were insisted upon by the South as ''sine qua nons." With these notorious facts staring us in the face, can any one believe that this means of war upon slavery — the right of legisla- tion for the territories upon the subject of slavery, more dangerous than any other — would have been quietly conceded by the South r Sir, it is impos- sible. Who, at all acquainted with the history of those times, believes for a moment that the Consti- tution ever would have been adopted if it had been understood that it c^inferred such a power upon Congress? When llie South insisted upon safe-
guards and guarantees in one part of the Consti- tution, as a condition of tlieir adopting it, can any one believe tliev would have conceded in other parts powers which would make them all nugatory ? There is no one who believes this. Then the solemn question arises, which I beg gentlemen to consider calmly, — Can this Constitution last, if powers are exercised in violation of it, the grant of which would have prevented its ado]ition?
The Constitution guaranties to each State a re- publican form of government — the fundamental principle of which is the right of self-government. The very definition of tyranny is to be subject to laws, in the enactment and continuance of which we have no voice; the very definition of republicanism is the right to govern ourselves. And yet gentlemen professing to be republicans come here, and not only claim the right to legislate for a people with- out consulting them, but absolutely to make that legislation irrevocable.
This attempt on the part of Congress to legislate for the Territories is in violation of a fundamental principle, to maintain which our forefathers waged a war of seven years duration, and of unparalleled hardships and suffering. The British Govern- ment claimed the right to legislate for the colonies in relation to their internal alTairs. But the colo- nists resisted, upon the ground that it was the essence of tyranny to subject men to laws in the enactment of which they had no voice. It was proposed to remove this objection by granting them representatives in Parliament. But the colo- nists declined it, upon the ground that Parliament even then would not have the essentials which make representation a. safeguard. These are, that the representative should feel his own laws, and that those upon whom they are to operate should have a periodical power of removing him. The people of the colonies would have no power to remove a member of Parliament elected in Great Britain; nor would the laws passed by a majority in that country, but operating excUisively in this, affect any individual of that majority. Such a representation, therefore, was regarded as worse than a mockery, as, by being present there by our representatives, it would seem to sanction laws passed in violation of the essentials of representa- tion. And this essential principle, in the main- tenance of which our forefathers poured out their blood like water, lies at the very foundation of our system of government, and suggested the existing •distribution of powers between the General and the State Governments. All general powers are delegated to the first, and all local powers are re- served to the last. Look through the whole range of Congressional powers, and you do not find one which, when exercised, does not operate upon the people of the whole country, and afTect the con- stituents of every representative who exercises them. All local matters are left exclusively to the States. And this is done as much because the vital principle of representation requires it, as be- cause we have not the local knowledge which would enable us to legislate wisely. How vio- lently do these principles of our system conflict with the power now claimed to legislate in refer- ence to the internal affairs of the Territories! The pre?ise portion of the people upon whom alone the laws are to operate are exactly the only portion who would have no hand in their enactment; and
the constituents of the representative who passed them, and the representative himself, would be en- tirely exempt from their operation. Could there be a better description of tyranny than this? And yet persons, calling themselves republicans, main- tain it! I had hoped that such doctrines would have been left to the advocates of despots.
In this connection, I desire to read an extract from the writings of John Taylor, of Caroline, of whom Mr. Jefferson said he had never written a line which he did not approve:
"But this feudal power of annexing conditions to the set- tlement of a conijuered or acqaiicd t'Tritory, by the govern- ment of tlie country making llie acquisition, lias ever been exidoded as tyiannieal botli here and in England. One of our principles in the colonial state was, that emigrants to such territories carried wiili Ihein their native rights. Tlie colonirits claimed the riglits of Engli-hmen, and not only ob- tained tliein, but have, I liop:>, greatly extended tlieni. But this Would not be the case if our emigrants should be suh- jected to a diminution of their native rights by the pleasure of Congress. All of them enjoyed the riglilof for/ning local constitutions and laws betbre their emigration. If Congress cannot legislate over the Slates from whence they removed, an_d may do so by annexing conditions to a trust, over that wlrich the emigrants from these t?tates may create, it is ob- viinis that these citizens must have lost some very important native rights by an emigration from one part of our country to another. If the colonists emigrating from England were correct in asserting by force of arms tliat they brought with them all the rights conferred by the English system of gov ernment, our emigrants may also contend that they cany with them all the rights conferred by our system. Jlrnong these, the unc3niitional rii^ht to make their otvn lonal consti- tutions and laws, without bein^ btihject to any conditions im- posed by an extraneous authiritij, has hccnthe m:>st important, and universally exercised by every State in the Union."
Every one of these principles applies, with in- creased force, to citizens, of any of the States emi- grating to the Territories. They carry with them all their rights, the most important of which is the right of self-government.
The practice of theGovernment hasnot,as.''eems to be taken for granted in this debate, been incon- sistent with these views, as I will proceed to show; and I must here beg the indulgence of the commit- tee for some minuteness of detail.
First, of the ordinance of 1787, about which we have heard so much. In the first place, I do not hesitate to say, that that ordinance originated in a palpable usurpation of power by the Congress of 1787. The articles of confederation confenedupon Congress no such power. Indeed, they conferred scarcely any legislative powers whatever. The powers conteri-ed were mainly executive, and re- lated to our foreign relations. The Congress, un- der the confederation, was rather a many-headed executive than a legislative body.
Tije Congress of 1764 seemed to concede thut they could not legislate for the Territories; and they attempted to irive validity to what little they did, as a " compact."
This will be apparent from the history of the transaction.
On the 1st day of IMarch, 1784, the delegation in Congress froin Virginia executed her deed of ces- sion of her territory northwest of the river Ohio, in which she ceded to the United States "allcf her right, title, and claim as well of soil as of jnris- diclion;" but stipulated " that the French and Ca- nadian inhaiiitants, and other settlers of the Kas- kaskias, St. Vincents, and the neighboring village-^', who have professed themselves citizens or Vir- ginia, shall have their possessions and titles con-
firmed to (hem; and shall be protected in the en- joyment of their rightB «nd libertirs. "
It mu^i be borne in mind in this connection, that at that lime there were no white iiihal)itHnts in the territory except theae Canadian and Kiench iiihub- itanis and seitlt-rs.
On the 19ih of April, 1784 — not quite two nnnuhs nfler the execution of the deed of cession — Con- gress took into consideration the report of ilie commiiiee, consisting of Messrs. Jetfersion, Chaae, and Hosvfll, of a pUiii for a ten'iporary govern- ment of tlie Wesiern T<rriti>ry.
The ])lan as reported contained this clause —
'• 'I'liiil after tlie >far iNIO.il'ilie Ctiri-nnii fr;i, there >hall be rifilluT (ilavirv nor iiiVnliml iry siTvilmli- in any of ttio Bald Siaien, oilifrwife than in ilie )iiiiii.-liiii)'iil ol" ('riiiii-:<, whereoC the |i:irly shall have been cuiivieled to have been pi-rMiiially i;iiilty."
And on the motion of Mr. Spaight, these words were siruck Out.
On the 2.3d of April, Congress resumed the con- sideration of the sul)ject, and adopted several ar- ticles which they direcUed shouhl be formed into " a charltr of compact." The following is the sub- stance of those articles :
The 1st declares, " that so much of the territory ceded, or to be ceded, by individual Stales to the United States, as is already purchased, or shall be purchased of the Indian inhabitants and offered for sale by Congress, shall be divided into distinct States;" and it then goes on to prescribe the man- ner of their formation.
The 2d provides that the free male settler."? of full age, " on any territory so purcha.'ied and offer- ed for iale," shall meet wiihin their Slate " for the purpose of establishing a temporary government, to adopt the constitution and laws of any of the original States; so that such laics ntvertheUss shall be siti/fci toalterutinn by their ordinary legislature ," &c.
The 3J provides that when any such Slate shall have 20,000 inhabitants, a convention shall be called of them, to form a permanent constitution and government for iheinselves. But it is pro- vided that the temporary and permanent govern- ments be established on these principles as its basis :
1st. That they shall forever rcniain a part of this confederacy of the United States of America.
2d. That they shall be subject to the Articles of Confedemtion in all those cases in which the ori- ginal Slates slutll be so subject, and to all the acts and ordinances of the United States in Congress assembled, conformable thereto.
3d. That they in no case shall interfere with the primary disposal of the soil by the United States in Congress assembled, nor with the ordinances and regulations which Congress may find neces- sary for securing the title in such soil to the bona fide purchasers.
4ih. That they shall be subject to pay a part of
the Federal debts contiacted.or to be contracted, to
■ be apporiinned on tlicin by Congress acconling to
the tuut\t common rule and measure by which tt|>-
Soriioiimenis thereof shall be made on the other tales.
5th. That no tax shall be imposed on lands the property of ihe United Slates.
Gih. That their respective governments shall be rc|ubliran.
"iW That the lands of non-resident proprietors shall in no case be taxed higher than those of resi-
dents within any new State, before the admission thereof to a vote by its delt-gntes in Congress.
The 4ih provides "that when any of said Stafes ' shall have of free inhabitants as many as sltiiU ' then be in any one of the least numerous of the
• thirteen original Slates, 5tJ<:/i State shall be admit-
• led by its delegates into the Congressof the United ' States on an equal footing with the said original ' Slates."
The last provides " that the preceding articles ' shall be formed into a charter of compact ; shall be ' duly executed Uy the President of the United 'States in Congress assembled; shall be promul- ' gated, &c.; and shall lie unalterable/com and after ' ihe sale (f any part (f the territory if such Slutt."
This, with the article relative to slavery, which we have seen stricken out, comprised the subsiance of the report of the committee.
It will be seen that, during the interval which would e!a]ise before the formation, in the mode direoted, of a leinfwrary govtriiment, and the adoption of the consliiution and laws of some one of the original States, there was no provision for the preservation of the peace, &c. in the territory. To remedy this, Mr. Gerry moved a proposition, which was adopted, in these words:
"That mca<nres, niH inconsistent wilh the jrrincip'cs of the coiir>'iii'rutiiiii, anil ncrcssary Cm liif prfsi-rvation nl pi'ace nnil !;oi)(l order auion^ the seiiter* in any of Ilie said n^ir States, MTitil they .-Imll assunv a leiiiporary (J<)Veriiin>'iil a* nluresaid, may, from lime to tiii>e, be taken by llie L'nlteii States ill Congres.-* atseinhled."
It will be seen from this analysis of the firat ac- tion of Congress relative to the territory of the United Stales — action which was participated in by thefirsl statesmen of the Republic, comprising such men as Jefferson, Sherman, and Gerry — that, not- withstanding Virginia had ceded her jurisdi'ction as well as soil, they did not propose to legislate for the territories, or to interfere wilh their Govern- ment, any further than ihe absolutive necessity of the case required. This " charter of compact," as they called it, secured to the people in the territories the full right of self-go veniment at as early a period as possible, and in the mean time no other authority was assumed than so much as inight be necc.<!s:iry to keep the |>eace; and it is very obvious that they were tempted to this last solely by the necessity of the case. There are no restrictions on the settlers in the formation of their Government, and in their subsequent legislation, any further than was neces- sary to secure to the United States its riirht of prop- erty in the public land.s, and to preserve the fidelity of the inhaljiiaiits to the confederation. The con- dition of Virginia's deed of cession made the first imperative; and the feeling of di.sloyalty to the Union, which had been displayed in some parts of the confederacy, and the still greater fear of it from the character of the only then inhnbiiaiits of the wesiern territory, made the last expedient.
I think it pretty evident, from the language they used, that the fiamers of this charter suppo>6d that their authority to grant it grew out of their owner- ship of the soil, a>id their supposed righisio annex conditions to the sale of it in the shape of a compact with the'purcliasers. The words I have empha- sized in the analysis I have made, I thijik, shows this. Be that as it may, it is seen that no aiiemj)t at legislation was made, and that in the charter no restrictions were made, except such as related to the two points I have mentioned. The oidy
other one — that relating to slavery — was stricken out.
On the IGth of March, 1785, Mr. King; renewed theanli-slavery restriction, which had been defeated in 1784; and it was again defeated.
The subject seems not to have been tnken np again until 1787, when the ordinance of that year was passed.
That ordinance was itself rather in tlie nature of a charter than an ordinary law. It was rather the framework, the form, of a government, than an ordinary act of legislation. fThe language of its enacting clause is diflerent from that usually em- ployed. It is, " Be it ordained," &c.; and, " Be it ordained and declared." And, except in the sec- ond section, in which the course of descents is prescribed., and the mode of conveyance estab- lished, which they seemed to think had an imme- diate connection with their authority over the public lands, and in the sixth article, in which -slavery is prohibited, nothing is done which par- talces of the nature of legislation. It provides for the appointment of a governor, the election of a general assembly, prescribes the qualification of officers and of voters, &c.; and it goes on to "de- clare" most of the fundamental principles of our Government, very much in the manner of a bill of rights; and it secures the right of self government, the most important of them. It provides expressly that " the Legislature shall iiave authority to alter the laws as they shall think fit" — an authority ] which they freely exercised. But, a short time j after the organization of the Teiritorial Governr ment of Ohio, the Legislature under it altered the provisions of the ordinance in many particulars. I recollect particularly in reference to the course of descents and the mode of conveying property; and they adopted, in the words of tiie Virginia statute, the laws of England in force prior to the fourth year of James I. Now, it seems very much like absurdity to me, to say that Congress has the power to legislate for the Territories, and at the same tii^ie concede that the Territorial Le- gislatures may repeal laws enacted by it.
The ordinance, on its face, shows that its framers considered that they were organizing "a Slate," for which the ordinance was to be a temporary constitutior? until it could substitute one better suit- ed to its wants. In its first section it declares " that the said Territory, for the purposes of a tem- porary government, he one district — subject, how- ever, to be divided into two districts." Afterwards it says: "The Legislatures of these districts or «eui Stales shall never interfeie in the primary dis- posal of the soil of the United Stales." Again it says: "And whenever any of the said States shall have sixty thousand /rfe inhaljitants therein, such Stale shall be admitted, bij its delegates, into the Congress of the United States, on an equal footing with the original States." It is very evident that the Congress considered that they were organizing States — new States, in contradistinction to "the original" thirteen; to the admission of which, "by its delegates, into Congress," the only obstacle seemed to be the want of a requisite population.
In 1787, as in 1784, Congress very evidently distrusted their powers to legislate for the Terri- tories; and hence they attempted to give some show of validity to such portions of it as partook of a legislative character, by styling them "a compact,"
some sorts of which Congress had a right, by a vote
of nine States, to sanction. But concede it to be, in its nature, a compact, and such a one as Congress could enter into, and yet you do notgive it validity. To create a compact, there must be parties able and willing to contract, and who, in fact, do con- tract. Now, who in this case were the parties? The ordinance declares the parties to be "the oi-iginal States and the people and States in the said territory." Now, sir, I choose on this point to rest \ipon rlie fact rather than the law. Which of the original States ever assented to this compact? Not one! It is true, Virginia was asked to consent to a change which was proposed in the boundary of the States, which it was designed to create in the territory northwest of the Ohio, and the nuni- berof them, from the numberand boundaries speci- fied in her deed of cession. To this Virginia as- sented, but she was not asked to assent, and she did not assent, to any other part of the ordinance. There is no pretence that any other State acted in the matter at all. Will it be said that they assented through their delegates in Congiess? They had no commission to give any such assent. Besides, " the people and States in the said territory," the other parties, were not represented in Congress, and they never were in any form consulted.
If this ordinance is to be considered a legislative act, it was always null and void; because the Con- gress of 1787 had no authority to pass it as such. But if it is to be considered a compact, then it was equally void, as the pretended parties to it were not consulted. Well, then, might Mr. Madison speak of it as an act " done without the least color of constitutional authority." In the 38th number of the Federalist, Mr. Madison says, " Congress 'has assumed the administration of this stock, ' [referring to the public lands.] They have be- ' gun to render it productive. Congress has un- ' dertaken to do more: they have proceeded to form ' new States; to erect temporary governments; to ♦appoint officers for them; and to prescribe the 'conditions on which the States shall be admitted ' into the Confederacy. ^Ind all this has been done, ' and done withont Ike least color of conslilutional ait- ' thorily.'" And, in truth, the sixth article of the ordinance (the one relating to slavery) was always treated as a nullity in the territory itself. At the time of the cession of the territory, it was unin- habited except by a few French and Canadian set- tlers, who held slaves. And they continued to hold them, notwithstanding the ordinance; and the issue of many of them are held as slaves to this day.
The Stales formed in the northwestern territory, and the Congress of the United Stales itself, by their respective legislation, have shown that they regaided it as a nullity.
In the constitutions which those States formed preparatory to their admission into the Union, they prohibited slavery; which was unnecessary, if it was already perpetually excluded by the ordinance, as is now contended.
In Illinois slavery still exists to a small extent, as it has not yet disappeared under the operation of her laws for iis gradual abolition; and yet Illi- nois was within the territory comprehended in the ordinance of 1787.
In the law of Congress of 1703, relative to fugi- tives from service, this language occurs:
" Section 3. ^nd le it also enacted, That wlien a person
8
h.M.uh.borhYv^vofil.er,.iiedStaus ormriMn-yiAe^i 1,^ from ihe icstimony of state3men who
Tvirifoncj OH thf turlh rest or soulli nl IUk *>[iin, under Ihe ' , ■ , , ,■ ., ■', "• .'"'"^•""<-" w iiu
IzwUiereof, tliall efc:.pe iiiKi iitiy otiiir ol llie .-iii.! Slal.s.or i ^^%^, '" ^''^ puUllC councils at llic time. TirrU'iry, iiie ptr»uii lowuoui eucli sirvm.- ur labor shall be ; Tlie {jentieinuii also referred to the clause of the due," 4ll-. j same act prohibiting the importation of slaves from
There was no territory northwest of the Ohio, [/"'"^'i'" countries; niid lie seemed to think that this except that covered hy the ordinance of 1787; yet ^^"^ '^ precedent for the exercise of the power now this law of Conjjress, passed shortly al"ier tj,e *^'^''"«^"'-. Ajid the opinion of Mr. Madison, ex- adoption of the Constitution and the passage of the P'^'^ssLd in 179U, that Congress could prohibit the ordinance of 17b7, recogmzcs the existence of sla- '"'"^'S" sl'i^i: trade in the territories, has been quoted very in it, the ordinance to the contrary notwi=ih- i "^ '''*-' ^""i^' purpose. IJut the gentleman should standing. j recollect that no one has ever questioned the rijjht
1 ihmk it sufficiently clear, Mr. Chairman, that I "^ Congress after*808 to prohibit the foreign the sixth article of the ordinance of 1787 never had i slave trade; and before tliat time, many supposed
any validity. I5ut of all the absurd ideas 1 have ever heard in tins hall, the idea that the ordinance is forever beyond the reach of the people of the present States, and in its own language, is to •'for- ever remain unalterable," is, beyond question, the most absurd. It has been said that it is unalterable, because it is a compact. Have 1 not shown that i
—as it seems Mr. Madi.son, in IT'JO, and the Con- gress of 18U4 did— that Congress might prohibit the foreign slave trade in territories which we acquired subsequnU to the adoption of the Consti- tution. The language of the Constitution is in these words: "The migration, or the importation, ' of such persons as any of the States now exhting ' shall think proper to admit, shall not be prohib-
it never had validity as such ? Because, suppose , • ,. ^ - • ■
It was otherwise, who ever had authority to bind' ' ".^'^ "V Congress prior to the year 1808." men ami their decendanis through all time, as to | , " " appears that the clause of the act of 1804 the form of government and the institutions under i ".""er consideration, was not very deliberately con- which they should live.' All governments are P t'"*^^ by Congress; for subsequently, in 1807 compacts, in the sense in which the word "com- pact" is used here; yet will any one say, in this country, that the people can be restrained in their
right to alter and reform tlicir governments and laws whenever, in their opinion, it will be
pro-
motive of their prosperity and happiness.' If th idea, that this ordinance is forever unalterable, be j correct, then the States in the northwest are not | completely sovereign, and they do not stand on an I equal fooling with the original States. And the i condition of the Virginia deed of cession that they should be admitted into the Union "having the i same rights of sovereignty, freedom, and independ- ence as other States," has been violated. Will '■ the northwestern States admit that such is their condition of inferiority .'
After the adoption of the Constitution, in the purer and better days of the Repul>ric, there never was any attempt by Congress to legislate for the territories.
On the 7th May, 1800, the Indiana territory was firmed. At that time there was no attempt to con- trol the domestic institutions of the territories; nor on the 10th of the same month, when an act passed authorizing the establishment of a government in tiie Mississippi territory. On the 26th of March, lf04, the act erecting Louisiana into two territories was [Kissed. In that act, the power wi*s attempted to be exorcised ifi the section prohibiting any others than persons removing to the territory to reside to introduce slaves; but the attention of Congress seems not to have been called to it at the time, for the next session it was repealed
sidered
under circumstances of the most imposing cliar- acter, and giving the very highest sanction t"o their act. Congress mollified this law in a most vital particular. The law of 1804 made the negroes, imported contrary to its provisions, free. But the law of 1807 repealed this, and declared that they "should remain sulycct to any regulation which •the Legislatures of tlie several States or Territo- r\e^ might thereafter make." I will show the im- portance of this proceeding hereaAer.
In the law erecting Michigan into a separate territorial government, there was no attempt at territorial legislation; nor was there in the case of Illinois, or of Missouri. In the case of Wiscon- sin, there was; and the conditions and restrictions of the ordinance of 1787 were recognized. But it was done in general and ambiguous phraseology, which caused it to pass unnoticed. It was not attempted in the case of Iowa; on the contrary, the precedent in the case of Wisconsin was abaii- doned, and a return made to the former practice of the Government; nor in the bill of the session of 1845, relative to the Oregon Territory, until the sixth article of the ordinance of 1787 was ini^rafted on it, upon the motion of the present Speaker, [.Mr. WiNTiinop.] On the contrary, in most of these acts, which were reported from committees composed of a majority of members from noh- sluveholding States, all legislative power, excejU such as relates to the disposal of the public lands, is rccogn'zed as exi.«ting in the territorial legisla- tures. This is most clearly done in the case of Iowa, the provision in reference to which I shall have occ.ision to quote in another connection. It
ref-
This act the gentleman from Maine [Mr. Smart] , is true, in most of these acts, there is secured to
terred to, to sustain him in his claim of the pow tr in Congress to legislate for the territories upon the subject of slavery; but, if the gentleman had ' g(uie a little further, he would have found, I think, that the dclibernte derision of Congress was against him. Why was the law— in favor of which the sympathies of Congress doubtless were — icpcal«d .' Surely, only because its enactment was considered a usurpation. .\nd I d.. not arrive at this conclu- sion solely from the character of the transaction
the inhabitants of the Territories all " the rights, privileges, and immunities," granted and sectired' by the ordinance of 1787; and'I have hcaid it con- tended that this recognized the artiile prohibiting slavery. But it is very clear that this is an erro° neous view. The words here used are taken from the Constitution of the United States, where they have a technical and ascertained meaning. In the language of Judge Chase, in the case of Morris vs. Campbell, " privilege and immunity are synon-
9
' ymous, or nearly so. Privilege signifies peculiar ' advantage, excin|ition, immunity; inununity ' signifies exemption, privilege." And in ihc lan- guage of Mr. Justice Wasliington, in the case of CorfielJ and Coryell, the " rights, privileges, and ' immunities, whicii are designed to be secured by ' the Constitution, and also by the case in question, ' are the fundamental rights and privileges;" such as the right of trial by jury, of habeas corpus, of religious freedom, to acquire and possess property, and many other of the same class, which are pro- vided for in the ordinance.
And from the act relative to Wisconsin itself, it is evident that its framers did not understand the * words in question as referring to the article of the ordinance relative to slavery; for in the very same section, after declaring "that the inhabitants of said Territory shall be entitled to all the rights, privileges, and advantages" secured by the ordi- nance, it is added, "and shall be subject to all the conditions and restrictions and prohibitions in said ar- ticles of compact;'^ which words were unnecessary if the construction gentlemen contend for is cor- rect.
But it has been asked, why do most of these laws organizing territorial governments, require that the laws passed by the territorial legislature shall be submitted to Congress, and declare that they shall be null if disapproved.' and also, if this does not look like reserving the power of legisla- tion? On the contrary, these provisions but re- serve a sort of Congressional veto, which enacts nothing, does nothing affirmatively, but puts it in the power of Congress to arrest legislation, and leave things as they were. The object is evident. It is to enable Congress to arrest territorial le^is- lation relative to the public lands, the exclusive right of legislation in reference to which is reserved to Congress, and in violation of fundamental prin- ciples. And it is believed that there is no in- stance where Congress has interposed, except in cases where the territorial legislatures have at- tempted to pass laws affecting the public lands, or violating some fundamental principle. The section of the Iowa territorial constitution shows very clearly the object of the reservation. It is in these words:
" Section 6. ^ind be it further enacted, Tliat tlie lecisla- tive power of the Territory shall extend to nil rightOilsuh- jects of lesiislation ; but no law shall be passed interfering with the primary disposal of the soil ; no tax shall be im- posed upon the propel ty of the Unitrd States ; nor shall the lands or other property of non-residents be taxed higher than the lands or other jiro'perty of residents. All the laws of the governor and legislative a-senibly shall be submitted to, and if disajijrrovcd liy the Consress of the United States, the same shall be null and of no effect."
It will be observed that the sanction of Congress is not required before a law goes into effect; but it requires the disapproval of Congress — it requires affirmative action to arrest it. And here, again, these territorial constitutions are somewhat analo- gous to our colonial charters. The chief differ- ence is this, which was very great : if the King withheld his assent to an act, it never became op- ' erative; but here Congress must do more, and affirmatively disapprove it. And although the power thus reserved to the King was much greater than the power reserved to Congress, it was not considered as partaking of a legislative attribute; for, although the colonists complained of the ty- rannical exercise of this power, they never ques-
tioned its legality, but they went to war to resist tlie claim of Parliament to legislate for them in ref- erence to tlieir domestic affairs.
1 come now, iVlr. Chairman, to the Missouri compromise. I am free to admit, in that, there was an attempt on the part of Congress to adopt fundamental legislation for the territories. But it must be borne in mind, that the strict construction- ists never admitted the right of Congress to do so. On the contrary, the South voted against the Mis- souri compromise. That compromise, as it is im- properly called, was forced U[ion us by the North. And it has been acquiesced in by the South, rather in consequence of the circumstances in which it originated, and as a meansof preventing the agita- tion of an exciting and irritating subject, than be- cause of any validity in the thing itself. Its obli- gation is rather moral than legal,- and we have acquiesced in it as such heretofore, and are willing to do so hereafter.
But gentlemen say, if you are willing to abide by the Missouri compromise, why object to the Oregon bill.' The whole of Oregon is north of that line. We reply, if you choose to rest upon the Missouri Compromise, we have no objection. If that applies to the subject, this provision is unnecessary; and, therefore, in insisting upon its retention in the bill, you, in effect, repudiate that comproinise.
I maintain, further, that if the power of legis- lating for tiie people of the Territories resides in Congress, every territorial government we have organized has been done in violation of the Con- stitution of the United Slates. All the powers of the General Government are delegated; and no proposition is clearer than tiiat a legislative body cannot delegate its delegated powers. " Delegatus non delegare." I presume there can be no doubt about this. But, in addition to it, the Constitu- tion declares, as we have seen, that "all legislative ' powers herein granted shall be vested in a Con- ' gress of the United States, which shall consist of ' a Senate and House of Representatives." It surely will not be maintained that we can transfer any portion of these legislative powers to any other persons; and yet in every territorial govern- ment we have authorized, a provision has been introduced conferring upon the territorial legisla- tures the fullest legislative powers.
Besides, if the powers of the territorial govern- ments emanate from Congress, then all their offi- cers are United States officers, and, under the Con- stitution, can only be appointed by the President.
The Constitution declares that "all offices of the United States" (with a few exceptions, withia which these territorial officers do not come) "shall ' be appointed by the President, by and with the ' advice of the Senate, and commissioned by him." Yet most of the territorial charters we have granted, provide that the governor "shall have power to 'appoint and commission all officers, civil and of ' the militia." So much for the practice of the coun- try in establishing territorial governments.
I desire now to call the attention of the commit- tee to a decision of this whole question, which was made by the two Houses of Congress under cir- cumstances, as it will be seen, which give the decision the highest authority.
At the commencement of the 2d session of the 9th Congress, Mr. Jefferson recommended that,
10
in anticipation of ilie period when Congress miirlit abolish the slave trade, a. law for tlmt purjiose niij;lii at once be passed. 1'liat portion of the nies^a|je was referred, in boih Houses, lo select coiiiniiitees.
On the 15th of December, IBOG.Mr. Early, from the conmiiitce of the House of ItLpicscntaiivcs to whom was referred that part of the President's message, reported a bill for that purpose.
Section 1st prnhibits, from and after the 31st of ' Deccinler, 1807, the imporiaiion of any negro, rruiatto, or other person of color, with intent to I keep, sell, ^r dis|)ose of audi negro, mulatto, or [ person of color, as a slave. |
Section 2J imposes a very heavy fine upon any ; one who sliall be concerned iti any way in build- ■ in<j or fitting out a vessel to be employed in the ' slave trade. ,
Section 3d forfeiis all vessels found engaged in the slave trade, and imposes a fine upon the mas- ter and owner.
Section 4th declares, that " if any negro," &c., the importation of wliom Ijy the act is prohibited, "shall, after the 31st of December, 1807, be found ' within the United Stales, or the Territories there- ' of, every such negro, &c., shall be forfeited;" and it imposes a penalty u|)on any person con- cerned in buying or selling such negro, Ac.
Sections 5th and Gth prescribe the form of pro- ceedings, &c.
Mr. Sloan moved to amend the 4ih section, by inserting after the word "forfeited," "and such person or slave shall be entitled to his freedom."
Upon this amendment a long debate ensued, and it was rejected; only nineteen members rising in its favor.
.Vr. ^ilston said he doubted whether Congress possessed, the power of saying that slaves imported into a particular State, whose laws directed them to be sold, should be made free.
~Vr. Eiirly remarked, he would ask gentlemen whether the House or the Government of the Uni- ted States were constitutionally competent to de- clare what should or should not be property within the several States? Tliey were not competent to this, afier the article constituted as priifierty was brought within the limits of the United States.
JMr. Biditell, of Massachusetts, said it was ad- mitted, that by the forfeiture, slaves would be traniifcrred from the individual owner to the United States, and that they might sell them as property. Miijht they not, instead of selling, manumit them.'
.>/r. E(i(7i/, of Georgia, contended that the slave- holding States would not submit to having large c-argoes of ,\frican.'<, who did not speak their lan- guage or understand their institutions, let loose among their slave population.
>Mr. J. Clay, of Pennsylvania, opposed the aniciulmcnt, upon the ground that the repugnance of the southern people would be such to this pro- vision, that there would be no informers; and that if there were, as the laws of most of klie southern States prohiliiied free negroes from remaining within tlicm, this obnoicious population would be thrown upon other States, where free negroes are permitted to reside.
J\lr. Sloan said that n further provision might be incor(toratid in the bill, to send those persons of color that might be imported in contravention of law back to Africa.
.1/r. Smilie doubted the propriety of the amend- ment, but contended that the bill was im[)prf<H-t without some such provision, and advised that the committee should rise, and the bill be recommit- ted.
J\Ir. Qiiiiift/ thought that such an important prin- ciple as that involved in the amendment ought to be settled befme the bill was recommitted. He was 0|i|>osed to doing anything contrary to the safely and true intertsi of any part of the Union; and believing that this provision would have that effect, he was hostile to it. Besides, he believed the^e would be little difficulty in defeating it; and he asked, "What was to prevent the Legi.slature ' of Georgia, after Congress had declared that these ♦ ' people should be free, considering them as vaga- ' bonds, and selling them for a term of years, or ' for life, to tlie highest bidder.'"
Jlr. Macon (Speaker) also spoke against the amendment; and so did JVr. Cook.
The vote was then taken, and the amendment was rejected; only 19 members rising in its favor.
An amendment was offered by Mr. Cedinger; and while it was under discussion,
Mr. Ely adverteU to the former amendment, and insisted that some such provision was necessary; and asked what would l>e the effect if the cargo was carried into a State where slavery did not exist? Would the negroes still be sold under the forfeit- ure, for the benefit of the United States; or would they be manumitted by force of the State law ? If the former, he hoped no gentleman would insist upon the enforcement of any such forfeiture in Massachusetts, where such negroes were as likely to he carried as in any otlier State.
At the same time that the suliject was under dis- cussion in the House, it was also under considera- tion in the Senate. Unfortunately, the debate in that body is not preserved. Uut a very minute account given of their proceedings, by a gentleman who was a leading member at the tiine — 1 allude, to Mr. Giles-, of Virginia — and the alterations which were made in the bill in its [lassage through the Senate and the House, afford us a very clear conception of the considerations which influenced Congress. I have had recourse lo the original files of the Senate, and from them I have made out, with some care,
A History of the passage of the Bill abolishing the Slave Trade through that Body.
On the 9th of December, 1806, it was referred lo a committee composed of Messrs. Bradley, Stone, Baldwin, Gaillard, and Giles. January 15, 1807, Mr. Bradley reported it with sundry amendnr^ents.
The first section of the bill, as originally framed, is in the precise terms of the law as il now stands. So is the second, with the exception, that in the original bill, the words "or foreigner," after the words " United States," in the second line of sec- tion 2, as it now stands in Little & Brown's edi- tion of the Laws, were stricken out in the House of Representatives. And so in the 3d section.
The 4ih section, as il now stands, is identiciil with the original bill, with these exceptions: in the original bill, the word " cargo'" occurred between the words " her" and " tatldc," in the 14ih line of the section as it now s'ands in Little & Bmwn's edition. That word was stricken out, and the words in the next line, " with all the goods and
11
effects wliich sball be found on board tbe same," were added. And llie seciion, from "and, "after the word " seized," to " color,'' at the end of the sec- tion, was added. Rut, as orij;i)ially proposed by the committee of the Senate, it read in ilie first ]iari of it, " and neither the importer, nor chiimanl, or per- sons purchaiing from under eitlier of them." This was chanijed so as to make it read as it now does, viz: " And neither the importer, nor any person or persons claiming from or under him." And it con- tained llie word '' unfuiiunali lij^' belween the words " may be" and " imported;" and it did not con- tain ilie word " territories" between the words " which the Legislature of the several States" and the words " at any time hereafter." The first ex- pression was stricken out in the House, and the last one was there inserted as an amendment.
Tiie 5th section as it now stands, differs from the original bill, and as it passed the Senate, only in this: that the offence was changed by the House of Representatives from felony to a high misde- meanor, and the punishment from death to impri- sonment.
The 6th section, as originally reported, con- tained between the words "effects" and " pro- vided," the words" and such purchaser shall, more- over, gain no right, title, or claim to the service or labor of such negro, mulatto, or person of color, by any such purchase whatever." These words were striken out by the Senate. And the proviso, which, as originally reported, read, " Piovided, that nothing herein contained shall be construed to affect the disposition any of the Legislatures of the several States may make of any negro, mulatto, or person of color, who unfortunately may be im- ported or brought, in violation of this law, within these Slates respectively," was changed to theform in which it now stands.
The 7th section, most of it, which relates to the employment of the navy of the United States, and the whole of it, beginning with the words " a'ld the proceeds," in the 2Sth line, to the end of the section, was added by the Senate to the bill as ori- ginally reported. This latter part provides forde- livering over the negroes to the State authorities, and was made necessary by the other amend- nnents.
The 8th section, as originally reported, and as it passed the Senate, did not contain the proviso to that section as it now stands, but it was added by the House of Representatives.
The 9th section, with the exception of a few verbal amendments, and that the size of the vessel referred to was reduced from fifty to forty tons, is the same as it stands in the bill as originally re- ported, and as it passed the Senate.
The 10th section — the same reduction in the size of the vessel was made; and the bill, as originally reported to the Senate, contained this proviso:
" Prjrifcf, That nutliin? contHineti in tliis act shall pro- hibit any captain, master, or coniiiiander finin employing, as seamen or mariner<, n"nroes, mulattocs, or per^ons of color, or any person travelling by sea or hy land from taking with hiiii his necessary menial servanis not exceeding — ."
To show to the country at one view precisely what changes were made in the 4ih section in its passage through Congress, I will hand to the re- porter a copy of that section, with the words which were stricken out by the Senate in ittdio!, those added by the Senate in brackets, those added by
the House in small capitals, and those stricken out by the House marked with, inverted commas:
" Sec. 4. Jlnd he it Jurllier enw.leil, If any citizen or eiii- zens 1)1' the United States, or any |)erson loidriil within the jurisdiction of the same, shall, from and altir the 1st day of Jainiary, I1-O8, lake on hoard, receive, or transport from .nny of the coasts or kingdums of Africa, or from any other foreign kingdom, place, or country, any negro, mulatto, or person of color, in any ship or vessel, for the purpose of selling them in any port or place wiihin the juiisdiciion of the Uniteil States, as slaves, or to be held to service 01 labor, or shall be in any ways aiding or ahettiiiir therein, such citi- zen, or citizens, or person, shall severally forfeit and pay §5,0;:0; one moiety thereof to the use of,any person, or per- sons, who shall sue for and prosecute the same toeflect; and every such ship or vessel, in which such negro, mulatto, or person of color, shall have been taken on hoard, received, or tran-pnrted, as aforesaid, her Cirgo, tackle, apparel, and furniture, [and the goods and efl'ects which shall be found on board the same,] shall be forfeited to the United States, and shall be liable to be seized, prosecuted, and condemned in any of the circuit courts or district courts in the district where such ship may he found or seized. [And neither the importer, nor any per-on or persons, claiming from or under hiin, shall hold any riulit or title whatever to any negro, mu- latto, or person of ci.lur, nor to the service or labor thereof, who may be " unfortunately" imported or brouiiht within the United States or Territoiies thereof in violation of this law; hut the same shall remain subject to any regulations not contravening the provi-ions of this act, which the Legis- latures of the several States or Territories at any time hereafter may make for disposing of any luch negro, mulatto, or person of color.]"
From these proceedings, it will be seen that the bill, as originally reported to the Senate, and the bill in the House, was precisely similar, and pro- vided that the negroes, as well as the vessel, &c., should be forfeited and sold for the benefit of the United States. But, as Congress did not wish itself to become secondarily engaged in the slave trade, as the British Governinent has done in her act for suppressing it, and make profits out of the sale of the negroes, the word "cargo" was stricken out. If nothing more had been done, there would have been no legal regulation whatever as to the negroes imported. Therefore, it was necessary that something more should be done. Well, what is it Congress would have been most anxious to do, and doubtless would have done, if it had thought that it had full power over the subject.' Beyond all question, to have emancipated the negroes. They showed this disposition two years before, in the law to which the gentleman from Maine referred. But, after great deliberation, Congress decided that it had no jurisdiction over persons in the States or Territories, and that the negroes, as soon as they were landed within the limits of either, became subject exclusively to their legislation. Congress could, before they were brought within the State or territorial jurisdiction, have emanci- pated them, and sent them back to Africa; but, for reasons which Mr. Giles states, to which I shall refer in a moment, this was considered impracti- cable. And therefore the Senate added the section, leaving them to such disposition as the States and Territoiies should make of them. I say States and Territories, because the Senate doubtless meant to include the Territories in the word States. The Territories, at that time, particularly Louisi- ana and Alabama, were precisely the places where slaves would be most likely taken; and of course the Senate, if it considered it had jurisdiction over the subject, did not mean to leave it without any legislation, as they would have done if they had not considered the Territories as inclu'led !in the provision relative to the Stales. They were
12
doubtless aware that Congress hud in its legis- lation ircatcil the Territories us iiicliided in the word Stales, where it occurs in tlie sevirai clauses in the Constitution. This they did in the law of 1793, to enforce the second and third para- graphs of the second section of tlie fourth article of the Constitution; und also in the laws of L'Oth May, 17'jO, and of the 27th March, 1804; in each of which Con]^res8 construed the word "States" as comprehendingTerriiories. And it would seem they agreed with Chief Justice Marshall, that the "term United Slates, as used in the Constitution,
• is the name given to our ijreal Republic, which
* is composed of Stales and Territories." But the House of Represfiitatives did tiot consider it safe to risk this, and the words "or Territories" were inserted in the cotinection I have pointed out.
I prefer, said Mr. B., to any comments of my own, to read tho.se of Mr. Giles, of Virjjinia, who was a distinguished member of the Senate at the time, and a member of the committee which re- ported the bill.
But, before I do that, the committee will excuse me for calling; its attention to an opinion expressed by Congress on the same occasion, which is not directly connected with my argument. It will be seen that Congress refused to say — and considered not doing so a matter of consequence enough to justify an amendment to the bill — that it was un- fortunate fur the Africans to be brought here as slaves. The advantages which they would reap of becoming civilized and christianized, Congress considered anything but a misfortune to them. . And before 1 read those comments of Mr. Giles, it is proper that I should briefly refer to the sub- sequent legislation of Congress: In 1818, Congress reviewed its leijislation in reference to the slave trade; and in the act of 20ih April of ihat year, it retained the provision of the act of 1807 relative to the disposition of the negroes: "They were to re- ' main subject to the regulations which the legisla- ' tures of the several States or Territories may at ' any lime heretofore have made, or hereafter may ' make, for dispo.sing of any such negro, mulatto, ' or person of color."
In 1819, the-subject again came before Congress; and, in the act of 3d March, 1819, provision was made requiring the President to remove captured Africans without the limits of the United Slates, and transport them to the coast of Africa. Thus shotl'ing, by the unbroken legislation of Congress, that it was considered that the moment negroes were let loose in any of the Slates or Territories, they became subject exclusively to State ai»d Ter- ritorial legislation.
[Mr. B. here sent to the Clerk's table, to be read, the following extract, from the writings of Mr. Giles:]
" When the bill was before the committee of the Senate who framed it, an inquiry took place re- B|K'cting all the material circumstances attending the African slave trade. Amongst other facts, it was in proof that the slaves were generally crowded in the slave vessels, and the vessels themselves in a filthy ondiiioii; from which circumstances, and the coarse and scanty fare furnished, the slaves generally arrived in this country in a sickly con- dition, and required immediate landing for their re- lief. These facts induced the committee to abandon all attempts at making provision for their imme-
I diate return to Africa in case of capture by Ameri- J can cruisers; which measure would have been pre- ' ferred, if deemed practicable. Their landing in the I United States thus liecoming necessary, a question I arose under what jurisdiction they would be placed ^ when brought into any port of the United States , within the limits of any jiarticular Slate or Terri- 1 tory? Would they be placed under the jurisdiction I of the United States, or under that of the particular I State or Territory within whose limits they should be landed? Here, then, the question of jurisdic- tion, between the United States and the individual State or Territory, as to the condition of (lersons brought within ihe limits of any Stsue or Territory, was directly presented for consideration. The wri- ter believes no subject ever presented to Congress demanded or received more mvesiigation and con- sideration; the result of which was, that the juris- diction was decided to be exclusively in the indi- vidual States and Territories; and ihe two prov isoes to the 4th arid Gih sections were pre[)ared with an express view to a legislative interpretation of the Constitution upon that momentous question.
" The following circumstances attending the de- cision of Congress, contained in the provisions of the 4tli and 6th sections of the bill, give the highest possible sanction to the precedent:
" 1st. The question of jurisdiction was dirtctly and siuglij brought into consideration.
"2d. The question was discussed upon its own intrinsic merits, uninfluenced by any extrinsiccon- siilerations whatever. Truth alone was iis object, uninfluenced by electioneering, or any other fanati- cal excitements.
"3d. The question arose from a specific pover granted by the Constitution to the Federal Gov- ernment, growing out of the general piAVcr retained by the States respectively; and the object of the provisoes was to draw the precise boundary line between the o^j-uii/k/ and the retaintd power. The greatest possible attention, 'therefore, was bestowed upon every word of the two provisoes.
" 4th. The discussion was lon^, considerate, and dispassionate, and eventuated in the conviction of every member ofboth Houses of Congress that the jurisdiction over persons was with the States re- spectively. The bill passed unanimously in the Senate, as is believed, the ayes and noes not be- ing taken, and with five disser)ting votes in the House of Representatives. Those votes were un- derstood to nave been given against the bill, in consequence of other objections.
" The principle contained in these provisoes produced the dificussion of the following qucsiions: Has slavery existed from the be;;iiniing of the world to this ilay, as far as authcniic ai counts of the human race have been recorded ? Is slavery recojnized and siiitctioned by the Constitution of the United States ' Is slavery recognized and sanc- tioned by the Holy Scriptures.' Is slavery recog- nized and s;tnctioned by international law? Is slavery recognized and enforced by the municipal laws of individual nations, and parlicularly by the municipal laws of the several States? What coer- cive acts performed by one or a lunnber of persons upon the body or bodies of others, would have the effect of reduoing those others to a state of slavery; or, in other words, to subjection to the will and dis[iosition of the person or persons exercising these coercive acts, according to the municipal
13
laws of individual nations and the sanctions of international law ?
" All these questions were most ably discussed < upon legal, political, and philosophical grounds, and eventuated in the conviction of every one, that, notwithstanding the refined sensibilities of the pres- ent times, .slavery then was, and always had been, a legal and actual condition of man, as deduced from all the preceding authoritative texts. The clause in the Constitution which authorized the passage of the bill from which the foregoing sec- tions are taken, is in the following words:
" ' 'I"hn iiiigr;itioii or im[iori;itioii of such pnrions as any 'of till; Slates now existing >tiall tliiiik projierlo admit, shall ' not lie prohiliileil hy the Conyies.s piior to the year iHgh- < teen hundieil anil eight; but a tax or duty may be imposed 'on sucli importation, noUexceediiig ten dollars for each 'person.'
" The preceding part of the 4th section, having interdicted the importation of slaves into the Uni- ted States, concludes as follows:
"'And neither tlie importer, nor any person or persons 'claiming from or under him, shall hold any right or title • whatsoever to any negro, mulatto, or person of color, nor 'to llie service or labor thereof, who may be imported or ' liroiiglit within the United States or Territories thereof, in 'violation of this law; but the same shall remain subject to ' any regulations not contravening the provisions of this act, ' which the Le^ulaiurcs of the several States or Territories 'at any time tkcreaflcr may make for disposing of any iuch 'negro, mulatto, or jierson of color.'
"The first part of this clause goes to declare, that ' neither the importer, &c., shall hold any right ' or title to any negro, &c., who may be imported, ' or brought within the United States or Territories ' thereof in violation of this law.' Here stops the jurisdiction of the United States under the foregoing clause of the Constitution — it does not pretend to exercise any Jurisdiction whatever over the person of the negro, &c.; but it then proceeds virtually to disclaiin all right to such jurisdiction, and virtually to declare that such jurisdiction is in the States and Territories within whose limits such negro, &.c., may be brought respectively. The words are, ' but the same shall RE.MAihf subject to any regulations not contravening the provisions of this act, which the legislatures of the several States or Territories, at any time hereafter, may make for disposing of any such negro, mulatto, or person of color.' This clause contains a virtual disclaimer of jurisdiction on the part of the United States, and a declaration, that ' the same shall remain subject to any regulations ' not contravening the provisions of this act, which ' the legislatures of the several Stales or Territories ' at any time hereafter may make,' &c. Here then it will be seen, that the jurisdiction over persons is declared to be in the legislatures of the Territories as well as of the States; to be exercised not merely now, but at any time hereafter, at their own discretion." (The italics in this extract are all Mr. Giles's.)
And in this same connection permit me to say that Mr. Adams, whose death has created such a sensa- tion in the country, was in the Senate at the time, and took an active part in all these proceedings.
It will thus be seen that Congress, under pecu- liarly imposing circumstances, when everything conspired to produce a just decision, has solemnly settled this whole question. And they decided it \vh\\ singular unanimity. And I ask gentlemen why they cannot now leave the jurisdiction over persons where the fathers of the Republic have decided it belongs ? Why will you permit your fanaticisoi to carry you so far as to violate the
Constitution and every fundamental principle of our Government ?
But I regard the Wilmot Proviso as designed to repudiate the Missouri compromise. If that com- promise is to operate, it is unnecessary; and gen- tlemen, in insisting upon it, rcjiudiate the Missouri compromise.
And gentlemen must excuse me for saying that I consider this bad faith upon the part of the non- slaveholding Stales. They cannot contend now, as they did in the debate last winter, that the Mis- .•souri compromise has no application, inasmuch as it only referred to territory which we possessed at the time" of its adoption. We did possess this ter- ritory then. But 1 do not admit that the Missouri com]iromise does not extend to territory which we did not then hold. I admit, in terms, it does not. But was it not equitable, was it not fair, as far a3 the non-slaveholding States are concerned.'' It clearly was not, sofara-s the South was concerned; there was no reciprocity in it. But this is imma- terial now. It is not the South that is seeking to discard it. Was it not fair, as far as the North is concerned? The conclusive fact which I have already' mentioned, obviates the necessity of any argument. It was the proposition of the J^'orth itself, carried by northern votes against southern voles and southern jirotests. In favor of the Missouri com- promise every Senator from the non-slaveholding States, except two, voted; and in the House of Representatives every member from the same States, except five, also voted for it. The North, at least, is estopped from complaining of its ine* quality. If it was fair and equal, as far as the ter- ritory we then possessed was concerned, why will it not be so as far as the territory to be acqii'ired hereafter is concerned? How is it, that in refer- ence to territory hereafter to be acquired, equality is not equity? Upon what principle is it, that ter- ritory, won by the common blood and the common treasure of every portion of the Union, is to be appropriated exclusively to aggrandize and aug- ment the power of one? Sir, this Utiion reals upon the basis of the most perfect equality among all its members; and whenever the government of it is administered for the exclusive advantage of any portion of it, its days will be numbered.
In the case of Texas, the Missouri compromise line was recognized as extending to territory to which it did not in terms apply. But gentlemen say the South voted against applying it to Texas. It is true we did; because, for the reasons I have given, v/e did not think Congress had the power to do it. But it was proposed by a gentleman from a non-slaveholding State, and it was carried by the Representatives of the non-slaveholding States. We could not vote for it, but we acqui- esced. Notwithstanding all this, in less than two years gentlemen who voted to extend the Missouri compromise to Texas, come forward and insist that the Missouri compromise has no application to territory which we did not possess at the time of its adoption. They are estopped by their own votes from taking this ground.
I have thus shown the iniquity and unconstitu- tionahty of this whole proceeding. But the worst of it is, according to gentlemen's own show- ing, it is a purely gratuitous outrage upon us. Nearly every gentleman who has spoken upon that side of the question admits, that as soon as
14
these territories are erected into States they may introduce slavt ry if they choose. Giant this, (and it IS too plain a iiroposition to admit of doulu or discussion,) and where the use of [)rohil)iting sla- very in a Territory? If you do nut prohibit it, it wdl never exist in regions unsuited to the black in;»n; and if you do while the Ttrntorics arc un- der your pu[)ilage, it will be introduced as soon as tlii-y are left to act for themselves wherever slave labor can be used to aiiviin'.uge. Suppose ne»ro slavery existed at this nionient in Maine, does any one doubt that it would soon be extirpated by the laws of nature, which are much stronger than the laws of man.' Sir, as the statistics show, the ne- gro cannot live and multiply there. Supiiosc, on the other hand, the while inhal)ilants of Jamaica were left free to act for thenis«J\es, ar^d there was not a negro in the island, docs any one doubt that they would introduce slavery .' Why, sir, even the Brit- ish Governinent itself, after havinij abolished sla- very there, at a great cost, but a short time since, to avert the ruin it h:\s brought upon the planters, is trying to reestablish it under flimsy disguises. Suppose there was not a slave in Mississippi, does any one doubt that slavery would be introduced at once? If any such an one'can be found, I point him to Texas. Slavery had been aliolished there; but she no sooner became independent than she rees- tablished it. To recur to the Oregon l)ill.
No one ever expects to see slavery established in Oregon. It is too far north; its productions are not suited to slave labor, and if they were, it would cost more to take a slave there than he would be woitli. But so far from this circumstance excusing the eflort to prohibit shivery, it only exposes the reprehensible dcsiirn of it. Tiie ell'ort is to eslab- lihh a precedent, where it will be iuojierntive, to Le followed in cases where it would produce its effect.
I have confined myself, as the committee will perceive, to the discussion of the question as to the
flower of Congress, under the Constitution, to pro- libit slavery in the Territories. There are other interesting questions which have been mooted of late, which I have purposely avoided debating. They arc first, whether, if we acquire territory where slavery does not exist, it will be legalized there by the very act of acquisition? and second, whether the people of the Territories, through their Territorial Legislatures, can prohibit slavery in the event of the first question being decided one way, or legalize it in the event it is decided the other? These questions, however interesting, are not for us to decide. They are strictly judicial questions, and to the courts I am williiiir, as I shall be bound, to leave them. They are quej-iions which Congress has no authority to settle; and they are questions which I do not wish to sec introduced here, or into the politics of the country. Neither the Congress nor the President can have anything to do in their solution. But very dillerent is the character of the principle of the Wilmot proviso. That looks to Congressional action and Kxecutive sanction, and it cannot be lost sight of. No strict constructionist, no Democrat, can be indifferent to the principles which I have shown it violates. I have therefore cmifined myself to it, and made no allusion to the oilier quest ions, any further than they Rre referrv<l to in the authorities i have/piofed.
I have also abstiiined, by design, from the dis- cussion of the (luesiion of slavery in its moral,
social, and political aspects. For, although I have very decided opinions ufion the subject, 1 do not fhink Congress has any jurisdiction over it, either in the StJites or the Tcrriiories; and therefore, as a member of Congress, I have no commission to debate it.
But there is one view of it, which has been pre- sented by the gentleman from Maine, [Mr. Sm.'Irt,] which 1 consider germane to the subject, and 1 therefore ask permission to notice it very briefly. He maintains that the prohiljition of slavery in the Territories,, does not prevent any white man from the slave States emigrating to them; whereas the permission of slavery excludes the white laljorers of the iion-slaveholding States. Now, sir, I hold that the very reverse of Ais is true. Prohibit slavery in a Territory, anJ in what jiosilion do you place a slaveholder who desires to emigrate? Before he goes, he must either sell his slaves, or emancipate them. But nineteen out of twenty of southern slaveholders, particularly in the old States, could not ado|)t the first branch of the alternative, without doing the greatest possible violence to every impulse of their hearts.
To nineteen out of twenty — indeed, I may say ninety-nine in every hundred — of the owjiers of slaves in those States, nothing is more trying to them than to be compelled to sell them. Most of them have been raised with them on the same plantation; they have enjoyed with them the sports of childhood, and they have a feeling towards them almost fraternal. They feel, tys I have always done, u religious duty to watch over and protect them. A master will resent an injury to his slave, as soon as to himself. Very often tliey do not feel at liberty to transfer the performance of this duty to another, of whose humanity nhey may know nothing. The consequence is, that slaves are very rarely sold from a calculation of profit. 1 have never known one thus sold. In the district of country in which 1 live, I have never known a negro sold, except for insubordination, or other crime, or where the master was compelled to sell in consequence of debt. (Of course, I do not al- lude to cases of sales made at the request of the slave himself.) And these forced sales are gen- erally the most trying acts of a man's life. Most slaveholders would be unwilling to sell their slaves preparatory to emigration.
The other branch of the alternative would be still worse. Most of us are unwilling to withdraw that protection to which our negroes are entitled by inheritanc<?, and doom them, as emancipation almost always docs, to the condition of miserable vagabonds, in which tluy would cease to be the slave of an individual whose interest and iiwlina- tion is to protect hiin, and become the slave of the conimunity with no wish but to degrade and op- )rcss him. Besides, in most of the slave States, lis remaining in the place of his nativity after emancipation is prohibited. Can the master take him with him, where still he might act as his friend? The laws of most of the non-slavcholding States prohibit him from taking him there as a free negro; and if Congress has jurisdiction of the sub- ject, the representatives of these States would scarcely Hnxe upon a Territory a species of popula- linn which their own States exclude. The people of the Territories, I venture to say, would prefer their being carried to them as slaves rather than as free
15
negroes. What, then, is a slaveholder thus situ- ated to do? You force him to do violence to his feelings, or abstain from emiijralion. You itnpose upon iiim a condition precedent to his enjoying a portion of the common projierty of the United States, which it is impossible for iiim to perform.
This is not speculation. How many of tlie Vir- irinia officers of the Revolution settled upon the lands reserved for ihem by tlie State from her mag- nificent donation to the Union? Scarcely one. The doubt about the validity of the ordinance, and the expectation that Ohio, as soon as she became a Slate, would abolish slaveiy, excluded them from their property as effectually as 'if they had been excluded by a jiositive law, and tliey were com- pelled to sell the finest land in the world for a mere pittance.
I know personally several instances where the descendants of those officers, wfto made as great sacrifices as men ever made, by the circumstances to which 1 have alluded, felt tliemselres and their posterity excluded from lands v.'hich their ances- tors had purchased by years of such toil and suf- fering as man rarely ever passed throuj^h.
But although many — not all, I admit — of the citizens of the slave States would be excluded by a slavery prohibition in the Territories; yet, in leaving them open, you would not exclude'any emigrants from the non-slaveholding States. And if it did, what tten would be more proper than to divide the Territories, so that there might be some to which every citizen of every State migjit remove with his property? There is no restriction upon white emigration in any of the slave States.
But the gentleman from Maine [Mr. Smart] says slavery, wherever it exists, degrades labor, and thus the free v.'hile laborers of the North are excluded. I have heard this assertion often made in this House, and it has always surprised me. It shows that want of information upon the subject which i.s always manifested here in the discussions .upon this subject. So far from its being true, the very reverse is the case. So far from slavery de- grading rlie condition of the free white laborer, the very reverse is the case, as the most notorious facts will prove. In a slave State, the distinctions in society do nolgrowoutof the difference of pursuits, but of condition and color. It is not the fact that the negro labors that degrades him; for let him be as idle as he may, even if he be able to live without work, his social position is still beneath that of the poorest white laborer. No v/hite man in the South considers labor degraded because negroes perform it, any more than they do religion, because many of them profess it. In truth, it is the only thing which tends to elevate them; and they are not de- graded because they follow an honest pursuit, but in despite of it. 1 have seen white men and their sons, worth thousands of dollars, working in the same field with their slaves. I have seen many as respectable men as are in my district or anywhere else, working side by side iii their fields with slaves they had hired. But they did not feel them,seives degraded, nor does anybody consider them so. Go through the State of Virginia, and you \i'ill find two-tliirdsof the strikers in the blacksmiths' shops negroes; but the white blacksmith does not con- sider hittiself degraded in consequence. On the contrary, they generally prefer it. They can make him perform menial duties in and about the shop,
wliich they would be reluctant to exact of n white man. There is one species of labor performed by negroes in the southern States, and but one spe- cies, which is conaidered degrading; but it is not so conaidered in the non-siaveholding State.-?. I mean menial lal)or. There is not a wliito man in my district who could be employed at any wages to become a boot-black, or a carriage-driver, or a dining-room servant. I repefit: in the non-slave- holding Stales, the distinctions in social intercourse grow out of wealth and pursuits; in the slave States, mostly out of color and condition. And I speak from minute personal observation when I say that distinctions in society, growing out of fac- titious circumstances, is infinitely greater in the non-slaveholding than in the slaveholding States. The respectable white laborers in the South are treated with an infinite deal of more courtesy and respect by men of other pursuits, than they are at the North, and their position in the social state is higher. And the reason is the one I have given.
I have heard it argued, too, that the rights of labor are not likely to be so well protected in a slave State as in a non-slaveholding State; and we have been told, that in the struggle going on between capital and labor for a fair distribution of the profits resulting from their joint capcjcities, labor is not likely to have as good a chance in a slave State as in a non-slaveholding State. And this has been assigned as a reason for excluding slavery from the new territories. If I have succeeded in show- ing tliat Congress has no constitutional power to exclude slavery from the territories, it is immate- rial whether this argument be true or false. But is it true? The very revertse is the case; and the reason is as obvious as the fact is notorious. Tell me a single occasion u|"ion which the slave States have been found favoring that system of class legis- lation which encourages the few at the expense of the many. Tell me of a single occasion, on which they have been found sustaining a system, the tend- ency of which is to enhance the profits of capital at the expense of the profits of labor. In a slave State there is no struggle, there is no antagonism between capital and labor. They are united in the same hands. The greater part of the capital of the southern planter, as the whole of the capital of the indigent white man, is labor.
Tlie southern capitalist is more interested in the profits of labor than he is in the profits of money or capital in its ordinary acceptation. You cannot impair the profits of labor without injuring the wealthy southern slaveholder. In this respect^he southern planter and the independent northern and western farmer, who cultivates his own land with own laboi', differs from nearly all other capitalists. They are interested both in the profits of capital and labor — generally more in the latter tlian the former; and hence you generally find both these classes opposed to all systems which are calculated to depress labor; and this is the real f)hilosophy of Mr. Jefferson's remark, that the Democracy of the North were the natural allies of the South.
I have thus shown, 1 think, that Congress has no authority to prohibit slavery in the Territories; that the attempt to do so is a gratuitous effort to violate the Constitution, where, ;even to attain the object of the movers, it is unnecessary; and that the reasons assigned for doing it are wholly with- out foundation.
lI v|
^ m vf.
*^ #■
■ 's^ 'f ^ ^ li^^Ai: '^t; '€^^- ;>^ Jl /I .
' V 'V ':*' '^ ■«! •'^ * :^ .^ • ■^ % fi -W; t % '
' "" ^' ^"f! %
;. .:t U it ^^^ 'A ;^' ^■*- .
#. ' i ;i ;^ ;i #
# ¥ ^^; :;€ # #
* .11
f ^'
it ;^
1^ t
^4 -t
•t m ■'» •* -i'
4 'U "% '^ '''■^'
i $ ;i »
'■ ;■# ■# ':ii ;% ^1^
•^ -'^ ^1- .f y. • :• ^t t ^•"
" i 'iJF. V V"
■I It
1 m
4 M
#■ 4 i
^ c% It
. ^■■■fi '4: '€ '^€ ^i * ;t.;t '/*,/
4 t
■^1 :it .^.
m- ^ M.
t # m
'4 ^f € \. .
■4 n -f 4
f^ #
M W f
M r
i 'i
^i •;!. .t Zl ^t .# ^
IT* "^t t ¥ *:' t If :^..
'4 'M It .|i .f t ^* '.^
■$ ;i ^r ^t ;^^ _ ,^ _ .
■:^ ..;-^ A
'4' 'M "M ■ * m 4 ^.
, '#■ ;f 4 ^ if ^ H
'"■'•■" '■>■■«■ II' # .^^ t
•f if. ;w
i #
f "y
t *
il # -4^ ■'
4^^'0 M 4 :# f .4 a A M
: 'I ^4 % -J..
; -4 '4 'l| "^ '""
^ ^^ * ^':f t ^t ^ :^ .«?. ;* /- . ■■-'•- -;^' '- -.f ii M 4 "# rt ^* t ,i*^ /t
^ # '■$ w ^ i! ^f- If ■*
-■'"•-^ >i'V '€ ¥ ■^- f -^^^^ .* :^' :-t M ' i^f '^ .1^ •;i % f ;f _# ;% '«
'■ 'm m -f V M y- .#. ;
^ W * ^ " . , _ "4 #■ ^ * ■* *■ V,
:| 14 'ei ^^1 '!'■ ""■ "^' ^
il-i # 11 ¥ # :f- '-.,. ^ ,_:-. ,,^-.; ,-:.,. .... ..^.
|
w |
# % |
■1 • |
t |
|
1^ |
|||
|
"U |
■-S |
i |
i l( tC ^W
^t. # -i-
^1 :% m
i-i :>^^
4 f| ;^| ,«!
^ 4 ■* :^
!^t -^ 'f "1^
'% '¥ .t '*
"■- ^^ "r^- ■«: ■
11 '-f IC ># M }t. :.^-.. :'^:
'^ '*■ ^# ¥ ., ^ "•*■ '4 -I
: ■%: % ^#
r 'i ■«■*:.'«■ ;jf if -^t ^ » * .*•
"H'.is "M "u is ■« :« /* .¥ M-t ,*■
■% ■'■%
$ n
^ f:
.f* ^
'^ I? >. /5^
■ j^ 1^. I^\ ^
* >, r.. *. >^, . V . / >. ^. >, > "
■ *• • ■ f ^% ^ >^ * > ?^. 5^
* ^ /
'p. .^
It ft ft
■#■ F
I. '^
y ;v ^
^■" ?^ ^ }t V-.
¥ !l 1^
, . J » V > J5 > "^ P
%' f > %• 1^ j^ .* f . *'. ^
n" *' ^" :^ K ^ ^s^KK^^^
v'»>' V. ?^. *. >.
„ . . /> ^ )l > > j^
\ » -^
,'\'^'
^ >. ^
* » > J
*•. fc. i«. *.
^ »■ » ¥
» »'■■
■ • 3
'% V »■ «»■ * * > .^ .* .«„
•• v'>- V. * >. ) I" fe. .V >, .«. »;
►- /•- ^. ?, "
■ v\ 35*. K * > '>„
. ^^' ¥ ^v> ^ I
.: ^* *.' f/ M. ^- *•
h' \ % * '- ^
* . * . *
%' %■ * * V )* :*-
% ]i j». .fc^.is. ». n »■ .? *• > » ^. .*. .V *. >.. *
^■ jS'' ■»'■ "^ »•
- '-,.• »• •!*• fe' ■
»»' i., fc & h >■• I
■ )»■ %■ H' i W * •« - i % % W 5f *■ * » 1
■' •■■ H' •# te' if te' .ifc » , ■ ■».■>■ .>• V V > *
\i ik: * »i !' V- ■•
* %■ -i' *• %■ *. >; :^^#l
I. f
1 a
■--■ ' ' ■ -■ >■ 9/ «« :i* S^. ^& » P >■. K h-
■t ' \
&.^' ■^t
4 t
■^- -f
4 t --n i% 4 f •€
■# f
: '4 n * •■^' '
|
■^ g 4 f -if If 4 ^ |
|
|
•4 .* |
|
|
■.If t |
|
|
f .t" |
,»■ * |
|
f Ml '4 fe/ '-^^ ■■■t •^ 1- ^ t- ^ ^ "^ HI- ^''^^i '^1 .^^ . : 'il 4 f f ^ |
# f
I .'^
^' 4 .^ ^ -I- I
I .t-
§. t- :« .i^
i^i- a
^ ¥.
«^ *
A.^AJ^^jr
■^"■M '■. . .
'I ^^ 'i*
u- f
... .- '^t 't -f # -t * -^^ .* '■' 'I 'i \i U '4 vi % ^t -^ ,c .J. , . ^
>i i .A II 't' "a
n M ^ ■% U
4 i- ^i 15 ^■■
^ji ',!• 4 d- . ■•# '4 f- ^ *^
.t :^ c% li M .
.t .t
l"4' 'It ;rf
n
:'^ .c:
f ;i.
4 M'
:i^ '?! ¥
.^. -f «: ■«?
•■'" '% M % m % ^ '"'4 ^f 'i 4 ti .;* • ^ :tf « t.
,. :# t ^ ■
■v?i5 '0 "^ '^' II "
: M^ 'M ^ # \
■•"" "^ rt ■* '^ ^ ^* ; -p. f * ■'^r
.J ^i; ■*"# ;<. ^*, -.. ' "" '-i 'iff t 4 If
:ii '4 f ^ ;< .i( ;*
. ■■■*"^ ^*->. - . . .
■ '-~^"- .■4 .^4 . ." * . MJ «
% If liC ^1" "i '^ ■■^. ......
IT t
.1 -I? U '%■ -^
•I '^ll 'i '%{ ,* M *( ■
-t ' €' 4: t^. %■ ^^ ^1 -i-
■^"t'H -i 'M 'U ^ ^ . ""i: ■# ■# 'll % %. •* *
,. ■•t:"°l \i •-.., .. ,
if 't: ^^ 1^ ^ .* ;'. '^' '^4^ '-M 0 4- --^ ^-^ ■
J "1;^ ;# 'I. '•¥ '¥ r '.i^ ■# t .f t^ ;t^ t; '#■ 'i^ '-^ ■,#" i^^ ts^ 1^ ^
.f ?i;
t^: ."
m f# f» ^ -^^ •-./,.•
to