HISTORICAL AND LEGAL
EXAMINATION
OF THAT PART OF THE
DECISION OF THE SUPREME COURT OF THE UNITED STATES
IN THE
DEED SCOTT CASE,
WHICH DECLARES THE
UNCONSTITUTIONALLY OF THE MISSOURI COMPROMISE ACT,
AND THE SELF-EXTENSION OF THE CONSTITUTION TO
TERRITORIES, CARRYING SLAVERY ALONG WITH IT.
TO
CONTAINING :
I. THE DEBATES IN THE SENATE IN MAECH, 1849, BETWEEN ME. WEBSTEE AND MB. CALHOUN,
ON THE LEGISLATIVE EXTENSION OP THE CONSTITUTION TO TEEEITOEIES, AS CONTAINED IN VOL.
II. CH. CLXXXII. OF THE "THIRTY YEABS' VlEW."
II. THE INSIDE VIEW OP THE SOUTIIEEN SENTIMENT, IN EELATION TO THE WILMOT PEOVISO,
AS SEEN IN VOL. II. Cn. CLXVIII. OP THE "THIETT YEABS' VIEW."
III. EETIEW OF PRESIDENT PIEECE'S ANNUAL MESSAGE TO CONGRESS OF DECEMBER, 1856,
60 FAB AS IT EELATES TO THE ABROGATION OF THE MISSOURI COMPROMISE ACT AND THE CLASSI
FICATION OF PARTIES.
BY THE
AUTHOR OF THE " THIRTY YEARS' VIEW."
7#
t^n**** <* 4si\>io-^ \
NEW YORK:
D. APPLETON AND COMPANY,
346 & 348 BEOADWAY, NEW YORK.
1857.
Entered, according to Act of Congress, in the year 1867, by
D. APPLETON & COMPANY,
In the Clerk's Office of the District Court of the United States for the Southern District of
New York.
NOTIFICATION TO THE READER.
The writer of this " Examination " was breaking down under
the approaches of a terrible attack, while he was still engaged
in writing it, and was prostrate before it was finished, leaving
some heads untouched, and the outline of others only sketched.
Among these last was the head which related to the temporary
government in Florida, and the transactions under it ; General
Jackson being Governor, and commissioned (according to the
act under which he was appointed) with the powers of Captain-
General and Intendant of Cuba, the Floridas having been a de
pendency of that Captain-Generalship. The " Examination "
states (and all whose memory or home reading goes back twen
ty-five years, well know the fact), that the power of Captain-
General and Intendant was no barren sceptre in Jackson's hand ;
that he found occasion to use the power, and did so with the
energy which belonged to his nature, and was sustained by Mr.
Monroe's Administration. But the history of the transactions
was not gone into, and the general assertion remained without
the justification which this history would give it. That history
is now supplied, and will be found in the Abridged Debates of
Congress, text and notes (volume vn., now about ready for the
press) ; and is surely of a character and of an authority to put
an end to the " Opinion " which nullifies the Missouri Compro
mise Act, and self-extends the Constitution to territories. With
out going further into that history in this brief post scriptum no
tification, and confining himself to the precise point in issue, the
NOTIFICATION TO THE READER.
writer will say, that the Administration of Mr. Monroe, express
ly, by unanimous Cabinet decision ; and each House of Con
gress, impliedly, and without division, decided that no part of
the Constitution and no Act of Congress went to a territory, un
less extended to it by Congress. The occasion for making this
decision was this : — Judge Fromentin issued a writ of Habeas
Corpus to have the body of Ex-Governor Callava (then impris
oned by the order of General Jackson) brought before him,
claiming the right to do so under the Constitution, and under
the laws of Congress, vesting U. S. Judges with that power.
Gov. Jackson denied the power, and dealt militarily with the
Judge for issuing the writ, telling him that no part of the Con
stitution had been extended to the Floridas, nor any Act of
Congress, authorizing him to issue the writ. The case was
brought before the President and before Congress, and received
the decision above stated. And this writer takes it upon him
self to affirm (and he was cotemporary with the event, as well
as having now traced its history) that the decision of the Cab
inet was unanimous upon the point here mentioned, namely :
that Judge Fromentin had no right to issue the writ of Habeas
Cwpus, because no part of the Constitution, nor any Act of
Congress authorizing the writ, had been extended by Congress
to that territory.
WASHINGTON CITY, NOT. OTH, 1857.
IOTKODUCTOKY NOTE.
THE title is an index to the character of this Examination,
which only goes to the two points mentioned ; and goes to them
because they are held to be political, affecting Congress in its
legislative capacity, and on which the Supreme Court has no
right to bind, or control that body : as heretofore seen in the
case of the Bank of the United States, the Sedition law, &c. ;
cases in which Congress followed its own opinion of its own
powers, regardless of the Court's decision ; and the Court had
no way to compel it to obedience, or to punish it for contempt.
Congress holds its powers from the Constitution, where every
grant of authority is preceded by the words — "Shall have
power to : " and to the support of which the members are
sworn. The grant of power is from the Constitution, and the
oath is to the Constitution ; and it is written, that its words, al
ways the same, may be always seen, and no excuse for disre
garding them. The duty of the member — his allegiance — his
fealty — is to the Constitution ; and in performance of this duty
—in the discharge of this allegiance — in the keeping of this
fealty — he must be governed by the words of the instrument,
and by the dictates of his conscience. The member may en
lighten himself, and should, with the counsels of others : but as
authority — as a rule of obligation — as a guide to conduct — the
Constitution and the oath alone can govern ; and were it other
wise — was Congress to look to judicial interpretation for its
powers — it would soon cease to have any fixed rules to go by :
would soon have as many diverse interpretations as different
courts : and the Constitution itself, like the Holy Scriptures,
in the hands of councils and commentators, would soon cease to
be what its framers made it.
INTKODUCTOEY NOTE.
The power of the Court is judicial — so declared in the Con
stitution; and so held in theory, if not in practice. It is limited
to cases "m law and equity f1* and though sometimes en
croaching upon political subjects, it is without right, without
authority, and without the means of enforcing its decisions. It
can issue no mandamus to Congress, or the people, nor punish
them for disregarding its decisions, or even attacking them.
Far from being bound by their decisions, Congress may proceed
criminally against the judges for making them, when deemed
criminally wrong — one house impeach and the other try : as
done in the famous case of Judge Chase.
In assuming to decide these questions, — (Constitutionality of
the Missouri Compromise, and the self-extension of the Consti
tution to Territories,) — it is believed the Court committed two
great errors : first, in the assumption to try such questions:
secondly, in deciding them as they did. And it is certain that
the decisions are contrary to the uniform action of all the de
partments of the government — one of them for thirty-six years ;
and the other for seventy years ; and in their effects upon each
are equivalent to an alteration of the Constitution,f by insert-
* The judicial power shall extend to all cases, in law and equity, arising under
this Constitution, the laws of the United States, and treaties made, or which shall be
made, &c. — Article ///., Sec. 2.
•{• " The question here is, whether they (the arguments referred to) are sufficient to
authorize this Court to insert into this clause of the Constitution an exception of the
exclusion or allowance of slavery, not found therein, nor in any other part of that in
strument. To ingraft on any instrument a substantire exception not found in it, must
be admitted to be a matter attended with great difficulty. And the difficulty increases
with the importance of the instrument, and the magnitude and complexity of the
interests involved in its construction. To allow this to be done with the Constitution,
upon reasons purely political, renders its judicial interpretation impossible — because
judicial tribunals, as such, cannot decide upon political considerations. Political
reasons have not the requisite certainty to afford rules of juridical interpretation.
They are different in different men. They are different in the same men at different
times. And when a strict interpretation of the Constitution, according to the fixed
rules which govern the interpretation of laws, is abandoned, and the theoretical
opinions of individuals are allowed to control its meaning, we have no longer a Con
stitution ; we are under the government of individual men, who for the time being
have power to declare what the Constitution is, according to their own views of what
it ought to mean. When such a method of interpretation of the Constitution obtains,
in place of a republican Government, with limited and defined powers, we have a
Government which is merely an exponent of the will of Congress ; or what, in my
opinion, would not be preferable, an exponent of the individual political opinions of
the members of this Court." — Mr. Justice Curtis.
INTEODUCTOKY NOTE. 5
ing new clauses in it, which could not have been put in it at
the time that instrument was made, nor at any time since, nor
now.
The Missouri Compromise act was a "political enactment"
made by the political power, for reasons founded in national
policy, enlarged and liberal, of which it was the proper judge :
and which was not to be reversed afterwards by judicial inter
pretation of words and phrases.
Doubtless the Court was actuated by the most laudable
motives in undertaking, while settling an individual controversy,
to pass from the private rights of an individual to the public
rights of the whole body of the people ; and, in endeavoring
to settle, by a judicial decision, a political question which en
grosses and distracts the country : * but the undertaking was
beyond its competency, both legally and potentially. It had
no right to decide — no means to enforce the decision — no ma
chinery to carry it into effect — no penalties of fines or jails
to enforce it : and the event has corresponded with these in
abilities. Far from settling the question, the opinion itself
has become a new question, more virulent than the former !
has become the very watchword of parties ! has gone into
party creeds and platforms — bringing the Court itself into
the political field — and condemning all future appointments
of federal judges, (and the elections of those who make the ap
pointments, and of those who can multiply judges by creating
new districts and circuits,) to the test of these decisions. This
being the case, and the evil now actually upon us, there is no
resource but to face it — to face this new question — examine its
foundations — show its errors ; and rely upon reason and intelli
gence to work out a safe deliverance for the country.
Repulsing jurisdiction of the original case, and dismissing it
for want of right to try it, there would certainly be a difficulty
in getting at its merits — at the merits of the dismissed case
itself ; and, certainly, still greater difficulty in getting at the
merits of two great political questions which lie so far beyond
it. The Court evidently felt this difficulty, and worked sedu-
* " The case involves private rights of value, and Constitutional principles of the
highest importance, about which there has become such a difference of opinion that the
peace and harmony of the country required the settlement of them by a judicial de
cision." — Mr. Justice Wayne.
INTRODUCTORY NOTE.
lously to surmount it — sedulously, at building the bridge, long
and slender — upon which the majority of the judges crossed the
wide and deep gulf which separated the personal rights of Dred
Scott and his family from the political institutions and the po
litical rights of the wrhole body of the American people. They
did their work to their satisfaction, and it is right they should
have the benefit of it in their own words : which are here ac
cordingly given :
" The principle of law is too well settled to be disputed, that a
court can give no judgment for either party, where it has no jurisdic
tion ; and if, upon the showing of Scott himself, it appeared that he
was still a slave, the case ought to have been dismissed, and the judg
ment against him and in favor of the defendant for costs, is, like that
on the plea in abatement, erroneous, and the suit ought to have been
dismissed by the Circuit Court for want of jurisdiction in that Court.
" But, before we proceed to examine this part of the case, it may
be proper to notice an objection taken to the judicial authority of this
Court to decide it ; and it has been said that, as this court has decided
against the jurisdiction of the Circuit Court on the plea in abatement,
it has no right to examine any question presented by the exception ;
and that any thing it may say upon that part of the case will be extra-
judicial, and mere obiter dicta.
u This is a manifest mistake ; there can be no doubt as to the juris
diction of this court to revise the judgment of a circuit court, and to
reverse it for any error apparent on the record, whether it be the error
of giving judgment in a case over which it had no jurisdiction, or any
other material error ; and this, too, whether there is a plea in abate
ment or not.
" The correction of one error in the Court below does not deprive
the appellate court of the power of examining further into the record,
and correcting any other material errors which may have been commit
ted by the inferior Court. There is certainly no rule of law — nor any
practice — nor any decision of a court — which even questions this power
in the appellate tribunal. On the contrary, it is the daily practice of
this Court, and of all appellate Courts where they reverse the judgment
of an inferior court for error, to correct by its opinions whatever errors
may appear on the record material to the case ; and they have always
held it to be their duty to do so where the silence of the court might
lead to misconstruction or future controversy, and the point has been
relied on by either side, and argued before the Court."
INTRODUCTORY NOTE. 7
This is the justification for going into the merits of the Scott
case after deciding there was no right to try it : (for the want
of jurisdiction is the want of a right to try, or even to examine
a case :) and the strength of this justification, compressed into a
few words, seems to be, that the Supreme Court, in its appel
late character, has a right, in reviewing judgments at common
law, to go beyond the errors on which the appeal was taken,
and search for other errors in the record : and correct all that
can be discovered. Without impugning this practice in the
least — admitting its entire correctness in cases where the reason
for it applies — it is believed that the reason for the practice had
no application in this case : that, far from applying, it was ab
solutely forbidden by the reason on which it was founded. That
reason is, that a return of the record to the Court below with
errors in it, would be a silent sanction of those errors — would
cause them to be repeated by the court below, and give parties
the delay and cost of another appeal ; and the Supreme Court
the trouble and care of a new decision. But that delay, and
cost and trouble, can only be where the case is remanded for re
trial, and never when it is remanded to be dismissed for want of
jurisdiction. In this latter case there is no danger of a repeti
tion of the error. In the case of such dismission there is nothing
further fco1 the Court below to do — no repetition of error for it
to commit — no future trouble to be given to the Court above —
nor any future cost or delay to the parties. Tested by its reason,
and this rule of practice could not gbtain in the Dred Scott
case : tested by actual practice, if a case in point — (dismission
for want of jurisdiction, and still a correction of all discovera
ble errors) — can be found, and it is believed the rule will fail in
this case as completely for want of precedent as for want of
reason. In this case, the suit was dismissed for want of juris
diction, and that in the first step of the plaintiff in getting into
court.* He was turned back from the door, for want of a right
to enter the court room — debarred from suing, for want of citi-
* " Upon the whole, therefore, it is the judgment of this Court, that it appears by
the record before us that the plaintiff in error is not a citizen of Missouri, in the same
sense in which that word is used in the Constitution ; and that the Circuit Court of
the United States, for that reason, had no jurisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequently, he reversed, and
& mandate issued, directing the suit to he dismissed fx>r want of jurisdiction." —
Opinion of the Court.
8 INTRODUCTORY NOTE.
zenship ; after which it would seem to be a grave judicial
solecism to proceed to try the man when he was not before the
Court, and when he could take nothing from its decision if the
merits had all been found in his favor.
These remarks are made without reference to Scott, or to
any injury, real or supposed, which might concern him: they
are made wholly in relation to the two great political questions
which I handle, and to show that the Court had no jurisdiction
of them — no legal way to get at them — no foundation to stand
upon in concatenating that chain bridge of slender links on
which the Court crossed from Scott and his family, and their
claim to personal freedom, to the whole people of the United
States, and their political government. It was by going into the
merits of the Scott case, that the Court got hold of the Constitu
tion and the Missouri Compromise ; and I think, with Mr. Jus
tice Curtis, in his dissenting opinion,* that so grave an inquiry,
going to the foundations of our government, ought not to be got
hold of in that incidental, subaltern, and contingent way. Even
if there had been jurisdiction in the Scott case, and the Court had
got fairly at that case, I cannot consent that so momentous po
litical questions should have been hung on to it, and tried as
""appendant, and been saved, or condemned, as a mere conse
quence of the decision of the question of personal freedom to
Dred Scott, his wife and children. Such parties as the Congress
and the people, their Constitution and its administration, are
certainly of sufficient dignity to have a trial of their own, and
to be present at it by their counsel. Who was counsel for these
parties on that trial of Scott and his family ? Nobody ! for the
* " I regret I must go further, and dissent both from what I deem their assump
tion of authority to examine the constitutionality of the act of Congress commonly
called the Missouri Compromise Act, and the grounds and conclusions announced in
their opinion.
" Having first decided that they were bound to consider the sufficiency of the plea
to the jurisdiction of the Circuit Court, and having decided that this plea showed that
the Circuit Court had not jurisdiction, and consequently that this is a case to which
the judicial power of the United States does not extend, they have gone on to examine
the merits of the case as they appeared on the trial before the Court and jury, on the
issues joined on the pleas in bar, and so have reached the question of the power of Con
gress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that,
in my opinion, such an exertion of judicial power transcends the limits of the authority
of the Court, as described by its repeated decisions, and, as I understand, acknowledged
in this opinion of the majority of the Court." — Mr. Justice Curtis.
INTRODUCTORY NOTE. 9
very respectable counsel who appeared were the counsel o£.
Scott ; and their business was to save Scott ! save him as th£ .
primary object ! leaving the safety of the other parties for a
secondary object, and a mere resulting consequence.
What makes this assumption of authority the more regret-
able, is the perfect immateriality to the parties, (Scott and his
master,) as declared by the Court, of the consequences of termi
nating the case, either by dismission for want of jurisdiction, or
by judgment on the merits for the defendant — both modes of
terminating it being about the same, (as declared by the Court,)*
in its consequences to each party, personally and pecuniarily.
Now, when the consequences either way would have been so
immaterial to the parties to the suit — to Scott and to Sanford—
why take the course which has been so serious to our Constitu
tion ? so contrary to seventy years' action of our government ?
so inflammatory to political parties ? and so aggravating to the
spirit of sectional division ?
But there is another view to be taken of this point — (the
Court's assumption of jurisdiction over the Constitution and the
compromise) — which shows that, according to the opinion of
the Court itself, there wras no necessity, in deciding upon the
question of freedom or slavery to Scott and his family, to decide
upon the constitutionality of the Missouri Compromise Act. That
view of the case is this : that it was a case of two aspects, —
one, that of Scott alone ; the other, that of himself and family
together; in fact, two different cases, in one of which Scott
stood alone, and in the other he and his family stood together.
Thus, before he had a family, Scott had been carried by his
owner from Missouri into the State of Illinois, where the ordi
nance of '87 against slavery was admitted by the Court to be in
full force ; but which residence in a free State gave him no
freedom, because being brought back to the State of Missouri,
his condition depended upon the laws of Missouri, and not of
* " It is true that the result either way, by a dismissal or by a judgment for the
defendant, makes very little, if any, difference in a pecuniary or personal point of view
to either party. But the fact that the result would be very nearly the same to the
parties in either form of judgment, would not justify this Court in sanctioning an error
in the judgment which is patent on the record, and which, if sanctioned, might be
drawn into precedent, and lead to serious mischief and injustice in some future suit." —
Opinion of the Court.
10 INTRODUCTORY NOTE.
, Illinois.'54' Upon the same principle, Scott and his whole family
having been taken back to Missouri from the north side of the
compromise line, would have their free or servile condition
determined by the laws of the State to which they were return
ed, and not by those of the Territory in which they had sojourned.
So that, free soil or slave soil north of 36° 30', made no difference
to the sojourning slaves brought back. And in this part of the
case the Court says : " As Scott was a slave when taken into
the State of Illinois by his owner, and was there held as such,
and brought back in that character, his status, as free or slave,
depended on the laws of Missouri, not of Illinois." So that, to
the decision of the question of freedom or slavery to Scott and
his family, the validity or immateriality of the Missouri Com
promise Act was wholly immaterial, and entirely unnecessary
to be determined. I say nothing about this as law : I take it as
I find it in the pronounced opinion of the Supreme Court ; f
and so taking it as the Court's own law, I must be allowed to
* " But there is another point in the case which depends on the State power and
State law. And it is contended, on the part of the plaintiff, that he is made free hy
being taken to Rock Island, in the State of Illinois, independently of his residence in
the territory of the United States ; and being so made free, he was not again reduced
to a state of slavery by being brought back to Missouri. Our notice of this part of the
case will be very brief; for the principle on which it depends was decided in this Court,
upon much consideration, in the caso of Strader et al. v. Graham, reported in 10th
Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with
the consent of the owner, and afterwards brought back to Kentucky. And this Court
held that their status or condition, as free or slave, depended upon the laws of Ken
tucky, when they were brought back into that State, and not of Ohio ; and that this
Court had no jurisdiction to revise the judgment of a State court upon its own laws.
This was the point directly before the Court, and the decision that this Court had not
jurisdiction turned upon it, as will be seen by the report of the case. As Scott was a
slave when taken into the State of Illinois by his owner, and was there held as such,
and brought back in that character, his status, as free or slave, depended on the laws
of Missouri, and not of Illinois." — Opinion of the Court.
\ For my opinion of the law I am willing to take it as declared by Mr. Chief Justice
Gamble, of the Missouri Supreme Court, in a long course of decisions at times when
the question had not become partisan, political and geographical, and when there were
no new lights suddenly breaking out to throw all past wisdom in the shade. But to
Judge Gamble's opinion : — " I regard the question as conclusively settled by repeated
adjudications of this Court ; and if I doubted or denied the propriety of those decisions,
I would not feel myself any more at liberty to overturn them, than I would any other
series of decisions by which the law upon any other question had been settled. There
is with me nothing in the law of slavery which distinguishes it from the law on any
other subject, or allows any more accommodation to the temporary excitements which
INTRODUCTORY NOTE. 11
believe that, in no possible aspect of the Scott case, even in a
trial on the merits, and with clear jurisdiction, was there the
least necessity to judge the Compromise Act and the Constitu
tion : consequently, that the act of the Court in judging them
was unnecessary and extra-judicial. So that the decision of the
Court seems to be open to the preliminary objections of assum
ing jurisdiction where it had none — hunting for errors by virtue
of a rule which did not apply — making a bridge to get from a
case of personal rights to a question of political power — and act
ing, without necessity, in a case of no consequence to the parties,
on a different case dreadfully momentous to the public.
This is the exposition of the first great error of the Court, as
I hold it, in the part of its opinion which I propose to examine :
the error of assuming without right, and without necessity, to
decide upon the constitutionality of the Missouri Compromise ^
Act, and the self-extension of the Constitution to territories. The
second great error is in the decision itself upon these questions.
I propose to examine these decisions ; and in doing so, limit my
self, as the Court did, to the strict legal inquiry which the sub
ject exacts. I shall not go beyond this limit — although as a
political subject entirely appropriate to do so — to inquire into
the origin and design of the course of measures which have pro
duced the present disturbance in the Union, and in the attempt
to compose which by a judicial decision the Court overrules the
action of two generations, virtually inserts a new clause in the
Constitution, changes its character, and makes a new point of
departure in the working of the Federal Government. That
task belongs to history, veracious and fearless, and will require
a chapter of its own in the annals of our Union.
The Court sets out with a fundamental mistake, which per
vades its entire opinion, and is the parent of its portentous
have gathered around it. ***** But in the midst of all such excitement,
it is proper that the judicial mind, calm and self-balanced, should adhere to principles
established when there was no feeling to disturb the view ot the legal questions upon
which the rights of parties depend. In this State it has been recognized from the be
ginning of the Government as a correct position in law, that the master who takes his
slave to reside in a State or Territory, where slavery is prohibited, thereby emancipates
his slave." (Winney »• Whitesides, 1 Mo. 473 ; Le Grange v. Chouteau, 2 Mo. 20 ;
Milley v. Smith, Ib. 36 ; Ralph v. Duncan, 3 Mo. 194 ; Julia v. McKinney, Ib. 270 ;
Nat v. Ruddle, Ib. 400 ; Rachel v. Walker, 4 Mo., 350 , Wilson v. Melvin, 592.)— Chief
Justice Gamble, Missouri Supreme Court.
12 INTRODUCTORY NOTE.
errors. That mistake is in the assumption, that the Constitution
extends to Territories as well as to States, and includes these in
fant settlements in the provisions made for sovereign States.
Well do I remember the day — -and if I had forgotten it, parlia
mentary history would preserve its memory — when a view of
that doctrine was first revealed* to the astonished vision of the
American Senate. It was in the last days of the Session 1848-
'49, and in an unparliamentary attempt to hitch on to the Gen
eral Appropriation Bill, which had come up from the House, the
defeated bills (three made into one) for giving territorial govern
ments to California, New Mexico, and Utah. These territories
had remained without governments for nearly two years — all
attempts at legislating for them being baffled, first , by the move
ment of Mr. Wilmot to prohibit the introduction of slavery,
(defeated because the prohibition was already complete under
the Mexican laws,) — and, next, by the movements of Mr. Calhoun
to carry slavery there. It was an injury to these territories, a
reproach upon our Government, and a humiliation to Congress,
to remain in this state of impassibility with respect to the gov
ernment of the new acquisitions. But the power of Congress
"First revealed:" for it had been there once before, without a revelation of
itself. It was the session before, in one of the many abortive bills for giving govern
ments to these territories, reported from a committee specially appointed for the pur
pose, composed of Mr. Calhoun and a majority of his immediate friends and sympa
thizers on the slavery subject. It was a conglomerate bill which lumped all the terri
tories together — even Oregon. It was an enormously long bill of three dozen ponder
ous sections, the penultimate one of which, namely, the 35th, was in these words :
" The Constitution and the laws of the United States are hereby extended over and de
clared to be in full force in said territories of New Mexico and California, so far as the
same, or any provision thereof, may be applicable." — This comprehensive section, the
only short one in the bill, but so new and startling, was relegated to its fag-end, where
nothing but details of form are ever found — details to carry out principles contained
in the front sections, and upon which alone the bill is debated — and seems to have
escaped all notice at the time. No speaker mentioned it, and there were many able
jurists who spoke on the bill — among others, Mr. Webster. No one hinted at it — a per
suasive evidence that no one knew of it but those who put it there, and who had the
same reason for not referring to it that they would have for putting it where it would
not be seen. Mr. Benton voted for the bill without knowing such a provision was in
it — nor did he know of it until long after. — This bill did not become law, and has passed
into the receptacle of things forgotten, but its remembrance may be of some value
now in showing that, on that day, (July 22d, 1848,) the authors of that bill deemed an
act of Congress necessary to carry the Constitution into a territory, and give it force
therein the same as statutes of Congresss — and so classed it with the statutes to be
extended.
INTRODUCTORY NOTE. 13
was paralyzed by the pertinacity of two extremes, which, oper
ating from opposite points, and with mutual crimination of each
other, worked to the same effect in baffling Congress, and co
operated in producing the same results while denouncing each
other's means — each extreme a minority, and unable to do any
thing of itself, but potent enough in conjoint action to prevent
Congress from doing any thing. A succession of bills intro
duced during three Sessions to give governments to these orphan
territories, had each been defeated ; and now Congress was at
the end of its Session, and at the end of the Administration
which acquired the territories, and a recess of nine months in
view ; and the same abortive result to the territorial bills. In
this extreme moment, the civil and diplomatic bill, commonly
called the General Appropriation Bill — the one on which the
life of the Government depended, and to which nothing extra
neous could be added — came up from the House, matured by
that body, and only waiting the action of the Senate upon it.
The Senate had acted — had made the appropriate additions ger
mane to the bill — had finished the bill, and was on the point of
returning it to the House, when Mr. Isaac P. "Walker, of Wis
consin, moved to amend it by adding to it a lumping bill for the
government of the three territories. The proposition fixed no
attention, and seemed to excite no concern, being considered un
sustainable 011 a question of order, until it took a sudden and
sharp turn into the epidemic slavery question. For, it seemed
to be with the mind in those days as it was with the body in the
time of the great plague in Athens during the " Thirty Years'
"War," when the historian Thucydides says — That whatever dis
ease a man had before, or might take during the time, no matter
what, it immediately ran into the plague, and took the form of
that pestilence, entirely losing its own milder character in the
virulence of the prevailing distemper : so, in the mental malady
of our slavery agitation, all questions in Congress immediately
ran into that malady, and took the form of the slavery question.
So of this proposed amendment of Mr. Walker. It had nothing
to do with slavery, and no affinity to the Appropriation Bill ; and,
left to itself, would have been quickly disposed of — either ruled
out as disorderly, or rejected as objectionable. But its nature
was wholly altered after he had first presented it. At that first
presentation it contained a section, as does every territorial
14: INTRODUCTORY NOTE.
government bill, extending certain enumerated acts of Congress
to the territories — such acts as Congress thinks proper to extend
— no act of Congress obtaining force in a territory, unless ex
pressly spread over it. Mr. Walker's bill conformed to this
practice. It contained the usual list of acts which were suitable
to territories ; for the list is nearly always the same.
Nothing was done upon this proposition the day it was
offered. It remained unacted upon during that day. The next
day Mr. Walker asked the leave of the Senate to modify his
amendment, at the request of a friend, as he said. Leave was
given, and the modification made in open Senate, and consisted
of heading the list of the enumerated acts of Congress, wTith the
Constitution : so as to make the list read, " The Constitution of
the United States, and all and singular the several acts of Con
gress (describing them) be, and the same hereby, are extended over
and given full force and efficacy in the said territories" The
novelty and strangeness of this proposition called up Mr. Web
ster, who repulsed as an absurdity, and as an impossibility, the
scheme of extending the Constitution to territories — declaring
that instrument to have been made for States, not territories —
that Congress governed the territories independently of the Con
stitution, and incompatibly with it — that no part of it went to a
territory but what Congress chose to send — that it could not act
of itself anywhere, not even in the States for which it was
made : and that it required an act of Congress to put it into
operation before it had effect anywhere.* This was clear con
stitutional law, shown in the preamble to the Constitution, and
in every word of it, that it was made for States — so understood
* But this is a case in which Mr. Webster should have his own words — at least a
few of them ; and here they are : " Let me say, that in this general sense there is no
such thing as extending the Constitution. The Constitution is extended over the
United States, and nothing else. It cannot he extended over any thing, except the old
States and the new States that shall come in hereafter, when they do come in. There
is a want of accuracy of ideas in this respect that is quite remarkable, among eminent
gentlemen, and especially professional and judicial gentlemen * It seems to be taken
for granted that the right of trial by jury, the habeas corpus, and every principle
designed to protect personal liberty, is extended by force of the Constitution itself over
every new Territory. That proposition cannot be maintained at all. How do you
arrive at it by any reasoning or deduction ? It can only be arrived at by the loosest
of all possible constructions. It is said that this must be so, else the right of habeas
* Stick a pin here. Mr. Webster points out lawyers and judges as being specially
befogged on this point. Nothing but a sense of painful duty could have carried Mr. W.
out of his way to make such a remark of a profession of which he was himself the highest
ornament, and of the ermine which he so much reverenced.
INTRODUCTORY NOTE. 15
in the legislation of seventy years — every part of it requiring a
specific law to execute it before it could be enforced. Even the
oath commanded by the Constitution could not be taken until
an act of Congress was passed to prescribe the mode, and that
act was !N"o. 1 of the acts of the first Congress, and required the
members who made it, (and who had been sworn in by a volun
tary resolution for the purpose of making it,) to be sworn in un
der it immediately ; and all other officers as soon as appointed.
So of every other clause of the Constitution, no matter how
plain or peremptory the provision. Nothing could be done un
der it without a law, as in the case of fugitives from service or
corpus would be lost. Undoubtedly, these rights must be conferred by law before they
can be enjoyed in a Territory." — Webster, March 3d, 1849.
To the same effect Mr. Clay, when he first heard of this new doctrine, which was
near the end of his natural as well of his parliamentary life :
" Now, really, I must say that the idea that eo instanti upon the consummation of
the treaty, the Constitution of the United States spread itself over the acquired territory,
and carried along with it the institution of slavery, is so irreconcilable with any com
prehension, or any reason that I possess, that I hardly know how to meet it. Why,
sir, these United States consist of thirty States. In fifteen of them there is slavery :
in fifteen slavery does not exist. How can it be argued that the fifteen slave States,
by the operation of the Constitution of the United States, carried into the ceded country
their institution of slavery, any more than it can be argued upon the other side, that
by the operation of the same Constitution the fifteen free States carried into the ceded
Territories the principle of freedom, which they, from views of public policy, have
chosen to adopt within their limits ? Let me suppose a case. Let me imagine that
Mexico had never abolished slavery there at all. Let me suppose that it was existing
there, by virtue of law, from the shores of the Pacific to those of the Gulf of Mexico,
at the moment of the cession of those countries to us by the treaty in question.
With what patience would gentlemen, coming from the slaveholding States, listen to
an argument which should be urged by the free States, that, notwithstanding the exist
ence of slavery within these territories, the Constitution of the United States, the mo
ment it operated upon and took effect within the ceded Territories, abolished slavery
and rendered them free ? Well, is there not just as much ground to contend, where
a moiety of the States are free, and the other moiety are slaveholding States, that
the principle of freedom which prevails in the one class shall operate, as the prin
ciple of slavery, which operates in the other class of States, shall operate ? Can you,
amidst this conflict of interests, of principles, and of legislation which prevails in
the two parts of the Union — can you come to any other conclusion than that which I
understand to be the conclusion of the public law of the world, of reason, and of jus
tice, that the status of law, as it existed at the moment of the conquest, or acquisition,
remains unchanged, until it is altered by the sovereign authority of the conquering or
acquiring power ? The laws of Mexico, as they existed at the moment of the cession
of the ceded territories to this country, remained their laws still, unless they were
altered by that new sovereign power under which this people and these territories
came, in consequence of the treaty of cession, to the United States. — Mr. Clay on Com
promise Measures ^ 1850.
16 INTRODUCTORY NOTE.
justice : none of whom conld be delivered up except in pursu
ance to a law made to carry the clause into effect. Knowing
the impossibility of self-action on the part of the Constitution —
a mere declaration of principles without vitality until germi
nated by law — Mr. Webster scouted as an impossible absurdity,
the extension of the Constitution to territories. Mr. Calhoun
replied, and immediately became the prominent speaker on the
extension side — contending that the Constitution could be so
extended, and, being the supreme law of the land, would carry
along with it protection to persons and property, to wit, the
owner and his slaves ; and would override and control all laws
opposed to that protection. The debate then took the regular
slavery form, and developed this new question which had been
feeling its way in some remarks, but never before took the
shape of a formal proposition to be enacted into law — that of
extending slavery into the new territories. Mr. Calhoun boldly
avowed his intent to carry slavery into them under the wing of
the Constitution, and denounced as enemies to the South all who
opposed it. Mr. Webster rejoined, going into an extended ar
gument in support of his positions. Several senators joined in
it, and the whole debate may be seen in the Appendix to the
Congress Debates of the day. A brief notice of it, with parts
of Mr. Webster's and Mr. Calhoun's speeches, may be seen in
the Thirty Years' Yiew, (vol. 2, ch. 182,) and also in -the Appen
dix to this Examination of the Court's Opinion.
The amendment was carried, the whole Territorial Bill of
Mr. Walker, as modified at the instance of a friend ; and being
returned to the House for its concurrence, the amendment was
rejected, and a contest was brought on between the two Houses,
which threatened the loss of the General Appropriation Bill,
and the consequent stoppage of the government for the want of
the means of keeping it alive. It was after midnight, and the
last night not only of the session but of the Congress, and of the
presidential term ; and when many Senators had retired, or re
fused to vote, believing their power was at an end. Mr. Polk,
who, according to the custom of the presidents, had remained
in the capitol until midnight to sign bills, had left it and gone
home ; the House had ceased to do business, was without a
quorum, and had sent to the Senate the customary adjournment
One-third of the Senate was absent, or refusing to
INTRODUCTORY NOTE. 17
vote, Mr. Cass and Mr. Benton among the latter. The motion
was made to adjourn sine die, which, under the imminent cir
cumstances of the occasion, the presiding officer refused to put.
It was after four o'clock in the morning of the 4th of March
when this contest was brought to an end by the recession of the
Senate — by the Senate receding from its amendment — and the
General Appropriation Bill (the life of the government) per
mitted to pass.* It was passed on the morning of the 4th of March,
and signed by the President on that day, but antedated of the
third to prevent the invalidity from appearing on its face. Such
were the portentous circumstances under which this new doc
trine first revealed itself in the American Senate ! and then as
needing a legislative sanction, as requiring an act of Congress to
carry the Constitution into the territories, and to give it force
and efficacy there. Failing in that attempt, the higher ground
was afterwards taken, that the Constitution went of itself, and
enforced itself in these territories, so far as slavery is concerned :
and this, I apprehend, is what the Supreme Court has decided.
This being the decision of the Court, it becomes proper to
give it in their own words, thus :
" This Territory being a part of the United States, the Government
and the citizen both enter it under the authority of the Constitution, with
their respective rights defined and marked out ; and the Federal Gov
ernment can exercise no power over his person or property, beyond what
that instrument confers, nor lawfully deny any right wlii^h it has re
served.
" It seems, however, to be supposed, that there is a difference be
tween property in a slave and other property, and that different rules
may be applied to it in expounding the Constitution of the United
States. And the laws and usages of nations, and the writings of emi
nent jurists upon the relation of master and slave and their mutual
rights and duties, and the powers which Governments may exercise over
it, have been dwelt upon in the argument.
" Now, as we have already said in an earlier part of this opinion,
upon a different point, the right of property in a slave is distinctly and
expressly affirmed in the Constitution. The right to traffic in it, like
* Only seven Senators voted against receding, Mr. Calhoun himself not voting in
this last struggle — for what reason not stated. It is due to Mr. Webster to say, that
his skill and perseverance passed this hill, and prevented the Government from heing
stopped until a new Congress could he assemhled, of which a considerable number of
members were yet to be elected.
2
18 INTRODUCTORY NOTE.
an ordinary article of merchandise and property, was guaranteed to the
citizens of the United States, in every state that might desire it, for
twenty years. And the Government in express terms is pledged to
protect it in all future time, if the slave escapes from his owner. This
is done in plain words — too plain to be misunderstood. And no word
can be found in the Constitution which gives Congress a greater power
over slave property, or which entitles property of that kind to less pro
tection than property of any other description. The only power con
ferred is the power coupled with the duty of guarding and protecting
the owner in his rights.
" Upon these considerations, it is the opinion of the Court, that the
act of Congress which prohibited a citizen from holding and owning
property of this kind in the Territory of the United' States north of the
line therein mentioned, is not warranted by the Constitution, and is
therefore void; and that neither Dred Scott himself, nor any of his
family, were made free by being carried into this Territory ; even if they
had been carried there by the owner, with the intention of becoming a
permanent resident." *
* This opinion of the Court, and the reasons given for it, correspond with the fol
lowing resolutions submitted by Mr. Calhoun in the Senate (February, 1847) :
" Resolved^ That the Territories of the United States belong to the several States
composing this Union, and are held by them as their joint and common property.
" Resolved, That Congress, as the joint agent and representative of the States of the
Union, has no right to make any law or do any act whatever that shall directly, or by
its effects, make any discrimination between the States of this Union, by which any one
of them shall be deprived of its full and equal rights in any Territory of the United
States acquired or to be acquired.
" Resolved, That the enactment of any law which should directly, or by its effects,
deprive the citizens of any of the States of this Union from emigrating, with their
property, into any of the Territories of the United States, would make such a discrimi
nation ; and would, therefore, be a violation of the Constitution, and the rights of the
States from which such citizens emigrated, and in derogation of that perfect equality
which belongs to them as members of this Union, and would tend directly to subvert
the Union itself."
These resolutions were in response to the Wilmot proviso ; and the sincerity of their
author in offering them has been since shown, in a confidential letter which has come
to light, in which this proviso, thus presented to the Senate to be adopted as adequate
cause for dissolving the Union, was considered by Mr. Calhoun as a God-send, abso
lutely necessary, or something like it, to keep up the slavery agitation in the South ;
and, of which any compromise, adjustment, or even its defeat, would be unfortunate for
the South.— See Appendix II. — These resolutions were never brought to a vote in the
Senate. They were denounced upon the spot as a "fire-brand" and suffered to die out
there, but sent to the slave States for adoption; by a few of which (Virginia, South
Carolina, Florida, and Missouri) they were legislatively adopted, and became the basis
of new party organization.
INTRODUCTORY NOTE. 19
It is believed that these positions are based upon errors of
fact, which being corrected, the erroneous deductions fall of
themselves. The prohibition of slavery in a Territory is assumed
to work an inequality in the States, allowing one part to carry
its property with it — the other, not. This is a mistake — a great
error of fact — the source of great errors of deduction. The
citizens of all the States, free and slave, are precisely equal in
their capacity to carry their property with them into Territories.
Each may carry whatever is property by the laws of nature:
neither can carry that which is only property by statute law :
anoT the reason is, because he cannot carry w^ith him the law
which makes it property. Either may carry the thing which is
the subject of this local property, but neither can carry the law
which makes it so. The Virginian may carry his man slave ;
but he cannot carry the Virginian law which makes him a slave-
The citizen of Massachusetts may carry the pile of money which,
under a State law, constitutes a bank ; but he cannot carry the
law or charter which makes it a bank : and his treasure is only
a pile of money ; and, besides being impossible, it would be ab
surd, and confusion confounded to be otherwise. For, if the
citizen of one State might carry his slave State law with him into
a Territory, the citizens of every other slave State might do the
same ; and then what Babylonish confusion, not merely of tongues,
but of laws, would be found there ! Fifteen different codes, as
the slave States now number, and more to come. For every
slave State has a servile code of its own, differing from others in
some respects — and, in some, radically : as much so as land, in
the eye of the law, differs from cattle. Thus, in some States, as
in Virginia, and others, slaves are only chattels : in others, as in
Kentucky and Louisiana, they are real estate. How would all
these codes work together in a Territory under the wing of the
Constitution, protecting all equally ? no law of Congress there, or
of the Territory, to reconcile and harmonize them by forming
them into one ; no law to put the protecting power of the Con
stitution into action ; but of itself, by its own proper vigor, it
is to give general and equal protection to all slaveholders in the
enjoyment of their property — each, according to the law of the
State from which he came. For, there being no power in Con
gress, or the Territorial Legislature, to legislate upon slavery,
the whole subject is left to the Constitution and the State law !
20 INTRODUCTOKY NOTE.
that law which cannot cross the State line ! and that Constitution
which gives protection to slave property but in one instance,
and that only in States, not in Territories — the single instance of
recovering runaways. The Constitution protect slave property
in a Territory ! when by that instrument a runaway from the
Territory or into the Territory, cannot be reclaimed. Beautiful
Constitutional protection that ! only one clause under it to pro
tect slave property, and that limited, in express words, to fugi
tives between State and State ! and but one clause in it to pro
tect the master against his slaves, and that limited to States !
and but one clause in it to tax slaves as property, and that
limited to States ! and but one clause in it to give a qualified
representation to Congress, and that limited to States. ~No ; the
thing is impossible. The owner cannot carry his slave State
law with him into the Territory ; nor can he carry it into another
slave State, but must take the law which he finds there, and have
his property governed by it ; and, in some instances, wholly
changed by it, and rights lost, or acquired by the change. For
instance, in Virginia slaves are a chattel interest, and belong to
the husband, though come by the wife, and may be seized and
sold for his debts — even those contracted before marriage ; or
he may give them away, or devise them to his own kin, or chil
dren by another marriage. Eemoved to Kentucky with these
slaves, they become real estate, and belong to the wife, and her
blood ; and the husband has no more rights in them than in her
land. If he removed again and got into Tennessee with his
slaves, they return to their chattel condition ; and go as they
would in Virginia. And if he passed on as far as Louisiana,
another metamorphosis of his property ! for there they become
real estate again, governed by its laws — and also become sub
ject (the husband's own, if he has or acquires any) to the civil
law partnership between husband and wife. So that the doc
trine of the Supreme Court will not do — neither in States nor
Territories : for the owners can in no case carry their slave law
beyond the limits of their own State.*
* This obvious view did not escape Mr. Webster when this novel doctrine was first
broached in the Senate, in 1818, (on an Oregon Territorial Bill,) nor the dissenting
justices in the Dred Scott case. Mr. Webster, with a few remarks, exposed the fallacy
of the objection— thus : " The southern Senators say we deprive them of the right to
go into these newly acquired Territories with their property. We certainly do not
INTRODUCTORY NOTE. 21
In its terms the opinion of the Supreme Court stops at the
invalidation of an act of Congress which shall prohibit slavery
in a Territory : upon its principle and reasons it should invali
date any other act having the same effect — whether it be the
prevent them from going into those Territories with what is, in general law, called
property. But these States have by their local laws created a property in persons, and
they cannot carry these local laws with them. Slavery is created, and exists by a
local law, which is limited to a certain section ; and it is asked that Congress shall
establish a local law in other Territories to enable southern Senators to carry their par
ticular law with them. No man can be held as a slave unless the local law accompany
him."
And thus Mr. Justice M'Lean : — "Will it be said that the slave is taken as prop
erty, the same as other property which the master may own ? To this I answer, that
colored persons are made property by the law of the State, and no such power has
been given to Congress. Does the master carry with him the law of the State from
which he removes into the Territory ? and does that enable him to coerce his slave in
the Territory ? Let us test this theory. If this may be done by a master from one
slave State, it may be done by a master from every other slave State. This right is
supposed to be connected with the person of the master, by virtue of the local law.
Is it transferable ? May it be negotiated, as a promissory note or bill of exchange ?
If it be assigned to a man from a free State, may he coerce the slave by virtue of it ?
What shall this thing be denominated ? Is it personal or real property ? Or is it an
indefinable fragment of sovereignty, which every person carries with him from his late
domicil ? One thing is certain, that its origin has been very recent, and it is un
known to the laws of any civilized country. It is said the Territories are common
property of the States, and that every man has a right to go there with his property.
This is not controverted. But the Court say, a slave is not property beyond the opera
tion of the local law which makes him such. Never was a truth more authoritatively
and justly uttered by man. Suppose a master of a slave in a British island owned a
million of property in England ; would that authorize him to take his slaves with him
to England ? The Constitution, in express terms, recognizes the status of slavery as
founded on the municipal law : ' No person held to service or labor in one State, under
tlw laws thereof, escaping into another, shaijj,' &c. Now, unless the fugitive escape
from a place where, by the municipal law, he is held to labor, this provision affords no
remedy to the master. What can be more conclusive than this ? Suppose a slave
escape from a Territory where slavery is not authorized by law, can he be reclaimed ?
In this case, a majority of the Court have said that a slave may be taken by his
master into a Territory of the United States, the same as a horse, or any other kind
of property. It is true, this was said by the Court, as also many other things, which
are of no authority."
And thus Mr. Justice Curtis : — " Is it conceivable that the Constitution has con
ferred the right on every citizen to become a resident on the Territory of the United
States with his slaves, and there to hold them as such, but has neither made nor pro
vided for any municipal regulations which are essential to the existence of slavery ?
Is it not more rational to conclude that they who framed and adopted the Constitution,
were aware that persons held to service under the laws of a State are property only to
the extent and under the conditions fixed by those laws ; that they must cease to be
available as property, when their owners voluntarily place them permanently within
22
INTRODUCTORY NOTE.
constitution, or law, of a State coming into existence in the same
Territory, and taking its place. The principle is, that the con
stitution carrying slavery into the territory, the holding slaves
there is a constitutional right which cannot be defeated by an
act of Congress. !N"ow, that being the case, can any other au
thority defeat it ? Can a State do it ? Can one State do by it
self what all the States together in Congress cannot do ? The
inequality, degradation, insult and injury of being debarred from
an equal use of a common property, is the gravamen of the
complaint: now this degradation, insult, injury, and inequality,
would be precisely the same if done by a State law, or a State
constitution, as if done by an act of Congress. The damage
would be the same, and the insult greater, because done by a
single State, and a young one fresh from the territorial condition,
and setting at defiance the rights of all the old slave States to
which it might owe its existence. The case would cry equally
for the interposition of the Supreme Court, and it would be a
case in which the court would have a clear right to interpose.
For the Constitution of the United States is supreme over State
constitutions, State laws, and State judiciaries. It overrides
them all wherever it goes ; * and going into the new State with
the same right and duty to protect persons and property in the
enjoyment of a common right with which it had entered the ter
ritory, the same remedy would require to be given for the same
wrong. And there would be no taking position upon State
rights ; for no State has any right to do any thing contrary to the
Constitution. The argument of the Court proves too much ;
another jurisdiction, where no municipal laws on the subject of slavery exist ? more
over, if the right exists, what are its limits, and what are its conditions ? If citizens
of the United States have the right to take their slaves to a Territory, and hold them
there as slaves, without regard to the laws of the Territory, I suppose this right is not
to be restricted to the citizens of slaveholding States. A citizen of a State which does
not tolerate slavery can hardly be denied the power of doing the same thing. And
what law of slavery does either take with him to the Territory ? If it be said to be
those laws respecting slavery which existed in the particular State from which each
slave last came, what an anomaly is this? Where else can we find, under the
law of any civilized country, the power to introduce and permanently continue diverse
systems of foreign municipal law, for holding persons in slavery?"
* This Constitution, and the laws of the United States which shall be made in pur
suance thereof, and all treaties made, or which shall be made, under the authority of
the United States, shall be the supreme law of the land ; and the judges in every
State shall be bound thereby, any thing in the constitution or laws of any State to the
contrary notwithstanding. [Cons., Art. G.]
INTRODUCTORY NOTE. 23
and, pushed to its legitimate conclusions, would invalidate State
constitutions and laws as readily as it does acts of Congress,
there being no difference in the right to go and to stay in the
State as well as the Territory, as long as there remained in it
any soil acquired by the common blood, and the common treas
ure of the whole.
But there is practice as well as argument on this doctrine of
carrying slaves into territories, and having them protected there
by the Constitution. We have had some slave territories — Mis
souri, Arkansas, Florida, — into which that property was carried.
Was it done under the Constitution ? ]STo ! But under the ter
ritorial law, sanctioned, not by the Constitution, but by Congress,
and governed after it got there by the territorial law. ~No one
carried the State law with him. He left that behind, and took
what he found in the Territory ; and if he had found no law
there, the slaves would have been free, maugre the Constitution,
which, extended over territories without laws to apply it, would
be a cloud without rain, as even in the States for which it was
made, and in which it recognizes slavery and the rights of the
owner. JSTo right can be exercised under it, not even reclaiming
a fugitive from service, without an act of Congress.
I only occupy myself with the -political part of the Court's
opinion — that part of it which is intended to act on the power of
Congress ; and to set forth this part in its clearest light, and to
separate it from the personal part which acts on the freedom of
Scott and his family. T here present these political decisions,
(as I deem them to be,) from the official report of the case, as I
find them condensed in the Reporter's synoptical view, prefixed
to the report. That synopsis classes the different branches of
the decision under five divisions, of which only two — the third
and the fourth — claim my attention. They are as follow :
III.
" The clause in the Constitution authorizing Congress to make all
needful rules and regulations for the government of the territory and
other property of the United States, applies only to territory within the
chartered limits of some one of the States when they were colonies of
Great Britain, and which was surrendered by the British Government
to the old Confederation of the States, in the treaty of peace. It does
not apply to territory acquired by the present Federal Government, by
treaty or conquest, from a foreign nation.
" The United States, under the present Constitution, cannot acquire
INTRODUCTORY NOTE.
territory to be held as a colony,* to be governed at its will and pleasure.
But it may acquire territory which, at the time, has -not a population
that fits it to become a State, and may govern it as a Territory until it
has a population which, in the judgment of Congress, entitles it to be
admitted as a State of the Union.
<< During the time it remains a Territory, Congress may legislate over
it within the scope of its constitutional powers in relation to citizens of
the United States— and may establish a Territorial Government— and
the form of this local Government must be regulated by the discretion
of Congress — but with powers not exceeding those which Congress
itself, by the Constitution, is authorized to exercise over citizens of the
United States, in respect to their rights of persons or rights of
property.
IV.
" The territory thus acquired, is acquired by the people of the United
States for their common and equal benefit, through their agent and
trustee, the Federal Government. Congress can exercise no power over
the rights of persons or property of a citizen in the Territory which is
prohibited by the Constitution. The Government and the citizen, when-
'^' Colony."— It is no part of the design of this Examination to remark upon any
thing in the Court's decision hut the two points mentioned— the abrogation of the
Compromise Act, and the extension of the Constitution to territories ; but the phrase
" colony," and the doctrine delivered in relation to that species of dependency, calls
for a remark which, as it cannot go into the body of the work, must find a place in a
note. The meaning of it is too well fixed to admit of ambiguous sense, even in a
popular harangue, much less in a judicial decision. It always signifies a body of cul
tivators transplanted by the government to a distant possession, and governed and
protected there by the mother country, of which it is to be always the dependent—
never the equal. The term has never been applied to our territories, and cannot be
without a total change in their nature. Distance, governmental transplantation, per
petual inferiority, is their inexorable characteristic. As such, the question of colonies
is purely and simply a political question, for the determination of the political power ;
and as such was determined some fifty odd years ago by our Government. The de
termination was, that the United States would have no colony which required a navy
to guard it, and to keep open communication with it. And that determination, by its
import and express terms, admitted Cuba as an exception— that island being near
enough to our coast to be safely reached without the convoy of a fleet, and °strong
enough in its natural and artificial defences to be protected by laud forces. But
while tliis exception of Cuba was made, all designs upon it inconsistent with fair pur
chase, or honorable conquest in just war, were sternly repudiated. The doctrine of
the old school was that, geographically, Cuba belonged to the New World, and to the
North American part of it, and to the United States as the chief power of North
America ; and politically, to Spain : and that, while Spain declined to sell, and gave
us no just cause of war, she was to be undisturbed in the possession of that island—
INTRODUCTORY NOTE. 25
ever the Territory is open to settlement, both enter it with their re
spective rights defined and limited by the Constitution.
" Congress have no right to prohibit the citizens of any particular
State or States from taking up their home there, while it permits citi
zens of other States to do so. Nor has it a right to give privileges to
one class of citizens which it refuses to another. The Territory is ac
quired for their equal and common benefit — and if open to any, it must
be open to all upon equal and the same terms.
" Every citizen has a right to take with him into the Territory any
article of property which the Constitution of the United States recog
nizes as property.
" The Constitution of the United States recognizes slaves as property,
and pledges the Federal Government to protect it. And Congress
cannot exercise any more authority over property of that description
than it may constitutionally exercise over property of any other kind.
" The act of Congress, therefore, prohibiting a citizen of the United
States from taking with him his slaves when he removes to the Terri
tory in question to reside, is an exercise of authority over private
property which is not warranted by the Constitution — and the removal
of the plaintiff, by his owner, to that Territory, gave him no title to
freedom."
These decisions upon their face show themselves to be politi
cal, and tried by the test of enforcement, they are proved to be so.
The Supreme Court cannot enforce these decisions ; and that is the
test of its jurisdiction. Where it cannot enforce, it cannot try.
The Court is an authoritative body, acting with authority, and
having power to enforce its decisions wherever it has jurisdic
tion. It can issue its command — (mandamus, we command) —
and has a machinery to execute it — marshals, jails, fines, im
prisonment. None of this machinery can be employed upon
Congress and the people. Suasion is the only operative agent
upon them ; and this agent, either moral or political, is not the
weapon of the Court. The pulpit and the forum persuade : a
court commands. It, therefore, acted, on these points, without
jurisdiction ; that is to say, without right ; and, what is more,
as mnch so as in the island of Cadiz. But no other power was to be allowed to get it
from Spain, either by purchase or conquest. If it was to be sold, the United States
had the pre-emption right of purchase : if to be conquered, we the conqueror. But
all this open and above board — no pretexted wars, no false claims, no fictitious quar
rels, no annoying, no bullying, no forced sale. — Jeffersvrfs Letters.
26 INTRODUCTORY NOTE.
(as will be seen in the course of this examination,) did what the
political power refused to do when moved thereto in 1847 and
'48. The extension of the Constitution to Territories was then
attempted and repulsed. To give a right to the Supreme Court
to try the question of African slavery in free Territories, was
then attempted, and denied.* To abrogate the Missouri Com
promise, though the act was then denounced, was not attempted
-Mr. Calhoun himself saying it was " not to be attempted "—
assigning as a reason that the attempt would disturb the Union ;
his real reason being, that the party which did it would stand
responsible for what might (in consequence) happen to the
Union : for he was a man of head, and of system, and in all
these movements constantly affected the defensive.
I conclude this introductory note with recurring to the great
fundamental error of the Court, (father to all the political errors,)
that of assuming the extension of the Constitution to the
Territories. I call it assuming, for it seems to be a naked as
sumption without a reason to support it, or a leg to stand upon
—condemned by the Constitution itself, and the whole history
of its formation, and administration. Who were the parties to
* It was in 1848, in one of the abortive bills reported by a select committee for the
government of the new territories, and in which the slave was to have the right of suing
his master for his freedom, with an appeal to the Supreme Court. The readiness with
which the debate ran into the personal composition of the Court, and became political
and geographical, and distrustful of the judges, as the speaker and the judge should
be on opposite sides of Mason & Dixon's line, shows the extreme delicacy of carrying
such questions to the Court. Thus : " Mr. Corwin asserted his belief, that if Senator!
from the South believed that in an appeal to the Supreme Court, in cases under this
bill, the decision would be against them, they would never vote for this biU. So, if
the Senator from Vermont (Mr. Phelps) thought the decision would be against him, he
would never vote for it." " Mr. Foote feared that the decision of the Supreme Court, as
now constituted, would be against the South." » Mr. Hale professed to have no con
fidence in the Supreme Court, as now constituted." " Mr. Reverdy Johnson believed in
the existence of the power in Congress to pass a law to prohibit slavery in territories, and
if such a law was presented to the Supreme Court for a decision on its constitutionality,
it would be in favor of the law. As a judicial question, the decision would be against
the protection of the South." Mr. Badger, of North Carolina, " Had a respect for the
Supreme Court, but he was not willing to leave the decision of the question to a court,
so large a portion of which was opposed to slavery." Mr. Bell, of Tennessee, opposed
the bill on the ground, " that the Court was the weakest of the three co-ordinate
branches of the Government— too weak to command obedience, or to settle such ques
tions ; and he drew the inference that a decision of it before a tribunal so feeble might
break down the Court, while it failed to satisfy the public mind.— Mr. Bell on Oregon.
INTRODUCTORY NOTE. 27
it ? The States alone. Their delegates framed it in the Federal
convention : their citizens adopted it in the State conventions.
The North-West Territory was then in existence, and had been
for three years ; yet it had no voice, either in the framing, or
adopting of the instrument — no delegate at Philadelphia, no
submission of it to their will for adoption. The preamble shows it
was made by States, and for States. Territories are not alluded to
in it. The body of the instrument shows the same thing, every
clause, except one, being for States ; and Territories, as political
entities, never mentioned once ; and the word " territory," oc
curring but once, and that as property, assimilated to other pro
perty — as land, in fact ; and as a thing to be disposed of — to be
sold. Now you never sell a territorial government ; but you
sell property : and in that sense alone does the word territory
occur, and that but once in the whole instrument. Tried by
the practice under it, and the Territory is a subject, without a
political right — no right to vote for President, or Vice President,
or Senator, or Eepresentative in Congress ; nor even to vote
through their delegate, on any question in Congress — all their
officers appointable and removable by the federal authority,
even their judges — their Territory to be cut up as Congress
pleases ; even parts of it to be given to Indians : no political
rights under it, except as specially granted by Congress : no
benefit from any act of Congress, except specially named in it,
or the act specially extended to them, like the subject colonies
and dependencies of Great Britain. How can the Constitution
go to them of itself, when no act of Congress under it can go
to them unless specially extended ? Far from embracing these
Territories, the Constitution ignores them, and even refuses to
recognize their existence where it would seem to be necessary
— as in the case of fugitives from service, and from labor. Look
at the clause. It only applies to States — fugitives from States
to States.* Why ? because the ordinance of '87, the organic law
of the Territories, made that provision for the Territories, and
about in the same words, and before it was put in the Consti-
* " No person held to service or labor in one State, under the laws thereof, and
escaping into another, shall, in consequence of any law or regulation therein, he dis
charged from such service or labor, but shall be delivered up on the claim of the party
to whom such service, or labor, may be due." — Article 4, sec. 2. "
28 INTRODUCTORY NOTE.
tution.* In both places it is an organic provision, barren of ex
ecution until a law should be passed under it to give it effect —
which was clone in the fugitive slave and criminal act of 1793
— that act applying to Territories as well as to States — and so
carrying both the Constitution and the ordinance into eifect.
This view is fundamental and decisive, and requires to be bet
ter known by the public than it is. There are two distinct
clauses in the Constitution — one applying to fugitives from ser
vice, the other to fugitives from justice. They are both limited
to States.f Under these clauses, a criminal or slave fugitive to
or from a Territory, or from one Territory to another, or from
one State to a Territory, or from a Territory to a State, cannot
be demanded. A felon escaping with a stolen slave into a Ter
ritory, cannot be demanded under the Constitution. There are
other clauses in the Constitution relating to slaves, not one of
which extends to Territories. The fourth Article, section 4,
guarantees protection against " domestic violence," (servile in
surrection;) but the protection is limited to States.:]: Territo
ries can only receive it from Congress. The acknowledgment
of property in a slave, contained in the first Article, (which taxes
slaves as property,) is confined to States. Not a clause in the
Constitution which relates to slaves, extends to Territories—
neither the fugitive slave clause, nor the protection against do
mestic violence, nor the acknowledgment of property implied
in taxation : and if the Constitution was extended to Territories,
(which it cannot be,) not a claim could be set up under it for
protection to slave property ! Not a law could be made under
it for the protection of that property. The Constitution does
* " Provided, always, that any person escaping into the same, (the North- West
Territory,) from whom labor or service is lawfully claimed in any one of the original
States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming
his or her labor or service as aforesaid." — Ordinance of '87, Art. 6.
f " Any person charged in any State with treason, felony, or other crime, who shall
flee from justice, and be found in another State, shall, on demand of the executive
authority of the State from which he fled, be delivered up to the State having jurisdic
tion of the crime." — Article 4, section 2.
% The United States shall guarantee to every State in the Union a republican form
of government, and shall protect each of them against invasion ; and, on application of
the legislature or of the executive, (when the legislature cannot be convened,) against
domestic violence." — Art. 4, sec. 4.
INTRODUCTORY NOTE. 29
not even grant protection to a Territory against invasion ! * nor
does it guarantee them a republican f form of government !
and that is the reason that they have never been governed on
republican principles. And this is the instrument which gives
such supreme protection to slave property in Territories !
After this, to say that the Constitution extends to Territories,
would be about equal to saying that the territorial ordinance
of '87 extends to the States. The pretension was driven out
of Congress when it presented itself there : judicially decreed
by the Supreme Court, it becomes accepted law to one half the
Union ; and acquiescence from all others who do not consider
the difference between judicial and political subjects : and is
not to be a barren power in the administration of our Govern
ment. Mr. Calhoun declared its effect when he proclaimed it,
saying :
" / deny that the laws of Mexico can have the effect attributed to
them, (that of keeping Slavery out of New Mexico and California.)
As soon as the treaty between the two countries is ratified, the sove
reignty and authority of Mexico in the territory acquired by it becomes
extinct, and that of the United States is substituted in its place, con
veying the Constitution with its overriding control over all the laws
and institutions of Mexico inconsistent with it" — Oregon Debate,
1848.
This is the declared effect of the transmigration of the Con
stitution to free territory by the author of the doctrine ; and
great is the extent of country, either acquired or to be acquired,
in which the doctrine is to have application. All New Mexico
and California at the time it was broached — all the Territories
now held, wherever situated, and as much as can be added to
them — these additions have already been considerable, and vast
and varied accessions are still expected. Arizonia has been
acquired ; fifty millions were offered to Mexico for her northern
half, to include Monterey and Saltillo ; a vast sum is now offer
ed for Sonora and Sinaloa, down to Guaymas ; Tehuantepec,
Nicaragua, Panama, Darien, the Spanish part of San Do
mingo, Cuba! with islands on both sides of the tropical con
tinent. Nor do we stop at the two Americas, their coasts
* Article 4, section 4. f Same.
30 INTKODUCTOET NOTE.
and islands, extensive as they are ; but circumvolving the terra
queous globe, we look wistfully at the Sandwich Islands, and
on some gem in the Polynesian group ; and plunging to the
antipodes, pounce down upon Formosa in the Chinese Sea. Such
were the schemes of the last Administration, and must continue,
if its policy should continue. Over all these provinces, isth
muses, islands, and ports, now free, our Constitution must spread,
(if we acquire them, and the decision of the Supreme Court
stands,) overriding and overruling all anti-slavery law in their
respective limits, and planting African slavery in its place, be
yond the power of Congress or the people there to prevent it.
I object to the Court's opinion, not only because it was with
out jurisdiction, and wrong in itself, but because it was political,
pertaining to the policy, or civil government of the Union —
interfering with the administration of the affairs of the State.
HISTORICAL AND LEGAL
EXAM IN ATI O N
SUPEEME COURT'S DECISION ON THE MISSOURI COMPROMISE
ACT, AND THE EEXTENSION OF THE CONSTITUTION
TO TERRITORIES,
AS PRONOUNCED IN
THE DRED SCOTT
This Examination divides itself into three parts : —
FIKST. — As it concerns the power exercised by Congress
over the original Territory of the United States. SECONDLY. —
As it concerns the new Territory acquired by the Louisiana pur
chase. THIRDLY. — As it concerns the Missouri Compromise Act.
And it will be the point of the whole Examination to show that
Congress exercised, and rightfully, supreme authority over these
Territories, both original and acquired ; that it governed them
independently of the Constitution, and incompatibly with it,
and by virtue of sovereign and proprietary rights ; that it did
what it deemed best for the young community, as a father does
for his children ; and that the question of admitting or prohib
iting slavery, either in the new or old Territories, never rose
higher than a question of expediency. And that this continued
to be the case, without distinction of men or parties, and with the
32 EXAMINATION OF THE
universal concurrence of all departments of the Government-
legislative, judicial and executive. State and Federal — from the
legislative adoption of the ordinance of '87 in the year '89,
down to the abrogation of the Missouri Compromise Act, in
1854.
FIEST STAGE OF THE EXAMINATION :— POWER OF
CONGRESS OYER THE ORIGINAL TERRITORY.
I. — At the head of the objections to the Court's opinion,
stands the uniform action of the Government for thirty-six years
on one of its branches, and seventy on the other. Uniformity
of action on the part of authorities, appointed to administer
government, is usually admitted to be evidence of right action ;
and, it is believed, no higher case of uniformity of governmen
tal action — or of longer continued uniformity— or on the part of
better qualified authorities — can be found than in the case un
der consideration. In point of length of time, it is that of the
existence of the Government ; in point of uniformity, no excep
tion ; in point of fitness in the actors, most eminent — consisting
of the generation which founded the Government, and the sec
ond generation, disciple of the first, which succeeded to its ad
ministration ; comprehending in all this time all the depart
ments of all the governments, State and Federal — and in all
their branches — legislative, executive, and judicial. Such uni
formity furnishes a persuasive evidence that this action was
right ; and it is the object of this Examination to show that it
was so, by showing what that action wTas, and the reasons upon
which it was founded ; so that the authority of law and reason
may be addpd to that of uniform practice.
It was from the 7th day of August, 1789 — that is to say,
from the beginning of the first session of the first Congress un
der the Federal Constitution— that this uniformity began. It
was on that day that the new-born Congress, putting the new
Government into operation, adopted as a part of its machinery,
and adapted to the working of the new Government, the famous
ordinance of 1787, for the government of the North- West Terri
tory — changing not one word in its whole enactments, except
SUPREME COURT'S DECISION, ETC. 33
to substitute the President and Senate for the old Continental
Congress, in making the Territorial appointments, and holding
the communications with the officers, which the ordinance re
quired. The preamble declared its object — to adapt it to the
present Constitution, and to continue its full effect in the Terri
tories ; and the enactments of this adopting, and adapting, stat
ute, corresponded with its declared object. It was brief, and in
these words :
"WHEREAS, In order that the ordinance of the United States in
Congress assembled, for the government of the territory Northwest of
the river Ohio may continue to have full effect, it is requisite that cer
tain provisions should be made, so as to adapt the same to the present
Constitution of the United States : THEREFORE, Be it enacted. That in
all cases in which by the said ordinance any information is to be given,
or communication made by the Governor of the said Territory to the
United States in Congress assembled, or to any of their officers, it shall
be the duty of the said Governor to give such information, and to
make such communication to the President of the United States ; and
the President shall nominate, and by and with the advice and consent
of the Senate, shall appoint all officers which by the said ordinance were
to have been appointed by the United States in Congress assembled ;
and all officers so appointed shall be commissioned by him ; and in all
cases where the United States in Congress assembled might, by the said
ordinance, revoke any commission or remove from any office, the Presi
dent is hereby declared to have the same powers of revocation and re
moval. SECTION 2. — That in case of the death, removal, resignation,
or necessary absence of the Governor of the said Territory, the Secre
tary thereof shall be, and he hereby is authorized and required to ex
ecute all the powers, and perform all the duties, of the Governor during
the vacancy occasioned by the removal, resignation, or necessary absence
of the said Governor."
Thanks to the wise custom which still, in proper cases, pre
fixed preambles to bills, and which was in use at the time of
the passing of this act. The preamble is a key to unlock the
meaning of an act, and in this case unlocks it very completely,
by showing that its object was to " continue the full operation
of the ordinance," — and merely to adapt its working to the
machinery of the new Government, which was done by the
simple substitution of the President and Senate for the old Con
gress in the business of appointments, removals, and communi-
3
34 EXAMINATION OF THE
cations: and with this exception, no other part of the ordinance
was touched — every provision and every enactment remaining
as it was, and the new Congress left to do whatever was re
quired from the old Congress, as in approving or disapproving
the acts of the Territorial legislation. No continuation of an
act, at the change of a Government, could be more complete
and perfect than in this brief act of the 7th of August, 1789,
and its place in the list of acts passed, shows the degree of im
portance attached to it. It was !Nb. 8. in that list ! — the pre
vious seven being those which wrere indispensable in putting
the machinery of the new Government into operation in the
States, as this act was to do the same for the Territories. The
ordinance, then, became as much the act of the new Government
as if it had originated under it ; as if it had never existed be
fore ; as if it had undergone no transition from an expiring to a
new-born Government. And with this accords the opinion of
the Supreme Court, for it says :
" Among the earliest laws passed under the new Government, is one
reviving the ordinance of 1787, which had become inoperative and a
nullity upon the adoption of the Constitution. This law (the reviving
law) introduces no new form or principles for its government, but recites,
in the preamble, that it is passed in order that the ordinance may con
tinue to have full effect, and proceeds to make only those rules and
regulations which were needful to adapt it to the new Government, into
whose hands the power had fallen."
And to the same effect, Mr. Justice M'Lean, in his dissent
ing opinion, thus :
" It is clear that the ordinance did not go into operation by virtue
of the authority of the confederation, but by reason of its modification
and adoption by Congress under the Constitution. It seems to be sup
posed, in the opinion of the Court, that the articles of cession placed it
on a different footing from Territories subsequently acquired. I am
unable to perceive the force of this distinction. That the ordinance was
intended for the government of the Northwestern Territory, and was
limited to such Territory, is admitted. It was extended to southern
Territories, with modifications, by acts of Congress, and to some northern
Territories, But the ordinance was made valid by the act of Congress,
and without such act could have been of no force. It rested for its
validity on the act of Congress, the same in my opinion, as the Mis
souri compromise line."
SUPREME COURT'S DECISION, ETC. 35
And thus the ordinance of the Continental Congress of 1787,
became an act of the Federal Congress of 1789, and those who
wish to attack it, must attack it as that act, and not as that or
dinance. And now, the question is, by what authority? As
an act of the old Congress, its validity had been questioned, there
being nothing in the articles of confederation to justify it. As
an act of the new Congress, it must find its authority independ
ently of the one which had ceased to exist. Was it in the Con
stitution? The ordinance, as ordinance, was made before the
Constitution, consequently not made under it. As an act of
Congress, it was made after the Constitution, but not under it,
for it is a clean and naked piece of abnegation and contradic
tion of the Constitution from beginning to end. Here there is a
beginning — a starting point — necessary to be seen and con
sidered at the commencement of every examination of the power
of Congress to legislate for Territories ; and at this point we see
a Territorial form of government adopted and enforced, made
before the Constitution, and contrary to its essential and funda
mental principles; made in the plenitude of absolute power,
and governing the Territory for its own good without reference
to its will, and as a father governs and takes care of his infant
children. And seeing all this, the question still recurs, by what
authority ? And the answer is, by the same authority in the
new Congress of 1789 as in the old one of 1787, and that was the
right of the owner to use what he owned, and of the sovereign
to rule within his sovereignty. There was no authority in the
articles of confederation to make the ordinance, yet Congress
made it, and with the approbation of all the States. There was
no authority in the Constitution to adopt it, yet Congress adopted
it, and with the approbation of two generations. The right to
hold land, and plant people upon it, was a right to take care of
the land and the people ; and that right became a duty in this
case, by the engagement entered with the ceding States to dis
pose of the soil, and to build up political communities upon it.
The Congress of the Confederation made the engagement, and
executed it in the ordinance of 1787 ; the Constitution devolved
the engagement upon the new Congress,* which executed it in
* All debts contracted, and all engagements entered into before the adoption of
this Constitution, shall be as valid against the United States under this Constitution
as under the Confederation. — Article 6.
36 EXAMINATION OF THE
the same way. One made the ordinance, the other adopted it ;
and the latter was the superior authority ; and from the moment
of the adoption, eifaced the other ; so that, while descriptively
we may still quote the act as the ordinance of 1787, yet for
legal effect and virtue, and for all the purposes of right and
justice, it must be cited and considered as an act of Congress
of 1789.
The character of the ordinance — its provisions and enact
ments — become the next inquiry ; for the new Congress having
adopted it, and made it its own, and enforced it, its provisions
became the measure of the authority which the Congress exer
cised. And these will be found to be of the highest sove
reign order — ruling people without their consent ; giving and
taking away offices ; granting what it pleased as favor, nothing
as right; and even abolishing the rights of. private property
without compensation : for many were the slaves set free in the
old French settlements of Indiana and Illinois without compen
sation — set free for a public political object, without reference
to the rights, or regard to the will of the owners.* That act of
Congress, of August 7th, 1789, did all this, and with universal
approbation; and certainly not under the Constitution; for they
contradict it at all points. Certainly not by exercising the
powers of the States; for no State had ever exercised such
power. Certainly not under any written authority any where ;
for none such can be shown. How then did it get these pow
ers ? Simply as proprietor, and as sovereign ! The Federal
Congress of '89 got it as the Continental Congress of '87 got it —
as a right incident to ownership and jurisdiction, and as a duty
under the cession acts ; and the only limitation upon its power
was in the cession acts — in the obligation to dispose of the soil,
to populate it, and to build up future Republican States upon it.
And this it did, in the wisest manner for young, distant, and
miscellaneous communities, subject to be composed of the
vicious and the violent, as well as the good and the gentle —
* I consider the passage of this law to have heen an assertion by the first Congress
of the power of the United States to prohibit slavery within this part of the Territory
of the United States ; for it clearly shows that slavery was thereafter to be prohibited
there, and it could be prohibited only by an exertion of the power of the United States,
under the Constitution ; no other power being capable of operating within that Terri
tory after the Constitution took effect. — J/r. Justice Curtis.
SUPREME COURT'S DECISION, ETC. 37
holding them in a state of pupilage, as a father does his chil
dren, training them by degress to self-government, and admit
ting them to it when prepared for it. On 110 other ground than
that of absolute authority (limited only by the cession acts) over
these Territories can the enactments of this act of Congress be
accounted for ; and upon that ground I place it, disclaiming
any help from any quarter — from Federal or State authority,
single or combined.
The ordinance provide^ only for the government of tne
Territories — not for the disposal of the lands within them ; and
hence the propriety of the clause in the Constitution to au
thorize Congress to dispose of the territory, i. e. the land ; and
to make needful rules and regulations respecting it. Neither
that clause, nor any other in the Constitution, applied to the
government of the Territory, because that had been provided for
in the ordinance ; and the ordinance itself had been provided
for in the assumption by the new Federal Government of all
the engagements entered into by the old Continental Congress ;
and that engagement was promptly fulfilled by the adoption of
the ordinance among the very first acts of the new Government.
Though entitled for the North- West Territory, this fundamental
Territorial law was intended for the South- West also, and was
applied to the Territories there as soon as they were ceded ; and,
in fact, became the basis of all the Territorial governments down
to the passage of the Kansaz-Nebraska Act in 1851. The ordi
nance was the Constitution for the Territories, as the Constitu
tion itself was for the States ; and both were parts of the same
system, and made at the time, (the ordinance a few days first,)
and by the same men, it may be said ; * and in concert : and
no Constitution could have been made but hand in hand with
the ordinance. That measure settled the slavery question !
without which settlement no Constitution could have been
made. It settled it, by dividing the western Territory about
equally between the free and the slave States — the Ohio river,
(about equidistant from the northern lakes and the southern
gulf,) being taken as the dividing line ; and it made the free
* Besides the identity of feelings and of object, in the members of the two bodies,
several were actually members of both at the same time : as, Mr. Madison, of Virginia ;
Mr. Rufus King, of New York ; William Samuel Johnson, of Connecticut ; William
Blount, of North Carolina ; Charles Pinckney, of South Carolina ; William Few, of
Georgia.
38 EXAMINATION OF THE
Territory safe for the slave States by the stipulation in favor of
the restoration of fugitive slaves. The settlement of this ques
tion smoothed the road to the formation of the Constitution.
The two bodies sat at the same time — the Continental Congress
at "New York, the Federal Convention in Philadelphia — and
were composed of men united in principle, and laboring for the
same object. The ordinance was formed the 13th of July,
abolishing slavery in the North-West, and authorizing the re
covery of fugitives from service : the corresponding clause in
the Constitution for the recovery of fugitives was adopted on
the 29th of August following. That brings them near together
in point of time, and shows the dependence of one upon the
other. Then comes identity of phraseology, both the same, and
so dainty in the selection of its words : * " Persons," instead of
slaves — " fugitives," instead of runaways — " held to service,"
instead of being owned — " the party lawfully claiming," instead
of master ; and then the phrase " escaping," used in both, and not
proper in either as applicable to a runaway slave. The phrase
implies a condition which is not the normal state of the slave ;
as confinement, and danger. A prisoner escapes from custody ;
a soldier escapes death. Such identity of language, and so un
usual in speaking of runaway slaves, and all amphibological,
could not have been hit upon except in concert, and as agreed
upon beforehand ; which in fact was the case : for the clause is
one of the compromises of the Constitution. And then the con-
gruity-of their provisions, each providing for a want in its own
case, not in the other. The clause in the ordinance being made
for Territories, the recovery of the fugitive is limited to the
escapes from one of the original States to a Territory : the
clause in the Constitution being made for States, is confined to
escapes from one State to another. And why ? Because the
Constitution was made for States, and would not in any way act
* There shall he neither slavery nor involuntary servitude in the said Territory,
otherwise than in the punishment of crimes, whereof the party shall have heen duly
convicted, provided always, that any person escaping into the same, from whom labor
or service is lawfully claimed in any one of the original States, such fugitive may be
lawfully reclaimed, and conveyed to the person claiming his or her labor or service as
aforesaid. — Ordinance.
No person held to service or labor in one State, under the laws thereof, escaping
into another, shall, in consequence of any law or regulation therein, be discharged from
such sendee or labor, but shall be delivered up on claim of the party to whom such
service or labor may be due. — Constitution.
SUPREME COURT'S DECISION, ETC. 39
upon a Territory.* Then the identity of the vote in each ; for in
each the vote upon the clause was the same — to wit : unani
mous. Then the origin of the clause in each, being both from
the South ; the clause in the Ordinance coming from a com
mittee of five, of which two were from Virginia and one from
South Carolina : that in the Constitution coming from South
Carolina, moved by Mr. Pierce Butler, and seconded by his
colleague, Mr. Charles Pinckney. These similitudes in the two
clauses, and the instant adoption of the Ordinance by the first
Congress under the Constitution, identify them as parts of the
same system, the work of the same heads, and essential the one
to the other — that is to say, the Ordinance to the Constitution :
for if the slavery question had not been settled as therein done
— Territory divided and runaway slaves to be given up — there
would have been no Constitution ! and, consequently, no Union !
So indispensable was the Old Congress to the Convention,
that it not only sat as long as the Convention did, but longer —
waited to receive its work, and provide for its adoption by the
States. Some members of the Convention, as Mr. Madison,
returned to the expiring Congress, and assisted at this good
work. The newly-formed Constitution was forwarded by Gen.
Washington, as President of the Convention, to the President of
the Congress, with a patriotic letter recommending its adop
tion. The old Congress placed the instrument before the States,
urged its acceptance, and expired after that last act ; so that
the Congress and the Convention — the Ordinance and the Con
stitution — were all parts of one harmonious whole.
The whole Constitution was carried out upon the principle of
ignoring the existence of Territories ; I speak of Territories, im
plying political existence and organization, in contradistinction
to territory, signifying land ; and repeat that, as political enti
ties, the Constitution ignores tliem. This may be seen in every
* The same in the clause for reclamation of fugitives from justice. It only applies
between State and State. " A person charged in any State with treason, felony, or
other crime, who shall flee from justice, and be found in another State, shall on demand
of the executive authority of the State from which he fled, be delivered up, to be re
moved to the Slate having jurisdiction of the crime." No Territory included here,
although State is four times mentioned, and the evil to justice is the same, whether the
fugitive flies to a land called State, or called Territory. And why this limitation to
States in a case equally exigent in Territories? Because the Constitution was not
made for Territories, and would not authorize any action upon them.
40 EXAMINATION OF THE
clause — strongly in the two instances just given, and in those
previously given ; and still more strongly in the article which
relates to the establishment of courts. If there is one branch
of the government which, above all others, and more than all
others, concerns the whole body of the community, it is the ju
dicial department. The administration of justice, civilly and
criminally, may reach every individual of a country. No age
or sex, no rank, no condition of rich or poor, no conduct — not
even that of virtue and merit itself — is secure from litigious in-
O
volvement. The first care of the organic and legislating power
is to give a judiciary to the people ; and this is what our Con
stitution has carefully done, as far as our system of government
required its action. It has provided for the trial of all cases
which could invoke the Federal authority — all between citizens
of different States, and between citizens and foreigners, and for
all cases arising under the Federal laws ; all cases, in short,
which were not left to the State courts ; so that between the
two systems the citizen should have a remedy for every wrong.
Did this extend to the Territories ? Not at all ! The Federal
judiciary system does not reach them, nor the State systems
either. What then ? are they without Courts ? By no means.
Congress supplies them, and in a way to show that they do not
do it under the Federal Constitution, or in conformity to any
State Constitution known in our America. They made judges
to hold office for a term of years, subject to ~be removed l>y the
President, like, any common office-holder ; and several have been
so removed : and they gave codes of law, both civil and crim
inal, not only over the organized . Territories, reduced to our
possession, but over the wild territory, still in the hands of the
Indians. By the decision of the Supreme Court, this would
seem to be unconstitutional and void — a consequence which
seemed to sit hard on one of the brother justices who had acted
under these laws, and who, while agreeing in the decision upon
the Missouri Compromise Act, did it for a different reason from
that which would have condemned his own action.* Certainly
* " It is due to myself to say, that it is asking much of a judge, who has for nearly
twenty years heen exercising jurisdiction, from the western Missouri line to the Rocky
Mountains, -and, on this understanding of the Constitution, inflicting the extreme pen
alty of death for crimes committed where the direct legislation of Congress was the only
rule, to agree that he had been all the while acting in mistake, and as an usurper.'* —
Mr. Justice Catron.
ETC. 41
all tins legislation was incompatible with the Constitution, but
no violation of it, because the Constitution did not reach these
Territories, either civilized or savage. Finally, and to make
clear this point, the clause in the original proposition to make
needful rules and regulations respecting the territory of the
"United States, also proposed to authorize Congress to institute
temporary governments in the new States arising therein—
which was struck out, and properly ; the ordinance having al
ready made provision for such governments.
People of the slave States have a prejudice against that or
dinance as being a northern measure, put upon them by the
North, and from hostility to slavery. No conception could be
more unfounded. That ordinance, in all its forms and features,
in its inception, in its consummation, and in the cause which
gave rise to it, was a southern measure, given by the South to
the country — known to everybody as such at the time — and
provably so now. It grew out of the Virginia cession, (the
instant that cession was made,) and the other expected cessions
from North Carolina and Georgia. It was these cessions which
gave territory ; others were little better than barren quit-claims.
Virginia gave the Northwest; Georgia and North Carolina the
Southwest";* and the delegates of these States naturally and
* Sontli Carolina believed at the date of her cession, (August 9, 1787,) that she
was ceding a large territory quite out to the Mississippi ; but it was afterwards found
to be small. Still, her deed of cession, though barren inland, is rich in showing her good
will to the Union, (the formation of which required these cessions ;) and also in showing
her good will to the ordinance ; the cession having been a month after it, and when
she expected her ceded Territory to be governed by it. Of this cession one of the
dissenting judges says :
" But this Northwestern Territory was not the only Territory, the soil and juris
diction whereof were then understood to have been ceded to the United States. The
cession by South Carolina, made in August, 1787, was of ' all the territory included
within the river Mississippi, and a line beginning at that part of the said river which
is intersected by t e southern boundary of North Carolina, and continuing along the
said boundary line until it intersects the ridge or chain of mountains which divides
the eastern from the western waters ; then to be continued along the top of the said
ridge of mountains, until it intersects a line to be drawn due West from the head of
the southern branch of the Tugaloo River, to the said mountains ; and thence to run a
due West course to the river Mississippi.' It is true that by subsequent explorations it
was ascertained that the source of the Tugaloo River, upon which the title of South
Carolina depended, was so far to the northward, that the transfer conveyed only a
narrow slip of land, about twelve miles wide, lying on the top of the ridge of moun
tains, and extending from the northern boundary of Georgia to the southern boundary
EXAMINATION OF THE
properly, in the Continental Congress, took the lead in providing
for the government of the districts which had been their own,
and of which they were the donors to a new sovereign. The
Virginia deed of cession was delivered in March, 1784 ; Mr.
Jefferson, then a delegate in Congress, and one of the signers
of the Virginia deed, immediately moved for a committee to
bring in a bill to give a government to the ceded territory.
Leave was granted — himself chairman of the committee. It
was a proper occasion for the organizing mind of that law-giver
and statesman, and well did he avail himself of it. In a month
he reported his plan. It was one of the most perfect pieces of
legislation that ever came from the human mind — a code in
itself, and divided into two parts, and each part complete for
its object ; the first part, to train up young republican commu
nities for the exercise of sovereign rights ; the second, to secure
to the same communities, when ripened into States, the perma
nent blessings of civil and religious liberty. Plato had his
imaginary Eepublic, and Sir Thomas More his mythical Utopia,
for which they framed imaginary governments, founded in the
ories of human perfectability ; but Jefferson had a real field to
work in — a vast domain, fertile and beautiful, extending from
the Alleghanies to the Mississippi, and from the northern lakes
to the southern gulf, (for it was known that North Carolina and
Georgia would cede,) in which to plant real communities, and
to build up real republics ; and nobly did he do his work — how
nobly the States attest which have grown up upon it. And for
seventy years it stood, unmarred and undefaced, and spread far
of North Carolina. But this was a discovery made long after the cession, and there
can be no doubt that the State of South Carolina, in making the cession, and the
Congress in accepting it, viewed it as a transfer to the United States of the soil and
jurisdiction of an extensive and important part of the unsettled territory ceded by
the Crown of Great Britain by the treaty of peace, though its quantity or extent
then remained to be ascertained." — Mr. Justice Curtis.
To the same effect spoke another of the justices — one from the West, though not
exactly in the predicament of Mr. Justice Catron, thus : — " There is a law of Congress
to punish our citizens for crimes committed in districts of country where there is no
organized government. Criminals are brought to certain Territories or States, desig
nated in the law, for punishment. Death has been inflicted in Arkansas and in Mis
souri, on individuals, for murders committed beyond the limit of any organized Terri
tory or State ; and no one doubts that such a jurisdiction was rightfully exercised. If
there be a right to acquire territory, there necessarily must be an implied power to
govern it," — Mr. Justice McLean.
SUPREME COURT'S DECISION, ETC. 43
wider than he had foreseen — from the Mississippi to the Kocky
Mountains — from these to the shores of the Pacific. For, wherever
a. Territorial government has been formed on our continent in all
this long time, and over all this wide expanse — from '87 to '54—
' from Florida to Oregon — the ordinance of '87 has been its basis.
Even the Kanzas-Nebraska act, in all that is good and wise in
it, is copied from that fundamental law.
The ordinance which he (Mr. Jefferson) reported, passed
the Congress of the Confederation — became the law — was in
force for three years, with all the wise and beneficent provisions
now in it — one only excepted — and until it was repealed in 1787.
He reported it with an anti-slavery clause, the prohibition to
take effect after the year 1800 : that is to say, sixteen years after
the passing of the ordinance.* This clause, on the motion of
Mr. Spaight, some time Governor of North Carolina, was struck
out — the reason being that it did not contain a provision for the
recovery of fugitives from service. For the rest, the ordinance
passed — went into operation — and remained in force until super
seded by the amended, and, in some degree, new-modeled ordi
nance of 1787 — a southern measure in all its aspects. It was passed
in a sitting of the Congress in which the slave States present
were as near as could be, two to one ; to wit : five to three ; and
where the slave State delegates were exactly two to one over
the free State members. The power of the slave States was
there : Virginia, the two Carolinas, Georgia. It was reported
from a committee of which the majority were from slave States,
and passed unanimously — every State voting for it, and every
delegate from every State, except one from New York.f This
* The clause was in these words : " That after the year 1800 of the Christian era,
there shall be neither slavery nor involuntary servitude in any of the said States, (those
to be formed out of the North-west Territory,) otherwise than in punishment of crimes
whereof the party shall have been convicted to have been personally guilty."
\ The committee consisted of Messrs. Carrington and R. H. Lee, of Virginia ; Mr.
J. Kean, of South Carolina ; Mr. Dane, of Massachusetts ; Mr. Smith, of New York.
The ordinance was reported, Wednesday, the llth of July, read a first time, and ordered
to a second reading the next day ; read the second time the next day, and ordered to a
third reading on the ensuing day, (Friday, 13th ;) was read the third time that day, and,
unanimously passed. The States present, and voting for it, were : Massachusetts, New
York, New Jersey ; (three non-slaveholding :) Delaware, Virginia, North Carolina,
South Carolina, Georgia ; (five slave-holding.) The act of Congress for continuing it
in force passed the House with the same readiness, receiving its three readings in four
44:
EXAMINATION OF THE
amended ordinance contained the anti-slavery clause, with the
fugitive slave recovery clause, (without which latter it could not
have been passed ;) and it was known at the time that this
clause, and the parallel one in the Constitution, were parts of
one system, necessary to the formation of the Constitution ; and
putting the recovery of fugitives from service on the same foot
ing in the Territories as in the States. In the anti-slavery clause
of this amended ordinance, it is to be remembered there was a
wide departure from the terms of Mr. Jefferson's provision of
1784, in this : that by his provision the abolition of slavery in
the Territory did not take effect until sixteen years after the
passing of the ordinance, giving the owner time to be indem
nified in labor for his care and expense about the young slaves ;
but the amended act abolished all ownership at once, without
reference to the rights or interests of the owner. And it is this
amended act, thus governing a young community as children
under age, and thus seizing private property for an object of
public policy, that the Congress of 1789 adopted, and made a
statute of the United States ; and in which Congress, as Mr.
Justice Curtis has taken the trouble to ascertain, there were
fourteen members who had been delegates in the Federal Con
vention which made the Constitution — Mr. Madison one of them.
I must be allowed to make a stand at this point — and upon
this point — and to consider it as the authoritative exemplifica
tion, and assertion, of the power of Congress over the Territories ;
going the whole length of governing a Territory as it pleased,
and legislating upon slavery to the extent of the instant and un-
compensated emancipation of a great number of slaves.*
days (16th to 21st July) — without objection or division, as far as can be seen from the
journals and debates. And thus, the record history of the day proves that ordinance to
be a southern measure — southern in all its aspects — conception and consummation,
and the cause which gave rise to it. Yet in the South and West it is generally regarded
as an invidious measure, imposed upon the slave States by the free — an error much cul
tivated of late, but taking its rise in the great debate on nullification between Mr.
Webster and Mr. Hayne, and in the prominent part assigned by the former to Mr.
Dane, of Massachusetts, in the formation of that ordinance — a prominence excusable
in oratory, but not justifiable in history.
* The freed were in great numbers, and greatly to the loss and discontent of the
owners, which led to many applications to suspend that part of the ordinance, and
many legislative contrivances in Indiana and Illinois to evade it — resulting in many
lawsuits, either at home or in the neighboring slave States of Missouri and Kentucky —
SUPREME COURT'S DECISION, ETC. 45
It might be supposed that this was sufficient, (and it cer
tainly is so,) to show that the Congress of the Constitution made
the ordinance of '87 its own, and must stand for its author by
the adoption they gave it. But I am not yet done with the
Congress sanctions of this measure. Five times afterwards it
was sanctioned by one or other House of Congress — as far as a
refusal to impair it can become a sanction. It has been seen
that the inhabitants of Indiana and Illinois — (Yincennes, Kas-
kaskia, Cahokia, Prairie de Rocher, &c.,) — were discontented at
the loss of their slaves, and had recourse to legislative contri
vances, and judicial reclamations, to evade the effect of the ordi
nance. They also applied to Congress to suspend, for a limited
term, the anti-slavery clause in favor of the rights of the slave
holder — all in vain — each refusal (and there were five of them,)
operating as a congressional sanction of the measure. In one
of these refusals, the report of the committee, drawn by Mr.
Randolph*, states the reasons for refusing to grant the request
of the petitioners, with so much clearness and beauty of lan
guage, and with such elevated views of national policy, and pays
so just a tribute to the " sagacious and benevolent" ordinance,
and so well pronounces the danger and inexpedience of impair
ing — a danger and inexpedience since fully realized in the ab
rogation of the parallel case of the Missouri Compromise Act —
that all may read it with pleasure who either admire chaste writ
ing, or enlightened statesmanship. It is here put in a note for
their perusal.*
the freed people always preferring to try their case in a slave State, where they found
most favor. Of this, Mr. Senator Breese, of Illinois, well acquainted with what he re
lated, hore testimony in the Senate in the debate on an Oregon hill in '48. Replying
to a member who thought a free person of color could not get a fair trial in a slave
State, he said : " In all his observations and experience in cases of this sort, and they
have not been inconsiderable, he has discovered that the courts of the slave States have
been more liberal in their adjudications upon the question of slavery than the courts of
.some of the free States. The courts of one of them (Illinois) had uniformly decided
against the right of freedom claimed by persons held in bondage under a modified form
of servitude recognized by its old Constitution. In precisely similar cases, the courts
of Kentucky and Missouri, to which States such persons had been taken, decided in
favor of the right to freedom. And it is a remarkable fact that in all cases in these
States, and he believed in other slave States, where there was any doubt about the
right to hold the person in slavery, the decision has been invariably in favor of the
right to freedom."
* " The rapid population of the State of Ohio sufficiently evinces, in the opinion of
your committee, that the labor of slaves is not necessary to promote the growth and
46 EXAMINATION OF THE
Having seen what the first Congress, and some of its early
successors, thought of this ordinance, we will now look into the
opinion of some of the States — beginning with Virginia — a
State which from its character and weight in the Union, its
generation of illustrious men, and its close connection with the
subject as the great donor of public lands, should be of the
greatest authority in this case. Beginning with Virginia, so
much bound, and so well able to scrutinize the conduct of Con
gress in executing the high trust confided to it : what did she
say to this ordinance ? Repulse it ? No ! But took it to her
bosom, and embraced it with maternal affection. As early as
December 30th, 1T88, the Virginia General Assembly, by a
solemn act, sanctioned the ordinance in agreeing to a single al
teration which the Continental Congress asked to be made in it,
and which could not be made without her consent. That was
the sanction of Virginia, the year after the ordinance was made,
and the year before it was adopted by Congress. She'saw noth
ing in it beyond the power of the Congress of the Confederation
to achieve ; and she was then the sole party to it on the side of
the States, being up to that time the only effective grantor of
public lands. Next came North Carolina, another effective
donor, ceding her western territory in April, 1790 — the year
after Congress had adopted the ordinance ; and in her deed of
cession made it an article of compact, irrevocable by Congress,
to grant to her ceded territory, (now the State of Tennessee,)
the whole ordinance of '87, with the single stipulation that
Congress should not emancipate slaves — a clear admission that
Congress might otherwise do it.* Twelve years after came
settlement of colonies in that region. That this labor, demonstrably the dearest of
any, can only be employed to advantage in the cultivation of products more valuable
than any known to that quarter of the United States ; that the committee deem it
highly dangerous and inexpedient to impair a provision wisely calculated to promote
the happiness and prosperity of the Northwestern country, and to give strength and
security to that extensive frontier. In the salutary operation of this sagacious and
benevolent restraint, it is believed that the inhabitants will, at no very distant day,
find ample remuneration for a temporary privation of labor and of emigration." —
[Committee Reports, 1 806.]
* Fourthly. That the territory so ceded shall be laid out and formed into a State
or States, containing a suitable extent of territory, the inhabitants of which shall
enjoy all the privileges, benefits, and advantages set forth in the ordinance of the late
Congress for the government of the Western Territory of the United States
Provided always, That no regulation made, or to be made by Congress, shall tend to
emancipate slaves. — North Carolina Cession Deed.
SUPREME COURT'S DECISION, ETC. 4:7
Georgia — the last of the effective ceding States, and in her deed
of cession made it also an irrevocable article of compact, the
same as North Carolina had done, that the ordinance should
be extended to her ceded territory — now the States of Alabama
and Mississippi. The stipulation was in these words : (and that
of North Carolina was the same : ) —
" That the territory thus ceded shall form a State, and be admitted
as such into the Union as soon as it shall contain 60,000 free inhabi
tants, or at an earlier period, if Congress shall think expedient, on the
same conditions and restrictions, with the same privileges, and in the
same manner provided in the ordinance of Congress of the 13th of
July, 1787, for the government of the Western Territory of the United
States, which ordinance shall, in all its parts, extend to the territory
contained in the present act of session, that article only excepted which
forbids slavery"
This was in the year 1802; and thus we have, in a period of
fourteen years, the sanctions of the three great ceding States —
and they Southern States — to this ordinance ; Virginia, as a
question of expediency, accepting the abolition of slavery on
the part she ceded; North Carolina and Georgia, as a like
question of expediency, retaining slavery in the parts ceded by
them. It is needless to add that all the other nominally ceding
States, (South Carolina inclusive,) gave in their sanction to the
ordinance — after it was made, as well through their delegates in
the old Congress when it was made — and through their repre
sentatives in the first Federal Congress when it was adopted.
I return to the Congress — the Federal Congress, and give two
strong instances of action on slavery in that body — South-west
ern Territory, and original United States Territory ; one in 1798,
the other in 1806. The first was in organizing the Mississippi
Territory, wh'ich was done by spreading the ordinance of '87
over it ; the whole, with the exception of the anti-slavery clause,
and that clause having been proposed to be applied to it also, it
was resisted solely upon expedient grounds — not a word being
uttered against the power of Congress to do so.* But a provi-
* Mr. Harper, of South Carolina : " In the Northwestern Territory the regulation
forbidding slavery was a very proper one, as the people inhabiting that part of the
country were from parts where slavery did not prevail, and they had, of course, nu
slaves among them ; but in the Mississippi Territory it would be very improper to
make such a regulation, as that species of property already exists, and persons emigrat-
48 EXAMINATION OF THE
sion in restraint of the growth of slavery there was adopted, (on
the motion of Mr. Robert Goodloe Harper, of South Carolina,)
in forbidding the importation of slaves from any port or place
without the limits of the United States, and making such impor
tation a penal offence, punishable by fine, and giving freedom
to the slave.* This was a strong measure, especially in its pen
alty, and marks the difference between States and Territories,
being ten years before Congress would have the constitutional
right to prohibit such importation into one of the old States.
The other instance was in the year 1806, when Mr. David E.
Williams, then, and for six years afterwards, a leading member'
from South Carolina, moved, (Feby. 7,) that a committee be
ing there from the Southern States would carry with them property of this kind. To
agree to such a proposition would, therefore, be a decree of banishment to all the per
sons settled there, and of exclusion to all those intending to go there. He believed
it could not, therefore, be carried into effect, as it struck at the habits and customs of
the people." Mr. Giles, of Virginia: "Did not know whether the tendency of the pro
posed measure was calculated to ameliorate the condition of the class of men alluded
to : he believed not. On the contrary, it was his opinion that, if the slaves of the
Southern States were permitted to go into the Southern country, by lessening the num
ber in these States, and spreading them over a large surface of country there would be,
a greater probability of ameliorating their condition." Mr. John Nicholas, of Virginia,
and Mr. Rutledge, of South Carolina, spoke against the expediency of the measure ;
and also some members from the free States — among them Mr. Harrison Gray Otis,
of Massachusetts, who was glad to have it in his power to show his indisposition to in
terfere with the Southern States in their management of this species of property.
" He thought it was not the business of those who had nothing to do with that kind
of property to interfere with that right; and he really wished that the gentlemen who
held slaves might not be deprived of the means of keeping them in order. If the
amendment prevailed, it would declare that no slavery should exist in the Natchez
country. This would not only be a sentence of banishment, but of war. An immedi
ate insurrection would take place, and the inhabitants would not be suffered to retire
in peace, but would be massacred on the spot." None of these speakers, nor anybody
else at that time, saw any thing unconstitutional in Congress legislating upon slavery
in Territories, and abolishing it in such districts if it thought proper.
* Section 7. "That from and after the establishment of the aforesaid government,
it shall not be lawful for any person or persons, to import or bring into the said Mis
sissippi Territory, from any port or place without the limits of the United States, or
to cause to be so imported or brought, or knowingly to aid o r assist in so importing or
bringing any slave or slaves ; and that every person so offending, and being thereof con
victed before any court within the said Territory, having competent jurisdiction, shall
forfeit and pay for each and every slave so imported or brought, the sum of three hun
dred dollars ; one moiety for the use of the United States, and the other moiety for
the use of any person or persons who shall sue for the same ; and that every slave, so
imported or brought, shall thereupon become entitled to, and receive his or her free
dom." [Act of April 7, 1798.]
SUPREME COURT'S DECISION, ETC. 49
appointed, " to inquire wither any, and if any, what additional
provisions were necessary to prevent the importation of slaves
into the Territories of the United States." The committee was
granted, and the members consisted almost exclusively of slave
State representatives, to wit : Mr. David R. Williams, of South
Carolina; Mr. John G. Jackson, of Virginia; Mr. Thomas
Spalding, of Georgia ; Mr. James Kelly, of Pennsylvania ; and
Mr. William Blackledge, of North Carolina: Mr. Macon, of
North Carolina, the speaker, making the appointments. On the
27th of March, the committee reported, and brought forward a
bill, " to prohibit the introduction of slaves into the Mississippi
Territory, and the Territory of Orleans ; " which was read a
first, and a second time, and committed to a Committee of the
whole House ; but was not reached during the brief remainder
of the season. The proceedings upon it, however, as far as they
went, are pregnant with pertinent reflection. The motion was
made by a Southern member ; the committee, appointed by a
Southern speaker, were four to one from the slave States : the
bill seerns to have been unanimously reported ; it applied both
to the original and the newly acquired territory, and in all the
steps in relation to it — raising the committee, reading the bill,
referring it to the Committee of the whole House ; it was treated
as a mere ordinary piece of legislation, to the consideration of
which there was no objection. Though a silent mode of showing
an opinion, there could not have been a clearer one in favor of
the constitutionality of the proceeding, nor a stronger declara
tion that the House saw no difference in the power of Congress
over the old and the new territory.*
In addition to these States, and the Congress, there was an
other authority which acknowledged this ordinance, and
sanctioned it, and provided for it — and with power to do so ; and
that in the critical moment of its existence in the government's
transition from the confederate to the Union State. That
* I have caused search to be made in the files of the House for this bill, but without
effect — it belonging to the period when the capital was burnt by the British, and the
records, before 1814 in great part destroyed. But the precision of the journal shows the
character of the bill, — " to prohibit the introduction of slaves into the Mississippi Territory,
and Territory of Orleans." This was a universal prohibition, and evidently intended to
restrain the great increase of slaves in those two Territories — the considerate and
thinking men of that day looking forward to the time, when, in that extreme south,
the black population might become too numerous for the tranquillity and safety of the
white race.
50 EXAMINATION OF THE
authority is the Constitution itself; a very competent authority,
and which provided for the ordinance co-incidently with its
creation, and in terms clear in themselves, and well understood
at the time, though I believe forgotten now — although they
stand in the Constitution, and nothing else has been found for
them to attach to. It is in that clause of Article YI. which
says :—
" All debts contracted, and all engagements entered into, before the
adoption of this Constitution, shall be as valid against the United States
under this Constitution as under the Confederation."
Here are two classes of obligations provided for — " debts
contracted, and engagements entered into;" — and the framers of
our Constitution were not the men to provide for two things
when they only knew of one ; nor even then to use two words
when one was enough ; nor to use any word which had not an
object of its own to attach to. The first class of obligations here
referred to — the debts — readily commanded their appropriate
attention, and wTere long enough a weight upon the country to
be understood and remembered : but what of the other — " en
gagements entered into," — hardly remembered, or understood
at all, and nothing to call attention to it, or any use for it
since the 7th day of August, Anno Domini, 1789 — the day
on which the first Congress of the Constitution provided for
the engagements which the Congress of the Confederation had
entered into with the land-ceding States. The adoption of the
ordinance of '87, on that day, was the performance of that en
gagement. The parties to it were the Congress of the Confeder
ation and the land-ceding States — all of them ; for it was known
at the time that North Carolina and Georgia would follow the
example of Virginia in ceding theirs. The engagement itself
was,— -first, to dispose of the ceded land, — secondly, to build up
political communities upon it. And the Constitution provided
for the fulfilment of both branches of the engagement, and the
adoption of the ordinance fulfilled the political part of the engage
ment, — building up political communities on the Territory ; and
the clause in the Constitution for disposing of the Territory, and
other property of the United States, followed by acts of Congress
to sell the public land, fulfilled the other. This latter clause,
with its authority to make needful rules and regulations respect
ing the territory, &c., has been, in latter times, generally under-
ETC. 51
stood as authorizing the political action of Congress over the
Territories. The history of the times shows this to be an error,
so far as giving a government to the Territory is to be under
stood. The clause, as first proposed by Mr. Madison, included
temporary governments for the new States arising on this ter
ritory. Referred to the Committee of Detail, of which Gouver-
neur Morris was chairman, it was returned with u governments"
struck out, and adopted by the Convention as it now stands,* the
" temporary governments" omitted, and " unappropriated lands"
substituted by "territory or other property," and rules and
regulations added — significant alterations, and which go to re
pulse the government power, and to identify " territory " as
meaning land. This makes it clear that this needful rule and
regulation clause did not include government, and that it was
struck out, and properly because the ordinance had provided for
these governments — both Territorial and State. I know it has
been much, and most respectably relied on, that this clause gave
to Congress both the right to govern these Territories, and to
dispose of the lands within them. I think not, with respect to
the government. As to the disposition of the territory, and the
rules and regulations respecting it, I think Congress would have
as much power in making this disposition and establishing these
rules and regulations as any other land-holder ; and that would
certainly include, not merely its sale, but the choice of labor,
free or slave, and the entrance of persons upon it.
It is remarkable that this ordinance of an expiring Govern
ment was its last act, and its adoption the first act (nearly) of
the nascent Government, born out of its ruins ; the former, a
circumstance which has been dwelt upon (of late) to the disad
vantage of the expiring Government, as an act of authority when
* The entries in relation to this clause, stand thus in Mr. Madison's debates in the
Federal Convention : —
" Mr Madison submitted, in order to be referred to the Committee of Detail, the
following powers, 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 in the new States arising therein."
These propositions were referred to the Committee of Detail, August 18, 1787.
Mr. Gouverneur Morris moved to take up the following : —
" The legislature shall have power to dispose of, and make all needful rules and
regulations respecting the territory or other property belonging to the United States ;
and nothing in this Constitution contained shall be so construed as to prejudice any
claims, either of the United States, or any particular States." [August 30.]
52 EXAMINATION OF THE
power was departing, but which history classes with the pru
dent foresight of a wise man dying, and putting his affairs in
order for the benefit of his successor ; for such was the conduct
of the last Congress of the expiring Confederation. It knew it
was expiring ; it knew it was to be succeeded by a new Govern
ment ; it knew it had entered into engagements which others
would have to fulfil ; and it wisely and honestly put these engage
ments into perfect form, in the revised and amended ordinance,
that its successor should have nothing to do but adopt its work.
And it should never be forgotten that this ordinance wras the
work of the southern land-ceding States, of Virginia, the two
Carolinas, and Georgia, whose power did it. As to its adoption
by the first federal Congress, it seems to have been unanimously
done; the journals and debates showing no division ; and that
Congress knew what it was about was very probable, both from
the character of the members, their familiarity with the events
of the day, and the fact that fourteen of them had been mem
bers of the Convention which framed the Constitution.
Such is the testimony of States, of Congresses, and of the
Constitution in favor of this ordinance ; but we have another of
a different character, partaking of the judicial, as the others do
of the legislative authority, and hardly less entitled to respect.
I speak of St. George Tucker, (the father,) some time one of the
judges of the General Court of Virginia, professor of law in the
ancient University of William and Mary, and editor of an
edition of Sir William Blackstone's Commentaries, with notes
and references to American law, to assist the American law-
student. In one of these notes, (Appendix D., vol. 1.) written
some fifty-five years ago, when the history of the formation of
this Government was part of his daily current knowledge, he
thus speaks of this ordinance, and the engagement clause in the
Constitution : —
" Congress, under the former Confederation, passed an ordinance,
July 13th, 1787, for the government of the territory of the United
States north-west of the Ohio, which contained, among other things, six
articles, which were to be considered as articles of compact between the
original States and the people and States of the said territory, and to
remain unalterable, unless by common consent. These articles appear
to have been confirmed by the sixth article of the Constitution, which
declares that all debts contracted, and all engagements entered into
SUPREME COURT'S DECISION, ETC. 53
before the adoption of the Constitution, shall be as valid against the
United States, under the Constitution as under the Confederation."
Such is the contemporary evidence of an eminent judge,
writing for the information of the young generation, free from
question or excitement, and in daily intercourse with, the men
who founded the Government. To him it was all clear that the
ordinance was made to fulfil the engagement to the land-ceding
States, and that the sixth article in the Constitution was put in
to devolve the fulfilment upon the new Government.
It is observable that the Supreme Court, in its opinion, takes
no notice of Judge Tucker's application of this engagement
clause in the Constitution, and without applying it in the same
way, is somewhat indistinct in its own application of it, result
ing, possibly, from having read the clause in three parts instead
of two ; " debts, contracts, and engagements entered into," in
stead of " debts contracted, and engagements entered into." It
seems, in fact, merely referred to to illustrate, by analogy, the
meaning of the clause in relation to the territory and other
property of the United States.* As providing for the ordinance,
* " The necessity of this special provision in relation to property and the rights of
property held in common by the confederated States, is illustrated by the first clause
of the sixth article. This clause provides that ' all debts, contracts, and engage
ments entered into before the adoption of this Constitution, shall be as valid against
the United States under this Government as under the Confederation.' This provision,
like the one under consideration, was indispensable if the new Constitution was adopted.
The new Government was not a mere change in a dynasty, or in a form of government,
leaving the nation or sovereignty the same, and clothed with all the rights, and bound
by all the obligations of the preceding one. But, when the present United States
came into existence under the new Government, it was a new political body, a new
nation, then for the first time taking its place in the family of nations. It took
nothing by succession from the Confederation. It had no right, as its successor, to any
property or rights of property which it had acquired, and was not liable for any of its
obligations. It was evidently viewed in this light by the framers of the Constitution.
And as the several States would cease to exist in their former confederated character
upon the adoption of the Constitution, and could not, in that character, again assemble
together, special provisions were indispensable to transfer to the new Government the
property and rights which at that time they held in common ; and at the same time
to authorize it to lay taxes and appropriate money to pay the common debt which they
had contracted ; and this power could only be given to it by special provisions in the
Constitution. The clause in relation to the territory and other property of the United
States provided for the first, and the clause last quoted provided for the other." —
Opinion of tJie Court.
54 EXAMINATION OF THE
it does not seem to be referred to at all. And, it may be, that
admitting the force of the ordinance in the old territories, the
Court saw no necessity to fortify it. But that admission is so
hedged in with qualifications, limiting it to the old territory,
and so hampered with dependence upon the compacts, and so
stinted in its reduction to the combined power of Congress and
the States, that I have deemed it just to trace it through its
history, and place it upon its proper foundation : 1. The broad
and solid foundation of sovereignty. 2. Proprietorship. 3. The
Constitution. 4. The adopting act of Congress. 5. The sanc
tion of many Congresses, and of all the land-ceding States. And
thus fortified, it becomes the strongest measure over persons
and property, in Territories, which the history of our legislature
affords; as much stronger than the Missouri Compromise Act
as the abolition of existing slavery, without regard to proprie
tary rights, is stronger than the prospective prohibition of
slavery in places where it never existed.
SECOND STAGE OF THE EXAMINATION : POWER OF
CONGRESS OVEK THE NEW TERRITORIES.
II. In the acquisition of Louisiana came the first new terri
tory to the United States, and over it Congress exercised the
same power that it had done over the original territory. It saw
no difference between the old and new, as the Court has done,
and governed both, independently of the Constitution, and in
compatibly with it, and by virtue of the same right — Sover
eignty and Proprietorship ! the right converted into a duty,
and only limited by the terms of the grant in each case.
Louisiana was acquired in the spring of 1803 : an extra ses
sion of Congress was called to ratify the treaty of acquisition,
and to provide for the occupation and government of the new
possession. The called session met in October, and immediate
ly passed an act providing for the two objects — the first section
of the act putting the armed force, military and naval, at the
disposition of the President to enable him to receive the pos
session ; the second, providing for a temporary government : and
which was in these words : —
ETC. 55
" That until the expiration of the present session of Congress, unless
provision for the temporary government of the said territories be sooner
made by Congress, all the military, civil and judicial powers exercised
by the officers of the existing government of the same, shall be vested
in such persons, and shall be exercised in such manner, as the President
of the United States shall direct for maintaining and protecting the in
habitants of Louisiana in the free enjoyment of their liberty, property
and religion."
This bill emanated from a select committee, of which Mr.
John Randolph was chairman ; Messrs. John Rhea, of Tennes
see, William Hoge, of Pennsylvania, Gaylord Griswold, of
New York, and George Michael Bedinger, of Kentucky, were
members : but those who' are familiar with the inside working
of the legislative machinery, know very well that bills of this
particular kind — to carry into effect a measure of the Govern
ment, originating in a treaty with a foreign power — always come
down from the department of State, supervised by the Presi
dent : and in this instance, the special message of the President
which brought the subject before Congress, and asked for " tem
porary provision " for the government of the Territory, the pre
sumption of its origin in the State Department assumes the
character of certainty. It was a startling bill — continuing the
existing Spanish government — putting the President in the
place of the King of Spain — putting all the territorial officers
in the place of the King's officers — and placing the appoint
ment of all these officers in the President alone, without refer
ence to the Senate. Nothing could be more incompatible with
our Constitution than such a government — a mere emanation
of Spanish despotism, in which all powers, civil and military,
legislative, executive and judicial, wrere in the Intendant Gene
ral representing the King ; and where the people, far from pos
sessing political rights, were punishable arbitrarily for presum
ing to meddle with political subjects. Not only was the nature
of the Government thus continued wholly incompatible with
our Constitution, but its machinery and appointment of officers
were equally so. They were to be appointed by the President
without the advice and consent of the Senate : and certainly the
American Governor who was to replace the Spanish Intendant
General in that important province, and the judges who were
to replace the royal Cabildo in the city of New Orleans, were
56 EXAMINATION OF THE
not the " inferior officers " whose appointment, by the Constitu
tion, would vest in the President alone. In no Territory organ
ized under the ordinance of 1787, even the most inconsiderable,
were these officers so considered. Here then was a double in
compatibility with our Constitution—^^, in the Government
itself ; secondly, in the appointment of the officers to adminis
ter it : and it is not to be supposed that such enactments, so
startling in themselves, and so novel in a Eepublic of Anglo-
Saxon origin, could pass without observation — without scrutiny
—from that jealous Republican party which had just come into
power, and come in upon the cry of saving the Constitution at
the last gasp. And still less to be supposed that it would escape
the notice of the eminent Federal men in Congress, no friends
to the acquisition of Louisiana, and willing to hold the Eepub-
lican members to the test of their liberty-loving principles.
The unobserved passage of such an act, in such a state of par
ties, was not to be expected : and unobserved it was not, nor
unscrutinized either. It roused attention when it was read.
It was canvassed from the beginning, and through all its stages,
and on the double ground mentioned. Mr. Eoger Griswold, of
Connecticut, (Federal,) moved to strike out the whole section,
saying : " He wished to know what were the civil, military, and
judicial functions exercised by the Spanish officers; and ex
pressed the belief that some of them were inconsistent with
the Constitution of the United States ; and referred to the writ
of Jialeas corpus, which could not be in force under the act, and
which Congress could only constitutionally suspend in cases of
rebellion or invasion." Mr. James Elliott, of Vermont, (Ee-
publican,) seconded the motion of Mr. Griswold, saying : " He
would never consent to delegate, for a single moment, such ex
tensive powers to the President, even over a Territory : such a
delegation of power was unconstitutional." Mr. Dana, of Con
necticut, (Federal,) expressed himself thus: "The President
may, under this authority, establish the whole code of Spanish
laws, however contrary to our own, appoint whomsoever he
pleases as governor and judges, and remove them accord
ing to his pleasure ; thus uniting in himself all power— legisla
tive, judicial, and executive."
This was bringing out objections to the constitutionality of
the bill, sufficiently clearly and strangely to merit an answer
SUPREME COURT'S DECISION, ETC. 57
from its friends — and received it, reminding the objectors that
this was a Territory — not a State ; and that the Constitution had
nothing to do with it. Thus, Mr. Rodney (Cesar Augustus) of
Delaware, (Republican :) "There is a wide distinction between
States and Territories, and the Constitution appears clearly to
indicate it. In the Territories of the United States, under the
ordinance of Congress, the Governor and judges have a right to
make laws. Could this be done in a State ? I presume not. It
shows that Congress have a power in the Territories which they
cannot exercise in the States, and that the limitations of power,
found in the Constitution, are applicable to States and not to
Territories."
Mr. Griswold replied, and more earnestly and pointedly,
saying : " By the section under consideration, power is given
to the President to appoint all the officers in the province, from
the governor clown to the lowest officer. Gentlemen will not
say that the office of governor, or judge, is one of the inferior
offices contemplated by the Constitution. They had never been
so considered. In all the arrangements for the territorial gov
ernments the sanction of the Senate had been required for the
governors, judges, secretaries, etc. ; whereas, in this instance,
the President is clothed with power to appoint all officers in the
Territory. He apprehended that such a power could not be
constitutionally given." — This brought up Mr. Randolph, who
compressed his argument into the single word, sovereignty,
saying : " Gentlemen will see the necessity of the United States
taking possession of this country in the capacity of sovereigns, in
the same extent as that of the existing government of the prov
ince." — Mr. Joseph H. Nicholson, of Maryland, (Republican,)
spoke more at large. He said : " Is there any difference be
tween this section and the provisions of the ordinance of 1787,
which relates to territorial governments ? By that ordinance,
and I have never heard its constitutionality questioned, all the
civil, military, and judicial powers are vested in such persons as
the President may appoint. Judicial powers are vested in per
sons appointed by the President : so with respect to the civil
and military powers : and the legislative power is vested in a
body, part of which is appointed by the President. I am, with
other gentlemen, unable to say what are the nature and extent
of the powers exercised by the present government of Louisiana ;
58
EXAMINATION OF THE
but we must authorize the taking possession of the country : and
we must, in such an event, authorize the exercise of these pow
ers."— Mr. Mitchell, (Dr. Samuel II.) of New York, (Republi
can:) "The third section of the fourth article of the Constitu
tion contemplates that territory and other property may belong
to the United States. By a treaty with France, the United
States has lately acquired title to a new Territory, with various
kinds of property on it, or annexed to it. By the same section
of the Constitution, Congress is clothed with power to dispose of
such territory and property, and to make all needful rules and
regulations respecting it. This is as fair an exercise of constitu
tional power as that by which we assemble, and hold our seats
in this house.''— Mr. Joseph B. Varnum, of Massachusetts, (Re
publican,) and sometime speaker of the House : " We are told
we are about to authorize the exercise of power over the ceded
territory not authorized by the Constitution : he would ask if the
Constitution was to take effect as soon as the United States took
possession of the Territory ? On this point he would refer to
the treaty. It provides for the incorporation of the inhabitants
into the Union : but when ? As soon as it can be done according
to the principles of the Federal Constitution. In the mean
time they are to be protected in the enjoyment of their liberty
and property, and the religion they profess. In what mean
time ? There is a time when the country is acquired, and a
time when it will be admitted into the Union. Between these
periods — in the mean time — the people are to enjoy their lib
erty, property, and religion."— Dr. Eustis, of Massachusetts,
(Republican,) and sometime Secretary at War: " Though
called upon to take immediate possession of this Territory, you
are told you are not to govern it. This is the amount of the
argument of gentlemen ; for if you cannot govern it in this
way, you can govern it in no other. He saw no other alter
native : there was no possibility of any other course. He was,
therefore, happy to see nothing in the Constitution which for
bade pursuing it. On the contrary, it arose imperiously from
the acquisition." — Mr. John Smilie, of Pennsylvania, (Repub
lican :) " He agreed in opinion with the gentleman from Mas
sachusetts, (Mr. Yarnum,) that the Constitution did not extend
to this Territory any further than they were bound by the com
pact between the ceding power and the people. On this prin-
SUPREME COURT'S DECISION, ETC. 59
ciple they had a right, viewing it in the light of a colony, to
give it such a government as the Government of the United
States might think proper, without thereby violating the Con
stitution. When incorporated into the Union, the inhabitants
must enjoy all the rights of citizens. He would thank gentle
men to show him any part of the Constitution which extends either
legislative, executive, or judicial power over this territory. If
none such could be shown, it must rest with the discretion of the
Government to give it such a system as might seem best for it."
On these objections and answers to the bill, the vote was
taken to strike out the second section — the one objected to —
and the motion almost unanimously rejected ; and the question
being taken 011 the passage of the bill, it passed in the affirma
tive — 89 yeas to 23 nays : the negatives consisting almost en
tirely of those Federal members who, having opposed the ac
quisition of Louisiana, worked out their principle to its legiti
mate conclusion, in refusing to legislate for it. And thus the
act passed the House as good as unanimously.
The bill had come from the Senate, and there being but little
reporting of debates in that body at that time, and nothing re
ported on this bill, we are remitted to the journal to see the
mere proceedings which took place upon it : and these are suffi
ciently full and significant to show the sentiments of that body
upon it. From the journal of these proceedings it appears that
on the 21st of October — (it was the session of 1803-'4) — Mr.
Jefferson, by special message, informed the Senate as well as
the House, that the Senate had ratified the Louisiana treaty,
and asked the legislative aid from Congress which would enable
him to take possession of the province and govern it tempora
rily. The same day Mr. John Breckenridge, of Kentucky,*
gave notice that he would ask the leave of the Senate to bring
in a bill to accomplish the objects of the message : — doubtless
done in concert with Mr. Jefferson, of whom he was a leading
friend. Leave was given, and the bill brought in the next
day, and was the same that passed the House, with an amend
ment limiting its duration to the end of the session. It was
read a first time, for information, the day it was brought in—
the second time for reference, or consideration, the next day—
* Grandfather of the present Vice President.
60 EXAMINATION OF THE
and was referred to a select committee, (Mr. Breckenridge, Mr.
Jonathan Dayton, of New Jersey, and Mr. Abram Baldwin, of
Georgia,) to consider and report upon. On the day after, (Oct.
23d,) Mr. Breckenridge reported back the bill without any pro
posed alteration ; the next day it was read the third time, and
passed. ~No motion was made to strike out the second section,
and the vote on its passage was nearly unanimous,* only six
members voting against it, and they the members who opposed
the treaty, and would no nothing to carry it into effect. The
bill thus passed received the approbation of the President the
same day it was laid before him ; and to those who are acquaint
ed with the working of the legislative machinery, it may well
be believed that the whole proceeding was in concert with the
administration — that Mr. Jefferson picked out Mr. Brecken
ridge to bring in the bill — that its principles were settled in
cabinet meeting — that Mr. Madison drew it : and that every
question in relation to it was duly considered before it was sub
mitted to final action. And thus., this first instance of Congress
legislation upon newly acquired territory was as high an in
stance of disregard of the Constitution as the imagination could
conceive — being nothing less than the continuation of the Span
ish regal despotism — the President taking the place of the King
of Spain ; Governor Claiborne,f the place of the Intendant
General, Morales ; the laws of Spain remaining in force and
administered by American judges : and the whole provincial
administration going on as if no change of government had
taken place. It was a royal despotic Government,f and every
* The yeas were : Messrs. Joseph Anderson, of Tennessee ; Theodorus Bailey, of
New York ; Abraham Baldwin, of Georgia ; John Breckenridge, of Kentucky ; John
Brown, of Kentucky ; Pierce Butler, of South Carolina ; William Cooke, of Tennessee ;
John Condit, of New Jersey ; Jonathan Dayton, of New Jersey ; Christopher Ellery,
of Rhode Island ; Jesse Franklin, of North Carolina ; James Jackson, of Georgia ;
George Logan, of Pennsylvania ; Samuel Maclay, of Pennsylvania ; Wilson Carey
Nicholas, of Virginia ; John Taylor, of Virginia, (usually discriminated as John Tay
lor, of Caroline ;) Samuel J. Potter, of Rhode Island ; Israel Smith, of Vermont ; John
Smith, of Ohio ; Samuel Smith, of Maryland ; David Stone, of North Carolina ; Wil
liam Hill Wells, of Delaware ; Samuel White, of Delaware ; Thomas Worthington,
of Ohio ; Robert Wright, of Maryland.
f William Charles Cole Claiborne, native of Virginia, sometime representative in
Congress from Tennessee, and at that time territorial governor of Mississippi. He
was a very proper man to be intrusted with the responsible and delicate duty to
which he was appointed — urbane in manners, discreet in judgment, conciliatory in
SUPREME COURT'S DECISION, ETC. 61
body knew it ; and no one thought of testing it by the Consti
tution (some few new members in the House excepted) than by
the Koran.
This was the character of the first American territorial gov
ernment of Louisiana — a continuation of Spanish despotism —
and established by such men as then constituted the Federal
Government — and who have had no superiors, before or since.
Many of them had assisted in making the Constitution : all were
under oath to support it : and all, (or as good as all,) voted for
a bill which is contrary to that Constitution from beginning to
end. And now, by what authority did they so vote ? and the
answer is, in the single phrase pronounced by Mr. Randolph —
SOVEREIGNTY !
High as was this instance of Congressional absolute power
over territories, it was succeeded at the same session by another,
not so striking in its general character, but more so in some of
its features, and very exemplificative of the fact that Congress
paid no more attention to the Constitution in governing new
Territories than in governing the old ones. The continuation of
the Spanish monarchical government was an expedient for the
occasion, temporary, and only intended to remain until a more
suitable form of government could be matured; and no time
was lost in carrying that intention into effect. As early as No
vember 28th, Mr. Breckenridge, always a coadjutor of Mr. Jef
ferson, submitted a resolution in the Senate to raise a committee
to prepare a form of government for Louisiana. The motion
was ordered to lie for consideration. On the 5th of December
it was considered and adopted, and Messrs. John Breckenridge,
Robert Wright, of Maryland ; General James Jackson, of
Georgia ; Abraham Baldwin, of Georgia ; and John Quincy
Adams, were the select committee to which the motion was re
ferred. On the 30th December the bill was reported, and read
a first time, and ordered to a second reading ; on the 16th of
January, read a second time, and being open to amendment,
was taken up for discussion. On the 18th of February it had
temper ; and gave so much satisfaction, that he was continued Governor during the
eight years that the territorial condition remained, and was elected first Governor of
the State, and afterwards Senator in Congress : but died before taking his seat.
* The first territorial government of Louisiana was an imperial one, founded upon
a French or Spanish model. — Mr. Justice Campbell.
62
EXAMINATION OF THE
received its final consideration, and was passed by a vote al
most unanimous, (only the usual six negatives opposed to the
treaty,) and, so far as the provisions of the bill were concerned,
quite so ; for on motions to amend, or strike out, those who
voted against the passage of the bill voted for its strongest pro
visions separately.
I am thus particular with these initiatory steps to show the
care and caution with which our Congress proceeded in that
early day, its close observance of all the rules which experience
had devised for due deliberation in conducting business, and
especially to show that all these rules were scrupulously observed
in this case, and a most able committee appointed to bring in
the bill.
The bill thus matured, and passed, and sent to the House,
had taken the ordinance of 1787 for its basis, but with devi
ations required by the geographical position of the country, and
its peculiar circumstances. It divided the province of Louisiana
into two Territories, the upper and the lower ; the upper taking
the name, ultimately, of the Missouri Territory ; the lower tak
ing that of Qrj£ans..T^^itoj^l_It is in the part of the bill which
relates to this latter Territory, that the provisions were made
which most strongly asserted the power of Congress in terri
torial legislation, and especially upon the subject of slavery.
The tenth section was wbolly taken up with this subject, and
ran as follows : —
" Sect. 10. It shall not be lawful for any person or persons to
import or bring into the said Territory, from any port or place without
the limits of the United States, or cause or procure to be so imported
or brought, or knowingly to aid or assist in importing or bringing any
slave or slaves. And every person so offending, and being thereof con
victed before any Court within said Territory, having competent juris
diction, shall forfeit and pay for each and every slave so imported or
brought, the sum of three hundred dollars ; one moiety for the use of
the United States, and the other moiety for the use of the person or
persons who shall sue for the same ; and every slave so imported or
brought, shall thereupon become entitled to and receive his or her free
dom. It shall not be lawful for any person or persons to import or
bring into the said Territory, from any port or place within the limits of
the United States, or to cause or procure to be so imported or brought,
or knowingly to aid or assist in so importing or bringing, any slave or
SUPREME COURT'S DECISION, ETC. 63
slaves, which shall have been imported since the first day of May, one
thousand seven hundred and ninety-eight, into any port or place within
the limits of the United States, or which may hereafter be so imported
from any port or place without the limits of the United States ; and
every person so offending, and being thereof convicted before any Court
within said Territory, having competent jurisdiction, shall forfeit and
pay for each and every slave so imported or brought from without the
United States, the sum of three hundred dollars, one moiety for the use
of the United States, and the other moiety for the use of the person or
persons who shall sue for the same ; and no slave or slaves shall directly
or indirectly be introduced into said Territory, except by a citizen of the
United States removing into said Territory for actual settlement, and
being at the time of such removal bona fide owner of such slave or
slaves ; and every slave imported or brought into the said Territory, con
trary to the provisions of this act, shall thereupon be entitled to, and
receive his or her freedom."
This section contains three provisions on the subject of
slaves : 1. That no one shall be imported into the Territory from
foreign parts. 2. That no one shall be carried into it who had.
been imported into the United States since the first day of May,
1798. 3. That no one shall be carried into it except by the
owner, and for his own use as a settler ; the penalty in every
instance being a fine upon the violator of the law, and freedom
to the slave. The first of these prohibitions is the same that
was passed for the Territory of Mississippi at its organization, in
April, 1798 ; and which, as it has been shown, was unanimously
supported by Southern members at the time it was adopted.
The prohibition in the Orleans Territorial Act was four years
before, and that in the Mississippi Act was ten years before, the
constitutional right of Congress accrued to prevent the impor
tation of slaves into the original States. It was a strong meas
ure, in both instances, to show the impatience of Congress to
put an end to the slave trade, and that, while it discriminated
between States and Territories, it made no distinction between
old and new territory, and legislated for each according to its
discretion. The second prohibition was still stronger, and asserts
a still higher power over the subject of slavery in a Territory.
It reaches back to the first day of May, 1798, to get hold of a
slave imported from abroad into any State or Territory since that
time, and gives him liberty, and fines his conductor, if carried
64: EXAMINATION OF THE
into the Territory of Orleans. jSTow, the slave so to be liberated,
was property in the State from which he should be carried, hav
ing been constitutionally imported into that State ; yet if taken
into this Territory by authority of his owner, the property wras
forfeited and lost, without compensation to his owner, and with
a fine upon the owner for doing so ; and all this as long as ten
years, it might be, before the Congress had a right to prohibit
the foreign importation of slaves. For what reason the first
day of May, 1798, should have been taken for this date of
prohibition, forfeiture and fine, does not appear ; but, probably,
to make it correspond with the prohibition of imported slaves
into the Territory of Mississippi — the first Southern Territory in
which Congress legislated upon slavery. But whether the date
was taken for that reason, or for any other, or without reason,
arbitrarily, the character of the act is the same — the assertion
of a right in Congress to legislate upon slavery in a Territory
without regard to the Constitution. The third prohibition was
in the same line of policy, and still stronger than the two preced
ing. It liberated any slave, from any part of the United
States, who should have been taken into the Territory, except by
the Txmafide owner, removing into it for actual settlement, and
bringing the slave for his own use.
These three prohibitions certainly amount to legislating up
on slavery in a Territory, and that a new Territory, acquired
since the formation, of the Constitution, and without the aid of
compacts with any State.
None of these prohibitions passed the Senate without obser
vation, or without consideration of their import. They were
voted upon separately, either on motions to strike them out, or
to extend them ; so that the judgment of the Senate was delib
erately expressed in each case, besides being sanctioned in the
lump in the almost unanimous vote on the final passing of the
bill.
The bill having passed the Senate, was taken up in the
House, in which, besides the sanction to all its provisions in the
final vote, there were several special votes given on motions of
amendment, in wThich the House showed that it acted independ
ently of the Constitution and repugnantly to it, and that upon
special objection. Thus : the right to a jury trial, where the
matter in controversy exceeded the value of twenty dollars, was
SUPREME COURT'S DECISION, ETC. 65
denied, though guaranteed by the Constitution, which was in
voked on the occasion, but in vain. The royal power of proro
gation was continued to the governor, though opposed by some
members. Then the appointment of judges for a term of years,
instead of during gpod behavior. In these, and many other
instances a direct question was made upon the constitutionality
of the provision, and always rejected upon the broad ground
that the Constitution was not made for Territories, and had
nothing to do with them.
A special stand was made on each of these cases, and some
others, by a few members, holding the Constitution in their
hands, and pleading its infraction by the proposed provisions.
Thus, as an example of the whole, and as a repulse of the Con
stitution where its words would clearly apply ; Mr. George Wash
ington Campbell, of Tennessee, moved to amend the section
providing for the judicial power ; and which gave the right of
jury trial both in civil and criminal cases, " if * either party de
sired it" so as to make the right absolute in all criminal cases
whatever, and in all civil cases where the value in controversy ex
ceeded twenty dollars. He said : " He conceived that in legislat
ing for the people of Louisiana they were bound by the Constitu
tion of the United States. The Constitution expressly declares
that, in criminal cases, the trial shall be by jury, and in all civil
cases where the sum in controversy exceeds the value of twenty
dollars the trial shall likewise be by jury. The ninth article of the
amendments to the Constitution says : ' In all suits at common
law where the value in controversy exceeds twenty dollars the
right of trial by jury shall be preserved ; ' and the eighth arti
cle says : ' In all criminal trials the accused shall enjoy the right
of a speedy trial by an impartial jury."2 Here was a direct
question made between the bill and the Constitution, and the
vote showed that the House deemed the bill, because territorial,
independent of the Constitution. Only about thirty members
voted for Mr. Campbell's motion, and about twenty-five of them,
the opponents to the treaty, and who would do nothing to recog
nize the acquisition of the purchased province.
The anti-slavery section — the tenth — which contained the
three prohibitions on importations and removals of slaves into
Orleans Territory, encountered but little opposition; but 'there
was some instructive debate on the general character of the bill
5
66 EXAMINATION OF THE
for the government of the Territory, as being a novelty in terri
torial government, in not conforming to either of the three
grades provided by the ordinance of '87, but being a mixture
of the two first grades. In this sense Mr. Macon, of JN'orth
Carolina, said : " My first objection to the principle contained
in the section, (the 4th,) is, that it establishes a species of gov
ernment unknown to the laws of the United States. We have
three descriptions of governments — that of the Union — that
of the States — and that of the Territories. I believe the terri
torial government, as established by the ordinance of the old Con
gress, the best adapted to the circumstances of the people of
Louisiana, and that it may be so modified as to meet their con
venience. The people residing in the Mississippi Territory are
under this kind of government. Is it not likely that the people
of Louisiana will expect the same form of government and
laws with their neighbors ? The simple question is, what kind
of government is most fitted for those people ? I will not pre
tend to say they are fitted for a State government. The best
way to prepare them for snch a government is the system alrea
dy known to our laws — one grade, or the other, of the territo
rial government. For my part, I should prefer (for them) the
adoption of the second grade ; but I would prefer the first to
any new system." Mr. Lucas, (John B. C.,) of Pennsylvania:
" An argument was drawn from the treaty, that these people
are to be admitted to the absolute enjoyment of the rights of
citizens ; but gentlemen would not deny that the time when,
and the circumstances under which the provisions of the treaty
were to be carried into effect, were submitted to the decision of
Congress. It has been remarked that this bill establishes ele
mentary principles of government never previously introduced
in the government of any Territory of the United States. Grant
ing the truth of this observation, it must be allowed that the
United States had never before devolved upon them the making
provision for the government of a people under such circum
stances." Mr. Yarnum was of opinion that the section in the
bill, (the 4th,) provided such a form of government as had never
been known in the United States. Dr. Eustis, of Massachusetts,
" did not believe that the section under consideration, in its pres
ent form, consistent either with the spirit of the Constitu
tion or the treaty. The government laid down in the bill is
SUPREME COURT'S DECISION, ETC. 67
certainly a new thing in the United States ; but the people of
this country differ materially from the citizens of the United
States. I speak of the character of the people at the present
time. When they shall be better acquainted with the principles
of our Government, and shall have become desirous of partici
pating in our privileges, it will be full time to extend to them
the elective franchise." Mr. Holland, of North Carolina : —
"The provisions of this section are said to be worse than those
of the first grade of territorial governments ; but this is incor
rect. The plan is not equal to the second grade, but it is cer
tainly superior to the first grade. The first grade gives the
governor and judges all the power granted by this section ; and
this section, in addition to the governor and judges, contem
plates the appointment of thirteen councillors. Is not this pre
ferable to giving the whole power to the governor and judges ? "
Mr. Boyle, of Kentucky : " I am unwilling to extend Govern
ment patronage beyond the line of irresistible necessity. For
I believe, if ever this country is to follow the destiny of other
nations, this destiny will be accelerated by the overwhelming
torrent of executive patronage. I feel as high a veneration for
the present chief magistrate as any man on this floor. I have
retained the full force of my regard for him ; but were he an
angel instead of a man, I would not clothe him with this power ;
because, in my estimation, the investiture of such high powers
is unnecessary." Mr. Sloan, of Pennsylvania : " Can anything
be more repugnant to the principles of just government ? Can
any thing be more despotic than for a President to appoint a gov
ernor and a legislative council, the governor having a negative
on all their acts, and power to prorogue them at pleasure?
What liberty, what power, is here vested in the people ? "
Mr. Justice Campbell, in quoting from these speeches, has
been too brief to show distinctly their points of objection.* In
* Mr. Varnum said : " The bill provided such a government as had never been
known in the United States." Mr. Eustis : " The government laid down in this bill is
certainly a new thing in the United States." — Mr. Lucas : " It has been remarked,
that this bill establishes elementary principles never previously introduced in the gov
ernment of any Territory of the-United States. Granting the truth of this observation,"
&c. &c. Mr. Macon ; " My first objection to the principle contained in this section is,
that it establishes a species of government unknown to the United States." Mr. Boyle :
" Were the President an angel instead of a man, I would not clothe him with this
68 EXAMINATION OF THE
looking at them more fully, and in seeing the reasons they give
for their opinions, they are seen to apply to the form of the gov
ernment to be established, as being despotic, and as not con
forming to the ordinance of '87, which, after its adoption by
Congress in the year '89, became a law of the United States, and
intended for the South-western as well as the North-western Ter
ritories : the anti-slavery clause alone excepted. The character
of the bill was doubtless, as declared by these members, a des
potism, unsanctioned by any principle in the Constitution, and
repugnant both to its spirit and provisions ; but that only proves
that they acted independently of the Constitution, and know
ingly refused to be governed by it. The bill was passed by a
great majority — 66 to 21.
But the legislative action of Congress on Territories at this
session — 1803-'4 — did not stop at these two acts for Lower
Louisiana : there was another act for the upper half of the prov
ince, afterwards called the Territory of Missouri, very worthy to
be considered in this connection for its disregard of the Consti
tution and its want of discrimination between new and old ter
ritory. The Supreme Court makes a great difference between
these two classes of territories, and a corresponding difference
in the power of Congress with respect to them, and to the pre
judice of the new Territory. The Congress of 1803-'4r did not
see this difference ; and acting upon a sense of plenary author
ity, it extended the ordinance across the Mississippi — sent the
governor and judges of Indiana (for Indiana had then become a
Territory) — sent this governor (William Henry Harrison) and
the three Indiana judges across the Mississippi river, to admin
ister the ordinance of '87 in that upper half of Louisiana. Such
was the fact ! and here is the law under which it was done, be
ing section 12 of the act erecting Louisiana into two Territories,
and providing for their temporary government :—
" The residue of the province of Louisiana, ceded to the United
States, shall be called the District of Louisiana, the government whereof
shall be organized and administered as follows : The executive power
power." Mr. G. W. Campbell : " On examining the section, it will appear that it
really establishes a complete despotism." Mr. Sloan : " Can any thing be more repug
nant to the principles of just government ? Can any thing be more despotic ? "—
Mr. Justice Campbell. — Annals of Congress, 1803-'4.
SUPREME COURT'S DECISION, ETC. 69
now vested in the governor of Indiana, (then including Illinois,) shall
extend to and be exercised in the said district of Louisiana. The
governor and judges of Indiana Territory shall have power to establish,
in the said district of Louisiana, inferior courts, and to prescribe their
jurisdiction and duties, and to make all laws which they may deem con
ducive to the good government of the inhabitants thereof — subject to the
disapproval of Congress."
Here was old and new territory coupled together under one
territorial government, and the new put under the officers of the
old, and both governed by the ordinance of 1787. The law-
making power was* delegated to them, and they might have
suppressed slavery under that power ; but finding the institution
there, they let it alone. Such was the first territorial govern
ment of Upper Louisiana.
And now for the men who passed these acts — who established
these governments — so incompatible with the Constitution, and
so fully asserting absolute power over this new territory. Who
were they ? They were the men of the Revolution — of the ordi
nance of '87 — of the Constitution of that year — of the first ad
ministration of the Federal Government in its early age ; — and
the authors of the acquisition of Louisiana. Mr. Jefferson was
President — Mr. Madison Secretary of State — and the two Houses
of Congress filled with men who had acted their good part in
founding, and in putting into operation, the new Federal Gov
ernment. These were the men who did these things, and who
ought to be allowed to know something of their own work; and
if they did not, somebody existing at the time ought to have
known of their dreadful usurpations, and proclaimed them to
the world. No such discovery was made. Fifty-four years
have passed away since these things were done, and by such
men, and with universal acceptance at the time, and with a half
century of universal approbation : yet, if the decisions of the
Supreme Court are to stand, and these territorial acts subjected
to the test of the Constitution, it will only want a case to be got
before the Court to subject them to abrogation, as the Missouri
Compromise Act was after an honored existence of thirty-seven
years.
It is now seen, from what has been shown, that, in govern
ing their Territories, Congress and the Executive looked to their
TO EXAMINATION OF THE
rights as sovereigns and proprietors, and not to the Constitution,
for their authority : and this view seems to have been that of
the Supreme Court of the United States some thirty years ago.
A case from the Territory of Florida, under a territorial law,
was brought up to that Court which gave rise to the question,
what Congress might do in the Territory ? and what it might
authorize the territorial legislature to do? In deciding this
question, the Court, speaking through Chief Justice Marshall,
says : —
" In the mean time Florida continues to be a Territory of the United
States, governed by that clause of the Constitution which empowers
Congress to make all needful rules and regulations respecting the terri
tory or other property of the United States. Perhaps the power of
governing a Territory belonging to the United States, which has not, by
becoming a State, acquired the means of self-government, may result,
necessarily, from the facts that it is not within the jurisdiction of any
particular State, and is within the power and jurisdiction of the United
States. The right to govern may be the inevitable consequence of the
right to acquire territory. Whichever may. be the source from which
the power is derived, the possession of it is unquestionable"
" The right to govern may be the inevitable consequence of
the right to acquire territory," — a very fair deduction, even in
a naked case of unconditional acquisition. How much stronger
where the acquisition is accompanied by an obligation to gov
ern ? where the territory and its inhabitants are received upon
the condition ,that they shall be protected ! protected in their
persons, property, and religion ! How was that to be done
without government ? This is the case with the Louisiana pur
chase ; and the right to hold the territory, not only gives the
right of government, but imposes the duty of government upon
the new owner.
The present Supreme Court, in pronouncing its " Opinion,"
has noticed this decision of its predecessor, but with an argu
ment to show that it was not a decision, and that the present
Court is not bound by it. And it is right to give it the benefit
of this argument ; thus : —
" It is thus clear, from the whole opinion on this point, that the
Court did not mean to decide whether the power was derived from the
clause in the Constitution, or was the necessary consequence of the right
SUPREME COURT'S DECISION, ETC. 71
to acquire. They do decide that the power in Congress is unquestion
able, and in this we entirely concur, and nothing will be found in this
opinion to the contrary. The power stands firmly on the latter alterna
tive put by the Court — that is, as ' the inevitable consequence of the
right to acquire territory. ,'
" And what still more clearly demonstrates that the Court did not
mean to decide the question, but leave it open for future consideration,
is the fact that the case was decided in the Circuit Court by Mr. Justice
Johnson, and his decision was affirmed by the Supreme Court. His
opinion at the circuit is given in full in a note to the case, and in that
opinion he states, in explicit terms, that the clause of the Constitution
applies only to the territory then within the limits of the United States,
and not to Florida, which had been acquired by cession from Spain.
This part of his opinion will be found in the note in page 517 of the
report. But he does not dissent from the opinion of the Supreme
Court ; thereby showing that, in his judgment, as well as that of the
Court, the case before them did not call for a decision on that particular
point; and the Court abstained from deciding it. And in a part of its
opinion subsequent to the passage we have quoted, where the Court
speak of the legislative power of Congress in Florida, they still speak
with the same reserve."
This is the argument of the present Court, to show the inap
plicability of the Florida decision to the case before itself; and
granting, for the sake of the argument, that Chief Justice Mar
shall leaves it doubtful from which source the power- is derived,
yet he says it is unquestionably possessed : and that is sufficient
— for in either case the power is unlimited ; and where there
are two concurrent rights, the superior always takes effect, and
the inferior is only cumulative. The sovereign derivation of
the right is the highest, and is sufficiently affirmed by Chief
Justice Marshall in the declaration of the inevitability of the
right to govern what you have a right to hold. And this view
is confirmed in another part of the same Florida decision, where
the Chief Justice, speaking of the territorial courts, and of the
right of Congress to establish such courts, with judges holding
for a term of years instead of good behavior, he says :—
" They are legislative courts, created in virtue of the general right
of sovereignty which exists in the Government, or in virtue of that
clause which enables Congress to make all needful rules and regulations
respecting the territory belonging to the United States."
72 EXAMINATION OF THE
This is enough — sufficiently explicit — to affirm the sovereign
right of government in the owner of these Territories. But a
member of the present Court, (Mr. Justice M'Lean,) differed
from Chief Justice Taney in his estimate of this decision. He
deemed it sufficiently clear in itself, and authorized by the
point raised for the Court's decision. He says, (in his dissent
ing opinion :) —
u I can see no want of precision in the language of the Chief Jus
tice; his meaning cannot be mistaken. He states, first, the third
section as giving power to Congress to govern the Territories, and two
other grounds from" which the power may also be implied. The objec
tion seems to be, that the Chief Justice did not say which of the
grounds stated he considered the source of the power. He did not
specifically state this, but he did say, ' whichever may be the source
whence the power is derived, the possession of it is unquestioned.' No
opinion of the Court could have been expressed with a stronger empha
sis; "the power in Congress is unquestioned." But those who have
undertaken to criticise the opinion, consider it without authority, be
cause the Chief Justice did not designate specially the power. This
is a singular objection. If the power be unquestioned, it can be a
matter of no importance on which ground it is exercised. The opinion
clearly was not obiter dicta. The turning point in the case was,
whether Congress had power to authorize the territorial Legislature
of Florida to pass the law under which the territorial court was
established, whose decree was brought before this Court for revision.
The power of Congress, therefore, was the point in issue."
I think Mr. Justice M'Lean entirely right in his understand
ing of the opinion delivered by Chief Justice Marshall ; and I
think that opinion clear in referring a right of governing a Ter
ritory to the right of acquiring it. And in this it corresponds
with the action of Congress, and the declaration of eminent
members at the time — namely, by Mr. Randolph, that the right
of government was the right of sovereignty ; and by Dr. Eustis,
that the government of the Territory was imperiously com
manded by its acquisition.
Strong as was the course of Congress in the act taking pos
session of Louisiana, and continuing therein the Spanish gov
ernment under American officers, it was repeated, in all its
extent, sixteen years afterwards, on the acquisition of Florida.
The Louisiana act of October, 1803, was copied for Florida in
SUPREME COURT'S DECISION, ETC. 73
March, 1819. All the powers exercised there by the King's
officers were to be exercised, until the end of the session of the
next Congress, by such persons as the President should direct.*
And thus, two different administrations, and .two different Con
gresses, at the distance of sixteen years apart, governed two
acquisitions of new territory exactly alike, and as incompatibly
with our Constitution as a Spanish regal despotism is incompat
ible with our free Republican government. That act was ap
proved by Mr. Monroe, and no dissenting voice was ever heard
from his cabinet — able, vigilant, and strongly Southern as that
cabinet was.
Following, step by step, the course pursued in the Louisiana
case, a territorial government was afterwards provided there,
but after an interval of four years — during all which time the
Spanish government was continued over the people — General
Jackson, the governor, took care that power should be no
" barren sceptre " in his hands. This territorial government,
established in March, 1823, took the ordinance of ?87 for its
basis, but with the modifications which assimilated it to the act
for the government of the Orleans Territory. It was nearly a
transcript from that act, so far as government was concerned ;
and we have seen what that was — a total abnegation of the
Constitution of the United States in all its provisions, letter
and spirit. So that, in these two first instances of the acquisi
tion of foreign territory — Florida and Louisiana — two different
administrations, and three different Congresses — those of 1803
-'4, of 1818-'19, and of 1822-'3— at intervals of sixteen years
and twenty years apart, acted in the same way, governing the
Territories independently of the Constitution, and incompatibly
* The following was the act :
SEC. 2. And be it further enacted, That, until the end of the first session of the
next Congress, unless provision for the temporary government of said territories be
sooner made by Congress, all the military, civil, and judicial powers, exercised by the
officers of the existing government of the same territories, shall be vested in such
person and persons, and shall be exercised in such manner, as the President of the
United States shall direct, for the maintaining the inhabitants of said territories in the
free enjoyment of their liberty, property and religion ; and the laws of the United
States, relative to the collection of revenue, and the importation of persons of color,
shall be extended to the said territories.
m^° Up to this time no one thought of extending the Constitution to a Territory :
laws only were so extended, and only the few deemed applicable.
Y4: EXAMINATION OF THE
with it. Both these acts for the government of Florida passed
under the administration of Mr. Monroe — Mr. John Quincy
Adams, Secretary of State ; Mr. Wm. II. Crawford, Secretary
of the Treasury ; Mr. John C. Calhoun, Secretary at War ; Mr.
Smith Thompson, Secretary of the Navy ; Mr. Return Jona
than Meigs, Post-Master General ; Mr. Wirt, Attorney Gene
ral : a President and cabinet inferior to none that ever appeared
in this Union, and who saw no want of power in Congress to
pass, or in themselves to approve, these forms of territorial
government in which the whole spirit of our Constitution is
ignored, and its written provisions either disregarded or flatly
contradicted. And what were the two Houses of Congress at
that time ? Perhaps if the period of our legislative history
was to be picked out when the national legislature appeared to
the greatest advantage, it would be in that middle period of
Mr. Monroe's administration, when the surviving great men of
the first generation were still upon the stage, and the gigantic
progeny of the second were mounting upon it. I came into
Congress at that period, and such was the awe and reverence
with which the Senate inspired me, that I sat there six years
without opening my mouth on any subject outside of my own
State. 0 ! si sic semper ! And yet this assemblage of the
illustrious old, and not less illustrious young, are now, after al
most forty years, to be considered as ignorant of the Constitution
which they had helped to make, and were sworn to observe,
and doing things which require to be repudiated.
The Supreme Court, in its elaborate opinion, has put itself
to great labor to prove the territorial legislation of Congress to
be incompatible with the Constitution : — most superfluous
labor, as I conceive, there being no pretension on the part of
Congress to be acting under the Constitution, and continued de
clarations, (as well as acts,) to the. contrary — members continu
ally supporting measures in Territories wrhich they repulsed in
States — as, for local objects of internal improvement, for banks,
corporations. It can be said, and without allowing a single ex
ception, that there has not been a member of either House, from
the formation of the Government to the present day, who has
not voted for these objects in Territories who would not vote for
them in States, upon the avowed ground that the Constitution
did not extend to Territories. I have seen all parties so vote—
SUPKEME COUET'S DECISION, ETC. 75
the very strictest of the State Rights party. The proceedings
of Congress are full of such votes, and of the remark, " It is a
Territory : the Constitution does not extend to it" And this
finishes the second stage of this Historical and Legal Examina
tion, comprising the governmental legislation of Congress upon
these two new Territories — Louisiana and Florida — and showing
that they were governed without limitations, and in the pleni
tude of sovereign right, qualified only by the conditions on
which they were ceded.
THIRD STAGE OF THE EXAMINATION —EMBRAC
ING THE LEGISLATION ON THE MISSOURI COM
PROMISE ACT.
III. It was at the session of 1818-'19 that the Missouri Ter
ritory, having been trained through the three grades of territo
rial government prescribed by the ordinance of '87, and being
then in the third grade, and with a competent population,
applied through her Territorial Legislature for an Act of Con
gress to enable her to hold a convention for the formation of a
State Constitution, preparatory to the formal application for
a'dmission into the Union. The bill had been perfected, its
details adjusted, and was upon its last reading, when a motion
was made by Mr. James Tallmadge, of New York, to impose a
restriction on the State in relation to slavery, to restrain her
from the future admission of slavery within her borders. The
motion gave rise to a vehement debate, which soon divided the
House geographically, set the members on fire, and soon attain
ed a height which threatened the Union with dissolution. As a
sample, take a specimen of what passed between some members
from the Free and the Slave States — thus :—
Mr. Scott, delegate from Missouri : " He would trouble the House
no longer ; he thanked them for the attention and indulgence already
extended to him. But he desired to apprise gentlemen, before he sat
down, that they were sowing the seeds of discord in this Union, by
attempting to institute States with unequal privileges and unequal rights
— that they were signing, sealing, and delivering their own death war
rant — that the weapon they were so unjustly wielding against the people
76 EXAMINATION OF THE
of Missouri was a two-edged sword. From the cumulative nature of
power, the day might come when the General Government might, in turn,
undertake to dictate to them on questions of internal policy. Missouri,
now young and feeble, whose fate and murmurs would excite but little
alarm or sensibility, might become an easy victim to motives of policy,
party zeal, or mistaken ideas of power ; but other times and other men
would succeed : a future Congress might come, who, under the sancti
fied forms of Constitutional power, would dictate to them odious condi
tions — nay, inflict on their internal independence a wound more deep
and dreadful than even this on Missouri. The House had seen the
force of the precedent, in the mistaken application of the conditions
imposed on the people of Louisiana anterior to their admission into the
Union. And, whatever might be the ultimate determination of the
House, he considered this question big with the fate of Caesar and 'of
Koine."
To this Mr. Tallmadge replied :
" The honorable gentleman from Missouri, who has just resumed his
seat, has told us of the Ides of March, and cautioned us to beware of
the fate of Caesar and of Rome. Another gentleman, Mr. Cobb, from
Georgia,* in addition to other expressions of great warmth, has said,
that if we persist, the Union will be dissolved ; and, with a look fixed
on me, has told us that we have kindled a fire which all the waters of.
the ocean cannot put out, and seas of blood can alone extinguish. Sir,
language of this sort has no effect on me. My purpose is fixed ; it is
interwoven with my existence ; its durability is limited with my life ;
it is a great and glorious cause, setting boundaries to a slavery the most
cruel and debasing the world ever witnessed. It is the freedom of man
— it is the cause of unredeemed and unregenerated human beings. Sir,
if a dissolution of the Union must take place, let it be so ! If civil
war, which gentlemen so much threaten, must come, I can only say, let
it come ! My hold on life is probably as frail as that of any man who
now hears me ; but, while that hold lasts, it shall be devoted to the ser
vice of my country — to the freedom of man. If blood is necessary to
extinguish any fire which I have assisted to kindle, I can assure gentle
men, while I regret the necessity, I shall not forbear to contribute my
mite."
And this was the character of the debate on the second day
after it opened ! — so rapid was the conflagration of the passions,
* Thomas W. Cobb. His speech on this occasion is merely noted, not reported
among the debates, as, in fact, but a small part of the speeches were at that day.
ETC. 77
and the desperation of the resolves. To what height did they
not rise in the two years that this exasperating controversy con
tinued in Congress ! inflamed all the while by the resolves of
popular meetings and legislative assemblies — by newspaper
publications — by popular harangues — and even by pulpit
addresses.
The numerical force of the House was against Missouri, and
the restriction was there incorporated into the bill by a vote of
87 to 76 ; but in the Senate the majority was the other way,
and the restriction was struck out by a vote of 22 to 16. The
House then adhered to its amendment : the Senate adhered to
its rejection : and so the bill was lost between the two Houses.
This was at the end of a short session — the sessions terminating
in odd years — when the end of the third day of March is the
termination of the session, and of the Congress. It would be
nine months before Congress met again, and during that long inter
val the fire kindled in Congress must continue spreading — and
did. It was in that period that the anxieties of patriots rose to
the highest pitch — that the surviving founders of the Union
began to feel as if they were hearing the death-knell of the Con
stitution. Many of them, withdrawn from public cares, tran
quil at home, and happy in the belief of the long duration of
their cherished work, were alarmed from their security, and
gave vent to their misgivings in letters which found their way
to the public eye. Among others, Mr. Madison, who, in the
ensuing November, shortly before the inflamed Congress was to
meet again — still more inflamed by contact of the members
with their constituents — wrote that letter to Mr. Robert Walsh,
of Philadelphia, which has been quoted in high places as his
opinion against the Missouri Compromise : that letter, so quoted,
in which the word " compromise " does not occur ! — which was
written four months before the Compromise was made ! and
every word of which shows that it was only applicable to the
then impending and absorbing question of the restriction on the
State. To complicate the question, and render it still more
difficult of settlement, was the attitude beginning to be assumed
by Missouri. She had asked Congress for an enabling act to
facilitate the holding of a State Convention. It was deferential
to Congress to do so, but not imperative ; and being denied,
except on a degrading condition, the young Territory saw her
78 EXAMINATION OF THE
right under the treaty with France, the principles of the Gov
ernment, and the ordinance of '87, to assemble in Convention,
form their Constitution, see that it was republican, lay it before
Congress, and stand the question of its rejection, because it did
not exclude slavery. There was a short way for her to sur
mount the difficulty — to put in a prohibition, to satisfy Con
gress, and strike it out when the Constitution came back, to
satisfy herself. There could be no legal objection to that
course ; but there was an objection to it of morality and of
policy ; it would be neither moral nor politic to do so ; and the
determination was, if again denied the enabling act, to erect
herself into a State, ask admission into the Union, and throw
upon Congress the entire responsibility of refusing to admit her.
Such an attitude was impressing a new emphasis on the ques
tion, and portending a crisis of inevitable approach and fearful
termination. Thinking men looked with apprehension to the
next meeting of Congress ; and, after it met — things continuing
to grow worse until the Compromise came, with balm on its
wings, to heal the wounds which the restriction had inflicted.
But before I speak of this Compromise, and the patriotic men
who made it, there is another measure to be spoken of, showing
still more strongly the dangers of the country, enhancing still
higher its merits, and illustrating still more fully the constitu
tional distinction between States and Territories. This was the
Arkansas question — the question of restricting the Territory of
Arkansas in the article of slavery — a question still more startling
than that of Missouri, and equally portentous at the time, but
overshadowed in the greater magnitude and longer duration
than the other ; equally deserving of public attention, but, in the
impossibility of public access to the past Congress debates, now
unknown to the public. The forthcoming abridgment of these
debates will make them accessible.
The case was this : On fixing the boundaries for the new
State of Missouri, it became necessary to curtail her limits,
before co-extensive with the whole province of Louisiana out
side of the State of Louisiana. On the southern side of the new
State the Territory of Arkansas was to be cut off, and formed into
a new Territory. It extended from the southern limit of Mis
souri — 36° 30' — to the Louisiana State line, and to the Texas, or
Mexican boundary ; in fine, to all the territory south of Mis-
SUPREME COURT'S DECISION, ETC. 79
souri. To this southern Territory, thus appurtenant to the
gouth — in the latitude of its staple productions — and with a
slaveholding population upon it — was proposed to attach the
slavery prohibition. Cotemporaneously with the report of the
bill to enable Missouri to take steps for the formation of a State
government, was another reported for the erection of the Terri
tory south of it into a new territorial government — Arkansas by
name, as covering that river. And as soon as the attempt had
succeeded in the House to impose the slavery restriction on the
State of Missouri, the same attempt was made to impose it on
the Territory of Arkansas. Mr. John "W. Taylor, of New York,
made the motion.* This motion gave rise to an extended de
bate, in which the ablest speakers in the House, from both sides,
took part ; and which is more applicable, and authoritative, than
any other debate that ever took place in Congress, to the ques
tion now under examination, to wit: the power of Congress
over its territory, (and new territory at that ;) and its right to
legislate upon slavery in it, and to admit or reject it as deemed
proper. The Arkansas question is the master one for this ex
amination ; for it presents the territorial question alone, unin
fluenced by any consideration connected with a State ; and be
cause it applied to a territory so far south ; and which was, so
far as the admission or rejection of slavery was concerned, the
entire province of Louisiana ; for, if the institution was excluded
from that southern part, it would recoil from the rest of itself,
It was, therefore, a question to excite the slave States still more
than the Missouri question had done, and to stimulate them to
the use of the strongest objections against it. The strongest
would have been unconstitutionality ! yet no one took that ob
jection. Expedient grounds, and the treaty of cession, were the
highest grounds they took; and there were able men in the
Government then — both in the Senate and the House, and in
the Cabinet. These able men, and zealous for the South, and
stimulated to the highest exertions, took no ground under the
Constitution! On the contrary, they admitted the constitu
tional right of Congress to do as it deemed right on the question,
* It was in these words : " That the further introduction of slavery, or involuntary
servitude, be prohibited, except for the punishment of crimes, whereof the party shall
have been duly convicted. And that all children born within the State after the ad
mission thereof into the Union, shall be free at the age of twenty-five years.
80 EXAMINATION OF THE
and limited their opposition to expedient objections. Among
these was Mr. Louis M'Lane, of Delaware, an able and zealous
defender of the rights and interests of the slave States, though
opposed to the institution of slavery, and who was one of the
first to reply to Mr. Taylor's proposition to restrict the Territory
— repulsing it on expedient grounds, and making the first sug
gestion of a policy which afterwards ripened into the Missouri
Compromise. He said :
" He would yield to no gentleman in the House in his love of free
dom, or in its abhorrence of slavery in its mildest form. His earliest
education, and the habits of his life, were opposed to the holding of
slaves and the encouragement of slavery. At the same time, he would
yield to no gentleman in the House in his regard for the Constitution of
his country, and for the peace, safety, and preservation of the Union of
these States. To these great objects all minor considerations should
give way. Beyond this, the oath he had taken, as a member of the
House, forbade him to go. The fixing of a line on the west of the Mis
sissippi, north of which slavery should not be tolerated, had always been
with him a favorite policy, and he hoped the day was not far distant
when, upon principles of fair compromise, it might constitutionally be
effected. He was apprehensive, however, that the present premature
attempt, and the feelings it had elicited, would interpose new and almost
insuperable obstacles to the attainment of the end."
In the concluding part of his speech, Mr. M'Lane returned
to the idea of dividing Louisiana between the Free and the
Slave States — enforced it by referring to the happy effects in
promoting the formation of the Union, of a similar division un
der the ordinance of '87 — and showed that Southern and West
ern members had already avowed the same policy. Thus : —
"On the whole, it seems to me that we have no right to impose this
restriction ; and that, if we had, it would be useless, impracticable, and
unavailing. At the same time, I do not mean to abandon the policy to
which I alluded in the commencement of my remarks. I think it but
fair that both sections of the Union should be accommodated on this
subject, with regard to which so much feeling has been manifested. The
same great motives of policy which reconciled and harmonized the jar
ring and discordant elements of our system, originally, and which enabled
the framers of our Constitution to compromise the different interests
which then prevailed on this and other subjects, if properly cherished
SUPREME COURT'S DECISION, ETC. 81
by us, will enable us to achieve similar objects. If we meet upon prin
ciples of reciprocity, we cannot fail to do justice to all. It has already
been avowed by gentlemen on this floor, from the South and the West,
that they will agree upon a line which shall divide the slaveholding from
the non-slaveholding States. It is this proposition I am anxious to
effect ; but I wish to effect it by some compact which shall be binding
upon all parties and all subsequent legislatures — which cannot be
changed, and will not fluctuate with the diversity of feeling and of senti
ment to which this empire in its march must be destined. There is a
vast and immense tract of country west of the Mississippi yet to be set
tled, and intimately connected with the northern section of the Union,
upon which this compromise can be effected. Believing as I do that the
Constitution and the compact* before mentioned will not permit us to
extend our policy over the whole, I will be very willing to take as great
a part as I can obtain ; and in so doing, though I may lament that the
humane policy of those who are so anxious to effect this end cannot be
more widely diffused, I shall enjoy at least the consciousness of having
conformed to the Constitution of the country, and executed the national
compacts in good faith."
Mr. M'Lane was from a slave-holding State, and acting with
the South — I should rather say with the Union — on this occasion.
He was of course in communion with the Southern- and Western
members, but only spoke of avowals on the floor when he alluded
to their readiness for a fair compromise on the principles of the
ordinance of 787. Several of those members spoke — Mr. Clay
and George Robertson, of Kentucky; Messrs. Hugh Nelson,
James Johnson, John Tyler, and Philip P. Barbour, of Virginia
— but their speeches are not reported, only noted. The author
ity of Mr. M'Lane, however, is sufficient for the fact which
stamps the Compromise, (for into that measure the suggestions
of Mr. M'Lane eventually ripened,) as a Southern measure, con
ceived and shadowed forth, and afterwards embodied as such ;
and also shows it to have been a deliberate and considered
measure — meditated for upwards of a year before it was adopted.
The vote was taken on Mr. Taylor's proposition, the first
clause of it to restrict the Territory, and it was handsomely re
jected — 68 to 80 — in Committee of the "Whole, where there are
* The stipulations in the treaty of cession on which the province was ceded, and
which constituted a compact with France.
6
82 EXAMINATION OF THE
no yeas and nays ; many of the northern members voting with
the slave-State members, who were in an absolute minority of
the House. But when the same vote came to be repeated in
the House, where there are yeas and nays, it was as near even
as could be to miss it — TO to 71 — the proposition being only
rejected by one vote ; a difference in the voting which showed
many free-State members to be, in their private feelings and
judgment, what they could not openly show themselves to be.
But Mr. Taylor's proposition consisted of two parts : the first
prohibiting the future introduction of slaves into the Territory ;
the second acting upon those already there, and emancipating
the slave children born there, at the age of twenty-five years ;
and this part of the proposition was carried — a close vote, 75 to
73 — and Mr. Lewis Williams, of North Carolina, being one of
the seventy-five. His name being low down in the alphabetical
order, and the vote so close as to raise the apprehension that the
clause would be carried, he voted with the affirmatives, that,
being one of the majority, he would have the right to move a
reconsideration, which he immediately did, and lost it by two
votes, some members having come in. It was a mistake in him ;
for his vote, taken from the affirmatives, and given to the nega
tives, would have made the two stand 74, 74 ; and the support
ers of the proposition holding the affirmative of the question,
and not getting a majority, would be defeated, and that without
the casting vote of the Speaker, which is only effective when he
votes with the affirmatives ; and in this case, he would go with
the negatives. The case now looked desperate. To emancipate
the slave children born in Arkansas, was equivalent to saying
none such should be born there, or that they should be carried
away before arriving at the liberating age. To do this in
Arkansas was equivalent to doing it in all Louisiana, as Arkan
sas covered the southern half of the province ; and excluded
from there it would stand no chance to go north. It was more
extensive in its effects than the Missouri State restriction, and
more odious to the slaveholding States, because further south.
The question would immediately come up again upon the en
grossment of the bill, and ordering it to be read a third time.
The exigency called for the cool judgment, the urbane deport
ment, and captivating address, of Mr. Lowndes ; and he an
swered the call. Consulting a moment with some friends, Mr.
ETC. 83
Scott, of Missouri, Mr. "Weldon ."N". Edwards, of North Carolina,
and Messrs. Colston and Pindall, of Virginia, he took his course,
and moved that the bill be laid upon the table — saying, at the
same time, that to prevent surprise, and ensure a full vote, he
would himself move a call of the House the next day, at twelve
o'clock, and then immediately take the final vote. All the
Northern members whose feelings were with the South, imme
diately called out " that is fair ! " and the bill was laid upon the
table by a good vote.
This was a respite for the night, and an occasion for anxious
consultation. The course agreed upon was a decided one — that
a motion to recommit the bill to a select committee, with instruc
tions to strike out the emancipation clause, should be made ;
and that Mr. George Robertson, of Kentucky, the reporter of
the bill, should make the motion. He made it. The vote was
even — 88 to 88 — and the motion lost, except for the casting vote
of the Speaker, (Mr. Clay,) which was promptly given, and the
bill re-committed, with the instruction. The select committee
was Mr. George Robertson, of Kentucky, Mr. Lowndes, of South
Carolina, Messrs. Nathaniel Silsbee and Elijah H. Mills, of Mas
sachusetts, and Mr. "William H. Burwell, of Virginia. The in
struction was quickly complied with, and the bill returned to
the House, when the question was to concur with the committee
in the striking out which they reported. The vote was — 89 for
the concurrence ; 87 against it. So that the question was car
ried by a majority of two, which was only a difference of one
man. But the struggle was not yet over. Mr. Taylor continued
his anti-slavery motions, which were finally modified into the
following :
" That neither slavery nor involuntary servitude shall hereafter be
introduced into any part of the territories of the United States, lying
north of 36 degrees and 30 minutes of north latitude."
This was not the subsequent famous Missouri Compromise ;
for that compromise left out the State of Missouri, and this in
cluded it. It was, in fact, the continuation of the line which
divides Virginia from North Carolina, and Kentucky from Ten
nessee ; and which would cross the Mississippi and continue to
the Rocky Mountains, without any deflexion. Mr. Philip P.
Barbour, of Virginia, replied to this proposition. He said :
84 EXAMINATION OF THE
" He was opposed to Mr. Taylor's amendment, and to all others of
similar character. He spoke with much earnestness against the proposi
tion, and at some length, as partial and inexpedient — arguing that if the
principle was wrong in itself, it ought not to be withheld from one part
of the Territory and applied to another : that it was legislating partially
by applying a rule to the one portion, and a different rule to another
portion of citizens having equal rights under similar circumstances. If
the rule was wrong at the 25th degree of latitude, it was equally so at
the 40th. He argued that it was as impolitic as it was unjust, to draw
this line. It was proper to let a future Congress act on it, as it should
then seem expedient ; and this opinion, as well as others which he ad
vanced, he maintained at some length."
Such was the reply of Mr. Barbour, one of the ablest lawyers,
one of the closest adherents of State rights, and of constitutional
strict construction, which the Virginia school of lY98-'99 pro
duced. He saw much wrong in Mr. Taylor's proposition — all
the injury that is now seen in preventing slaveholders in re
straining southern emigration — but no violation of the Consti
tution , and he was afterwards a justice of the Supreme Court
of the United States, and died as such. His objections rose no
higher than to the class of inexpedient, and several members
concurred with him. The discussion became heated ; some
Northern members showed themselves indisposed to it ; and Mr.
Taylor, seeing more opposition than he had expected, withdrew
his proposition, saying it was not probable any line would be
agreed upon by the House, or any compromise of opinion
effected. The bill was then read a third time — sent to the
Senate for concurrence — concurred in there ; and Arkansas be
came a separate Territory, free from slavery restriction.
I have deemed it right to give this detailed account of the
attempt to exclude slavery from Arkansas ; and to show by
what narrow chances that attempt was defeated. It shows
more clearly than any thing else — more clearly than the Mis
souri controversy itself — the danger which beset the Union at
that time, arid greatly enhances the merits of that compromise,
which, a year afterwards, averted that danger. It also shows
the first germination of the idea of that compromise — that it
came from Mr. Louis M'Lane, with the sanction of Southern
members, and took the compromise line in the ordinance of
'87 for its guide and model.
SUPREME COURT'S DECISION, ETC. 85
I return to the Missouri bill, and to the movements of which
it continued to be the subject in the two Houses. The session
of 1S1S-'19, had terminated, leaving the bill lost in the disa
greement of the two Houses. It was the short session, termi
nating the 3d of March ; the long recess of nine months to
intervene before Congress met again ; and, in the mean time,
the question becoming more aggravated and inflamed from the
daily inflammatory appeals to the public mind : popular meet
ings, harangues, newspaper publications, denunciations, violent
resolves. By the time Congress met in December, the whole
country was aroused, the geographical line fully developed, and
the two halves of the Union arrayed against each other. Things
were far worse than at the end of the last session. Public
opinion at home, and town-meeting resolves, were bearing
down the moderate members from the free States who opposed
the restriction, or even favored compromise. At the same time
the Territory of Missouri had taken its stand — determined not
to be restricted ; and it was well known that the slave States
would stand by her in a body. So dark an hour had never
been seen for the Union as at the commencement of this session
— 1819-'20 ; and that darkness continued to deepen during three
agonizing months. It was during this time that the whole
country became convulsed, and patriots disheartened, and when
many of them, in letters now extant, gave vent to their mis
givings and despair. It was during this time that Mr. Madison
wrote that letter, in reply to Mr. Walsh, wholly directed against
restricting the State of Missouri, which has been so strongly
applied to the compromise — not then broached. And it was
during this time that our Congress, profoundly penetrated with
a sense of the public danger, exhibited all the varieties of fervid
and patriotic eloquence — close reasoning, calm argument, im
passioned declamation, gorgeous elocution : and all with the
impressive earnestness of a real contest involving the fate of the
country. And it wras now that Pinkney, of Maryland, delivered
that great speech which consummated his oratorical fame, and
which was worthy to call forth all his powers ; for he was
speaking of that Union which patriot heroes had formed, and
which it now required patriot heroes to save.
In this state of the public mind Congress met, December,
1819. Bills to enable the Territory of Missouri to hold a con-
86 EXAMINATION OF THE
vention to form a State government, were early introduced into
eacli House ; and the friends of compromise in the free States,
who were still able to follow their inclinations, were vigilant
and ready, and preoccupied the ground with their conciliatory
propositions. Mr. Storrs, of New York, always respectable and
sometimes grand in debate, and well disposed to do justice to
the South, offered a proposition upon the basis of dividing the
whole territory about equally between the two classes of States ;
but he proposed the parallel of 38 degrees — which would not
suit the friends of Missouri, and came to nothing. Mr. Thomas,
of the Senate, from Illinois, also friendly to the slave States,
proposed a compromise upon the same principle, but on a dif
ferent line — 36° 30', exclusive of Missouri : being the same that
was eventually adopted. Each House had a bill of its own, and
both were at work on the same subject, at the same time : for,
in fact, nothing else could be attended to in Congress, nor
talked of in the country. The friends of compromise had taken
the advance in each House ; but their pacific propositions were
quickly superseded, and lost sight of, by the introduction of
others of a different character. Mr. Burrill, of Rhode Island,
in the Senate, and Mr. John "W. Taylor, of New York, in the
House, respectively proposed the imposition of the restriction
upon the State of Missouri ; and, from that time, a long interval
before conciliatory measures could be admitted to any attention.
It was the 17th of February before a vote was obtained in the
Senate on Mr. Thomas's amendment — when it was carried by a
vote of 34 to 10. But this vote included several Senators who
would not vote for the bill when so amended ; so that, on
ordering the bill to a third reading, the vote was 21 to 20.
Thus, in the Senate the bill stood as the friends of Missouri
wished it ; to wit : the restriction rejected, and the compromise
accepted. But this bill would stand no chance in the House in
a trial of strength there : address and management alone could
save her : and there was room for something to be done in that
way. Massachusetts had divided herself to form the State of
Maine : it was determined in the Senate to unite the two, (Mis
souri and Maine,) and keep them together : that was one hold
upon the House. Then there was another. The Missouri re
striction bill, passed by the House, would come to the Senate
for concurrence ; it was determined there to amend it by
ETC. 87
striking out the restriction, and inserting the Thomas Compro
mise ; and that was a second hold upon that body ; and both
were firmly seized. Missouri and Maine, for their admission,
were put into one bill, and would go down to the House, united
— to sink or swim together. The Missouri House bill would
carry back the compromise, in place of the restriction which it
brought up ; and thus, address and management, laying hold
of coincident circumstances, were working well for the settle
ment of the question, and for the harmony and preservation of
the Union. It was the second of March when the vote was
obtained on the bill with Mr. Thomas's amendment, and when
it was carried by a vote of almost two to one — 27 to 15.* All
these affirmative votes affirmed the constitutionality, and the
expediency of the compromise ; and it was an imposing list of
names. The wrhole negative vote affirmed the same constitu
tionality ; for it was given on the principle of total exclusion of
slavery from the whole province of Louisiana.
The question was now in the House, and the restriction on
the State having been greatly debated, and the two Houses
become mutually impeded by the state of their respective bills
— for, while each could check the other, neither could carry its
own — some of the most strenuous of the restrictionists had
begun to relax, and to hold the language of conciliation, and
to propose the application of the restriction to Territories alone.
In this sense Mr. John W. Taylor spoke, and acted, and took
the initiative for his party. (It was on the 14th of December,
1819.) He said :
" He rose to invite the attention of the House to a subject of very
great moment. The question of slavery in the territories of the United
States west of the Mississippi, it was well known, had at the last session
of Congress excited feelings, both in the House and out of it, the recur-
* The detail of the affirmative vote was : Messrs. James Barbour, of Vir. ; James
Brown, of Lou. ; Eaton, of Tenn. ; Ninian Edwards, of 111. ; John Elliott, of Geo. ,
Gaillard, of S. C. ; Horsay, of Del. ; William Hunter, of R. I. ; R. M. Johnson, of
Ken. ; Henry Johnson, of Lou. * William Rufus King, of Ala. ; James Lanman, of
Conn. ; Walter Leake, of Mppi. ; Edward Lloyd, of Md. ; William Logan, of Ken. ;
Nathaniel Macon, of N. C. ; John F. Parrott, of N. II. ; William Pinkney, of Md. ;
James Pleasants, of Vir. ; William Smith, of S. C. ; Montford Stokes, of N. C. ; Jesse
B. Thomas, of 111. ; Nicholas Van Dyke, of Del. ; John W. Walker, of Ala. ; Freeman
Walker, of Geo. ; Thomas H. Williams, of Mppi. ; and John Williams, of Tenn.
88 EXAMINATION OF THE
rence of which he sincerely deprecated. All who love our country, and
consider the Union of these States as the ark of its safety, must view
with deep regret sectional interests agitating our national councils.
He could not himself, nor would he ask others, to make a sacrifice of
principle to expediency. He could never sanction the existence of
slavery where it could be excluded, consistently with the Constitution
and public faith. But it ought not to be forgotten that the American
family is composed of many members : if their interests are various,
they must mutually be respected ; if their prejudices are strong, they
must be treated with forbearance. He did not know whether concilia
tion was practicable, but he considered the attainment worthy of an
effort. He was desirous that the question should be settled in that
spirit of amity and brotherly love, which carried us through the perils
of the Revolution, and produced the adoption of our Federal Constitution.
If the resolution he was about to introduce should be sanctioned by the
House, it was his purpose to move a postponement of the Missouri bill
to a future day, that this interesting subject, in relation to the whole
Western Territory, may be submitted to the consideration of a committee."
Mr. Taylor then introduced the following resolution : —
"Resolved, That a Committee be appointed to inquire into the ex
pediency of prohibiting by law the introduction of slaves into the Ter
ritories of the United States west of the Mississippi."
This resolution, limited to Territories, and presented as a feeler
to compromise, was received in the spirit in which it was made — as
a proposition for a compromise ; and, therefore, to be kindly en
tertained. But it was not adopted in haste, but, on the motion
of Mr. Strother, of Virginia, laid upon the table until the next
day, "to give time for reflection." The next day it was taken up,
and, as the result of the night's reflection was adopted the next
day, without debate, and, without division ! a strong symptom
that no one in the House, at that time, saw any thing unconsti
tutional in legislating upon slavery in Territories. A committee
of seven was appointed : — Messrs. JohnAV. Taylor ; Livermore, of
N". II.; P. P. Barbour, of Virginia; Lowndes; Fuller, of Mass. ;
Hardin, of Kentucky ; Cuthbert, of Georgia. The committee
could not agree upon a plan, and would not report a mere
majority proposition as a basis of compromise ; and, upon their
own request, were discharged from the consideration of the
SUPREME COURT'S DECISION, ETC. 89
subject. Mr. Taylor then introduced a peremptory resolution,
that a committee be appointed, with instructions to bring in a
bill prohibiting the further admission of slaves into the Terri
tories of the United States west of the river Mississippi. In com
mendation of this resolution, Mr. Taylor made the following re
markable declaration : — " He believed there was no member — he
knew of none — who doubted the Constitutional power of Congress
to impose such a restriction on the Territories ; and the only
question which the bill could present was one of expediency."
This was a remarkable declaration, addressing itself to every
member of the House, and calling for immediate rectification,
if there was any mistake in it. There was no remark made upon
it, one way or the other. The declaration of Mr. Taylor must
then be taken to be true — that there was not a member of the
House who did not hold that Congress had the right to abolish
slavery in the Territories. Other parts of the resolution were
remarked upon; and, without being acted upon, it went to its
place on the calendar, not to be reached until after the Missouri
bill should be disposed of, and in the adjustment of which the
Southern and "Western members preferred that the territorial
question should be settled.
This was the 27th of December. It was a month afterwards
— just a month (26th January) — before the subject was mention
ed again, when it came up on a motion from Mr. Storrs, of New
York, to amend the bill, (that of the House,) by inserting a com
promise clause — nearly the same which afterwards came down
from the Senate. It was on stating his understanding of the
effect of that motion, that General Smith of Maryland declared
the power of Congress to be unlimited and supreme in the
Territories — a declaration which no one impugned. These were
his words — all that he said on the point : —
" He rose principally with a view to state his understanding of the
proposed amendment ; viz. : — That it retained the boundaries of
Missouri, as delineated in the bill — that it prohibited the admission of
slaves west of the west line of Missouri, and north of the north line —
that it did not interfere with the Territory of Arkansas, or the uninhab
ited land west thereof. With this understanding, he thought the prop
osition not exceptionable, but doubted the propriety of its forming a
part of this bill. He considered the power of Congress over the Terri
tory as supreme, unlimited, before the admission — that Congress could
90 EXAMINATION OF THE
bestow on its Territories any restrictions that it thought proper, and the
people, when they settled therein, did so under a knowledge of the re
striction."
Now, General Smith was not a lawyer, but lie was a man of
vigorous common sense, of close business habits, of a thinking
turn of mind, and large political and legislative experience —
having been in Congress from the beginning of Washington's
administration. The opinion of such a man, upon the legislative
powers of Congress, is always something, and in this case his opin
ion was weighty — for it was decisive, and no one impugned it.
There was, in fact, no question raised on the point of power ;
no one disputed it, and no one argued it ; but, from time to
time, different members expressed their opinions, chiefly in illus
tration of the difference between States and Territories, and the
power of Congress over them, or in elucidation of clauses in the
Constitution. Thus Mr. M'Lane, of Delaware : —
" No little reliance has been placed by the honorable mover upon
the clause in the Constitution, vesting in Congress a power to dispose
of, and make all needful rules and regulations respecting the territory,
or other property of the United States. I do not propose to enter
minutely into the inquiry, whether the power of Congress to establish a
Territorial Government is derived from this clause. I incline to the
opinion that it is not. The power here conferred is a power to dispose
of, and make needful rules respecting the property of the United States.
It was designed, I think, to authorize the sale of the land for purposes
of revenue, and all regulations which might be deemed necessary for its
proper disposition ; or to convert it to other public objects disconnected
with sale or revenue — to retain this power even after the territory
had assumed the State government, and perhaps to divert from the State
government the right of taxing it, as it would do the property of indi
viduals. It is silent as to the people; and their slaves are the property
of their owners, and not of the government. The right of governing a
Territory is clearly incident to the right of acquiring it. It would be
absurd to say that the government might purchase a Territory, with a
population upon it, and not have the power to give them laws : but from
whatever source the power is derived, I admit it to be plenary, so long
as it continues in a state of territorial dependence, but no longer. I am
willing at any time to execute this power. The condition of the people
of a Territory is, to be governed by others — of a State, to govern them
selves."
SUPREME COURT'S DECISION, ETC. 91
So spoke Mr. M'Lane, a lawyer, and one of the ablest men in
Congress. In that part of his understanding, of the " needful
rules and regulation " clause, he is coincident with the late Opin
ion of the Supreme Court, but diametrically opposed to them
in the derivation of the power of Congress over Territories —
they construing it, generally, out of the Constitution — he deriv
ing it direct from sovereignty and ownership. And in his
whole opinion of this power as being plenary and absolute,
whether derived from sovereignty, or from the quoted clause in
the Constitution, he so entirely coincides with the former opin
ions of the Supreme Court as twice delivered by Chief Justice
Marshall, (heretofore quoted,) that it would be held to be a rep
etition of those decisions w^ere it not for the fact that it was
before them.
Nearly to the same effect was the opinion of General Alex
ander Smyth, of Virginia, and one of the best legal and most in
vestigating minds in Virginia, and who, in the progress of the
Missouri Bill, expressed himself thus : —
" It has been contended that this clause (the needful rules and regu
lation clause) gives a power of legislation over persons and private prop
erty within the Territories of the United States. The clause obviously
relates to the territory belonging to the United States as property only-
The power given is to dispose of, and make all needful regulations
respecting the territorial property, or other property of the United
States, and Congress Lave power to pass all laws necessary and proper
to the exercise of that power. This clause speaks of the territory as
property, as a subject of sale. It speaks not of the jurisdiction. That
the Convention considered sufficiently provided for by the Ordinance of
Congress. This clause contains no grant of power to legislate over per
sons and private property within a Territory. A power to dispose of,
and make all needful regulations respecting the property of the United
States, is very different from a power to legislate over the persons and
property of the citizens. AVhen it was the intention of the Convention
that the Constitution should convey to Congress power to legislate over
persons and private property, they expressed themselves in terms not
doubtful. Thus, they said, Congress shall have power to exercise exclu
sive legislation in all cases whatsoever within the ten miles square. But
no such power to legislate over the Territories is granted."
Mr. Smyth is very distinct in his exposition of the meaning
of this clause — the needful rules and regulation clause. He
yz EXAMINATION OF THE
considers that clause as only applying to the management of
property, and that limited to the property of the United States.
He considers it no grant of the jurisdiction or right of govern
ment: that, to wit, jurisdiction and government, being provided
for by the Ordinance. This is historically, as well as logically
true. The Ordinance and the Constitution were each parts, and
essential parts of the same system — made at the same time, by
the same men, (it maybe said,) and for the same purpose, that of
founding and settling the Union. Each was necessary — the
Ordinance for the government of the Territories ; the Constitu
tion for the government of the States. It was necessary to settle
the political condition of the Territories, and the Ordinance was
their Constitution. It framed their Governments, and the Con
stitution had nothing to do with. them. This is what Mr.
O
Smyth means, and what history, and the obvious meaning of
language, justifies him in saying, to wit, that the needful rule
and regulation clause did not confer jurisdiction, and give the
right of government to the Territories, because that had been pro
vided for ~by the Ordinance. The Ordinance was made for the
Territory of the United States, then in possession or expectation.
It . was not made under the Articles of Confederation, for
there was no authority in those articles to make it ; it was
not made under the Constitution, for it was made before it. By
what authority, then, was it made ? By right of ownership?
both of soil and jurisdiction, and by virtue of the compacts with
the ceding States ; and the new Territory is governed in the same
way — not by virtue of any thing in the Constitution, but by
virtue of proprietary rights of soil and jurisdiction — as an inci-
.dent to its acquisition — and by virtue of the compacts with
France in the treaty of the cession. And this is what Mr.
Smyth says in this most pregnant passage of his. A right to
use the soil as property, and to govern the people politically,
until prepared to govern themselves, necessarily resulted from
these premises ; and the right of government was full and com
plete, limited only by the compacts and the treaty. The ordi
nance of '87 compromised the slavery question in Territories by
dividing them about equally between the free and the slave
States ; the Congress of 1820 had the same right to compromise,
and were under the same inducement to do so ; and did it.
I say the same inducement, and mean what I say ; for the com-
SUPREME COURT'S DECISION, ETC. 93
promise of '87 made the Union, and the compromise of 1820
saved it.
I hasten to the actual compromise.
The debate in the House was upon the restriction of the State
of Missouri, moved by Mr. John "W. Taylor, and most bitterly
contested. It was not until the last day of February that the
vote was obtained on the motion of Mr. Taylor, and that it was
carried by 94 to 86 ; and the bill was passed the next day by a
vote nearly the same. In the mean time the bill for the admis
sion of Maine had returned from the Senate, with the Missouri
bill attached to it, and embracing the compromise proposition
moved by Mr. Thomas. The House promptly disagreed to these
amendments, and a committee of conference was appointed,
which came in with a compromise proposition — that the Senate
should recede from their amendment adding Missouri to Maine,
and the House give up the restriction, and take the compromise
in its place. Pending this conference, the Missouri House bill
returned from the Senate with the restrictions struck out, and the
compromise inserted — the same which Mr. Storrs offered in the
House, and Mr. Thomas in the Senate. The compromise was
then in both bills — the one from the Senate, and the one from
the House ; and the struggle became close and intense, — on one
side, to strike out the compromise — on the other to retain it ; for
that question included in its result the fate of the bill, and with
it the fate of the Union. The esteemed Mr. Lowndes, always
listened to with deference by the House, was the first to speak,
and earnestly for the compromise ; but the reported debates
only give briefly the points of his speech, thus : —
" Mr. Lowndes spoke briefly in support of the compromise recom
mended by the Committee of Conference, and urged with great earnest
ness the propriety of a decision which would restore tranquillity to the
country ; which was demanded by every consideration of discretion, of
moderation, of wisdom, and of virtue."
Mr. Kinsey, of New Jersey, a Free State member who had
voted steadily through two sessions for the restriction, was too
seriously impressed with the dangers of the country to continue
that vote any longer. He determined to change his vote, and
gave his reasons publicly for it. He said : —
94: EXAMINATION OF THE
c; A period has now arrived when it becomes necessary to close this
protracted debate, and, as I shall vote for the compromise offered by
the Senate, it is proper to state my reasons for so doing. We have ar
rived at an awful period in the history of our empire, when it behooves
every member of this House now to pause, and to consider that on the
next step we take depends the fate of unborn millions. I firmly believe
that on the question now before us rest the highest interests of the
whole human family. Now, sir, is to be tested whether this grand
and hitherto successful experiment of free government is to continue,
or, after more than forty years' enjoyment of the choicest blessings of
Heaven under its administration, we are to break asunder on a dispute
about the division of territory. Gentlemen of the majority have treated
the idea of a disunion with ridicule ; but to my mind, it presents itself
in all the horrid, gloomy features of reality : and when we unfold the
volume of past ages, and, in the history of man, trace the rise and fall
of governments, we find trifles, light as air compared to this, dissolving
the most powerful confederacies, and overturning extensive empires.
If we inquire what causes operated to destroy the Amphyctionic League,
or dissolve the German Confederacy, in almost every case we find ques
tions of territorial jurisdiction, and what, for ages, has deluged Europe
in blood ? disputes concerning territorial rights. On questions of this
high and mighty import, it behooves us to make our approaches with
the most awful consideration. What at this period is a matter of con
jecture, may in a short time become real history. It is not a question
like that heretofore, in which a diversity of opinion commingled in the
same society where a division of sentiment, on subjects political, spread
itself over the whole Union ; but on this question the division is, not
of individuals, but of States — and of States almost equally divided.
And what is the case now before us ? Opinions from which every gen
tleman, a few months past, would have recoiled with horror, as treason
to imagine, are now unhesitatingly threatened. That which had no
ideal existence, engendering as this discussion progresses, assumes a
positive shape ; and mixing with this unpropitious debate, presents itself
in all the dreadful appearances of reality. May God, in mercy, inspire us
with a conciliatory spirit, to disperse its fury and dispel its terrible con
sequences."
Other members from Free States, like Mr. Kinsey, changed
their votes, and gave their reasons for doing so — among others,
Mr. Stephens, of Connecticut. Thus : —
" If gentlemen are in favor of any compromise, it is a fit time to
discuss that subject, and see if any can be hit on that will give general
SUPREME COURT'S DECISION, ETC. 95
satisfaction. "We have now arrived at a point at which every gentleman
agrees something must be done. A precipice lies before us, at which
perdition is inevitable. Gentlemen on both sides of this question, and
in both Houses, in doors and out of doors, have evinced a determination
that augurs ill of the high destinies of this country ! and who shall not
tremble for the consequences ? I do not pretend to say that, in just
five calendar months your Union will be at an end ; but I do say, and
for the verity of the remark cite the lamentable history of our own
time, that the result of a failure to compromise at this time, in the way
now proposed, or in some other way satisfactory to both, would be to
create ruthless hatred, irradicable jealousy, and a total forge tfulness of
the ardor of patriotism, to which, as it has heretofore existed, we owe,
under Providence, more solid, rational glory and social happiness, than
ever before was possessed by any people, nation, kindred, or tongue,
under Heaven."
Amidst such appeals the eventful question was called, and
resulted 134 for the compromise to 42 against it — a majority
of three to one, and eight over. Such a vote was a real com
promise ! a surrender on the part of the restrictionists, of strong
feeling to a sense of duty to the country ! a settlement of a dis
tracting territorial question upon the basis of mutual concession,
and according to the principles of the ordinance of 1787. Such
a measure may appear on the statute book as a mere act of
Congress ; and lawyers may plead its repealability : but to
those who were cotemporary with the event, and saw the sacri
fice of feeling, or prejudice, which wTas made, and the loss of
popularity incurred, and how great was the danger of the
country from which it saved us, it becomes a national compact,
founded on considerations higher than money : and which good
faith and the harmony and stability of the Union deserved to
be cherished next after the Constitution.
Of the 42 who voted against the compromise, there was
not one who stated a constitutional objection : all that stated
reasons for their votes, gave those of expediency — among others
that it was an unequal division, which was true, but the fault of
the South ; for, while contending for their share in Louisiana,
they were giving away nearly all below 36° 30' to the King of
Spain.* There being no tie, the speaker (Mr. Clay) could not
* Mr. Justice Catron notices this inequality of the division, and considers it a
great aggravation of an aggressive measure :
" The Missouri Compromise line of 1820 was very aggressive : it declared that
96 EXAMINATION OF THE
vote ; but liis exertions were as zealous and active in support
of it, as indispensable to the pacification of the country.
From Congress the bill went to the President for his appro
val ; and there it underwent a scrutiny which brought out the
sense both of the President and his cabinet upon the precise
point which has received the condemnation of the Supreme
Court, and exactly contrary to the Court's decision. There was
a word in the restrictive clause which, taken by itself and with
out reference to its context, might be construed as extending
the slavery prohibition beyond the territorial condition of the
country to which it attached — might be understood to extend
it to the State form. It was the word " forever." Mr. Mon
roe took the opinion of his cabinet upon the import of this
word, dividing his inquiry into two questions — whether the
word would apply the restriction to Territories after they be
came States ? and whether Congress had a right to impose the
restriction upon a Territory ? Upon these two questions, the
opinion of the cabinet was unanimous — negatively, on the first ;
affirmatively, on the other. These questions were put formally,
and with a view to official and responsible answers. A sepa
rate, written interrogatory was addressed to each member of his
cabinet, and a written answer required. These answers, so re
quired, were received by the President, and by him delivered
to his Secretary of State (Mr. John Quincy Adams) to be filed
in the Department of State : and it is in full proof that they
were so filed — though no longer to be found there. The opinions
of the cabinet were unanimous, upon both points submitted to
them ; and that cabinet was a majority Southern, and the Presi
dent himself a Southern man. Mr. Monroe was the President ;
Mr. Crawford, Secretary of the Treasury ; Mr. Calhoun, Secre
tary at War ; Mr. Wirt, Attorney General. And thus, all the
branches of the legislative power — the President, the Senate,
slavery was abolished forever throughout a country reaching from the Mississippi
Eiver to the Pacific Ocean, stretching over thirty-two degrees of longitude, and twelve
and a half degrees of latitude on its eastern side, sweeping over four-fifths, to say no
more, of the original province of Louisiana." — Mr. Justice Oatron.
The answer to this is, that the South made the treaty which gave away so much
of Louisiana, but as it was all got back, and more too, before the abrogation of the
Missouri Compromise Act, the inequality of the division could no longer be made a
subject of regret.
SUPREME COURT'S DECISION, ETC. 97
and the House of Representatives — were of accord on the
question of this compromise, both as it regards constitution
ality and expediency : and it may be well said, the three
branches were never abler than at that time. Mr. Monroe him
self an experienced man, of sound judgment, and one of the
fathers of the Constitution : his cabinet, admitted to be one of
the strongest that we have ever had : the Senate, a solid body
of able men — Finkney, of Maryland, the orator and the jurist,
the prominent and brilliant figure : in the House, a long list of
eminent men, of whom Clay and Lowndes shone most conspic
uous. And in that House, and in the thick array of its emi
nent men — themselves eminent — two, who, if Providence had
spared their lives, might have prevented the condemnation of
the compromise in the Supreme Court : I speak of Henry
Baldwin, of Pennsylvania, and Philip P. Barbour, of Virginia
— both members of the House at the time of the compromise
— both supporting its constitutionality, (one by his speech, the
other by his vote :) both afterwards Justices of the Supreme
Court ; and who could hardly be expected to change their old
opinions thirty-seven years after they had acted so responsibly
upon them. Upon the supposition of their continued life, and
seats on the bench, and unchanged opinions, the decision of
the Court might have deen different.
It is true, that in the year 1848, when the new dogma was
invented of " No power in Congress to act upon slavery in a
Territory," Mr. Calhoun forgot that he had supported the Mis
souri Compromise, and argued that he could not have done so ;
but it is equally true that ten years before, to wit, in 1838, he
had not forgotten it ; but remembered very well that he then
supported the Compromise, and blamed Mr. Randolph for op
posing it. It was at that period that Mr. Calhoun had occasion,
in the Senate, to speak of that measure, and his course in rela
tion to it, and did so in these words : —
" He was not a member of Congress when that compromise was
made, but it is due to candor to state, that his impressions were in its
favor ; but it is equally due to it to say that, with his present expe
rience and knowledge of the spirit which then, for the first time, began
to disclose itself, (abolitionism,) he had entirely changed his opinion.
He now believed that it was a dangerous measure, and that it has done
7
98 EXAMINATION OF THE
much to rouse into action the present spirit. Had it then been met
with uncompromising opposition, such as a then distinguished and saga
cious member from Virginia, (Mr. Randolph,) now no more, opposed to
it, abolition might have been crushed forever in its birth. He then
thought of Mr. Randolph as, he doubts not, many think of him now, who
have not fully looked into the subject, that he was too unyielding — too
uncompromising — too impracticable ; but he had been taught his error,
and took pleasure in acknowledging it." *
Thus, in 1838 — eighteen years after the Compromise — Mr.
Calhoun well remembered his support of it, and his blame of
Mr. Randolph for not supporting it. He also remembered his
change of opinion, and the reason for the change, namely, that
it encouraged the abolitionists; and up to that time, (1838,) he
had no constitutional objection to the Compromise — nothing
but its tendency to encourage abolitionism. But it needed not
this avowal of Mr. Calhoun to invalidate his subsequent for
getting so material a point. It was fully proved — 1. By a letter
from Mr. Monroe to General Jackson : 2. By the diary of Mr.
Adams : 3. By the Index-book in the Department of State, re
ferring to the filing of the Cabinet answers : 4. By traditionary
history, which told of the Cabinet consultation, and that its
opinion was unanimous. f It is a public loss and a mystery, that
* The occasion which drew these remarks from Mr. Calhoun was the introduction of
his six famous resolutions of the session l&37-'38, laying down a code of slavery legis
lation for the District of Columbia and the Territories, all bottomed upon the constitu
tional right of Congress to legislate upon slavery in these places, but deprecating the
exercise of the right by abolishing slavery either in the District or in a Territory where
it existed by law, not as a breach of the Constitution but as a " dangerous attack "
upon slavery in the States, and leading to the dissolution of the Union. The doo-ma
of " No power in Congress to legislate upon slavery in Territories," had not then been
invented, and owes its discovery to a period ten years later.
f Extract from Mr. Dix's speech, above referred to :
"The Senator from Florida (Mr. Westcott) read to the Senate yesterday the fac
simile of an original paper found among the manuscripts of Mr. Monroe, and in his
handwriting, by which it appears, that when the Missouri Compromise Act, as it is
called, was passed, he took the opinions of the members of his Cabinet, in writing, in
respect to the constitutionality of that act. The Senator from South Carolina (Mr.
Calhoun) was one of the Cabinet ; and as I took and endeavored to sustain, on a late
occasion, the position that Congress possesses the right to prohibit slavery in the Ter
ritories of the United States, I am naturally desirous of fortifving it with all the
authority I can command ; and I shall be particularly gratified, if it shall be found
that the distinguished Senator alluded to, though now denying the right, was then in
favor of it. I will read to the Senate all of this paper which relates to the subject :
SUPREME COURT'S DECISION, ETC. 99
these Cabinet answers, so carefully obtained by Mr. Monroe,
and intended to be preserved as an archive of the government
in the Department of State, should have disappeared from that
office. Many searches were made for them without effect — the
last under General Taylor's administration, when Mr. John M.
Clayton was Secretary of State ; but nothing could be found
but the Index entry of their filing, as stated by Mr. Adams in
(From Mr. Monroe's manuscripts.) — A paper endorsed " Interrogatories, Missouri —
March 4, 1820. — To the Heads of Departments and Attorney General"
Questions, (on opposite page :)
" Has Congress a right, under the powers vested in it by the Constitution, to make
a regulation prohibiting slavery in a Territory ?
" Is the eighth section of the act which passed both Houses on the 3d instant, for
the admission of Missouri into the Union, consistent with the Constitution? "
With the above is the original draft of the following letter, in President Monroe's
handwriting, on half a sheet of paper, but not endorsed or addressed to an^ one*
There are interlineations, but the text, as left by the writer, is as follows : —
" DEAR SIR : The question which lately agitated Congress and the public has been
settled, as you have seen, by the passage of an act for the admission of Missouri as a
State, unrestrained, and Arkansas likewise, when it reaches maturity, and the estab
lishment of the 36° 30' north latitude as a line, north of which slavery is prohibited,
and permitted to the south. I took the opinion, in writing, of the Administration as
to the constitutionality of restraining Territories, [and the vote of every member was
unanimous and* ] which was explicit in favor of it, and as it was that the 8th section of
the act was applicable to Territories only, and not to States when they should be ad
mitted into the Union. On this latter point I had at first some doubt ; but the
opinion of others, whose opinions were entitled to weight with me, supported by the
sense in which it was viewed by all who voted on the subject in Congress, as will ap
pear by the journals, satisfied me respecting it."
This letter has been supposed to have been written to General Jackson, though
there is no evidence of the fact.
Mr. Calhoun: "If the Senator will give way, it will be perhaps better that I make a
t«tatement at once respecting this subject, as far as my recollection will serve me.
During the whole period of Mr. Monroe's administration, I remember no occasion on
which the members of his Administration gave written opinions. I have an impres
sion — though not a very distinct one — that on one occasion they were required to give
written opinions ; but for some reason, not now recollected, the request was not carried
into effect. He was decidedly opposed to the imposition of any restriction on the
admission of Missouri into the Union, and I am strongly of the impression that he was
opposed in feeling to what was called the Missouri Compromise."
Mr. Johnson, of Maryland : " Is this the original letter?"
Mr. Dix : "I understand it to be a fac-simle of the original. As a long period
(nearly thirty years) has elapsed since the act to admit Missouri into the Union was
passed, it is quite natural that the Senator from South Carolina should have forgotten
the circumstances attending the discussion of it in the Cabinet. Having heard, some
days ago, of the existence of such a paper, and being very desirous of ascertaining
100 EXAMINATION OF THE
his diary. This shows that Mr. Calhoun saw nothing unconsti
tutional in the Missouri Compromise in 1838 : another sena
torial act of his shows that he saw nothing unconstitutional in
it in 1 847, when he voted, in an amendment to the Oregon Ter
ritorial Bill, to extend the Compromise line to the Pacific
Ocean — a thing not to be done, if the line was unconstitutional,
and null and void.
the facts, I wrote to Mr. Charles F. Adams, of Boston, a son of the late ex-President,
inquiring of him if his father's diary contained any thing on the subject. In reply to
my inquiry, I received an extract from the diary of the father, certified hy the son,
which I will now read, and which confirms fully the statement contained in Mr. Mon
roe's letter :
Extracts from the Diary of J. Q. Adams.
" MARCH 3, 1820. — When I came this day to my office, I found there a note, re
questing me to call at one o'clock at the President's house. It was then one> and I
immediately went over. He expected that the two bills, for the admission of Maine
and to enable Missouri to make a Constitution, would have been brought to him for
his signature ; and he had summoned all the members of the Administration to ask
their opinions in writing, to be deposited in the Department of State, upon two ques
tions : 1. Whether Congress had a constitutional right to prohibit slavery in a Terri
tory? and 2, Whether the 8th section of the Missouri bill (which interdicts slavery
forever in the Territory north of 36 J latitude) was applicable only to the territorial
state, or would extend to it after it should become a State ? As to the first question,
it was unanimously agreed that Congress have the power to prohibit slavery in the
Territories."
This is the first extract ; and before I proceed to the others, I will state that, in
respect to the second question, there was a diversity of opinion — Mr. Adams contend
ing that a State would be bound by such a prohibition after its admission into the
Union, and the other members of the Cabinet, that it was only operative during the
territorial term. In order to secure unanimity in the answers, the second question
was modified, as will appear by the remaining extracts, which I proceed to give :
" MARCH 5. — The President sent me yesterday the two questions in writing, upon
which he desired to have answers in writing, to be deposited in the Department of
State. He wrote me that it would be in time, if he should have the answers to-mor
row. The first question is in general terms, as it was stated at the meeting on Friday.
The second was modified to an inquiry, whether the 8th section of the Missouri bill
is consistent with the Constitution. To this I can without hesitation answer, by a
simple affirmative, and so after some reflection I concluded to answer both. * *
" MARCH 6. * * * I took to the President's my answer to his two constitu
tional questions, and he desired me to have them deposited in the Department, together
with those of the other members of the Administration. They differed only as they
assigned their reason for thinking the 8th section of the Missouri bill consistent with
the Constitution, because they considered it as only applying to the territorial term ;
and I barely gave my opinion, without assigning for it any explanatory reason. The
President signed the Missouri bill this morning."
These extracts are certified to be " a true copy from the original by me,
" CHARLES FRANCIS ADAMS."
SUPREME COURT'S DECISION, ETC. 101
It was at the conclusion of this eventful session (1819-'20),
and in allusion to the momentous struggle through which the
House had passed, and its happy termination, that Mr. Clay, in
taking leave of the House, and in returning his acknowledg
ments for the vote of thanks received, after expressing his personal
regrets at parting from so many friends, rose to a higher senti
ment, and said : —
" But interesting as have been the relations in which I have stood,
for many years, to this House, I have yet higher motives for continuing
to behold it with the deepest solicitude. I shall regard it as the great
depository of the most important powers of our excellent Constitution
— as the watchful and faithful sentinel of the freedom of the people — as
the fairest and truest image of their deliberate will and wishes ; and, as
that "branch of the Government where — if our beloved country shall,
unhappily, be destined to add another to the long list of melancholy
examples of the loss of public liberty — we shall witness its last strug
gles and its expiring throes."
It was in the year 1820 that this great compromise was
effected. Twenty-five years afterwards it received a re-enact
ment, and under circumstances the most impressive. It was in
the year 1845, and on the occasion of the legislative admission
of the State of Texas into the Union. In the previous year,
annexation by treaty had been refused ; legislation was held by
many to be the indispensable basis to any incorporation ; and,
accordingly, that mode of annexation prevailed. Early in the
session, 1844- '45, the la'st of Tyler's administration, a joint reso
lution was brought into the House of Representatives for the
admission of that Republic as a State into the Union. It was
in these words : —
" That Congress doth consent that the territory properly included
within, and rightfully belonging to the Republic of Texas, may be
erected into a new State, to be called the State of Texas, with a repub
lican form of government, to be adopted by the people of said Republic,
by deputies in convention assembled, with the consent of the existing
Government, in order that the same may be admitted as one of the
States of this Union ; and that the foregoing consent of Congress is given
upon the following conditions, and with the following guarantees :
" Article I." (Relates to settlement of boundaries.)
" Article II." (Relates to public property and vacant lands.)
102 EXAMINATION OF THE
" Article III. New States, of convenient size, not exceeding four
in number, in addition to said State of Texas, and having sufficient
population, may hereafter, by the consent of said State, be formed out
of the territory thereof, which shall be entitled to admission under the
provisions of the Federal Constitution. And such States as may be
formed out of that portion of said Territory lying south of thirty-six
degrees thirty minutes, north latitude, commonly called the Missouri
Compromise line, shall be admitted into the Union, with or without
slavery, as the people of each State asking may desire ; and, in such
State or States as shall be formed out of said Territory, north of said
Missouri Compromise line, slavery, or involuntary servitude (except for
crime), shall be prohibited."
Here is a complete re-enactment of the Missouri Compro
mise Act, and with such particularity that the line is both
astronomically marked by its latitude — 36 degrees 30 minutes —
and also nominated, and twice nominated, by its popular de
scriptive appellation of "the Missouri Compromise Line" It
is a copy of the Compromise clause in the act of March 6th,
1820, copied to a word, except one, and that one word omitted
is as significant of identification as any one of those employed.
It is the word " forever," prefixed to prohibit. The Missouri
Compromise of 1820 has it; the Texas Compromise of 1845
omits it, and not by accident, but for a reason, as well under
stood by all who were cotemporary with the event. It was that
word which occasioned the cabinet consultation under Mr.
Monroe — that word which raised the question whether the re
striction would follow the Territory, and stick to it after it
became a State ? and on which all the cabinet of Mr. Monroe
were required to give written opinions, to be filed in the Depart
ment of State, for perpetual reference. Mr. Calhoun was a
member of Mr. Monroe's Cabinet at the time of the Missouri
Compromise, and of Mr. Tyler's at the time of the Texas Com
promise. As Secretary of State, he drew up the joint resolution
for the admission of Texas, and, recollecting the trouble which
the word "forever" had occasioned in one cabinet of which he
was a member, he took care to prevent a like occurrence in
another, of which he wras head. This is the reason of the omis
sion of that word ; and its omission goes still further to identify
the latter Compromise as the copy — copy in spirit as well as in
words — of the former ; and Mr. Calhoun its author, a fact other-
SUPREME COURTIS DECISION, ETO. 103
wise well known at the time. Among persons from the South it
has become the vogue to decry the Missouri Compromise, and
to prejudice it with the imputation of being a Northern meas
ure, while its history shows the contrary ; and being an event
long since passed, and its history inaccessible to the community,
many are persuaded to believe in the fable. But not so with
the Texas Compromise ; it is recent, the actors are still on the
stage, and the witnesses alive ; and there is no room for mis
take, or deception, or misrepresentation, or misconception,
about it. The event is of our own day, and the performers
(most of them) still in being. It was done under a Southern
administration — an administration not merely of the South, but
ultra South ; of the extreme South Carolina States' Rights
school. Mr. John Tyler was President ; Mr. Calhoun Secretary
of State, with the ascendant in the cabinet which it is the pre
rogative of genius to take over inferior minds ; and that cabinet
was a unit for the measure. One hundred and twenty mem
bers of the House — a full majority, and nearly every Southern
member — voted for it.* The negatives (97 in number) were
* Their names are : Messrs. Archibald H. Arlington, John B. Ashc, Archibald
Atkinson, Thomas H. Bailey, James E. Belser, Benjamin A. Bidlack, Edward J. Black,
James Black, James A. Black, Julius W. Rockwell, Gustavus M. Bower, James B.
Bawlin, Linn Boyd, Richard Broadhead, Aaron V. Brown, Milton Brown, William J.
Brown, Edmund Burke, Armistead Burt, George Alfred Caldwell, John Campbell,
Stephen Carey, Reuben Chapman, Augustus A. Chapman, Absalom H. Chappell,
Duncan L. Clerich, James G. Clinton, Howell Cobb, Walter Coles, Edward Cross,
Alvan Cullom, John R. I. Daniel, John W. Davis, John B. Dawson, Ezra Dean, James
Dellet, Stephen A. Douglass, George C. Dromgoole, Alexander Duncan, Chesselden
Ellis, Isaac G. Farlee, Orlando B. Ficklin, Henry D. Foster, Richard French, George
Fuller, William H. Hammett, Hugh A. Haralson, Sam. Hayes, Thomas J. Henley,
Isaac E. Holmes, Joseph P. Hoge, George W. Hopkins, George S. Houston, Edmund
W. Hubard, William S. Hubbell, James M. Hughes. Charles J. Ingersoll, John Jame
son, Cave Johnson, Andrew Johnson, George W. Jones, Andrew Kennedy, Littleton
Kirkpatrick, Alcee Labranche, Moses G. Leonard, William Lucas, John H. Lumpkin,
Lucius Lyon, William C. McCauslen, William B. Maclay, John A. McClernand, Felix
Grundy McConnel, Joseph J. McDowell, James J. McKay, James Matthews, Joseph
Morris, Isaac E. Morse, Henry C. Murphy, Willoughby Newton, Moses Norris, jr.,
Robert Dale Owen, William Parmenter, William W. Payne, John Pettit, Joseph H.
Peyton, Emery D. Potter, Zadock Pratt, David S. Reid, James H. Relfe, R. Barn-
well Rhett, John Ritter, Robert W. Roberts, Jeremiah Russell, Romulus M. Saunders,
Win. T. Senter, Thomas H. Seymour, Samuel Simons, Richard F. Simpson, Johu
Slidell, John T. Smith, Thomas Smith, Robert Smith, Lewis Steemnrd, Alexander H.
Stephens, John Stewart, James W. Stone, Selah B. Strong, Wm. H. Styles, George
104: EXAMINATION OF THE
chiefly from the free States. In the Senate, it was carried by
Southern votes, and so close, that no two could have been
spared. This re-enactment of the Missouri Compromise stands
forth, then, as an unmistakable Southern measure — Southern in
its conception, Southern in its support, Southern in its consum
mation ; and the speakers for it either all Southern men, or that
part from the free States who most cherished the Southern
interest. Of these, Mr. Buchanan, one of the most eminent
among the Northern friends of the South, and one of the most
zealous for the re-enactment of the Missouri Compromise, thus
spoke :—
" He was pleased with it (the renewed Compromise) again, because
it settled the question of slavery. These resolutions went to re-establish
the Missouri Compromise, by fixing a line within which slavery was to
be in future confined. That controversy had nearly shaken the Union
to its centre in an earlier and better period of our history ; but this
Compromise, should it be now re-established, would prevent the recur
rence of similar dangers hereafter. Should this question be now left
open for one or two years, the country could be involved in nothing but
one perpetual struggle. We should witness a feverish excitement in
the public mind ; parties would divide on the dangerous and excitino*
question of abolition ; and the irritation might reach such an extreme
as to endanger the existence of the Union itself; but close it now, and
it will be closed forever.
" Mr. B. said he anticipated no time when the country would ever
desire to stretch its limits beyond the Rio del Norte ; and such being
the case, ought any friend of the Union to desire to sec this question
left open any longer ? Was it desirable again to have the Missouri
question brought home to the people, to goad them to fury ? That ques-
Sykes, William Taylor, Jacob Thompson, John W. Tibbatts, Tilghman H. Tucker,
John B. Weller, John Wentworth, Joseph A. Woodward, Joseph A. Wright, Wm. L.
Yancy, Jacob S. Yost.
The Senators voting for it were :
Messrs. Allen, of Ohio ; Ashley, of Arkansas ; Atchison, of Missouri ; Atherton,
of New Hampshire ; Bagley, of Alabama ; Benton, of Missouri ; Breese, of Illinois ;
Buchanan, of Pennsylvania ; Colquet, of Georgia ; Dickinson, of New York ; Dix,
of New York ; Fairfield, of Maine ; Hannegan, of Indiana ; Hay wood, of North Car
olina ; Henderson, of Mississippi ; Heger, of South Carolina ; Johnson, of Georgia ;
Lewis, of North Carolina ; McDuffie, of South Carolina ; Merrick, of Maryland ;
Miles, of Connecticut ; Semple, of Illinois ; Sevier, of Arkansas ; Sturgeon, of
Pennsylvania ; Tappan, of Ohio ; Walker, of Mississippi ; Woodbury, of New
Hampshire.
SUPREME COURT'S DECISION, ETC. 105
tion between the two great interests of our country had been well dis
cussed and well decided ; and from that moment Mr. B. had set down
his foot on the solid ground then established, and there he would let the
question stand forever. Who could complain of the terms of that
Compromise ? It was then settled that north of 36 degrees 30 minutes,
slavery should be forever prohibited. The same line was fixed upon in
the resolutions recently received from the House of Representatives, now
before us. The bill from the House for the establishment of a territo
rial government in Oregon, excluded slavery altogether from that vast
country. How vain were the fears entertained in some quarters of the
country that the slaveholding States would ever be able to control the
Union ! While, on the other hand, the fears entertained in the South
and West, as to the ultimate success of the Abolitionists, were not less
unfounded and vain.. South of the Compromise line of 36 degrees 30
minutes, the States within the limits of Texas applying to come into
the Union, were left to decide for themselves whether they would permit
slavery within their limits or not. And under this free permission, he
believed with Mr. Clay (in his letter on the subject of annexation), that
if Texas should be divided into five States, two only of them would be
slaveholding, and three free States."
Thus spoke Mr. Buchanan, and, in so speaking, was the
accepted mouthpiece, and fair reflector of the sentiments of the
large party with whom he acted. And here it is proper to
explain the reason why it became necessary to re-enact the Mis
souri Compromise line; and the explanation is found in the
history of the times. Thus : six months after the establishment
of the Missouri Compromise line, the treaty with Spain was
ratified, by which a new boundary with that power was estab
lished, by which Texas was brought up to the river Arkansas
in about north latitude 37 ; and followed that river, north-west,
to its source, above latitude 39 — according to the treaty, as far
as north latitude 42. Texas admitted slavery, and her laws
and constitution spread the institution all over her territory ;
and as the parallel of 36° 30'— about 450 miles of it— fell within
her territory, the Missouri Compromise line was, to that extent,
effaced. It was to restore it in that effaced part, being in fact
much the greatest part of it, that the line was re-established in
the compact for admitting Texas into the Union. This is a clear
case of Congress legislating upon slavery in a Territory ; and the
distinction taken that it was done by compact, and not law, is
106 EXAMINATION OF THE
unfounded and absurd". The compact itself is only a law of
Congress, agreed to by Texas ; and the law passed before Texas
acted : and the Constitution is paramount over treaties and
compacts as over laws. Neither statute, treaty, nor compact
can alter the Constitution, nor do any thing contrary to it : and
the only difference between the Texas and Missouri Compro
mises is, that while both rest upon acts of Congress, one has
been made the foundation of a proceeding with a foreign power.
Quere : Can the Supreme Court invalidate this re-enacted line ?
This brings down the sanctions of the Missouri Compromise
to the year 1845 — being twenty-five years after its first enact
ment — ample time it might be supposed for its constitutionality
to be questioned, if there was ground for it ; and ample time for
it to have been found out, if such was the fact, that its enact
ment worked an inequality of the States, and involved degrada
tion and injury to a part of them. Xo such things were then
discovered, and we will now go forward four years further, and
under another administration, and that a Southern one, and
show that same measure still receiving the sanction of those
who have since commenced its repudiation. This further sanc
tion was also on a responsible legislative measure — the estab
lishment of the Oregon territorial government, August, 1848.
The bill had come up from the House without any thing in it
on the subject of slavery : Mr. Hale moved to extend the anti-
slavery ordinance of '87 to the Territory, and it was done.
Mr. Douglass moved to extend the Missouri Compromise line to
the Pacific Ocean, and that motion received the following vote :
Yeas — Messrs. Atchison, of Mri. ; Badger, of ]Sr. C. ; Bell, of
Tenn. ; Benton, of Mri. ; Berrian, of Geo. ; Borland, of Ark. ;
Bright, of Ind. ; Butler, of S. C. ; Calhoun, of S. C. ; Cameron,
of Pcnn. ; Davis, of Mppi. ; Dickinson, of !N". Y. ; Downs, of
Lou. ; Fitzgerald, of Mich. ; Foote, of Mppi. ; Hannegan, of
Ind. ; Houston, of Tex. ; Hunter, of Vir. ; Johnson, of Md. ;
Henry Johnson, of Lou. ; Johnson, of Geo. ; King, of Ala. ;
Lewis, of Ala. ; Mangum, of N". C. ; Mason, of Vir. ; Metcalf, of
Ken. ; Pearce, of Md. ; Sebastian, of Ark. ; Spruance, of Del. ;
Sturgeon, of Penn. ; Turney, of Tenn. ; Underwood, of Ken.
The amendment itself, thus offered by Mr. Douglass, was not
merely an extension of the line in a particular case, but a re-
SUPREME COUET'S DECISION, ETC. 107
vival, and a general and perpetual enforcement of the Missouri
Compromise line on all Territories. It was in these words :—
" That the line of 06 degrees, 30 minutes of north latitude, known
as the Missouri Compromise line, as denned by the eighth section of an
Act entitled, ' An Act to authorize the people of the Missouri
Territory to form a constitution and State government, and for the
admission of such State into the Union on an equal footing with the
original States, and to prohibit slavery in certain Territories, ap
proved March Qth, 1820,' be, and the same is hereby declared to
extend to the Pacific Ocean; and the eighth section, together with the
compromise therein effected, is hereby revived, and declared to be in
full force and binding for the future organization of the Territories of
the United States, in the same sense, and witk the same understanding,
with which it was originally adopted."
It was on Thursday, August the 10th, 1848 (for in cases of
sudden political conversions it is profitable to look to dates,
even to a day) — it was on this first decade of the second month,
of the second half, of the year 1848, that this vote passed in the
American Senate ; and it must be received as the highest sanc
tion of the compromise on the part of those voting for it, which
could be devised. It is not merely an extension of the compro
mise line : it is also its perpetuation, and application of it to all
the United States Territories — to enter into their organization,
and to be in full force, and binding upon them. Such a vote
went beyond the admission of constitutionality : it went to the
merits and expediency of the measure — approved it under every
aspect. It even went beyond the words of the Missouri act —
entered its spirit — seized its sense and intent, as understood at
the time of its adoption ; — and solemnly sanctioned and pre
served the whole. Certainly, with respect to those so voting,
and they were men to vote responsibly, nothing more could be
asked. Constitutionality, and expediency, were equally vouched
for. The 33 affirmative votes were a majority of the Senate :
the amendment was incorporated with the bill, and went to the
House for its concurrence, where it received the vote of the
Southern members, and some part of their friends in the free
States — 82 in all ; * not enough to carry it : so it was disagreed
* The members of the House voting in favor of concurring with the Senate, i. e.
Mr. Douglass's amendment, were : — Messrs. Adams, Atkinson, Barringer, Barrow,
108 EXAMINATION OF THE
to, and returned to the Senate. It was in the night, and the
last night of the session ; and Mr. Benton, fearing the loss of the
Oregon bill in the disagreement between the two Houses, moved
that the Senate recede from its amendment. Then came another
vote on the Missouri Compromise clause ; and twenty -live Sen
ators — being the array that always stood most firmly for the
South *• — voted against receding ; that is to say, in favor of ex
tending, enforcing, preserving, and perpetuating the Missouri
Compromise line, and making it applicable to all Territories. It
was called the Missouri Compromise line, and, astronomically,
the extension would have been the same as the original part,
but politically far different and stronger; for the Louisiana part
went through territory, all slave, and made one side of the line
free ; the California part would go through territory, all free,
and make one part slave. This was an effect which many of
the free State members of the House, usually voting with the
South on slavery questions, could not stand : and hence the loss
of the amendment there.
This vote in the Senate was accompanied by declarations of
their opinions by several Senators — among others, by Mr. John
son, of Maryland, who said : " He lelieved in the existence of the
power in Congress to pass a law to prohibit slavery, and if such
a law were presented to the Supreme Court for a decision on its
constitutionality ', it looulcl le in favor of the law. As a judicial
question, the decision would le against protection to the South."
On a previous bill providing territorial governments for Oregon,
California, and New Mexico, he had said that he should him-
Bayly, Beale, Bedinger, Birdsall, Bocock, Botts, Bowdon, Bowlin, Boyd, Boydon,
Brodhead, Charles Brown, Albert G. Brown, Buckner, Burt, Cabell, Chapman, Chase,
Reverly L. Clarke, Clingman, Howell Cobb, Williamson R. W. Cobb, Cocke, Crozier,
Daniel, Donnell, Garnett Duncan, Alexander Evans, Featlierston, Flournoy, French,
Fulton, Gayle, Goggin, Greene, Willard P. Hall, Haralson, Harmanson, Harris, Haskell,
Hill, Billiard, Isaac E. Holmes, George S. Houston, Charles J. Ingersoll, Iverson,
Andrew Johnson, Robert W. Johnson, George W. Jones, John W. Jones, Kaufman,
Thomas Butler King, Ligon, Lumpkin, McDowell, McKay, M'Lane, Meade, Morehead,
Outlaw, Pendleton, Phelps, Pillsbury, Preston, Rhett, Roman, Shepperd, Stanley,
Stephens, Thomas, Jacob Thompson, John B. Thompson, Robert A. Thompson,
Tompkins, Toombs, Venable, Wallace, and Woodward — 82.
* Their names :— Messrs. Atchison, Badger, Bell, Berrien, Borland, Butler, Cal-
houn, Davis of Mississippi, Downs, Foote, Hunter, Johnson of Maryland, Johnson of
Louisiana, Johnson of Georgia, Lewis, Mangum, Mason, Metcalfe, Pearce, Rusk,
Sebastian, Turney, Underwood, Westcott, and Yulee— 25.
ETC. 109
self have submitted an amendment adopting the line of the Mis
souri Compromise, had he not been anticipated in his motion
by a Senator from Indiana (Mr. Bright).
The passage of the Oregon bill gave occasion to President
Polk to express his opinion of the Missouri and Texas com
promises — their happy effects in tranquillizing the Union, and
the necessity of preserving them inviolate. He said : —
" In December, 1819, application was made to Congress by the
people of the Missouri Territory, for admission into the Union as a
State. The discussion upon the subject in Congress involved the ques
tion of slavery, and was prosecuted with such violence as to produce
excitements alarming to every patriot in the Union. But the good
genius of conciliation which presided at the birth of our institutions
finally prevailed, and the Missouri Compromise was adopted. This
compromise had the effect of calming the troubled waves, and restoring
peace and good will throughout the States of the Union. I do not
doubt that a similar adjustment of the questions which now agitate the
public mind would produce the same happy results. If the legislation
of Congress on the subject of the other Territories shall not be adopted
in a spirit of conciliation and compromise, it is impossible that the coun
try can be satisfied, or that the most disastrous consequences shall fail to
ensue. When Texas was admitted into our Union, the same spirit of
compromise which guided our predecessors in the admission of Missouri,
a quarter of a century before, prevailed without any serious opposition.
The Joint Resolution for annexing Texas to the United States, approved
March 1st, 1845, provides that, ' such States as may be formed out of
that portion of the Territory lying south of 36 degrees 30 minutes north
latitude, commonly called the Missouri Compromise line, shall be ad
mitted into the Union with, or without slavery, as the people of such
State asking admission may decide. And to such State or States as
shall be formed out of said Territory north of the Missouri Compromise
line, slavery or involuntary servitude (except for crime) shall be pro
hibited. The Territory of Oregon lies far north of 36 degrees 30 min
utes, the Missouri and Texas Compromise lines. Its southern boundary
is the parallel of 42, leaving the intermediate distance to be 330 geo
graphical miles. And it is because the provisions of this bill are not
inconsistent with the terms of the Missouri Compromise, if extended
from the Rio Grande to the Pacific Ocean, that I have not felt at liberty
to withhold my sanction. Had it embraced Territories south of that
compromise, the question presented for my consideration would have
been of a far different character, and my action upon it would have cor-
110 EXAMINATION OF THE
responded with my convictions. Ought we now to disturb the Missouri
and Texas compromises ? Ought we, at this late day, in attempting to
annul what has been so long established, and acquiesced in, to excite
sectional divisions and jealousies — to alienate the people from different
portions of the Union from each other — and to endanger the existence
of the Union itself ? "
These were the earnest and patriotic appeals of Mr. Polk, in
favor of the two compromises ; one of which restored peace to
a distracted country, the other brought Texas into the Union.
He prayed for the perpetuity of these healing measures, not
only in his message on the Oregon bill, but also in his last an
nual message — the last of his most formal communications to
Congress : in that last message he repeated his sentiments,
saying :—
" Upon a great emergency, and under menacing dangers to the Union,
the Missouri Compromise line with respect to slavery was adopted. The
same line was extended further west on the acquisition of Texas. After
an acquiescence of near thirty years in the principles of compromise
recognized and established by these acts, and to avoid the danger to the
Union which might follow, if it were now disregarded, I have heretofore
expressed the opinion that that line of compromise should be extended
on the parallel of 36° 30' from the western boundary of Texas, where it
now terminates, to the Pacific Ocean."
Such were the reiterated sentiments of President Polk, up
to the end of his presidential service, which, unfortunately, was
only precursor to the termination of his life. Far from seeing
any thing in the Missouri Compromise violative of the Consti
tution, or insulting and injurious to the slave States, or as mak
ing an inequality in the States, he saw in it only beneficent and
felicitous effects — pacification of the country, extinction of a
rising conflagration, and preservation of the Union. He was a
Southern man and a slaveholder, and certainly could not be
blind to dangers to Southern States and slaveholders ; his cabi
net, also, were men of the South, or Northern men deep in South
ern sympathies, principles, and feelings : James Buchanan,
Secretary of State ; Kobert J. Walker, of the Treasury ; Wil
liam L. Marcy, of New York, War Department ; John Y. Mason,
Navy ; Cave Johnson, Postmaster-General ; Isaac Toucey, At
torney-General.
SUPREME COURT'S DECISION, ETC. Ill
The year 1850 presents the last instance to be given of
Southern sanction of the Missouri Compromise line — a date suf
ficiently recent to avoid the statute of limitations, if any date
can be late enough to prevent the running of that statute against
mutable politicians. Mr. Calhoun was then dead : Mr. Davis,
of Mississippi, seemed to succeed to the head of his party ; and
in the discussion of Mr. Clay's compromise scheme, reported
from the Committee of Thirteen, demanded the extension of the
Missouri line to the Pacific Ocean, and the recognition of slavey
on the south side of that line ; and declared these terms to be
the least that he would take. Thus :—
" I here assert that never will I take less than the Missouri Com
promise line extended to the Pacific Ocean, with the specific recognition
of the right to hold slaves in the Territory below that line ; and that,
before such Territories are admitted into the Union as States, slaves may
be taken there from any of the United States, at the option of their
owners."
Mr. Clay replied to the demand of Mr. Davis, and said: —
" I am extremely sorry to hear the Senator from Mississippi say
that he requires, first, the extension of the Missouri Compromise line to
the Pacific, and, also thatvhe is not satisfied with that, but requires, if I
understood him correctly, a positive provision for the admission of
slavery south of that line. And now, sir, coming from a slave State as
I do, I owe it to myself, I owe it to truth, I owe it to the subject, to say
that no earthly power could induce me to vote for a specific measure for
the introduction of slavery where it had not before existed, either south
or north of that line. Coming as I do from a slave State, it is my
solemn, deliberate, and well-matured determination, that no power — no
earthly power — shall compel me to vote for the positive introduction of
slavery either south or north of that line. Sir, while you reproach, and
justly too, our British ancestors for the introduction of this institution
upon the continent of North America, I am, for one, unwilling that the
posterity of the present inhabitants of California and of New Mexico,
shall reproach us for doing just what we reproach Great Britain for
doing to us. If the citizens of these Territories choose to establish
slavery, and if they come here with Constitutions establishing slavery, I
am for admitting them with such provisions in their Constitutions ; but
then it will be their own work, and not ours ; and their posterity will have
to reproach them, and not us, for forming Constitutions allowing the in
stitution of slavery to exist among them. These are my views, sir, and
112 EXAMINATION OF THE
I choose to express them ; and I care not how extensively, or universally
they are known."
Mr. Turney, of Tennessee, moved the amendment to cover
the demand of Mr. Davis : it was to extend the Missouri Com
promise line to the Pacific, limiting the State of California to
the north side of that line, and establishing slavery to the south
of it. His amendment consisted of two sections, and constituted
a ne w bill, and was in these words : —
" When it shall be made to appear to the President of the United
States, by satisfactory evidence, that the people inhabiting the Territory
of California, (or so much of said Territory as is comprehended in the
limits proposed by this bill as the boundaries of the State of California,)
assembled in convention, have agreed to a line not further south than
the parallel of 36 degrees 30 minutes north latitude, as the southern
boundary of said State, and limited the representation of said State to
one State until after the next census of the inhabitants of the United
States, the said State of California may be admitted into the Union upon
the proclamation of the President, upon an equal footing with the origi
nal States.
" Sec, 2. And be it further enacted, That the line of 36 degrees 30
minutes north latitude, known as the Missouri Compromise line, as de
fined in the eighth section of an act entitled, l an act to authorize the
people of the Missouri Territory to form a Constitution and State Gov
ernment, and for the admission of such State into the Union on an equal
footing ivith the original States, to prohibit slavery in certain Terri
tories^ approved March 6th, 1820, be, and the same is declared to
extend to the Pacific Ocean : and the said eighth section, together with
the compromise therein effected, is hereby revived, and declared to be
in full force and binding for the future organization of the Territories of
the United States in the same manner and with the same understanding
with which it was originally adopted.''
For this amendment twenty -four Senators voted ; to wit : —
Messrs. Atchison, Badger, Barnewell, Bell, Berrien, Butler,
Clemens, Davis, of Mississippi; Dawson, of Georgia; Downs,
of Louisiana; Foote, Houston, Hunter, (R. M. T.), King, of
Alabama ; Mangum, Mason, Morton, of Florida ; Pearce, of
Maryland ; Pratt, of Maryland ; Rusk, of Texas ; Sebastian, of
Arkansas ; Soule, of Louisiana ; Turney, of Tennessee ; and
Yuleo, of Florida.
It was Tuesday, the 6th day of August, Anno Domini 1850,
SUPREME COURT'S DECISION, ETC. 113
that this vote was given ; so that up to that day, this array of
Senators, reputed to represent Southern interests, feelings, and
principles, saw nothing unconstitutional, unjust, or derogatory to
other States in it ; and adopted it in spirit and understanding,
and with the same intent of perpetual observance with which
it was originally adopted. That understanding was, that Con
gress had power to legislate upon slavery in Territories, and to
abolish it therein when it saw fit, and that such legislation
worked no inequality in the States ; and, in the particular case
of the Missouri Compromise act, the partition of the province of
Louisiana between free and slave States was a continuation of
the policy which divided the territory east of the Mississippi,
between the same classes of States ; and as necessary then to
save the Union as the ordinance of 1787 had been to save it.
This is the "understanding" to which those Senators bound
themselves who voted for Mr. Turney's amendment, on Tuesday,
the 6th day of August, Anno Domini 1850. The amendment
was not agreed to. Thirty-two Senators voted against it — not
for unconstitutionally, but for being the reverse in its effects
of the measure it professed to extend, the original line acting on
territory all slave, and abolishing it on one side ; the extension
acting upon territory all free, and establishing slavery w^here
it never had been. The non-extension of this line was a great
subject of complaint, and deluded many people into a belief of
its injustice — deceived by a name which, being the same
throughout, was exactly the reverse in its practical effect. The
California State bill passed : the Compromise line was not ex
tended to the Pacific : ten Senators signed a protest against it,
and presented it to the Senate for entry on the journal, (which
was refused,) as injurious to the slave States, "fatal to the peace
and equality of the States they represented, and leading, if per
sisted in, to the dissolution of that confederacy in which the
slaveholding States have never sought more than an equality,
and in which they will not he content to remain with less" This
protest was signed by — Messrs. Mason and Hunter, of Virginia ;
Butler and Barnewell, of South Carolina ; Mr. Turney, of Ten
nessee ; Mr. Pierre Soule, of Louisiana ; Mr. Jefferson Davis,
of Mississippi ; Mr. Atchison, of Missouri ; and Messrs. Yulee,
and Morton, of Florida.
It was in this discussion on the Oregon territorial bill that
114 EXAMINATION OF THE
Mr. Calliovm arrived at his ultimate doctrines on the slavery
question. The extension of the ordinance of '87 to Oregon
oTeatly excited him — proclaiming it the end of the Union.*
He denounced that ordinance as proper to constitute the first
chapter when the history of the dissolution of this Union should
be written : he denounced the Missouri Compromise Act as fit
to constitute the second chapter of that same history ; and he
denounced the extension of the old ordinance to Oregon as
furnishing proper matter for the third chapter of that same
history. He declined to say what would be the fourth chapter,
but clearly intimated its character, f
But while thus making the Missouri Compromise Act a
cause for the dissolution of the Union, and a theme for the
future American historian as such, yet it was not for unconsti-
* " The great strife between the North and the South is ended. The North is de
termined to exclude the property of the slaveholder, and, of course, the slaveholder
himself, from its territories. On this point there seems to he no division in the North.
In the South, he regretted to say there was some division of sentiment. The effect
of this determination of the North was to convert all the Southern population into
slaves ; and he would never consent to entail that disgrace on his posterity. He
denounced any Southern man who would not take the same course. Gentlemen were
greatly mistaken if they supposed the presidential question in the South would over
ride this more important one. The separation of the North and the South is com
pleted. The South has now a most solemn obligation to perform— to herself— to the
Constitution— to the Union. She is bound to come to a decision not to permit this to
go any further, but to show that, dearly as she prizes the Union, there are questions
which she regards as of greater importance than the Union. She is bound to fulfil
her obligations as she may best understand them. This is not a question of territorial
government, but a question involving the continuance of the Union." — Mr. Calhoun,
on Oregon.
Mr. Bell, of Tennessee, replied to this annunciation and denunciation, saying :
" He believed that the Senator from South Carolina (Mr. Calhoun), and those who
concurred with him, had placed the South in a wrong position, when they assumed
that by the decision of this question the die would be cast, and the issue now be made
which involves the dissolution of the Union. He contended that the issue was prema
turely made Avhen it was made on the Oregon question. If we are to quarrel with
the North, let us be sure that in all respects our ground of dispute be tenable for us."
— Mr. Bell's Speech.
f "Now let me say, Senators, if our Union and system of government is doomed
to share the fate of so many great people who have gone before us, the historian, who,
in some future day, may record the events leading to so calamitous a result, will
devote his first chapter to the ordinance of 1787, as lauded as it and its authors have
been, as the first in that series which led to it. His next chapter will be devoted to
the Missouri Compromise, and the next to the present agitation. Whether there will
be another beyond, I know not ; it will depend on what we may do." — Same speech.
SUPREME COURT'S DECISION, ETC. 115
tutionality, but for its effects — for the insult, injustice, degrada
tion of preventing a slaveholder from carrying his slave property
(i. e. the law of the State which makes it property) into a com
mon estate, procured by the blood and money of all. For this
reason he condemned it, but not to abrogation, or repeal, ex
pressly stopping short of these remedies, because of the effect
which the " attempt " even would have upon the Union. In
this sense, he thus delivered himself : —
" After an arduous struggle of more than a year on the question,
whether Missouri should come into the Union, with or without restric
tions prohibiting slavery, a compromise line was adopted between the
North and the South; but it was done under circumstances which
made it nowise obligatory on the latter. It is true it was moved by one
of its distinguished citizens, (Mr. Clay,) but it is equally so that it was
carried by the almost united voice of the North against the almost
united voice of the South ; and was thus imposed on the latter by supe
rior numbers in opposition to her strenuous efforts. The South has
never given her sanction to it, or assented to the power it asserted. She
was voted down, and has simply acquiesced in an arrangement which
she has not had the power to reverse, and which she could not attempt
to do without disturbing the peace and harmony of the Union — to
which she has ever been adverse."*
I quote this part of the speech for two purposes : first, to
show that the dogma of the unconstitutionally of the Missouri
Compromise Act, had not at that time, (Aug. 1848,) been invent-
* "It was on this occasion that Mr. Dix, of New York, brought out the proof that
Mr. Calhoun, as a member of Mr. Monroe's cabinet, had given a written opinion in
favor of the constitutionality of the Missouri Compromise, and also in favor of its
expediency — a fact which he himself had stated in the Senate ten years before, (in
1848,) and how he blamed Mr. Randolph for opposing it, and that he had since changed
his opinion because it encouraged the abolitionists. As for the rest of his account of
the compromise, it was all of a piece with his own forgetfulness of the part he had
acted in it — all moonshine and figment of the brain. It was not Mr. Clay who moved
the compromise, but it came down from the Senate, where it had been moved by Mr.
Thomas, of Illinois, a friend to the South, and voted for by every Southern senator,
and some of their friends from the North. It had been first suggested in the House
the year befor e it was passed by Mr. Louis M'Lane, of a slaveholding State, and as a
friend to the South, and as he said, with the approbation of Southern members. It was
moved in the House by Mr. Storrs, of New York, a friend of the South, but rejected by
Northern votes. It was not imposed upon the South by Northern votes, but sought by
the South and obtained by its vote — the whole vote in the Senate and a majority in the
House. The South did give her sanction to it, in her almost undivided support of its
re-enactment at the admission of Texas.
116 EXAMINATION OF THE
ed ; and, secondly, that its abrogation was not to be attempted, be
cause "the attempt to reverse it would disturb the peace and har
mony of the Union" Mr. Calhoim was a man of head and sys
tem, and though working at a dissolution of the Union since the
year 1830, his system was to throw upon the North the blame of
the separation — to make the segregation of the slave States an act
of necessity — of self-defence — forced upon them by aggressions,
encroachments, and crusades against their slave property. To
attack the Missouri Compromise was to give up that defensive
attitude — to make the South the aggressor — and consequently to
make it responsible for disturbing the peace and harmony of the
Union, and also for furnishing matter for the contents of that
fourth chapter in the history of its dissolution which he shad
owed forth, but forbore to name.
It was in one of the bills brought forward at this period,
(July, 1848,) to give governments to the newly acquired Terri
tories, that Mr. Calhoun gave glimpses of two doctrines which,
classing with the vagaries of an over-excited imagination, at
tracted no attention at the time, but have since acquired an
ominous pre-eminence ; namely, 1. The self-extension of the
Constitution to Territories, carrying slavery along with it. 2. The
remission of the slavery question in Territories to the Supreme
Court of the United States,* by appeals from the Territorial
Courts, authorized to try questions of freedom or slavery between
the slave and his master. The first of these doctrines was ex
hibited in the declaration quoted in the introductory note to this
examination, that upon the instant of the ratification of the
treaty with Mexico, the sovereignty of the United States enter
ed upon the acquired territory, carrying with it the Constitu-
* " Writs of error and appeals from the final decisions of said Supreme Court shall
be allowed, and may be taken to the Supreme Court of the United States, in the same
manner and under the same regulations as from the circuit courts of the United States,
except only that in all cases involving title to slaves the said writs of error or appeals
shall be allowed and decided by the said Supreme Court, without regard to the value
of the matter, property, or title in controversy ; and except, also, that a writ of error
or appeal shall be allowed to the Supreme Court of the United States from the decision
of the Supreme Court created by this act, or any judges thereof, or of the district
courts created by this act, or of any judge thereof, upon any writ of habeas corpus
involving the question of personal freedom ; and each of the said district courts shall
have and exercise the same jurisdiction in all cases arising under the Constitution and
laws of the United States, as is vested in the circuit and district courts of the United
States ; and the first six days of every term of said courts, or so much thereof as
SUPREME COURT'S DECISION, ETC. 117
tion, with its overriding control over all the laws and institu
tions of Mexico inconsistent with it. The second was formally
proposed in a bill to give governments to California, New Mexico,
and Oregon, all lumped together in one conglomerate enactment,
with a special provision to authorize the initiation of freedom
proceedings in the two former by the slave against his master,
either in a trial at law, or upon a writ of habeas corpus' with
appeal to the Supreme Court. This bill passed the Senate, after
a curious debate, of more import now than then, but was unce
remoniously repulsed from the House without even the respect
of a first reading — being tabled for ever the instant its advent
was announced. It was a strange bill, and voted for by those
who did vote for it, upon most contradictory reasons — some
because they deemed it the best kind of a Wilmot proviso — some
to gratify Mr. Calhoun, whose solicitude for it was excessive —
some as for an absurdity which could not pass, and if it did,
could have no operation, as no man would carry a negro free or
bond, to California or New Mexico, just to try the question of
freedom with him, with appeal to the Supreme Court — a trial in
which the owner would be loser, whether he won or lost the
suit. For the slave being entitled to his liberty while the suit
was going on, would be free during that period, say seven
years ; and having no property, and subject to no process for
costs or damages, the owner would merely get him back at the
end of the suit — if he could catch him after seven years of free
range from the shores of the Pacific to Washington City — minus
the loss of his labor for the time, his court fees, and lawyers'
fees, his personal expenses attending courts in California, and
in the District of Columbia, and in his journey ings backwards
and forwards all the while, and damage to his other neglected
business — besides the degradation of being sued by his own
negro, and dragged by him across the continent, and outshone
by him in the splendor of his living and in liberality to his
counsel (for the anti-slavery societies would supply him with
bags of gold, while his poor master would be selling his stinted
crops to get the means of carrying on the suit). With such
shall be necessary, shall be appropriated to the trial of causes arising under the said
Constitution and laws; and writs of error and appeals, in all such cases, shall be made
to the Supreme Court of said Territory, the same as in other cases." — Section 24 of the
Conglomerate bill.
118 EXAMINATION OF THE
consequences before him, no man would carry his slave six
thousand miles by water, and over free soil at Panama or Nica
ragua, or three thousand miles over land and Indian country
between the old States and the Pacific Ocean, just to begin that
suit with him which the Senate's bill proposed. Yet the bill
was the work of a Select Committee, eight in number, (being
three more than the usual Senate committees,) including Mr.
Calhoun, and a majority of his friends on the slavery question.*
Mr. Badger, of North Carolina, saw in it a surrender of the
rights of the South, and as effectual a bar to the introduction of
slavery as the Wilmot proviso could have been. He said, " He
regarded this bill as a complete surrender of the rights of the
South. He believed negro slavery would be as effectually ex
cluded by this bill as if the Wilmot proviso, or any other bill,
had passed.f"
It was in the discussion on this bill that those remarks upon
the probable decision of the Supreme Court were made which
were quoted in the Introductory Note, and which foreshadowed
the fate of any judges who should have to pronounce upon
the question of African slavery, as a political question under
our Constitution. The remarks and speculations ran right off
to the geographical locus in quo of each judge ! and when that
could take place in the American Senate, and in anticipation of
any decision, what might not be expected after an actual deci
sion, and a strongly developed geographical line, in the line of
division between different opinions ?
It was also in the same bill — the conglomerate for giving
governments to three Territories together — that was placed that
section, unobserved at the time, as mentioned in the Introduc
tion to this Examination, which proposed to extend the Consti-
* They were: — Messrs. John M. Clayton, of Delaware; Bright, of Indiana ; Cal
houn, of South Carolina ; Clarke, of Rhode Island ; Atchison, of Missouri ; Phelps, of
Vermont ; Dickenson, of New York ; Underwood, of Kentucky. Of this committee,
two of its members, Messrs. Clarke and Underwood, voted against the hill. Of course,
the authors of the bill helieved that a slave of the African race could maintain a suit in
the United States Supreme Court.
t Mr. Benton voted for it, (taking care to condemn it in his speech,) " to estop Mi\
Calhoun," with a measure of his own — a Wilmot proviso of his own concoction. Cer
tainly, no AVilmot ever devised so efficacious a measure for keeping slavery out of New
Mexico and California, and Mr. Benton was perfectly willing that Mr. Calhouu should
have that credit.
SUPREME COURT'S DECISION, ETC. 119
tution to Territories. It was in section 35 of the bill — that is to
say, in the penultimate section of an enormous bill of 36 sec
tions, where no one would look for a new principle, that this
unprecedented novelty found its berth. Nothing but details and
matters of form go to the end of the bill — its whole power and
character being in a few of the front sections. Parliarnentarily,
nothing but formal details to carry out a principle can follow
the principle, always put foremost. To these front sections the
opponents of bills look ; and fighting the battle upon these
main sections, the details are left with the friends of the
measure. They are considered matters of form, to carry out
what the leading sections establish ; and, in that point of view,
are left to the committee who prepares the bill. This is the
case in all bills, even those of considerable length, where the
whole could be read in a reasonable time. How much more
so in an enormous bill of six and thirty sections ! and that upon
as old a subject as territorial government, all the details of
which had been a matter of course since the ordinance of 1787.
Of such a bill it may well be conceived that none but those who
drew it ever saw the concluding sections ; and such I am able to
say, upon the highest presumptive evidence, was the case with
this conglomerate bill of 36 sections. That presumption is
founded upon two facts : first, that no speaker for, or against
the bill, ever alluded to it in a single word spoken ! an absence
of remark on such a new and startling provision which can only
be accounted for upon the hypothesis of a total absence of all
knowledge of its existence. Secondly, that I myself knew
nothing of it ! and so actually voted for a bill containing a novel
provision, never heard of before — and of absurd impossibility.
The section was in these words :
SECTION 35. And be it further enacted. That the Constitution and
laws of the United States are hereby extended over, and declared to be
in force in said Territories of Calif ornia and New Mexico, so far as
the same, or any provision thereof, may be applicable."
As the bill did not pass the House, this section, though it
passed the Senate, became in fact as if it never had been ; but
it Answers a purpose now, in showing that the framers of the
bill then deemed an act of Congress necessary to extend the
Constitution over Territories, and give it force and effect therein
120
EXAMINATION OF THE
—the same as acts of Congress are so extended : with this in
congruity, that the laws so extended being rules of action, are
capable of operation ; while the Constitution, being a collection
of principles, can operate nowhere until these principles are
vitalized by law : and that can only be done by Congress
Congress alone being the body which can legislate under the
Constitution. So that, if the Constitution could be extended to
a Territory, not a provision in it could take effect until Congress
had passed an act to put it in operation.
Nine months afterwards, that is to say, at the end of the
ensuing session, (March 3d, 1849,) that attempt was made
through Mr. Walker, of Wisconsin, to extend the Constitution
to the three Territories in a lump, which has been noticed here
tofore, and which being repulsed, the higher ground is taken that
the Constitution goes of itself to Territories, carrying slavery
along with it, in defiance of Congress and the people of the
Territory. And this is what the Supreme Court has decided—
the judicial power deciding a political question ! and in a way
which the political power had twice repulsed.*
* One good effect the decision of the Court has had, and that is— the extermina
tion of Squatter Sovereignty. It tears up that doctrine root and branch ; and, it
would seem, to the gratification of its votaries. For they rally to the Court's decision,
and make adherence to it the test of democracy, with the same zeal with which they
supported that doctrine during its brief day.
What tests of democracy wo have seen in three brief years! Adherence to the
Missouri Compromise the test when Mr. Douglass brought in his Nebraska bill, and
until Mr. Dixon's proposed amendment started new game. Then destruction to the
Compromise, and devotion to Squatter Sovereignty was the test. And this test con
tinued for about two years, when it was exploded by the Supreme Court's decision.
Then that decision becomes the test, and the democrat is politically excommunicated
who does not change again— give up Squatter Sovereignty, as he did the Compromise ;
and take the Constitution, per set as sole slavery legislators in a territory, and only a
one-sided legislation ! to carry slavery into all territories, and abolish it in none ! and
keeping it, and protecting it, there in defiance of Congress, and the people, and in de
fiance of all laws previously existing there. And this to be done by virtue of a Consti
tution in which its framers would not permit the word " slave," or any equivalent
phrase, to be used !
SUPEEME COURT'S DECISION, ETC. 121
CONCLUSION.
This completes the historical view which I proposed to take
of the Supreme Court's decision on the two points deemed po
litical — 1. The invalidation of the Missouri Compromise Act ;
2. The self-extension of the Constitution to Territories, carrying
African slavery along with it. And the result is, that the de
cisions conflict with the uniform action of all the departments
of the Federal Government from its foundation to the present
time, and cannot be received as rules to govern Congress and
the people without reversing that action, and admitting the po
litical supremacy of the Court, and accepting an altered Con
stitution from its hands, and taking a new and portentous point
of departure in the working of the Government. These deci
sions being political, are dependent upon moral considerations
for their effect. They cannot be enforced. No mandamus can
be directed to Congress and the people : no process of contempt
can issue against them. Influence — not authority — is the only
power the Court can wield. This being the case, and the two
conflicting powers, (that of two generations on one hand, and the
Supreme Court on the other,) being reduced to moral consider
ations to establish the best title to supremacy, it becomes indis
pensable to run a comparison between their respective claims
to superiority, and strike the balance on the side that shows the
best title. This I propose to do, and to make the points of com
parison co-extensive with the influencing considerations in the
whole case : 1. Numbers on each side. 2. Qualifications for
forming a correct judgment. 3. Adaptation of times to calm
consideration. 4. Freedom from connection with party contests.
5. Jurisdiction. 6. Unanimity, 7. Weight of reasons: — and
of these, each in its order.
122 EXAMINATION OF THE
1. The numbers. These are as units to myriads. Two gen
erations stand on one side : six judges sit on the other, and
these six morally reduced to five, by the non-concurrence in one
of them in the reasons of the others. So that, compared by
numbers, the result is that one side counts with the stars of
heaven : the other, with the fingers or toes on the hand or foot.
— 2. Qualifications for forming a correct judgment. Here the
comparison is entirely in favor of the same side. They were
the men who formed the Constitution, and put it into operation,
while the Court are only new comers in that field, and can
hardly be supposed to know more about the Constitution than
those who made it, and the two generations who agreed with
them. Without disparagement to the members of the Court,
it must be admitted that the other side is their equal in point
of ability, and these equals outnumbering them as myriads do
units. And, without disparaging the legal profession, it must
be remembered that the lawyer and the statesman are held to
be incompatible characters' — the cast of mind which qualifies a
man for the great lawyer, disqualifying him for the safe states-
'man ; * and in this case our ancestors were statesmen, the judges
lawyers, and the questions political. — 3. Adaptation of times to
calm consideration. Here the advantage is with the twro gene
rations. They acted in times of calm : the judges during a
storm of the passions. They acted upon an old light, shining
steadily in a calm atmosphere : the judges on a new light, sud
denly breaking out, and flashing fitfully in the bursts of a
raging tempest. And such new lights are not considered safe
guides in law, religion, or politics. f — 4. Freedom from connec-
* See the speeches of "William Pitt, (the father,) — of Burke, Fox, Sheridan, and
the American John Randolph ; and the histories of almost all great lawyers who have
turned their hands to politics. Also rememher Wehster, already quoted, going out of
his way to point out lawyers and judges as peculiarly suhject to inaccurate ideas on
the question of the Constitution and the Territories.
f And of this opinion was the present Supreme Court some two years ago, (1 855,)
as quoted by Mr. Justice M'Lean in his dissenting opinion— Mr. Justice Grier being
the organ of the Court.
"We entertain the highest respect for that learned Court, (the Supreme Court of
Michigan,) and in any question affecting the construction of their own laws, where we
entertain any doubt, would be glad to be relieved from doubt and responsibility by re
posing on their decision. There are, it is true, many dicta to be found in our decisions,
averring that the courts of the United States are bound to follow the decisions of the
SUPREME COURT'S DECISION, ETC. 123
tion with party contests. "With our ancestors these questions
knew no party, political or geographical. The Republican and
the Federalist of the first generation, the Whig and the Democrat
of the second, — the man of the North, South, East and West,
— all concurred, (until the new light sprung up,) in one concur
rent opinion, manifested by continual acts, that Congress had
power to legislate upon slavery in Territories, and that the Con
stitution did not extend to Territories : while the new opinion
which conflicts with that, was born of party, and has be
come a new test of party, (of democracy,) outlawing from the
democratic ranks every man that does not go it — that does not
keep up with the changes, from the abrogation of the Missouri
Compromise (which saved the Union) to squatter sovereignty,
^which killed the compromise ;) and thence to the decisions of
the Supreme Court (which kills both). So that the new doc
trine is both the child and champion of party, and itself a
touchstone of party. — 5. Jurisdiction. As a political question,
the Court had no right to decide it, even if it came fairly before
it. Congress had not only a right to act, but was bound to do
so ; and always had the subject fairly before it in seventy years'
necessity to act upon it. Without right to try it, even if the
case before them made it necessary, yet here the Court had no
jurisdiction, and dismissed it for want of jurisdiction ; and
State courts on the construction of their own laws. But although this may he cor
rect, yet a rather strong expression of a general rule, it cannot he received as the
annunciation of a maxim of universal application. Accordingly, our reports furnish
many cases of exceptions to it. In all cases where there is a settled construction of
the laws of a State, hy its highest judicature established by admitted precedent, it is
the practice of the courts of the United States to receive and adopt it, without criti
cism or further inquiry. When the decisions of the. State court are not consistent,
we do not feel hound to follow the last, if it is contrary to our own convictions ; and
much more is this the case where, after a long course of consistent decisions, some
new light springs up, or an excited public opinion has elicited new doctrines subver
sive of former safe precedent."
Upon which Mr. Justice M'Lean remarks :
" These words, it appears to me, have a stronger application to the case before us
than they had to the cause in which they were spoken as the opinion of this court ;
and I regret that they do not seem to he as fresh in the recollection of some of my
brethren as in my own. For twenty-eight years, the decisions of the Supreme Court
of Missouri were consistent on all the points made in this case. But this consistent
course was suddenly terminated, whether by some new light suddenly springing up,
or an excited public opinion, or both, it is not necessary to say." — Dissenting Opinion.
EXAMINATION OF THE
thus, left without a leg to stand on, it reached far over to get
hold of the political questions by virtue of a rule which had no
application, even in an actual existing case : so that, on the
point of jurisdiction, our ancestors had it, and were under a
necessity to act upon it : the Court had it not, and assumed it
upon a supposition which had nothing to rest on, and as an adden
dum to a case which had no existence, and by virtue of a rule
which had no application. — 6. Unanimity in the decisions. Here
again the flagrant contrast appears. Our ancestors were the
myriad, and acted through seventy years without division of
sentiment.. All departments of the Government — legislative,
executive, and judicial — and both classes of governments, State
and Federal — men changing all the while — acted with one
voice.* The Court was but nine — a single term — the same men
*" The judicial mind of this country, State and Federal, has agreed on no subject,
within its legitimate action, with equal unanimity, as on the power of Congress to es
tablish territorial governments. No court, State or Federal, no judge or statesman,
is known to have had any doubts on this question for nearly sixty years after the
power was exercised. Such governments have been established from the sources of
the Ohio to the Gulf of Mexico, extending to the Lakes on the north and the Pacific
Ocean on the west, and from the lines of Georgia to Texas. Great interests have
grown up under the territorial laws over a country more than five times greater in ex
tent than the original thirteen States ; and these interests, corporate or otherwise,
have been cherished and consolidated by a benign policy, without any one supposing
the law-making power had united with the Judiciary, under the universal sanction of
the whole country, to usurp a jurisdiction which did not belong to them. Such a dis
covery at this late date is more extraordinary than any thing which has occurred in
the judicial history of this, or any other country. What do the lessons of wisdom and
experience teach, under such circumstances, if the new light, which has so suddenly
and unexpectedly burst upon us, be true ? Acquiescence ; acquiescence under a set
tled construction of the Constitution for sixty years, even if erroneous." — Mr. Jus
tice M'Lean.
To the same effect Mr. Justice Catron, in his concurring opinion, who, although
agreeing with the Court in its judgment, did so for a different reason ; resting his own
on a supposed violation of the treaty with France, and the equality of States under
the Constitution. Thus :
" More than sixty years have passed away since Congress has exercised power to
govern the Territories, by its legislation directly, or by territorial charters, subject to
repeal at all times, and it is now too late to call that power into question, if this Court
could disregard its own decisions ; which it cannot do, as I think. It was held in the
case of Cross v. Harrison, (16 How., 193-'4,) that the sovereignty of California was
in the United States, in virtue of the Constitution, by which power had been given to
Congress to dispose of and make all needful rules and regulations respecting the ter
ritory or other property belonging to the United States, with the power to admit new
States into the Union. That decision followed preceding ones, there cited. The ques-
SUPREME COURT'S DECISION, ETC. 125
all the while ; and great diversity of opinion. Two of the
Justices dissent entirely from the opinion of the Court, and give
well reasoned arguments against that opinion, and in favor of
a different one. Another of the Justices (Mr. Justice Nelson)
abstained from expressing any opinion on the point in question.
That reduced the concurring Justices to six ; and of these, one,
(Mr. Justice Catron,) while concurring in the judgment, did so
for different reasons, wholly incompatible with those of the
Court, and attacked their reasons as wholly unfounded. And,
as in this case we only go by moral weight, his vote, though
legally counted against Scott, weighs nothing for the Court's
opinion ; but the contrary, as impeaching its reasons : which re
duces the concurrent judges to five — a majority of one. And
then two of the remaining concurrents give elaborate separate
opinions, agreeing in the result, but for reasons not always the
same ; and, to the extent of that difference, invalidating the
reasons of the Court, and lessening the weight of its decision.
So that, upon the head of unanimity, the difference again in
tion was then presented, how it was possible for the judicial mind to conceive that the
United States Government, created solely by the Constitution, could, by a lawful
treaty, acquire territory over which the acquiring power had no jurisdiction to hold
and govern it, by force of the instrument under whose authority the country was ac
quired ; and the foregoing was the conclusion of this Court on the proposition. What
was there announced, was most deliberately done, and with a purpose. The only
question here is, as I think, how far the power of Congress is limited." — Mr. Justice
Catron, concurring.
"My opinion is, that the third article of the treaty of 1803, ceding Louisiana to
the United States, stands protected by the Constitution, and cannot be repealed by
Congress. And, secondly, that the act of 1820, known as the Missouri Compromise,
violates the most leading features of the Constitution — a feature on which the Union
depends, and which secures to the respective States and their citizens an entire
EQUALITY of rights, privileges, and immunities." — Same.
" It would certainly be a subject of regret that the conclusions of the Court
have not been assented to by all of its members, if I did not know from its history,
and my own experience, how rarely it has happened that the judges have been unani
mous upon Constitutional questions of moment, and if our decision in this case had
not been made by as large a majority of them as has been usually had on constitu
tional questions of importance. Two of the judges, Messrs. Justices M'Lean and Curtis,
dissent from the opinion of the Court. A tliird, Mr. Justice Nelson, gives a separate
opinion upon a single point in the case, with which I concur, assuming that the Cir
cuit Court had jurisdiction ; but he abstains altogether from expressing any opinion
upon the eighth section of the act of 1820, known commonly as the Missouri
Compromise law ; and six of us declare that it was unconstitutional." — Mr. Justice
Wayne.
126 EXAMINATION OF THE
favor of our ancestors is as a mountain to a mustard seed. And
then, again, in these differences of opinion the geographical
line which divides the free from the slave States was palpably
developed, while no such line was ever seen in the Congress
decisions. To conclude this head, it is to be remembered that
two Justices of the Court who had voted for the Missouri Com
promise, (Messrs. Baldwin, of Pennsylvania, and Philip P. Bar-
bour, of Virginia,) and became judges afterwards, had died be
fore the decision — who, if they had lived, and retained their
former opinions, would have made the majority the other way.*
— 7. Weight of reasons on each side. This is a difficult point
of comparison, as the Court points to no clause in the Constitu
tion on which it relies to overturn the practice of seventy years.
Its great labor seems to have been, by a careful verbal exami
nation of the Constitution, to prove that it did not authorize
Congress to legislate upon slavery — an unnecessary labor, as
the whole territorial legislation of Congress, from the 7th day
of August, 1789, has been independent of the Constitution, and
incompatible with it, and for the endless reason that the Consti
tution was not made for Territories, nor extends to them, nor
gives them a single right under it. Naming no clause which
gives the right of carrying slaves into Territories against an act
of Congress, they derive it from general political considerations
founded in the equality of States, the common right of all to
the enjoyment of the common territory, and the denial of that
* The Boston Law Reporter for June, 1857, contains an article ascribed to John
Lowell and Horace Gray, jr., Esquires, two well-known legal gentlemen of Boston,
in which the discrepancies among the members of the Court, on another point in the
Dred Scott case, show the judgment of Courts to be too uncertain to be admitted
as a political expounder of the Constitution. Thus :
"As to the question, " Can a negro be a citizen of the United States ?" It has
been commonly supposed that the Court decided this question in the negative. This
is a mistake. From the form in which it was presented, it was very doubtful whether
it was before the Court for a decision. Four of the nine judges thought that it was ;
these were the Chief Justice, and Justices Wayne and Daniel, who answer the question
in the negative, and Justice Curtis, who answered it in the affirmative. Of the judges
who gave no opinion on the point, one (Judge M'Lean) declares that if he answered
the question at all it would be in the affirmative ; Judge Catron, when Chief Justice of
the Supreme Court of Tennessee, gave an opinion directly involving an affirmative
answer to the question ; the three other judges give no clue to their opinions. On
this question, then, the Court stands thus : Three in the affirmative, three in the nega
tive, and three silent."
SUPREME COURT'S DECISION, ETC. 127
right in the prohibition of slavery. In this general way the
Court gets its authority, the powers and rights for which it con
tends seeming to ooze out of the body of the Constitution in a
sort of political insensible perspiration, which being collected
and condensed, form little streams leading to the conclusions
they arrive at — running in different channels, but falling into
the same gulf.* Such invisible, impalpable exudations cannot
be weighed as reasons, and besides, had been all addressed in
vain to the political power — to Congress itself — to get it to do
what the Court has done. On the other hand, all the reasons for
the old opinions are palpable and visible, have been seen and
handled for seventy years, and always the same thing : Sover
eignty, and Proprietorship, and a right to make rules and regu
lations respecting the territory of the United States. Between
the weight of reasons, impalpable and invisible on one side, and
those which have been seen and felt, and by all beholders for
two generations, on the other, there is no rule of comparison
* " It appears, however, from what has taken place at the bar, that notwithstand
ing the language of the Constitution, and the long line of legislative and executive pre
cedents under it, three different and opposite views are taken of the power of Congress
respecting slavery in the Territories.
" One is, that though Congress can make a regulation prohibiting slavery in a
Territory, they cannot make a regulation allowing it ; another is, that it can neither
he established nor prohibited by Congress, but that the people of the Territory, when
organized by Congress, can establish or prohibit slavery ; while the third is, that the
Constitution itself secures to every citizen who holds slaves, under the laws of any
State, the indefeasible right to carry them into any Territory, and there hold them as
property.
" No particular clause of the Constitution has been referred to at the bar in sup
port of either of these views. The first seems to be rested upon general considera
tions concerning the social and moral evils of slavery, its relation to republican
Governments, its inconsistency with the Declaration of Independence, and with
natural right.
" The second is drawn from considerations equally general, concerning the right
of self-government, and the nature of the political institutions which have been estab
lished by the people of the United States.
" While the third is said to rest upon the equal right of all citizens to go with their
property upon the public domain ; and the inequality of a regulation which would
admit the property of some and exclude the property of other citizens ; and, inas
much as slaves are chiefly held by citizens of those particular States where slavery is
established, it is insisted that a regulation excluding slavery from a Territory operates,
practically, to make an unjust discrimination between citizens of different States, in
respect to their use and enjoyment of the territory of the United States." — Mr. Justice
Curtis.
128
EXAMINATION OF THE
winch can reach the case ; and the task of comparing them
must be given up.
So that the decisions of the Court tried by all the tests of
comparison — numbers on each side, qualifications for right de
cision, tranquillity of times, freedom from party; jurisdiction,
unanimity, precedents, antiquity, and weight of reason — sink
out of view in the presence of the old, established, invariable,
and venerable practice of our ancestors.
One further remark will conclude this conclusion. The
Court dwells upon the supposed unconstitutionality of any
regulation which would prevent a master from taking his slaves
with him to a Territory. Why, the master himself may be
prevented from going, or turned out after he gets there. From
the day of becoming a landholder, the old Continental Congress
first, and the Federal Congress since, have exercised the right of
every other landholder to prevent trespasses, intrusions, and
settlements upon their territory, expelling with military force,
and punishing with fine and damages, the violator of its rules.
This began under the Confederation, and has continued ever
since/*' All the old settlers on the frontiers can remember the
dragooning the settlers on the United States territory, driving
them off, and destroying their houses and growing crops. All
can remember the old familiar operation of cutting up a Terri
tory, running a line through it, giving one half to the Indians,
and driving the white people from it, and their slaves also.f
* Resolved, That tlie Secretary at War, to whom was referred the letter from
Major Wyllis, of the 16th instant, direct the commanding officer of the troops of the
United States on the Ohio, to take immediate and efficient measures for dispossessing
a body of men who have, in a lawless and unauthorized manner, taken possession of
port St. Vincent's (Vincenues), in defiance of the proclamation and authority of the
United States, and that he employ the whole, or such part of the force under his com
mand, as he shall judge necessary to accomplish the object. — Journal of the old Con
gress, 1787.
f The last instance of this kind, and a strong one it was, was in the year 1828,
when the organized Territory of Arkansas was amputated ; a slip 40 miles wide and
300 long, with its counties and settlements, was cut off and transferred to the Cherokee
Indians, and the inhabitants, with their herds, and flocks, and slaves, were driven from
their homes. The boundaries of the Territory had been fixed by Congress in 1824: ;
the Indian title had been extinguished ; it was open to settlement, laid off into counties,
and Courts held in them by judges appointed by the United States. Yet by a treaty
with the Cherokees, it was agreed to give up these 12,000 square miles to the Chero-
kees, and " to remove all white persons, and also all others, from the west of said line,
. ETC. 129
Such is the power which Congress exercises over its territory,
and with which the Constitution has nothing to do.
To sum up, in a few words, the results of this Examination,
and to present the conclusions under a single view, and it is
shown that the Constitution was not made for Territories, and
does not include them — that it cannot be extended to them by
law, and if it could, would be barren and fruitless without law
to put it into operation — that no law could be made under it to
give any help to the slaveholder, either in recovering his pro
perty, if the slave ran away, or in bringing back for justice the
fugitive felon that should steal it; or in getting protection from
the Federal Government against revolt, or in that acknowledg
ment of property in the slave which results from his federal
taxation. In no one of these cases, nor in any other one which
can be imagined, can any law be made under the Constitution
to help the slave-owner, for every provision in that instrument
which relates to slavery is confined to States ; and the owner
must be thrown upon the ordinance of 1787, and the power of
Congress, independent of the Constitution, for every species of
protection which he may need about that property.
I have performed an unpleasant task, but unavoidable. I
have been on the kindest personal terms with the judges, and
in my long senatorial service, and as part of the appointing
power, have cordially given my voice for the elevation of each
of them to the honorable stations they hold — for every one ex
cept Mr. Justice Curtis, appointed since the termination of my
service. I am a friend to the Supreme Court as an institution —
as a high and essential part of our system — and would not will
ingly derogate from its respect, or impair its utility. But the
whole system, of which it is a part, and the whole people, of
whom its members are a few, are overruling considerations;
and the evil of the late decision being actually upon us, going
and keep them away." And this treaty, against an urgent opposition, was ratified by
Southern votes, and carried into effect by Southern votes in the House of Representatives,
to the almost ruin of the State of Arkansas, reducing her to a state of the middle or
small class, when, from her frontier position, national policy required her to be strong
and powerful, with which view her boundaries were fixed in 1824. The people were
driven off, and Congress afterwards made them indemnity in other land, but that came
from the bounty of Congress, and was no contract with the people who were driven
off, as any proprietor might drive people from his land.
9
130 EXAMINATION OF THE SUPEEME COUKT's DECISION, ETC.
into parties,* entering into elections, giving the rule for the ap
pointment of all future federal judges, establishing a new party
test, bringing the federal judiciary into the vortex of federal
politics, and developing still more strongly the geographical line
which divides us ; seeing all these evils now upon us, and others
to come, I have found it impossible to remain silent, or to have
said less. I am among the last of those who, acting with the
generations that are passed, still adhere to their teachings. I
labor to preserve what they established, lamenting that the task
had not fallen into abler hands. A few years earlier, and the
preservation of the Missouri Compromise would have found its
adequate defender in one of its greatest architects, and the in
tegrity of the Constitution would have found its champion in
its great expounder ; but Clay and Webster are gone ; and, before
them, went Pinkney and Lowndes, gloriously identified with the
work which recent hands have just torn down. And of those
who survive, and who stood by them in their great efforts, and
still stand where they stood, I am one of the few — no longer in
power, but still in armor when the works of our fathers are in
danger. I write for no party, but for all men who venerate the
works of our ancestors, and who wish to see our Government
kept on the foundations on which they placed it.
* So entirely has it gone into parties, that it is often a question (along the borders
of the free and slave line) of profit, or loss, to adopt or denounce it. In one case, on
the north side of the line, which I noted, the convention found itself in a state of im
possibility from the inability to determine on which side the loss or gain would be.
One delegate proposed its adoption, because it would give them strength to the South ;
another objected that they would lose more in the North than they would gain in the
South. And opinions being about equally balanced, the upshot was, that the decision
was neither adopted nor condemned !
APPENDIX.
I.
PROPOSED EXTENSION OF THE CONSTITUTION OF THE UNITED STATES TO
THE TERRITORIES, WITH A YIEW TO MAKE IT CARRY SLAVERY INTO CALI
FORNIA, UTAH, AND NEW MEXICO.
(From the Thirty Years' View : Vol. II., Chap. 182.)
THE treaty of peace with Mexico had been ratified in the session
of 1847-'4:8, and all the ceded Territory became subject to our
Government, and needing the immediate establishment of terri
torial governments : but such were the distractions of the slavery
question, that no such governments could be formed, nor any law
of the United States extended to these newly acquired and or
phan dominions. Congress sat for six months after the treaty
had been ratified, making vain efforts to provide governments
for the new Territories, and adjourning without accomplishing
the work. Another session had commenced, and was coming
to a close with the same fruitless result. Bills had been intro
duced, but they only gave rise to heated discussion. In the last
days of the session, the civil and diplomatic appropriation bill,
commonly called the general appropriation bill — the one which
provides annually for the support of the Government, and with
out the passage of which the Government would stop, came up
from the House to the Senate. It had received its considera
tion in the Senate, and was ready to be returned to the House,
when Mr. "Walker, of Wisconsin, moved to attach to it, under
the name of amendment, a section providing a temporary govern
ment for the ceded Territories, and extending an enumerated
list of acts of Congress to them. It was an unparliamentary
and disorderly proposition, the proposed amendment being in
congruous to the matter of the appropriation bill, and in plain
violation of the obvious principle which forbade extraneous
matter, and especially that which was vehemently contested,
132 APPENDIX.
from going into a bill upon the passage of which the existence
of the Government depended. The proposition met no favor ;
it would have died out if the mover had not yielded to a south
ern solicitation to insert the extension of the Constitution into
his amendment, so as to extend that fundamental law to those
for whom it was never made, and where it was inapplicable,
and impracticable. The novelty and strangeness of the propo
sition called up Mr. Webster, who said :—
" It is of importance that we should seek to have clear ideas and
correct notions of the question which this amendment of the member
from Wisconsin has presented to us ; and especially that we should seek
to get some conception of what is meant by the proposition, in a law, to
' extend the Constitution of the United States to the Territories.' Why,
sir, the thing is utterly impossible. All the legislation in the world, in
this general form, could not accomplish it. There is no cause for the
operation of the legislative power in such a manner as that. The Con
stitution — what is it ? We extend the Constitution of the United States
by law to Territory ! What is the Constitution of the United States ?
Is not its very first principle, that all within its influence and compre
hension shall be represented in the legislature which it establishes, with
not only a right of debate and a right to vote in both Houses of Con
gress, but a right to partake in the choice of the President and Vice
President ? And can we by law extend these rights, or any of them, to
a Territory of the United States ? Every body will see that it is alto
gether impracticable. It comes to this, then, that the Constitution is
to be extended as far as practicable ; but how far that is, is to be decided
by the President of the United States, and therefore he is to have abso
lute and despotic power. He is the judge of what is suitable, and what
is unsuitable ; and what he thinks suitable is suitable, and what he
thinks unsuitable is unsuitable. He is ' omnis in hoc ; ' and what is
this but to say, in general terms, that the President of the United States
shall govern this Territory as he sees fit till Congress makes further
provision. Now, if the gentleman will be kind enough to tell me what
principle of the Constitution he supposes suitable, what discrimination
he can draw between suitable and unsuitable which he proposes to fol
low, I shall be instructed. Let me say, that in this general sense there
is no such thing as extending the Constitution. The Constitution is
extended over the United States, and over nothing else. It cannot be
extended over any thing except over the old States and the new States
that shall come in hereafter, when they do come in. There is a want
of accuracy of ideas in this respect that is quite remarkable among
APPENDIX. 133
eminent gentlemen, and especially professional and judicial gentlemen.
It seems to be taken for granted that the right of trial by jury, the
habeas corpus, and every principle designed to protect personal liberty,
is extended by force of the Constitution itself over every new Territory.
That proposition cannot be maintained at all. How do you arrive at
it by any reasoning or deduction ? It can be only arrived at by the
loosest of all possible constructions. It is said that this must be so,
else the right of the habeas corpus would be lost. Undoubtedly these
rights must be conferred by law, before they can be enjoyed in a Ter
ritory."
It was not Mr. Walker, of Wisconsin, the mover of the propo
sition, that replied to Mr. Webster : it was the prompter of the
measure that did it, and in a way to show immediately that this
extension of the Constitution to Territories was nothing but a
new scheme for the extension of slavery. Denying the power
of Congress to legislate upon slavery in Territories — finding
slavery actually excluded from the ceded Territories, and desir
ous to get it there — Mr. Calhoun, the real author of Mr. Walk
er's amendment, took the new conception of carrying the Con
stitution into them ; which arriving there, and recognizing
slavery, and being the supreme law of the land, it would over
ride the anti-slavery laws of the Territory, and plant the insti
tution of slavery under its ^Egis, and above the reach of any
territorial law, or law of Congress to abolish it. He, therefore,
came to the defence of his own proposition, and thus replied to
Mr. Webster :—
" I rise, not to detain the Senate to any considerable extent, but to
make a few remarks upon the proposition first advanced by the Senator
from New Jersey, fully endorsed by the Senator from New Hampshire,
and partly endorsed by the Senator from Massachusetts, that the Con
stitution of the United States does not extend to the Territories. That
is the point. I am very happy, sir, to hear this proposition thus asserted,
for it will have the effect of narrowing very greatly the controversy be
tween the North and the South as it regards the slavery question in con
nection with the Territories. It is an implied admission on the part of
those gentlemen, that, if the Constitution does extend to the Territories,
the South will be protected in the enjoyment of its property — that it
will be under the shield of the Constitution. You can put no other in
terpretation upon the proposition which the gentlemen have made, than
that the Constitution does not extend to the Territories. Then the
134: APPENDIX.
simple question is, does the Constitution extend to the Territories, or
does it not extend to them ? Why, the Constitution interprets itself.
It pronounces itself to be the supreme law of the land."
When Mr. Webster heard this syllogistic assertion, that the
Constitution being the supreme law of the land, and the Terri
tories being a part of the land, ergo the Constitution being ex
tended to them would be their supreme law : when he heard
this, he called out from his seat — " What land f" Mr. Calhoun
replied, saying : —
" The land ; the Territories of the United States are a part of the
land. It is the supreme law, not within the limits of the States of this
Union merely, but wherever our flag waves — wherever our authority
goes, the Constitution in part goes, not all its provisions certainly, but
all its suitable provisions. Why, can we have any authority beyond the
Constitution ? I put the question solemnly to gentlemen ; if the Con
stitution does not go there, how are we to have any authority or juris
diction whatever ? Is not Congress the creature of the Constitution ;
does it not hold its existence upon the tenure of the continuance of the
Constitution ; and would it not be annihilated upon the destruction of
that instrument, and the consequent dissolution of this confederacy ?
And shall we, the creature of the Constitution, pretend that we have
any authority beyond the reach of the Constitution ? Sir, we were told,
a few days since, that the courts of the United States had made a decision
that the Constitution did not extend to the Territories without an act
of Congress. I confess that I was incredulous, and am still incredulous
that any tribunal, pretending to have a knowledge of our system of gov
ernment, as the courts of the United States ought to have, could have
pronounced such a monstrous judgment. I am inclined to think that it
is an error which has been unjustly attributed to them ; but if they
have made such a decision as that, I for one say, that it ought not and
never can be respected. The Territories belong to us ; they are ours ;
that is to say, they are the property of the thirty States of the Union ;
and we, as the representatives of those thirty States, have the right
to exercise all that authority and jurisdiction which ownership carries
with it."
Mr. Webster replied, with showing that the Constitution was
made for States, not Territories — that no part of it went to a
Territory unless specifically extended to it by act of Congress —
that the Territories from first to last were governed as Congress
APPENDIX. 135
chose to govern them, independently of the Constitution, and
often contrary to it, as in denying them representatives in Con
gress, a vote for President and Vice President, the protection
of the Supreme Court : — that Congress was constantly doing
things in the Territories without constitutional objection (as
making mere local roads and bridges), which could not be at
tempted in a State. He argued :—
" The Constitution, as the gentleman contends, extends over the
Territories. How does it get there ? I am surprised to hear a gentle
man so distinguished as a strict constructionist, affirming that the Con
stitution of the United States extends to the Territories, without showing
us any clause in the Constitution in any way leading to that result ; and
to hear the gentleman maintaining that position without showing us any
way in which such a result could be inferred, increases my surprise.
" One idea further upon this branch of the subject. The Constitu
tion of the United States extending over the Territories, and no other
law existing there ! Why, I beg to know how any government could
proceed, without any other authority existing there than such as is
created by the Constitution of the United States ? Does the Constitu
tion of the United States settle titles to land ? Does it regulate the
rights of property ? Does it fix the relations of parent and child, guar
dian and ward ? The Constitution of the United States establishes what
the gentleman calls a confederation for certain great purposes, leaving all
the great mass of laws which is to govern society to derive their exist
ence from State enactments. That is the just view of the state of things
under the Constitution. And a State or Territory that has no law but
such as it derives from the Constitution of the United States, must be
entirely without any State or territorial government. The honorable
Senator from South Carolina, conversant with the subject as he must be,
from his long experience in different branches of the Government, must
know that the Congress of the United States have established principles
in regard to the Territories that are utterly repugnant to the Constitu
tion. The Constitution of the United States has provided for them an
independent judiciary ; for the judge of every court of the United States
holds his office upon the tenure of good behavior. Will the gentleman
say that in any court established in the Territories, the judge holds his
office in that way ? He holds it for a term of years, and is removable
at Executive discretion. How did we govern Louisiana before it was a
State ? Did the writ of habeas corpus exist in Louisiana during its
territorial existence ? Or the right to trial by jury ? Who ever heard
of trial by jury there before the law creating the territorial government
136 APPENDIX.
gave the right to trial by jury ? No one. And I do not believe that
there is any new light now to be thrown upon the history of the pro
ceedings of this Government in relation to that matter. When new ter
ritory has been acquired it has always been subject to the laws of Con
gress — to such laws as Congress thought proper to pass for its immediate
government ; for its government during its territorial existence, during
the preparatory state in which it was to remain until it was ready to
come into the Union as one of the family of States."
All tins was sound constitutional law ; or, rather, was vera
cious history, showing that Congress governed as it pleased in
the Territories, independently of the Constitution, and often con
trary to it ; and consequently, that the Constitution did not
extend to it. Mr. Webster then showed the puerility of the
idea that the Constitution went over the Territories because they
were " land" and exposed the fallacy of the supposition that
the Constitution, even if extended to a Territory, could operate
there of itself, and without a law of Congress made under it.
This fallacy was exposed by showing that Mr. Calhoun, in
quoting the Constitution as the supreme law of the land, had
omitted the essential words which were part of the same clause,
and which couples with that supremacy the laws of Congress
made in pursuance of the Constitution. Thus :—
" The honorable Senator from South Carolina argues that the Con
stitution declares itself to be the law of the land, and that, therefore, it
must extend over the Territories. ' The land,' I take it, means the land
over which the Constitution is established, or, in other words, it means
the States united under the Constitution. But does not the gentleman
see at once that the argument would prove a great deal too much ?
The Constitution no more says that the Constitution itself shall be the
supreme law of the land, than it says that the laws of Congress shall be
the supreme law of the land. It declares that the Constitution and the
law of Congress passed under it shall be the supreme law of the land."
The question took a regular slavery turn, Mr. Calhoun avow
ing his intent to be to carry slavery into the Territories under
the wing of the Constitution, and openly treated as enemies to
the South all that opposed it. Having taken the turn of a
slavery question, it gave rise to all the dissension of which that
subject had become the parent since the year 1835. By a close
vote, and before the object had been understood by all the Sena-
APPENDIX. 137
tors, the amendment was agreed to in the Senate, but imme
diately disagreed to in the House, and a contest brought on
between the two Houses by which the great appropriation bill,
on which the existence of the Government depended, was not
passed until after the constitutional expiration of the Congress
at midnight of the third of March, and was signed by Mr. Polk
(after he had ceased to be President) on the 4th of March — the
law and his approval being antedated of the 3d, to prevent its
invalidity from appearing on the face of the act. Great was the
heat which manifested itself, and imminent the danger that
Congress would break up without passing the general appro
priation bill ; and that the Government would stop until a new
Congress could be assembled — many of the members of which
remained still to be elected. Many members refused to vote
after midnight — which it then was. Mr. Cass said : — •
" As I am among those who believe that the term of this session has
expired, and that it is incompetent for us now to do business, I cannot
vote upon any motion. I have sat here as a mere looker on. I merely
desire to explain why I took no part in the proceedings."
Mr. Yulee, of Florida, moving an adjournment, said : —
" I should be very sorry, indeed, to make any proposition which may
in any degree run counter to the general sentiment of the Senate ; but
I feel bound, laboring under the strong conviction that I do, to arrest
at every step, and by every means, any recorded judgment of the Senate
at a time when we are not legally engaged in the discharge of our sena
torial duties. I agree entirely in the view taken by the Senator from
Michigan."
Mr. Turney, of Tennessee, said : —
" I am one of those who believe that we have no right to sit here.
The time has expired ; one-third of this body are not present at all, and
the others have no right to sit here as a part of Congress. But a mo
tion has been made for adjournment, and the presiding officer has refused
to entertain that motion. This being the case, I must regard all that
is done as done in violation of the Constitution, or rather not in pur
suance of it. It appears to me that we sit here more in the character
of a town meeting than as the Senate of the United States, and that
what we do is no more binding on the American people than if we did
138 APPENDIX.
it at a town meeting. I snail express no opinion by saying yea or nay
on the question before the Senate. At the same time, I protest against
it, as being no part of the constitutional proceedings of the Senate of
the United States."
Mr. Benton, and many others, declined to vote. The House
of Kepresentatives had ceased to act, and sent to the Senate the
customary message of adjournment. The President, who, ac
cording to the usage, had remained in the Capitol till midnight
to sign bills, had gone home. It was four o'clock in the morn
ing of the fourth, and the greatest confusion and disorder pre
vailed. Finally Mr. Webster succeeded in getting a vote, by
which the Senate receded from the amendment it had adopted,
extending the Constitution to the Territories ; and that reces
sion leaving the appropriation bill free from the encumbrance
of the slavery question, it was immediately passed.
This attempt, pushed to the verge of breaking up the Gov
ernment in pursuit of a newly invented slavery dogma, was
founded in errors too gross for misapprehension. In the first
place, as fully shown by Mr. Webster, the Constitution was not
made for Territories, but for States. In the second place, it
cannot operate any where, not even in the States for which it
was made, without acts of Congress to enforce it. This is true
of the Constitution in every particular. Every part of it is in
operative until put into action by a statute of Congress. The
Constitution allows the President a salary ; he cannot touch a
dollar of it without an act of Congress. It allows the recovery
of fugitive slaves : you cannot recover one without an act of
Congress. And so of every clause it contains. The proposed
extension of the Constitution to Territories, with a view to its
transportation of slavery along with it, was then futile and nu
gatory, until an act of Congress should be passed to vitalize
slavery under it. So that, if the extension had been declared
by law, it would have answered no purpose except to widen the
field of the slavery agitation — to establish a new point of con
tention — to give a new phase to the embittered contest — and to
alienate more and more from each other the two halves of the
Union. But the extension was not declared. Congress did not
.extend the Constitution to the Territories. The proposal was
rejected in both Houses ; and immediately the crowning dogma
APPENDIX. 139
is invented, that the Constitution goes of itself to the Territories
without an act of Congress, and executes itself, so far as slavery
is concerned, not only without legislative aid, but in defiance
of Congress and the people of the Territory. This is the last
slavery creed of the Calhoun school, and the one on which his
disciples now stand — and not with any barren foot. They ap
ply the doctrine to existing Territories, and make acquisitions
from Mexico for new applications. It is impossible to consider
such conduct as any thing else than as one of the devices for
"forcing the issue with the Nwtli" which Mr. Calhoun in his
confidential letter to the member of the Alabama Legislature
avows to have been his policy since 1835, and which he avers
he would then have effected, if the members from the slave
States had stood by him.
ii.
THE SLAVERY AGITATION: DISUNION: KEY TO ME. CALHOUN'S POLICY:
FORCING THE ISSUE: MODE OF FOECING IT.
(From the Thirty Years1 View : Vol. II., Chap. 168.)
IN the course of this year (1847), and. some months after the
submission of his resolutions in the Senate denying the right of
Congress to abolish slavery in a Territory, Mr. Calhoun wrote
a letter to a member of the Alabama Legislature, which furnishes
the key to unlock his whole system of policy in relation to the
slavery agitation, and its designs, from his first taking up the
business in Congress, in the year 1835, down to the date of the
letter ; and thereafter. The letter was in reply to one asking
his opinion " as to the steps which should be taken " to guard
the rights of the South ; and was written in a feeling of personal
confidence to a person in a condition to take steps ; and which
he has since published to counteract the belief that Mr. Calhoun
was seeking the dissolution of the Union. The letter disavows
such a design, and at the same time proves it — recommends
forcing the issue between the North, and the South, and lays
down the manner in which it should be done. It opens with
this paragraph : —
" I am much gratified with the tone and views of your letter, and
140 APPENDIX.
concur entirely in the opinion you express, that instead of shunning, we
ought to court the issue with the North on the slavery question. I
would even go one step further, and add that it is our duty — due to
ourselves, to the Union, and our political institutions, to force the issue
on the North. "VVe are now stronger relatively than we shall be here
after, politically and morally. Unless we bring on the issue, delay to
us will be dangerous indeed. It is the true policy of those enemies who
seek our destruction. Its effects are, and have been, and will be to
weaken us politically and morally, and to strengthen them. Such has
been my opinion from the first. Had the South, or even my own State
backed me, I would have forced the issue on the North in 1835, when
the spirit of abolitionism first developed itself to any considerable extent.
It is a true maxim, to meet danger on the frontier, in politics as well as
war. Thus thinking, I am of the impression, that if the South act as it
ought, the Wilmot Proviso, instead of proving to be the means of suc
cessfully assailing us and our peculiar institution, may be made the
occasion of successfully asserting our equality and rights, by enabling us
to force the issue on the North. Something of the kind was indispen
sable to rouse and unite the South. On the contrary, if we should not
meet it as we ought, I fear, greatly fear, our doom will be fixed. It
would prove that we either have not the sense or spirit to defend our
selves and our institutions."
The phrase " forcing the issue " is here used too often, and
for a purpose too obvious, to need remark. The reference to
his movement in 1835 confirms all that was said of that move
ment at the time by Senators from both sections of the Union,
and which has been related in chapter 131, vol. i., of the Thirty
Years Yiew. At that time Mr. Calhoun characterized his
movement as defensive — as done in a spirit of self-defence : it
was then characterized by Senators as aggressive and offensive :
and it is now declared in this letter to have been so. lie was
then openly told that he was playing into the hands of the
abolitionists, and giving them a champion to contend with, and
the elevated theatre of the American Senate for the dissemina
tion of their doctrines, and the production of agitation and sec
tional division. All that is now admitted, with a lamentation
that the South, and not even his own State, would stand by him
then in forcing the issue. So that chance was lost. Another
was now presented. The Wilmot Proviso, so much deprecated
in public, is privately saluted as a fortunate event, giving an
other chance for forcing the issue. The letter proceeds : —
APPENDIX. 141
" But in making up the issue, we must look far beyond the proviso.
It is but one of many acts of aggression, and, in my opinion, by no means
the most dangerous or degrading, though more striking and palpable."
In looking beyond the proviso Mr. Calhoun took up the re
cent act of the General Assembly of Pennsylvania, repealing
the slave sojournment law within her limits, and obstructing
the recovery of fugitive slaves, saying : —
" I regard the recent act of Pennsylvania, and laws of that descrip
tion, passed by other States, intended to prevent or embarrass the
reclamation of fugitive slaves, or to liberate our domestics when travel
ling with them in non-slaveholding States, as unconstitutional. Insulting
as it is, it is even more dangerous. I go further, and hold that if we
have a right to hold our slaves, we have a right to hold them in peace
and quiet, and that the toleration, in the non-slaveholding States, of the
establishment of societies and presses, and the delivery of lectures, with
the express intention of calling in question our right to our slaves, and
of seducing and abducting them from the service of their masters, and
finally overthrowing the institution itself, is not only a violation of in
ternational laws, but also of the Federal compact. I hold, also, that
we cannot acquiesce in such wrongs, without the certain destruction of
the relation of master and slave, and without the ruin of the South."
Hie acts of Pennsylvania here referred to are justly com
plained of, but with the omission to tell that these injurious acts
were the fruit of his own agitation policy, and in his own line
of forcing issues ; and that the repeal of the sojournment law,
which had subsisted since the year 1780, and the obstruction of
the fugitive slave act, which had been enforced since 1793, only
took place twelve years after he had commenced slavery agita
tion in the South, and were legitimate consequences of that
agitation, and of the design to force the issue with the North.
Ttie next sentence of the letter reverts to the "Wilmot Proviso,
and is of momentous consequence as showing that Mr. Calhoun,
with all his public professions in favor of compromise and con
ciliation, was secretly opposed to any compromise or adjust
ment, and actually considered the defeat of the proviso as a mis
fortune to the South. Thus : —
" With this impression, I would regard any compromise or adjust-
142 APPENDIX.
ment of the proviso, or even its defeat, without meeting the danger in
its whole length and breadth, as very unfortunate for us. It would lull
us to sleep again, without removing the danger, or materially diminish
ing it."
So that, while this proviso was, publicly, the Pandora's box
which filled the Union with evil, and while it was to Mr. Cal-
houn and his friends the theme of endless deprecation, it was
secretly cherished as a means of keeping up discord, and forcing
the issue between the North and the South. Mr. Calhoun then
proceeds to the serious question of disunion, and of the manner
in which the issue could be forced.
" This brings up the question, how can it be so met, without resort
ing to the dissolution of the Union ? I say without its dissolution, for
in my opinion, a high and sacred regard for the Constitution, as well as
the dictates of wisdom, make it our duty in this case, as well as all others,
not to resort to, or even to look to that extreme remedy, until all others
have failed, and then only in defence of our liberty and safety. There
is, in my opinion, but one way in which it can be met ; and that is the
one indicated in my letter to Mr. , and to which you allude in
yours to me, viz., by retaliation. Why I think so, I shall now proceed
to explain."
Then follows an argument to justify retaliation, by represent
ing the Constitution as containing provisions, he calls them
stipulations, some in favor of the slaveholding, and some in
favor of the non-slaveholding States, and the breach of any of
which, on one side, authorizes a retaliation on the other ; and
then declaring that Pennsylvania and other States have violated
the provision in favor of the slave States in obstructing the re
covery of fugitive slaves, he proceeds to explain his remedy,
saying : —
" There is and can be but one remedy short of disunion, and that is
to retaliate on our part, by refusing to fulfil the stipulations in their
favor, or such as we may select, as the most efficient. Among these, the
right of their ships and commerce to enter and depart from our ports is
the most effectual, and can be enforced. That the refusal on their part
would justify us to refuse to fulfil on our part those in their favor, is
too clear to admit of argument. That it would be effectual in compelling
them to fulfil those in our favor can hardly be doubted, when the iin-
APPENDIX. 143
mense profit they make by trade and navigation out of us is regarded ;
and also the advantages we would derive from the direct trade it would
establish between the rest of the world and our ports."
Retaliation by closing the ports of the State against the
commerce of the offending State : arid this called a constitu
tional remedy, and a remedy short of disunion. It is, on the
contrary, a flagrant breach of the Constitution, and disunion it
self, and that at the very point which caused the Union to be
formed. Every one acquainted with the history of the formation
of the Federal Constitution, knows that it grew out of the single
question of commerce — the necessity of its regulation between
the States to prevent them from harassing each other, and with
foreign nations to prevent State rivalries for foreign trade. To
stop the trade with any State is, therefore, to break the Union
with that State ; and to give any advantage to a foreign nation
over a State, would be to break the Constitution again in the
fundamental article of its formation ; and this is what the retali
atory remedy of commercial non-intercourse arrives at — a double
breach of the Constitution — one to the prejudice of sister States,
the other in favor of foreign nations. For immediately upon
this retaliation upon a State, and as a consequence of it, a great
foreign trade is to grow up with all the world. The letter pro
ceeds with further instructions upon the manner of executing
the retaliation : —
" My impression is, that it should be restricted to sea-going vessels,
which would leave open the trade of the valley of the Mississippi to
New Orleans by river, and to the other Southern cities by railroad ;
and tend thereby to detach the North-western from the North-eastern
States."
This discloses a further feature in the plan of forcing the
issue. The North-eastern States were to be excluded from
Southern maritime commerce : the North-western States were
to be admitted to it by railroad, and also allowed to reach New
Orleans by the Mississippi River. And this discrimination in
favor of the North-western States was for the purpose of detach
ing them from the North-east. Detach is the word. And that
word signifies to separate, disengage, disunite, part from : so
that the scheme of disunion contemplated the inclusion of the
North-western States in the Southern division. The State of
APPENDIX.
Missouri was one of the principal of these States, and great
efforts were made to gain her over, and to beat down Senator
Benton who was an obstacle to that design. The letter concludes
by pointing out the only difficulty in the execution of this plan,
and showing how to surmount it.
" There is but one practical difficulty in the way ; and that is, to
give it force, it will require the co-operation of all the slaveholding
States lying on the Atlantic Gulf. Without that, it would be ineffective.
To get that is the great point, and for that purpose a convention of the
Southern States is indispensable. Let that be called, and let it adopt
measures to bring about the co-operation, and I would underwrite for
the rest. The non-slaveholding States would be compelled to observe
the stipulations of the Constitution in our favor, or abandon their trade
with us, or to take measures to coerce us, which would throw on them
the responsibility of dissolving the Union. Which they would choose,
I do not think doubtful. Their unbounded avarice would, in the end,
control them. Let a convention be called — let it recommend to the
slaveholding States to take the course advised, giving, say one year's
notice, before the acts of the several States should go into effect, and
the issue would fairly be made up, and our safety and triumph certain."
This is the only difficulty — the want of a co-operation of all
the Southern Atlantic States : and to surmount that, the indis-
pensability of a convention of the Southern States is fully de
clared. This was going back to the starting point — to the year
1835 — when Mr. Calhoun first took up the slavery agitation in
the Senate, and when a convention of the slaveholding States
was as much demanded then as now, and that twelve years be
fore the Wilmot Proviso— twelve years before the Pennsylvania
unfriendly legislation — twelve years before the insult and out
rage to the South, in not permitting them to carry their local
laws with them to the Territories, for the protection of their
slave property. A call of a Southern convention was as much
demanded then as now ; and such conventions often actually
attained ; but without accomplishing the object of the prime
mover. No step could be got to be taken in those conventions
towards dividing and sectionalizing the States, and after a vain
reliance upon them for seventeen years, a new method has been
fallen upon : and this confidential letter from Mr. Calhoun to a
member of the Alabama Legislature of 1S±7, has come to light,
APPENDIX. 145
to furnish the key which unlocks his whole system of slavery
agitation which he commenced in the year 1835. That system
was to force issues upon the North under the pretext of self-
defence, and to sectionalize the South, preparatory to disunion,
through the instrumentality of sectional conventions, composed
wholly of delegates from the slaveholding States. Failing in
that scheme of accomplishing the purpose, a new one was fallen
upon, which will disclose itself in its proper place.
in.
EEVIEW OF PRESIDENT PIEECE'S ANNUAL MESSAGE TO CONGEESS, OF DE
CEMBER, 1856, SO FAE AS THE SAME RELATES TO THE ABROGATION OF
THE MISSOURI COMPROMISE ACT: WITH A VIEW TO EXPOSE AND CORRECT
ITS ERRORS OF FACT AND OF LAW.
I ENTER upon this task with the declaration that I believe this
part of the message to have been written by Mr. Pierce's law
officer, (Mr. Caleb Gushing,) dominated by his Secretary at
"War, (Mr. Jefferson Davis,) and that Mr. Pierce is not obnoxious
to the strictures I am forced to make, and is only culpable in
covering with his name the fallacious statements of others.
And with this salvo in behalf of an innocent man, I proceed to
the review of the message, first presenting a specimen of the
epithets which are lavished upon the act, (and by consequence
on its authors,) the abrogation of which is the subject of so
much laudation and joy. "A mere nullity," "unconstitu
tional," " no obligatory force," " an imperfection on the statute
book," " objectionable enactment," " a monument of error,"
" a beacon of warning." " a dead letter in law," " injurious,"
" conferring no right," " taking away no right," " affecting no
sense of permission or prohibition," " a nullity permitted to re
main for some years on the statute book," " no moral force,"
" its repeal a matter of form, being dead of itself," " the statute
book rightfully relieved by its repeal of an unconstitutional,
injurious, objectionable enactment :" such are the terms (a
sample of the quality and a fraction of the quantity) which the
message piles up on this healing and pacifying measure of 1820,
as if it was intended by a mere accumulation of odious epithets
to " crush out " an act which was balm to the wounds of the
10
146 APPENDIX.
country at the time of its enactment, arid peace and safety to a
distracted Union, for nearly thirty years afterwards. And to
whom do these epithets apply ? To the twenty-four senators,
headed hy Pinkney, of Maryland, the jurist and orator, and to
the one hundred and thirty-four representatives, headed by
Clay and Lowndes, and to the administration of Mr. Monroe, to
whom the country was indebted for that beneficent act. To
these men these epithets apply. These are the men stigmatized
in the message as dolts and ninnies, foolish, if not wicked, and
barely escaping the imputation of criminality in consideration
of their ignorance and folly. But the stigmatizing does not stop
there : it reaches back to Washington, to his cabinet, and the
entire Congress of 1789 : for Washington and that Congress, in
adopting the ordinance of '87, adopted that slavery clause,
which, being copied into the Missouri act, has given rise to all
this vituperation of this measure, and to all this exultation over
its repeal. Nor does the obloquy stop there, but reaches the
President, the cabinet, and the Congress of 1845, all of whom,
re-enacting the Missouri Compromise, become subject to the
obloquy which the message lavishes upon that measure. All
these, and the whole body of the American people, who ac
cepted the act, come in for their share of these fine epithets :
but there is certainly one who ought to have been excepted,
one, who being twice the supporter of the vituperated act, (in
Mr. Monroe's cabinet and Tyler's cabinet,) ought to have es
caped denunciation, and who, although he had forgotten that
support in 1848, could not make Mr. Monroe's letter forget it ;
nor Mr. Adams's diary forget it ; nor the index to the papers
filed in the department of State forget it ; nor make his own
speech of 1838 forget it. This gentleman ought to have been
excepted, both as the supporter of the Missouri Compromise in
1820, and of its re-enactment in 1845; and as the favorite states
man of the party which the message represents. And now to
the review.
It is a law of Providence, from which there are but few de
viations, and of which the abrogation of the Missouri Compro
mise has given occasion for the largest modern illustration, that
those who commit a great wrong are condemned, during the
remainder of their lives, to the painful task of inventing excuses
and justifications for the delinquent act. So in this case ; since
APPENDIX. 147
the month of May, 1854, when this deed was done, its authors
have been in a permanent state of excuse and justification ; and
being many, and in possession of the Government, and with
the control of many newspapers, and the right of composing
official papers and public documents, they have plied the public
mind with incessant repetition of these justificatory pieces, each
an improvement upon its predecessor in all the qualities which
the defence of so bad a cause requires ; undaunted mendacity,
moral callosity, mental obliquity, Old Bailey attorney perver
sions of law and evidence. The last annual message of Mr.
Pierce was the last opportunity for this defensive pleading, and
being the last, it was carefully seized on, and vigorously im
proved to the best advantage. The message was big with it.
It was a large plea, and a bold one, and conspicuously presented.
In quantity it filled eleven octavo pages, (leaving but seventeen
for all the appropriate subjects which belong to that official
paper ;) in boldness, it inaugurated a new era in our Presidential
messages — the era of historical falsification in those high papers,
heretofore considered the sacred receptacle of veracious history ;
in conspicuity, being thrust into the front of the message, in
stead of being relegated to its fag-end, where such low matter
should go, if, indeed, allowed to enter a message at all ; which
it never was before. Veracious history must rebuke this first
attempt to make the Presidential annual message a vehicle of
historical falsification ; and the work is easily done, all the facts'
necessary to the correction of the fallacious statements being of
record in the debates and journals of Congress, and other au
thentic public evidence. These misstatements, after a prelimi
nary one to usher in the others, arrange themselves under three
heads : first, in what relates to the formation of the Missouri
Compromise ; secondly, in what relates to its abrogation ;
thirdly, in what relates to the present state of parties, and their
respective shares in producing the present agitation.
This preliminary misstatement is the assumption,that the issue
of the last Presidential election was a national ratification of the
abrogation of the Missouri Compromise. No assumption could be
more unfounded. That election proved just the reverse of what
has been assumed. It was intended that it should be so, (in the
nomination and election of some one of the prominent destroyers
of the compromise,) and the Convention at Cincinnati was
148 APPENDIX.
gorged with office-holding retainers of the administration for
that purpose : but no such destroyer of the compromise could
be nominated; and no one of them could have been elected if
nominated. It was the trump argument in favor of Mr. Bu
chanan, that he was not one of these destroyers ; and, although
known to " acquiesce " in the deed after it was done, yet his
long and most conspicuous championship of that measure, and
his geographical position, led to the belief that he would not
improve upon its abrogation, nor complete its iniquities by
lending himself to the ulterior designs of its authors. That
belief, and the discredit brought upon his opponent by the
support of some violent men, (and it is the violent always who
impress character upon a party,) who preached against the ex
istence of slavery in the States — against the admission of any
more slave States — and against the compromises of the Consti
tution and of the ordinance of '87, for the surrender of fugitive
slaves : it was this belief, and this discredit, which turned the
scales in the election ; and it required all that both these cardinal
causes could do to elect Mr. Buchanan. This is public, unde
niable truth; and it requires a courageous and veteran disregard
of the laws of veracity to assume the contrary, as the message
is made to do.
And now for the enactment of the Missouri Compromise,
which the message very properly styles "a political enact
ment," as it certainly is ; and then gives this account of it :—
" The enactment, which established the restrictive geographical line,
was acquiesced in rather than approved by the States of the Union. It
stood on the Statute Book, however, for a number of years ; and the
people of the respective States acquiesced in the re-enactment of the
principle as applied to the State of Texas ; and it was proposed to ac
quiesce in its further application to the territory acquired by the United
States from Mexico. But this proposition was successfully resisted by the
representatives from the Northern States, who, regardless of the statute
line, insisted upon applying restriction to the new territory generally,
whether lying north or south of it, thereby repealing it as a legislative
compromise, and, on the part of the North, persistently violating the
compact, if compact there was. Thereupon this enactment ceased to
have binding virtue in any sense, whether as respects the North or the
South ; and so in effect it was treated on the occasion of the admission
of the State of California, and the organization of the Territories of New
Mexico, Utah, and Washington."
APPENDIX. 149
This paragraph is characteristic, ana exemplifies all the
modes of conveying untruths which long ages have invented :
direct assertion, fallacious inference, equivocal phrase, and false
inuendo. The word " restrictive " has no application to the
Compromise Act. It applied exclusively to the State of Mis
souri, and the attempt to restrain her, as a State, from the ad
mission of slaves. The compromise, was a territorial measure,
applying exclusively to territory, and establishing, not a re
strictive, but a partition line ; a line of territorial division, upon
the principle of the division of the South-west and North- west
Territory by the old Congress in 1787, and sanctioned by the
new Congress in 1789. The principle of each was the same,
and the dividing line so nearly the same, that the Louisiana line
may stand for a continuation of the north-west line, making
about equal division, until the South gave away nearly the
whole of hers. A compromise is agreed to ; a restriction is im
posed ; and it is falsifying the character of the act of 1820 to
call it restrictive. The power of each House of Congress agreed
to it ; the negative in each was inconsiderable.
Then comes a litter of unfounded suggestions, implied in
the word " acquiesce," three times repeated in six lines, and
every time pregnant with a fallacious implication — each more
glaring than the other. It is the lawyer-like way of saying
what Mr. Calhoun said pointedly, that the Missouri Compromise
was imposed upon the South by the North, and only acquiesced
in because too weak to relieve herself. For it is as notorious
as that the South exists, that both these compromises — that by
which Missouri and Arkansas became admitted as slave States,
and that of 1845 by which Texas (and four more slave States to be
made out of her territory) became admitted — were measures of the
South, carried by her votes, and the votes of her friends in the
free States ; and that, in each case, she was so determined upon
the measure as to threaten secession from the Union if it was
not obtained. This is matter of public history ; and therefore,
the mendacity of these three implications, in six lines, becomes
too flagrant to admit of comment, or to require proof. We pro
ceed to another, the Southern proposal to extend the Missouri
Compromise line to the Pacific, or, in the language of the
message, "to acquiesce" in the extension; and its defeat by
Northern votes. In the first place, that extension was resisted
150 APPENDIX.
by others as well as by Northern votes — resisted by all Southern
men opposed to planting slavery in new places — and vehemently
by Mr. Clay, who repulsed the proposition indignantly when
pushed at him by Mr. Davis of Mississippi, declaring, with an
emphasis which electrified the Senate, that no power on earth
should ever make him vote for slavery in any place where it
did not already exist. For that was the nature of the vote in
volved in this insidiously proposed extension — being directly
the reverse of voting for the same line in the ancient Louisiana.
Astronomically, the lines were the same : politically, they were
opposite : one running through territory all slave, and making
one-half free ; the other running through territory all free, and
making one-half slave. Call this extended line the same ! You
o
had as well call black and white the same. And this, in fact,
is what the message is made to do, with a reproach to all
Northern men who would not agree to spread slavery over the
broad expanse of all that half of California, New Mexico and
Utah, which lies south of 36° 30' ; and it is for not agreeing to
convert this great extent of old free soil into new slave soil, that
these Northern representatives are thus chid and reproached in
the message. Certainly, Mr. Gushing would not so have re
buked them in the year 1836, when he was opposing the admis
sion of Arkansas as a slave State ; * or, in the year 1838, when,
with Mr. Slade, of Vermont, and with all the abolitionists in the
* The extraordinary circumstances under which I rise to address the Committee,
impel me to brevity and succinctness ; but they would afford me no justification for a
passive acquiescence in the admission of Arkansas into the Union, with all the sins of
its constitution upon its head. The constitution of Arkansas contains a provision,
forbidding the legislature to emancipate slaves without the consent of the owner, and
forbidding it to pass any law to prevent slaveholders with their slaves from emigrating
to the State. This provision of the constitution of Arkansas is condemned by those I
represent as anti-republican, as wrong on general principles of civil polity, and as
unjust to the inhabitants of the non-slaveholding States. I concur in reprobating
such a clause. I cannot, by any vote of mine, ratify or sanction a constitution of
government which undertakes in this way to foreclose in advance the progress of
civilization and of liberty for ever. The gentleman from Virginia (Mr. Wise), who I
cheerfully admit is always frank and honorable in his course upon this floor, has just
declared that, as a Southern man, he had felt it to be his duty to come forward and
take a stand in behalf of an institution of the South. That institution is slavery. In
like manner I feel it to be my duty, as a Northern man, to take a counter stand in
conservation of one among the dearest of the institulions of the North. This institution
is liberty." — Mr. Gushing* s Speech against the admission of Arkansas.
APPENDIX. 151
House of Representatives, by his efforts to abolish slavery in
the District of Columbia, he drove the Southern members to
secession from the floor of the House, to consult in a committee
room in the basement of the Capitol, upon the decisive step of
returning to their constituents. *
Then comes the fundamental falsehood which lies at the
foundation of the attack on the Missouri Compromise, affirming
that it had been virtually repealed by the negative action of
Congress in 1850, in refusing to extend the compromise line to
the Pacific, and in refusing to legislate upon slavery in Califor
nia, New Mexico, Utah and Washington — Washington, as the
message says ; though there was no Territory of Washington at
that time, and the territory which afterwards composed it, had
been included in the legislation on Oregon, of which it was a
part ; and from which that institution was excluded. But, take
the statement as it stands, and judge it upon its words ; and for
that purpose it must be given in its own words : for nothing but
itself ca» do justice to itself in the exhibition of such legerde
main in handling law and facts. And here it is : —
" But this proposition was successfully resisted by the represen
tatives from the Northern States, who, regardless of the statute line,
insisted upon applying restriction to the new territory generally, whether
lying north or south of it, thereby repealing it as a legislative compro
mise, and, on the part of the North, persistently violating the compact,
if compact there was. Thereupon this enactment ceased to have bind
ing virtue in any sense, whether as respects the North or the South ;
•and so in effect it was treated on the occasion of the admission of the
State of California, and the organization of the Territories of New
Mexico, Utah and Washington."
Here is a farrago of law and fact for you — a sample of asser
tion and inference — which ignores truth, reason, common sense,
and law logic. A refusal to extend a line is, to repeal it : a
refusal to act upon slavery in Territories where it was already
* Of the sixty-three members of the House who pertinaciously hacked Mr. Slade
during the two days that the struggle continued, one was Mr. Caleb Gushing, then as
zealous to abolish slavery in the District of Columbia (for the motion was to instruct
a committee to bring in a peremptory bill for that purpose) as he has since shown
himself active to abolish all impediments to the general territorial diffusion of slavery —
even in the old free territory, once a part of the empire of Montezuma.
152 APPENDIX.
abolished by Mexican law is, to violate the Missouri Compact —
if there was one. The admission of the State of California with
her free constitution, and the organization of the Territories of
Utah and JSTew Mexico, without excluding slavery where it was
already excluded, was, in effect, to deprive the Missouri Com
promise of binding virtue in any sense ; and, consequently, to
authorize the Congress of 1854 to rub it out of the statute book
as being a dead thing, put to death by the Congress of 1850.
Happily for the inventors of all this false assertion and prepos
terous inference, Mr. Clay was dead before they found out that
he had, in his compromise measures of 1850, destroyed the
Missouri Compromise of 1820. He was not the man to hear
such a libel upon himself without instantly blasting, with his
indignant invective, both the foul imputation, and its luckless
author. But no one of these destroyers of that compromise
was so unlucky as to subject himself to the lightning of that
reply. They had too much discretion for that. They waited
four years for him to be dead, and buried, before the foul im
putation was cast upon him : an imputation sufficient to start
his spirit from the grave. I was a member of that Congress of
1850, and saw what was done : I was a close observer of his
compromise measures, and know what they were : I have ex
amined them all since, and find that I was not mistaken in my
recollection of them. And upon all this knowledge, and upon
the measures themselves as they now stand on the statute book,
I take upon myself to affirm, that the assertion that the}- re
pealed, or impaired in any way, the Missouri Compromise Act,
is one of the most unfounded assertions which ever fell from
the lips of man.
\ The assertion is, that the compromise measures of 1850
repealed the Missouri Compromise, and established the doctrine
of non-interference with slavery in Territories. This repeal, it
has been seen, was effected by refusing to extend the line to
the Pacific Ocean — certainly a new way of repealing a statute !
and the non-interference will be found to be worthy to take its
place by the side of such an invention. Certain it is that Con
gress did not legislate upon slavery in any Territory in 1850 ;
but why ? precisely because there was no room for legislation !
because the question was then settled, by law, in every inch
square of territory belonging to the United States! and settled
APPENDIX. 153
to the satisfaction of Congress, and as it was intended to remain
for ever, and to be, what was then called, " a finality ! " It
was settled every where ; in the remnant of the old North-west
Territory, by the ordinance of '87, re-enacted by the act of
Congress of 1789 ; in all the Territory of Louisiana, by the
Missouri Compromise line ; in Oregon, by her own organic
act, and by the act of her organization, extending the ordinance
of '87 to her ; in California, by her State constitution ; in Utah
and New Mexico, by the laws of Mexico, abolishing slavery
there before their cession to the United States ; in Texas, by the
terms of her admission, allowing her to come in with her slave
constitution, and the right to form four more slave States out of
her territory. This closed up the question every where. It
left not one inch square of territory in the United States open
to the slavery question. There was no way to get at the question,
then, but by breaking down a law ; and this was what neither
Mr. Clay, nor Congress would do. In his plan of compromise
measures, he reviewed the Question of slavery in the Territories,
and showed it to be settled every where, and refused to unsettle
it any where, for the purpose of settling it over again. "With
respect to Utah and New Mexico, the second of the resolutions
submitted by him expressly declared that slavery did not exist
there — that it was abolished by the laws and constitution of
Mexico, and would remain abolished until those laws were re
pealed by Congress — and that it was unnecessary and inexpedient
" to adopt any restriction or condition on the subject of slavery."
This was the non-intervention of 1850. It was the non-inter
vention which respects existing law ! which would not abolish
law, to get at the slave institution in these Territories, either to
restrict, or allow it; or to set the people themselves to quarrelling
and fighting about it. It was the non-intervention of submission
to law ; and to quote it as a precedent and authority for abro
gating the Missouri Compromise, was to unsettle what had been
settled for thirty-four years by that compromise. And the
clear lesson taught by the measures of 1850 was, that Congress
would not repeal a law to re-open the hideous slavery question.
That is the lesson taught ! non-interference with existing laws !
and upon this lesson the Congress of 1854 has felt itself called
upon to do just the contrary of what that teaches — to break
down one of the most sacred and extensive of these benign
154: APPENDIX.
laws, and to revive the slavery agitation which had been so
well and so long settled before. This is what the Congress of
•54 did ! just the reverse of what the conduct of the Congress
of 1850 taught — breaking up the "finality" then established-
setting the people to fighting in the Territories — and bringing
the question back into Congress under the pretence of keeping
it out of Congress, when it was already out, and no way to get
it in again except by breaking down a law. Such is the inven
tion, as barefaced as wicked, to which the repealers have had
recourse to justify their destruction of the Missouri Compromise
— a crime in itself, and doubled by laying it on an innocent
party ; but they found it no easy matter to come up to this
invention. Long it was before they conceived it, and various
the forms under which it appeared before it took the shape on
which all rallied and stood ; but of this hereafter.
II. \Ve come now to the second head of this Review, namely,
the manner, (modus operandi^) in wThich the repeal of the Mis
souri Compromise was effected, the suddenness of the turn
against that measure, and the unanimity with which all took
the track after its repeal was determined upon, and the excuse
provided for it. To do this it will be necessary to go back a
year — to the end of the previous session of Congress — and see
how the question of repeal stood then ; see how the party stood
affected towards the compromise at that time. This will be
done by giving the words of one who is authority upon this
point — Mr. Atchison, of Missouri — and who, in coming into the
support of the then impending Nebraska Bill upon the basis of
the compromise, thus expressed himself : —
" I will now state to the Senate the views which induced me to op
pose this proposition in the early part of the session. I had two objec
tions to it. One was that the Indian title to that Territory had not been
extinguished, or at least a very small portion of it had been. Another
was the Missouri Compromise, or, as it is commonly called, the slavery
restriction. It was my opinion at that time — and I am now very clear
on that subject — that the law of Congress when the State of Missouri
was admitted into the Union, excluding slavery from the Territory of
Louisiana north of 36°, 30', would be enforced in that Territory unless
it was specially rescinded ; and whether that law was in accordance with
the Constitution of the United States or not, it would do its work ; and
that work would be to preclude slaveholders from going into that Terri-
APPENDIX. 155
tory. But when I came to look into that question, I found there was
no prospect — no hope — of a repeal of the Missouri Compromise exclu
ding slavery from that Territory. Now, sir, I am free to admit that
at this moment, at this hour, and for all time to come, I should oppose
the organization or the settlement of that Territory, unless my constitu
ents, and the constituents of the whole South, of the slave States of the
Union, could go into it upon the same footing, with equal rights and
equal privileges, and carrying that species of property with them as
other people of this Union. Yes, sir, I acknowledge that that would
have governed me ; but I have no hope that the restriction will ever be
repealed. I have always been of opinion that the first great error com
mitted in the political history of this country, was the ordinance of
1787, rendering the North-western Territory free territory. The next
great error was the Missouri Compromise. But they are both irreme
diable. There is no remedy for them. We must submit to them. I
am prepared to do so. It is evident that the Missouri Compromise
cannot be repealed. So far as that question is concerned, we might as
well agree to the admission of this Territory now as next year, or five,
or ten years hence."
So spoke Mr. Atchison ; and from these multiplied declara
tions of no hope for the repeal of the Missouri Compromise, and
from the declaration that, unless specially repealed, it would
exclude slaves from the Territory, we are allowed to draw two
conclusions. First : That no idea of ever repealing the Missouri
Compromise then existed. Secondly: That no idea that the
compromise measures of 1850 had repealed, or impaired that
line, then existed. These are two important points necessary to
be known, in order to understand the subsequent movement.
It was on a motion to take up the Nebraska Bill, and put it on
its passage, that Mr. Atchison made these remarks. Mr. Doug
lass, the reporter of the bill, was present, and urgent to take it
up, and pass it, saying : " That it was a bill very dear to his
heart — that for eight long years he had been trying to get it
through — and that, in his anxiety to pass it, he would yield his
privilege of speaking, that he might get an immediate vote."
But others would speak : it was the last night of the session,
when discussion was fatal to any bill. It was not taken up.
If it had been, it would certainly have passed ; and if it had,
the American people would never have heard of the repeal of
the Missouri Compromise, either as a direct act in 1854, or as
156 APPENDIX.
the effect of tlie compromise measures of 1850 — albeit two-
thirds of the Senate, and nearly all of those engaged in the sub
sequent repeal were present ! not one recollecting that the com
promise had been dead for three years ! and deprived of life by
themselves !
This was the end of Mr. Fillmore's administration. His suc
cessor, Mr. Pierce, found the country in the most happy arid
tranquil state ; peace and prosperity at home and abroad, and
slavery agitation stone dead. Felicitating himself upon this
delightful state of the country, he made it a topic of national
congratulation in his first annual message, and thus dilated upon
the happy auspices which saluted his nascent administration :—
" We are thus not only at peace with all foreign countries, but in
regard to political affairs, are exempt from any cause of serious disqui
etude in our domestic relations. The controversies which have agitated
the country heretofore, are passing away with the causes that produced
them, and the passions they had awakened; or, if any trace of them re
mains, it may be reasonably hoped that it will only be perceived in the
zealous rivalry of all good citizens to testify their respect for the rights
of the States, their devotion to the Union, and their common determi
nation that each one of the States, its institutions, its welfare, and its
domestic peace, shall be held alike secure under the sacred segis of the
Constitution."
Such was the picture of the national felicity, at home and
abroad, which. Mr. Pierce drew in his first annual message.
* O
Slavery agitation extinct ; its causes and its passions all gone ;
no trace of it remaining ; and the only contention among the
people a zealous rivalry in showing devotion to the Union, re
spect for the rights of the States, and regard for their domestic
institutions. It was a charming picture, and faithfully drawn,
and universally greeted with joy ; for never, since the first term
of Washington's administration, had there been such a political
millennium in our country as then reigned. The message did
right to exult-over it : — but, oh ! how sadly this lovely picture,
drawn, no doubt, by the President's own hand, contrasts with
the hideous one prepared for him by others in his last annual
message, and which it required eleven pages to describe.
At this session of Congress, the first under Mr. Pierce's ad
ministration, Mr. Douglass renewed his Nebraska Bill, being
for the ninth time, and still on the basis of respect and perpetu-
APPENDIX. 157
ity to the Missouri Compromise Act — a proof that, up to that
time, he had no idea of its repeal by the compromise measures
of 1850, or any suspicion that it had been in any way affected
by those measures, then three years old, and certainly long
enough in force for their effect to be known. The bill was re
ferred to a Committee, which returned it with what appears
to have been a unanimous report, reciting that there was a con
troversy about the validity of the Missouri Compromise Act ;
some eminent statesmen holding it to be null and void under the
Constitution, and others holding the act to be valid ; and conclu
ding with declaring that the Committee did not feel itself called
upon to engage in the discussion of these disputed points, and
that it was not prepared to recommend either the repeal or the
affirmation of the Missouri Compromise Act; or to declare the
meaning of the Constitution with respect to the disputed point,
to wit : the power of Congress to prohibit slavery in a Terri
tory. The following is the language of the report on these
points : — •
" In the opinion of some eminent statesmen, who hold that Congress
is invested with no rightful authority to legislate upon the subject of
slavery in the Territories, the 8th section of the act preparatory to the
admission of Missouri into the Union is null and void ; while the pre
vailing sentiment in large portions of the Union sustains the doctrine
that the Constitution of the United States secures to every citizen an
inalienable right to move into any of its Territories with his property,
of whatsoever kind and description, and to hold and enjoy the same under
the sanction of law. Your committee do not feel themselves called
upon to enter into the discussion of these controverted questions. They
involve the same issues which produced the agitation, the sectional
strife, and the fearful struggle of 1850. As Congress deemed it wise
and prudent to refrain from deciding the matters in controversy then,
either by affirming or repealing the Mexican laws, or by an act declara
tory of the true intent of the Constitution, and the extent of the pro
tection afforded by it to slave-property, so your committee are not pre
pared to recomnfeud a departure from the course pursued on that memo
rable occasion, either by affirming or repealing the 8th section of the
Missouri act, or by any act declaratory of the meaning of the Con
stitution in respect to the legal points in dispute."
This report was made January 4th, 1854 ; and up to that
day it is seen that the eminent committee which made it saw
158 APPENDIX.
no repeal of the Missouri Compromise Act in the measures of
1850 — saw no occasion to recommend its repeal — no occasion
to declare the meaning of the Constitution with respect to sla
very in Territories. They abstain from doing any of these
things, and for a solid and patriotic reason, which, they state ;
and which addresses itself to the best feelings of all the friends
of the Union. It was, because the discussion of these points
" involved the same grave issues which produced the agitation,
the sectional strife, and the fearful struggle of 1850. " Solid,
and patriotic reasons for not engaging in such business, and good
for all time. The struggle of 1850 was indeed fearful, and por
tended the immediate dissolution of the Union. One of those
conventions which commenced in 1830, and which have TDC-
come an institution of the South, and which Mr. Madison qual
ified as " insidious," had then assembled at Nashville, Tennes
see — taken the question of union, or disunion, into its hands —
and were openly passing measures for the separation and segre
gation of the Southern States. The compromise measures of
1850, being received as a "finality" by the country, checked
this parricidal work ; and the committee, of whose report we
speak, acted wisely and patriotically in not touching those
questions which " produced the agitation, the sectional strife,
and the fearful struggle of 1850 ; " and in not disturbing those
compromise measures of that year which allayed that agitation,
composed that strife, and terminated that fearful struggle. The
committee which made the report was strongly Southern in its
composition — one half from the slave States — the other half
(except one) as strongly Southern as the South itself on all the
slavery issues ; and unanimous in the report. They were :
Messrs. Douglass, of Illinois, chairman ; Houston, of Texas ;
Johnson, of Arkansas ; Bell, of Tennessee ; Jones, of Iowa ;
and Everett of ^Massachusetts. The report was so acceptable to
the Senate that, as soon as it was read, the large number of
5,000 extra copies were ordered to be printed for the use of the
body — that is to say, for the Senators to distribute among the
citizens of the States, for their information of the manner in
which the Senate was keeping out of its chamber the portentous
issues which had so lately convulsed the country.
This report was received as cordially outside of the Senate
as in it. All the friends of the Administration applauded it.
APPENDIX. 159
The Daily Union, — the administration paper, its organ, —
and in which several members of the cabinet habitually wrote,
was most encomiastic in its favor ; and not merely in favor of
the report, but of the Senator who drew it, applauding him for
the " sound, national, and Union-loving sentiments with which
it abounds." The report itself was immediately published in
full in the official paper, and earnestly commended to the care
ful perusal of every democrat, with the declaration that the
President and cabinet all approved it. And this laudation be
came more and more intense from day to day, until it took the
form of fierce censures " against the whigs and abolitionists,"
who were against it, because they wanted to embarrass the ad
ministration — and a rebuking caution to such Southern demo
crats as showed a disposition to bring " an angry element of
discord into the halls of legislation." The occasion for these
censures and admonitions was this : Mr. Dixon, a whig Senator
from Kentucky, gave notice on the 16th of January, that when
the bill came up for consideration he should move to add a sec
tion to it, repealing the Missouri Compromise Act of 1820 ;
and Mr. Sumner, a free-soil Senator from Massachusetts, gave
notice on the other hand, that he would at the same time move
an amendment affirming that compromise. Both these propo
sitions were immediately denounced by the Daily Organ in
terms, not only of condemnation, but of opprobrium — thus :
" Two propositions have been made in the Senate — one by Sen
ator Dixon, a whig, and the other by Senator Sumner, an abo
litionist — which indicate that the bill, as proposed by Mr. Doug
lass, is to be vigorously assailed. Mr. Dixon proposes to amend
it, by a clause expressly repealing the act of 1820, commonly
known as the Missouri Compromise. Mr. Sumner proposes to
amend it, by expressly declaring that the Missouri Compromise
is to be continued in force." Thus, these two propositions were
immediately denounced, and the democratic party warned
against them. They were met as hostile. They indicated as
sault (and vigorous assault) upon the bill of Mr. Douglass ; and
to aggravate the nature of this assault, as if not bad enough in
itself, it was carefully noted that these propositions came from
a whig and an abolitionist. The Daily Union, by way of commend
ing Mr. Douglass's bill and report, went on to declare Mr. Cass's
perfect satisfaction with it, and to deprecate the reopening of the
160 APPENDIX.
slavery question, as proposed by the whig and abolition Sena
tors, It gave its opinion of the effect of their propositions,
saying : " Mr. Dixon's amendment would stir up excitement on
one side, whilst Mr. Sumner's will effect the like object on the
other : and as whigism and abolitionism have every thing to
gain, and nothing to lose, the upshot may be that the agitation
may enure to the benefit of the common opposition of the demo
cratic party." These remarks of the Organ are as significant
as explicit. The proposed amendments are to stir up excite
ment, and to produce agitation ; and this excitement and agita
tion, it is apprehensively expressed, may enure to the benefit
of the enemies of democracy. The Organ then proceeds to
counsel adherence to the bill and . report of Mr. Douglass — to
let well enough alone — and, in that phrase, to let the Missouri
Compromise alone. In this sense, it thus discoursed : "In a
word, it would be wise in all democrats to consider whether it
would not be safest to let well enough alone." And then goes
on to say — " The repeal of the Missouri Compromise might,
and, according to our view, wrould, clear the principle of Con
gressional non-intervention of all embarrassment ; but we doubt
whether the good thus promised is so important, that it would
be wise to seek it through the agitation which necessarily stands
in our path." And upon this view of the consequences of dis
turbing the compromise — inevitable agitation — and upon this
doubt of profit or loss to the democratic party in rousing that
agitation, the Daily Union deems it " safest," and " wisest," to
let well enough alone — that is to say, let the Missouri Compro
mise stand untouched, as proposed in Mr. Douglass's bill and re
port. And to this effect were several articles, and sometimes
as high as seven in one paper, all denouncing the whig and
abolition propositions of Mr. Dixon and Mr. Simmer, and re-
enforcing its denunciations by constantly assuming to speak the
sentiments of the President, his cabinet, and the democratic
party.
But it would seem that Mr. Dixon's proposition inflamed the
hopes of some Southern members who wished for the direct re
peal of the compromise, and who began to object to Mr. Doug
lass's bill and report, for not going far enough ; and these the
Daily Organ undertook to restrain and pacify, by addressing to
them a sort of curtain lecture — a mixture of expostulation, per-
APPENDIX. 161
suasion, and menace. In tins vein it thus discoursed in its issue
of the 17th of January : " If any portion of the South demands
more than is granted in this plan of settlement, the demand is
preposterous. We sincerely trust the democratic party in Con
gress, representing all sections of the Confederacy, will, without
permitting an angry element of discord to enter the halls of leg
islation, unite in adopting a measure which commands the ap
proval of a vast preponderance of the American people." This
appeal to the " South" — or rather, to a portion of the South —
is every word of it significant. In the first place, to give weight
to its exhortation, the Organ declares its own sincerity in trust
ing that no one of the democratic party, from any section of
the Union, will indulge in a demand -which it stigmatizes as
" preposterous." It deprecates the entrance into the halls of
legislation of the angry element of discord which the attempt
ed repeal of the Missouri Compromise would involve, and calls
for all to " unite " in the adoption of Mr. Douglass's bill and re
port. And to give weight to this exhortation to unity in the
whole democratic party, the Organ emerges from the mere pre
cincts of the party, and takes post upon the whole American
people ! declaring the measures to have a vast preponderance
of this whole people ! And here the date is as important as the
words, showing how the question stood up to the eve of the cri
sis ; it was the 17th of January — that is to say, twelve days after
Mr. Douglass's report had been made, and six days before the
unforeseen catastrophe that history will have to record. In the
same vein, the Daily Organ again wrote three days afterwards,
to wit, on the 20th, under the head, in capitals, " MISSOURI COM
PROMISE," when it said : " We trust that we shall not be con
sidered officious in noting the fact, that the proposition in the
Senate for the amendment of Mr. Douglass's bill has proceeded
from members of the two parties who are irreconcilably op
posed to democratic ascendency." And again, on the 22d,
" The settlement of the question involved in the Nebraska Bill,
calls for the exercise of that spirit of conciliation and forbear
ance by which alone sectional issues can be amicably and satis
factorily adjusted."
Thus, up to the morning of the 22d day of January, the
President and the cabinet, (according to the Daily Union,) the
democratic party, and a vast majority of the whole American
11
162 APPENDIX.
people, were opposed to disturbing the Missouri Compromise —
and none but abolitionists and whigs were for that disturbance —
and thus to excite agitation, and to bring an angry element of
discord into the halls of legislation. But these quotations are
but a sample of the articles to this effect diurnally appearing in
the administration paper for seventeen days, and by all of
which Mr. Douglass's plan was made an administration measure,
supported by all true democrats, and only opposed by whigs
and abolitionists.
But the ides of March were approaching — close at hand —
and the event to take place of which there were no portents in
the political horizon.
Mr. Douglass had got the Nebraska Bill (for up to this time
that is the only name it bore) recommitted to the Committee
which had reported it, and had got Monday, the 23d day of
January, fixed as the day for its consideration ; but when the
day came, that bill, instead of being taken up for consideration,
as agreed upon, was dropped from the calendar of the Senate ;
and two bills in one, called a substitute, for two Territories, rose
up in its place. It was an apparition which required explana
tion — and received it. Mr. Douglass rose to ask leave to make
a report from the Committee on Territories ; and leave being
given, he reported a substitute for the bill which he had report
ed on the 5th of the month, and after stating the reasons for
making two Territories instead of one, went on to speak of what
he termed "the more delicate questions" it involved, in this
wise : " We have also incorporated in it one or two other amend
ments, which make the provisions of the bill upon other and
more delicate questions, more clear and specific, so as to avoid
all conflict of opinion." Without stating what these " delicate "
amendments were, he moved that the substitute be printed —
which motion prevailing, necessarily postponed the considera
tion of the substitute bills until the printing could be accom
plished. Mr. Douglass had said that the substitute had come
from the Committee : to make sure on that point, Mr. Mason,
of Virginia, addressed a question to Mr. Douglass, thus : " I
did not hear the honorable Senator from Illinois distinctly, and
I wish to know whether the amendment he now proposes as a
substitute is reported from the Committee ? " To which Mr.
Douglass answered in two words, of two letters each, "It is;"
APPENDIX. 163
and the answer may be said to include the whole of the Com
mittee, except Mr. Everett, of Massachusetts, as he alone, in the
course of the proceedings, showed himself to be in opposition
to it. And at this point the proceedings for the day stopped—
110 one inquiring what these delicate amendments, which had
been so gingerly * alluded to, might be.
The 24:th came, and Mr. Douglass asked for the considera
tion of his substitute bill — a bill to organize the Territories of
Nebraska and Kansas ; and by that title the bill was subse
quently known. Several Senators objected to taking up the
bill so suddenly, and asked for a week's delay — among them
Mr. Cass. Mr. Dixon also was in favor of the delay, giving the
manly reason that there ought to be time for all to understand
the measure proposed. In this sense Mr. Dixon spoke, conclu
ding with giving his idea of what the "delicate" amendment
was, thus :—
" The amendment, which I notified the Senate I should offer at a
proper time, has been incorporated by the Senator from Illinois into the
bill which he has reported to the Senate. The bill, as now amended,
meets my views, and I have no objection to it. I shall, at the proper
time, as far as I am able to do so, aid and assist the Senator from Illi
nois, and others who are anxious to carry through this proposition, with
the feeble abilities I may be able to bring to bear upon it."
With this declaration, Mr. Dixon formally withdrew his
proposition for the repeal of the Missouri Compromise Act, and
Mr. Douglass formally accepted his exposition of its meaning ;
and the consideration of the bill was then postponed for a week.
Mr. Dixon advocated this postponement, saying :—
" I think it due to the Senate that they should have an opportunity
of understanding precisely the bearings and the effect of the amend
ment which has been recently incorporated into the bill — I mean that
portion of the amendment which alludes to slavery in the Territories
proposed to be organized — Nebraska and Kansas. So far as I am indi
vidually concerned, I am perfectly satisfied with the amendment reported
by the Senator from Illinois, and which has been incorporated into the
bill. If I understand it, it reaches a point I am most anxious to
attain — that is to say, it virtually repeals the act of 1820, commonly
* Used in the primitive sense of the word ; nicety, cautiously.
164 APPENDIX.
called the Missouri Compromise Act, which declares that slavery shall
not exist north of 36 degrees 30 minutes, north latitude."
This " delicate " amendment was very daintily and circui-
tously expressed, coming in the way of exception to the exten
sion of the Constitution and laws of the United States to the
two Territories, and because superseded by the Compromise
measures of 1850, and become inoperative. Thus :—
" The Constitution, and all laws of the United States, not locally
inapplicable, shall have the same force and effect in the said Territory,
as elsewhere in the United States, except the eighth section of the act
preparatory to the admission of Missouri into the Union, approved
March 6th, 1820, which was superseded by the principles of the legisla
tion of 1850, commonly called the Compromise measures, and is de
clared inoperative."
This mode of repeal was satisfactory to Mr. Dixon, but it was
not so to those who drew it, or some of those who would have
to support it. It was too glaringly absurd and false for them to
go to trial upon it. The Missouri Act " superseded by the
principles of the legislation of 1850." The assertion was as un
true in fact as in logic, and would so appear at the first touch
of examination. Holding the affirmative of the assertion, its
authors would be called upon for the proof, and required to
show the principle which "superseded" an old Act of Congress
of thirty-four years' standing. That could not be done ; on the
contrary, it would appear, from all the legislation of Congress
of that year, that the Missouri Compromise Act remained un
touched — neither extended nor contracted in length, nor en
larged or diminished in its application, nor interfered with by
any enactment. It became necessary, therefore, to drop this
" superseding," and change it into " inconsistent ; " and also to
introduce the principle of " non-intervention," and to add the
word " void " to " inoperative ; " and then to add a little stump
speech to explain what all this meant. Thus altered, the re
pealing enactment, as eventually settled down upon, ran in these
words : —
" The Constitution, and all laws of the United States which are not
locally inapplicable, shall have the same force and effect within the said
Territory of Nebraska as elsewhere in the United States, except the
eighth section of the act preparatory to the admission of Missouri into
APPENDIX. 165
the Union, approved March 6th, 1820, which, being inconsistent with
the principle of non-intervention by Congress with slavery in the States
and Territories, as recognized by the legislation of 1850, commonly
called the Compromise measures, is hereby declared inoperative and
void ; it being the true intent and meaning of this act not to legis
late slavery into any Territory or State, nor to exclude it therefrom,
but to leave the people thereof perfectly free to form and regulate their
domestic institutions in their own way, subject only to the Constitution
of the United States."
And thus, three years after the event, and by a sort of polit
ical coroner's inquest, the Missouri Compromise Act was found
to be dead, and killed by those who (in much part) composed
the jury ; and who, for so long a time, had remained ignorant
of what they had done.
This was the final form which the repealing clause took ;
and the variations it underwent, with its circumlocutions and
ambiguities, show the infinite trouble its authors had in cook
ing up something which would make the repeal without saying
so, and throw upon others the odium of an abrogation which
they had the will but not the face to make. Though not so
glaringly absurd and false as the first edition of the " delicate "
amendment, it was more crooked and circuitous — equally un
founded in fact and inference — equally false and unjust in
making the Congress of 1850 the scape-goat of its own sin —
and dishonorable to the name of legislation, by the little stump
speech which is stuck into its belly. Fairly interpreted, and this
novel method of enactment signifies that they found the Mis
souri Compromise repealed three years before, and therefore
they would repeal it over again — about as bad a plea in legisla
tion as in the administration of justice. For, a plea from a
man arraigned for a homicide, that he found the man dead and
O '
killed him over again, would not be admitted as a good plea in
any court, either of law or conscience. And yet of that nature
is the plea for repealing the Missouri Compromise.
This amended amendment, in a substitute bill, brings for
ward the principle of " non-intervention " on the subject of
slavery in Territories, and finds it established in the legislation
of 1850 ! — which legislation established directly the contrary.
That legislation, in plain language, refused to pass any provision
on the subject of slavery in the Territories acquired from Mex-
166 APPENDIX.
ico, either admitting or prohibiting it, Because slavery was
already abolished there l)y the laws of Mexico. It would not
prohibit slavery there, because it was already prohibited. It
would not repeal that law to admit slavery, because it would not
plant slavery where it did not exist. It would not repeal the
law and say nothing, because that would be to unsettle the
question where it was already settled, and settled to the satis
faction of a great majority of Congress, and of the people of
the United States. This was the " non-intervention " of the
legislation of 1850 ! Not intervene to break down a law to
open the slavery question where it was settled, and set people
to quarrelling and fighting about it. That was the non-inter
vention (if the absurd term must be used where there was no
thing to get between), and on this point one shall speak whose
voice will be potential, and from the grave rebuke those who
libel his memory in quoting him falsely, to justify the destruc
tion of a measure which it was one of the glories of his life to
have promoted.
I speak of Mr. Clay, and of his report and speeches on his
compromise measures of 1850, and in which he has spoken for
himself with a clearness and precision which admits of no mis
understanding.
His report, embracing all his compromise measures, con
cluded with digesting their substance into seven resolutions,
presented for the adoption of the Senate, the second one of
which applied to the point now under examination, and was in
these words :—
" Resolved, That as slavery does not exist by law, and is not likely
to be introduced into any of the territory acquired by the United
States from the Republic of Mexico, it is inexpedient for Congress to
provide by law, either for its introduction into, or exclusion from, any
part of the said territory; and that appropriate territorial govern
ments ought to be established by Congress in all of the said territory,
not assigned as the boundaries of the proposed State of California,
without the adoption of any restriction or condition on the subject of
slavery."
This was the principle of Mr. Clay's non-intervention, as it is
called. It was non-interference ! Non-interference to unsettle
slavery where it was settled ! It was non-interference with the
APPENDIX. ,167
law which settled it ! and there was no clap-trap blarney about
leaving the inhabitants of the Territories to regulate their domes
tic institutions as they pleased. There was no explanatory
stump speech in it to declare its true intent and meaning. That
true intent and meaning was placed at the head of the resolu
tion, and showed that Congress would not interfere with slavery
in these Territories, because, by law, it was already prohibited
there. This is what the resolve says, and the same sentiment
was reiterated in the speech which recommended its adoption
to the Senate. Every where in his speeches and reports his
non-interference was put upon that ground ; and many Senators,
in voting against the "Wilmot proviso, gave the express reason
for their vote, that there was no necessity for it, for the Mexican
laws had put an end to slavery there, and that further legisla
tion to that effect was supererogation. And thus the interference
of 1850 was a refusal to break down a law to open the question
of slavery ; and that is quoted in 1854 as authority for doing
precisely the contrary. The little stump speech which was put
into the act about not legislating slavery in or out of the Terri
tory, and leaving the people free to regulate their domestic in
stitutions, could only deceive those who forgot the first word of
the amendment — the extension of the Constitution to the Terri
tory! — carrying along with it (according to the doctrine of
those who put it there) African slavery in the most inexorable
form ! — beyond the power of Congress, or of the people in the
Territory to keep it out ! And this was the crooked, ambigu
ous, falsely pretexted, and contradictory mode of repealing the
Missouri Compromise, which the substitute bill of Mr. Douglass
so " delicately " provided.
The report and speech of Mr. Clay — his resolve submitted to
the Senate for its vote — is a sufficient vindication of himself, his
measures, and the legislation of 1850, from the imputation cast
on them ; but there is another authority, equally potent in this
case, to make the same vindication : it is the report of Mr.
Douglass made at the first introduction of his bill, as heretofore
quoted. That report, after reciting that there was a dispute
about the Mexican laws, as there was about the Missouri Com
promise, went on to applaud the wisdom and prudence of the
Congress of 1850 in refraining from deciding that dispute,
" either hy affirming or repealing the Mexican laws y " which is
168 APPENDIX.
the exact truth. The Congress of 1850 would not interfere with
that Mexican law. And that non-interference, after being first
quoted in the report to justify non-interference with the Mis
souri Compromise, is afterwards quoted in the amended amend
ment of the substitute bill, as a precedent and authority for re
pealing the Missouri act. The first quotation was right; the
second, flagrantly false.
The Dixon w^hig amendment was now incorporated in the
democratic substitute bill, but without any of the manliness
which belonged to it when offered by the whig Senator. His
amendment was direct and to the point, without any of the cir
cumlocutions, excuses, justifications, bolsterings, explanations,
recommendations, and reference to others, which imply a con
sciousness of wrong which requires defence before it is attacked.
It went direct to the repeal of the Missouri Compromise, and to
the admisson of slavery into all the Territories of the United
States, while the substitute went to the same effect, but circui-
tously, crookedly, apologetically, and argumentatively ; and im
proving in its reasons as it advanced, the second substitute being
a large emendation of the first, and both in flat contradiction of
the original bill and report, upon which all democrats had been
required to stand and to fight, under the penalty of political ex
communication, and future classification with whigs and aboli
tionists. For the sake of convenient comparison, I here repro
duce, and in juxtaposition, the four shifting phases of this legis
lative luminary :—
FIRST PHASE. — " In the opinion of some eminent statesmen, who
hold that Congress is invested with no rightful authority to legislate
upon the subject of slavery in the Territories, the eighth section of the
act preparatory to the admission of Missouri into the Union, is null and
void ; while the prevailing sentiment in large portions of the Union sus
tains the doctrine, that the Constitution of the United States secures to
every citizen an inalienable right to move into any of its Territories
with his property, of whatsoever kind and description, and to hold and
enjoy the same under the sanction of law. Your Committee do not feel
themselves called upon to enter into the discussion of these controverted
questions. They involve the same issues which produced the agitation,
the sectional strife, and the fearful struggle of 1850. As Congress
deemed it wise and prudent to refrain from deciding the matters in con
troversy then, either by affirming or repealing the Mexican laws, or by
APPENDIX. 169
an act declaratory of the true intent of the Constitution, and the extent
of the protection afforded by it to slave property, so your Committee
are not prepared to recommend a departure from the course pursued
on that memorable occasion, either by affirming or repealing the eighth
section of the Missouri act, or by any act declaratory of the meaning of
the Constitution in respect to the legal points in dispute,"
[Mr. Douglases Report.
SECOND PHASE. — " That so much of the eighth section of an act ap
proved March 6th, 1820, entitled ' An act to authorize the people of the
Missouri Territory to form a constitution and State government, and
for the admission of such State into the Union on an equal footing with
the original States, and to prohibit slavery in certain Territories,' as de
clares c That, in all that territory ceded by France to the United States,
under the name of Louisiana, which lies north of 36° 30' north latitude,
slavery and involuntary servitude, otherwise than in the punishment of
crimes whereof the parties shall have been duly convicted, shall be for
ever prohibited,' shall not be so construed as to apply to the Territory
contemplated by this act, or to any other territory of the United States ;
but that the citizens of the several States or Territories shall be at lib
erty to take and hold their slaves within any of the Territories of the
United States, or of the States to be formed therefrom, as if the said
act, entitled as aforesaid, had never been passed."
[Mr. Dixon's Amendment.
THIRD PHASE. — " That the Constitution, and all laws of the United
States which are not locally inapplicable, shall have the same force and
effect within the said Territory as elsewhere in the United States, except
the eighth section of the act preparatory to the admission of Missouri
into the Union, approved March 6th, 1820, which was superseded by
the principles of the legislation of 1850, commonly called the Compro
mise Measures, and is declared inoperative."
[First Substitute.
FOURTH PHASE. — " The Constitution, and all laws of the United
States which are not locally inapplicable, shall have the same force and
effect within the said Territory as elsewhere in the United States, except
the eighth section of the act preparatory to the admission of Missouri
into the Union, approved March 6th, 1820, which, being inconsistent
with the principle of non-intervention by Congress with slavery in the
States and Territories, as recognized by the legislation of 1850, com
monly called the Compromise Measures, is hereby declared inoperative
and void ; it being the true intent and meaning of this act, not to legis-
170
APPENDIX.
late slavery into any Territory or State, nor to exclude it therefrom,
but to leave the people thereof perfectly free to form and regulate their
domestic institutions in their own way, subject only to the Constitution
of the United States." [Second Substitute.
In this fourth phase, it is to be noted by the reflecting reader,
that " States " are introduced, and placed on a level with Terri
tories in the article of negro slavery ! and making it a merit in
the bill, that it did not legislate slavery into any State, or out of
any State ; but left it free to States, as well as Territories, to
have slaves, or not, as they pleased ! as if Congress, or any one
out of Bedlam, had ever proposed such impertinent nonsense.
Surely the " States " must feel grateful for such forbearance ex
tended to them, and such indulgence allowed them, and such
high consideration manifested for them in such slashing times.
But, in the name of wonder, and in virtue of the inquiring mood
of the " sober second thought," how comes it that " States " were
lugged in here, in such company, and in such a bill ? Why
were they lugged in ? for it was not accident. Twice they are
brought in, which shows it was not chance-medley, but design ;
and each time with the same gracious accord of the same privi
leges, and the same equalization and yoking with the Territories
by the connective conjunction "or," which, at once, levels them
as equals, and yokes them as fellows. This shows design, and
precludes the possible conception of accident. Design, then,
being established, the inquiry recurs : What was it ? And the
answer is, It was to promote the general scheme of the bill !
which was to mystify, obfuscate, bamboozle, and befog the
"squatter sovereigns," by making them believe that they were
equal to States, and might have black slaves or not, as they pleas
ed, while, in reality, they themselves were to be made into white
slaves, under that head-clause in the bill which spreads the Con
stitution of the United States over them, carrying " niggerdom "
along with it ! and fastening It on their sovereign backs, beyond
their power to kick it off, or the power of Congress to lift it off,
or of any law to keep it off. That is the design of this desecra
tion—this dragging in of the States— all to promote the general
scheme of the bill ! which is all fraud, cheat, trick, swindle,
quackery, charlatanry, demagoguery, bladdery, and legislative
black-leggery. That is its design ! and if its fathers think other
wise — for there were many fathers and no mother for it let
APPENDIX. 171
them out with their tools (wind and instrumental), and give us
a touch of their music. In the mean time I dismiss, for the pres
ent, the infamous enactment, passing it through the portals of
the pillory — ears cut off, back scourged, cheeks smoking under
the fiery touch of the hot, red, hissing brand.
The bill was postponed for a week, and such a week of po
litical gyrations was never beheld. If Dryden had not written
so long before, it might have been supposed he was describing it :
" Quick, and more quick, in giddy gyres they turn."
First, the Daily Union, laureate organ to the administration,
and apparent manager of the democratic party, now headed by
nullifiers, and gorged with renegades. This paper had gone to
sleep on the night of the 22d of January in the reiteration of all
its imprecations on the Dixon amendment, and all its exhorta
tions to the democracy of the Union to stand clear of it, and a
special warning to the Southern democracy not to expect any
thing so preposterous : it waked up on the morning of the 23d,
rejoicing in the adoption of that amendment in the substitute
bill, declaring it to be an administration measure, making adhe
sion to it a test of political orthodoxy, and the sole rule of pro
motion, or even of retention in the democratic ranks. Party
outlawry was immediately pronounced against every halting
brother that did not come to the " right about," and applaud the
measure which he had damned the day before. Next the ad
ministration. The organ proclaimed it to be a unit in favor of
the metamorphosed amendment, and in its name promised re
wards and punishments. The democrat who refused to turn
was to be excommunicated : those who turned were to be the
only true men : all who lost the favor of their constituents by
turning, were to be indemnified with public office. And with
these declarations corresponded the conduct of the President,
the members of the cabinet, and their immediate friends on the
floor of Congress. The former sent for members, and plied them
with exhortations, entreaties, and promises : the latter openly
denounced hesitation as a crime to be punished — lauded adhe
sion as a merit to be rewarded — reproached the refractory with
abolitionism — and made the support of the new-fangled amend
ment not only an administration measure, but a measure of life
and death to the administration, in the struggle for which no
172 APPENDIX.
neutrals were to be allowed. Then came the body of the party,
and it was variously affected. The venal embraced the change
with alacrity, the instant they knew the administration had
adopted it, and ferociously assailed all who did not change with
them. The timid gave in slowly and sorrowfully, declaring
that they could not resist an administration measure, and lose
their place in the party. The distress of many of them was
pitiable to behold. Their fear of party outlawry, not their will,
consented — showing timidity in a public man to be equivalent,
in its effects, to downright treachery. Several of these unwil
ling converts became champions afterwards of the detested
measure, and thereby ceased to be pitiable, and became con
temptible. A few old democrats, solitary monuments, stood
firm upon the faith that was in them ; and these few were im
mediately denounced as whig abolitionists, and visited with all
the punishment the administration could inflict upon such men
—the exclusion of their friends from oflice, and the appointment
of the most vulgar and venomous of their enemies. Nullifiers ex
ulted, and became the leaders of the democracy, and the drivers
of the administration. They got possession of all power, and
worked it to the steady purpose of carrying the bill. Patronage
and the press — rewards and punishments — the double battery
of seduction and intimidation — were all in their hands ; and
they wielded all without halt, and without remorse. And to
their honor it must be said — personal honor in the midst of po
litical corruption — they faithfully complied with all the promi
ses they had made. The killed and wounded were provided for !
office to all who lost the favor of their constituents ! favor to all
that turned ! open arms to all deserters from all ranks ! nulli-
fiers and disunionists preferred ! and this continued to be the
rule of action during the whole Pierce administration. Such
conduct required much defence, and received a large instalment
of it in those eleven pages of the last annual message, which it
is the object of this brief notice to point out to history for her
severe condemnation.
This is the record history of that abrogation of the Missouri
Compromise into which the administration of Mr. Pierce was
forced ; and the record history I only propose to give. But
there is well authenticated history belonging to the transaction
which does not appear on the record; as that, the sudden
APPENDIX. 173
determination to adopt the Dixon proposition was the effect of
a council, which, different from the Scythians, who always re
solved twice before they acted— first drunk to give them
courage, then sober to give them discretion — resolved but once ;
and that in the former predicament. And, also, that there was
hard work to force some into the support of the measure who
afterwards became its champions — the more zealous, in order to
invest forced conversion with the semblance of honest conviction.
But, that no ingredient of infamy should be wanting in such
a transaction, the element of fraud was added to all the other
means of success. The case was this : The Daily Organ, after
having diurnally, for many days, laid down the law of political
death to any democrat who flinched at the adoption of the
Dixon- whig proposition, now became administration democratic,
and was authorized to publish a dispensation as to " details." A
special article was published, to let it be known that there was
to be freedom of action on the " details " of the bill— that every
democrat was not to be required to vote for every " detail : "
many worthy members remonstrated against that, as requiring
too much. Some members, friendly to the repeal of the Mis
souri Compromise, could not subscribe to the reasons given for
it, nor to the future grand movement of which it was to be the
basis.* Here then was an opening for the loss of the bill — its
* As Mr. Seward, of Georgia. This gentleman, a friend to the object of the bill,
as repealing the Missouri Compromise, and determined to vote for it, yet objected to
the reasons for their untruth and unfairness, saying : " I oppose the details of this
bill, because they are not consistent with themselves, or with the transactions to which
they relate ; and the bill itself shows that it was manufactured for a particular pur
pose. Some of the clauses embraced in it, conflicting as they are, were introduced
for the purpose, in my opinion, of setting up a principle to be asserted in future, and
which the acts of 1850 never contained. Now, sir, let us see. We are called upon
here, now to vote for this bill, which is not drafted in the ordinary shape of legislative
acts. But the framers of this bill have furnished the reasons, within the bill itself, on
which we must act, and which they call on us to subscribe to. What is it ? They
tell us that the law of 1820, being inconsistent with the legislation of 1850, therefore,
that the act of 1820 is inoperative and void. I take issue with them, and for myself,
occupying the position that I do as a Southern man, I never have subscribed, never
will, and never can subscribe to the doctrines contained in the acts of 1850. And
now, when that portion of the South having feelings in common with me on this
question, have waived their objections to it for the purpose of uniting witli the South,
and harmonizing public feeling on this great question, it is put here as the basis of
some grand movement in this country." — Mr. Seward's (of Geo.~) Speech. Extract
With these objections to the details of the bill, and desire for its object, Mr. Seward
174: APPENDIX.
loss in the House of Representatives, where its fate was most
dubious. It would be easy for some half dozen of the forced
members, by a critical vote, to adopt, or reject some detail, on
which the fate of the whole bill would depend. This danger
had to be guarded against ; and that required a fraudulent vio
lation of a rule of the House — a rule specially made to secure
fair legislation, and indispensable to it where the previous ques
tion has become the ordinary legislative \veapon in passing, or
defeating bills. The regular effect of that question, when or
dered, was to cut off all debate, and all amendments, and bring
the House to a direct vote upon the passage of the measure ;
and this question came to be so abused by a dominant majority
for the time being, (often bringing the House to vote in total
darkness upon the measure, or cutting off amendments neces
sary to honest legislation,) that all parties agreed to modify its
effect, so as to give a chance to the House to understand a bill,
and a chance to amend it by offering an amendment, to be
voted upon without debate. A rule was accordingly adopted
for that purpose, and by virtue of which amendments might be
offered after the previous question had been ordered, and the
member offering it allowed five minutes to explain its object.
This, to be sure, was but small liberty of speech in a legislative
body, boasting of the largest liberty in the world ; but, small
as it was, it was not allowed to be used in the abrogation of the
most momentous law that Congress ever passed. The bill wrent
into Committee of the Whole : it was the House bill : and the
friends of the bill, being a majority, moved to strike out the
first section. It was done ! and the bill was then dead — in the
slang language of the House — its head cut off. Of course,
there was nothing more to be done with it in committee. The
House was the next place for it to appear, and the question
before the House was to concur with the committee. This re-
fotmd himself in the dilemma of not being able to vote at all. The grand movement,
obscurely hinted at by Mr. Seward, was immediately remarked upon by Mr. Benton,
who interpreted it to be the acquisition of Cuba, and large slices from Mexico, the
latter to be made into slave soil under the extension of the Constitution and the vote
of Southern emigrants, a few of whom would overpower the feeble, ignorant Mexican
population. (See Appendix 7F.) On these details of the bill, Mr. Benton felt certain
of smashing it up upon motions to amend ; but all such motions were cut off by the
fraudulent use of rules.
APPENDIX. 175
quired every supporter of the bill to reverse the vote he had
given in committee— to vote directly contrary to what he had
done ; and this change was made. The same who voted to kill
the bill in committee, voted to bring it to life in the House—
which was done. The bill being then alive, could receive an
amendment : and instantly there was a motion to amend, by
striking out the whole of the House bill, and substituting the
whole of the Senate bill — all which was done under the gag of
the previous question. Though called an amendment, the Sen
ate bill, thus adopted, was a complete bill in itself, and a long
one of thirty-seven sections, and, as a lill, requiring three read
ings on different days ; but, as an amendment, to be read once,
which it had not been when offered ; but a reading was forced
afterwards under the rule which authorizes a demand for the
reading of an amendment. Technically, it was an amendment :
in reality a bill; and, although the rules required but one
reading, yet it was an outrage upon all fair legislation to drive
it through as it was done. It was under the gag of the previous
question, and no further debate, nor the least amendment per
mitted—not even to a friend of the measure.
Viewing the whole proceeding as a fraud, about eighty
members refused in the committee to vote on the motion to
strike out the enacting clause of the House bill ; and when the
motion was made for the committee to rise and report the bill
to the House, only 103 members voted ; to wit : 101 for the
motion, and 2 against it ! upwards of 100 refusing to vote ! and
among the number, to their honor be it said, no less than 12
who were for the bill. Only 103 voting, there was no quorum,
and objection was made to rise and report. The temporary
chairman, Mr. Olds, of Ohio, decided that a quorum was not
necessary to authorize the committee to rise — which was true ;
but a quorum was necessary to authorize a report to the House,
as, without a quorum, nothing could be done in the committee ;
and the rules provided for the case by requiring the roll to be
called, to bring in the absent members. The chairman, Mr.
Olds, reported the bill and the proceedings upon it to the House,
without telling there was no quorum. Several members ob
jected on the report, proclaiming that there had been no quorum
to authorize it ; but the Speaker (Mr. Linn Boyd) said he had no
"official" notice of this want cf a quorum, and could only know
176 APPENDIX.
"officially" what the chairman of the committee (Mr. Olds) re
ported to him. It was a most humiliating scene— the whole
proceedings, from the motion in committee to cut off the head
of the House bill, down to the substitution and passage of the
Senate bill— the House being in a continued state of uproar
through a most extended day and night session, all motions to
adjourn being negatived, and the result received in the galleries
with clapping and shouting— as in the old time of the Bank of
the United States.*
* MONDAY, MAY 22, 1854. In Committee of the Whole, Mr. Olds of Ohio, in the
Chair. Home bill (No. 236) for the Organization of Kansas and Nebraska Territories,
being under consideration. Extract from the Register of Debates.
Mr. Stephens, of Georgia: "I rise to a privileged question. I move to strike out
the enacting clause of this bill. I will state to the committee, and I want the atten
tion of the committee to my object in making that motion ; it is to cut off all amend
ments, and to have this bill reported to the House, that we may have a vote upon it."
— Mr. Chandler, of Pennsylvania: "I rise solemnly to protest against this extra gag
which is applied to the passage of this bill, and to say, that while it is possible a
majority may thus ride rough-shod."— (Loud cries of " Order" and great excitement.)
— Mr. Orr, of South Carolina: "Does my friend, from Pennsylvania, say that this is
not in strict comformity to the rules? " — (Renewed and vociferous cries of " Order.")—
Mr. Chandler : " I am satisfied that the motion now made is one that was not contem
plated by those who drew up these rules ; nor was it, I hope, contemplated by those
who drove us from the regular debate in the committee, and told us to take shelter
under the five minutes debate rule." — Mr. Washburn, of Maine: "I rise to a question
of order. It is this : that it is not in order to move to strike out the enacting clause
of the bill, while the House is in Committee of the Whole, but that the motion can
only be made in the House." — (Loud cries of " Order" and " Question.")— The Chair
man overruled the point of order. — (Vociferous cries for the question.) — Mr. Rogers,
of North Carolina: "I wish to state to the country, and to the members of the House
with whom I have been acting to this time, that I desire to introduce an amendment to
this bill. I feel it due to myself to state" — Chairman, Mr. Olds: "Is it the pleasure
of the committee that the gentleman from North Carolina be heard ? " — (Cries of " No I
No ! No ! ") — Mr. 8 age, of New York : "I desire to offer an amendment to the amend
ment." — The Chairman, Mr. Olds: "The amendment is not amendable." — Mr.
Dickinson, of Massachusetts : " I desire to offer an amendment to the bill now before
the Committee." — The Chairman : " It is not in order while a motion to strike out the
enacting clause is pending." — Mr. Dickinson: "I wish to have the bill read." —
Chairman : " It is not in order to have it read while a motion to strike out the enact
ing clause is pending." — (Incessant cries for the question.) — Question taken : 103 for
the motion to strike out, 2 in the negative. — Mr. Dean, of New York (in the midst of
great confusion) : " I hope that no member in the minority will vote upon the question.
Oppose tyranny by revolution." — (Vehement cries of " Order," and calls for the Ser-
geant-at-arms.) — Mr. Lewis D. Campbell, of Ohio, (passing through the tellers) : " There
will be one vote against the motion at all events." — (The tellers thereafter reported
103 ayes, 22 noes.) — The Chair announced the motion carried. — Mr. Richardson, of
APPENDIX. 177
And thus fraud was superadded to all the other iniquities of
the bill, and its passage — superadded to the seduction, intimida
tion, coercion, the moral duresse under which it was driven
along, and the false pretexts on which it was founded, and the
sudden adoption of it, as an administration democratic measure, *
after stigmatizing it as a whig abolition measure. And this is
the measure, thus conducted and thus passed, to the laudation of
Illinois: "I move that the Committee rise, and report to the House the action of the
Committee." — The question for the Committee to rise was then put, and only 103
voted, and two of them in the negative. — (Cries of " No quorum ! " " No quorum !") — TJie
Chair : " No quorum is necessary to enable the Committee to rise." — The Committee
rose, and the Chairman reported the bill to the House, saying : " The Committee had
directed him to report the bill back, with a recommendation to strike out the enacting
portion of the bill." — Mr. Dean, of New York : " I rise to a question of order. It is
this : That less than a quorum of the Committee of the Whole cannot report a bill to
the House." — The Speaker, (Mr. Boyd,} being in the Chair: "The Chair has no of
ficial knowledge of the number of votes given in Committee." — Mr. Hughes, of New
York : " I rise to a question of order. I submit that the report of the Chairman of
the Committee of the Whole on the state of the Union, shows that the action of that
Committee is tantamount to a rejection of the bill, which the Committee have no
power to do." — Tlie Speaker : " Will the gentleman from New York indicate the rule
under which it denies the Committee that power ? " — Mr. Hughes : " It is under rule
119, and under that rule the Speaker of the House once decided in the same manner.
The Speaker refused to entertain the report of a Committee upon the ground that it
was tantamount to a rejection of the bill, which was beyond the power of the com
mittee. The note to the 119th rule gives the same construction to the rule, and upon
that I raise my question of order." — The Speaker : " Would remark that the same
note declares the very object of the rule was to supersede and obviate the offering of
further amendments." — Mr. Meacham, of Vermont : " I rise to a question of privilege
under the 3-ith rule, which provides that ' where debate is closed by order of the House,
any member shall be allowed in Committee five minutes to explain any amendment,
after which any member, who shall first obtain the floor, shall be allowed to speak five
minutes in opposition to it.' Now, I submit that the rights of members under this
rule have not been respected in Committee." — The Speaker : " That is a question for
the Committee to decide for itself. It is not competent for the Chair to know officially
what has taken place in Committee except through the report of its Chairman." —
Mr. Richardson, of Illinois : "I demand the previous question upon concurring with
the report of the Committee." — Mr. Ellison, of Ohio : " I rise to a question of order.
The 26th rule provides that wheu the Committee of the Whole on the state of the
Union finds itself without a quorum, the Chairman shall cause the roll to be
called. Now, Sir, I submit, that the Committee did find itself without a
quorum — that it was not competent for it to report the bill to the House
without a quorum — and that the roll was not called as the rule directs." —
The Speaker : " That is a question which the gentleman should have raised in
Committee, and which it is not competent for the House to have any knowledge of,
unless so reported by the chairman of the Committee." — Mr. Campbell, of Ohio : " I
12
178 APPENDIX.
which, and to the condemnation of all who opposed it, eleven
pages of his last message was devoted by President Pierce.
But the message was not allowed to stop at one falsification
of history, large as that was, but was made to go on to another,
supposed to be written by the same hand ; and, in fact, a sup
plement and continuation of the first one. It undertakes to give
the state of parties in the United States, classifying them, and
assuming to say which is culpable for the present distracted
condition of the country ; and, of course, putting all censure
upon one, and all praise upon the other. It sees but two par
ties — abolitionists, and democrats : and lays all blame upon the
former. The message is severe upon the abolitionists ; * and so
would make an appeal to the gentleman from Illinois (Mr. Richardson), to withdraw
his call for the previous question until I can make a suggestion in relation to this hill."
Mr. Richardson : " The appeal is in vain. I decline to withdraw the call." (The
House refused to concur with the Committee in striking out the enacting clause of the
bill.) — Mr. Richardson : " I now move to amend the hill by striking out all after the
enacting clause, and inserting in lieu thereof what I send to the Clerk's table : and
upon that proposition I demand the previous question."— (It was the substitute bill
from the Senate which was thus sent, and upon which the previous question was de
manded before it was even read, as an amendment.) — Mr. Dean : " I call for the read
ing of the substitute." — (It was read, consisting of 37 sections.) — The vote on adopting
the substitute was then taken under the previous question, and instantly Mr. Richard
son moved the third reading of the bill under the same gag : and it was passed — not
one word being spoken, or any amendment allowed to it.) — The announcement of
the vote was received with prolonged clapping of hands, and hisses, both in the House
and the galleries, and cries of " Order! " " Order! "
* " To accomplish their objects, they dedicate themselves to the odious task of de
preciating the government organization which stands in their way, and of calumni
ating, with indiscriminate invective, not only the citizens of particular States, with
whose laws they find fault, but all others of their fellow-citizens throughout the coun
try, who do not participate with them in their assaults upon the Constitution, framed
and adopted by our fathers, and claiming for the privileges it has secured, and the
blessings it has conferred, the steady support and grateful reverence of their children.
They seek an object which they well know to be a revolutionary one. They are per
fectly aware that the change in the relative condition of the white and black races hi
the slaveholding States, which they would promote, is beyond their lawful authority ;
that to them it is a foreign object ; that it cannot be effected by any peaceful instru
mentality of theirs ; that for them, and the States of which they are citizens, the only
path to its accomplishment is through burning cities, and ravaged fields, and slaugh
tered populations, and all there is most terrible in foreign, complicated with civil
and servile war; and that the first step in the attempt is the forcible disruption
of a country embracing in its broad bosom a degree of liberty, and an amount of in
dividual and public prosperity, to which there is no parallel in history, and substituting
in its place hostile governments, driven at once and inevitably into mutual devastation
APPENDIX. 179
far as the severity is confined to them — to persons who deny
property in slaves, and labor to defeat that property — I have
nothing to say, and leave them to the tender mercies of the
presumed writer of that part of the message. He was long
enough among them to know their designs, and it would not
become me to hazard speculative opinions against his positive
knowledge. But, to include all under that definition who were
opposed to the abrogation of the Missouri Compromise, and all
who object to the further extension of slavery into free territory,
and especially into territory free under the laws of other coun
tries and to be slaves under ours : to include all such in the
class of abolitionists, is to libel ninety-five per centum of the
population of the free States. I claim for this ninety-five per
centum total exemption from any part in word, deed, or wish,
in producing the present slavery agitation. It comes exclusively
from the nullifiers and the abolitionists playing into each other's
hand, and embroiling the country with their equal fanaticism
for and against slavery, and their criminal designs against the
Union. The message is unjust in throwing upon the abolition
ists (even those properly so called) the exclusive censure of
producing the present troubles. They are culpable, but not
exclusively, or even equally so. There is another party more
culpable than they, and whom the message qualifies as patriotic,
and who originated this agitation, — who began it, and keep it
up ; but who, without the co-operation of the abolitionists,
could never have brought it to a head. These are the Southern
nullifiers and secessionists, Siamese twins to the Northern abo
litionists, and the two as indispensable to each other as the two
halves of a pair of shears, neither of which can cut without
being joined to the other.
The brief story of this close co-operation between Southern
nullifiers and Northern abolitionists, is this : In the year, 1830,
some Southern politicians, having some private griefs of their
and fratricidal carnage, transforming the now peaceful and felicitous brotherhood into
a vast permanent camp of armed men, like the rival monarchies of Europe and Asia.
Well knowing that such, and such only, are the means and the consequences of their
plans and purposes, they endeavor to prepare the people of the United States for civil
war, by doing every thing in their power to deprive the Constitution and the laws of
moral authority, and to undermine the fabric of the Union by appeals to passion and
sectional prejudice, by indoctrinating its people with reciprocal hatred, and by edu
cating them to stand face to face as enemies, rather than shoulder to shoulder as
friends." — Message, p. 9.
180 APPENDIX.
own to redress, and some ambitious objects of their own to ac
complish, conceived that a separation of the States, and the
erection of a new Republic South, was the way to accomplish
their purposes : and at that object (the segregation of the States
south of the Potomac) they went to work — pretexting their op
erations with " the oppressions of an unconstitutional protective
tariff." "With this view, and upon this pretext, the first South
ern (South Carolina) Convention was held, November, 1832,
which passed the ordinance of nullification and secession — de
claring the revenue laws null and void, fixing the first day of
February, then next ensuing, for the secession, (unless Congress
in the mean time should abandon pro tective tariff ;) and levy
ing an army to maintain her attitude. The Jackson Proclama
tion of December, 1832,'* denouncing the penalties of high trea
son upon all who should commit the " overt act " under that
ordinance, and the full belief that he would do what he said,
* " A recent proclamation of the present Governor of South Carolina has openly
defied the authority of the Executive of the Union, and general oixlers from the head
quarters of the State, announced his determination to accept the services of volunteers,
and expressed his helief that, should their country need their services, they will be
found at the post of honor and duty, ready to lay down their lives in her defence.
Under these orders the forces referred to are directed to ' hold themselves in readiness
to take the field at a moment ; ' and in the city of Charleston, within a collection dis
trict and a port of entry, a rendezvous has been opened for the purpose of enlisting
men for the magazine and municipal guard. Thus, South Carolina presents herself in
the attitude of hostile preparation, and ready even for military violence, if need be, to
enforce her laws for preventing the collection of the duties within her limits. Under
these circumstances, there can be no doubt that it is the determination of the authori
ties of South Carolina to carry into effect their ordinance and laws, (for nullification
and secession,) after the first of February next. This solemn denunciation of the laws
and authority of the United States, has been followed up by a series of acts, on the
part of the authorities of that State, which manifest a determination to render inevita
ble a resort to those measures of self-defence which the paramount interest of the
Federal Government requires, find upon the adoption of which, that State will proceed
to execute her purpose of withdrawing from the Union. By these various proceed
ings, therefore, the State of South Carolina has forced the General Government, una
voidably, to decide the new and dangerous alternative, of permitting a State to obstruct
the execution of the laws within its limits, or seeing it attempt to execute a threat of
withdrawing from the Union. In my opinion, both purposes are to be regarded as
revolutionary in their character and tendency, and subversive of the supremacy of the
laws and of the integrity of the Union. In this posture of affiiirs, the duty of the
Government seems to be plain. Duty to the rest of the Union demands that open and
organized resistance to the laws, should not be executed with impunity."— Proclama
tion, December, 1832.
APPENDIX. 181
balked that project, and gave birth to the tariff compromise
of 1833, by which protective tariff (as a pretext for secession)
was laid aside, to be substituted by the slavery agitation,
generated out of the alarms of the slave States for their lives
and property through fear of the anti-slavery " aggressions, en
croachments, and crusades " of the North against the South.
The substitution was instant, and notorious. On returning
home from Congress, Mr. Calhoun told his friends that the
South could never be united against the North on the tariff
question — that the sugar interest of Louisiana would keep her
out — and that the basis of Southern union must be shifted to the
slave question; and, shifted accordingly it immediately was.
Incontinently all the nullification newspapers opened for seces
sion for that new cause, filling the country with alarm for the
safety of slave property, and spreading the terrors of servile in
surrection — inevitable consequence of the abolition designs. The
whole South immediately took fire. Before the month of June
—that is to say, in less than three months after the protective
tariff pretext for secession had been laid aside — the new pretext
had been installed in its place, and so fully developed as to be
seen by all observers. Mr. Clay saw it, and on the 28th of
May, in a letter to Mr. Madison, expressed his apprehensions
of this new danger, and declared his disbelief of any foundation
for the alarm which was attempted. Mr. Madison immediately
replied, reciprocating, both his apprehensions and his disbelief;
and, in a brief paragraph, fixing all the points — date, locality,
actors, pretext, and mode of operation — in this new phase of
the secession movement ; and branding it with as much repro
bation as the amiable moderation of his temper would permit.
That letter becomes a starting point in this inquiry, which his
tory will seize upon, and find in it the key which unlocks the
door that gives the inside view of all the machinations which
have led to the present portentous slavery agitation. In that
letter to Mr. Clay, he said :—
" It is painful to see the unceasing efforts to alarm the South, by
imputations against the North of unconstitutional designs on the sub
ject of the slaves. You are right, I have no doubt, that no such inter
meddling disposition exists in the body of our Northern brethren.
Their good faith is sufficiently guaranteed by the interest they have as
182 APPENDIX.
merchants, as ship-owners, and as manufacturers, in preserving a union
with the slaveholding States. On the other hand, what madness in the
South to look for greater safety in disunion. The danger from the
alarms is, that the pride and resentment excited by them may be an
overmatch for the dictates of prudence, and favor the project of a South
ern Convention, insidiously revived, as promising by its councils, the
best securities against grievances of every sort from the North."
This is the stand-point — this letter from Mr. Madison to Mr.
Clay — from which to view and to understand, the whole nature,
origin, and design, and operative means, of the slavery agita
tors which has brought our country to its present distracted
condition. It puts the linger upon every part of the disease.
Mr. Madison sees, and sees with pain, the efforts — the unceas
ing efforts — made to alarm the South with the fear of uncon
stitutional designs in the North, upon slave property. He does
not believe in the considerable extent of any such designs on
the part of our Northern brethren, and in that disbelief he con
curs with Mr. Clay — a concurrence which shows that Mr. Clay
had expressed the same sentiment in the letter which he was
answering. He believed there was danger from the alarm,
though unfounded ; and that this fear of danger, acting on the
passions, might be an overmatch for prudence, and favor the
revival of that convention, which he qualified as " insidious"
It was the convention which passed the secession ordinance to
which he referred, and which, having failed to combine the
South against the North on the tariff pretext, was now to at
tempt the same thing on a slavery pretext. And it was re
vived, and for that purpose, and has been kept alive ever since
— having become a new Southern institution, sitting annually,
and vindicating its title to the character of " insidious," (so far
as the managers are concerned,) by masking its real object of
segregating the Southern States by presenting an endless suc
cession of barren projects for their amelioration. Every thing
which Mr. Madison foresaw in 1833, we have all seen since — the
unceasing attempts to alarm the slave States — its success in re
viving the "insidious " conventions — its effect on the pride, and
resentment of the Southern people — and the mastery which the
milliners have acquired in gaining control in all the slave States,
and bringing them to act as a unit against the North in the Federal
APPENDIX. 183
elections and legislation. His letter, and that of Mr. Clay, are
cardinal to the history of these times, and cannot be overlooked,
or discredited, by any one who seeks either to teach truth, or
to learn it, on this eventful period of American history. They
mark the origin of the slavery agitation. They show its local
ity, and fix it in the South : they show its pretext, and expose
its want of truth : they point to its designs, and probable suc
cess — and in that they were prophetic. But this was not the
only letter of Mr. Madison to this effect. The last three years
of his life were occupied, and rendered miserable, by the pro
gress which nullification, through an unfounded slavery alarm,
was making in getting control of the State governments, with
the undisguised object of a new Southern confederacy. All
his letters of this period were filled with this subject. Many
of these letters have been saved from loss by Mr. James C.
M'Guire, of Washington City, and a quarto volume of them
beautifully printed for presents to the friends of the great states
man — among them, several to his early and life-long friend,
Governor Edward Coles, now of Philadelphia. In one of these,
of date August, 1834, he says : —
" On the other hand, what more dangerous than nullification, or
more evident than the progress it continues to make, either in its
original shape, or in the disguises it assumes ? And for its progress,
hearken to the tone in which it is now preached. Cast your eye on its
increasing minorities in most of the Southern States, without a decrease
in any one of them. Look in Virginia herself, and read in the gazettes,
and in the proceedings of popular meetings, the figure which the anar
chical principle now makes, in contrast with the scouting reception given
to it but a short time ago. A susceptibility of the contagion in the
Southern States is visible ; and the danger not to be concealed, that
the sympathy arising from known causes, and the inculcated impression
of a permanent incompatibility of interest between the North and the
South, may put it in the power of popular leaders, aspiring to the high
est stations, to unite the South, on some critical occasion, in a course
that will end in creating a new theatre of great though inferior extent.
In pursuing this course, the first and most obvious step, is nullifica
tion; the next, secession; and the last, a farewell separation."
This is enough to mark the origin, the authors, and the pur
poses of the present slavery agitation, and to expose the falsity
184 APPENDIX.
of the message in throwing all upon the North ; but it is only
the beginning of the public proof on that head. In the year
1835, Mr. Calhoun undertook to install the agitation in the Sen
ate of the United States : the design was rebuked, and repulsed
by Southern Senators — Mr. Bedford Brown, of North Carolina ;
Mr. John P. King, of Georgia. Foiled in 1835, he returned to
the work in 1838, and was again rebuked by slave State Sena
tors — Mr. Clay, Mr. Crittenden, Mr. Strange, of North Caroli
na ; Mr. Eichard II. Bayard, of Delaware ; Mr. William Camp
bell Preston, of South Carolina ; and by Mr. Buchanan, of
Pennsylvania. He brought in a set of resolutions, five in num
ber, intended to be a digest of territorial slavery law, all bot
tomed upon the right of Congress to legislate upon slavery in
Territories, (for the dogma of no such power was not invented at
that time, and he had not then forgot his support of the Missouri
Compromise,) arid deprecating the abuse of the right. In support
of these resolutions Mr. Calhoun delivered many speeches, all
tending to promote slavery agitation, and to excite the South
against the North ; for which he was rebuked by all the Sena,-
tors named.*
But I am not now writing the history of the present slavery
agitation — a history which the young have not learnt, and the
old have forgotten, and which every American ought to under
stand. I only indicate cardinal points to show its character ;
and of these a main one remains to be stated. Up to Mr.
Pierce's administration the plan had been defensive — that is to
* By some of them severely — by the mildest more temperately — but not less deci
sively ; as this from Mr. Buchanan : — "7 cannot believe that the Senator from South Ca
rolina {Mr. Calhoun) has taken the lest course to attain these results (quieting agitation.)
This is the great centre of agitation : from this Capitol it spreads over the whole Union.
I, therefore, deprecate a protracted discussion of the question here. It can do no good, but
may do much hamn loth in the North and in the South." Mr. Buchanan then added, that
the Northern members who stood up for the rights of the South, and had to bear the
brunt of the battle at home, were forced into false positions, and made to fight aboli
tionism on the right of petition, and placed between the fire of friends and foes — saying,
" Thus we stand : and those of us in the North who must sustain the brunt of the battle are
forced into false positions. Abolitionism thus acquires force by bringing to its aid the right
of petition, and the hostility which exists at the North against the doctrines of nullification.
The fact is, and it cannot be disguised, that those of us in the Northern States who have deter
mined to sustain the rights of the Southern States at every hazard, are placed in a most
embarrassing situation. We are almost literally between two fires. While in front we are
assailed by the abolitionists, our own friends in the South are constantly driving us into po
sitions ichere their enemies, and our enemies, may gain important advantages"
APPENDIX.
say, to make the secession of the South a measure of self-defence
against the abolition encroachments, aggressions, and crusades
of the North : in the time of Mr. Pierce, the plan became offen
sive — that is to say, to commence the expansion of slavery, and
the acquisition of territory to spread it over, so as to overpower
the North with new slave States, and drive them out of the
Union. In this change of tactics originated the abrogation of
the Missouri Compromise, the attempt to purchase the one half
of Mexico, and the actual purchase of a large part ; the design
to take Cuba ; the encouragement to Kinney and to Walker in
Central America ; the quarrels with Great Britain for outlandish
coasts and islands ; the designs upon the Tehuantepec, the Nic
aragua, the Panama, and the Darien routes ; and the scheme to
get a foothold in the Island of San Domingo. The rising in
the free States in consequence of the abrogation of the Missouri
Compromise, checked these schemes, and limited the success of
the disunionists to the revival of the agitation which enables
them to wield the South against the North in all the federal
elections and federal legislation. Accidents and events have
given this party a strange pre-eminence. Under Jackson's ad
ministration, proclaimed for treason ; since, at the head of the
Government and of the Democratic party. The death of Har
rison, and the accession of Tyler, was their first great lift ; the
election of Mr. Pierce was their culminating point. It not only
gave them the government, but power to pass themselves for
the Union party, and for Democrats ; and to stigmatize all who
refused to go with them, as disunionists, and abolitionists. And
to keep up this classification, is the object of the eleven pages
of the message which calls for this Review— unhappily assisted
in that object by the conduct of a few real abolitionists, (not
five per centum of the population of the free States ;) but made
to stand, in the eyes of the South, for the whole.
L86 APPENDIX.
IV.
ABROGATION OF THE MISSOURI COMPROMISE : ITS ULTERIOR OBJECTS.
THOSE who suppose that there was no object in view in this
abrogation but merely to make Kansas a free State, are far
behind the state of the facts, and can have had but little oppor
tunity of knowing the intentions of the prime movers of that
measure — those who ruled the council that commanded it.
Certainly that wras one of the objects ; but there wTere others
far beyond it, far transcending it in importance ; and of which
the establishment of Kansas as a slave State was only an intro
duction, and a means of attainment. To form the slave States
into a unit for federal elections and legislation, by the revival
of the slavery question, was one object, counting upon the fed
eral patronage to gain as much help from the free States as
would give the slave States the majority. Yast acquisitions of
free territory to the southward, to be made slave (besides Cuba),
was another object; and for this purpose the principles of the
Kansas-Nebraska bill were doubly contrived; first, to carry
slavery into these free Territories by the Constitution ; next, to
establish it by the inhabitants of the States, enough Southern
people going in to dominate over the feeble and ignorant
natives. Separation of the slave States, or domination over the
free States, driving out of the Union the Korth Atlantic States,
was to be the consequence of this consolidation of the slave
States and vast acquisition of Southern territory. All these
objects would have been brought out, on motions to amend the
bill, if amendments and discussion had been allowed : as it was,
they were only glanced at by a couple of speakers, and one of
these enigmatically and gently, and the other more clearly, but
stintedly in the few minutes which were allowed him, and
which were in fact borrowed out of another member's time.
Mr. Sewarcl, of Georgia, was one ; Mr. Benton, of Missouri, the
other. Mr. Seward was thoroughly in favor of the repeal of
the Missouri Compromise, but could not stomach the pretexts
on which the repeal was founded, nor favor the ulterior objects
of which it was the forerunner, nor respect a piece of legislation
with a demagogical stump speech in its belly. He expressed
himself gingerly, but strongly (considering his geographical
APPENDIX. 187
position and party relations) and clearly enough to be under
stood, and also to show more than party fealty permitted him
to tell. He opposed the details of the bill, and showed wherein
and why. First: "These details were not consistent with
themselves, nor with the transactions to which they relate : " a
mode of expression, to expose a double falsehood, sufficiently
emphatic in a friend. Then : " That these details were manu
factured for a particular purpose :" the word manufactured here
being clearly equivalent to fabricated, and the purpose intended
being sufficiently indicated as selfish and sinister, by the use of
the word particular instead of public. Then : " Some of the
clauses in it were introduced for the purpose of setting up a
principle to be acted on in future, and which the acts of 1850
never contained " — a significant intimation of future operations,
to be pretexted upon the acts of 1850, falsified for the purpose.
Then again, he says : " We are called upon now to vote for this
bill, which is not drafted in the ordinary shape of legislative
acts." And well might Mr. Seward object to such a shape of
drafting laws, for never was such a farrago of unlegislative and
demagogue stuff put into any bill before. Mr. Seward then
denied that the acts of 1850 authorized it, declaring that he
would subscribe to no such thing ; and offered to "join issue"
upon it. Far from joining issue, all chance for it was cut off
by the manner of dropping the House bill and driving the
substitute bill through. Then Mr. Seward alluded to " a grand
movement" which was in contemplation, professing not to
know what it was, for, probably as disaffected to the bill, he was
not let into the secret, but clearly showing that there was some
"grand movement" on foot. Mr. Benton got a chance to say
a few words, and interpreted that " grand movement " to be the
seizure of Cuba, and the purchase of the northern half of
Mexico. He got a chance to say a few words by a contrivance —
a representative from Illinois, Mr. Knox, who had the floor for
an hour, giving him some minutes of his time — for which he
and the speaker were called to account, when it was seen what
was said. The Congressional Globe shows this scene :—
FRIDAY, May 19, 1854: (late in the evening.)
Mr. KNOX was assigned the floor.
Mr. WRIGHT, of Pennsylvania. If the gentleman from Illinois will
188 APPENDIX.
give way for a moment, I will move that the committee take a recess
until seven o'clock.
Mr. BENTON. If no gentleman wants the floor now, I wish to
occupy it for about ten minutes.
The CHAIRMAN. The gentleman from Illinois (Mr. Knox) is en
titled to the floor, the Chair having recognized him. If the gentleman
from Illinois will yield the floor for ten minutes, and if the committee
will be willing that the gentleman from Missouri (Mr. Benton) may
proceed, he may do so.
The gentleman from Illinois yielded the floor, and general assent
was given to the gentleman from Missouri to proceed.
Mr. BENTON said : Mr. Chairman, I have nothing more to say to
this bill on account of its interference with the Missouri Compromise.
On that point I have spoken my share, and shall not recur to it again.
I pass on to a new point — one significantly revealed to us some ten days
ago by a Representative from Georgia, the member from the first con
gressional district of that State, (Mr. Seward.) That gentleman spoke
against the bill in a way entirely accordant to my own opinions ; but
came to the conclusion that he would vote for it, * and gave his reasons
for doing so — reasons which had not been mentioned by any other
speaker, and which struck me as momentous, and worthy to arrest the
attention of the House, and of the country. He objects to the bill
because it is unfounded and contradictory in its statements and assump
tions — inconsistent with itself, with the act of 1820, and of the acts of
1850 — because it was manufactured for a particular purpose, and is of
no value in itself to the slave States ; but which commands his support,
as a Southern man, on account of its ulterior operations, as containing a
principle to be asserted in future, and which was put into the bill to
become the basis of some grand movement in this country. I will read
what he said, as the proper way of doing justice to his clear and well-
expressed opinions — to his momentous revelations — and as the best way
of availing myself of his important declarations. I find them thus in
the official copy of the speech : —
" I oppose the details of this hill, hecause they are not consistent with themselves
or with the transactions to which they relate ; and the hill itself shows that it was
manufactured for a particular purpose. Some of the clauses embraced in it, conflict
ing as they are, were introduced for the purpose, in my opinion, of setting up a prin
ciple to he asserted in future, and which the acts of 1850 never contained. Now, sir,
let us see. \Ve are called upon here now to vote for this bill, which is not drafted in
* This was said before the vote was taken, when it was supposed that Mr. Seward,
notwithstanding his objections, would vote with his party for the bill ; but he did not.
He did not vote at all, neither for nor against.
APPENDIX. 189
the ordinary shape of legislative acts. But the framers of this bill have furnished the
reasons, within the bill itself, on which we must act, and which they call on us to
subscribe to. What is it ? They tell us that the law of 1820, being inconsistent with
the legislation of 1850, therefore that the act of 1820 is inoperative and void. I take
issue with them ; and, for myself, occupying the position that I do as a Southern man,
I never have subscribed, never will, and never can subscribe to the doctrines con
tained in the acts of 1850. My objections to the acts of 1850 are known at home.
They are recorded in the proceedings of the convention which took place in Georgia
in 1850. I was a member of that convention. I voted against the Georgia platform
on principle. And now, when that portion of the South having feelings in common
with me on this question, have waived their objections to it for the purpose of uniting
with the South, and harmonizing public feeling on this great question, it is put in here
as the basis of some grand movement in this country. I know not what that move
ment is."
I concur in the truth and justice of every thing which the member
from Georgia has here said, but differ from him in the conclusion to
which he arrives — that of voting for the bill ; and find in his reasons
for that vote, additional reasons for my own vote against it ; but he
votes as a Southern man, and votes sectionally. I also am a Southern
man, but vote nationally on national questions. He sees in it a prin
ciple set up which is false and useless in its application to Nebraska,
but which is to be asserted in future, and which is put into the bill as
the basis of some grand impending movement in this country. Of the
nature of this movement, which is to be so grand, and at the same time
sectional, the member declares himself to be ignorant ; and that igno
rance, I would suppose, should be a reason for holding back from a bill
which commits its supporters to great unknown things. That is the
way it works with me. I also am ignorant, that is to say, uninformed
of this grand movement which is to be in this country ; but I believe
in it, and so believing am the more against the bill. I am against any
thing that I do not understand, and which nobody will explain to me,
and which, according to my own short and dubious lights, is dangerous
to the peace and honor of the country. I believe in the futility of this
bill — its absolute futility to the slaveholding States — and that not a
single slave will ever be held in Kansas or Nebraska under it, (even
admitting it to be passed.) Though adapted to slave labor in two of
its great staples, (hemp and tobacco,) I do not believe that slaves will
ever be held there. The popular vote will expel them. Kansas is
contiguous to middle and southern Missouri, where slave labor is profit
able, and slaves held in great number — a single owner within two hours'
ride of the line holding one hundred more than the five hundred of
Randolph of Roanoke ; and five thousand in his county alone ; but the
holder of, slaves will have but one vote, and will be beat at the polls by
190 APPENDIX.
the many who have none. In relation to Kansas and Nebraska, then,
I hold the bill to be a deception and a cheat — what gamesters call
gammon, congressmen buncombe, and seamen a tub to the whale : that
is to say, an ambidextrous operation upon the senses of confiding people,
by which they are made to see what is not, and not to see what is.
This is what I believe ; and not being obliging enough to join in a
scheme of self-deception, or to suffer a game of deception to be played
upon me, I must now turn my back upon the illusions of this Nebraska
bill, and look out for its real object — the particular purpose for which it
was manufactured, and the grand movement of which it is to be the
basis.
In this search I naturally look about into the signs and rumors of
the times, and into the cotemporaneous events which may connect them
selves with the grand movement in question ; and think I find them in
two diplomatic missions, of which the country has heard much — but not
all. I speak upon rumor, but neither tell, nor believe, the half of the
half of what I hear ; but believe enough to excite apprehension, and to
justify inquiry. "What is a state secret in the city of Washington, is
street talk in the city of Montezuma.
First. The mission of Mr. Gadsden to Santa Anna. It must have
been conceived about the time that this bill was ; and, according to
transpiring accounts, must have been a grand movement in itself —
$50,000.000 for as much Mexican territory on our southern border as
would make five or six States of the first class. The area of the acqui
sition, as I understand it, was to extend from sea to sea, on a line that
would give us Santander, Monterey, Saltillo, Parras, Sonora, and all
Lower California. This was certainly a large movement, both in point
of money and of territory, and also large in political consequence ; and
clearly furnishing a theatre for the doctrine of non-intervention, if there
should be any design to convert the newly-acquired territory from free-
soil, that it is, into slave soil that it might be desired to be. Here,
then, I believe I have found one branch of the grand movement ; and
although Mr. Gadsden returned from his mission with a small slice only
of the desired territory, yet he has returned to his post, and may have
better luck on a second trial — if Santa Anna escapes from the speckled
Indians (Los Indios Pintos) who have him at bay in the Sierra. I say
nothing on the merits of this new acquisition, only that it is an old
acquaintance with me, having first heard of it in November, 1846, and
afterwards in March, 1848 — at which latter time it was proposed in the
Senate, (by Mr. Davis, of Mississippi,) on the ratification of the Guada-
lupe Hidalgo treaty; and rejected by the Senate. I voted against the
Santander and Monterey line then, and have not seen cause ^to change
APPENDIX. 191
my opinion. [Here Mr. Benton read the article proposed by Mr. Davis
for the new line.]
Secondly. The mission of Mr. Soule to Madrid — also a grand move
ment in itself, if reports be true — two hundred and fifty millions for
Cuba ; and a rumpus kicked up if the island is not got. Here again
might be found a case for the non-intervention principle ; but of that I
say nothing, because I know nothing, and wish to know something. Of
the acquisition itself I say nothing now, but did say something, about
forty-four years ago, in a Nashville newspaper, published by Thomas
Eastin, called the Impartial Eeview ; in which I discussed Cuba as the
geographical appurtenance of the valley of the Mississippi, and eventu
ally to become its political appurtenance ; but to be got with honor
whenever it was got ; and in all that faith I still remain firm. No dis
honor ! no stain on the bright and spotless fame left us by our fathers !
Mr. Chairman, I discuss nothing in relation to those rumored acqui
sitions of the Island of Cuba and a broad side of Mexico ; I only call
attention to them as probable indexes to the grand movement of which
the member from Georgia gave us the revelation, and which no one has
denied. According to him, and according to my own belief, this Ne
braska bill is only an entering-wedge to future enterprises — a thing
manufactured for a particular purpose — a stepping-stone to a grand
movement which is to develop itself in this country of ours. I wish to
know what that movement is. I have a right to know, to enable me to
discharge my duties understandingly ; and I respectfully crave the in
formation from those who have the conducting of the bill.
Mr. SMITH, of Virginia. — I would like to know, Mr. Chairman, how
much of this time consumed in the remarks of the gentleman from
Missouri, is to be taken out of the hour allotted to the gentleman from
Illinois ?
The CHAIRMAN. — The gentleman from Missouri occupied twenty
minutes. As a matter of course, that time must be taken out of the
hour allowed to the gentleman from Illinois. It is distinctly understood
that the Chair did not authorize the gentleman from Missouri to take
the floor from the gentleman from Illinois.
Mr. KNOX. — I am very happy in having yielded to the gentleman
from Missouri so much of my time, because what he may have said is of
far greater interest, and of far more importance to the country, than any
poor remarks of mine would have been.
[This declaration was greeted with warm applause.]
)
This is the end of the reported proceedings, and not a word
was said more on the ominous subject broached by Mr. Seward,
192 APPENDIX.
of Georgia, and pursued by me, (by the favor of Mr. Knox, of
Illinois, in giving me part of his time,) for twenty minutes, for
which he had to defend himself; and did it bravely and gener
ously, commanding the applause of the House. There was spirit
in the House, and if a few of us could have had a chance at the
bill, it would have been smashed into atoms, and the country
roused to a knowledge of the meditated crimes. But there was
no chance. A vulgar, infuriate tyranny prevailed — greater than
ever was seen in the French National Convention in the Reign
of Terror ; for even there, debate could not be entirely silenced.
Members carried arms there ; and brave men (but no braver
than we were) with loaded pistols in their hands, would say what
they pleased, and see Robespierre, Marat, Collot, Merlin, turn
pale under their terrific denunciations. We could not carry
arms into the national hall of legislation, and parliamentary
rules signified nothing against an inexorable majority, some
subdued by their fears, some seduced by the administration,
some debauched by gambling, and drinking, and plunder legis
lation ; and all driven along by the furious nullifiers, to whom
the administration had surrendered the government. Still there
was a plenty of good material, if it could have been worked up.
Many voted with the majority, who only waited a favorable
moment to attack the tyranny of which they were the unwilling
and mortified instruments. The war upon the details of the
bill would have furnished the opportunity. Successive attacks
upon the details, even with the five minutes' speeches, would
have been enough ; for, in certain conditions of all public bodies
— the inflamed and excited condition — long speeches are not
wanted : they are even bad ; and a sudden, vehement, and brief
appeal to the passions has often sufficed to overturn a powerful
majority, or even a whole government. Buf the fraudulent use
of the rules, and the fatality of having all questions of order de
cided against us, left us without rights, or favors, in presence of
an inexorable majority, which, governed by party machinery,
drove on to their object regardless of law, decency, or shame.
APPENDIX. 193
A LAST WO ED.
I was breaking down under the terrible attack which kept
me, for two weeks, face to face with death, when I was writing
this Examination ; and had to break off abruptly — leaving two
entire heads untouched, and not even alluded to. Besides these
two heads, now postponed, there was another which I wished
to bring before the American people, to wit : The conduct of an
Administration and a Senate (called Democratic), which has
done, and is doing, what no former administration and Senate,
(whether "Whig, Federal, Democratic, or Republican,) ever did !
that is to say, suppressing and concealing the evidences of a
foreign negotiation, after the negotiation is all over and done
with ; which negotiation is surrounded by circumstances which
connect it with a scheme to bring on a separation of the slave
from the free States : I speak of the Gadsden negotiation, and
of the fifty millions he was authorized to give for a broad side
of Mexico, with a port on the Gulf of California, and a railway
to it, to suit the United States South after the separation — to
which point all the schemes for a Southern Pacific Railroad
tend, while the credulous public are made to believe they are
hunting the best way to California, where they mean it shall
never go, because California rejects slavery. Every Union-
loving State Legislature should post its Senator under instruc
tions to bring those hidden negotiations to the public view,
though with but little prospect of getting the whole truth after
so many years' suppression — the same reasons which have in
duced suppression thus far, being equally strong to make it per
petual ; so that much may be gone past recovery.
WASHINGTON CITY, September, 1857.
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