The just supremacy of Congress over the territories

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Curtis, George Ticknor

The just supremacy of Congress

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THE

JUST SUPREMACY OF CONGRESS

OVER

THE TERRITORIES:

INTENDED AS AN ANSWER TO

THE HON. STEPHEN A. DOUGLAS,

ON

POPULAR SOVEREIGNTY.

BY GEORGE TICKNOE CURTIS.

BOSTON:
A. WILLIAMS AND COMPANY,

100, WASHINGTON STREET.
1859.

•••IH

Price 2O

Entered, according to Act of Congress, in the year 1859, by

GEOKGE T. CURTIS,
In the Clerk's Office of the District Court of the District of Massachusetts.

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INTRODUCTORY NOTE.

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IT is, perhaps, scarcely necessary to say, that this pamphlet was written as an
answer to the article by the Hon. STEPHEN A. DOUGLAS, which originally appeared
in Harpers' Magazine, entitled " The Dividing Line between Federal and Local
Authority; Popular Sovereignty in the Territories;" and which has since been re-
published in a separate form. Private engagements and other circumstances have
delayed the publication of my Essay longer than I had originally intended; but I
believe that the subject is not likely to lose its interest. The impersonal style in
which it is written is to be accounted for by the fact that it was designed for publi-
cation in some periodical work, and it was not convenient to make any change in this
respect after I determined to publish it in a pamphlet. I should add, that I have seen
no other of Mr. Douglas's writings on this subject than the article to which this pam-
phlet undertakes to reply; nor have I read the papers written by the Attorney-General,
Mr. Black.

G. T. C.

BOSTON, Nov. 6, 1859.

BOSTON:

PRINTED BY JOHN WILSON AND SON,
22, SCHOOL STREET.

THE

JUST SUPREMACY OF CONGRESS

OVER THE TERRITORIES.

rpHE appearance, in a popular magazine, of an article on a con-
J- stitutional question, written by a prominent candidate for the
Presidency, with his name prefixed to it, is something new. We do
not know that there can be any reasonable objection to this mode of pro-
mulgating or defending political opinions. It has one advantage over
electioneering speeches, inasmuch as what is written is likely to be
more deliberate than what is spoken ; and if our public men would
employ the pen a little more, and the tongue a little less, we think that
they and the country would be gainers. On the other hand, what is
thus carefully prepared in an elaborate article, as the doctrine on which
a statesman means to challenge the suffrages of his countrymen for the
highest office in their gift, brings him in a peculiarly responsible atti-
tude before the tribunals of contemporary criticism and public judgment.
What he says and maintains in such a form is not like a Congressional
speech, which may be thrown off in the heat of debate or while defend-
ing or attacking a particular measure, and which is liable, even if not
likely, to be forgotten when the interest in the occasion has passed.
Mr. Douglas steps forward boldly and frankly, as becomes him, and
puts on record, in a journal of a very wide circulation, his opinions upon
a grave constitutional question, which enters largely into the politics of
the day ; and the doctrine which he thus promulgates is notoriously
relied upon by his friends, as the great topic, the championship of
which is to carry him into the White House. He certainly will not

be disposed to complain if his opinions thus put forth are subjected to
examination in the same form of discussion.

We shall begin what we have to say upon this subject with the free
admission, that there are a good many elements of popularity both in
Mr. Douglas's character and in his present position. The" public man
who presents himself as an advocate for the right of self-government for
any people, however they are situated, will always command popular
sympathy in this country. But we are not now concerned with Mr.
Douglas's chances or means of political success, but with the soundness
and correctness of his constitutional opinions. Whether he is or is not
of that order of men who " would rather be right than be President,"
we do not presume to decide ; but we are sure for ourselves, that,
having no personal interest in the matter, we would rather be right
than be able to prevent him or any other man from reaching the
Presidency, if we had the power of all the nominating conventions or
of all the voters in the land.

It is the purpose of Mr. Douglas's article to maintain, that the
people of a Territory have the right to decide, independently of the will
of Congress, whether the institution of slavery shall or shall not exist
among them while they are in the Territorial condition. On a cursory
reading of his paper, we were a little at a loss to determine whether
he meant to be understood that this power belongs to the people of a
Territory because the organic act bestows upon them general legisla-
tive power, or, as in the case of Kansas, declares that they shall be free
to form their own institutions in their own way ; or whether he holds
that the people of a Territory are originally free to establish or prohibit
slavery without any Congressional declaration or grant of such a power,
or even against a Congressional prohibition. But, on a more careful
perusal, we find that his argument goes the entire length of maintaining,
that, in reference to what he calls their local concerns and internal
polity, the people of a Territory are absolutely sovereign in the same
sense in which the people of a State are sovereign. In order to
establish what he calls " popular sovereignty in the Territories," Mr.
Douglas undertakes to define the dividing line between federal and
local authority ; and he places it, in respect to the Territories, substan-
tially where it is in respect to the States. He sums up the whole dis-
cussion in the following "principle," — "that every distinct political

community, loyal to the Constitution and the Union, is entitled to all
the rights, privileges, and immunities of self-government in respect to
their local concerns and internal polity, subject only to the Constitution
of the United States."

A very important question, therefore, arises upon Mr. Douglas's
proposition ; namely, What does he mean when he says that the
people ef a Territory are " entitled " to all the rights of self-government ?
Are they " entitled " morally, or legally ? as a matter of comity, or as a
strict constitutional right ? If Mr. Douglas were asked this question
as a jurist, in a matter of private right involving a correct answer to it,
would any man be disposed to risk a litigation upon the correctness
of the views by which Mr. Douglas undertakes to guide and enlighten
the political opinions of his countrymen ? In our judgment, the di-
viding line between federal and local authority, in respect to the
Territories, would have to be drawn more in accordance with settled
principles than it is drawn by him, before it would be safe to admit the
soundness of his very sweeping conclusion.

Nor is he any more satisfactory to us as a statesman than he would
be as a jurisconsult. The importance of a clear and reliable answer
to the question, " In what sense and how are the people of a Territory
entitled to the full and absolute right of self-government?" will be appa-
rent to any one who will consider that polygamy is an institution which
must be within this right, if the right exists in the unqualified extent
for which Mr. Douglas claims it. This, and a variety of other institu-
tions which might be against the will of Congress and the entire policy
of a Christian civilization, would come within his principle. The vast
inconvenience of his doctrine, therefore, renders it in the highest degree
necessary to ascertain where his opinions, if they are to become pre-
dominant in our government, are to lead us ; for if it be true, as he
seems to us to maintain, that the mere fact of their organization into
a distinct political community entitles the people of one of the Terri-
tories of the United States, before they are admitted as a sovereign State
of this Union, to make what laws or institutions they see fit, upon the
plea that such laws or institutions relate to their internal concerns, it
is quite essential to our peace and safety to know whether they are so
"entitled" in a moral sense only, or in a strict constitutional and legal
sense. If it is only as a moral claim that we are to regard the alleged

right, then, in each particular case, Congress can consider the expe-
diency of yielding what is demanded. If, on the other hand, the right
is a constitutional and legal one, Congress can exercise no volition in
the matter. Still, it occurs to us to ask, if the latter is the true
character of the supposed right, what was the necessity and what is
the meaning of Mr. Douglas's grant, made in his own Kansas-Nebraska
Act to the people of those Territories, of " perfect freedom to form and
regulate their domestic institutions in their own way " ? Why repeal
the Missouri Compromise, and enact the principle of " non-intervention"
by Congress, if the people of a Territory, after they are made a Terri-
tory, are "entitled" to say that Congress shall not "intervene" in
respect to their domestic institutions?

But it is not our purpose to anticipate the course of Mr. Douglas's
argument. We shall endeavor to state and to answer it fairly, and shall
then suggest what seem to us to be the insuperable difficulties which
surround it.

The first part of Mr. Douglas's paper is occupied with a statement
that the American Colonies, in their struggle with Great Britain, placed
themselves upon the assertion of a right to legislate in their Colonial
Assemblies respecting their local concerns, free from all interference by
the English Parliament. The use which he makes of this is sufficiently
apparent from his proposition, that " the dividing line between federal
and local authority was familiar to the framers of the Constitution "
[of the United States], because they had had a controversy with their
mother-country respecting the dividing line between the authority of
Parliament and the authority of their Colonial Legislatures. Nothing
can be more inaccurate than the idea of an analogy between the question
which our fathers raised with the Imperial Government, and the ques-
tion, under the Constitution of the United States, respecting the power
of Congress over the Territories. In the first place, we are to remember
that it was no easy matter, even for Englishmen of liberal principles of
government and with just feelings towards their American brethren, to
state what the true theory of the English Constitution then was on the
subject of the right of Parliament to bind the Colonies. Lord Chatham,
it is true, in one of the most magnificent periods ever uttered in St.
Stephen's, undertook a distinction between the regulation of trade and
the levying of taxes ; and, in his haughty and daring dogmatism, he

went so far as to assert that " there is no such thing, no such idea,
in this Constitution, as a supreme power operating upon property."
Burke, on the contrary, refused to discuss the right of Parliament to
bind the Colonies, in respect either to trade or to taxation. He regarded
the abstract merits of the dispute as —

" That great Serbonian bog,
Betwixt Damiata and Mount Cassius old,
Where armies whole have sunk; " —

and he bent the whole force of his splendid genius to the argument,
that any exercise of the right, or attempt to exercise it, was inexpedient
and dangerous. There is as little in the views maintained, in that contro-
versy, on our side of the water, that can furnish a useful analogy, or aid
us in determining what is the true relation of our Federal Government
to those creatures of its legislation which we call the Territories. In the
early stages of their contest with England, the people of the Colonies
relied upon their charters and fundamental grants of political power, as
so many assurances and guaranties of a limited right of independent local
legislation. At a later period, when the contest grew closer, but when
it was still necessary to secure a reconciliation if possible, they conceded
the right of Parliament to bind them in matters of trade, but denied it
in taxation. Soon, however, all consideration of their rights as British
subjects, whether under charters or under the general principles of the
Constitution of the Empire, was merged in the grand natural right
of revolution, on which they constructed their " dividing line " between
imperial and local authority. A triumphant Revolution, and an abro-
gation of all political power save their own, put an end to all disputes
about their rights as subordinate or dependent communities. This por-
tion of our history, therefore, can afford very little aid in drawing " the
dividing line between federal and local authority " under a Constitution
which no one has yet, happily, found it necessary to subject to any
revolutionary process, but which all parties, by whatever name they are
known, must administer upon rules that are consistent with the preserva-
tion of its just authority. The Constitution of the United States was not
made for the purpose of embodying the principles of the Revolution.
It was made in order that the fruits of that Revolution — the national
independence — might not be lost in a state of anarchy, or in the
tyranny to which anarchy inevitably tends. It was made in order that

a regulated, republican liberty, founded upon order and system and posi-
tive institution, might save us from the domination of mobs, and from
their natural consequence, — the oppression of military despotism.

The next step in Mr. Douglas's argument for " popular sovereignty
in the Territories " is taken upon the action of Congress, before the
Constitution was adopted, respecting the North -Western Territory
ceded by Virginia to the Union ; and, strange to say, he confines his
survey of this part of his subject to Mr. Jefferson's measure for the
government of the Territory, which was adopted in 1784. He is quite
correct in saying that this Jeffersonian plan of government for the tracts
of country ceded, or to be ceded, to the Union by the States, contem-
plated the formation of political communities which it denominated
" new States ; " that these " new States " were to be, in general, the
same kind of communities as those which we now call " Territories ; "
that they were to have temporary governments, on which was to be
conferred a general power of legislation ; and that these governments
were to remain until the communities should become States proper by
admission into the Union. But, as to all the residue of the legislation
which preceded the Constitution, Mr. Douglas is wholly silent. He
represents Mr. Jefferson's plan as standing on the statute-book, " unre-
pealed and irrepealable," when the Convention assembled to form the
Constitution. He omits to notice the Ordinance for the government
of the North -Western Territory, adopted by Congress July 13, 1787,
while the Federal Convention was sitting, and which was actually
communicated to the Convention ; and, insisting that Mr. Jefferson's
plan still stood as the existing law when the Constitution was framed,
he makes the bold assertion, that the dividing line between federal and
local authority was known to the framers of the Constitution, as a line
which excluded from the power of the Federal Union all legislation
respecting the internal concerns of Territories. This is not creditable
to a person of Mr. Douglas's distinction. The simple truth is, that
Mr. Jefferson's plan never took effect so far as to have a " new State."
or Territorial government, of the kind contemplated, formed under it ;
tli at the Ordinance of July 13, 1787, was framed to supersede, and
actually repealed it, in reference to the North -Western Territory; that
this Ordinance made numerous, and in some cases very strict, funda-
mental provisions concerning personal rights and relations, one of which

related to slavery ; that it was before the framers of the Constitution
when they made the so-called Territorial clause, and when they passed
the Constitution through its final draught ; and consequently there is the
strongest reason to contend, that " the dividing line between federal and
local authority" in respect to Territories, as it had been practically
drawn by the existing Congress, and as it was repeated by the Congress
which, under the Constitution, afterwards re-enacted the Ordinance,
was understood, in those days, as a line which included in the federal
power any and all direct legislation, upon personal rights and relations,
in such Territories, which it might be the pleasure of Congress to
exercise.

Stepping over this great hiatus which Mr. Douglas has made in our
national history, we come to the following singular proposition : —

" In the formation of the Constitution of the United States, the Federal
Convention took the British Constitution, as interpreted and explained by the
Colonies during their controversy with Great Britain, for their model ; making
such modifications in its structure and principles as the change in our condi-
tion had rendered necessary."

After running out what he considers the parallel between the two
governments, and suggesting the views which our fathers maintained
concerning the true relations of the mother-country to the Colonies, he
asks if the framers of the Constitution can be supposed to have con-
ferred upon Congress "that unlimited and despotic power over the
people of the Territories which they had resisted with their blood when
claimed by the British Parliament over British Colonies in America."
This is somewhat ad captandum, and we doubt not Brother Jonathan
will be struck with its force. But we believe it to be entirely unsound.

Probably Mr. Douglas stands alone in making the assertion, that
the Constitution of the United States was modelled on the Constitution
of Great Britain, as the latter was understood either by the colonists
or by any one else. It has sometimes been charged as a reproach,
that certain members of the Federal Convention leaned too much in
their plans and wishes towards the English Constitution; but it has
never been said before, so far as we know, that the whole body
regarded that Constitution as their " model." Certainly it would not
be difficult to show that the copy has so far departed from the
" model," that very little resemblance can be detected. But suppose

2

10

it were, as Mr. Douglas imagines : does it follow that the framers of
our Constitution could not have designed to vest in Congress a gene-
ral power to govern the Territories or the subordinate communities
which they might have occasion to establish outside of the limits of the
original States, because, as colonists, they had contended for their
rights under positive charters, or because they threw themselves upon
revolutionary and natural rights ? The two cases are totally unlike.
When the Revolution commenced, the Colonial governments had long
been in existence, with their several charters and other grants of poli-
tical authority ; and the early dispute, as we have said, was mainly on
the construction and operation of those grants. When the Constitu-
tion of the United States was established, there was not a single Terri-
torial, Colonial, or subordinate government, organized by the federal
power, in actual existence anywhere. All was as yet in the future, or,
as lawyers say, in fieri, except that certain fundamental principles,
some of them dealing with minute details, had been laid down by the
old Congress in the Ordinance for the government of the North-
Western Territory. But one of the acknowledged reasons for making
a stronger government for the Federal Union was the alleged incapa-
city of the confederacy to provide for the management and govern-
ment of the new countries then already come and coming into the
possession of the United States. Under these circumstances, there is
certainly nothing remarkable in the supposition, that the framers of
the Constitution, considering that they had to meet the want of a
power to establish political communities of a subordinate nature on the
borders of the Union, and that the character of those communities
would materially affect the welfare of the Union, should have intended
to give to Congress the power of shaping the institutions of those new
regions, just as the wisdom of Congress and the policy of the country
might require, with a view of their being ultimately admitted into the
Union on an equal footing with the original States. There can be no
rational doubt, that, immediately after the Constitution was adopted,
and for a long subsequent period, it was understood that Congress had
been invested with this power : for it was exercised repeatedly, and in
a great variety of ways ; and, on the particular topic of slavery, it was
exercised sometimes against and sometimes for the institution.

The particular clause in the Constitution in which this power has,

11

until recently, been supposed to have plainly resided, so far as it re-
quired a positive text, is the clause known as the Territorial clause : —

" Congress shall have power to dispose of and make all needful rules and
regulations respecting the Territory or other property belonging to the United
States." (Art. iv. sect. 3.)

Mr. Douglas dismisses this source of power with the mere assump-
tion, that " Territory " means, in this clause, nothing but landed pro-
perty; which meaning he rests upon the assertion, that, at the time
when the Constitution was formed, the word " Territory " had " never
been used or understood to designate a political community or govern-
ment of any kind, in any law, compact, deed of cession, or public docu-
ment." In this, we think, he is entirely mistaken. The very first
clause in the Ordinance of 1787 ordains "that the said Territory, for
the purposes of temporary government, be one district ; subject, how-
ever, to be divided into two districts," &c. ; and these words " Territory "
and "district" are used throughout the Ordinance as convertible terms,
describing the political community for which the Ordinance makes cer-
tain provisions of fundamental law. Aside from this verbal criticism,
however, Mr. Douglas surely does not require to be informed that the
history and surrounding facts relating to this clause of the Constitu-
tion have again and again been made the basis of an argument, which
regards it as a grant of political jurisdiction as well as of proprietary
interest ; and we humbly think it becomes him to answer that argu-
ment by something more than a begging of the question. A far
greater authority than he, the greatest authority in the interpretation of
the Constitution since its actual framers passed away, — Chief-Justice
Marshall, — was accustomed to regard this clause as an indubitable
source of political power. In a case, in the year 1810, in which he
had occasion to pronounce the opinion of the Supreme Court on a
question relating to the authority of Congress to confer a capacity on
the citizens of a Territory to sue and be sued in a court erected by
Congress for that Territory, he said, —

" The power of governing and legislating for a Territory is the inevitable
consequence of the right to acquire and to hold territory. Could this posi-
tion be contested, the Constitution of the United States declares that
' Congress shall have power to dispose of and make all needful rules and regu-
lations respecting the Territory or other property belonging to the United

12

States.' Accordingly, we find Congress possessing and exercising the abso-
lute and undisputed power of governing and legislating for the Territory of
Orleans. Congress has given them a legislative, an executive, and a judi-
ciary, with such powers as it has been their will to assign to those depart-
ments respectively."*

On a more recent occasion (in 1828), when Bushrod Washington,
Johnson, Duval, Story, Thompson, and Trimble, were his associates, he
did not hesitate, in pronouncing their opinion and his own, again to
assign the same force and meaning to the Territorial clause, although
he admitted that the right to govern territory might also be derived
from the right to acquire it. " Whichever may be the source whence
the power is derived," said the Chief- Justice, " the possession of it is
unquestioned. ... In legislating for them [the Territories], Con-
gress exercises the combined powers of the General and of a State
Government." f

While Mr. Douglas refuses to recognize that source of power
which such jurists as Marshall, Washington, Story, Thompson, and
their associates, regarded as amply sufficient, — namely, the Territorial
clause, — he assigns the right of Congress to institute temporary
governments for the Territories to the clause of the Constitution
which gives power to admit new States into the Union ; which, he
says, taken in connection with the clause which empowers Congress
" to make all laws which shall be necessary and proper " to that end,
'* may fairly be construed to include the right to institute temporary
governments for such new States or Territories, the same as Great
Britain could rightfully institute similar governments for the Colonies ;
but certainly not to authorize Congress to legislate in respect to their
municipal affairs and internal concerns, without violating that great
fundamental principle in defence of which the battles of the Revolution
were fought."

We have already had occasion to suggest, that the battles of the
Revolution were not fought for the purpose of ascertaining the just
powers of the British Government over its Colonies, or to establish one
or another doctrine of the English Constitution ; but that they were
fought for the expulsion of that Constitution and all its relations from

* Sere vs. Pitot, 6 Cranch, 332.

t American Insurance Company vs. Canter, 1 Peters, 611.

13

our land. Not to repeat ourselves on this point, therefore, we now
proceed to consider Mr. Douglas's theory, which we understand to
be this : —

That, while the right to acquire territory for the purpose of enlar-
ging the limits of the Union by the admission of new States, and the
power to admit them, necessarily involve the right to institute tempo-
rary governments, yet that the right to create a legislative department
in such temporary governments, as part of the political organization,
extends only to the conferring of legislative power on the people of
the Territory, but does not include the power of legislating over them
or for them. In support of this distinction, he refers, by way of illus-
tration, to the right of Congress to create inferior courts, as an instance
where Congress may confer a power which they cannot exercise,
because Congress cannot render a judgment, or hear or determine a
cause. In the same way, he says that Congress may confer the execu-
tive, legislative, and judicial functions on proper officers in a Territory,
but that they cannot exercise one of those functions within the
Territory.

Assuming, for the present, that the Territorial clause in the Consti-
tution is out of the question, and that the right to acquire territory, and
to form and admit new States out of it, is the source of the power to
govern it, we may fairly ask, in the first place, where is the obligation
to be found which imposes the necessity for creating any legislative
department within the Territory when a temporary government is insti-
tuted? The power of Congress to govern, when deduced from the
source above mentioned, is not less broad and general than when it is
deduced from the clause giving authority to make all needful rules and
regulations. In either case, there is no express limit to the power of
Congress ; and none is implied beyond that which the judgment of Con-
gress may assign. The power to govern, as deduced from the power
to acquire, is entirely analogous to the power which results from con-
quest, which is only one of the forms of acquiring ; and it is as broad
and universal as any political power can be. There is, therefore, no
reason for saying that Congress is under any obligation to create any
particular kind of temporary government for a Territory. It may be
highly expedient and proper to make it a republican government, and
to give to it the three regular departments of such a government,

14

because the Territory is at some day to be admitted into the Union as
a State ; but we shall look into the Constitution in vain for any direc-
tion on the subject: nor can any obligation concerning the kind of
government be deduced from the nature of the power, whether that
power rests on one or another provision of the Constitution.

Again : if we concede the power to institute temporary governments
for the .Territories, as Mr. Douglas does, where can we draw the line
between mere political organization and that kind of regulation which
Mr. Douglas would call legislation on municipal affairs and internal
concerns ? What is the institution of a government, but the enactment
of the fundamental law by and under which a people are to live ? If a
power outside of the limits of such a people is authorized to prescribe
the departments of their government, the qualifications of officers and
electors, and their several functions, does not the exercise of this power
touch their " municipal affairs and internal concerns " ? If Congress
can create a legislative department in a Territorial government, can
they not give or reserve just so much legislative power as they may see
fit to confer or withhold ? Can they not restrict the subjects of that
legislative power, or make them general and universal, at pleasure ?
Can they not enact or adopt a code ? Can they not make the reserva-
tion of a right to annul Territorial laws, or concede the legislative
power without such reservation, as they may see fit ? Can they not
confer the legislative power on any officers to whom they may think
proper to confide it ? All these things have hitherto been assumed in
the action of Congress to be within their legitimate functions ; and, if
this assumption has been wrong, the legislation of seventy years has
been a series of wrongs and usurpations.

The illustration put by Mr. Douglas, of a power which may be
conferred, but which cannot be exercised directly, does not afford a dis-
tinction applicable to the question. Congress cannot exercise judicial
power; although it may create a court, and confer upon it judicial
power. But, in the matter of instituting a government, it is legislative,
not judicial power, that is exercised. The authority which can exercise
the power of saying what a government is to be may make a subordi-
nate legislature, if it sees fit; and it may confer an unrestricted or
a restricted legislative faculty ; and, so far as it has not parted with its
original power, it may continue to exercise it. Upon any other suppo-

15

sition, there is no mode in which Congress can retain any control over
a Territory or its inhabitants, after Congress has once erected a tempo-
rary government, or created a political organization of the people of
such a Territory.

"We have referred to the authority of Chief-Justice Marshall, and
that of the Court over which he presided, in support of the position that
the legislative power of Congress over the Territories is a plenary
power, from whatever source in the Constitution it may be derived.
We will next show that the Judges of the Supreme Court of the United
States who are now upon the bench held the same views until the par-
ticular question respecting slavery arose in the Dred Scott case.

In 1851, the question came before the Supreme Court of the United
States, whether a law enacted by a Territorial legislature, and supposed
to be in conflict with a provision of the Federal Constitution, could be
declared by the Supreme Court to be inoperative. The opinion of the
Court was pronounced by Mr. Justice Daniel ; and after pointing out
the distinction between laws passed by States and laws passed by Terri-
tories, and showing that the control of the former only is vested in the
Supreme Court, when they violate the Federal Constitution, he added,
" It seems to us, that the control of these Territorial governments pro-
perly appertains to that branch of the government which creates and
can change or modify them to meet its views of public policy ; viz., the
Congress of the United States." In another part of the same opinion,
he shows that Territorial governments may be invested with general
legislative power, and, at the same time, "be subjected to proper
restraints from their superior;" viz., Congress.*

This decision points out very clearly the true remedy against im-
proper or objectionable legislation by a Territorial legislature. It
places the remedy in the hands of Congress, — the political " superior,"
as Mr. Justice Daniel appropriately calls the Federal Government, in
its relation to the governments of the Territories. This idea of the
" superior " power is entirely inconsistent with the " dividing line be-
tween federal and local power" which Mr. Douglas undertakes to draw.
Either he is wrong, or the judges who attributed to Congress the

* Miner's Bank of Dubuque vs. Iowa, 12 Howard, 1.

16

superior and paramount authority were wrong ; for it is clear that the
subject of legislation of which the judges were then speaking — namely,
a bank-charter — was a matter in the strictest sense belonging to the
municipal affairs and internal concerns of the Territory : and, more-
over, that Territory was one whose legislative power, according to the
organic act, embraced " all rightful subjects of legislation ; " while, at
the same time, the Territorial laws were subjected by the same act
to the revision of Congress.

Still more recently (in 1853), a question was before the Supreme
Court, involving the validity of acts done by the Federal Government
in California, after the conquest of that country, and while it was held
as a Territorial possession. Mr. Justice Wayne pronounced the
unanimous decision of the Bench, in which he said, —

" The Territory had been ceded as a conquest, and was to be preserved and
governed as such until the sovereignty to which it had passed had legislated
for it. That sovereignty was the United States, under the Constitution, by
which power had been given to Congress to dispose of and make all needful
rules and regulations respecting the Territory or other property belonging to
the United States, with the power also to admit new States into this Union,
with only such limitations as are expressed in the section in which this power
is given. The government, of which Col. Mason was the Executive, had its
origin in the lawful exercise of a belligerent right over a conquered Territory.
It had been instituted during the war, by the command of the President of
the United States. It was the government when the Territory was ceded as
a conquest ; and it did not cease as a matter of course, or as a necessary con-
sequence of the restoration of peace. The President might have dissolved it
by withdrawing the army and navy officers who administered it ; but he did
not do so. Congress could have put an end to it ; but that was not done.
The right inference from the inaction of both is, that it was meant to be con-
tinued until it had been legislatively changed. No presumption of a contrary
intention can be made. Whatever may have been the causes of delay, it
must be presumed that the delay was consistent with the true policy of the
government ; and the more so, as it was continued until the people of the
Territory met in convention to form a State government ; which was subse-
quently recognized by Congress, under its power to admit new States into the
Union.

" In confirmation of what has been said in respect to the power of Congress
over this Territory, and the continuance of the civil government established
as a war-right until Congress acted upon the subject, we refer to two of the
decisions of this Court, in one of which it is said, in respect to the treaty by
which Florida was ceded to the United States, « This treaty is the law of the

17

land, and admits the inhabitants of Florida to the enjoyment of the privileges,
rights, and immunities of the citizens of the United States. It is unnecessary
to inquire whether this is not their condition, independently of stipulations.
They do not, however, participate in political power : they do not share in
the government until Florida shall become a State. In the mean time,
Florida continues to be a Territory of the United States, governed by virtue
of that clause in the Constitution which empowers Congress to make all
needful rules and regulations respecting the Territory or other property be-
longing to 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
natural consequence of the right to acquire territory ' (American Insurance
Company vs. Canter, 1 Pet. 542, 543).

" The Court afterwards, in the case of the United States vs. Gratiot, 14
Pet. 526, repeats what it said in the case of Canter, in respect to that clause
of the Constitution giving to Congress the power to make all needful rules
and regulations respecting the Territory or other property of the United
States." *

Thus it appears, that, for a period of more than forty years, the
Supreme Court has been in the habit of referring to the Territorial
clause of the Constitution as an undoubted source of municipal jurisdic-
tion ; and has, in the most explicit terms, placed the sovereignty of all
Territories in the government of the United States. We are therefore
warranted in saying, that if any constitutional lawyer, North or South,
had been asked, before the year 1856, to believe that the Territorial
clause confers no municipal authority, and that " popular sovereignty "
is a sound doctrine, the answer would have been, that these propositions
are to be received when the Supreme Court of the United States has
judicially unsaid what it has judicially said for nearly half a century.

We have thus endeavored to show, that when Mr. Douglas denies
to Congress all legislative authority over the Territories," other than to
institute temporary governments, he is opposed to the whole practice of
Congress, and to the former and the present members of the Supreme
Court of the United States ; and that he is not consistent with himself,
since the power to institute a government necessarily implies the au-
thority to determine what powers that government shall possess, and

* Opinion of the Court in the case of Cross vs. Harrison, 16 Howard, 164.

3

18

what subjects shall be included within its legislation. We shall now
refer to another of the arguments which he adduces in support of his
position. We understand him to maintain, that in the word " States,"
in those clauses of the Constitution which require the surrender of
fugitives from justice and service, and which embrace the prohibitions
and restraints upon State legislation, are included the Territories as well
as the States proper. Hence he argues that the people of a Territory
are sovereign in the same sense in which the people of a State are
sovereign, and that the sovereignty of the former is restrained and
limited by the Federal Constitution in the same way in which the
sovereignty of a State is restrained. This brings us to the great prac-
tical objection to Mr. Douglas's whole theory of " popular sovereignty
in the Territories."

The framers of the Constitution of the United States saw occasion to
subject the sovereignties of the " States " to certain restraints and pro-
hibitions. These would all have been ineffectual and nugatory, without
some means of enforcing them ; and accordingly the judicial power of
the United States was provided, and made to extend to " cases arising
under the Constitution." In providing the machinery by which a case
(arising under the Constitution because a State law is supposed to
conflict with one of its provisions) may be brought within the Federal
Judicial Power, the statesmen of that day framed a section of the
Judiciary Act, by which such cases can be drawn into the Supreme
Court of the United States, even though they originate in a State Court.
But it has been repeatedly decided, that the law, whose conformity with
the Federal Constitution can thus be passed upon by the Federal Judi-
ciary, must be a law enacted by a State proper, — that is, a mentber
of the Union ; and that laws passed by Territorial legislatures are not
included in this machinery of Federal judicial control. If, then, Mr.
Douglas's doctrine is sound, that the word " States " in the prohibitory
clauses of the Constitution includes " Territories," the first thing that
strikes us is, that there are no means provided by which the Federal
Government can enforce these provisions of the Constitution against the
legislation of Territories, unless Congress reserves to itself a power
directly to annul the Territorial laws. Such a reservation is plainly
inconsistent with Mr. Douglas's theory ; for he insists that Con-
has no power to control the people of a Territory in respect to

19

their domestic concerns. But as he qualifies this position with the
reservation, that their domestic legislation must not violate the pro-
visions of the Federal Constitution, he may still retain to Congress
so much superintending power as is necessary to preserve the Federal
Constitution intact. But the difficulty in the way of his theory is, that
if the Constitution, when it says the " States " shall not do certain things,
also means the " Territories," we have got two classes of sovereignties
in our system, both of which are subjected to the same restraints by
the Federal Constitution ; but those restraints are to be enforced,
as against the States, by the Judicial, and as against the Territories by
the Legislative, department of the Federal Government.

This discrepancy naturally leads to the inquiry, what reason there
is for supposing that when the framers of the Constitution provided
that no " State " shall pass laws impairing the obligation of contracts, or
emit bills of credit, &c., they intended to be understood as extending
these same prohibitions to " Territories," which could only owe their
existence to Acts of Congress. It is notorious, that all these prohibi-
tions were inserted in the Constitution to prevent the repetition of acts
of wrong that had previously been committed by the legislatures of
sovereign States, members of the Union ; or to secure the just work-
ing of the powers conferred on the National Government. But if we
suppose that the framers of the Constitution intended to have Congress
invested with power to erect temporary governments in regions beyond
the limits of the then existing States, as Mr. Douglas concedes they
did, there is no conceivable reason why they should not have left to
Congress to put upon those governments just such restraints as the
occasion might require ; nor why they should have included those
governments in the prohibitions addressed to the " States ; " nor why
they should have used the word " States " alone, if they meant " States "
and " Territories." The view that was taken by Mr. Justice Daniel
explains the true reason why Congress should be regarded as the
" superior " of the Territories ; for there may be a vast deal of legisla-
tion by a Territory, which would violate no provision of the Federal
Constitution, but would yet be exceedingly objectionable, and ought to
be corrected, and could be if Congress has the superior authority attri-
buted to it by the Supreme Court in the case to which we have
referred. But if Congress is the political " superior " only so far as to

20

see that the Federal Constitution is not infringed, then indeed the Ter-
ritorial legislature, which is the mere creature of Congress, may make
lawful a plurality of wives, or establish the most pernicious system of
banking, or create a most objectionable system of divorce, — may make
the Territory a nuisance and a pest to the surrounding communities ;
and there will be no earthly power that can interfere, whether Congress
has or has not reserved the right to revise the Territorial laws. For
if Mr. Douglas's doctrine is correct, that, in all domestic affairs, the
people of the Territory are sovereign just as the people of a State are
sovereign, all such reservations are simply void.

We protest, therefore, against this popular cry, which seeks to class
the pretended sovereignties of the Territories with the sovereignties of
the States. We are neither anxious nor alarmed about the matter of
slavery. We are not disposed to look at every doctrine solely as it
affects this particular institution. We seek no sectional triumphs on
this or any other subject. In a particular case of real fitness for a fair
and unbiased decision as to their true interests, we should have no
unwillingness to see the people of a Territory invested, by Act of Con-
gress, with full power to decide whether they would have slavery or
not ; although we never could see its propriety in the case of Kansas,
and think that the whole country has infinite cause to regret, that, in
this case, a new and unoccupied region was made a battle-field for the
contending sections of the Union. But, however this may be, we pro-
test against an effort, by means of a clamor about popular sovereignty,
which tends to wrench the Constitution out of its appropriate sphere,
to render its harmonious action impracticable, and to throw unlimited
political authority into the hands of communities which may requtre,
for their own good and the good of the country, the strong restraining
hand of a " superior." Train the people of every Territory, as fast as
you practicably can, in the business of self-government; but do not
begin with ignoring your duty to deal out political power just as fast as
they can safely be intrusted with it, and no faster, merely because you
desire to contrive a short-hand method of disposing of the " slavery
question," or to avoid the responsibilities which that question involves.
If you believe that the Constitution, proprio vigore, carries slavery
into the Territories, march up to the point, and say so. If you believe
that it does not, but that legislation is necessary to plant slavery there,

21

vote yes or no when such legislation is proposed. If you think it
inexpedient to have the question decided while the Territorial condition
continues, place that question in abeyance by suitable provisions. If
you wish to leave it to the people of a particular Territory to decide it
for themselves before they acquire the right of self-government by
becoming a sovereign State, confer on them the necessary power. But
take care how you emasculate the Constitution by a doctrine which
will return to plague your invention in a hundred ways, and will render
the full and free administration of the Federal Government impracti-
cable, by making the sovereignties of the States and the sovereignties
of the Territories one and the same.

The sovereignties of the " States " are founded in something more
than an abstract right of self-government. We are not to forget that
they are older than the Federal Constitution ; that the Federal system
itself is the embodiment of certain portions of sovereign power which
the States originally held, but which they found it convenient and
necessary to part with, and to vest in a central authority, for their com-
mon good ; and that if, for the same great object of the common good,
they deemed it necessary to convey to that central authority their
several claims to unoccupied territory, or their several rights to acquire
territory outside of their respective limits, it is not a very probable
supposition that they intended to convey their political jurisdiction over
such regions to any power but that which they had instituted as their
common agent for the accomplishment of the objects which they had in
view. They held, without doubt, most tenaciously to their right of
popular sovereignty; that is, the right of self-government. But this
right, as embodied in the idea of State sovereignty, is founded, likewise,
in the proud consciousness of capacity for its exercise. That lofty
State independence, which feels an encroachment like a wound, is the
result of conscious fitness for the condition which it jealously guards,
and which use has made normal. How strange it seems, that political
societies, which have thus blended together in their own existence the
ideas of an abstract right and a capacity of self-government, should be
supposed to lay the former only at the foundation of new communities,
and to treat the latter as of no account in the formation of a system for
the creation of new members of their general confederacy ! Again and
again has each generation, since the Federal Constitution was esta-

22

Wished, witnessed the settlement of Territories, whose inhabitants, in
the earlier stages of their career, have been practically incapable of
holding and fulfilling the trusts of a full self-government. How can it
be otherwise in sparsely settled regions, where the people have not
been accustomed to act together ; where they come from communities
of differing political ideas ; where some have had no civil training at all,
where others are entirely lawless, while a few are perhaps skilled in
all the arts of political management; where no homogeneous popular
character has been formed ; and where there are as yet none of the
institutions which brace society together, and none of the settled habits
of order which precedents supply ? When we consider what legislation
sometimes results from general suffrage, even in our oldest States, we
cannot see in the doctrine of popular sovereignty in the Territories,
with all that is claimed for it by one of the wings of modern democracy,
any thing that should cause us to embrace it for its wisdom and expe-
diency, any more than for its conformity to sound constitutional prin-
ciple.

We have said that the sovereignties of the States are founded in
something more than an abstract or natural right. Let us now add to
the illustrations which we have already suggested upon this point the
further fact, that the very idea of State sovereignty involves the exist-
ence of some system of fundamental law, which we call a constitution.
No one can conceive of a State, a sovereign member of this Union,
without some restraints of fundamental law, — self-imposed, it is true,
and resting upon the popular will, but defining the limits of legislative
power, operating to protect the minority against the majority, the weak
against the strong, and preventing the government from being the
mere despotism of an irresponsible mob. It is the presence of these
restraints on popular power — voluntarily assumed, but at the same
time solemnly incorporated into public compacts — which makes a
democracy a republic, and secures the individual against injustice and
oppression. Without this high achievement in political science, the
sovereignty of a State would be destitute of its noblest attribute. This
is the diadem which popular sovereignty places upon its own brow";
and, if it were lost, all would indeed be lost with it.

But how can these restraints, or any fundamental law whatever,
save the act of Congress which organizes it, exist in a Territory ?

23

There, no local constitution throws its shield over private or public
rights. There, if we accept the theory of "popular sovereignty"
which we are invited to embrace, there can be no restraints upon the
absolute will of the majority ; and legislation may be, as we have seen
it in Kansas, violent, prescriptive, and tyrannical, disgraceful to the
age, and shocking to the common sense of mankind, without the least
remedy on earth for the individual, because there is no test of esta-
blished principle, in the nature of a Bill of Rights, to which such legis-
lation can be brought. In a Territory, there is absolutely nothing that
can answer to the place of a Bill of Rights for individuals ; and there
is nothing that can fill this place, for the Territories, except the large
superintending discretion of Congress, — the public conscience of the
nation, — which can watch the Territorial legislation, and can restrain
it where it ought to be restrained.

If we look to the practical benefits which are expected from this
new doctrine of " popular sovereignty," in reference to " the slavery
question," we see still less to hope from it. The grand recommenda-
tion with which it is presented to us is, that it will prevent agitation of
the slavery question in Congress. In the session of 1853-4, Mr.
Douglas carried his point. He procured the repeal of the Missouri
Compromise, and obtained a Congressional declaration, that the Fede-
ral authority would neither put slavery into or put it out of Kansas,
but that the people of that Territory should be perfectly free to
decide this question for themselves. We were told that this legisla-
tion was to put the slavery question and all agitation of it out of
Congress, and that universal peace was to reign. We may give all
credit to Mr. Douglas for patriotic motives ; but how has his experi-
ment succeeded? For five years, we believe, there has not been a
session of Congress during which this subject has not been discussed.
It could not have been otherwise. The direct consequence of throwing
this matter into Kansas, to be acted upon there in the legislative body,
in the attempts to make constitutions, in the struggles of parties, re-
enforced as they were by outside intermeddlers, was, that an almost
countless series of questions was thrown back into Congress, invok-
ing and precipitating constant agitation of the subject of slavery.
"Topeca" and "Lecompton," of necessity, claimed the intervention
which the organic act had vainly undertaken to forestall and prevent.

24

It is not extravagant to say, that there has been more and worse agita-
tion of " the slavery question " in Congress, in the last five years, in
consequence of this effort to put the subject out of Congress, than
could have taken place if the National Legislature had proceeded, after
having made a clean field by removing the Missouri restriction, to
consider anew, on grounds of expediency, whether slavery should or
should not be directly introduced and legalized in that unhappy Ter-
ritory.

If we turn to the state of things that has existed in Kansas itself,
we cannot fail to see the utter futility of the hope that the Federal
Government would be relieved from embarrassment by remitting the
decision respecting slavery to the supreme arbitrament of "popular
sovereignty." The Federal Executive was forced to remove governor
after governor, and secretary after secretary, because " the policy of
the administration," in respect to the principles of the organic act and
its requirements, was supposed to be misunderstood or misinterpreted
by those local functionaries. The Territory was torn by factions,
whose struggles created a civil confusion amounting nearly or quite to
civil war, in which the intervention of the National Government became
absolutely unavoidable. This intervention carried with it, naturally,
inevitably, some further display of " the policy of the administration."
That policy was supposed, rightfully or wrongfully, to have a leaning
on the subject of slavery. The acts of the Executive and its supposed
policy could not escape examination in Congress ; and the whole cir-
cumstances of the case led to discussions, which opened again and again
the widest door for the introduction of bitter sectional controversy.

As it has been, so it will be again if a similar course is again
pursued. The expedient of "popular sovereignty" will be of no more
efficacy in keeping the subject of slavery out of Congress hereafter
than it has been heretofore. If all branches of the Government and
a majority of the people of the whole country were to acquiesce in
the doctrine that Congress cannot rightfully legislate directly on the
subject of slavery in the Territories, it would still be in the power of
Congress to exert an indirect influence; that influence would be in-
voked ; and the invoking of it would produce agitation, as extensive,
«s fierce, and as dangerous as any discussion of a proslavery or an
antislavery bill. For if we suppose the case of a Territory whose

25

inhabitants, proceeding to decide this question for themselves, had evi-
dently determined to decide it against the wishes of a majority, or even
of a strong minority, of the States, as represented in Congress, it would
be impossible for them to deal with it in such a way as to remove it
out of the indirect reach of that majority or minority. The opportuni-
ties for throwing impediments in their way, without direct violation of
their " sovereignty," would be endless ; and those opportunities would
produce Congressional agitation. Kansas, with all the boasted non-
intervention of its organic act, has proved this to demonstration.

Another of the practical benefits which Mr. Douglas seems to pro-
mise himself will flow from the doctrine of " popular sovereignty " is
that it will furnish an answer to the extreme Southern pretension, that
slavery goes into a Territory by force of the Constitution of the United
States, and that the people of the Territory cannot legislate to keep it
out. He denies that this pretension has received any sanction from
the opinions expressed by the majority of the Judges in the Dred Scott
case ; and he maintains, that, while those opinions sustain his denial of
the power of Congress to legislate directly against the introduction
of slavery into a Territory, they do not negative the power of the
people of the Territory to exclude it by their own action. We differ
entirely from Mr. Douglas in respect to this point ; and will now pro-
ceed to show why the views expressed in the case of Dred Scott are
entirely irreconcilable with his doctrine of " popular sovereignty."

It is difficult to speak of the case of Dred Scott with proper pre-
cision. To call it a decision, without a great deal of discrimination, is
quite incorrect. The conclusion arrived at by a majority of the Court
was, that the plaintiff could not maintain his action. But most lawyers,
who have examined the case critically, are aware, that in consequence
of the peculiar state of the record, as it came before the Supreme
Court, the views expressed by the several Judges (who united in the
above-mentioned conclusion), respecting the legislative power of Con-
gress over the Territories, do not constitute a judicial decision, so as to
overrule the series of former cases, which had affirmed that Congress
possesses a municipal authority over the Territories by virtue of what
has been called the Territorial clause of the Constitution * (Art. iv.

* See the note on the Dred Scott case, in the APPENDIX, A.
4

26

sect. 3). At the same time, it is undoubtedly true, that a majority of
the Judges did give their personal sanction to two propositions : first,
that Congress derives no municipal authority over the Territories from
the Territorial clause ; and, secondly, that, whatever its authority may
be, slave property cannot be excluded by Congress from any place
where Congress has jurisdiction. Now, in order to see whether the
same Judges did not equally maintain that the Territorial legislature
is also destitute of power to exclude slave property, we have only to
look at the opinion of the Chief-Justice, which was written and read
as the opinion of a majority of the Court. From that opinion, we
maintain that Mr. Douglas can derive no support for the power of a
Territorial legislature to exclude slavery ; but that, on the contrary,
the opinion negatives the power of both Territory and Congress.

The Chief-Justice maintains, that while Congress may have an im-
plied power to regulate the political organization of a Territory, in
order to prepare it for admission as a State, yet that Congress has no
power of legislation which can reach a subject to which the Constitution
has extended its protection, which it has placed under certain guaranties,
and which is, therefore, as fully excluded from the control of Congress
as if it were named in an express prohibition. In order to establish
the last of these conclusions, the venerable Chief-Justice refers to the
express prohibitions which the Constitution has imposed as restrictions
upon the powers of Congress, — such as the prohibition against making
laws respecting an establishment of religion ; the quartering of soldiers
in time of peace ; the depriving any person of life, liberty, or property,
without due process of law, &c., — and he shows conclusively, that
neither in a Territory nor in a State can Congress exercise any
power over the person or property of a citizen, beyond what the Con-
stitution confers, or lawfully deny any right which it has reserved.
This position, which is taken with great strength, and which no
Constitutional lawyer will contest, is thus summed up by the Chief-
Justice : —

" The powers over person and property of which we speak are not only
not granted to Congress, but are in express terms denied ; and 'they are [it
is] forbidden to exercise them. And the prohibition is not confined to the
States ; but the words are general, and extend to the whole Territory over
which the Constitution gives it [Congress] power to legislate, including those

27

portions of it remaining under Territorial government, as well as that covered
by States. It is a total absence of power everywhere within the dominion of
the United States, and places the citizens of a Territory, so far as these
rights are concerned, on the same footing with citizens of the States, and
guards them as firmly and plainly against any inroads which the General
Government might attempt under the plea of implied or incidental powers.
And, if Congress itself cannot do this, — if it is beyond the powers conferred
on the Federal Government, — it will be admitted, we presume, that it could
not authorize a Territorial government to exercise them. It could confer no
power on any local government, established by its authority, to violate the
provisions of the Constitution." *

From this, it is sufficiently apparent that the Chief-Justice meant
to lay it down as a proposition which admitted of no denial or excep-
tion, that where there is a right secured or guaranteed by the Constitu-
tion, or a prohibition imposed on the legislative power of Congress
which that body is forbidden to violate by its own action, the Territo-
rial legislature is equally forbidden ; because Congress cannot autho-
rize any body to do that which it is itself prohibited from doing. Now,
the mode in which the Chief-Justice places slavery within this undenia-
ble principle is this, — that although the Constitution contains no
express prohibition against the passing of laws respecting slavery, yet
that it manifestly withholds the power to decide what is or is not to be
regarded as property ; that it not only withholds this power, but that it
recognizes the right of property of the master in a slave, and recog-
nizes no distinction between that and all other property; that, this
right of the master being thus recognized by the Constitution as a right
of property, no tribunal, acting under the authority of the United States,
can take away that property without due process of law ; and that a
legislative act forbidding a citizen to bring his property into a particular
Territory would deprive him of it " without due process of law." — " And
if the Constitution," says the Chief-Justice, " recognizes the right of
property of the master in a slave, and makes no distinction between
that description of property and other property owned by a citizen,
no tribunal acting under the authority of the United States — whether
it be legislative, executive, or judicial — has a right to draw such a dis-
tinction, or deny to it the benefit of the provisions and guaranties

* Opinion of Mr. Chief-Justice Taney in the case of Dred Scott, 19 Howard, 450.

28

which have been provided for the protection of private property against
the encroachments of the government."

Hence it is quite plain, that when Mr. Douglas reads the opinion
' of the Chief-Justice as if, in speaking of those things which neither
Congress nor its creature the Territory can do, he intended to embrace
only the express prohibitions of the Constitution, and therefore did not
mean to exclude " the slavery question " from the legislative power of
a Territory, he does not appreciate the Chief-Justice's argument : for it
is clear, from the whole tenor of that argument, that it meant to bring
slave property, as property, within the protection of the Constitution,
and to deny that there is any authority in any legislative body, orga-
nized under the Constitution, to exclude it from any place where such
body has jurisdiction ; because such exclusion would be a depriving the
citizen of his property " without due process of law ; " which cannot be
done, either by the Territory or by Congress.

We are not at present concerned with what we believe to be the
true answer to this argument ; but we wish to impress upon our
readers, that every thing depends upon the truth and extent of the two
postulates, — first, that the Constitution recognizes, and means to pro-
tect, slaves as property ; and, secondly, that to legislate for its exclusion
from a particular place, which is under the jurisdiction of Congress,
violates that provision of the Constitution which declares that "no
person shall be deprived of life, liberty, or property, without due
process of law."

If these positions are well taken, the conclusion is inevitable, that
neither Congress nor the Territorial legislature can prevent the intro-
duction of such property into any Territory of the United States.

We may well ask, then, of what avail is " popular sovereignty " to
be against this doctrine ? Mr. Douglas himself allows, that the sove-
reignty of the people of a Territory is subject to the restraints imposed
by the Constitution of the United States. Indeed, it would be impos-
sible for him to construct his theory upon any other basis ; for whether
the sovereignties of the Territories are or are not to be regarded as
subjected to the same restraints which are imposed upon the sovereign-
ties of the States, it is certain that the legislative power of a Territory,

29

which is called into existence by the action of Congress, can have no
greater latitude than the Constitution allows to the power of Congress
itself. " Popular sovereignty," therefore, can furnish no answer to the
doctrine which a majority of the Judges of the Supreme Court unques-
tionably did sanction in the case of Dred Scott, although the technical
posture of the record in that case was not such as to give their affirm-
ance of this doctrine the force of a judicial precedent. That doctrine
can only be met by asserting the general legislative authority of
Congress over the Territories, and by showing that this authority is
not restrained in respect to slavery in the mode contended for by the
Chief-Justice.

This last position is to be established by showing that the Constitu-
tion simply recognizes the fact, that in certain of the States there are
persons who, by the local laws of those States, owe service to certain
other persons ; that this relation, founded in the local law, is recognized
beyond the dominion of that law, only in the exceptional case of an
escape into a State to whose local law it is unknown ; and that, as it is
competent to a State to make the law of personal relations within its
own limits (subject to the exception of an escape), it is in the same
way competent to Congress to make that law where Congress has
exclusive jurisdiction ; namely, in the Territories.*

No one can have observed attentively the signs of the times, with-
out perceiving the influence which the doctrine of" popular sovereignty "
has had, and is yet likely to have, in promoting the extreme Southern
claim for an active interference by Congress to protect slave property
in the Territories. In this respect, we look upon this doctrine as one
of the worst among the various provocatives of sectional agitation.
There are many politicians, and other persons who are not politicians,
in the South, who feel strongly on the subject of their general claim to
emigrate into regions which confessedly belong to the people of the
whole Union, and to carry with them that form of labor to which they
are accustomed. They know that Congress is the administrator of the
public domains of the Union, in trust for the common good ; and, in a
pending case, they would feel the necessity, and at the same time the
equity, of an appeal to Congress to give them that protection without

* See the note on the property doctrine, in the APPENDIX, B.

30

which their abstract claim of right would be of no value. But the
doctrine of "popular sovereignty" turns them away from the doors
of Congress, — the legitimate umpire with respect to their claim to
share in the common domain, — and sends them to a tribunal where
they may not be represented, and where, if they are represented, the
decision. may be nothing but the result of a social scramble. Who can
wonder, then, that they are driven by this new dogma into the mainte-
nance of a theory that will override it ? — the theory that the Consti-
tution itself protects slaves as property, and that, where the jurisdiction
of Congress exists, it is bound to legislate for the protection of that
which the Constitution sanctions and recognizes. You propose to
deny them a hearing in Congress, and to send them before the people
of a Territory for a decision of a purely equitable claim, which
addresses itself to the national justice. If you thus ignore your duty
to decide, how can you expect that they will not convert their equitable
claim into a claim of positive right, and thus circumvent you if they
can ?

We have no faith in any of the expedients for quieting sectional
controversy which involve a negation of the proper duty of Congress.
All such expedients have a necessary tendency to multiply the occasions
and causes of strife. If either section of the Union were to be outvoted
in Congress on the direct question of slavery in a Territory, the mis-
chiefs to be apprehended from the result would bear no comparison with
such a state of things as that which followed the reference of this ques-
tion to the people of Kansas.

Having thus endeavored to show that "popular sovereignty" is
likely to be attended with no practical advantages, we beg leave to
ask of our Democratic friends, why they cannot cease to agitate about
the means of putting an end to agitation. If any voice of ours could
reach them, we would respectfully but firmly inquire of the great
Democratic party of this country, what they expect to gain by the
establishment of this theory of popular sovereignty in the Territories,
if they shall adopt it, and shall succeed in carrying a popular election
by it, as the means of disposing of " the slavery question." Whether'
rightfully or wrongfully maintained, when a Presidential election is
carried upon a Constitutional doctrine, that doctrine becomes, in the
practical administration of the government, a settled construction, — at

31

least, for the party which adopts it, — however ill adapted the popular
tribunal may be for the correct decision of such a question. The
Democratic party, therefore, if it succeeds upon this doctrine, will
consistently adhere to it. It will administer the government, in
respect to the affairs of all Territories, upon the principle laid down
by Mr. Douglas ; namely, that Congress has no power to interfere
in respect to their local or municipal affairs. It will organize all
Territories, hereafter, not simply with a concession of " popular
sovereignty " on this particular matter of slavery, but without any
reservation to Congress of the least control over the Territorial legis-
lation on any domestic subject whatever. Let the mischiefs of that
legislation be what they may, the Democratic party must reap as it
shall have sown, and can only profess the inability of the Federal power
to afford either preventive or cure.

Are our Democratic countrymen prepared for this surrender of the
authority of Congress ? If they would fall back, in respect to the mere
" slavery question," upon the doctrine of a majority of the Judges in the
Dred Scott case, and would say that the legislative authority of Con-
gress is restrained, because the property character of slavery brings it
within one of the positive prohibitions which the Constitution has laid
upon all the powers of Congress, their course would be intelligible,
unsound as we might be disposed to regard it. But they are urged to
go much beyond this : they are counselled to abrogate the entire legis-
lative and superintending jurisdiction of Congress over the Territories,
without looking to see whether a case of special prohibition is or is not
made out. For ourselves, we do not mean to consent to this abdi-
cation in favor of the people of any Territory, on the slavery or any
other question, however willing we might be to confer on them the
faculty of self-government in suitable cases.

To show that we have not overstated the consequences of a general
denial of the municipal authority of Congress over the Territories, we
desire to vouch the testimony of Mr. Justice Catron, — a man of great
fearlessness, a citizen of a slaveholding State, and, in his early days, a
political disciple of Andrew Jackson ; whose life and actions certainly
tended to any thing rather than to a diminution of the Federal powers.

In considering the various grounds on which the Court had been

32

urged, in the Dred Scott case, to decide that Congress could not legis-
late to exclude slavery from a Territory, Judge Catron was evidently
struck with the consequences of that sweeping denial of the general
authority of Congress over Territories, which is embraced in the
political phrase " popular sovereignty." He knew, that, in regions
beyond the Mississippi, his official duty had, for nearly twenty years,
called upon him to perform judicial acts whose validity rested on the
lawful supremacy of Congress over the Territories and their inhabitants ;
and that, sitting on the Supreme Bench at Washington, he had united
with his brethren in declaring that that supremacy rests upon the
power " to make all needful rules and regulations " for such Territo-
ries. When, therefore, he came to announce his concurrence with
those of his brethren who held the Missouri- Compromise restriction
void, he used the following significant language ; which we commend to
all advocates of the doctrine of" popular sovereignty," as it is expounded
by Mr. Douglas : —

" It was hardly possible [in framing the Constitution] to separate the
power ' to make all needful rules and regulations ' respecting the government
of the Territory, and the disposition of the public lands. ... It is due to
myself to say, that it is asking much of a Judge who has, for nearly twenty
years, been exercising jurisdiction from the western Missouri line to the
Rocky Mountains, and, on this understanding of the Constitution, inflicting
the extreme penalty of death for crimes committed where the direct legisla-
tion of Congress was the only rule, to agree that he had been, all the while,
acting in mistake and as an usurper.

" 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 vs. Harrison
(16 Howard, 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 territory 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 question 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

33

force of the instrument under whose authority the country was acquired ;
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" *

In conclusion, we have only to say, that it has for some years
excited our special wonder to observe how politicians and parties, and
even the people of the United States, go on in reference to this relation
of the Federal Government to the Territories, apparently without think-
ing of that portentous cloud which hangs upon our Western horizon, —
the Territory of Utah. The country is actually about to be precipitated
into a Presidential election, in which the sweeping doctrine is to be
proclaimed, — perhaps to be sanctioned, — that the Federal power can
exercise no interference whatever with the local and municipal con-
cerns of the inhabitants of any of its Territories ; while, at this very
day, a problem is before us at which statesmen may stand aghast, and
which may call for all the Constitutional power that our fathers devised,
and for all the physical resources that the country can spare, to enforce
its supremacy.

With respect to the topic of slavery, as involved in the exercise
of the jurisdiction which we contend rightfully belongs to Congress in all
the Territories, we desire to say, that we advocate and earnestly pray for
a return, if such a return be possible, to the policy of those who founded
the Federal Government, and who administered it with the knowledge
which, as its founders, they must have possessed. That policy was as far
removed from all previous or abstract popular agitation of this question
as it was eminently liberal, wise, and practical. Our fathers waited
until they had a Territory to organize and a Territorial government to
provide. When this practical duty was before them, they inquired who
were the present, or who were likely to be the future, settlers ; .what
would subserve the interests, or be in accordance with the wishes, of
those settlers ; and, if the circumstances by which the case was surrounded
seemed to require it, they sought for such a compromise of the merely
sectional demands involved in it as justice, fairness, and comity would
dictate. In this way, while they endeavored to guard the Southern

* Opinion of Mr. Justice Catron in the case of Dred Scott, 19 Howard, 522-3.

Territories (even before the year 1808) against the introduction of fresh
slaves from Africa, they permitted Southern men to enter those Territo-
ries with the slaves which they already possessed. In this way, too,
they succeeded, both before and after the Constitution, in impressing
an unalterable condition of freedom upon the whole region north-
west of the Ohio. They thus made Free States and Slave States, side
by side, without sectional feuds, down to the time of the Missouri
Compromise, which was the first occasion on which this question
seriously threatened the harmony of the Union. How the dangers of
that occasion were avoided, all of us understand.

Since that period, what has the history of the country demonstrated ?
It has shown, beyond the possibility of denial, that, whenever popular
agitation begins in reference to what is called the extension of slavery,
it inevitably runs into a chronic inflammation of the sectional passions,
engendering extravagant doctrines and unreasonable demands, at both
ends of the Union. In the South, such doctrines and demands take
the shape of a revival of the slave-trade, and the scriptural warrant
for slavery : in the North, a fierce and uncalled-for hostility to the
special feature of Southern society becomes developed into plots and
conspiracies for the liberation of those over whose condition we have
neither a legal nor a moral right of jurisdiction, and in the execution of
which not a single step can be taken without bloodshed. Now, unless
we mean to go on in this way until we have created both a civil and
a servile war for the gratification of a few madmen, we must consider
what are our duties, and must proceed resolutely to discharge them.

One of the first of our duties, which is as much incumbent on the
people of the South as it is on the people of the North, is to divest
ourselves of the influence which an exaggerated sense of the importance
of this Territorial-slavery question has exerted over our minds. It has
been found, in both sections, to be an engine useful to the politician.
This very capacity of the subject — its capacity to win votes for parties
or individuals — should lead us to watch its treatment with the utmost
jealousy, and to watch its influence over ourselves. If, in so doing, the
people of either section would calmly consider what degree of -practical
importance belongs at any time to this question, apart from all other
matters involved in the relation of the Federal Government to the

35

Territories, they would find that its chief value consists in its power
of creating political excitement ; or, in other words, in its power for
mischief. This being the case, our next imperative duty is to make
ourselves fully sensible of the fact, that neither of the political parties,
which are responsible for the agitation of this question, has dealt
with it wisely or properly. The Democratic party, for example, found
this question, six years ago, in reference to all the territory then de-
manding organization, settled by a compromise which had stood on
the statute-book for more than thirty years. They repealed that settle-
ment ; from what motive, we do not now inquire. They thus repudi-
ated the policy of settling the character of particular Territories by
Congressional compromise or arrangement ; and, so far as they could
do it, rendered a resort to that ancient and peaceful method exceedingly
difficult, if not impracticable, hereafter. They thus entailed upon
themselves the necessity of finding some rule, of a universal and perma-
nent character, which would furnish a solution of the difficulty created
by their abrogation of the old policy. In pursuit of this rule, they have
been ever since —

" In wandering mazes lost."

Agreeing only in their repudiation of the power of Congress to prohibit
slavery in a Territory, they present the spectacle of a great national
party seeking in the most contradictory ways for an answer to the
question, T- which they never should have suffered to arise, — What is
the true condition of a Territory, when there is neither prohibition nor
sanction of slavery by Congressional interference ?

We say this in no spirit of triumph or exultation ; for we regard it
as a national misfortune, when a political party, strong by its ramifica-
tions throughout the country, and renowned for its fidelity to the Union,
paralyzes its own power of usefulness by such a course. It is difficult
to conceive of a greater political error than the one that was thus com-
mitted by the Democratic party. It immediately gave rise to what
ought to have been foreseen, — the pretension, on the part of their ex-
treme Southern wing, that slavery goes into a Territory against the will
of both Congress and the people of that Territory ; while it compelled
the Northern portion of the same party to look about for a doctrine on
which they can exist in the Free States, and to find it in "popular

36

sovereignty," which overturns the supremacy of Congress on a vast
many other subjects as well as on the subject of slavery.*

But this was not all, if it was even half, of the evil. A political
party must have an antagonist in every free, constitutional government ;
and, although the Democracy succeeded in scattering their ancient op-
ponents, another organization arose to be their adversaries. The denial
by the Democratic party of the power of Congress to exclude slavery
from a Territory, led the Republicans, of course, to embrace 'and
defend that power ; and, if the Republicans had contented themselves
with the discharge of this obvious duty, they might have restored the
Constitution to its true position, and have earned for themselves a title to
be called benefactors of their country. This was their mission ; and
rarely has there been a higher one presented to any political organiza-
tion. But, easy as it may be to trace their error, it is not so easy to
excuse it. They should have made themselves the defenders of the
supremacy of Congress over the Territories, and should have vindicated
its power to deal with slavery therein, as with all other things, whether
by compromise, or by naked legislation without compromise. But here
they should have stopped.

Instead of this, they mingled with this great argument — which
demanded Southern as well as Northern support, and to which the
South should have been won by the power of reason and the persuasive
gentleness of brotherly love — the untenable dogma, offensive at once
to Southern pride, that the power is a power to prohibit, and includes no
authority to establish or sanction, slavery. They declared, that, every-

* As we write these paragraphs, we read in the " Chicago Times," a paper in the
interest of Mr. Douglas, that, " from the day of Mr. Douglas's triumph in Congress
over the administration in the affair of Lecompton, he has been denounced as a traitor,
and every man has been proscribed who avowed sympathy or conviction with him.
The masterly Essay on 'The Dividing Line between Local and Federal Authority'
thus became necessary, as well to his own vindication as for the rescue of the party
from impending ruin."

An impartial spectator cannot fail to ask why it is that the Democratic party is
exposed to "impending ruin;" and such a spectator cannot avoid seeing, that when
a political party departs from established principles of the Constitution, seeking fojr
new theories to take the place of plain Constitutional powers long recognized and
acted upon, it must necessarily become divided against itself in the pursuit of such
theories. Had the Missouri Compromise been left undisturbed, neither Mr. Douglas
nor "the administration" would ever have had occasion to contend about "popular
sovereignty in the Territories."

37

where and under all circumstances, the slaveholder shall be excluded
from the national domains, if he goes with the servants whom he
possesses at home. They sought to rouse the Free States, by a general
antislavery agitation, to a combination for the enforcement of a policy,
the declaration of which increased instead of diminishing the perils to
which the Constitutional power was already exposed. These were acts
of consummate imprudence. They were acts which gave the control of
the Republican party to its least reliable members ; made its fanatics
leaders ; and, of necessity, reduced it to the position of a purely sectional
organization, to be feared and abhorred throughout one-half of the
Union. Over this error, too, we have no feeling of gratification to
indulge. It is mournful to see a noble cause frustrated by those to whose
hands fortune has committed its defence. It is mournful to see a great
Constitutional power which was lodged by our fathers in their frame of
government, for wise and beneficent purposes, and which can alone
furnish a safe means of disposing of questions which imperil our peace,
thus put still further from its office by the indiscretion of those who
ought to have gained for it the glad acquiescence of the whole land, by
making the South to feel that her interest in its maintenance is even
greater than the interest of the North.

APPENDIX.

A.

Note on the Dred Scott Case, referred to ante, p. 25.

THE decision of the Supreme Court of the United States in the Dred Scott
case is so little understood, and its character as a judicial precedent is so
generally misapprehended and so often misrepresented, that the following
analysis of it may be useful.

The plaintiff, Dred Scott, brought an action of trespass in the Circuit Court
of the United States for the District of Missouri, against the defendant, Sand-
ford, for the purpose of establishing his freedom ; and according to the require-
ments of law, in order to gain the jurisdiction of the Court, the plaintiff, in his
writ, averred himself to be a " citizen " of the State of Missouri, and the
defendant to be a " citizen " of the State of New York. The defendant filed
a plea in abatement, alleging that the plaintiff is not a " citizen " of Missouri,
because he is a negro of African descent, his ancestors having been of pure
African blood, brought into this country and sold as slaves. To this plea the
plaintiff demurred ; and, as by his demurrer he admitted the facts alleged in
the plea, the sole question on the demurrer was the question of law, whether
a negro of African descent, whose ancestors were slaves, can be a citizen of
the United States, for the purpose of suing a citizen of another State than
his own in a Circuit Court. The Circuit Court gave judgment for the plain-
tiff on this question ; and the defendant was ordered to plead to the merits of
the action. He did so ; and the substance of his plea in bar of the action
was, that the plaintiff was his (the defendant's) slave, and that he had a right
to restrain him as such. Upon the issue joined upon this allegation, the case
went to trial upon the merits, under an agreed statement of facts, which
ascertained, in substance, that the plaintiff, who was a slave in Missouri in
1834, was carried by his then master into the State of Illinois, and afterwards
into that part of the Louisiana Territory in which slavery had been prohibited
by the act of Congress called the Missouri Compromise, and was afterwards
brought back to Missouri, and held and sold as a slave. The jury, under the
instructions of the Court, found that the plaintiff, at the time of bringing his
action, was a slave; and the defendant obtained judgment. The plaintiff'

39

then sued out a writ of error to the Supreme Court of the United States,
which removed the whole record into that Court.

It will be observed that the record, as brought into the Supreme Court,
presented two questions : —

1. The question arising on the plea to the jurisdiction of the Circuit
Court, whether a negro of African descent, whose ancestors were slaves, can
be a citizen.

2. The question involved in the verdict and judgment on the merits,
whether the plaintiff 'was a slam at the time he brought his action. This
question involved, among others, the inquiry whether the Missouri Compro-
mise, which prohibited the existence of slavery in the Territory where the
plaintiff was carried, was constitutional or not.

The importance and effect of the Dred Scott decision depend entirely upon
the manner in which these questions were dealt with by the Supreme Court.
If either of them was judicially decided by a majority of the Bench in the
same way, the decision constitutes a judicial precedent, binding upon the
Court hereafter, and upon all other persons and tribunals, until it is reversed
in the same Court, to just the extent that such decision goes. If either of
them was not judicially decided by a majority of the Bench in the same way,
there is no precedent and no decision on the subject; and the case embraces
only certain individual opinions of the judges. The following analysis will
determine what has been judicially decided. The reader will observe, that,
when the plea in abatement is spoken of, it means that part of the pleadings
which raised the question whether a negro can be a citizen : the merits of the
action comprehend the question whether the plaintiff was a slave, as affected
by the operation of the Missouri Compromise, or otherwise. Keeping these
points in view, every reader of the case should endeavor to ascertain the true
answers to the following questions : —

I. How many of the judges, and which of them, held that the plea in
abatement was rightfully before the Court, on the writ of error, so that they
must pass upon the question whether a negro can be a citizen ?

Answer. — Four : Chief-Justice, and Justices Wayne, Daniel, and Curtis.

II. Of the above four, how many expressed the opinion that a negro can
not be a citizen ?

Answer. — Three : Chief-Justice, and Justices Wayne and Daniel.

Judge Curtis, who agreed that the plea in abatement was rightfully before
the Court, held that a negro may be a citizen, and that the Circuit Court,
therefore, rightfully had jurisdiction of the case.

The opinions of these four judges on this question are to be regarded as
judicial ; they having held that the record authorized and required its deci-
sion. But as there are only three of them on one side of the question, and
there is one on the other, and there were five other judges on the bench,
there is no judicial majority upon this question, unless two at least of the
other five concurred in the opinion that the question arising on the plea in

40

abatement was to be decided by the Supreme Court, and also took the same
view of that question with Judges Taney, Wayne, and Daniel.

But, in truth, there is not one of the other five judges who concurred
with the Chief-Justice and Judges Wayne and Daniel on either of the above
points.

Judge Nelson expressly avoided giving any opinion upon them. Indeed,
he seems to have leaned to the opinion, that the plea in abatement was not
before him : but, after saying there may be some question on this point in
the Courts of the United States, he goes on to say, " In the view we [I] have
taken of this case, it will not be necessary to pass upon this question ; and
we [I] shall therefore proceed at once to an examination of the case upon its
merits." He then proceeds to decide the case upon the merits, upon the
ground, that, even if Scott was carried into a region where slavery did not
exist, his return to Missouri, under the decisions of that State, is to be
regarded as restoring the condition of servitude. Judge Nelson has never
given the opinion that a negro cannot be a citizen, or that the Missouri Com-
promise was unconstitutional, or given the least countenance to either of
these positions.

Judge Grier, after saying that he concurred with Judge Nelson on the
question embraced by his opinion, also said that he concurred with the Chief-
Justice that the Missouri-Compromise Act was unconstitutional. He neither
expressed the opinion that a negro cannot be a citizen, nor did he intimate
that he concurred in that part of the opinion of the Chief-Justice : on the
contrary, he placed his concurrence in the disposal of the case, as ordered by
the Court, expressly upon the ground that the plaintiff was a slave, as alleged
in the pleas in bar.

Judge Campbell took great pains to avoid expressing the opinion that a
free negro cannot be a citizen, and has given no countenance whatever to
that dogma. He said, at the commencement of his opinion, after reciting the
pleadings, " My opinion in this case is not affected by the plea to the juris-
diction, and I shall not discuss the question it suggests." Accordingly, in
an elaborate opinion of more than twenty-five pages 8vo, he confines himself
exclusively to the question, whether the plaintiff was a slave ; and he adopts
or concurs in none of the reasoning of the Chief- Justice, except so far as it
bears upon the evidence which shows that the plaintiff was in that condition
when he brought his suit. He concurred with the rest of the Court in
nothing but the judgment ; which was, that the case should be dismissed from
the Court below for want of jurisdiction ; and that want of jurisdiction, he
takes good care to show, depends, in his view, on the fact that the plaintiff
was a slave, and not on the fact that he was a free negro, of African descent,
whose ancestors were slaves.

Thus there were only three of the judges who declared that a free negro,
of African descent, whose ancestors were slaves, cannot be a " citizen," for
the purpose of suing in the Courts of the United States, and whose opinions

41

on this point are to be regarded as judicial, because they were given under
the accompanying opinion, that the question was brought before them on the
record. As three is not a majority of nine, the case of Dred Scott does not
furnish a judicial precedent or judicial decision on this question.

With regard to the other question in the case, — that arising on what has
been called the merits, — the reader will seek an answer to the following
questions : —

I. Of the judges who held that the plea in abatement was rightly before
them, and that it showed a want of jurisdiction in the Circuit Court, how
many went on, notwithstanding their declared opinion that the case ought to
have been dismissed by the Circuit Court for that want of jurisdiction, to con-
sider and pass upon the merits which involved the question of the constitu-
tional validity of the Missouri Compromise ?

Answer. — Three : Chief-Justice, and Judges Wayne and Daniel.

II. Of the above three judges, how many held the Missouri-Compromise
Act unconstitutional ?

Answer. — Three : the same number and the same judges.

III. Of the judges who did not hold that the question of jurisdiction was
to be examined and passed upon, and gave no opinion upon it, how many
expressed the opinion on the merits that the Compromise Act was void ?

Answer. — Three : Judges Grier, Catron, and Campbell.

IV. Of1 the remaining three judges, how many gave no opinion upon
either of the two great questions, — that of citizenship, or that of the vali-
dity of the Compromise ?

Answer. — One : Judge Nelson.

V. Of the remaining two judges, how many, who held that the question of
citizenship was not open, still expressed an opinion upon it in favor of the
plaintiff, and also sustained the validity of the Compromise ?

Answer. — One : Judge McLean.

VI. The remaining judge (Curtis) held that the question of citizenship
was open upon the record ; that the plaintiff, for all that appeared in the plea
in abatement, was a citizen ; and, consequently, that the Circuit Court had
jurisdiction. This brought him necessarily and judicially to a decision of the
merits, on which he held that the Compromise Act was valid.

Thus it appears that six of the nine judges expressed the opinion that the
Compromise Act was unconstitutional. But, in order to determine whether
this concurrence of six in that opinion constitutes a judicial decision or pre-
cedent, it is necessary to see how the majority is formed. Three of these
judges, as we have seen, held that the Circuit Court had no jurisdiction of
the case, and ought to have dismissed it, because the plea in abatement
showed that the plaintiff was not a citizen ; and yet, when the Circuit Court
had erroneously decided this question in favor of the plaintiff, and had ordered
the defendant to plead to the merits, and, after such plea, judgment on the
merits had been given against the plaintiff, and he had brought the record

42

into the Supreme Court, these three judges appear to have held that they
could not only decide judicially that the Circuit Court was entirely without
jurisdiction in the case, but could also give a judicial decision on the merits.
This presents a very grave question, which goes to the foundation of this case
as a precedent or authoritative decision on the constitutional validity of the
Missouri-Compromise Act, or any similar law.

If it be true, that a majority of the Judges of the Supreme Court can ren-
der a judgment ordering a case to be remanded to a Circuit Court, and there
to be dismissed for a want of jurisdiction, which three of that majority declare
was apparent on a plea in abatement, and these three can yet go on in the
same breath to decide a question involved in a subsequent plea to the merits,
then this case of Dred Scott is a judicial precedent against the validity of the
Missouri Compromise. But if, on the other hand, the judicial function of
each judge who held that the Circuit Court was without jurisdiction, for rea-
sons appearing in a plea to the jurisdiction, was discharged as soon as he had
announced that conclusion, and given his voice for a dismissal of the case on
that ground, then all that he said on the question involved in the merits was
extra-judicial, and the so-called " decision " is no precedent. Whenever,
therefore, this case of Dred Scott is cited hereafter in the Supreme Court as a
judicial decision of the point that Congress cannot prohibit slavery in a Ter-
ritory, the first thing that the Court will have to do will be to consider and
decide the serious question, whether they have made, or could make, a judi-
cial decision that is to be treated as a Drecedent, by declaring opinions on a
question involved in the merits of a judgment, after they had declared that
the Court which gave the judgment had no jurisdiction in the case.

When it is claimed, therefore, in grave State-papers or elsewhere, whether
in high or low places, that the Supreme Court of the United States, or a
majority of its judges, has authoritatively decided that Congress cannot pro-
hibit slavery in a Territory, it is forgotten or overlooked, that one thing
more remains to be debated and determined ; namely, whether the opinions
that have been promulgated from that Bench adverse to the power of Congress
do, in truth and in law, constitute, under the circumstances of this record, an
actual, authoritative, judicial decision.

These observations respecting the Dred Scott case are submitted to the
public, and especially to the legal profession, with the most entire respect for
the several judges ; with every one of whom, the writer believes he may say,
he has the honor to sustain friendly relations, as he certainly reverences their
exalted functions. In perfect consistency with these sentiments, he may be
permitted to say, that whatever may be thought of the expediency of express-
ing opinions on every question brought up by a record, or argued at the bar,
there must always be a subsequent inquiry how far such opinions, in the
technical posture of the case, as it was pres'ented and disposed of, make a
judicial decision.

B.

Note on the Property View of Slavery, under the Constitution of the
United States.

It is difficult to appreciate the importance which some Southern men ap-
pear to attach to the doctrine, that the Constitution of the United States
recognizes slaves as property. It is a doctrine which cannot increase,
by one jot or tittle, the security of the master's right. That right
depends exclusively upon the law of the State, and is no more capable of
being affected by the Federal Government, when the Federal Constitution is
not held to recognize it as a right of property, than it is when the property
doctrine is admitted. In point of truth, the Federal Constitution takes notice
of the existence of the status of slavery in three modes only. First, it
secures to the federal authority, through the commercial power, the right to
prevent the increase of persons in the condition of servitude by importation ;
and there, in this direction, it stops, leaving it entirely to each State to per-
mit their increase by birth upon the soil of the State. Secondly, the Consti-
tution recognizes the fact, that besides the " free persons, including those
bound to service for a term of years, and excluding Indians not taxed,"
there may be in the States " other persons ; " it permits each State, in
making the basis of its Congressional representation, to add to its free popu-
lation three-fifths of these "other persons;" and, as it is perfectly well
known historically that this provision had reference to persons in the condi-
tion of servitude, it is quite legitimate to say that the Constitution, through
this provision, recognizes such servitude as an existing status of persons
under the local law. Thirdly, the Constitution requires that "persons
owing service" in one State, and escaping into another, shall not be dis-
charged of their service in consequence of any law of the State into which
they may have escaped, but shall be delivered up.

Now, what is there, in all this, which looks like a recognition of the right
of the master as a right of property, in the sense in which that term must be
used by jurists ? The Constitution neither defines, affects, nor deals with, the
right itself. If it is the pleasure of the State to abolish it, those who were its
subjects pass out of the scope of these provisions of the Federal Constitution.
If the State chooses to continue its sanction of the condition of servitude,
these provisions continue to operate : they continue to operate so long as
there are persons who come within the description, whether the State treats
them as persons or as property, or as both. Indeed, under the provision
relating to fugitives from service, there is no pretence to say that the Consti-
tution looks to any property ; for its terms embrace apprentices as well as
slaves.

44

It is of some consequence to the harmonious working of our complex sys-
tem of government, that the exclusive and irresponsible control of each State
over the personal condition of its inhabitants should not be felt to be capable
of being affected by any theory respecting the mode in which the Federal
Constitution recognizes the peculiarities of that condition. Of course, no
Slave State can ever permit its sovereign control over its inhabitants to be
put for a moment in peril ; not only because its peace and safety require a
jealous defence of its own prerogative, but because that prerogative affords
the only means by which we can rationally hope for a gradual amelioration
of the condition of the African race. It scarcely seems desirable, therefore, to
weaken the just foundations of this most important right, by maintaining
theories which are in no way necessary to its defence.

With regard to this property doctrine, as affording the means of securing
to slaveholders an entrance into the Territories with their slaves, we are
entirely unable to perceive its value. It will be conceded by every reflecting
person, that, when the right so to enter the Territories is established, it is a
mere abstraction ; and that, unless some means of protecting and upholding
the relation of master and slave are provided under the local law, the relation
will practically cease to exist. It is equally apparent that such protection
can only be obtained by legislation, either Congressional or Territorial. If
we suppose the application for a slave code to be made to Congress, how is
the case strengthened by the property doctrine ? If the property carried into
a Territory is of such a character as to require the protection of a peculiar
code, it is of very little consequence whether we call it property before it
arrives, or call it something else ; for, until the code is furnished, the thing
itself is of no value. Whether the necessary code shall or shall not be fur-
nished, depends entirely upon the legislative discretion of Congress. As the
appeal must be made to that discretion, it would seem to be far better to
have the whole matter depend at once upon those large considerations of
political expediency which should in the end govern it, rather than to under-
take to control the legislative discretion by an artificial subtlety, which sup-
poses a duty to do that which the legislative power cannot be compelled
to do.

Curtis, George Ticknor

The just supremacy of Congress

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