Chapter 3

Second--The prohibition of the ordinance, applied to territory substantially free from slavery, and which it was well understood was not adapted to slave labor. It raised no such question, as would have been raised, if it had been applied to territory where slavery then largely existed, or which was adapted to negro slave labor. It is, therefore, no precedent for Congressional action in such a case. The precedent of one case is not a rule of decision for another, unless the two are substantially alike. This noble ordinance of 1787, then rather affirmed a principle of freedom, than imposed a necessary practical prohibition, for it may be well to know, that notwithstanding the ordinance, there were as late as 1810, in Indiana, 237 slaves, and as late as 1820, in Illinois, 917 slaves, but upon a soil fitted by nature for the vigorous growth of freedom, African slavery, the tree of tropic climes, could not grow, and it withered and died, as it had done before in New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey and Pennsylvania.

In connexion with the ordinance of 1787, another point may be alluded to here. In a very able speech made by Mr. Upham of Massachusetts, in opposition to the Kansas and Nebraska bill in the House of Representatives on 10th of May 1854, the point is made, that the prohibition of slavery in the ordinance of 1787, and the provisions of the Constitution regarding slavery, were the result of a bargain between the North and the South, by which the North gained on one hand exclusion of slavery from the North-west territory, and the right first to tax, and after twenty years to prohibit the African slave trade, and the South on the other hand gained the right to representation in slaves, the right to continue to import them for twenty years, and the right forever to reclaim fugitive slaves. According to this theory, the slave representation, the reclamation of fugitive slaves, and the right to twenty years of the African slave trade, were, to use Mr. Upham's language "the equivalent paid by the free States to the Slave States, in consideration of the abandonment by the Slave States of all claim to extend their slavery beyond their own limits." It is undoubtedly true, that the ordinance of 1787 and the Constitution were almost concurrent acts, but the facts of history will not sustain Mr. Upham's assumption of a bargain to the extent stated, yet it has sufficient basis to warrant the point, that the ordinance of 1787 was a compact and a compromise, and was never intended by the South as a concession of any right or power in Congress arbitrarily to prohibit slavery in any territory of the United States. It may be true that for their consent to have slavery excluded from the North-west territory, the South received an equivalent, but the exclusion and the equivalent applied only to the North west territory, and as to all territory thereafter acquired, the question remained the same as before the ordinance of 1787, and must depend on the Constitution itself, unaffected by the precedent of the ordinance. Let us consider the question under the Constitution.

It was resolved at the Republican Convention of 1856 in Philadelphia, and I do not understand the Republican party of 1860 to have abandoned the position, "That the Constitution of the United States confers upon Congress sovereign power over the territories of the United States for their government, and that in the exercise of this power, it is both _the right_ and _the duty_ of Congress _to prohibit_ in the territories, those twin relics of barbarism, polygamy and slavery."

This sweeping assertion of sovereign power in Congress over citizens of the United States in territories, of course affirms that Congress can do for the territories all or even more than a State government can do for a State. Mr. John Pettit, late United States Senator from Indiana, has made the broadest assertion of Congressional sovereignty, for he has said and endeavored to prove that it is "_absolute, unconditional, unlimited authority_"; such, in fact, as would enable the Federal government to sell the citizens of the territories into slavery. Power to do an act is one thing--a constitutional right to do it is another. I do not concede Mr. Pettit's authority for Congressional sovereignty, even though he be one of Mr. Buchanan's Judges in Nebraska, but it is interesting to note, by way of parenthesis, how wonderfully Republican doctrine on one extreme, and Buchanan or Breckinridge doctrine on the other, work together to a common center, Congressional or Federal government despotism.

It is vain to look for any express warrant for any such power in the Constitution, except in the language of the 3d section of the 4th article, declaring that--"_The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States_."

Assuming that this is a grant of power to govern the people of United States territory, in the ordinary sense of sovereign legislative power, such as that possessed by the States for example, this anomalous conclusion would follow: that there are under the Constitution two distinct systems of government--one a strictly defined and limited Federal government over the States, with a right of representation in the governed; another a municipal government, almost arbitrary in its character over the citizens in the territories as mere colonists, without any right of representation in the governed. There is no foundation for this conclusion. When the Constitution was adopted, the territories were recognized as incipient or inchoate States. It was with reference to them that the power to admit new States was incorporated in the Constitution. People migrating to those territories carried with them the inherent rights of self-government and the guarantees of the Constitution. The Constitution was intended for the territories as much as for the States that made it. Congress has no power but what it derives from the Constitution. If it can acquire territory and govern it, it can do so only by virtue of and in accordance with the Constitution. We cannot suppose that the framers of the Constitution, or the people of the States who spake through it, looking as many of them did, to the fair lands of the west, as their own future homes and the homes of brothers and children, where fortunes broken in the revolutionary struggle might be retrieved, would impose on themselves or those brothers and children a colonial bondage to the Federal government, worse than that from which they had just escaped. Jealousy of the power of the Federal government, as already shown, had been the great drawback to the confederacy and to the formation of the Constitution, and had carefully guarded in the Constitution the rights of the States as to all matters of internal sovereignty, and it must be so construed as equally to guard the rights of the people of the territories or inchoate States, or the Constitution becomes incongruous and inconsistent. Power of exclusive legislation was conferred on Congress, as to certain defined localities acquired for specific purposes, such as a seat of government, arsenals, &c., all other powers of legislation were Federal, not municipal--powers to govern the States or their people for national or Federal purposes, not powers to govern the people in the States for internal or domestic purposes. This reasonable view of the Constitution forces the conclusion that we must regard the power to make rules and regulations as to the territory and other property of the United States, as relating solely to the protection and disposal of the public territory as land or property, and we must therefore find the power to govern the territories involved or implied, as it doubtless is in the power to admit new States. The end of acquiring territory is the formation of States, and the powers of territorial government, so far as power was conferred upon Congress, must have had reference to that end. Therefore it is, that the duty and the function of Congress are alike filled in the civil government of a territory, when the Congress shall have defined a mode or an organization by which the citizens in a territory shall be able to exercise their inherent right of self-government in accordance with the principles of the Constitution. No man pretends that Congress has any power of legislation over the internal or domestic affairs of a sovereign State. All matters of internal sovereignty are left to the people of such State, and there is no reason to be found in the Constitution or in the nature of the case, why Congress should have any greater power over the internal or domestic concerns of citizens in a territory than it has over those of citizens in a State. It is not true that the territories are outside of the Constitution, and become entitled to it and its sacred bill of rights by grace of an act of Congress. That is, indeed, strange doctrine to apply to an American citizen standing on his own territorial soil, which Congress had no right to acquire or govern at all, except by virtue of the Constitution, and it assumes too much, for this reason: All power not granted to Congress is reserved to the States or the people; and if the territories are not under the Constitution, there is no right in Congress to govern them at all, and that right rests in the States or the people who settle the territories. On the contrary, if the territories be under the Constitution, then must they be governed according to its principles and bill of rights, and not arbitrarily, and all powers of government over them not granted to Congress are in the people of the territories themselves. Powers of municipal legislation as to internal affairs, as already stated, are not granted, therefore are they in the people. If this doctrine of arbitrary Congressional sovereignty be correct, then have citizens in the territories no constitutional rights, and no franchise except at Congressional discretion--they may be put and kept under martial law as long as Congress pleases, and this without respect to population--they may be sold into slavery according to John Pettit--and this system of military provincial government may be kept up so long as the Federal government can control an army to carry it out. Does any man believe there is any constitutional right in Congress to do any such thing? The statement of the proposition is its best refutation. How much more logical and consistent then, is it to refer the powers of Congress to legislate for the territories, to the end of all legislation either for acquiring or governing territory, viz: the formation of States, equal in sovereignty on all questions to the original States. If then, the question of domestic slavery be a local question to be decided by the people of the States as they see fit, and such the whole theory of the Constitution assumes it to be, it is equally a local question to be decided by the people of the territories as they see fit. If the people of a territory when they come to form a State Constitution, are competent and have the right to decide the slavery question for themselves, as all concede to be the case, then there is no argument consistent with the principle on which our institutions are based, of any avail to show, that the same territorial people have not equal right and capacity under a territorial government, and before they form a State Constitution, to decide the question of slavery for themselves by local legislation. If the people of a territory are competent to make a Constitution without the assent of Congress, for a stronger reason they are competent to make a law below the dignity of a Constitution. It will not do for any man to contend that mere change of residence from a State to a territory, so changes the moral and intellectual character of the man, as to unfit him for the exercise of self-government, or the high duties of founder of a State. The experience of the nation disproves this position. Some of the strongest and best minds known to American history have grown up on the frontier and among the hardships of border life. High mental cultivation or the refinements and elegancies of social life are not necessary to the founders of States. Heroic and manly virtues, and intellectual powers, are often developed amid the trials which beset the emigrant and the pioneer. Like the oak which takes deeper root from the rockings of the storm, true manhood enlarges and strengthens itself by the conflict with adversity and privation. History records the obligations Ohio and Kentucky owe to Daniel Boone and Simon Kenton. Beneath the leathern hunting shirts of those bold pioneers beat the hearts of heroes. They were types of many squatter sovereigns known to history, and of many more

"Illustrious masters of a name unknown."

In the territory of Indiana, William Henry Harrison and Zachary Taylor, two of the Presidents of the United States, laid in early manhood the basis of character that has made them famous. If you would know of what material squatter sovereigns are made, look over the territorial history of the North-west. Look to the early history of Ohio, Indiana and Illinois. Of one of these squatter sovereigns, Manasseh Cutler, of Hamilton, Massachusetts, it has been said, "Beneath the shelter of the covered wagon in which he started from his village home in Massachusetts to found Marietta, the imperial State of Ohio was wrapped up. He was truly a philosopher and a patriarch. He was more than a statesman--he was the founder of a State."

What says Judge Burnett, of Cincinnati, himself a squatter sovereign, of the first territorial legislature of the North-west territory? He says:

"In choosing members to the first Territorial Legislature, the people in almost every instance, selected their strongest and best men in their respective counties. Party influence was scarcely felt; and it may be said with confidence, that no legislature has been chosen under the State government which contained a larger proportion of aged, intelligent men, than were found in that body. Many of them, it is true, were unacquainted with the forms and practical duties of legislation; but they were strong-minded, sensible men, acquainted with the condition and wants of the country, and could form correct opinions of the operation of any measure proposed for their consideration." He further adds, "several members of that assembly were men of the first order of talents; and, with scarcely an exception, they would all be now estimated as well qualified for State legislation." Away then with the idea that there are not in the manly form, the courageous and generous heart, the clear and self-reliant, though, perhaps, untutored mind of the pioneer of the forest and prairie, "native countryman," though he may be, equally with "the exile from foreign lands," or the residents of towns and cities, the inherent right of self-government, and the elements that lay broad and deep the foundations of free and sovereign States! As for me, I had rather trust the interests of American liberty and the destiny of American institutions to the keeping of the men, who in the encounter of hardships that make men heroes, have opened in the wilderness the pathway of civilization, and made its waste places to blossom like the rose, than to trust these priceless treasures to the keeping of many of the merchant princes of our eastern cities, whose warehouses and whose homes are palaces, "whose ledger is their Bible and whose gold is their God"; or to the still worse keeping of such Federal administrations as that of James Buchanan--a man in whose veins, according to his own boast, never flowed a drop of democratic blood.

It is not to such men I would commit the welfare of the territories of the United States. Rather let freeborn white men govern them _in their own way_, unawed by Federal armies sustaining Lecompton Constitutions, and I have no fear of the domestic institutions that will be formed in the territories, nor any fears for the Union and the Constitution.

To sum up what I have said on this part of my argument, the proposition is simply this: The Constitution, considered as a whole, and interpreted as it should be, as the act of a moral person, made for great moral and political ends, and not by the mere technical rules which lawyers or impracticable theorists would apply to it, requires that the people of a territory or inchoate State of the United States, preparatory to their admission to the rank of a full grown State within the Union, shall have as full power, through a legislature of their own choosing, to deal with the subject of domestic slavery, and with other subjects of domestic concern, as is possessed by the people of States in the Union. In other words, I say, that whatever may be the right and duty of Congress under the Constitution to guard and protect the territories from internal or foreign violence, and to maintain their allegiance to the Union, it is neither the right nor duty of Congress, under the Constitution, to interfere with the question of slavery or any other domestic question, so long as the people of the territories are faithful to their allegiance to the Constitution and the Federal Republic.

I now proceed to state and confirm by brief historic evidence a proposition already implied in what I have said upon the compromise character of the Constitution and the ordinance of 1787. It is this: The action of the Federal government on the subject of slavery has been essentially compromise action. It recognizes the principle of the co-existence and extension of Free States and Slave States, under and within the confederacy, leaving the ultimate of the question of abolition or extension, not with the Congress, but with the people of the several States. Congress has never rightfully taken sides on this question; for while on the one hand slavery has been forbidden in some territories, it has been permitted in others. Slave territory and free territory have alike been acquired by treaty, and Slave States and Free States alike admitted to the Union. The action of Congress is therefore no precedent for absolute slavery prohibition or indefinite slavery extension. Having never been exercised but by way of compromise it commits the government to neither extreme and is not a conclusive precedent for the constitutional power of Congress over the subject.

I shall briefly notice the facts of history bearing on this proposition.

The territory now covered by the States of Tennessee, Alabama, and Mississippi, was ceded to the United States by North Carolina and Georgia prior to 1803, and accepted by the United States, on the condition that Congress should extend over it a government, and ultimately divide it into States, on the principles of the ordinance of 1787, _except as to slavery_, and territorial governments were afterwards organized over it as slave territory. While, therefore, Congress had in 1787 assumed, by a compact of the original States, to prohibit slavery north-west of the Ohio River, it had also within twelve years after the adoption of the ordinance of 1787 and the Constitution, by express contract agreed not to prohibit it in all territory south of the Ohio, and by the admission of Kentucky and Tennessee as Slave States prior to 1800, could not prohibit it there.

Up then to the time of the purchase of Louisiana in 1803, the Ohio River was the compromise line between free and slave territory--_a line of agreement_, rather than arbitrary legislation.

Louisiana was all slave territory, and by the 3d article of the treaty for its acquisition, its inhabitants were to come into the Union as soon as possible on equal terms with other citizens, and in the meantime their rights of religion, liberty and property were to be maintained and protected.

In this territory, the boundaries of which were subsequently defined by treaties with Spain and Great Britain, were included the present States of Louisiana, Arkansas, Missouri, Iowa, Minnesota, Oregon, and the territories of Kansas, Nebraska, &c.

Soon after this acquisition, territorial governments were organized over the southern portion of the territory, without prohibition of slavery. In 1812, Louisiana was admitted as a Slave State, and Arkansas and Missouri were subsequently organized as territories without prohibition of slavery.

In 1819, Florida was acquired by treaty with Spain, with the same stipulation, as in the treaty in regard to Louisiana, that the inhabitants were to have the rights and privileges of citizens of the United States and be admitted into the Union; and soon after the territory of Florida was organized without prohibition of slavery.

From 1787 until the Missouri question came up, no successful attempt was made by Congress to prohibit slavery in any territory of the United States. In 1817, Missouri applied for admission to the Union. Her admission as a Slave State was strenuously contested, and to the act authorizing her to form a State Constitution was appended a provision applying the 6th or anti-slavery section of the ordinance of 1787 to all the territory ceded by Louisiana, outside of the limits of Missouri, and north of 36 deg. 30 min. north latitude, or the southern boundary of Missouri. The adoption of this act, fixing a geographical line between Free States and Slave States, has been called a compromise. The proposition was beyond doubt made in the spirit of compromise, and received the support of compromise men, but the North who insisted upon the exclusion of Missouri with a slave constitution, generally voted against the act in its final passage, and the South, for the sake of getting Missouri in with a slave constitution, as generally voted for it. The compromise was not acceptable to either side, and when Missouri presented her Constitution in 1821 for the approval of Congress, her admission was again opposed by Northern men, and made conditional upon her declaration by solemn act of her legislature, that a clause of her Constitution relating to free negroes and mulattoes, should not be construed to authorize any law violating the privileges and immunities of any citizen of either of the States of the Union, under the Constitution of the United States. Missouri made the declaration required, and by proclamation of the President, became a State on August 10th, 1821. The resolution of Congress of 2d March, 1821, was beyond doubt the real condition or compromise upon which Missouri was admitted, and it was in this compromise and not in that of 1820, that Henry Clay took part. Strange as it may seem; it is nevertheless true, that notwithstanding the alleged compromise of 1820, an attempt was made in 1821 by Northern men in Congress to override that compromise,--that "sacred compact," that "plighted faith," that "landmark of freedom,"--and to keep Missouri out of the Union, because she had adopted in her Constitution a provision to prevent free negroes or mulattoes from coming to or settling in the State--a provision which is contained in the present Constitutions of Indiana and Illinois, and has been enforced in Constitutions or legislation of other Northern States, and was sanctioned by the people of Indiana in 1851, when submitted to them as a distinct proposition, by a vote of 100,976 for it, to 21,066 against it. By that vote, Indiana as late as 1851 affirmed that Missouri was right and Congress wrong in the great conflict of 1821.