EW HOLLINGER pH8.5 MILL RUN F3-1543 NEBRASKA AND KANSAS. SPEECH OP :)■ HON. A; Gr BROWN, OF MISSISSIPPI, 'X' ' SENATE OF THE UNITED STATES, FEBRUARY 24, 1854. The Senate having under consideration the bill to organize the Territories of Nebraska and Kan- sas — Mr. BROWN said: Air. Pkksidevt: It has been my determination, from the beginning of tiiis discussion, not to par- tici|iate in it to any considerable extent, and i am not now about to depart from that determination. I will occupy the floor but a few minutes; and Senators who desire to speak may be assured that they will have an opportunity of doing so this evening, if they clioose. There are one or two points in the bill on which I will present my views briefly} and there are two or three topics involved incidenially in the debate to which 1 will address a remark or two, and ihen I shall have done. The bill proposes to annul, or, in stronger phrase, to repeal, the Missouri compromise; and to this extent it meets my cordial approbation. I am not the advocate of tins refieal because of any confident expectation that slavery is ever to find a resting place in these Te>riti:ries. Slavery may or may not go there. The inclination of my mind is that it never will. But this is a topic not to be discussed here, and therefore 1 pass it by ■without further remark. The Alissouri compromise ought to be annulled or repealed, because it has been, from the begin- ning, without authority under the Constitution. For more than thirty years this legislation has stood upon the statute-book, a blot upon its jus- tice, and a mockery of the Constitution, which it violates. All the arguments against the constitutionality of the Wilmot proviso stand with equal force against the constitutionality of the Missouri com- promise. It is needless for me to argue that, if Congress had no power under the Constitution to exclude slavery from the territories acfjuired from Mexico, it had none to exclude it from those ac- quired from France; or, to state the proposition a little different, if Congress has no power to es- tablish an arbitrary line and assert its constitu- ' tional power over slavery on one side of it, it has none to establish it and assert its power on the other side. If Congress had the power in 1820 to exclude slavery from all the territory north of 36^^ 30', II had the same power in 1850 to exclude it from all the territory south of that line. And, per contm, ' if it did not have the power to exclude it south Df the line in 1850, then it did not have thepowerlh' I 1830 to exclude it north of the line. j The venerable Senator from Michigan [Mr. I Cass] deserves great credit for his masterly efforts ; to correct a wide-spread, and, at the North, almost universal error, on this point. Thousands 1 know I there are who date their convictions on this sub- ject from the delivery of the great speech of that j Senator, in which he reviewed with so much I power the arguments to sustain the proviso. I do the Senator no more than justice, when I say i his arguments have never been answered — like ' fine gold, they have grown brighter as they have been rubbed. j As a friend of the Constitution, I thank the ' Senator for his eflbrts in this behalf. He proved ' the unconstitutionality of the proviso; and in I doing that, he established beyond dispute the unconstitutionality of the Missouri compromise. For, I repeat, Congress had no more power to ex- i chide slavery north of 360 30' in 1820 tha>i it had ! to exclude it south of that line in 1850. But it has been said that the Missouri compro- mise is a contract — the eloquen t Senator from Mas- sachusetts used the stronger term — he called it a compact; and on this ground, he and others have undertaken to defend it. It was neither the one thing nor the other. It was not a contract, nor was it a compact. If it was a contract, who were the parties to it? To make a valid contract, th' re must be parties able to contract, willing u con- tract, and they must actually have contracted. I must go further, and say, there must be something given on one side, and something received on the other. In all, every one of these esisentials, the transaction before us is deficient. I s^iould under- / C- ^J^ ^\ take to maintain by inefrasible proof, if I had engaged to discuss this question thorouglily, first, that tiiere were no contracting parties; second, that at least one of those whom you claim as a i party had no will to contract, and did not contract; and tliird, that no consideration passed from one party to the other, whereby the contract, if made, was rendered binding. 1 Shall it be contended, furtlier, that Missouri j was a party to this pretended contract? It has already been said Missouri was admitted into , the Union as a slave Slate, on condition that ' slavery should be forever prohibited north of 36° > 30'; and the Senator from Massachusetts [Mr. Shmker] declared with .great bitterness that thej South, with the consideration in her pocket, now \ comes forward to repudiate the contract. Sir, had , liot Missouri the right, the constitutional right, to come into the Union with or without slaveryi, j as she, in her own written constitution, should , prescribe.' I have thought that even rampant fanaticism did not deny this. Then how could vou, in derogation of her rights under the Consti- tution, demand of Missouri a price for her admis- sion into the Union.' But, sir, allowing that Missouri undertook to buy her way into the Union — an admission that can only be made for the snke of the argument — and that for this purpose she bargained for the exclusion of slavery in perpetuity from all terri- tory north of 3GC 30', what does it amount to.' Nothing; absolutely nothing. Missouri had juris- diction within her limits, and not one inch beyond. She had no right to buy an advantage or a privi- lege for herself by surrendering that wliich did r.ojt belong to her. As well might the tenant or rightful owner of a house bargain with a robber, that if he would let him alone, he might plunder his neighbors with impunity. If he bought his own peace, well ; but certainly he could impose no obligation on his neighbors to submit to the plun- dering. If we put this transaction on the basis of con- tract between the North and the South, it is not more capable of defense. Here you have to create jiarties, ideal parties, before you commence the bargain. To say this is a contract between the North and the South, is to set up in the imagin- ation things that do not exist in fact. There is no separate North, no separate South — has not been, and I hope never will be. We are but one, and it takes two to make a contract. If we had a Northern Union and a Southern Union, the two might contract. But, as we are but one, the first great essential to a binding contract is wanting, to wit: parties capable of contracting. I do not know that I can better conclude what I have to say on this point than by introducing an extract from a speech delivered by myself on this s/tibject in the House, June 3, 1848. It will be fa^nd at page G4.5, Appendix to the Congres- sional Globe, of that year. I said: " We sliall be told, that by the act ofM.arch 6, 1820, and the ieveral succeeditij; acts adniitiing Missouri into the ■ irn*)n, commonly called the Missouri compromise, the , povi^f^r in Compress to a limited e.\tent, to exclude slavery Horn VTcrrilory, was conceded. The argument is neither [ just iioVviund ; but its introduction here gives me an op- i portunity^which f eagerly embrace, of expressing my opin- ions of that\cnmpromise. It has been the theme oi^ many , eloquent iKvAangues ; and of all the thousand orators who i have thrown fesarlands on the brow of its great author, or 1 strewn his palh^way with richest flowers, none have apos- i trophised more eloquently than those whose theme has been (this far-famed Missouri compromise." You will observe that in this speech I fell into a very common error, or, at least, what is now claimed to be an error, of attributing the author- ship of the Missouri compromise to Mr. Clay. I proceeded: "But, notwithstanding this, it stands out 'a fungus, an e.xerescence, a political monstrosity.' It was tlie first, greatest, and most fatal error in our legislation on the sub- ject nf slavery. It violated at once the rights of one half the Union, and flagrantly outraged the Federal Constitution. It undertook to abrogate the constitutional privileges of one lialf of the States, and, without any adequate or sufficient consideration , to surrender the rights of every slaveholder in the Union. The compromise has been called a contract. But a contract, to be binding, must be mutual in its obliga- tions; there must be something given on one side, and something received on the other. By this compromise — this misnamed contract — the slave Stalas irave up their right of settlement north of the parallel 36° 30'; but the non- slaveholding States did not surrender their right to settle south of that line. The free States have all the rights they ever had. The South gave up everything, and received nothing. North of 36° .30' no slaveholder darego with his slaves; south every northern man may settle with whatever cliattels he possesses. Tne compromise is wantingin all the elements of mutuality which render a compact binding, and is therefore void. This Thirtieth Congress has no riglit to surrender, by gift or barter, the political rightsof onehalf of the Confederacy, or even one State of the Union ; and yet this Congress has all the constitutional powers that be- longed to the Sixteenth Congress, which enacted the com- promise." I pass from this subject to the consideration o the amendment offered by the mover of the bill, [Mr. Douglas,] and now, by the vote of the Sen- ate, become a part of the bill itself. The phrase- ology is not such as I would have chosen, and yet, having scrutinized it, I am willing to sanction it; indeed, I have sanctioned it by my vote. If it had suited the purposes of others to allow it to stand without comment, it would have suited mine. But I will not sit still, and allow an interpretation to be given to words that have received the sanc- '' tion of my vote, altogether at variance with what ' I intended when I gave the vote. From day to day we have heard Senators, in terms more or j less distinct, declare, without limitation, that this bill gives the people of the Territories the right to exclude slavery. In plain English, that it recog- nizes the doctrine of '"squatter sovereignty," as I this new theory has been termed. 1 do not think so, and if I did, I would withhold from the bill the sanction of nay vote. I utterly deny and repudiate ; this whole doctrine of squatter sovereignty. But, before I proceed to an examination of it, I must [lause to consider another feature embodied in the amendment proposed by the honorable Sena- tor, the mover of this bill. ' The amendment declares that the act of 1820, commonly called the Missouri compromise, is inconsistent with the legislation of 1850, known as the compromise of that year; and is, therefore, declared inoperative and void. Iff did not know the astuteness of the Senator who drew up this amendment, [Mr. Dougl.\s,J and how unlikely he would be to run into such an error, I should think there was an inaccuracy in deducing the conclusion that the legislation of 1820, in reference to one Territory, is inoperative and void, because it is inconsistent with the legislation of 1850, in re- ference to another Territory. It is very certain that the legislation of 1820, as regards the territory north of 30° 30', was inconsistent with the same legislation, as regards the territory south, and yet both stood, and have continued to stand, for thirty yet\rs^ind more. It is equally certain, that if Con- gress has the power to exclude slavery from the Territories, and the |inwer is simply permissive, and nut mamhitory, (as it certainly is not,) under the Consliiution, then Congress may exercise it in one place, and forlienr its exen-ise in another; and the failure to exercise it in N'tliraska, fcr example, would not render inoperative and void its exercise in Kansas. If the act of 18C0, that excluded slavery from all the territory north of llfiO 3U', was constitu- tional, it may stand, and it is lo(^ically inaccurate to say that it hecumes inoperative and void simply because the legislation of leifjU failed to exclude slavery south of that line. IJut if, on the other hand, the act of IS'JO was unconstitulioniil, and those of l>^'){) hrouijht hack the Government to its true constitutional position, then it would he logi- cally correct to say that the act of IHCO (lieing unconstitutional) is inconsistent with the acts of 1650, (that have restored the Government to its true constitutional position,) and, therefore, the act of 1820 is inoperative and void. Inoperative and void, not because of its admittinjj; or excluding slavery, but inoperative and void liecause it is in- consistent with the restoration of the Government to its rightful constitutional position. I take it for granted, Mr. President, that the able and learned Senator [Mr. Douglas] meant what the language of his amendment implies, to wit: that the legislation of 18.")0 settled tiie great constitutional principle that Congress could not exclude slavery from a Territory; and that inas- much as the act of 1820 undertook to do that thing, it is in conflict with a great constitutional princi- ple, and , therefore, for that reason , it is inoperative and void. I may be mistaken in my reasoning — I may be mistaken in what is meant by the mover of this amendment. But there is one thing in which I am not mistaken — the arnendment declares the Mis- souri compromise inoperative and void. This is as it should be. It squares exactly with my notions long since expressed of the constitutional obliga- tions of the Government, and I will not quarrel with a good act, even though a bad reason may be given for its performance. I will not detain the Senate on points of so little i practical importance as this. The conclusion at which we arrive covers the practical issue, eflects the practical result, and whether we reach that con- clusion by a sound course of reasoning is a thing of little consequence to our constituents. I voted for tlie amendment, believing that the premises jus- tineti the conclusions. But, if I had tlionght other- Wise 1 should have voted as I did. The declara- tion ihtit the Missouri compromise is henceforth to become inoperative and void, comn^ends the measure to my warm and cordial support. 1 pass to the consideration of another point, and in doing so I respectfully invoke the attention of the distinguished Senator from Michigan, [Mr. Cass.] That Senator is the acknowledired author of the doctrine known in common political par- lance as squatter sovereignty. From this doctrine I have always dissented, and I dissent from it to- day. Accustomed, as 1 have long been, to regard with reverence whatever emanates from that dis- tinguished and venerable Senator, and feeling, at all times, a painful reluctance to assume a position ^ at variance with him, 1 have, nevertheieeB, found myself constrained, after mature investigation, to conclude that on this point he is wrong. l-'roin what source, let me ask the Senator, does he derive the power, or the right of the peo[»ie of a Territory, to exclude slavery .- Conirress does not confer the power — that is certain. 'I'he Senator has made more arguments — and better ones — than any living statesman tr) prove that Congies.s has no right or power, .under the Con.Ntitution, to ex- clude slavery from aTerritory; and I shall not in- .sult the good sense of the Senate, or of the country, by proving, that if Congress does not itself pos- sess this power, it cannot confer it on anoiV.er. Congress cannot give w,'hat it has not got. Con- gress cannot reverse the whole order of nature, and make the creature greater than the creator. When the Senator proved that Congress had no power over slavery in the Territories, he proved, necessarily, that Congress could not confer this power on a Territorial Legislature — a Legislature which is, at best, but a thing of our creation — nor yet upon the people of a Territory; for, after all, these people have no existence as a political organization but by our act. If the nower is not conferred by Congress, whence do you derive it? The Senator from IVIich- igan has left us in no doubt as to the quarter from which he derives it. On a former occasion, and in a speech not now before me, but which I have in my mind's eye, the Senator said he derived the power from Almighty God. Mr. CASS. I do not wish to interrupt the Senator at all, because it is a matter of no sort of consequence, but I wish to say to him that I did not derive that power from Almighty God. I was asked whence 1 derived the power of government in the people.' and I answered that the right of government, not the right to exclude slavery, was derived from AlmiglUy God. Mr. BROWN. I suppose when the Senator said the right of government, without imjiosing a limitation, he meant, of course, to include the right to exclude slavery .' Mr. CASS. Of course. Mr. BROWN. I so understood the Senator. I understood him as deriving the power of self- government for the people directly from Heaven; and as the Senator imposed no limitation or re- striction on the power, 1 inferred, of course, that he meant to include the right over slavery, and the Senator says I was correct. I was justified, therefore, in saying that the Senator had derived this power from God. Not this single power, and it alone, but this along with other powers. Now, sir, if this be so, the conduct of this Gov- ernment has been most singular; and if the Senator will allow me, I will say, with the most perfect respect, that his own personal conduct needs ex- planation. If I am not mistaken in the antecedents of the Senator, some sixteen or twenty years of his now protracted and honorable life have been spent in the government of one of these Terri- tories, tie was commissioned to do so, not by Heaven, but by the President of the United States. The people whom he governed with so much abil- ity, and with such acknowledged advantage to them, were never consulted as to whether he should be their governor. The President commis- sioned him, and that was the end of it. All the people had to do was to receive him and to respect him aB their governor. When the Senator comes to reply, 1 shall be glail to learn from him how he justifies himself in talcing a man's commission to rule over a people who have authority direct from God himself to govern themselves ? It seems to | me, wilhoul explaiuition, that the Senator has , stood, according to his own theory, very much, like an usurper; and if I had not ihe greatest pos- sible veneration and respect for the Senator, I would say an usurper who had impiously interposed to ■wrest from a people the greatest and best gift of Heaven— the right of self-government. If, as is contended, the people of a Territory j are gifted from Heaven with the right of self gov- [ ernment, by what authority do you habitually [ send men to rule over them? You appoint their i governors, and other executive officers, and re- move them at pleasure. You appoint judges to j expound their laws, and even these are not exempt from the power of removal. True, you allow i them, as a matter of special grace, to elect members j of their legislative council. But then, to sliowthe ! omnipotence of your power, you require them to send up their laws for approval here, and none are 1 binding until approved by Congress. This very i bill now under discussion authorizes the President to appointgovernors, secretaries, judges, marshals, (tc.for these Territories; and it is very explicit in providing that all laws passed by the Terri- torial Legislature shall undergo the revision of Congress before they are binding. It does seem to me, Mr. President, if these people have been specially commissioned from Heaven to g^ivern themselves, we are guilty of an impious usurpa- tion, and become the rankest despots, when we exercise authority like this. I shall be glad to know of the Senator how we are to justify our- selves in thus assuming and exercising control over a people whom God has authorized to govern themselves? For be it remembered, the Senator has asserted that the people had the right of self- government unlimited and complete; and when 1 so stated his position, as in his judgment to induce the impression, that he had asserted their power over slavery alnne, he corrected me, and said his assertion was the right of self-government— gov- ernment as to everything; slavery, of course, in- cluded. What I contend for is, that if the people have the rie:ht of self-government, as contended for by the Se'nator fronfiVlichigan, then you have no right to appoint officers to rule over them, nor exact thalthey shall send up theirlaws for your approval. ; And if they have not the sovereignty which enti- j ties them to appoint their own oHicers, and to pass j their own laws, independent of your supervision and dictation, then they have not that higher de- gree of sovereignty which entitles them to say what shall, and what shall not be property in a Territory inhnl)ited by them, and belonging to the States of this Union. Whatever the Senator's opinions may be, and I do not question his sincerity, the practical results of his action are these: The people, with all their Heaven-born sovereignty, have no right of self- government — of free and uncontrolled self-govern- j^ent — until they come to slavery, and then their power is as boundless as the universe, and as un- limited as God can make it. You appoint their officers Vv-ithout their approval, and remove them without their consent. You exercise the utmost vigilance over their legislation until it comes to slavery, and then you grant them the largest lib- erty. Why is this? Either it proceeds from a timidity that shrinks from a manly responsibility on this subject, which I cannot suspect, and there- fore will not charge; or else from a conviction that slavery is an institution accursed of Heaven; and that while your love for the Union will not allow you to stamp on it the seal of Heaven *s vengeance, you will withdraw from it all protection, and leave it to the tender mercies of all whose passions or prejudices m.ay lead them to make war upon it. 1 Sir,l have I'lO fellowship with that sickly sen- ■ timentality tliat speaks of slavery as a great moral evil, and is constantly praying for some safe and peticeful mode of getting nd of it I believe that slavery is of divine origin, and that it is a great moral, social, and political blessing— a blessing to the slave, and a blessing to the master. 1 am not going to elaborate this idea; it is of itself a theme for half a dozen speeches. But I undertake to say, that nowhere, in all Christendom, is there a higher degree of morality than in theslaveholding States. In^this respect the slaveholding States challenge a : comparison with their boastful sisters of freedom. I I risk nothing in saying that slavery operates as a check upon crime. I will tell you why. It equalizes white men, puts them on a level with one another, and represses thereby many of the evil I passions which rise up and drive men to madness j in communities where white men are not equal. Nowhere in this broad Union but in the sl.ave- i! holdins; States is there a living, breathing exem- i jilificution of the beautiful sentiment, that all men areequal. In the South all men are equal. I mean, , of course, whilemen; negroes are not men, v/itliia Ithe meaning of the Declaration. If they -were, Madison, and Jefferson, and Washington, all of j I whom lived and died slaveholders, never could have made it, for they never regarded negroes as their equals, in any respect. But men, white rr.en, the kind of men spoken of in the Declaration of Independence, are equal in the South, and they are so nowhere else. It is slavery that makes them so. In the South we have but one standard of social merit, and that is integrity. Poverty is no crime, and lalior is honorable. The poorest laborer, if he has preserved an unsullied reputation, is on asocial level with all his fellows. The wives and daugh- ters of our mechanics and the laboring men stand not an inch lower in the social scale than the wives and daughters of our governers, secretaries, and judges. It is not always so with you, and I will tell you why. The line that sepaiates menial from honorable labor with you is not marked by a caste or distinct color, as it is with us. In the South, as in the North, all the mechanic arts are trented as honorable, and they are not the less so because sometimes practiced by blacks. It may surprise our northern friends, but all the South will attest its truth, that nothing is more common in the South than to see the master and his slave work- ing together at the same trade. And the man who would breathe a suspicion that the master had sunk one hair's breadth in the social scale in conse- quence of this kind of contact would, by general consent, be written down an ass. But there are certain menial employments which belong exclusively to the negro — these furnish a field of labor that the white man never invades, or ' \ 5 if he does, he is not tempted there by gain. Wliy, sir, it would tnkeyou longer to find a while nuin, in my Slate, who would hire liiniself outus a boot- black, or a white woman who would go to ser- vice as a chambermaid, tlian it took Cajilain Cook to sail around the world. For myself, in thirty years, I have never found a sinjile one. Would any man take his boot-black, would any lady take her chambermaid into companionship.' We do not in the South, for they are always ne- groes; Mechanics, over.seers, and lionest laborer.s, of every kind, are taken into comimnionship, and treated , in nil re.-^pects, as equals. It is their right, and no one thinks of denying it. I do not say that it is disreputable for white men and white women to ^o out to service and to per- form even tliese lower graden of labor. I]ut I say that with you, as with us, they lose their position in the social scale when they do it. With you it must be done by whites, and therefore the whiles lose position; with us this menial labor is per- formed by negroes, and the equality among the wiiites is preserved. If the Senator from Massacliusetts [Mr. Sum- ner] wants to see a specimen of that equality spoken of by Jelferson, in tlie Declaration of Inde- Seiulence, ami so much lauded by himself tlie other ay, let me advise him to come to Mississippi. We will there show him what he has never seen in Massachusetts, and what he never will see in a free State — a whole community standing on ajier- fect level, and not one of them the tithe of a hair's breadth higher in the social scale than another. This isequalily; this is social equality — the equal- ity lo ulucli all men were born, and whicli no man loses in a slave State but by dishonesty or im- morality of some sort. I wili not pause to consider the black man's condition in this country as contrasted with that of his fellows in his native home. There is enough in it to awaken our thoughts, and cause us seri- ously to inquire whether it is not possible, and even proliable, that God, in his providence, has brought the African.s from amidst the barbarism and cannibalism of their native jun£;le, and placed tlieir feet on these happy sliores, where, under tlie benign influence of our laws, they may learn morality and Christianity; and, in Heaven's own good time, return to lift the pall of darkness and death that has rested so long on their wretched country.' But enouffh of this. I did not intend to have spoken of the negro, or of his influence on the social condition of our country. We who own slaves are satisfied with our condition in every respect; and those who do notown them, we may hope, will in no way be made accountaljle for the sin we commit in holding them in bondage. Asking pardon for this digression, I come back, Mr. President, to the subject under discussion: The right of the people of a Territory to exclude slavery; or, in other words, to declare that not to be property in a Territory belonging to all the States, which is recognized as property by the United States, and held as property in fifteen States of this Union. It must beadmitted that the power which makes such a declaration, and maintains it, is invested with the very highest attributes of sov- ereignty — a sovereignty which the Government has not dared to exercise in theTerritories acquired from Mexico. The. Senator from Michigan, if I underHiand him, asserts the sovereignty of the people in the Territo- ries over properly in the Territories. I should like to know at what time tliis sovereignty attaches; does it go with the first man who enters the Ter- ritory, or must a hundred, or two litindred, or a thou.sand, have entered before this sovereignty at- taches? This is an im{iortaiit point; and 1 shall be glad to liave the Senator's views on it. We, who maintain the sovereignty of the States, have no difliculty in fixing the lime when the sover- eignty attaches. It attnches, as we think, at the moment when the Territory enters the Union as a Stale. Up to this time it resides in the States, or with the people of the States. With us there is no such thing as sovereignly in a Territory. A Territory is subordinate; she iins no voice here, and no vote in the other Inanch of Congress. She is not equal with the States. But, on the instant of her entry into the Union, she becomes equal — the sovereignty passes — and, within her limits, she may do whatever Virginia or Massachusetts may do within their limits. I'o admit the sovereignty of a Territory is to admit the existence of a State out of the Union. A State or sovereignty in the Union cannot treat with any foreign Power. The Constitution for- bids it. But a State or sovereignty out of the Union may treat; it may form alliances, and, if it choose, not only remain out of the Union, but at- tach itself to any foreign Power. Siqipose the "sovereign Territory" of Oregon should take a fancy to attach itself to Great Britain, I should like to know how my friend from Michigan would prevent it? It is useless to say this will not hap- |5en. The question as to whether it will or will not happen does not aflect the question of right. And besides, this is an age of progress, and we know not what a day may bring forth. If it suits the purposes of the Senator to an- swer, I should like to know to what point he car- ries his doctrine? Does he believe that the people of a Territory, even before the erection of a terri- torial government, such as we are now making for Kansas and Nebraska, have the right lo exclude slavery? Mr. CASS. Does the Senator wish me to ex- plain? Mr. BROWN. I should like an ansv/er now on the single point. Mr. CASS. I will answer the Senator in a very few words. I believe that Congress, from the re- ' lation existing between them and the people of the Territories, and the necessity arising from that rela- tion, have a right to organize a government in a Territory; but 1 also believe that if we neglect this duty, as we did in the case of California, ihelaws of God give the community a right to establish a government fir them.'elves. Mr. BROWN. The Senator's answer does noi exactly meet my question, unless he means that a government thus established m!\y exclude slavery. If he does I am answered, and I dissent from the answer. 1 admit that any people left without a govern- ment may make a government for themselves; that is to say, they may make such municipal regulations for the protection and security of life, liberty, and property as they may think best'. But these regulations must be consistent with the rights of the sovereisn. The Senator is correct 6 when he says the right to make this sort of gov- ernment arises out of the necessity of the case. But the right must not be carried further tlian may be justified by the necessity that brought it into being. Whatever is necessary to the protection of the people in their persons and property may be done. And now will the Senat;)r, or any one else, undertake to sliow that the exclusion of sla- very is at all necessary to the security of either persons or property in a Territory .' No one will pretend that it is. Its exclusion is not neces- sary to the existence of a temporary government; and being inconsistent with the rights of the sov- ereign, to wit, the States of the Union, it cannot be excluded by tlie usurpation of a power not granted by the Constitution, or justifieil by the tyrant's plea of necessity. The temporary government thus established, and resting solely on necessity, can exist only at the pleasure of the sovereign. When he appears and asserts his authority this temporary govern- ment must pass away. Suppose fifty Americans — and I care not if the number be more or less — are left on an island be- longing to Great Britain, uninhabited, and conse- quently without an existing government. That they may set up a government for themselves no one will deny. They may fashion it after ourown, if they choose. But if, at the end of a few years, the agents of the Q-ueen appear to assert the authority of the crown — will any one pretend that our Amer- icans can maintain their jurisdiction; must not their authority yield at once to the superior authority of the sovereign ? And so, I apprehend, it will be if possession is taken of territory belonging to these States. I Jf it is without a government, those taking possession may make a government; but when the States appear by their proper agents to assert their authority, the provisional government must give way. It can no more be maintained that pos- session may be taken of territory belonging to these States, and the citizens of the State excluded with their property, than it can be maintained that an island belonijing to Britain may be seized, and the Queen's subjects with their property excluded. If the Senator has only meant to assert the power of a people left withouta government tomakeone forthemselves commensurate with theirnecessities, I concur with him fully. But if he goes further than this, and asserts a sovereignty that rises above the authority of Congress, and puts the States, the rightful owners of the soil, at defiance, then I dis- sent. To this I never can agree. The period is well fixed in my mind, at which the right to exclude slavery from a territory attaches. It is wlien the Territory comes to form a State con- stitution for herself — and this she may not do, the precedents to the contrary notwithstanding, until she has the requisite population. The Constitu- tion has very wisely provided that each State shall be e)itilled to one member of Congress; that representation shall be apportioned among th-e States according to population; and to ascertain the population, it has provided for taking a cen- sus. Now, to admit a State without the requisite population to entitle her to a member, is a fraud upon the rights of other States, for it diminishes their political power; and to guess at the numlier of inhabitants, is a fraud on the Constitution, for the Constitution has directed you to take a census. A State coming into the Union in a proper way has the right to come in with or without slavery, as she chooses. This I admit, and 1 admit nothing more. Perhaps a very rigid adherence to the rights of all parties would require a State to be in the Union, and fully invested with sovereignty, before she undertook to exercise so important a power as the exclusion of slavery. As an original propo- sition, 1 would maintain this doctrine. But the point seems to have been yielded, and 1 will not insist on it now. To show how well I am sustained in the views I have so imperfectly expressed, I will read a few short extracts from the speeches of Mr. Calhoun and one or two others on the doctrine of squatter sovereignty. On the first of June, 184S, Mr. Cal- houn said: " There are tlirce questions involved in this entangled affair. Tlie firj^t is the power of Conntross to legislate upon this subject so as to prevent the slaveholding portion of the Union from emigrating with their property to any Territory. Tlie next qu"Stion is therightof the inhahilants of a Terri- tory to make a law excludi)i« tlie cilizcns of Ihcie Stales from cmi^ralitig thilher Willi tlieir property, and the third is tlie power of Congress to vest the people of a territory with that right." * » * "The territory IS OPEN TO ALL THE CITIZENS OF THE UNITED STATES, AND IT MUST REMAIN OPEN, AND CANNOT BE CLOSED BUT BY THE PEOPLE OF THE TERRITORY WHEN THEY COME TO FORM THEIR OWN CONSTITUTION, and then they can do as they please." On the 27th of June, 1848, Mr. Calhoun spoke at length on this subject. I read from his speech, at page 871 of the Appendix to the Congressional Globe.. Having disposed of the power of Con- gress over the subject, he said: "I HOW go one step further, and propose to show that neither the inhabitants of the Territories nor their Legis- latures, have any such right. If the Territories belong to the United States, if the ownership, dominion, and sover- eignly ovec them be in the Slates of the Union, then neither the iiihaliitantsof the Territories nor their Legisl.iturescan exercise any jiower but what is subordinate to them." * * " But if the reverse be true, if the dominion and sover- eignty over the Territories be in the inhabitants, * * * they might exclude whom they pleased, and what they pleased. But in that case, they would cease to be Ter- ritories of tlie United States the moment we acquired them and permitted them to be inhabited. The first half dozen of squatters would become the sovereigns, with full dominion and sovereignty over them." I forbear to read Mr. Calhoun's argument. It was like all that caine from him, full, complete, lucid, and convincing. On the IDth of July, 1848, the present Secretary of War, then a member of this body, spoke at length on the territorial question. I read from his speech, as I find it recorded at pages &08, 909, ar.d 910 of tl^^' Globe's Appendix for that year: " The various modes which have been proposed to ex- clude slaveholders from entering territory of the United I States with their property may be referred to three sources of power: the Federal Government, the territorial inhabit- I ants, and the law of the land anterior to its acquisition by the United States." \ After discussing at length the power of the Fed- eral Governineni over slavery in the Territories, 1 and concluding that no authority for its exclusion was lodged in Congress, the speaker continued: " Many of the reasons and principles presented to estab- lish the absence of power in the Federal Government to exclude slavery from territory belonging to the United ! Slates, bear with like force against the second class of opin- ions — that the power rests in the territorial inhabitants. In the unwearied search of those who, from the foundation of our Government, have sought in every quarter for the fount- ains of power by which the sovereignty of the States might be subnn iged, this, until recently, remained undiscovered." The Senator was neither unjust nor illiberal to- wards the early settlers in aTerritory. Hear him: "To the citizun who presses beyond the limit!) of civlli- 1 zation to opRn tip to ciiltivnlioii niiil Hclilciiiuiit tlu! fnrcsi domain of tin,- United tiiiilcs, I Imvc nlwayn hi'i-ri willing to cxli'Mil |iroli'i'lii)ii nnd «iK'li pcculiiir adviiiitiiKiM ovir Other joint owfuTs of lln! coinnion Mliick iin ar« dm- to lln' eervici's lie has ihns rcniU'rvd to thu poniiiion inii-n-st. Iliil the civil rii;hls, (he poliiicnl priiiei|iU-s ot' our Uovcriiiiii'iil, are Mot to lit' iriuisrifrred to lliose who shull be lir.st in the race to reaeli ne\vlyaci|iiired pomiesnioiiit, or wlio shall by Bcoidenl he roiiiid upon tlieni.'* To show the conclusion reached by the speaker, I rend his own remarks: ; " I have thus presented my view of the three sources from wliieli it in claimed to draw (lie power to pnihiliit sla very in territory of the United Statin. From the eoiiKider aliens: pres^enled, my conclusion is, that it cannot properly be done in eillier of the modes proposed; thai, not heiiii! anion;; the delegated powers of the Federal li(:veriiinent,or necessary to the exereise ol'aiiy of its grants, CoiiL'ress can- not pass a law (tt lliat purpose; that the lerritorlal ii«v- ernnieiit is >ul)ordiiiate lo llie Federal (ioveriinient, from which it derives its aiithorily and support, and that neither peparately nor united can they invade the undelegated sov- > ereisnty of the States over their territory." 1 To fortify my own jiosition, I might multiply authorilies liiie these almost indefinitely. It may besiidicient to sny, that so far as I know, no strict constriictiotiist in the South has ever yielded the point that the inhabitants of a Territory could exchuie slavery. All have stood upon the common ground that the |ieople, when they come to form a State constitution, beiiiij duly entitled by their numbers and position in the Government to make such an instrument, may, if they think proper, exclude slavery, and then its exclusion forms no \ just ground of complaint. i Justice, Mr. President, requires that I should, at this point, recur to a speech delivered by myself in the House of Representatives, on the 3d of June, 1848. It will oe found at page 648 of the Appendix to the Globe. I then said: "The people hold the Territories as tenants in common, and all, or any partofthem,may enter these Territories from any and all parts of the United States, and take with them their properly. They may enact laws for their personal protection and the preservation of their properly ; hut lliey cannot exclude others who come after them Ironi the pos- session and enjoyment of equal rii,'hts with themselves. i The first who enter a Territory cannot assume a sover- eignty which belongs to all. The spccilic exercise of sov- ercigiity over the question of slavery is held in abeyance until the people of the Territory ask admission into the Union as a State, according to the Constitution ; and being adinitled, the Slate becomes sovereign within her limits." I will not detain the Senate with a reproduction of arguments employed by me at that time. My consi.'stency is vindicated in what I have read. I summed up as follows: "The cimclusions, .Mr. Chairman, to which my own mind has arrived, on the several points involved, are briefly tJiese: That every citizen of the United States may go to the Territories and lake with him his properly, he it slaves, or any other description ol' properly. 'J'hat neither the United States Congress nor Territorial Legislature has any power or authority to exclude him ; and that the power of legislation, by whomsoever exercised in the Territories, whether by Congress or the Territorial Legislature, must be' exerted for the equal bimefit of all — for the southern slaveholder no less than for the northern dealer in dry goods." It will be seen, Mr. President, that I treated the subject then as I do now. 1 asserted then, as I assert to-day, that whoever legislates for the Ter- ritories, whether it be Congress or a territorial Legislature, is as much bound to give protection to my property as to the property of any one else. If the Constitution is to be ouserved , and our rights under it are equal, I want to know by what other rule we can be governed .' Shall the Senator from Ohio, [Mr. Wade,] who lives in a country where the people invest most of their gain in live-Block, lake liiH peculiar kind of property into the Terri- tory of Nebraska, and then turn upon ine and say you shall not take yi.'ur |iroperty there.' Shall he do this .simply because 1 chance to have invested the [irodueiH of my labrir in someiliing to which he has a prejudice.' He and his coristitueiils are pre- jtidiceu against slavery, and will not live in a coun- try where it exists. Suppose 1 and my constitu- ents were to take the same prejudice against hogs, and sheep, and cattle, anil say that we would not live in a country where they were permitted. Sup- pose that we, being a majority, should say to the people of Ohio, " You shall not drive your live- stock into the Territories ;" would we have a right to do it .' Would not the gentleman consider such a declaration an invasion of his constitutional privileges!' Whether deprived of his privilege to emigrate with his live-stock by the Territorial Le- gislature, or by the Federal autlK)riiy, would he not regard it an infraction of his rights as an American citizen.' Let me put another case. The Senator from Connecticut [Mr. S.mitii] comes from a country where they make clocks, and sometimes very good ones; but we happen, at the South, to have some prejudices against Yankee clocks. Sunjiose our people were the first to go into this Territory, could they say to the people of Connecticut, " You shall not bring your Yankee clocks here .'" Could he first half dozen, or fifty of us who might em- igrate from Mississippi or Alabama, undertake to exclude all New England simply on the clock question .' This Territory covers an area about seven times aslargeas the State of Virginia. Now, the question is, had the first half dozen southern- ers, who happened to squat on one corner of it, a right to say that in all future time, in no part of this vast domain, shall there ever be brought a Connecticut clock .' Would it not be monstrous? Would the people of Connecticut be willing to submit to it.' Certainly not, and why.' because a clock is property. It is something in which they invest the products of their labor — something against which they have no prejudice, but against which we have. Now, sir, I submit that if I, and my constituents, have no right to gratify our prejudices at the ex- pense of Connecticut and her clocks, then the Sen- ator and his constituents have no right to gratify theirs at the expense of Mississippi and her ne- groes, I will not pursue this branch of the subject further. It was not my intention, in the begin- ning, to make a speech, and I have to apologize to the Senate for having already consumed more time than I ought. I intend, Mr. President, to vote for this bill. But 1 must confess that the particular section un- der debate, and the one which has given rise to so much discussion, is not worded as I should have liked. It is not free from ambiguity;and, as I like directness in legislation, I would, if it had been left to me, have couched it in language so explicit that no one couid have mistaken it. It de- clares, as a consequence of former legi.'^lation, that the Missouri compromise is inoperative and void. I would have said in terms:- " tne Missouri com- promise is hereby repealed." But as the end is aftained, I will not chatTer as to the means by which we attain that end. LIBRPRY OF CONGRESS 8 The language employed by the distinguished author of this bill, and mover of the section now under consideration is, that the people of the Ter- ritory nuiy regulate their own domestic institu- tions for themselves, subject only to the restric- tions of the Constitution. I should have preferred a simple repeal of the Missouri restriction. That would have restored us to the position we had before the law was passed, and would have been free from ambiguity or circumlocution. But the language employed is not decidedly objectionable to me, and, 1 repeat, I will vote for the bill. By yielding the " right to regulate domesticinsti- tutions," I understand we yield the right simply to regulate, not to destroy. To regulate is one thing, to destroy is another, and a very dilVerent thing. Domestic institutions include, as I admit, the relation of husband and wife, parent and child, master and servant. But I deny that the right to regulate carries along with it the right to destroy. The right to regulate the relation between master and servant no more entitled the regulating power to destroy that relation, than does the power to regulate the relation between the husband and wife authorize the destruction of that relation. As well might the Territorial Legislature take a wife from her husband, under pretense of regulating their relations, as to take a servant from his master, under pretense of regulating that relation. This is my opinion, and 1 vote for the bill clothed in its f resent phraseology because this is my opinion. f I thought that, in voting for the bill as it now stands, I was conceding the right of the people in the territory, during their territorial existence, to exclude slavery, I would withhold my vote. That equality that exists among the States, and the people of the States, under the Constitution, is not taken away by any fair construction of the language employed in the bill. Senators, North and South, have spoken as if ihe bill conceded the right of tlie people in a. Territory to exclude slavery. I combat the idea. It leaves the ques- tion where I am quite willing it should be left — to the ultimate decision of the courts. It is purely a judicial question, and if Congress will refrain from intimating an o|iinion, I am willing that the Su- preme Court shall decide it. But, sir, 1 have too ofcen seen that Court sustaining the intentions of Congress, to risk a decision in my favor, after Congress has decided against me. The alien and sedition '"a" 011 "ssV 791 9 ^ ' Jr; all been , \So\., ill my opinion, because they were so, but because the Supreme Court, as a coordinate Department of the Government, was disinclined to clash with the other Departments. If this question is allowed to go before the Supreme Court, free from the influ- ence of a congressional pre-judgment, I v/ill abide , the result, though it beagainstme. If othergentle- men had intimated no opinion, I would have inti- mated none. But I am unwilling to see the weight of authority here thrown altogether on one side. For this reason I have spoken, and for this reason I call upon others who concur with me to speak. Mr. President, I leave this subject. I ought not to have said so much, and yet I know not how I could have said less. At best, 1 could not hope to throw additional light on a subject like this. It has been illumined by the philosophy of Webster, made brilliant by the eloquence of Clay, and consol- idated by the severest of all tests — Calhoun's logic. Still I was desirous of presenting some views of my own; and especially so, as I am advised that the Senator from Michigan is going to address the Senate. I know full well his pov/ers in debate; and I have not presented my remarks to provoke his criticism. But this 1 know, if they pass the ordeal of his investigation, no power on earth can siiake them. The Senator will do me the justice to believe that it gives me no pleasure to differ with him on this subject. Accustomed to regard him as the great father of the Democratic family, I dissent with misgivings and great pain from anything that he says. On this question I think he is wrong; but my mind is not sealed against conviction. I will listen to him, and if I find myself in error, I will confess it with more pleasure than I have had in expressing these views. It is honorable, at all times, to confess our faults, and to repair injuries when we are convinced. If I have been at fault, and being so, have done injustice to the Senator, I shall be glad to know it. I would surrender to any antagonist fairly entitled to a victoiy; but the age, experience, ability, and incorruptible integrity of the Senator, make him an antagonist to whom any man may surrender wiihout dishonor. He has only to convince me, and I surrender at discre- tion. Printed at the Congressional Globe Office. •■ l!!r.:.?i<^o.,^Bss 011897 791