,_;' I 
i9-' in
I 1      1 i       - 
A REMEDY
FOR THE
THE CONSTITUTION.
BY
ADEW J. WILCOX.
OF THE
BLTIMORE BAR. i 1. 
DEFECTS OF
t 
Entered according to the Act of Congress, in the year 1862, by
ANDREW J. WILCOX,
In the Clerk's Office of the District Court of the United States, for the
District of Maryland
.).  
INSCRIPTION.
To the Senators and Members of the House of Representatives
of the United States, this pamphlet is respectfully inscribed:
If it shall cause some to turn their attention "to the public good
and real tvelfare of the great body of the people," of all sections,
our labors will hlave been much more than paid.
THE AUTHOR.
AI!   
I 
THE  REMEI)D.
Being about to write it is proper that "I should declare my
intentions." So much power being claimed for Congress over the
subject of slavery, it is my intention to show what the authors
of the Constitution intended the amount of this power should be,
to offer such propositions as will meet their intention, and to offer
a proposition in respect to the mode of electing the President and
Vice President of the United States.
The capability of man for self-government whether in States or
Territories, has never been seriously denied in this country
till of late. It was the announcing of this doctrine that gave
to the United States their independence; for the establishment of
it on a solid foundation, our fathers shed their blood freely.
"We have heard of the impious* doctrine in the old world, that
the people were made for kings, not kings for the people. Is
the same doctrine to be renewed in another shape in the new;
that the solid happiness of the people is to be sacrificed to the
views of political institutions of a different form?  "It is too early
for politicians to presume on our forgetting that the public good,
the real welfare of the great body of the people is the supreme
object to be pursued, and that no form of government whatever,
has any other value than as it may be fitted for the attainment
of this subject." -Federalist, 249.
The first truth which the Signers to the Declaration of Independence assert is self-evident, was that "all men are created
equal," making no distinction between persons living under a
State or Territorial organization, but they did make  in this
truth a distinction between races and colors. In the abstract
all men are created equal; "nothing you have brought into theworld, nothing you shall take out," in reality no two men are
created equal. To have said that all men are created free and
equal, would have been not quite so Republican, but more in
accordance with the honesty of those patriotic men; they knew
at the very time they were putting the sentence on the parchment, that in this land of liberty, that all men in a political
capacity, were not created equal.   We  see them making this
distinction in a little over two years thereafter.  "The free inhabi  *The italics throughout are principally our own. 
6
tants of each of these States; paupers, vagabonds and fugitives
from justice excepted, shall be entitled to all the privileges and
immunities of free citizens in the several States," the 4th of the
Articles of Confederation. The first was to go out to the world
as the enunciation of general principles, the last was for their
own particular guidance. It will also be here observed, that the
words "fugitives from justice," are used in opposition to "fugi tives from service or labor." Nor did they argue that because all
men are created equal, that all men ought to be free, as some of
our later day statesmen have done to the disadvantage of both
white and black, bond and free? They found the question upon
them, and treated it successfully to the advantage of both races,
bringing about what some of our wiseacres now a days are intent
upon destroying: the peace, liberty and happiness of millions of
white free men, one party to give the negro political equality with
themselves, would fetter the opinions of some ofour best citizens,
viz: the bona fide emigrant to the territories;the other party to
keep enslaved the negro, "would bind down with chains grievious
to be born," the opinions of this same class. The result is that
there has been brought about, directly between these two parties,
a war, the ferocity of which exceeds anything known to the pages
of our history; were it not that this great nation has to bear the
brunt of the whole action, we should for the sake of hereafter
having permanent peace, be disposed to let these abolitionists
and fire eaters fight like the Kilkenny cats till they eat each
other up. We do not suppose that any line of policy which we
should be able to recommend would either lessen this ferocity,
or shorten the periods of its duration, yet the re-adoption of the
policy of the old hero Jackson, might produce similar results:
"like means produce, like results" is the general rule.
The President in his inaugural, as do all Jurists, holds that
the "intention of the lawgiver is the law," with which was connected the idea that it was the design of the Executive branch
of the government to execute that intention; which should be
complied with and afford at the same time satisfaction. "To interpret a law we must enquire after the will of the maker, which
may be collected either from the words, the context, the subject
matter, the effect and consequence or the spirit and reason of the
law." "The analysis 2dsection 1st Blackstone, again "cotemporary
authors and laws, are sometimes of peculiar use in explaining the
intention of a law." What the intention of the authors of the
Constitution was in respect to the power of Congress over the subject of slavery we shall endeavor to collect fr)m that instrument,
being assisted by the Federalist, Articles of Confederation, &c.
who being both cotemporaries and co-workers are of the highest
and best authority. In collecting the intention of a lawgiver from
the words of thelaw itself, Blackstone 1st book page 40 lays down 
I
7
this rule "words are generally to be used in their usual and most
known signification not so much regarding the propriety of grammar as their general and proper use." If their words are dubious
or enigmatical, we should then in explanation thereof; the same
author informs us; take to our assistance the context, and finally
resort to the effect and consequence, or the spirit and reason of
the law, which he considers the "'most universal and effectual way
of discovering the meaning of a law," (lst book, page 41.)
These rules we shall apply to all the Articles of the Constitution, that in any manner pertain to the subject of slavery. The
first that we shall consider is the 1st clause of the 9th sec., 1st
article, to wit:
"The migration or importation of such persons, as any of the
States now existing, shall think proper to admit, shall not be
prohibited by the Congress prior to tile year one thousand eight
hundred and eight, but a tax or duty may be imposed on such
importation not exceeding ten dollars for each-person."
By tile ninth and tenth articles of the amendments (hereafter
to be considered) we find that all powers not delegated to the
United States, are reserved to the States respectively, or to the
people." That is to say that only upon such powers as are ennumerated in the Constitution can Congress legislate upon.
These powers although acting upon and affecting the public,
are specific and special. "The plan of the convention declares
that the power of Congress or in other words of the National
Legislature shall extend to certain ennumerated cases. This
specification of particulars evidently excludes all pretentions to
a general legislative authority, because an affirmative grant of
special powers would be absurd as well as useless if a general
atuthority was intended.  Federalist, page 450.   The general
rule of construction laid down in the books, is that special acts
shall be strictly construed, our position here being clear, the only
powers granted by the people to Congress in this clause, is the
power to prevent the importation of slaves after the 1st of Janu ary, A. D. 1808, and the power to impose a tax or duty not ex ceeding ten dollars upon all such persons imported, another
general rule also laid down in the books is that special remedies
shall be strictly pursued. The last power here granted is im material, being limited to a time certain, which has expired, the
other is one of those negative powers the use of which being
denied to Congress for a certain period of time, works an affir mative grant to that body after the expiration of that time,
which it has availed itself of prohibiting the African slave trade
since 1808, "making that a crime which was no crime before;"
this then only abolished the right of the people to engage in the
slave trade and this rightfully too. The framers of the Con stitution having in view this clause and the intended abolition
of slavery in some of the states as a measure of justice to those 
8
states which still retained slavery inserted the 3rd clause of the
2nd section of the 4th article in these words.
"No person held to service or labor in one state under the
laws thereof, escaping into another, shall in consequence of any
law or regulation therein be discharged from such service or
labor, but shall be delivered up on claim of the party to whom
such service may be due.'
That this does not apply as some now argue to escaped convicts
cannot be doubted, if we look at the 4th of the articles of con federation above quoted in which the term "fugitives from justice"
is used in contradistinction to "fugitives from service or labor,"
from that article it was only free persons (not including free
blacks, the condition of all negroes been then regarded as slavery,
all the States being slave States with one exception) whoshould be
entitled to all privileges and immunities of free citizens of the
several States. I have frequently heard it reported (which the
Hon. Thos. H. Benton gives credence to in his 30 years view)
that this was the difficult point in the adoption by the Conventionr of the Constitution; without this clause it is said the
Constitution would not have been adopted; it was necessary for
the peace and good of the Union, being asked for and demanded by
Northern as well as Southern States this distinction was not
then made, only one State (Massachusetts) having abolished slavery. This was in this distinction the only Northern. State,
even as late as 1850 and probably later Pennsylvania and New
Jersey contained a number of permanent slave owners. This
clause is declaratory of the powers reserved by the people of
the States over persons held to service by the laws of the
States, the rule here laid down is, that such person shall be
delivered up on claim of the party claiming such service. By
no law or regulation of the State to which a slave escapes can
he be discharged from such service or labor; that is to say, no
State has the power to question the tenure by which a slave is
held, even in the State to which he has escaped, much less can
that State question the power by which the slave is held in the
State from which he has escaped; that is to say, the question of
freedom or slavery of the negro race in this country can only be
passed upon by the State in which these people are permanent
residents, any law, I care not whether passed in accordance with
this clause or not, at all impairing the execution of the clause, is
an infringement upon the intention of its authors. Upon this
clause the President in his inaugural again says: "The clause
I now read is as plainly written in the Constitution as any other
of its provisons, (here follows the clause.) It is scarcely questioned, that this provision was intended by those who made it,
for the reclaiming of what we call fugitive slaves, and the intention of the lawgiver is the law." All members of Congress swear 
9
their support to the whole Constitution, to this provision as to
any other; to the proposition then that slaves whose cases come
within the termis of this "shall be delivered up," their oaths are
unanimous, to which we say, Amien and Amen.  Again "I take
the offiicial oath to day with no mental reservatiojR whatever
and with no purpose to construe the Constitution or laws by
any hypercritical rules." Thus it seems that there is a class
of people who subscribe to the Constitution with some mental
reservations, we know not where to locate them, unless it be
those who claim by the Constitution the reserved right to break
up the government whenever it suits their convenience, and
that other class who define the Constitution to be a "covenant
with death and a league with hell;" not content themselves with
their own violation of the law when it does not accord with
their fanatical view, they would induce others to "go and do
likewise."  To such men, who regard the sanctity of an oath
of such little importance, we would here say, that we are not
addressing ourselves to them. Upon this and the former clause
the issue is just about being made and being so plain and circumlscribed in their effects are of little importance.  The next
clauses we shall consider is the 9th, and 10th of the amendments, to wit:
"The enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the
people. "
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
The adoption of either one of these clauses would have answered
the purposes of both, "to make assurance doubly sure," we have
both. This was necessary in order to quiet the objections of many
of the States that refused to ratify the Constitution.  Without
clauses of this tenor; it was held that the rights of the people
would not be safe and more especially so, as there was a similar
clause in the Articles of Confederation. "Each state retains its
sovereignty, freedom  and independence, and every power, jurisdiction and right which is not by this confederation expressly
delegated to the United States, in Congress assembled." Art. 2d.
The omission of this provision in the Constitution, caused the
people to fear that at sometime their rights might be infringed
upon. At the very first session of the first Congress, these two together with the eight preceeding articles were adopted, this then
appears to have been on the part of the authors a "cassus omiss.us" the intention of the people at least continuing the same
since the adoption of the Articles of Confederation. We have
been thus minute, in order to show that this was the intention
of the same men who framed the Constitution, which will be the
2 
10
more apparent if our quotation fiom the Federalist, page 450,
be referred to.
It will be distinctly observed, that from these clauses Congress
gets only those powers which are specially granted to it, by that
instrument; that all other powers which the people have not surrendered, or which, by the Constitution, they are not forbidden to
make use of; that they still retain.  That these powers are reserved
as much to the people as to the States, that they are not even
to be disparaged, but are to be guaranteed to the people in their
fullest sense.  In respect to this everlasting negro question, no
where in the Constitution can we  find that the people have
surrendered any other powers, than those we have already had
under consideration, viz:-The power to prevent the impol —
tation of negroes after 1808, and the powel to prevent the escape
of fugitive slaves from their masters; all other powers in respect
to this question, they still retain in their integrity. car;rying out
these provisions Congress is strictly confined to, and should
strictly carry out these powers; the people of the several States
having retained the power to establish or abolish slavery, which
they have in many  instances  in both  ways exercised,  and
having also retained the power to carry thleir slaves with them
anywhere in the limits of the country, which although imperfectly they now exercise, and which the States protected tliem
in exercising up to 1847.  Pennsylvania, which was the first.
not until then repealing her slave sojournment law. Congress
(at this late day all of our territories being organized,) commits
in the assumption of the power, a willful usurpation that cannot
be desired except to cause agitation. The people then emigrating from the several States, having retained the aforesaid powers,
either as the fountain source of all power, or as part and parcel
of those States, carry it with them into the territories, and can
there either establish or prohibit slavery, as the majority shall
determine.  The change of situation neither lessens nor increases
the national privileges or responsibilities of the people. Upon
the division of powers between the States and general Government, the Federalist (page 252) is conclusive again. "The powers
delegated by the proposed Constitution to-the Federal Government are few and distinct. Those whiichli are to remain in the
State (Governments are numerous  and adequate.   The fobrmer
will be exercised principally up(,n external objects, as war, peace,
negotiation and foreign commerce, with which last the power of
taxation will for the most part be connected. The powers reserved
to the several States, will extend to all the objects which in the
ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State." Here evidently is excluded under the powers
of the general Government, and included under those of the States 
11
the subject of slavery.  It will  be here  said that this only
applies to States and not to territories, to which we answer,
that if there has not been granted to the General Government
or Congress a power, the using by that body of such a power
over an inferior jurisdiction, even could the latter not effectually
use it, cannot by any possibility make such action of Congress
Constitutional.  The 2nd clause of 3 section of the 4th article,
gives to Congress the power "to make all needful rules and regulations respecting the territory or other property belonging to
the United States," by virtue of which Congress assumes to have
a~ revisory action over the territorial Legislature, wherein they
can (fefeat the will of the people. This objection we will answer
under that clause: an extreme Southron would say, that if Congress has not the power to establish, it has the power, yea more
it is the duty of Congress to protect slavery in the territories,
on an equality with all other property, in the first place by our
laws they are considered "in some respects as persons and in
othe: respects as pl)op)erty."-Federalist, 295.  Not being considered property by the common laws, "slavery is unknown to
our laws," says Blackstone in his analysis, it does not of course
receive a common law protection, it must therefore depend on
the local laws of Congress for that protection, to give it direct:
protection would be to establish it, which we have seen Congress
cannot do, but slavery is as we shall show, indirectly protected,
and hias heretofore been admitted on an equality with other
property into the territories, the only exception is that made by
the common law.  Benton speaks in this manner that it cannot be expected that a man can take with his property,  the
local laws of the State from which  he emigrated,  to govern
that property, which if allowed would be impossible, it would
be as just to allow the Pennsylvanian the local laws that control stocks, as the Marylander his  local laws  that govern
slavery.  But there is in the Constitution a discrimination in
favor of slave property.  By virtue of the fugitive slave clause,
and the laws in accordance therewith, slaves  are prohibited
f'roi rlunning away from their masters.  If the law does not
ftorbid me the use of a certain article, prevents other from dispossessing me, and directs them when their services are needed
to assist me in retaining possession; it, to the very greatest
possible extent, indirectly protects me in its use.  All of this
should be the practical effect of the fugitive slave laws, when
executed in their letter and spirit.  If then the Marylander or
Kentuckian has not the privilege of taking his local laws
with him into the territories, he nevertheless has the- right to
take his slaves there, as we have seen and will there find provided by the Constitution, the fugitive slave clause which is
indirect protection. What length of time the master should 
12
be allowed to remain in the territory with his slaves, is a question with which we have nothing to do; the legal period which
is always prescribed to be a reasonable time,  (in this connection should be taken into consideration; the distance, difficulties and inconveniences of emigration to a new territory,) seems
to me to be but just to all sections. In New York, with direct rail and water communications, and having all the conveniences of an old settled State, the period of sojournment for
a master with his slaves, was fixed by the law of that State
at nine months; in Pennsylvania lying contiguous to slave
States, the period for the same purpose was fixed at six
months, either of these periods after the prohibition of slavery
iii the territory by the territorial legislature, would be sufficint
tiuie for the master to get away from the territory with his slaves,
and would also give him  time, With all others, to franme the
sentiment of the territory.  That is to say, let all persons indiscriminately  go  into  the territory with  all descriptions  of
property, the master with his slave  guarantee  to him  the
right to remain there until six or nine months after the )prohibition of slavery by the p)eople of the territory, and we will gualantee that this, tog,ether with the adoption of such propositions as
we shall recommend, will afford satisfaction, and the remo(val )ft'
the slave owner after prohibition.
Our next clause is the 17th of the 1st section of the  1st
article, to wit:   "To exercise exclusive legislation in all cases whatever, over
such district not exceeding ten miles square, as may by cLssi<>l
of particularStates, and the acce)tance of Congress becomie tl(,
seat of Government of the United States, and to exercise like
authority over all places purchased by the consent of the legis
lature of State, in which the samte shall be, for the erection of'
forts, magazines, arsenals, (lock yards, and other needful b)uildings."
This is the fifth of the clauses enumerated among the powers
specially granted to Congress, from which it will be distinctly
seen, that Congress gets the power to legislate exclusively, only
in two cases.  First, when the district does not exceed ten mniles
square, which must be ceded by particular States, be accepted by
Congress, and become the seat of government of the United
States-this evidently al)pplies to the District of Columbia.Secondly it gets the power to legislate exclusively, over all places
purchased by the consent of the legislature of the State, in which
the same shall be, for the erection of forts, arsenals, magazines,
&c.  A  territory comprising many  hundreds of square miles,
could certainly not come under the first case, nor by any possibility be brought under the second, unless it was calculated to
make onevast arsenal of it, and then where could the consent of the 
13
legislature of the State come, and from what State should this
consent come; so then without fear of contradiction, and which
point is now only indirectly disputed, we may safely say that
Congress has not the power to legislate exclusively for the territories, if this be so, then the balance of this power, or a power
concurrent with Congress must rest in another body, so that
together jointly, they may have exclusive jurisdiction, rather
legislation. (It will also be here noted, that the term exclusive
in this clause, applies to legislation, and not to boundaries or
territorial limits.) Into what better hands or into what other
body, can this concurrent power more properly lodge, than into
the hands of the territorial legislature; is not that the evident
intention?  But you here say we make no issue with you on
this subject: in these days of abolitionism, secessionism and all the
other herisies and isms, we know not at what moment petitions
may be circulated for the removal of the seat of government
from the territory, to either South Carolina or Massachusetts,
and that the members of the territorial legislature be appointed
by the executive. It would not be in the least more unconstitutional, and Congress would have just as much authority so to organizea territory, asit hasin theassumption of the unlimitedpower now
claimed for it, viz: the power of legislating for the territories upon
all subjects, and to any extent.   This brings us to the question,
where is the line of demarkation to be drawn? For what purposes does this concurrent power exist in the territorial legislation?  It would be no more absurd to claim that the territorial
legislature, has the power with Congress to legislateupon national
subjects, (even now individuals claim an influence, and in fact
have and exert an influence over the legislation of Congress)
than it would I)e to claim an indiscriminate intermingling of the
legislative power of the two bodies on all subjects whatsoever,
in the territories, which is now done when it works for the
benefit of Congress.
Besides the quotation already taken from the Federalist, on the
division of powers between the State and general government, we(
again quote from that author, (page 239) on this clause.  "The
extent of this federal district is sufficiently circumscribed to satisfy
every jealousy of an opposite nature, and as it is to be appropriated
to this use, with the consent of the State ceding it, as the State
will no doubt provide in the compact for the rights, and the consent
of the citizens inhabiting it, as the inhabitants will find sufficient
inducements of interest to become willing parties to the cession,
as they will have had their voice in the election of the governruent which is to exercise authority over them, as a municipal legislature for local purposes, derived from their own suffrages will of
course be allowed them; and as the authority of the legislature of
the State, and of the.nh~aabints of the ceded part to concur in
the cession will be derived from the whole people of the State, in 
14
their adoption of the Constitution, every imaginable objection
seems to be obviated." 
Again, "the necessitv of like authority overforts, magazines,
&c., established by the general government is not less evident."
In this paragraph it is quite clear what the authors here intended this exclusive power, granted by this clause, should consist
of, and for what purposes. We find that to this district, where
Congress was to have exclusive jurisdiction, "a municipal legislature for local purposes, whose authority would be derived from
their own sutffrages would of course be allowed them." With how
much stronger force ought this (if it is to be supposed the authors
were either sensible or reasonable men) apply to the district
where Congress has only concurrent jurisdiction? To grant it in
the one case and deny it in the other is to make the authors of
that instrument stultify themselves. This, together with the
quotation before cited, are in no way at all conflicting, but on
the other hand are so explanatory of each other and of the Constitution, that it makes for the friends of popular government a
case so strong and clear, that a ("wayfaring man though a fool
need not err therein." To this it will be replied that this is not a
local but a national institution, go to your State and nationall
statute books and you there find that every State that has abolished slavery has done it through its own agency, state legislation.
No where in the acts of Congress will you be able to find that
Congress has ever assumed the power to abolish or establish
slavery in any State. On this subject the last Congress in adopting an amendment to the Constitution, declaring that Congress
has no power to interfere with slavery in any State, clearly expressed what has always heretofore been considered the constitutional
view of the matter.  On this subject we may finally conclude that
beyond a doubt the authors of the Constitution intended that
this conicurrent power of Congress should be to make all laws
which govern the territory, in conjunction with other parts of
the nation; that the concurrent power of the territorial legislature should be to make laws to regulate their own domestic and
local institutions; in other words, this municipal legislature otf
the territory, deriving its authority from the suffrages of its
inhabitants, would be of course allowed to legislate on local subjects for local purposes, whilst the Congress of the United States
has only the power to legislate on national subjects for national
purposes. Let us now go to their stronghold, and consider
the clause from which all this Congressional power is derived,
rom which that body gets the power to revise in all cases the
action of the territorial legislature; it is the 2nd clause, 3rd section, 4th article, to wit:
"The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other 
15
property belonging to the United States, and nothing in this
Constitution shall be so construed as to prejudice any claims of
the United States, or of any particular State."
This clause being the all and all of our opponents; if we should
be somewhat tedious they will not, I hope, think hard of us.  At
the offering by the 1st Congress of the Articles of Confederation,
some of the States refused to "lay hold of the horns of the
altar," until all of the north-west (which they contended was
common property, having been acquired by the united efforts
and energies of all the States,) should be ceded by those States
olaiming it for the benefit of the whole country; after much excitement we are informed the different States relinquished their
claim to this territory.   In the Congress of 1780, there was
adopted a resolution looking to the cession of this territory, in
which Congress d(leclared( that they would dispose of it for the
common benefit; it was to calm the troubled sea of politics that
this voice was uttered, this we shall hrereafter apply. The
first question that attracts our attention in this clause is the very
first sentence.  "That Congress shall have power to make all
needful rules and regulations respecting the territory or other
property belonging to the United States." Are pro-slavery or
anti-slavery laws needful for the organization of a territory; to
be needful they should be necessary? To answer this question we
need go no farther back than the last Congress. We find that
that Congress, in organizing the territories of Nevada, Colorado
and Decotah, did not consider laws upon the subject of slavery
at all necessary, that body (although composed of a majority of'
th,ose who claim for Congress the power to legislate directly
upon the subject,) totally ignored the matter, nor has it since
been found that this course has in the least damaged the political machinery of either body in its practical workings. It will
also be here observed, that the connecting word in this sentence
is in the disjunctive and not in the conjunctive, thereby rendering the sentence indivisible after the word territory, which
forbids the construction sometimes put upon this sentence, that
Congress has the power to make all needful rules and regulations
respecting the territory, and that Congress has the power to
make all needful rules and regulations respecting other property
belonging to the United States; but we could, for the sake of
the argument, admit the divisibility of the sentence, then its
advocates would have to explain away the meaning of the
word respectitg upon which much of the force of the sentence
depends, being derived from the gerundive of the latin verb
re8spicio, which means to look toward or at something; it has a
relative and not an absolute signification; had the word for been
used instead of the word respecting those who claim an absolute
meaning for the word would have been nearer right. Then go 
16
farther and take the latter part of the sentence, "or other property belonging to the United States." To the woird other there
must be correlative, which relates to something gone before; slavery cannot be this correlative, it has never been looked upon as
property belonging to the United States. The authors of the article, intended that the legislation by the national legislature
should be as to their primary organization and the disposition
of the soil. "The Constitution of the United States did not delegate to Congress the power to abrogate these compacts, on the
contrary, by declaring that nothing in it'shall be so construed
as to predjudice any claims of the United States or of any particular State,' it virtually provides that these compacts and these
rights they secure, shall remain untouched by the legislative
power, which shall only make all needful rules and regulations
for carrying them into effect; all beyond this would seem to be
an assumption of undelegated power."-Jackson's veto message
on the distribution bill 1833. The old hero here says, that it was
only for carrying into effect the compacts between the government and States, in reference to the distribution of the soil that
the power to make all needful rules and regulations was granted
to Congress: "all beyond this would seem to be an assumption
of undelegated power" on the part of that body. This is confirmed by the last part of the clause which qualifies the whole Constitution, "Nothing in this Constitution shall be so construed as
to prejudice any claims of the United States or of any particular
State."  Claims in a general sense do not properly refer to the
subject of slavery, but if this clause or any other shall be so construed as to include that subject, then Congress has the power to
legislate upon it. I do not believe the authors ever intended that
there should be granted to Congress a power which they should
not use, it would be contrary to their good sense and wisdom.  If
Congress has this power: legislation on it must necessarily be I)rejudicial to either one or the other sections of our country. If that
body directly prohibits slavery, it would be prejudicial to the
slave States, if it protects or establishes slavery it would be prejudicial to the interests of the free States, but then again the
Constitution (here it will be noted that the whole Constitution
and not this particular clause) must be so construed that the
claims of the United States will not be prejudiced. Here also
we must have a construction that will adapt itself to all three of
the parties, the slave, the free States and the United States,
(granting for the sake of the argument that the power to legislate upon the subject of slavery in the territories is included
among the powers of Congress,) the only construction that cannot possibly be prejudicial to the claims of any State or the
United States, is the construction of no power in Congress to
legislate upon the subject; that is to say, that construction shall 
17
be placed upon it which will reserve to the people their original
right of controlling the matter in their own way, therefore the
only construction we can put upon it that will stand, is to deny to
Congress all power over the subject. That the power to "make
all needful rules and regulations respecting the territory," refebred to the disposition of the soil is strengthened by the Fed eralist upon this clause, on page 235, this language is used:
"This power is of very great importance, similar to these
which show the propriety of the former. The proviso annexed
is proper in itself, and was probably rendered absolutely necessary by questions and jealousies concerning the territory, sufficiently known to the public." Although the Federalist here
speaks of this clause as being of very great importance, and rendered absolutely necessary, (stronger language than he has used
in reference to any other clause,) yet he seems to desire to get
rid of it with as little comment as possible. That the disposition of the soil was one of those questions which agitated the
public mind at that time, and rendered the adoption of some
measures in reference thereto absolutely necessary, we know to
be the fact from the adoption of the resolution of 1780. That the
slavery question was also of that class though of much less irmportance, we are led to believe from the adoption of the ordinance
of 1787, and from the report that the fugitive slave clause caused
much agitation, it at last being accepted of as a compromise.
The most natural way to have settled the slavery agitation, in
all other'respects would have been for the authors to have entirely dropped the subject, leaving it with the people; the land
question, they could not possibly settle without some legislation
on the subject. The disputed territory in reference to the subject of slavery, had also been principally settled in respect to
legislation, prior to the sitting of the Convention.
The Anti Slavery provisions in the ordinance of 1787 being
merely incidental, its primary object being the securing of the
rights of the white people in that territory. Had this question
been then agitated, Virginia would never have sanctioned the
provision. It therefore makes no difference at all in respect to
the slavery question, which version of this clause is adopted. If
it includes the slavery subject, it remains with the people. If
this matter is excluded, it still remains with the people, then this
revisory power, which Congress assumes over the action of the territorial legislature; if the first position be adopted can only be one
of form and not of substance, it having only the power to sanction
the action of that body. If the rules and regulations upon the subject of slavery, be not needful in the organization of a territory,
Congress has no revisory power over the matter.   The  power
then to "make all needful rules and regulations," being granted
solely to Congress, and not to the territorial legislature, either
3 
18
this clause or the clause in reference to the exclusive power of
Congress, mustbeexplained away before Congress can use this revisory power over the territorial legislature in all cases. It cannot make all rules and regulations, and yet not have exclusive
jurisdiction; the terms are contradictary in themselves. The rules
laid down in Blackstone in respect to the context, is that "one
part of a statute must be so conilstrued by another, that the whole
may if possible stand" "ut res magis vaeleat quam pareat," 1st
book page 62. That is to say, we should put that construction
upon an instrument of writing, (the same is the case with a will,)
that the whole may stand, and be strengthened by its different
parts and sections, rather than weakened or destroyed; again says
Blackstone, 1st book, (page 40,) "the words of the context may
be of singular use, to compare a word or sentence wherever they
are ambiguous, equivocal or intricate."
Those who claim for Congress the power to legislate upon
the subject of slavery, gather all this power principally from
the last clause we have had under consideration, and which we
have shown leaves the question entirely with the people. This is
sustained by the clause in reference to fugitives from service or
labor, declaratory of the power which the people have over it
in their States and State capacity. This again supported by arts.
9 and 10 of the amendments, in which is respectively reserved
the power to establish slavery, the power to prohibit its establishment, and the power to carry their slaves wherever  they
choose, to which will be added, clause 17, sec. 8, article 1st, which
defines the exclusive jurisdiction of Congress; entirely excluding from this exclusive jurisdiction a territory.  Which some
would fain make us believe, that although Congress has not the
power to legislate exclusively for a territory, it nevertheless has
the power to legislate for that territory, upon any and whatever subject, and to any extent it pleases, which it has already
assumed for itself in this revisory power. Our construction is the
only one that will render efficient the intention of the authors;
the opposite construction, (if it would even apply to the clause
to which it isapplied,) would be to the disregard and expense
of the four other articles. We do not want to be here again confronted with the silly objection that all this only applies in respect to States, we told you before that the use of a power by
Congress over an inferior jurisdiction, (which if the latter could
not itself exercise,) would not of itself make such action constitutional. The power must be granted to the government before its
exercise will lbe constitutional. What did the authors suppose
the effect and consequence of this construction would be upon
the people, at the time of the adoption of the Constitution? This
effect and consequence would be to secure a firm Union, which
"comprehending in its consequences, nothing less than the exis 
tance of' the Union, the safety and welfare'6f the parts of which
it is composed the fate of an Empire, in many respects the most
interesting in the world." To secure this was their sole aim, any
other course would have "split the country into a number of
unsocial, jealous and alien sbovereignties," thereby defeating their
principal object.
"But lastly, the most universal and effectual way of discovering the true meaning of the law, when the words are dubious
is by considering the reason and spirit of it, or the cause which
moved the Legislature to enact it." Blackstone, (lst book page
41.)  The cause for the revolution and the formation of our government was that "governments derived their just powers
from the consent of the governed," that "the king, (that is
of England,) had called together legislative bodies at places unusual," that "he had dissolved representative houses," that "he
imposed taxes without our consent."' "For suspending our own
legislature and declaring themselves invested with power for us
tn a  cases whatsoever," these are some of the causes assigned
by the Declaration of Independence.  This may be thought a
strong case but it all amounts to the same thing in principle,
there is no difference between  suspending  the  legislature
and investing themselves with power to legislate in all cases and
in compelling the legislature to legislate only in such manner as the revisory power permits.  These were the causes that
our fathers went to war   with England about.  Would it appear  reasonable  for the same men  to deny themselves and
posterity, the very principles for which they warred?  Such action would have made the war useless and been criminal, in
the sight of Heaven. "The first question that offers itself is
whether.the general form and aspect of the government be strictly
republican; it is evident that no other form would be reconcilable with the genius of the people of America, with the fundamental principles of the revolution, or with the honorable determination which animates every votary of freedom to rest all
our political experiments, or the capacity of mankind for selfgovernment. If the plan of thle convention therefore be found
to depart from the Republican character, its advocates must
abandon it as no longer defensible," (Federalist, page 203.) The
first question here put by the Federalist is, not is the government republican, but is it strictly republican?  For the general
government to be republican whilst the State and lesser governments are anti-republican, "would not be reconc ilable with the
genius of the people of America." This Was "'the-fundamental
principle of the revolution, it was that honorable determination
which animates every votary of freedom to rest all on the' capacity
of mankind for self government."  They would not allow their
local legislation to be moulded and fashioned after the will of
19 
20
politicians and demagogues, hundreds and thousand of miles
away, who had no interest at all in the locality. The people of
the territories have in the practice of Congress, sufficient cause
to enunciate a similiar manifesto. This right of self government,
especially in respect to domestic affairs, they intended should be
preserved in its purity and integrity for their posterity, no matter whether under State or territorrial organization, they themselves demanding it, whilst under the worst form of a territorial organization. Jackson in his veto message on the distribution, bill says that "It was not for territory or State power, that
our revolutionary fathers took up arms, it was for individual liberty, and the right of self government." On the spirit of the revision by Congress of the territorial acts, we make the following
excellent extract from 1st Kent pages 425 and 426. "If therefore the government of the United States, should carry into execution the project of colonizing the great valley of the Columbia or
Oregon river to the West of the Rocky Mountains, it would
afford a subject of grave consideration what would be the future
civil and political destiny of that country, it would be a long time
before it would be populous enough to be created into one or
more independent States, and in the meantime upon the doctrine taught by the Acts of Congress, and even by the judicial
decisions of the Supreme Court; the colonists would be in a state
of the most complete subordination, and as dependent upon the
will of Congress, as the people of this country would have been
upon the King of Great Britain, if they could have sustained their
claim to bind as in all cases whatsoever; such a state of absolute
sovereignty on the one hand, and of absolute dependence on the
other, is not congenial with the free and independent spirit of our
native institutions, and the establishment of distant territorial
governments, ruled according to the will and pleasure of Congress,
would have a very natural tendency, as all pro-consular governments have had, to abuse and oppressions." This will apply with
equal force to territorial governments wherever they  may be
situated, already his prophecy in respect to the civil and political destiny of the territories, has been more than verified. The
subject has become more grave than he or any one else ever expected; it has at least indirectly sent many souls to their graves.
Congress and the Supreme Court are with deference informed
that their acts, and the judicial decisions of the Court, based
upon the doctrine that the people of the territories, are in as
absolute dependence, as we would have been, had great Britain
succeeded in subjugating us in the revolutionary struggle, are
not in accordance with the free and independent spirit of our
native institutions, and that this course has a very natural tendency to abuse and oppression. To all those who deny the capability of man for self government in the territories, we reccommend the study of this extract. 
21
One word here to reconcile this new fangled idea, as it has been
called, (although older than the Constitution itself and the corner
stone of our liberties) to the consciences of "sinless perfection" who
see in slavery the "abomination of desolation as spoken of by Daniel the prophet." On the ground of morality and religon these
men argue that it is the duty of the government to cleanse us
from this sin and uncleanness. "Father forgive them they know not
what they do." Viewing it as an individul sin they would take us
beyond the time of Moses, the rule then laid down was that only
"the children to the third and fourth generations should be visited for the iniquities of the parents," Exodus, 20ch. 5 ver. The
rule laid down by these lawgivers, is that the stranger shall
be accountable for the sins of the stranger; the law since the new
dispensation is "your iniquities be on your heads" that "you shall
be responsible for the deeds done in your own body," that is, not
another's.   If the iniquities be  upon corporations, then the
Lord talks to them as St. John in his revelations ch. 18, ver 5,
prophesied he would concerning Babylon. "Forher sins have
reached unto Heaven and God hath remembered her iniquities.
Again ver. 8th, "therefore shall her plagues come in one day,
death and mourning and famine and she shall be utterly burned with fire, for strong is the Lord God who judgeth her." Our
iniquities have surely not been visited upon us as a nation. We
have in every respect been more prosperous and have lived more in
peace and harmony with each other (until the hand of these lawgivers began dispensing the law upon the subject) than any other
nation o-n earth. To cut the matter short, these men, in the
language of Paul, "desiring to be teachers of the law, understanding neither what they say nor whereof they affirm," 1st Timothy,
1. ch, 7'Ker. We have now, by allthe rulesof constructionas laid
down by Blackstone for finding out what the intention of the
lawgiver is clearly shown, (we hope, to the entire satisfaction of
all who "desire to seek after the truth,") that the authors of the
Constitution intended that over the slavery question the Government or Congress of the United States should have no power at
all, that this power is retained by the municipal legislature of the
territory whose authority is derived from their own suffrages.
Having shown what the intention of these lawgivers was, the second part of our intention, the embodiment of their intention into
certain tangible principles, remains for us yet to accomplish,
which we do in the following principles, to wit:
Ist.  That any territory containing a population of ten thousand white male inhabitants the same having been residents of
said territory for one year previous thereto, shall have the power
through its legislature, (without regard to the sanction or nonsanction of the Governor of said territory or of the Congress of the
United States) either to establish, protect or prohibit slavery in
said territory. 
22
2nd.  That the act or acts of the territorial legislature establishing, protecting or prohibiting slavery shall not be repealed
or amended within four years after the enactment of the same,
unless said territory shall be admitted into the' Union as a State
prior thereto.
3rd. That any territory having the requisite population, and a
republican form of governmnent; shall be admitted int the Union
as one of thee original States, either'with or without a clause or
clauses, in its constitution establishing or protecting slavery.
4th.  That slavery shall not be abolished in the District of
Columbia, without the consent of the legislatures of the States of
Maryland and Virginia, nor in the forts, dock yards, arsenals,
magazines, &c., without the consent of the legislature of the
State in which the same shall be.
5th. That the four preceding articles, together with clause
third, section second, article fourth and article thirteenth of the
amendments to -the Constitution shall not be repealed.
Before proceeding to consider these propositions we would
remark, that  on amending  the fundamental law  it matters
not whether  the  amendment  coincides  with  the previous
intention of the lawgiver and laws or not, when the earlier law
comes in conflict with the later, this last repeals and takes precedence of the former, "quod populus postremum jussit, id jus
ratum esto," but if it will answer all the necessities of the public
good, at the same time also: fulfilling the intention of those lawgivers, (and does not repeal that law, which is a sure test of its
agreeing with the intention of those lawgivers,) it should at least
receive the benefit of this extra qualification.
There will not of course be any objection made against these
propositions on the ground that they do not give the people, in
their aggregate capacity, the power to control this affair. (It was
the intention of the authors of the Constitution, that this matter should be legislated upon by the people in their representative capacity, by  a municipal legislature,) any  other modus
operandi would even if possible be impracticable.  The will of
the people  when expressed through their representatives, if the
mode of ascertaining it be properly guiarded', will' not be defeated and when thus clearly expressed, but be more binding and
better executed, by the 1st proposition, to wit     -
That any territory containing a population of ten thousand
white male inhabitants, the same having been residents of said
territory for one year previous thereto, shall have the power
through its legislature, (without regard to the sanction or non
sanction of the Governor of said territory or of the Congress of the
United States) either to establish protect or prohibit slavery in
said territory.
It will be observed, that before the territorial legislature 
23
shall have the power granted to it in this proposition the territory
shall contain a population of ten thousand white male inhabitants.
The word inhabitants is here used in the same sense in which it
is used in territorial acts, that is legal voters. As the proportion
of voters to the number of inhabitants is much larger in anew
territory than in the States being about one voter to every three
persons, this will increase the aggregate population of the territory to about thirty thousand, being the same number, which, at
the adoption of the Constitution, was the maximum required for
entitling a State to a representative in Congress, which number will be largely increased by the time the legislature assumes
the power granted. Unless emigrants pour freely into the territory. Before the territory shall contain this population, the time
will be sufficient to give the emigrants from whatever section an
opportunity to frame the sentiment on this particular subject. The
better also to accomplish this among other things, there is herein
a provision compelling the inhabitants to be bona fide residents
of the territory for the period of one year. This will be objected
to on the ground of its being too short a period, if so, it can at
any time be altered by statutory provision: the greater always
includes the less but the less never the greater; also by statutory
provision, can be provided the mde of ascertaining and registering the number of inhabitants of the territory. To attempt to
incorporate into any proposition all the necessary particulars
would be fruitless. Another great advantage to be derived by
the inhabitants from this one year period is that it enables them
to form correct opinions in respect to the adaptability of the soil
and climate to any particular labor, but by far the greatest benefit that will be derived from this residence of one year, is that
it will secure to the bona fide inhabitants, the power to regulate
this matter for themselves.  The carrying out of one's ideas and
opinions will for its gratification sometimes lead them very far,
nevertheless, it will not in this case induce one to go as far as to
emigrate to an unsettled territory and remain there one year
thereafter, unless they are directly interested  in and intend to
remain there as permanent residents; for the same reasons it will
be the means of breaking up emigrant aid societies both north
and south; the expense of sending emigrants to a new territory
and providing for them a year will be rather more than the mere
gratification of their isms will be willing to pay.
This part of this article will be again objected to, on the ground
that it does not specify to what class of residents these privileges
are granted, that it will grant to a foreigner not only these, but
the greater privilege of full citizenship, contrary to the 4th
clause of the 8th sec., 1st article of the Constitution which provides, that there "'should be established an uniform rule of naturalization."  This is not correct,  but there are States in 
24
which one year's residence will afford an alien the full benefit
of citizenship, so that if this objection would stand good it would
be nothing more than is every day practiced, but it it should at
any time be thought desirable to extend this privilege to none
but,citizens of the United States, it might possibly by construction be included under the provision as it now stands; but we
think it not at all advisable to thus provide, as their might be a
case in which a territory may be ceded to the United States, in
which the inhabitants have all the qualifications herein prescribed, who would in all respects, be more capable of judging of
this matter than even emigrants of a year's residence; it would
thus operate against these people, without being any particular
benefit to the citizens of the United States, whereas, it cannot
possibly have any injurious effect on the rights of the citizens
of the United States, it is only citizens of the States, and not
residents of the territories, who are "entitled to all privileges
and immunities of citizens in the several States." Instead therefore of granting them the privileges of citizens, it would only
grant them the privilege of voting for a territorial legislature;
again it may be said that they may possibly elect a legislature,
holding opinions contrary to republican institutions, as has
been the case already, besides the provisions of art. 4th, sec. 4,
which guarantees to every State a republican form of government, and which is by the 3d of these propositions, expressly
made an objection to the admission of a territory. Which would
of itself compel the legislature, to change any anti-republican
opinions, if they desired to be admitted into the Union, if
this sould be too long to wait to apply the remedy, do as was
done with Utah. We do not claim, nor is it the intention of
these propositions to render the people of a territory infallible.
Again it will be here noticed that it is not the intention of
this article to alter the present form, only in respect to the
slavery question; the will of the legislature will only be supreme
in this case, in all other respects the Congress of the United
States will retain its revisory power over that body. We have
purposely avoided, throughout this argument of putting the
territory on an equal footing with a State. Although we have
all along claimed for the people of the territory the right to
control their own affairs, yet it has only been in respect to
their own domestic institutions, we claim for them all power
beyond that which is needful for Congress in the disposition and
organization of a territory.
We now come to the most important part of this proposition,
to wit: "Shall have the power through its legislature, (without
regard to the sanction or non-sanction of the Governor of said
territory, or of the Congress of the United States,) either to establish, protect or prohibit slavery in said territory," herein is 
25
included the power which Congress and the territorial Gover nor will hereafter have over the subject. The Governor of the
territory is the appointee of the President of the United States,
as is frequently the case, he is different in sentiment to a majority
of the people being among them  a stranger; expecting to
remain there only during the period of his term, he would
not interest himself directly in the matter, nor put himself to
any trouble to find out the sentiment of the people; should he be
able to hold over their heads the veto power as now, this would
itself not only give him an influence with the members of the
legislature, but. hlie would also be able directly to defeat the will
of the people, unless a bare majority would be sufficient to pass
it over his veto, which would be no veto-at all, but beyond this
direct influence of the Governor, it would give the President of
the United States, one of the branches of the national government, an indirect influence over the matter. An example of this
influence we had not long ago, it was in a very great measure,
owing to the influence which the territorial Governor and President of the United States exerted in the territory, or rather
tried so to do, that caused the "sweepings and wailings to come
up from bleeding Kansas." Our present troubles have been
principally brought about by the agitation of the slavery question
in Congress.  [Iad the action which Congress took upon the reception of the first petitions on the subject, (viz: taking no
notice of them,) been strictly carried out, we should not now
be mourning over the liberties of an outraged people;  no sectional party would ever have grown to the proportions of manlhoodl, it would have been strangled at its birth. "It was the
elevated theater of the national Congress, which gave importance
to the subject," says Benton. It can only be got rid of now in the
same way a physician would get rid of a bad canker, knawing
at the very vitals of his patient, cut it out root and branch,
abolish it entirely from Congress, let it be to that body a sealed
book.  This can only be (lone by not only removing entirely the
influence which Congress, itself in its legislative capacity, has
aver it, but also in the power which the one branch has over the
appointments of the President. let them not have cause to
speak on it, even when the appointment of the territorial Governor
is before them, which would be seized upon as any opportunity for agitating the question. The revisory action that Congress has over the subject would not be entirely removed, unless
in connection with the removal of the power to sanction or notsanction the the acts of the territorial legislature, the power
that Congress has over the subject, in respect to the admission
of the territory as a State into the Union, (included under proposition the 3rd to be hereafter considered) be also removed.
It also might at first appear only necessary to provide against
4 
the veto power of the Governor, and of Congress. Had the Governorand especially Congress, the power to sanction the territorial
acts, some of the legislature, to secure the favor of the Governor
would disregard the opinions of their constituents, and side
with him, on that account their action would not be independent.
Had Congress the power to sanction these acts, some fanatics
for the purpose of gratifying their fanaticism, would  avail
themselves of this opportunity to "heap coals of fire" upon the
heads of the vanquished, it is true, that this does not now
exclude Congress and the Governor in sanctioning or not sanctioning the territorial acts, but it does remove all interest therefrom, if they do such things merely for the sake of the thing
it is better to close the doors at once, or by virtue of these proposition a rule could be laid making it a punishable offence for
any member to speak on the subject. What is the necessity ftr
using both the words establishing and protecting? The necessity
is the very reason assigned by those who say, that they should not
be used, and that is, that the words are in effect of equal force,
and were both not here specified, it would be claimed that both
were not intended, and that Congress at some filture time hali
the power to protect slavery, under these three words was intended
to include all the power that Congress has over the matter.  Whv
is slavery here used instead of involuntary servitude? Words in
the abstract are nothing, it is only the meaning attached to them
which render them important, in conveying  the idea of the
writer; we care not whether the words involuntary servitude or
slavery be used, if they both signify the same idea. We have
always been taught to use the most simple, and words of the
most general meaning in expressing our ideas; we have never
thought the words of any act should be made to pander to
the affectation of any class of people; always admiring the
simple unassuming ideas of the fathers of government. We
shall hereafter consider this proposition in connection with the
others as a whole. Our second proposition is in these words:
The act or acts of the territorial legislature, establishing,
protecting, or prohibiting slavery in any territory, shall not be
repealed or amended within four years after the enactment of
the same, unless said territory shall be admitted into the Union
as a State prior thereto.
By this it is provided that in respect to the people themselves
of the territory, after the question has been once legislated upon
by them, it shall again slumber for the space of four years,
unless the territory applies for and is admitted into the Union
as a State within that time. It cannot be here said that this
can be violated on the ground that what one legislature can do
another succeeding one may do. What the first legislature does
is in accordance with the fundamental law, the source from
26 
which their power springs; nor is it to such a great extent contrary to our principle of the capability of mankind for self-government. It is only for four years that the people will labor
under this disability.  No one will forget the wailings that came
up from Kansas on account of the efforts,. of politicians on the
two sides of this question, aided by persons high in authority;
and the continued legislation kept up by them for the purpose
of getting the supremacy of power in that territory.  To prevent this is the intention of this provision. If it accomplishes it,
the people will not view it as an infringement of their rights.
"Liberty, unless properly guarded, is no liberty at all."
There need be no fear, that because the territorial acts cannot
be repealed or amended within this period, that the people will
suffer on account of a bad act. This is the surest means of having their will clearly expressed. If it could be at any time
amended, it would sometimes be so amended as to work, in
effet, an entire repeal.  Some designing men in the legislature
wolid endeavor, in the first instance, to render the act faulty
fori this especial purpose.   The provision will, on the other
hand, cause the legislature to be careful, so that their act will,
in all respects, give efficiency to the will of the people; an act
which will not afterwards need an application from the hand of
reform, instead of adopting a bill wildly and without mature
consideration.  Again, if by any designs of human ingenuity,
(with all these guards making it utterly an impossibility,) there
be invented a modus operandi by which Congress, or the National Administration can get an influence over the subject, this
period being the term of life of an Administration and of two
Congresses, in which all the machinery of the national governinent will have changed, their influence will in all probability
be removed, again affording (when for the second time the
the question comes up,) the people a chance to clearly express their will.  The greatest benefit to be derived from this
four years period, will be the opportunity (afforded by sufficient
time,) to judge of the adaptability of the soil and climate to the
use of any particular labor, free or slave. If their former decision needs no revision, the question will remain with that, decision; they are not bound at the end of that period to again revise.
It will moreover strenghen our one year period of the first proposition, proving beneficial in deterring such emigrants to the territory, who go there merely for the purpose of establishing any
particular theory. Men will not undergo the trials of emigration
merely for the purpose of one vote, without the possibility of making that vote successful by force, if directly defeated in the first
instance, and especially will this be the case when they know
that this vote may be changed in this short period.   Nor is this.
a trespass upon the doctrine of State sovereignty, should thee "':
27 
28
territory during this period apply for admission. The right is
here expressly reserved to again open the question, an(d alter
their former decision if necessary, which would be a mere matter of form. This case will rarely happen, yet it may possibly, 
for instance, at the time the United States acquired New Mexico,
she might have had a population large enough to entitle hei to(
admission. Our next proposition is, to wit:
That any territory, having the requisite population, and a
Republican form of government, shall be admitted into the fJnioll
as one of the original States, either with or without t clause ():
clauses in its Constitution, establishing or protecting slavery.
This is but carrying out the principles laid down in our ftirst
proposition.  To insert the first without this would be but shleeir
nonsense, leaving the question nearly as unsettled as it now is.
This is the filcrum upon which the whole power of Congress
would turn. It would be a mockery and insult to the doctrine
of the capability of mankind for self-government to grant them
this Iprivilege in the first instance, and at the same time viirtuallv inform them   that  it  must  be used  in confoirmnitv
to the will of Congress, which would be the effect were tl-his I)r(position not inserted.  It will be here asked, why was not the
power to prohibit also included?  We answer, that it is included, the primary status of all territory is f'ee(.  If the terri.tory seeks admission without a clause in its Constitution, establ)lishing or protecting slavery, which is herein provided for, it
is of course prohibited.  It is true that the standing objection
which is now, will then be urged, viz:  That slavery is not co()rsistent with a republican form of' government besides this  )toposition which would make it consistent.  The facts of thle case
are against the holders of the idea. Since the adoption oft' the
Constitution, there has been admitted into the Union nine slave
States making in all a very strong precedent. The provisionls
now to be complied with in regard to the admission of news
States are; that "'no new States be formed within the jurisdiction
of another State, and that 1)o new State be formed by the division of two or more States or parts of States, without thle cornsent of the legislature of the States, as well as of Congress.
1st clause, sec. 3rd, art. 1st, again, "Each State shl-all have at
least one representative," by virtue of which no territory is
admitted until it has the requisite population to entitle it t(o a
representative in Congress.
"To every State in the Union is guaranteed a republican for m
of,governmnent, " clause 4th, sec. 4th, art. 4th.   In accordance
with which the form of government for a territory must be riepublican before admission; these are the only objections that can
possibly be made against the admission of a new State, )eyond
these we make no new conditions in this respect, we "neither add 
to nor take from," the Constitution simply declaring what the
practice now is. Conceding for thie sake of the argument that the
above position is true and what do we find? Congress at its last
session by the adoption of the 13th article of the amendments,
declared that that body had no power over the subject of slavery
in the States, thus iil the most solemn form recognizing the consistency of slavery with republican institutions.   Our next proposition is, to wit:
That slavery shall not be abolished in the District of Columbia without the consent of the legislatures of the States of Maryland and Virginia, nor in the forts, dock yards, arsenals, magazines &c., without the consent of the legislature of the State in
which the same shall be.
In accordance with clause 17th, sec. 8, art. 1st of the Constitution, the District )of Columbia was ceded by the States of Maryland and Virginia, to the United States, the part of this latter
State being afterwards ceded back, which it is again proposed to
assume and will velry likely be done. Over this District Congress
was, as we have seen granted for certain purposes, exclusive jurisdiction, what these certain purposes, excluded in thisjurisdiction, were, we are informed by the Federalist, page 234, which we
hope will not be trespassing too much to again quote, "the extent
of this federal District is sufficiently circumscribed to satisfy
every jea,lousy of an opposite nature and asit is to be appropriated
to this use with the consent of the State ceding it.  As the State
will no doubt provide in the compact for the rights and consent o/
the citizens inhabiting it; as the inhabitants will find sufficient
inducements of interest to become willing parties to the cession;
as they will have had their voice in the election of the governmrent whichl is to exercise authority over them; as a municip(-l
legislature for local purposes, derived from their suraiages, will of
course be allowed them; as the authority of the legislature of the
State and of the inhabitants of the ceded part of it to concur in the
cession will be derivedfr-om the whole people of the States, in their
adoption of the Constitution, every imaginable objection seems to
be obviated."
"The necessity of like authority over forts, magazines, &c.,
established by the general government, is not less evident."  In
connection with this passage we desire to call the careftil attention of those who clamor so loudly for the abolition of slavery in the District of Columbia.  We do not know that it is actuallythe case (not having just at hand the means of ascertaining)
that the States of Maryland and Virginia provided, in the compact
ceding the District to the government, for the rights and coinsentof
the citizens inhabiting it; but as the Federalist here says, they no
doubt would, we think, before taking any action in the premises,
it would be well for the powers that be to investigate the matter.
29 
30
Before applying the remedy "the old law the mischief and the
relief" afforded by the new act should be considered. The Federalist, and in fact all authors on the subject inform us, that the
exclusive legislation here intended to be granted to Congress was
only for the purpose of self protection, "for protection in the exercise of their duty, says the Federalist" and not at all for the purpose of local legislation, for this and other local purposes a "muni-,
cipal legislature derived, fiom their own suffrages willof course be
allowed them." Whether or not the abolition of slavery in the
District would be any more protection to the seat of government
we could not, until an actual trial had been made, be able to say.
It seems more reasonable to suppose that slaves would be less able
to harm the seat of goverment and those who resort there than
free negroes. We have at least found that during the existence of
the government the Capitol has'"suffered violence," and the storm
of this violence has proceeded more from politicians and demagoues than it has from its contact with slavery; this is p)robably
accounted for by  the promises of freedom  made by Congressmen, but beyond this compact expected, to be made by the
government with Maryland anid Virginia respecting the rights
of these people, it was also expected that the consent of the
people of Maryland and Virginia as an entirety would be obtained. Never would the people of these States have consented
to the establishment of a seat of government that would despoil
them of their rights and be in their hearts centre a place of refuge
for runaway negroes, and even had they so consented the authors
of the government would have been loathe to have accepted of it
for the purpose of mak.ing of it a loafing place for these mniserable creatures.  There are already too many loafers of another
class there.  The making of this compact and the obtaining of
the consent of the people of Maryland and Virginia is what
we now intend by this proposition.
Again the status of the District was at its cession slavery, when
the Congress of the United States accepted of it they knew that
such was the status, they also knew that the consent of Maryland and Virginia, would never be obtained unless the original
status remained. The government accepting of it under these circumstances thereby made an implied agreement with the said
States that the status should so remain, to abolish it without the
consent of these States would breaking (if not an actual or written
agreement) at least an implied agreement and the violation of the
faith of the United States towards Maryland and Virginia, and
will be done, if at all, merely because the government has the
physical and not the constitutional power so to do.  Again, in
abolishing slavery in the District, it is proposed to remunerate
the owner of slaves from the coffers of the government; the resources of the government are principally derived from the labors 
31
of the industrious mechanics of the land, the negro as a free class
has contributed comparatively nothing to the solid support of the
nation. The means to accomplish this object (abolition) must be
derived solely from the means of the first class.  We  will very
much doubt the American spirit if they will permit themselves
to be made the tool to break the chains of slavery. An honest
white man will not allow himself to be made subservient to the
uses and benefits of a class of people who are not able to make a
profitable use of themselves. This is not the purpose for which
they are now offeriug themselves up as a sacriffce for their country, nor is it for this object they now see their wives and children
go without the necessaries of life. This is rather more than he
would suffer, from the sweat of his brow he expects himself and
family to reap the benefit.  If the government has any thing to
spare, I recommend that taxes both direct and indirect be decreased or the army and navy be rendered more efficient, besidesthe
amount it would directly cost to abolish slavery; the bolder
States can clearly show its millions already spent in maintaining
public institutions for their benefit, and the government  can
estimate its millions indirectly spent on Congressmen, and the
Af'iican squadron for this self same subject. In a finanicial point
of view the sooneri we get rid of this negro question the better
off we shall be.  In respect to the political interests of the people
the benefit will be incalculable. What we have said in respect to
the District it applies with equal force to the forts, arsenals,
magazines, &c. Until this compact is adopted, which is the most
that would have been desired by the authors of the Constitution,
even supposing them in favor of gradual emancipation, every
imaginable objection will not be obviated as is supposed by the
Federalist.
Our next proposition is, to wit:
That the four preceding articles, together with clause third,
section second, article fourth and article thirteenth oftthe amendments to the Constitution, shall not be repealed.
The objection here will be that this will not be binding, and
is therefore useless: "Acts of Parliment derogatory from the
power of subsequent Parliament bind not, because the legistature
being in truth the sovereign power is always of absolute authority; it acknowledges no superior upon earth which the prior legislature must have been, if its ordinances could bind a subsequent
legislature." (Blackstone, 1st bk. page 63.)
In theory this is no doubt the general rule as also laid down
by authors of this country, in practice it is quite different.  Of
the many instances we could cite of this difference, we prefer
only to take that of the fifth article of the Constitution, which
provides that "no amendment which may be made prior to the
year one thousand eight hundred and eight, shall have any 
effect whatever over the 1st and 4th clauses of the 9th
section of the 1st article." In practice this was sacredly observed,
we find the Constitution amended within two years after its
adoption, but nothing said on this subject, in fact the opinions
and  wisdom of these men, have ever been so much respected,
that upon only one subject, (the manner of electing President
and Vice President,) have their ideas been modified or corrected.
Everyr succeeding generation has found them  equally as well
adapted to their wants, as did the former generation. If we are
now able to adopt any policy in this respect, that will be as equal
to' the exigencies of the times as theirs has proved( itself to be,
our posterity, knowing our intentions, and disregarding those
of politicians would rather than have this pandoras' box again
opened, probably respect and observe them. The articles we
desire to have sealed up, are the fugitive slave clause, defining the power that each State has over the institution in its
own limits.  The amendment adopted by the last Congress, defining  the  power  Congress  has over the institution in the
States; and the four preceeding articles (should we be so
fortunate as to see them adopted,) defining the power Congress
has over the institution in all other places; all of which being
included, effectually abolishes the whole question from the halls
of Congress.  Some of our Generals will then, at the risk of a
court martial, be saved the trouble of issuing proclamations on
the subject. What the principal has no power over, the agent
can have none.   It has been the theory  of  all political
parties, that slavery would be governed by the laws of climate,
&c. That it would be established where it was profitable, and
prohibited where it was unprofitable.  The adoption of these
propositions will insure the execution of this rule to the fullest
extent. It is only where the people of the territory have absolute control over the matter that this rule will be executed;
they, of all others are, and can be, the only judges of the application of the rule. The division of the territories upon any
given line, besides the intrinsic difficulty of locating the line,
would sometimes probably force slavery upon a soil where the
majority of the people would consider it unprofitable, or it might
prohibit the institution where a majority of the people would
consider it profitable, thereby sacrificing the rights of the majority to the minority. Don't get excited! South of that
line slavery would be established for ever, North of it, it would
be established or prohibited as the people choose. If I here say
the South does not want to extend the institution, I should probably be not believed, but I nevertheless do say so, and cite as
an instance New Mexico, but if I should say, the South is indifferent to her rights'I should be a liar, and the truth not in me,"
when you tell them they shall not do a thing, then they will do
32 
33
so on the school boy principle, merely for the purpose of seeing
for what purpose the prohibition was put on. Besides the antirepublican form of government, which a settlement on this basis
would throw over the territories, this itself bringing on the contentions and disputes, and only postpoling for the time being
this issue (this question was raised at the mentioning of the
project) the most serious evil of all would be that in such a settlement, the government by directly legislating it in a territory
would make this a national institution, which, would do much
more harm in proportion, than  the settlement of the question
on this basis would ultimately do good. Our Constitution except
in this (and the defect here, we hold is only in the execution and
not in the provisions itself, it being only necessary to carry it
out perfectly in spirit,) and in one other respect, is the most
perfect form of government ever given to man for their political
guidance.  The Supreme Court has decided the Missouri Compromise unconstitutional-the incorporation into that instruincIti of any similiar propositions, would necessarily therefore
repeal some of its present provisions.  In all of the States, the
willful defacing or removing of ancient land marks is an offence
agailnst the right of property, so the willful and unnecessary defacing and removing of the land marks of the Constitution should
be, by their decendants, considered an offence against the memory of its authors.  "Prudence, indeed, will dictate that governments long since established shall not be changed for light
and transient causes"-Declaration of Indeoendence.  An innovation every few years will gradually change the form of government, especially should the change be from republican
to anti-republican, as it has been proposed in this case. It
was the intention of the fathers of the government, that our
fbrm of government and our Constitution should be perpetual.
The Articles of Confederation, are styled the Articles of Confederation and perpetual Union. The resolution of Congress, calling
the convention, was, in its own language, "for the sole and express purposeof revising the Articles of Confederation;" such revision to be "adequate to the exigencies of government and thepreservation of the IJUnion." Alteration of title does not effect the intention. The announcement of the Monroe doctrine, in respect to
foreign nations, has ever been looked upon as the master piece of
statesmanship of the nineteenth century. The application of that
doctrine, in respect to our States, has long been contended for
and finally succeeded; the extension of the same doctrine should
not now be denied the territories.  How frequently we hear the
exclamation "mind your own business!"  G. F. Train in his
London speech says, that "the United States knew of a man who
made a very comfortable living by minding his own business."
This will not apply in its full extent until these, or propositions
5 
34
similiar in effect, be adopted.  It seems to me that the abolitionist per se does not really desire the accomplishment of that object. Sensible men, to accomplish their ends, use the surest
means for that purpose:  If these men have not yet discovered
that their intermeddling policy has fastened more tightly the
chains of slavery, and made slave codes, more rigorous, I
hope the Lord will soon remove "the scales from their eyes."
This is the only sure remedy for the gradual emancipation of
slaves. If the government should adopt an emancipation act,
not only will those who are now slaves be kept enslaved, but,
also, by State legislation, every free negro now in the slave
States will have to choose for themselves masters or leave the
State, unless the government emancipate them by force of arms.
If, therefore, the free States do not desire a large free negro
population, the benefits accruing from which they can learn from
Maryland, with her 90,000 free negroes, let them and the government mind its own affairs and leave slavery alone. "Governme:its are instituted among men, deriving their just powers
from the consent of the governed.  -Dec. of Independence.  If
this truth be self evident, this is the mode in which the question will, at all events, be settled in practice. Illinois although
a part of the North Western territory, from which slavery was
to be forever excluded, established at one time slavery, which,
finding unprofitable, afterwards abolished.   New  Mexico is
another instance.
The Federalist, (page 169) concerning the Articles of Confederation, thus speaks:  "Owing its ratification to the law of a
State, it has been contended that the same authority might repeal
a law by which it was ratified. However gross a heresy it may
be to maintain, that a party to a compact has a right to revoke
that compact, the doctrine itself has had respectable advocates."
"The possibility of a question of this nature, proves the necessity
of laying the foundations of our government deeper than in the
mere sanction of delegated authority. The foundation of American
Empire ought to rest on the solid basis of the consent of the people.
The streams of national power ought to flow immediately from that
pure, original fountain of all legitimate authority."   (Here is
found authority for the reserved right of breaking up the gov ernment, whenever it may suit the convenience of a class; declar ing the ratifying and not the making power has the right of
repeal. The heresy, from its grossness, may now have become
respectable in like manner; as it is said, that "treason, from
the  magnitude of its  proportions,  sometimes,  becomes  re spectable.")
Why  the  necessity  then of the adoption of  any  partic ular provisions, if the will of the people will at all events
be supreme? Where was the necessity of the adoption of the 
Constitution? That this genius of the people might be expressed in general rules, which could not be mistaken, and in which
their rights would be secured to them; besides this, there is in
this case a necessity of putting an end to this abominable subject, for the purpose of hereinafter securing the peace of the
parties concerned, and in order "that the weightier matters of
the law," should have, at the hands of their servants, the
consideration that is due the interests of a free white people.
Men, whose constituents object to carrying on the war for the
purpose of letting slavery "alone," should long ago have objected to paying their servants, for talking on nothing else but the
subject.  It won't do to "strain at a gnat and swallow a camel."
We are told, that we cannot now have a settlement of the
matter, because of the secession of some of the States, that
would be affected by it.  Truly, "false doctrines have crept in
upon us unawares," now, "the people are made for Kings, not
Kings for the people." George Washington taught the people
to believe they could amend their Constitution at any time, we
are now told that the convenience of politicians must be first
consulted. If it be correet that the powers of the government
are only general and such as concern it as a nation, and that it
was expected that a compact would be made concerning the
rights and consent of the people of the District of Columbia, bet;ween Maryland and Virginia, and the United States, it is yet due,
and we ask it in the name and behalf of the people of Maryland if
it shall suit the condition of other States, we are happy to have
them benefited with us, if it should in a measure bring peace and
settle what has alone -been a bone of contention" among us, our
joy would be full. In this matter of slavery, we ask nothing of the North, saying to them "hold not back," and to the
South "give not up," but whatever is done, let it.be done by the
force of the ballot box; if we are out-voted we shall cheerfully
submit. A compromise at the expense of the doctrine of the
capability of man for self government is to be despised by all its
votaries, if at its first serious trial it shall be found wanting.
Then truly it has not come up to the "measure of the statute"
of the authors. We ask no compromise, we want none, let the
government, in this respect, "be sure it is right and go ahead,"
"leaving the consequences to God and the country." But if,
on the other hand, the government tramples upon the rights
of some of the people, they must remember that secession
for cause is revolution, which is the inherent right of every people. If, again, it should be found that the adoption of these or
similiar propositions would "strengthen the week hands and
confirm the feeble knees," of the truly loyal men of the South, at
the same time doing them nothing more than justice. It seems
to me, that the government, in its present course, not guaran.teeing the rights of these people, is spending much of its money
35 
36
"for that which is not the bread" of loyalty. Let us now "come to
the conclusion of the whole matter." We found that the intention
of the authors of the  Constitution, in respect Io the power of
Congress over the subject of slavery, was what is called the "no
power," or in other words, that this power remains yet with the
people, having never surrendered it; that they have the right
to control the matter as they see fit.  The intention of these
propositions (which we offer as the embodiment of the intention
of the former) is that the right of controling this matter is not
only guaranteed to the people interested in the "locus in quo,"
but to the bona #de residents.  "Things equal to the same thing
are equal to each other."
Would these propositions be acceptable to the people, if not
acceptable it would be folly to recommend or speak of their
adoption.  No one who has read our remarks thus far could fail
to have seen that we have been advocating the principles of non intervention as expounded in the theory of the late Stephen A.
Douglas. Since 1848, the Democratic party have elected with
large majorities two administrations on these principles, in
opposition to intervention or congressional power over the subject.
The defeat of the party in the last campaign was owing solely
to the division of the party on this very subject. Part of the
party "having left their first love,"'"going out after strange
gods."  The sectional animosities of the people were aroused by
politicians and demagogues, (we do not apply this term to all
who talk politics, only to those who are all times willing not only
to sell their own  but every body elses (if possible) political
birth right, that is principles, for a mess of political pottage.
One sure indication of their acceptability was the majorities that
these principles received in different sections of the country, if
together with those who voted directly for them be added the
number of votes who were not directly interested upon the subject,
the numbers would be largely in the majority   We do not cite
this fact to show that is the doctrine of any particular party, but
simply to show its acceptability; all we want to know of any particular tenet is that it is designed for the general welfare of the
people and will answer that end. On the statute books of Georgia, Florida and other States, may be found resolutions expressing their willingness and satisfaction to abide by these principles, that in the opinion of their legislature it was "a just and correct interpretation of the Constitution;" that "the adoption of
any other policy would be an act of usurpation of power on the
part of Congress." Of these particular provisions we can only
give as evidence the opinion of some public meni. On the 12th
of Jan., one year ago, we sent a copy of the 1st and 4th propositions to the Honll. S. A. Douglas and the Hon. John S. Millson, of Va., of the House; the second a few days after, and the
other two after the adjournment of Congress. Judge Douglas 
37
wrote, on the 21st of Jan., "that there is hope of adjustment
and the prospect has never been better." Mr. Millson on same
date writes, "that he never had so confident expectation as I have
at this time of such a-termination of our controversy as would
be satisfactory to me." About the same time the Richmond
Whig contained letters from a number of public men, in
which is this sentence, "that there is a fine prospect of a settlement of the pending difficulty."  The Washington correspondent of the Baltimore Sun, under date of Jan., 30th, writes:
"A good impression among the friends of the adjustment of national difficulties has been made, by the new propositions of Mr.
Douglas, which is to provide, by an amendment to the Constitution, that there shall be no legislation by Congress on the subject
of slavery.  This will strike at the root of some of the difculties.
Slavery cannot be abolished in this District or in the dock yards,
&c., or prohibited in the territories. If this provision be made in
the Constitution, it is said, that a portion of the republicans will
assent to that plan of accommodation," but after canvassing, this
portion wasfound notto be largeenough to adopt them, whether or
not the addition of the other two would now alter their opinions we
know not; the N. Y. Herald and others contained similar notices.
The Hon. John J. Crittenden, in reply tq a copy sent him, wrote
July 1st, that "they are certainly very good and very suitable
to the purposes I (John J. Crittenden) had in view at the last session of Congress."  What his purposes were, he does not say,
yet I think, firom his past life, it could be clearly inferred that
the purposes of that venerable statesmlan were not in any way
hostile to the true interests of the country.  Hon. S. S. Cox, of
Ohio, wrote, July 31st, "any propositions looking to absolute
non intervention by Congress with Slavery and sending it to the people, whether in one stage or another of their territorial population, would be, of course acceptable to such men as myself,"
besides which, we have that of the other public men high in station: Why has the slavery question not been settled? Through
it Congressmen have been made out of forty-fifth rate politicians.   Men,  "whose perverted ambition had led them  to
hope to aggrandise themselves" more "by the confusions of their
country" than profit from its peace, harmony and prosperity? It
is the influence of such men that counteracts the influence of the
truly wise and patriotic.
Having undertaken to advocate the doctrine of the capability
of mankind for self government, were we to here conclude without speaking of the present manner of electing the President and
Vice President of the United States, our duty would not at all
be complete. The conclusion we have come to, after some little
consideration, is that all modes for this purpose will have to
meet with one of two obstacles, either the election must frequently go the House, or the people will as often have to hold two 
38
elections for these officers.   The proposition we design advocating has chosen the last as being the least of the two evils, and
is strictly in compliance with our doctrine.  It is the same as
was reported to the Senate (by the com. of nine) and the House
at the session of 1825-26, which is to wit:
"That here after the President and Vice President of the United States shall be choosen by the people of their respective States
in the manner following: Each State shall be divided by the
legislature thereof, into districts equal in number to the whole
number of senators and representatives to which such State may
be entitled in the Congress of the United States, the said districts
to be composed of contiguous territory, and to contain as nearly
as may be an equal number of persons, entitled to be represented
under the Constitution, and to be laid off for the first time immediately after the ratification of this amendment; and afterwards, at the session of the legislature next ensuing, the appointment of representatives by the Congress of the United
States. That on the first Thursday in the month of August in
the year one thousand eight hundred and sixty four, and on the
same days in every fourth year thereafter, the citizens of each
State who possess the qualifications requisite for the electors of
the most numerous branch of the State legislature, shall meet
within their respective districts, and vote for a President and
Vice President of the United States, one of whom at least shall
not be an inhabitant of the same State with himself: And the
person receiving the greatest number of votes for President, and
the one receiving the greatest number of votes for Vice President
in each district, shall be holden to have received one vote, which
fact shall be immediately certified to the Governor of the State, to
each of the Senators in Congress from such State, and to the
President of the Senate.  The right of affixing the places in the
districts at which the elections shall be held, the manner of holding the same and of canvassing the votes, and certifying the
returns, is reserved exclusively to the legislatures of the States.
The Congress of the United States shall be in session on the second Monday of October in the year one thousand eight hundred
and sixty four and on the same day in every fourth year thereafter, and the President of the Senate, in presence of the Senate
and House of Representatives, shall open all certificates and the
votes shall then be counted. The person having the greatest
number of votes for President shall be President, if such number
be equal to a majority of the whole number of votes given, but
if no person have such majority, then a second election shall be
held on the first Thursday in the month of December then next
ensuing, between the persons having the two highest numbers;
for the office of President, which second election shall be conducted, the result certified and the votes counted as in the first,
and the person having the greatest number of votes for Presi 
dent shall be the President. But if two or more persons shall
have received the greatest and equal number of votes at the second election, the House of Representatives shall chose one of
them for President, as is now prescribed by the Constitution.
The person hving the greatest nu-mber of votes for Vice President at the first election shaii be the Vice President if such
number be equal to a majority of the whole number of votes given,
and if no person have suchc majority, then a second election shall
take place on the same day that the second election is held for
President, and the person having the highest number of votes
for Vice President shall be Vice President. But if two or more
persons shall have received the greatest number of votes in the
second election then the Senate shall chose one of them for Vice
President as is now provided in the Constitution. But when a
second election shall be necessary for Vice President, and not
necessary in the case of President, then the Senate shall choose a
Vice President from the persons having the two highest numbers
in the first election. as is now prescribed in the Constitution.
The intention of this provision we give in the words of the
Chairman (Mr. Benton) of the corn:
"The prominent features of this plan of election are —-]. The
abolition of electors and the direct vote of the people; 2. A second election between the two highest in each list when no one has
a majority. 3. Uniformity in the mode of election."
The advantages of this plan would be to get rid of all the ma chinery by which the selection of these two first magistrates is
now taken out of the hands of the people, and usurped by self
constituted, illegal and irresponsible bodies, and place it in the
only safe, proper, and  disinterested hands-those of the people
themselves.  If adopted, there would be no pretext for caucuses
or conventions, and no resort to the House of Representatives~
where the largest State is balanced bv the smallest. If any
one received a majority of the whole number of districts in the
first election, then the democratic principle-the demos krateo, the
majority to govern is satisfied. If no one receives such majority,
then the first election stands for a popular nomination of the two
highest-a nomination by the people themselves out of which
two, the election is sure to be made on the second trial. But to
provide for a possible contingency, too impropable almost ever
to occur, and to save in that case the trouble of a third popular
election, a resort to the House of Representatives is allowed: It
being nationally unimportant which is elected, where the candi dates were exactly equal in the public estimation. Such was the
plan the committee reported, and it is theperfect plan of a popu lar election, and has the advantage, of being applicable to all elec tions, Federal and State, from the highest to the lowest.  The:
machinery of its operation is easy and simple, and is recommend-'
ed by every consideration of public good which requires the aban
39 
40
donment of a defective system, which has failed-the overthrow
of usurping bodies which have seized upon elections, and the
perservation to the people of the business of selecting, as well as
electing, their own high officers.  The plan  was unanimously
recommended by the whole cornmitte, composed as it was of experienced men taken from every section of the Union." President Jackson in his first and similarly in every succeeding annual
message to Congress,thus recommends: "I consider it one of the
most urgent of my duties to bring to your attention the propriety
of amending that part of our Constitution, which relates to the
election of President and Vice President. Our system of government was by its framers deemed an experiment; and they therefore consistently provided a mode of remedying its defects."
"To the people belongs the right of electing their Chief Magistrate; it was never designed that their choice should, in any
case, be defeated either by the intervention of electoral colleges or
by the agency confided, under contingencies, to the House of Representatives. Experience proves that in proportion as agents to
execute the will of the people are multiplied, there is danger of
their wishes being frustrated. Some may be unfaithful, all are
liable to err, so far, therefore, as the people can with convenience speak, it is safer for them to express their own will."
"In this, as in all other matters of public concern, policy requires that as few impediments as possible should exist to the
free operations of the public will.  Let us then endeavor so to
amened our system, as that the office of Chief Magistrate may not
be conferred upon any citizen, but in pursuance of a fair expressioni of the will of the majority.'
"I would, therefore, recommend such an amendment of the
Constitution as may remove all intermediate agency in the election of President and Vice President. The mode may be so regulated as to preserve to each State its present relative weight in
the election, and a failure in the first attempt may be provided
for by confining the second to a choice between the two highest
candidates." From 1st Benton, page 40, on this subject we quote:
"I have now answered the objections which were brought forward in the year'87. I ask for no judgement upon their validity
at that day, but I affirm them to be without force or reason in
the year 1824.  Time and experience have so decided. Yes, time
and experience, the only infallible tests of good or bad institutions, have now shown that the continuance of the electoral., will
be both useless and dangerous to the liberties of the people, and
that "the only effectual mode of preserving our government from
the corruptions which have undermined the liberty of so many
nations, is to confide the election of our Chief Ofagistrate to those
who are furthest removed from the influence of his patronage."*
That is to say, TO THE WHOLE BODY OF AMERICAN CITIZENS.,,
*Report of a Committee of the House of Representatives on Mr. McDuffie's proposition.