: 3\fc I sm^J J ! /^ iis==; en - 5 0^ = 8 ^^§ 1 = > 1 55 I *1 v ? 1 c 9= ^ i Popular Sovereignty in 1 Territories ; Judge Douglas in s?eply to Judge Black Stephen -\ , Douglas ■ ■*" r * POPULAR SOVEREIGNTY IN THE TERRITORIES. JUDGE DOUGLAS IN REPLY TO JUDGE BLACK, In Harpers' Magazine for September I published an article on the dividing line between federal and local authority in the Territories of the United States. My sole object was to vindicate a principle to which I had been committed for many years — and in connexion with which 1 had recently been assailed with great bitterness and injustice — by a fair and impartial exposition of the subject, without assailing any person or placing any one in :i false position, A few weeks afterwards an anonymous review of mj article made its appearance — first in the Washington "Constitution," and subsequently in pamphlet form- under the following caption: " < >bsei rations on Senator Douglas' views of popular sovereignty, as expressed in Harpers' Magazine for September, 1859." Instead of replying to the well-known propositions which I had so often announced and defended in the Senate and before the country, for the last ten years, and which were embodied and expressed in Harpers? Magazine for September, the reviewer deemed it consistent with fair-dealing' to ignore my real views as expressed in the article to which he professed to reply, and attribute to me opinions which I had never entertained or expressed on any iccasion. When the pamphlet containing this perversion of my opinions was "ust placed in my hands, I at once pointed out some of the most obvious and >alpable of those misrepresentations, and denounced them in emphatic and ndignanl language, in a speech at Wooster, Ohio. Here I was content to let the matter rest, and allow the public to form an mpartial and unbiassed opinion upon the real positions which I had assumed n Harpers' Magazine, without any reply from me to the legal argument vhich the writer of the anonymous pamphlet had made in opposition to my Ueged views upon Apolitical question. Oh the 6tb of this month, however, the same newspaper contained an ppendix to this pamphlet, in reply to so much of my speech at Wooster as- lointed out and denounced the misrepresentations of my views as expressed' a Harper, and announced Judge Black, the Attorney General of the United States, as the author of the pamphlet and appendix. Since the Attorney General of the United States has thus avowed the authorship of these assaults pon me, and flooded the country with them with the view, doubtless,. of • iving all aspirants, expectants, and incumbents of office to understand that e speaks "by authority " of those whose legal adviser he is, and that they re all expected to follow T his example and join in the crusade, I have conclu- ed to reply to so much of his "Observations" as are calculated to obscure ly real position by persistingly attributing to me opinions which I have never x pressed, nor for a moment entertained "fighting the judiciary." For instance, the first act of injustice which I pointed out at Wooster, nd proved to be untrue by undeniable facts, was his representation of ie as "lighting the judiciary;" commanding the democratic party to assault the Supreme Court of the United States;" not treating the court ith'' decent respect;" and much more of the same tenor. All of which as calculated to convey to those who might not happen to know the con- ary, the idea that, " in Harpers' Magazine for September, 1859," I had ssaulted, traduced, and indecently treated the Supreme Court of the United tates on account of their decision in the Dred Scott case! It was shown in my speech at "Woostcr that all these representations were pure inventions; that I had not written nor spoken one word in Harper or elsewhere in dis- paragement of the court or its decisions; that every reference or allusion to the court and its decision was in respectful terms of unqualified approba- tion: that in several places in the Harper article I not only endorsed, but largely quoted from the Dred Scott decision in confirmation of my own views ; that 1 had made more speeches in defence of the court in connexion with the Drefl Scott case than any living man; that in the Illinois canvass last year, when assailed by the combined forces of the black republicans and the federal office holders, under the advice of my present assailants, I defended the court in more than one hundred speeches against their enemies and mine; and, in conclusion, I defied the writer of this pamphlet, and all ethers who arc reckless enough to endorse its statements, to produce one word ever spoken or written by me disre- spectful of the court or in condemnation of its decision ! Well, Judge Black, for himself and as Attorney General for my confederated assail- ants, lias replied to my Wodster speech in his appendix; and what has he said on this point ? What reply has he made to n iy positive denial of the truth of his allegations, and my demand for the production of the proof? DoeB h«' repeat the charge and produce the evidence to sustain its truth; or does he retract the charge and apologize for the injustice he has done me? I had supposed that there was no alternative for a man of honor but to do the one or the other! Judge Black has done neither! Nor is his conduct less exceptionable in respect to Jiis allegation that I advocate the confisca- cation of private property by the territorial legislature, or that T have alter- nately affirmed and denied that the Territories are sovereign political com- munities or States, or that the Jeffersonian plan of government for the Territories, which I alleged to have been adopted, was in fact " rejected by Congress," or that I was attempting to establish a new school of politics by forcing new articles into the creed, and new tests of democratic faith, in violation of the Cincinnati platform. It is to be regretted that all political discussions cannot be conducted upon those elevated principles of fairness and honor which require every gentleman to state his antagonist's position fairly and truly, and correct any mistake he may have committed inadvertently the moment it is pointed out to him. That I am or ever have been in favor of the confiscation of private property by the action of a territorial legislature, or by any other power on earth, is simply untrue and absurd. Nor is there any foundation or excuse tor the allegation that I have ever assigned as a reason for such confiscation that the Territories were sovereign political communities. THE TERRITORIES, WITHOUT BEING SOVEREIGN COMMUNITIES, HAVE CERTAIN ATTRIBUTES OF SOVEREIGNTY. I have never said or thought that our Territories were sovereign political communities, or even limited sovereignties like the States of the Union. Sovereign States have the right to make their own constitutions and establish their own governments, and alter and change the same at pleasure. I have never claimed these powers for the Territories, nor have I ever failed to resist such claim when set up by others, as was done by the friends of a State organization in New Mexico and Utah some years ago, and more recently by the supporters of the Topeka and Lecompton movements in Kan- sas, where they attempted to subvert the authority of the territorial gov- ernments established by Congress, without the consent of Congress. While, therefore, I have always denied that the Territories were independ- ent sovereign communities, it is true, however, that during the last ten years 1 have often said, and now repeat my firm conviction, that the people of Tt^Zic 3 tdbe Territories alpe *-ii' itl«*wer. without inquiry into its origin or source* But the instant that the British government attempted, both as a matter of right and in fact, to deprive them ol' the "free and exclusive power of legislation in their several provincial legislatures hi all cases of taxation and internal polity," a serious and anxious inquiry was instituted into the origin and source of all legiti- mate political power. The result of the investigation was the disclosure of a fundamental and irreconcilable difference of opinion between the colonies and tin 1 British government in respect to the origin and source of all rightful political authority, which laid the foundation of our American Theory of government in antagonism to the European Theory. The colo- nies contended, on the one hand, that the power of self-government was inherent in the people of the several colonies, and could be exercised only by their authority and consent; while the British ministry insisted that the Kin-- of England and his government were the fountain and smircc of all political power and rightful authority in the colonies, which cottld l>e delegated to the people or withheld from them at the pleasure of the sovereign. Here we find the first practical assertion on this continent of the American theory that the power of self-government is inherent in and emanates from the people in each State, Territory, or colony, in opposition to the European theory that the King or Monarch is the fountain of justice and the Bource of all legitimate power. It is to be hoped that the Attorney General will be able to comprehend the distinction between these two antagonistic theories, since our entire republican system rests upon it, and the conduct of our revolutionary fathers can be vindicated and justified only by assuming that the European theory is wrong and the American theory right. So long, I repeat, as the British government did not, in fact, deprive the colonies of the power vi' self-government in respect to their internal affairs, differences of opinion could be tolerated upon the theoretical question in regard to the source of the power; for the colonies w T ere at liberty to claim, as they did claim, that they exercised it of their own inherent right, in conformity with the royal charters, which only prescribed the form of government under which they were to exercise exclusive legislation in all cases affecting their internal polity. While, on the other hand, the British government could contend, as they did contend, that the colonies possessed the power, not in their own right, but as a favor graciously bestowed by the crown. Practically it made no difference, therefore, to the colonies whether the power was inherent or (h-lrcjoted — whether they possessed it in their own right, or as a gracious boon from the crown, so long as they were not disturbed in its exclusive possession and unrestricted enjoyment. So it is with the people of the „ Territories. It makes no practical difference with them whether the power of self-government, subject only to the Constitution, is inherent in them- selves, and recognized by Congress in the organic act; or whether Congress y possesses sovereign power over the Territories for their government, and has delegated it to them. Whichever be the source of the power, the result is the same so long as their right of local self-government is not invaded. ALT. LEGISLATIVE POWERS APPERTAIN TO SOVEREIGNTY. By the terms of the Kansas-Nebraska act, and, indeed, of all the territorial governments now in existence, "the legislative power of the Territory ex- tends to all rightful subjects of legislation consistent with the Constitution of the Quitted States" and the provisions of the organic acts. In the face of this general grant or recognition of " legislative power" ..ver "all rightful subjects of legislation,* the Attorney General tells us that the Territories " have no attribute of sovereignty about them." What does he mean by attribute of sovereignty? " All legislative powers appertain to sovereignty," says Chief Justice Marshall. Every legislative enactment involves an exercise of sovereign power; and every legislative body possesses all the attributes of sovereignty to the extenl and within the sphere of its Legislative authority. These propositions arc recognized by the elementary writers as axiomatic principles which lay at the foundation of all municipal law, and are affirmed in the decisions of the highest judicial tribunals known to our Constitution. AVhat, then, does the Attorney General mean when he says that the Terri- tories "have no attribute of sovereignty about tnem?" Surely he does not wish to be understood as denying that the Kansas-Nebraska act, and the organic act of every other Territory in existence, declares that " the legis- lative power of the Territory shall extend to all rightful subjects of legisla- tion." Does he mean to be understood as asserting that these several acts of Congress are all unconstitutional and void? If not, the Territories certainly have "legislative powers;" and the courts hold that " all legisla- tive powers appertain to sovereignty." SLAVERY INCLUDED IN THE GRANT OF LEGISLATIVE POWER. The fact is undeniable that it was the obvious intention of Congress, as manifested by the terms of these several organic acts, to recognize the right of the territorial legislature to exercise those legislative powers which the courts and jurists say appertain to sovereignty, over all rightful subjects of legislation so far as the Constitution will permit; and that slavery was not excepted, nor intended to be excluded from those "rightful subjects of legislation," for the plain and unerring reason that the fourteenth section of the same act provides that it is " the true intent and meaning of this act / not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States." " Slavery," then, was not intended to be excepted from those " rightful sub- jects of legislation," but was the subject which was especially left to the people of the Territory to decide for themselves. The people of the Territory were not only to "regulate" the institution of slavery to suit themselves, but were to be left " perfectly free to form and regulate their own domestic institutions in their own way." The people were to be left free "to legislate slavery into any Territory," while they rema ined in a territorial condition, - "or to exclude it therefrom," and "to legislate slavery into any State," after their admission into the Union, " or to exclude it therefrom" just as they pleased, xoithout any interference by Congress, and subject to no other limitation or restriction than such as the Constitution of the United States might impose. The right of legislating upon the subject of slavery in the Territories being thus vested exclusively in the legislature thereof, in the same manner, and subject to the same restrictions, as all other municipal regulations^. Congress, out of an abundance of caution, imposed a condition which would have existed even if the organic law had been silent in relation to it, to wit: that the territorial legislature should make no law upon the subject ^ of slavery, or upon any other rightful subject of legislation, which was not consistent irith the Constitution of the United Stales. This is the only limita- tion or restriction imposed upon the power of the territorial legislature upon the subject of slavery; and this limitation would have existed in its full force if the organic act had been silent upon the subject, for the reason that the Constitution 1 icing the paramount law, no local law could be made in conflict with it. Whether any enactment which the territorial legisla- ture may pass, in respect to slavery or any other subject, is or is not con- " sistent with the Constitution," is a, judicial question which the Supreme Court of the United States alone can authoritatively determine. In order to facilitate the decision of all questions arising under the terri- torial 6naciments upon the subject oi' slavery especially, a provision was inserted in the 10th section of the Kansas-Xebiaska bill, that " writs of error and appeals from the final decisions of the said supreme court [of the Territory] shall be allowed, and may be taken to the Supreme Court of the United States," without reference to the usual limitations in respect to the value of the property, "in all cases involving title to slaves," and " upon any writ of habeas corpus involving the question of personal freedom. 17 This peculiar provision was incorporated into that bill for the avowed and only purpose of enabling every person who might feel aggrieved by the terri- torial legislation, or the decisions of the territorial courts in respect to slavery, to take an appeal or prosecute a writ of error directly to the Supreme Court of the United States, and there have the validity of the territorial law, under which the case arose, and the respective rights of the parties affected by it, finally determined. Everyman who voted for the Kansas-Nebraska hill agreed to abide, as we were all previously bound, by the Constitution, to respect and obey all such decisions when made. In this form the Kansas- Nebraska bill became a law. In pursuance of its provisions, the legislature of Kansas Territory have at different times enacted various laws upon the subject of slavery. They have adopted friendly and unfriendly legislation. They have made laws for the protection of slave property and repealed them. They have provided judicial remedies and abolished them. They have afforded ample opportunities to any man who felt aggrieved by their legisla- tion to present his ease to the judicial tribunals, and obtain a decision from tip' Supreme Court of the United States upon the validity of any part or the whole of this legislation upon the subject of slavery in that Territory. No man has seen proper to present his ease to the court. No territorial enact- ment upon this subject has been brought to the notice of the court. No case lias arisen in which the validity of these or any other territorial enact- ments were involved even incidentally. There was no one point or fact in the Dred Scott case upon which the validity of a territorial enactment or the power of a territorial legislature upon the subject of slavery could possibly have arisen. In that case, so far as the Territories were concerned, the only question involved was the constitutionality and validity of an act of Con- gress prohibiting slavery on the public domain where there was no territorial government; and the court in their decision very properly and emphatically repudiated and exploded the doctrine that Congress possesses sovereign power over the subject of slavery in the Territories, as claimed by Mr. Buchanan in his letter to Mr Sanford, and by the republicans in their Philadelphia platform. The Dred Scott case, therefore, leaves the question open ami undecided in respect to the validity and constitutionality of the various legislative enactments in Kansas and New Mexico, and the other Territories upon the subject of slavery. Whenever a case shall arise under those or any other territorial enactments, affecting slave property or personal freedom in the Territories, and the Supreme Court of the United States shall decide the question, I shall feel myself bound, in honor and duty, to respect and obey the decision, and assist in carrying it into effect in good faith. But the Attorney General still persists in his objection that the Territo- ries cannol legislate upon the subject of slavery for the reason that such legislation involves the exercise of sovereign power. The Territory of New Mexico exercised sovereign power last year in passing an efficient code for the protection of slave property. Does the Attorney General still insist that it is unconstitutional? When he shall institute judicial proceedings to tesl thai question, 1 doubt not his friend Mr.. Lincoln will volunteer his si rvices to assist him in the argument, in return for the valuable services rendered him in the Illinois canvass last year which involved this identical issue. Since I have had some experience in defending the right of the Territories to decide the slavery question for themselves, in opposition to the joint efforts of these distinguished opponents of popular sovereignty, I am net sure thai I wodld not volunteer to maintain in argument before the Snpretae Court the constitutionality of the slave code of New Mexico, even against such fearful odds. But lot us see upon what subjects the territorial legislatures are in the constant habit of making laws without objection from the Attorney General or anybody else. I'KOTKCTloX of LIFE, LIBERTY, AND PROPERTY^ The Territories are id the habit of enacting laws for the protection of the life, liberty, and property of the citizen, and, in pursuance of those laws, they are also in the habit of depriving the citizen of life, liberty, and property, whenever the same may become forfeited by crime. The right and propriety of exercising this power by the territorial governments have never been questioned. What higher act of sovereign power can any government on earth perform than to deprive a citizen of life in obedience to a law of its own making? If liberty be deemed more sacred than life, it is only necessary to remark that the Territories do, in like manner, deprive a citizen of liberty by imprisoning him for a term of years or for life, at hard labor or in solitary confinement, in compliance with the territorial law ]/ and judicial sentence. Can anything short of sovereign power lawfully do- ' prive a citizen of his liberty, load his limbs with chains, and compel him to labor upon the public highways or within the prison walls for no other offence than violating a territorial law? The property of the citizen is also seized and sold by order of court, and the proceeds paid into the public treasury as a penalty for violating the laws of the Territory. If it be true that the Territories "have no attribute of sovereignty about them," the peo- ple of the United States have a right to know from their Attorney General why he, as the highest law officer of the government, permits, and does not take the requisite steps to put a stop to the exercise of these sovereign powers of depriving men of life, liberty, and property in Kansas, Nebraska, New Mexico, and the other Territories, under no other authority than the assumed sovereignty of a territorial government? It is no answer to this inquiry to say that the sufferers in all these cases had forfeited their rights by their_ crimes. My point is that it requires sovereign power to determine by law what acts are criminal — what shall be the punishment — the conditions' upon which life may be taken, liberty restrained, and property forfeited. This v/ sovereign power in the Territories is vested exclusively in the territorial legislatures — Congress never having assumed the right to enact a criminal code for any organized Territory of the United States. POWER OF TAXATION FOR TERRITORIAL PURPOSES. The territorial governments are also in the habit of imposing and collect- ing taxes on all private property, real and personal, within their limits, to pay the expenses incident to the administration of justice and to raise revenue for county, town, and city purposes, and to defray such portion of the expenses of the territorial government as are not paid by the United States; and in the event that the owner refuses or fails to pay the assess- ment, the territorial authorities proceed to sell property therefor, and trans- fer the title and possession to the purchaser. The only limitation on the power of the territory in this respect is the proviso in the organic law, that "no tax shall be imposed upon the property of the United States; nor shall the hinds or other property of non-residents be taxed higher than the lands or other property of residents." This exception and qualification in respect to the property of the United States and of non-residents is conclusive evidence that Congress intended to recognize the right of the territorial government to exercise the sovereign power of taxation in all other cases. "Will the Attorney General inform us whether the taxing' power is not an attribute of sovereignty I And whether he intends by construction to nullify so much of the organic acts of the several Territories as recognize their right to ex- ercise the power of raising revenue for territorial purposes. It is impor- tant that the citizens of the United States — non-residents as well as residents of the Territories — should know whether all of their property in the Territories is exempt from taxation or not. In the classical language of the Attorney General, this "legislative robbery," which can alone proceed from sovereign power, should not be permitted to go on,- if it be true that the Territories "have no attribute of sovereignty about them." POWER OF CREATING CORPORATIONS. The territorial legislatures are also in the habit of creating corporations — municipal, public and private — for counties, cities, and towns, railroads and insurance offices, academies, schools, and bridges. Is not the power to create a corporation an "attribute of sovereignty?" Upon this point Chief Justice .Marshall, in delivering the unanimous opinion of the court, once said: "<>n what foundation does this argument rest? On this alone; that the power of creating a corporation is one appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative powers appertain to sovereignty." ONE OF TWO CONCLUSIONS FOLLOWS. Since it can no longer be denied, with any show of reason or authority, that all legislative powers appertain to sovereignty, the Attorney General will be* obliged to take shelter behind one of two positions — ^/ Either that the Territories have no legislative powers, and. consequently, no right to make laws upon any subject whatever; Or, that they have sovereign power over all rightful subjects of legislation consistent with the Constitution of the United States, as defined in the organic acts, without excepting slavery. With all due respect, the first proposition is simply absurd. It contradicts our entire history. It nullifies the most essential provisions of the organic acts of all our Territories. It blots out the legislative department in all our territorial governments. It leaves the people of the Territories without any law, or the power of making any, for the protection of life, liberty, or pro- perty, or of any valuable right or privilege pertaining to either; and drives the country, by the necessity of the case, to accept the Philadelphia repub- lican platform of 1856, "that Congress possesses sovereign power over the Territories of the United States for their government." The Becond proposition, however, is in harmony with the genius of our t'nin'r jiolitical system. It rests upon the fundamental principle of local self- government as laid down by the continental Congress in 1774, and ratified by the people of each of the thirteen colonies in their several provincial legislatures as the basis upon which the revolutionary struggle was con- ducted. It preserves the ideas and principles of the revolution as affirmed in the JefTersonian plan of government for the Territories in 1784, and confirmed by the Constitution of the United States in 1787. It conforms to the letter and spirit of the compromise measures of 1850, and of the Kansas-Nebraska act of 1854, and of all our territorial govern- ments now in existence. ■• It is founded," as Mr. Buchanan said in his letter accepting the presiden- tial nomination, "on principles as ancient as free government itself, and in accordance with them lias simply declared that the people of a Territory, like those of a State, shall deeide for themselves whether slavery shall or shall not exist within their limits." " What a happy conception, then, was it for Congress to apply this simple rule — that the will of the majority shall govern— to the settlement of the question of domestic slavery in the Terri- tories!'' — (Inaugural Address of Presidr,,/ BwJktam.) IS SLAVERY A KEHKKAI. OR LOOM, INSTITUTION ? Since the Attorney Genewil persists m his denial thai the Territories can legislate iur themselves open the subject of shivery, there is no alternative lefttohirn but the assumption thatCongress possesses sovereign power oj that question in the Territories as claimed by the republicans in their Philadelphia platform and by Mr. Buchanan in his letter to Mr. Sanford. Surely the power to legislate upon that and all other rightful subjects oi legislation exists somewhere. Every "right of property, private relation, condition or status, lawfully Existing" in this country, must oi necessity be a rightful subject of legislation by some legislative body. \\ here does this sovereign power of legislation for the Territories reside? It must be in 01 of two places— either in Congress or in the Territories. It can be nowhere else, and must exist somewhere. The Abolitionists insist that Congress possesses sovereign power over the Territories for their government, and, therefore, the North, having the majority, Should prohibit slavery. The Democrats contend that Congress has no rightful authority to legislate upon this or any other subject affecting the internal polity of the people, and that "the legislative power of the Territories extends to all rightful subjects qL, legislation consistent with the Constitution." All powers which are federal in their nature are delegated to Congress. Those which are municipal and domestic in their character are " reserved to the States respectively, or to the people"— "to the States" in respect to all of their inhabitants, and "to j the people " of the Territories prior to their admission as States. To which class of powers does the question of slavery belong ? Is it a federal or_ municipal institution? If federal, it appertains to the federal government. and must be subject to the legislation of Congress. If municipal, it belongs to the several States and Territories, and must be subject to their local legislation. The Constitution of the United States has settled this question. A^slave is defined in that instrument to be " a person held to service or labor in one State, under the laws thereof;" not under the laws of the United States; not " by virtue of the Constitution of the United States;" not by force of any federal authority; but "in one State under the laws thereof." So the fugitive slave law of 1193, which was modified and continued in force by Congress in 1850 as one of the compromise measures of that year, recognizes slavery as existing in the Territories under Ufa laws thereof, as follows : "That when a person held to labor in any of the United States, or in either of the Terri- tories on the north, west, or south of the river Ohio, under the laws thereof, shall escape into any other of said States or Territories," &c. ■ The Supreme Court of the United States have decided that " the state of ., slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws." (16 Peters, 611.) Being "a mere municipal regulation," the right to legislate in regard to it would seem to belong to that legislative body which is authorized to legislate upon all rightful subjects of municipal legislation. Can Congress take cognizance of a "mere municipal regulation" in a Territory, which, in the language of the Supreme Court, "is founded upon and limited to the range of territorial laws?" The Republicans, in their Philadelphia platform, say yes! The Democrats, in their Cincinnati platform, say no ! What says Judge Black? Where, Mr. Attorney (Jeneral, does this sovereign power to legislate upon the "municipal regulation" of slavery reside? Is it in Congress or in the Territories? If in Congress, has it not been debated to the Territory in 1/ the organic act under the general grant of " legislative power " over "all rightful subjects of legislation consistent with the Constitution V If in the 10 Territory, lias it not been recognized by Congress in the same act? Which- ever be the source of the power, the conclusion is irresistible that the Ter- ritories possess the full power, subject, of course, to the Constitution as in all other cases. If. however, slavery exists in the Territories by virtue of the ('.institution of the United States, as is contended, it is the imperative duty of Congress to provide for it adequate protection. I can respect the position o[' those who. so believing-, demand federal legislation for the protection of a constitutional right; but what are we to think of those who, while conceding the right, refuse to comply with a constitutional obligation from motives iA' political expediency f There can be no exception to the rule that a right guaranteed by the Constitution must be protected by law whenever legislation may be essential to its enjoyment. HAVE CITY COBPOBATIONS LARGER POWERS THAN FEDERAL TERRITORIES? No( content witli having stripped the Territories of all power to enact laws for the protection of life, liberty, and property, and for the regula- tion of their internal polity, all of which appertain to sovereignty, the At- torney General dwarfs the territorial governments below the size of ordinary city corporations, lie says: "Indeed, there is, probably, no city in the United States whose powers are not larger than those of a federal Territory." "What are the powers of an ordinary city corporation? To levy taxes for municipal purposes — to provide for the collection of the revenue — to sell private property for the non-payment of taxes — to execute the title, and trans- fer the possession to the purchaser, in case of forced sales — to impose fines and penalties, and inflict punishments for the violation of corporation ordi- nances. These an- some of the powers usually exercised by city corporations. Are not these powers all attributes of sovereignty? Surely he will not deny that they are. since the whole burden of his argument is, that nothing short of sovereign power can deprive a man of his property. How do these sove- ; i powers become vested in the city corporations? Probably his answer would be ihal the several States, within whose jurisdiction these cities are situated, as political sovereignties, have the undoubted right to delegate a portion of their sovereign power to those municipal corporations. The answer is satisfactory thus far; but it must be remembered that some of these cities are situated in the Territories, beyond the jurisdiction of any reign State, and that their municipal governments exist solely by virtue of territorial authority. Where do the city corporations in the Territories get the sovereign power to lay out and open streets through private pro- perty — to condemn the land and divest the owner of his title without his consent and against his protest? Where do they get the power to impose taxes upon the adjoining lands to pay the cost of grading and paving the streets, ami to sell the lands, and transfer the title and possession to the purchaser for the non-payment of taxes? These things are being done con- stantly in Leavenworth, Omaha, Santa Fc, and indeed in all the territorial cities, Where do they get the power? for surely it pertains to sovereignty. From the Territorial governments? We are told that they "have no attributes of sovereignty about them."' It is not satisfactory to tell us that these city rnments have "larger powers than those of the federal Territories," by whose authority they were created and hold their existence, unless we are informed from 'what' source they derive those "larger powers." Does the creature possess larger powers than the creator? Does the stream rise higher than its source? Here, again, the Attorney General is driven into a position where he is pelled to abandon his ground, that tin; Territories " have no attribute of sovereignty about them," and acknowledge that they have legislative powers, at leasl to the extent of creating city corporations, and delegating to them th' n power of taxation for municipal purposes, and divesting 11 the title to private property fur non-paymenl of taxes, cir pronomrathe whole system of territorial legislation unconstitutional and void, and deny their bower to make laws upon any subject whatever, and finally to fall bacfe on the abolition platform, and assert that Congress p sovereign power over th<- Territories for their government in all eases whatsoever. UO THE OmZENS OF TIIK STATES KoRKKIT THEIR IMIKIlENT RI0HT 0] SKI r-. 10 VF.KN MKNT BY KHMOYIV; INTO TIIK TEKIilToRlES 0E THE UNWED Who are the people of the Territories that they "have no attribtrl sovereignty aboisirict of Columbia and such other places as are expressly provided for in the Con- stitution? On the contrary, it expressly recognizes and reserves the right not only "to the States respectively, but to the people." Where, then, is the authority for saving that the people of the several States forfeit and become divested of all their political rights and inherent powers of self- governmenl the moment they cross a State line and enter a Territory of the United States ? It certainly cannot be found in the Constitution: THE JEFFERS0NIAN l'LAN of GOVERNMENT FOR THE TERRITORIES. Despairing, however, of being able to make the Attorney General com- prehend the distinction between independent sovereign States, which have 12 the power to make their own constitutions and establish their own govern- ments, ami dependent colonies or territories, which have the right to govern themselves in respect to their internal polity, in conformity to the organic law by which they were established, I will proceed to notice his contradiction of my positive statement that the Jeffersonian plan of gov- ernment for the Territories was adopted by the Congress of the Confedera- tion on the 23d day of April, 1784. He has truly a summary mode of dis- posing of important historical facts when they stand in the way of his line of argument, which is peculiar to himself. Are the people of the United State's prepared to believe that their learned Attorney General would be so reekless as to deny a well-known historical fact which appears of record, without even referring to the journal for the day on which I had stated the event to have taken place? However this may be, the truth remains as stated in Harper, that the Jell'ersoiiian plan was adopted by Congress on the 33d day of April, 1TS4, the assertion of Judge Black to the contrary not- withstanding. By reference to the fourth volume of the printed journals^of the Congress of the Confederation, on page 378, will be found the following entry: "Congress resumed the consideration of the report of a committee on a plan for a tem- porary government of the Western Territory. " A motion was made by Mr. Gerry, seconded by Mr. Williamson, to amend the report by inserting after the words 'but not of voting,' the following clause : "That measures not inconsistent with the principles of the confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they shall assume a temporary government as aforesaid, may, from time to time, be taken by the United States in Congress assembled." The precise language of this amendment should be carefully noted. It confers, ami at the same time defines and limits, the only power which it was deemed wise and safe at that day to permit Congress to exercise over the Territories or "Xew States'' as they were then called, to wit: 1st, that they should only exercise such powers as were "necessary for the preservation of peace and good order among the settlers;" and 2d, that even those powers should only be exercised by Congress over the settlers " until they shall assume a temporary government as aforesaid." So it appears that from the day that the Territory was organized under a temporary government, with a legislature elected by the resident inhabitants, th<- power of Congress, even "for the preservation of peace and good order among the settlers," ceased; and, the people thereof were left perfectly free t" form and regulate their domestic institutions in their own way, subject only to "the principles of the confederation," which conferred on Congress no power over the domestic concerns and internal polity of the people, neither in the States nor in the Territories. Now lot us Bee whether it be true, as asserted by Judge Black, that this Jeffersonian plan u was rejected by Congress and never afterwards referred to by Mr. Jefferson himself." On the next page, 379, of the same volume of the journal, will be found the following entry: "The amendment of Mr. Gerry being adopted, the report as amended was agreedto 06 follows:" — Here the journal contains the entire Jeffersonian plan, the substance of which was embraced in my article in Harper. On the next page, 380, at the end of the Jeffer- sonian plan, will be found the following entry: — " On the question to agree to the foregoing, the yeas and nays being required by Mr. Beresford: N. Hampshire— Mr. Foster Aye. ) . Connecticut— Mr. Sherman .. Aye. ) . Blanchard.. Aye. j Aye " Wadsworth Aye. J } Massachusetts— Mr. Gerry Aye. | . New York— Mr. De Witt Aye. | A Partridge.. Aye. f y Paine Aye. j Phode Island— Mr. Ellery Aye. } . New Jersey— Mr. Beatty Aye. ) . Howell Aye. j Aye ' Dick Aye. J * ' 13 Pennsylvania— Mr. Mifflin Aye. ) Maryland— Mr. Stone Aye. K Montgomery.. Aye. VAye. Chase Aye. j H :U „1 Aye.) N. Carolina— Mr. Williamson. Aye. I_ A Virginia-Mr. Jefferson Aye. Speight...- Aye. j Mercer Aye. [-Aye. South Carolina— Mr. Head... No. | ^ Monroe Aye.) ' Bedford No. p " So it was resolved in the affirmative." ThiiH it appears by the journal that the Jefferson ian plan of government for the Territories, instead of having been "Tejeeted by Congress,* was actually adopted \>\ the Vote of ten States out of the eleven, and by the voiced! twentv-two members but tti the twenty -lour present: The importance of destroying the authority Of this measure, and of the almost unanimous vote of the States and of the members of Congress by which it was adopted, is apparent when we consider that even the Attorney General of the CJnited States would feel some delicacy in charging Thomas Jeffersou and his illustrious assoeiates with devising a flagrant scheme of "legislative robbery" — a prqjet ''to license a band of marauders to despoil the emigrants crossing their territory" — a measure for "the confiscation of private property" and seizing it "for purposes of lucre or malice!" It will be observed that this error in respect to the rejection of the Jeffersonian plan is not corrected by Judge Black in his appendix. CONFISCATION' OF PRIVATE PROPERTY— POWERS OF A CONSTITUTIONAL CONVENTION IN A TERRITORY. In respect to the painful apprehensions which afflict the Attorney General, that if we concede to the Territories all the rights of self-government in respect to their internal polity, they may confiscate all the private property within their Hunts, and " may order the miners to give up every ounce of gold that has 'oeen dug at Pike's Peak," I have only to say that the Supreme Court of the United States, in the Dred Scott case, have decided that under the Constitution of the United States a man cannot be deprived of life, liberty, or property in a Territory without due process of law; nor can private property be taken for public uses in a Territory without just compensation; and that 1 approve of the decision. In regard to his declaration "that no such power is vested in a territorial legislature, and that those who desire to confiscate private property of any kind must wait until they get a constitutional convention, or the machinery of a State government in their hands," I have to say that I am not aware that the people of a Territory, when assembled by their representatives in a "constitutional convention," without the consent of Congress, for the purpose of subverting the territorial government established by Congress, (as was the case with the Topeka and Lecompton conventions,) has any higher or greater power than wheif assembled in their legislature in pursuance of the constitution and the act of Congress. Judge Black frequently refers to what he calls " a constitutional convention" of a Territory, (which is nothing more nor less than a body of men assembled under the authority of a terri- torial legislature, without the consent of Congress, to form a constitution to take the place of the organic act passed by Congress,) as having full and complete sovereign power over the question of slavery and every other sub- ject pertaining to their internal polity, when he denies the same power to • the people and legislature of the Territory by whose authority alone the convention has any legal existence or power. What authority can any such "constitutional convention" have except that which it derives from the ' legislature which called it into existence, or from the people of the Territory / by whom the delegates were elected? If neither the people nor the territo- Y rial legislature possess any sovereign power, how can they impart sove- reignty to a constitutional convention of their own creation ? Suppose, then, • 14 the people of a Territory shall " wait until they get a constitutional conven- tion or the machinery of a State g-overnment into their hands" without the consent of Congress, as they did at Topeka, and again at Lecornpton, in Kansas, what power will tliey have to " coniiscate private property," or to decide tfle slavery question, or to perform any other act of sovereignty, when we are told that t lie Territories " have no attribute of sovereignty about them ? " I can understand how the territorial legislatures ean exercise legislative power over all rightful subjects of legislation in pursuance of the an of Congress and the Constitution; but I confess my inability to compre- hend how they can eall "a constitutional convention" without the consent o( Congress, and subvert the organic law established by Congress, and exercise all the sovereign powers pertaining to a sovereign State, before the Territories become States, and when " they have no attribute of sovereignty about them! " DOES SLAVERY EXIST IN* THE TERRITORIES BY VIRTUE OF THE CONSTITUTION? Judge Black says that "The Constitution certainly does not establish slavery in the Territories, nor anywhere else." It must be admitted that my article in Harpers' Magazine has had the happy effect of drawing From the Attorney General a declaration as unexpected as it is gratifying i" the great body of the democracy, w T hich, if approved and concurred in by "nineteen-twentieths" of the party, as he asserts, will tend , in a greal measure to restore harmony to its counsels and unity to its action. It is to be presumed that he has not used this language in any equivocal or technical sense, amounting to a mere quibble or play upon words; but that he wishes to be understood as declaring that slavery does not derive its legal existence or validity from the Constitution of the United States, but that the owners of slaves possess the same rights, and no more, under the Constitution, in the several Territories as in each of the States of the Union; and that those rights are not affected by virtue of anything in the Constitution, except the provision for the rendition of fugitive slaves, which is the same in the States and Territories. With this understanding I do not feel disposed to quarrel with Judge Black for his gratuitous assertion that "nobody ever said or thought" that the ('.institution established slavery "in the Territories, nor anywhere else," nor with Mr. Buchanan for his statement in his Lecornpton message to Con- gress that — "It has been solemnly adjudged by the highest judicial tribunal known to our laws that rv exists in Kansas by virtue of the Constitution of the United States. Kansas is, therefore, at this moment as much a slave State as Georgia or South Carolina." I am also willing to accept in the same spirit of harmony the authoritative explanation Which the Attorney General has furnished in his appendix, that the Presideni only meant to say that slavery exists in the Territories by virtue of the Constitution in the same sense that "Christianity," Mormonisni, Mohammedanism, Paganism, or any other religion, exists in the Territories by virtue of the Constitution; and that therefore Kansas is a slave State in the Bame sense that Georgia and South Carolina arc Christian States, or Mormon States', or Mohammedan States, or Pagan States; that "the Consti- tution does not establish Christianity," nor Mormonism, nor Mohammedanism, nor Paganism in the Territories; but that "Christianity," and of course Mor- monism, and Mohammedanism, and Paganism, "exists there by virtue of the Constitution." hecause when a Christian, or Mormon, or Mohammedan, or Pagan "moves into a Territory, he cannot be prevented from taking his religion along with him, nor can he afterwards be legally molested for making its principles the rule of his faith and practice." After this luminous exposition of the distinction between being esta!.>- 15 hshed by and existing by virtue of the Constitution, I shall, of course, have more to say upon the rabjecl exoepi to remark thai it is Beyond hiy Compre- hension. "THE AXIOMATIC PMN'CIPI.K Of P0BL1C LAW.' Having tepttdiated tbe heresy that the Constitution esta tavery in the TcrriTorics or aiiywli'Tc else; am! demonstrated thai fche President did not mean anything when be argued in his special message to Congress thai Kansas was its much a slave State as Georgia or Sputb Carolina by virtue of the Constitution of the United Stales, the A.ttorney General kindly pro- ceeds to expound for my benefit the axiomatic principles of jmblic law as be understands them. lie says: "It is an axiomatic principle of public law that a right of property, a private relation, condition or status, lawfully existing in one State or country, is nol changed by the mere removal of the parties to another country, unless the law of that country be in direct con- fhet with it. For instance: a marriage legally solemnized in France is binding in America: children horn in Germany are legitimate here if they are legitimate there; and a merchant who buys goods in New York according to the laws of that State may .airy them to Illinois 'and held them their under his contract. It is precisely so with the" status of a negro carried from one part of the United States to another; the question of his freedom or servitude depends on the law of the place where he came from, and depends on that alone, if their he no conflicting law at the place to which he goes or is taken." IS IT APPLICABLE TO THE QUESTION' OF SLAVERY ? Reserving, for the present, the question how far this " axiomatic principle" is accurately stated, and what limitations have been adjudged to be ap- plicable to it by the Supreme Court of the United States, 1 will first inquire whether " it is precisely so uith the status of a negro carried from one part of the United States to anolhJer." Instead of interposing- my individual opinion in opposition to that so boldly expressed by the learned Attorney General, I will quote the language of an eminent 'American jurist, whose authority is everywhere acknowledged. Upon this precise point Judge Story, in Ins Conflict of Laws, p. %59, says: " But we know that no such general effect has in practice ever been attributed to the state of slavery. There is a uniformity of opinion among foreign jurists and foreign tribunals in giving no effect to the state of slavery of a party, whatever it may have been in the country of his birth or that in which he had been previously domiciled, unless it is vho recgnized by the laws of the country of his actual domicil, and where he is found, and it is sought to he enforced." Aftet citing various authorities, Judge Story proceeds: "In Scotland the like doctrine.' has been solemnly adjudged. The tribunals of France have adopted the same rule, even in relation to slaves coming froth and belonging to their own colonies. This is also the undisputed law of England." It is unnecessary to burden these pages with the long list of authorities cited by Judge Story to prove his assertion that "there is a uniformity among foreign jurists and foreign tribunals" that the law is precisely the reverse of what '.Judge Black states it to be in respect to slavery. But if lie attempts to escape the force of this uniform current of foreign authorities I will test his respect for the decisions of the Supreme Court of the Tinted States by citing the case of Prigg vs. The Commonwealth of Pennsylvania, (10 Peters, p. Oil,) in which the court says: "By the laws of nations, no nation is bound to recognize the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does, it is a6 a matter of comity, and not a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of territorial laws. ' ' The same doctrine has been held not only by the highest judicial tribunals in most all of the northern States, but by the supreme court of Louisiana, Missis- 16 sippi, Kentucky, Missouri, North Carolina, and, indeed, nearly, if not all of the southern States. But I nm -willing- to rest the whole ease upon the authority of the Supreme Court oi' the United States, and to exhort the Attorney Gene- ral, in his own eassieal language, only substituting his name for mine, to cease •fighting the judiciary " and treat the courts with "decent respect." •• We arc called upon to make a contest, at once unnecessary and hopeless, with the judicial authority of the nation. We object to it. We will not obey .Judge Black when he commands us to assault the Supreme Court of the Tinted States. We believe the court to be right, and Judge Black wrong." If. however, the learned Attorney General shall not be turned from the error of his ways by these words of wisdom from his own pen, I will make another effort to save him, by commending to his especial attention the fol- lowing paragraph from his own pamphlet: "In former times a question of constitutional law once decided by tbe Supreme Court was regarded as fettfed by all, except that little band of ribald infidels who meet periodi- cally at LJoston to blaspheme the religion, and plot rebellion against the laws, of the country !" CAN T1IK LAWS OF ONE COUNTRY OPERATE IN ANOTHER WITHOUT ITS CONSENT? Having shown that Judge Black's "axiomatic principle of public law" in respect to the operation of the laws of one State or country within the juris- diction of another, as defined and expounded by the highest judicial tribunals in this country and Europe, has no application to, and does not include, slavery, hut that, on the contrary, " the state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial /rtu-s;" and, in the language of the Constitution itself, exists "in one State under iiik laws thereof," and not by virtue of the Constitution of the United Stut.s, nor of any federal authority, nor of any foreign law, nor any inter- national law, I will proceed to examine how far Judge Black has accurately Btated the " axiomatic principle of public law," or the law of the comity of nations, by which "a right of property, a private relation, condition, or status, lawfully existing in one State or country, is not changed by the mere removal of the parties to another country, unless the law of that other country be in direct conflict with it." I shall pursue this inquiry out of respect for the great learning displayed by the Attorney General in his philanthropic purpose of enlightening me upon the subject, and not because it has any bearing upon the question at issue, if the decision of the Supreme Court of the United States is to be taken as conclusive evidence, in opposition to the opinion of Judge Black, as to the law of the ease. Of course, I express no opinion of my own, since I make it a rule to acquiesce in the decisions of the courts upon all legal questions. In order to have stated the general principle fairly and accurately, Judge Black should have added that whenever the foreign law, or the law of one State is to he enforced in another, it derives its validity from the consent of the State or country where it is to be enforced, and not from the sovereignty of the State or country from which it came. The brief space allotted to this reply, already too long, will not permit me to <-i 1 <•. much less quote, the long list of authorities, American, English, and Continental, upon this point. It may be safely assumed as an incontrovertible principle, that the laws of one country can have no force in ^ any other country without its consent, expressed or implied, and that such kSCttt will he implied, and the tacit adoption of the foreign laws, by the government of tbe country where they are to be enforced, will be presumed by the courts in all cases where there is no local law to the contrary, and the foreign law does not contravene its own policy. The whole doctrine of the law of comity of nations, as applicable to the question how far the local 17 law of one State of this Union could operate and be enforced beyond the territorial limits of such State, was fully discussed and deliberately deter- mined in the case of the Bank of Augusts vs. Barle, 13 Peters, p. 519, in which Chief Justice Taney, delivering the opinion of the court, said: "It is needless tq enumerate here the instances in which, by the general practice oj civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The law- of contracts made in foreign countries are familiar examples; and the courts of justice have always expounded and executed them according to the laws of the plaee in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended toother nations is no impeachment of sovereignty It if the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations. It is truly said in Story's Conflict of Laws, 37, that 'in the silence of any positive rule , affirming, or denying, or restraining the operation of foreign laws, court* of justice presume \S the tacit adoption (f them by (heir own government, unless they are repugnant to its policy or prejudicial to its interests."' JUDGE BLACK'S DOCTRINE EQUIVALENT TO THE WILM0T PROVISO. This is the law of comity applicable to the several States and Territories of this Union, as expounded and defined by the Supreme Court of the United States. Supposing- it to be applicable to the question of slavery in the Territories, it would authorize the owner of slaves in Virginia to immigrate to Kansas and carry his slaves with him, and to maintain his legal rights there according to the tenor of the laws of Virginia, by the consent of Kansas, expressed or implied; and "in the silence of any positive rule in Kansas, affirming or denying, or restraining the operation of the laws of Virginia, the courts of justice in Kansas will presume the tacit adoption of them by the gox>- eminent of that Territory, unless the laws of Virginia are repugnant to the policy of the Territory or prejudicial to its interests. According to this doc- trine, the Virginia master takes his slaves there subject to the lex loci, and holds them in the Territories "under the laws thereof;" and in the event that the ter- ritorial laws are silent upon the subject of slavery, the courts of justice will presume that the territorial government has consented to the existence of ,, slavery, and has tacitly adopted the Virginia laws in respect to the rights of the master who came with his slaves from that State. But at this very jwint Judge Black erects an insuperable barrier to the rights of the owner of the slaves. He argues that the territorial government has no power to act or legis- late upon the subject of slavery, and consequently is incapable^ of giving its consent to the operation of the Vinginia laws, while the courts of the Territory cannot presume such consent to have been given where it was impossible to give it, nor the Virginia laws to have been tacitly adopted by a government which had no power to adopt them. Therefore, unless the power of the terri- torial legislature to act upon the subject of slavery in the same manner as any other domestic or municipal regulation be conceded, and consequently its right to give or withhold its consent to the operation or tacit adoption of the laws of the slayeholding States be acknowledged, the conclusion is irresistible that Judge Black's axiomatic principle of public law, as defined by the Supreme Court of the United States, would strip the owner of slaves in the Territories of all those rights which lawfully existed in the States from which they removed as effectually and inevitably as the Wihnot proviso or_ the Ordinance of '87. But if it shall be conceded, on the contrary, that slavery is a proper subject of legislation, upon which the territorial legisla- tures may rightfully act within the limitations of the Constitution, it neces- sarily follows that they may consent to the operation or adoption of the 2 18 lawa of the slaveholding States to the fullest extent necessary to the pro- tection and enjoyment of the owners' rights in slave property. SUPPOSE THK SUPREME COCRT WRONG AND JUDGE BLACK RIGHT. Suppose, however, the Supreme Court of the United States to be wrong in holding that the laws of one country can prevail in other countries only by consent or tacit adoption, and Judge Black to be right also in asserting that the State law in respect to slavery follows the master and his slave into the Territory and remains in force and unalterable until the Territory becomes a State, let OS see what would be the practical result of such an "axiomatic principle of public law!" It would enable any one citizen of each of the fifteen slaveholding States to remove into a Territory with his slaves and cany with him the law of slavery peculiar to his own State, and thus put into operation in the Territory, without the consent of the legislature or of CongresB, fifteen distinct and conflicting systems of law — some recognizing slaves as real property, and others as personal ; some prescribing one rule and measure of punishment for offences, and others a different ; some pre- scribing certain modes and conditions of emancipation, and others different ones; and others still prohibiting emancipation altogether. Fifteen distinct and conflicting systems of law on the same general subject, each deriving its validity from tin' authority of the State from which the master emigrated, and following the slaves as the individual right of the master, in consequence of his former citizenship of such State, and not by virtue of the Constitution of the United States, nor by the assent of the Territory or of Congress, are put in operation in the same Territory, each by the individual act of one man, in opposition to the wishes of the people, and in defiance of the legisla- tive authority of the Territory, and all to remain unalterable, no matter how inconvenient or unsuitable, until the people get a constitutional convention or the machinery of a State government into their hands. j\.s the law of slavery which the master carries into the Territory with his slave is his individual right, resulting from his former citizenship in another State, some inquisitive persons may inquire how long the right will abide with him? What will become of it when the Kentuckiau sells his slave to the Vennonter ; under what law will the Vermonter hold the slave ; whether under the law of Kentucky, where the new master never resided, or under the law of Vermont, where slavery is prohibited ? The same " axiomatic principle," as interpreted by Judge Black, would enable any one citizen from each of the thirty-eight States and Territories of this Union to put in operation in any other Territory, without their consent, express or implied, thirty-eight separate and conflicting systems of law upon the subject of marriage and" the rights of married women ; upon the legiti- macy of children and their rights of inheritance ; upon the relative rights and "duties of guardian and ward, master and apprentice, and every " right of property, private relation, condition or status" lawfully existing in the State 0X-Territory from which they came ! 'flu- same construction of this axiomatic principle would enable any one person, black or white, who should emigrate from Europe, Asia, or Africa — from North, South, or Central America — or from the Islands of the Sea, wherc- ever they are recognized as civilized people, to go into the Territories of the United States ami carry with them and put in operation all the laws of their respective countries, so far as they recognized any "right of property, pri- vate relation, condition or status," no matter how revolting to the moral sense of the community, without the consent of Congress or of the Territory, and when it was known that such laws were contrary to its policy and pre- judicial to its interests ! It is true that, according to Judge Black, these results can follow only where there is no local law in conflict with his axiomatic principle of pub- 19 He law. It should bo borne in mind, however, that if the Territories " have no attribute of sovereignty about them," and consequently no legislati power upon anysubjeoi whatever, it remains for him to show how there can be any such conflicting law in the Territories. ABSURDITY OF JUDGE BLACK'S DOCTRINE CONFESSED BY HIMSELF. | The absurdity of such a doctrine having been exposed, and its folly made manifest and ludicrous in the criticisms of the members of the legal profes- sion upon Judge Black's " Observations," he at length became ashamed of his position, and consequently scouts the idea in his appendix, thai he ever dreamed that his "axiomatic principle" would enable the Virginia master to carry with him into the Territories the Virginia law of shivery, and thus furnish judicial remedies and legal protection to his slave property in the Territories. Let us state his position in his own language, as revised and corrected in his appendix: " We have said, and we repeat, that a man does not forfeit his right of property in a slave by migrating with him to a Territory. The title which the owner acquired In the State from whence he came must be respected in his new domicil as it was in the old, until it is legally and constitutionally divested. The proposition is undeniable. But the absurd infer- ence which some persons have drawn from it is not true, that the master also takes with him the judicial remedies which were furnished him at the place where his title was acquired. Whether the relation of ^ master and slave exists or not is a question which must be determined according to the law of the State in which it teas created ; but the respective rights and obligations of the parties must be protected ana en- forced by the law prevailing at the place where they are supposed to be violated. This is also true with respect to rights of every other kind." So it appears that the Attorney General of the United States aspires to become the champion of the sanctity of private property by writing a pamphlet for the mere purpose of showing that the owner has a right without a remedy ! He seems annoyed that " some persons " should " have drawn the absurd inference" from his pamphlet that the courts of justice could or should afford any protection to slave property in the Territories by the ap- plication of those judicial remedies and legal provisions, and police regula- tions which lawfully existed in the State from which the Virginia master took his slaves, and without which the master can neither hold nor appro- priate his property, nor defend his right when assailed. If the owner can derive no benefit from the judicial remedies which lawfully existed in the State from which he removed, and the territorial legislature is incapable of legislating upon the subject of slavery, and therefore can furnish no remedies, what protection can the master possibly have for his slave property in the Territories under Judge Black's exposition of the Constitution and laws ? He will not consent that Congress shall enact a code of laws for the protec- tion of slavery in the Territories. He denies the right of a territorial legis- lature to pass laws upon the subject, either for its protection, regulation, or exclusion, for the reason that the Territories " have no attribute of sovereignty about them;" and he pronounces the inference " absurd" that the courts can apply the "judicial remedies" lawfully existing in other States. Denying all judicial remedies, and insisting upon a construction of the Constitution which renders legislative protectioff impossible, Judge Black claims the gratitude of the slaveholders for having discovered an " axiomatic principle of public law " under which the owner may be robbed of his property, and still console himself with the assurance that he retains a barren, useless, worthless right, under the laws of a State of which he is no longer a citizen, and whence the slave has been removed. POLITICAL TRIBUNALS CANNOT DETERMINE .TriUCIAL QUESTIONS. I will here dismiss all of these questions of law, and leave them to the courts of justice as the only tribunals under the Constitution which arc com- 20 peteat authoritatively to determine them. I have discussed them merely be- cause Judge Black bas sought the controversy, and thrust them into it; and not because they have anything- to do with the political issues now pending' feefore the country. In all that I have said, I have been content to assume the law to be as decided by the Supreme Court of the United States, without presuming that my individual opinion would either strengthen or invalidate their decisions. By the Constitution all legal and judicial questions are con- tided to the courts, whose final decisions are conclusive upon everybody until reversed. Political conventions and pasty platforms can take cognizance only of political questions. I have never recognized the propriety of any political party appealing from the adjudications of the highest judicial tri- bunals in tiie land to political assemblages, with a view of either confirming or impairing the force of their decisions. Some years ago when the common council o( the city of Chicago adopted a resolution declaring the fugitive slave law unconstitutional and void, and released the police from obeying it or rendering any assistance in its execution, I denied the right of the abo- litionists to take an appeal from the decision of the Supreme Court of the United States on a great constitutional question to the common council of a municipal corporation, although its powers are said to be " larger than those Of a federal Territory." Soo, too, last year, when I returned to Illinois to canvass the State in behalf of the regular nominees of the democratic party against the combined assatdts of the black republicans ami federal office holders, 1 denied their right to appeal from the decision of the Supreme Court in the Prod Scott case to an abolition caucus or opposition meeting with a view of impairing or in any way affecting that decision. Nor do I admit the right or propriety of the democratic party appealing from the decisions of the judicial tribunals to public meetings or political conventions for the purpose of revising, approving, or condemning such decisions, or of instructing the courts how they shall decide in future. Political parties and conventions should confine themselves to thosepolitical issues which may be rightfully determined by the political departments of the government in pursuance of the Constitution. Such is the position of the democratic party and the character of the Cincinnati platform with reference to the question of slavery in the Territories. By that platform the whole subject of slavery agitation is to be banished forever from the halls of Congress and left to the people of the Territories to be disposed of in such manner as they may determine for themselves, subject to such limitations only as the Constitution of the United States may have imposed upon their legislative authority and discretion. The Supreme Court of the United States will determine whether a territorial enactment is repugnant to the Constitu- tion, in the same manner as they decide whether the statute of a State or an act of Congress is repugnant to that instrument; and we, as in duty bound, must all sustain and maintain the authority of the court under the Constitution, whenever the case shall arise and the decision cf the court be authoritatively announced. Why, then, attempt to divide the party and produce strife and discord in our ranks, in these perilous times, by forcing a test of political fidelity upon a judicial question which has never bqpn decided by the courts and cannot be authoritatively determined by any'of the political departments of the government, and' upon which the' faith of the party is irrevocably pledged, that there should never be any proscription because of differences of opinion which were known to exist when the Kansas and Nebraska act was passed and the Cincinnati platform adopted? If this new test of party fidelity had been made and insisted upon in 1856, when Mr. Buchanan accepted the presidential nomination with the declara- tion ••that THE PEOPLE OF A TkKKIToKY, I. IKK THOSE OF a State, SIIAKK decide for THEMSELVES WIIKIHKK SLAVERY SHALL OK SHALL NOT EXIST WITHIN THEIR LIMITS" — 21 When our candidate for the Vice Presidency was understood to affirm the same principle at Lexington and at Tippecanoe — When the Secretary of State was known to have devoted al] the energies of his great intellect to the vindication of the same principle from the day te wrote the Nicholson letter — When the Secretary of the Treasury was canvassing Pennsylvania and other northern States, imploring the people to vote tor Mr. Uuchanan because he was pledged to carry out this great principle of popular sovereignly in the Territories — When the whole northern democracy and nearly every southern man who canvassed the northern States lor the democratic nominees pledged the whole party, north and south, to the support of the Cincinnati platform, as expounded by Mr. Buchanan in his letter of acceptance — If, I repeat, this new test had then been made and insisted upon, the people «>f the United States would never have known Judge Black as Attor- ney General; nor would the power and patrouagc of a democratic adminis- tration have been exhausted in, the prosecution of a war of extermination upon all those democrats whose only political sin consists in unwavering fidelity to those principles upon which these eminent men were elevated to their high places. Is this new test to be urged only for the purpose of controlling the Charleston nomination, and to be abandoned as soon as tin.' convention shall have ad- journed ? Or is it intended that the nominee, when elected, shall continue the system of proscription which has been recently inaugurated, as the fixed policy of his Administration, and denounce all democrats who repudiate the test as unworthy to hold any federal office or even to serve as chairmen of committees h^Congress? Are those fearless and incorruptible democrats who, rejecting all tests which have not received the sanction of the national convention of the party, stand firmly by its timedionored principles, to be called upon to fight the battles and win the victories with the understanding that they shall have no participation in the honors of the triumph? Is the nominee who may become the chosen embodiment of this prescriptive policy to be placed in the proud position of owing his election to the suffrages of those who have already been selected for the sacrifice, and to whose destruc- tion he has become pledged by his nomination? Is it not well that we should understand one another in advance, so that when the day of tribu- lation comes, if come it must, there shall be no imputation of ingratitude or bad faith ? THE ILLINOIS DEMOCRACY IN FAVOR OF THE CINCINNATI PLATFORM, AND OPPOSED TO ALL NEW TESTS. Judge Black, however, with more cunning than fairness, attempts to conceal from public view his own inconsistent positions, by studiously and persistently representing me as endeavoring to found a new school of politics, to force new issues upon the party, and to prescribe new tests of political faith, in violation of the Cincinnati platform. Of course, he produces no proof, well knowing that none could be produced, to sustain the truth of the charge. I will produce the proof to the contrary, however, so satisfactory and conclu- sive that no honest man will be excusable in repeating the charge. No man living has more uniformly and consistently adhered to the platform, usages, and organization of the democratic paaty than 1 have, under all circum- stances, from the period of my earliest manhood. During the whole war of extermination which has been waged upon me with savage ferocity by the combined forces of black republicanism, and the federal administration, I have, on all occasions, avowed my inflexible purpose to maintain the creed of the party as affirmed in the Cincinnati platform, and to resist by all legiti- mate means the unauthorized interpolation of new articles therein, and all 22 tests of political fidelity which have not received the sanction of the party in its duly constituted conventions. The Illinois democracy, when assembled in State convention in April, 1858, under circumstances of extreme provoca- tion, for the purpose of nominating a democratic ticket in opposition to the unholy alliance which had been formed by and between the abolitionists, federal office-holders, and black republicans, emphatically endorsed the Cincinnati platform as follows: '•Colonel McClernand, from the committee to prepare resolutions for the consideration of the convention, made the following report ; which was read, and on motion each reso- lution was separately read and unanimously adopted: "1. Reulved, That the democratic party of the State of Illinois, through their delegates in general convention assembled, do reassert and declare the principles avowed by them BE when, on former occasions, they have presented their candidates for popular suffrage. "2. Resolved, That they are unalterably attached to, and will maintain inviolate, the principles dt- v the national convention at Cincinnati, in June, 1856. "3. Resolved, That they avow with renewed energy their devotion to the federal union of the United States, their earnest desire to avert sectional strife, their determination to maintain the sovereignty of the States, and to protect every State, and the people thereof, in all their constitutional rights. "4. Resolved, That the platform of principles established by the National Democratic Con- vention at Cincinnati is the only authoritative exposition of democratic doctrine, and thai they deny tf.e right of any power on earth, except a like body, to change or interpolate that platform, or to pre- scribe new and different tests; that they will neither do it themselves, nor permit it to be done by others, but will recognize all men as democrats who stand by and uphold demo- cratic principles. " These resolutions were introduced into the Senate by me, on the 29th day of April, 1858, a few days after their adoption by the Illinois State conven- tion, with this emphatic endorsement: " I will furnish to the reporter the whole series, as furnishing the platform upon which the Illinois democracy stand, and by which I intend to abide." Thus it appears from the record made up at the time, that the real issue between the federal administration, as the allies of the black republicans of Illinois on the one hand, and the Illinois democracy on the other, in that memorable struggle, was that the administration claimed the right to "change and interpolate the Cincinnati platform, and prescribe new and different teds ;" while the gallant democracy of that noble State denied "the right of any power on earth, except a like body," to change the Cincinnati platform or prescribe new tests; and declared that "they uill neither do it themselves, nor /■'/■mil it to lie done by others, but will recognize all men as democrats who [> BY AND UPHOLD DEMOCRATIC PRINCIPLES." We weri- assailed and proscribed because we did stand by the Cincinnati platform; because we would not recognize the right of any power on earth, except a regularly constituted convention of the party to change the platform and interpolate new articles into the creed; because we would not sanction the new issues and submit to the new tests; because we would not proscribe any democrat nor permit the proscription of democrats in consequence of difference of opinion upon questions which had arisen subsequently to the adoption of the platform; ami because we recognized all men as democrats who supported the nominees and upheld the principles of the party as defined by the last national convention. It was upon this issue and for these reasons that the power ami pat ronnge of the federal government were wielded in concert with the black republicans for the election of their candidates in preference to the regular nominees of the democratic party. This system of proscription still continues in Illinois, and is being extended throughout the I'nion, with the view ol' controlling the Charleston nomination. Fidelity to the Cincinnati platform and opposition to the new issues and tests pre- scribed by men in power, iff direct conflict with the professions upon which they were elected, are deemed disqualifications for office and cause of removal. 23 THE CHARLESTON CONVENTION PRESIDENTIAL ASPIRANTS. The reasons for singling me out as the especial object for anathema will be found on the first page of the Attorney General's pamphlet, when- he says: "lie [Douglas] has been for years a working, struggling candidate for the presidency!" . Suppose it were true, that I am a presidential aspirant; docs that tact justify a combination by a host of other presidential aspirants, each of whom may imagine that his success depends upon my destruction, and the preach- ing a crusade against me for boldly avowing now the same principles to which they and 1 were pledged at the last presidential election? Is this a sufficient excuse for devising a new test of political orthodoxy; and, under pretext of fidelity to it, getting up a set of holting delegates to the Charleston convention in those States where they are unable to control the regular organization? The time is not far distant when the democracy of the whole Union, will be called upon to consider and pronounce judgment upon this question. What authority has the Attorney General, aside from his fears and hopes, for saying that I am " a working, struggling candidate for the presidency V My best friends know that I have positively and peremptorily refused to have anything to do with the machinery of the conventions in the several States by which the delegates to the Charleston convention are to be appointed. They know that personally I do not desire the presidency at this time— that 1 prefer a seat in the Senate for the next six years, with the chance of a re- election, to being President for four years at my period of life. They know vhat I will take no steps to obtain the Charleston nomination, that 1 will make no sacrifice of principle, no concealment of opinions, no concession to power for the purpose of getting it. They know, also, that I only con- sented to the use of my name upon their earnest representations that the good of the democratic party required it, and even then, upon the ex- press condition that the democratic party shall determine in the presiden- tial election of 1800, as I have full faith they will, to adhere to the principles embodied in the compromise measures of 1850, and approved by the people in the presidential election of 1852, and incorporated into the Kansas-Ne- braska act of 1854, and confirmed by the Cincinnati platform and ratified by the people in the presidential election of 1850. Nor can the Attorney Gen- eral pretend to be ignorant of the fact that the public were informed long since that, " If, on the contrary, it shall become the policy of the democratic party, which I cannot anticipate, to repudiate these their time-honored prin- ciples, on which we have achieved so many patriotic triumphs, and in lieu of them the convention shall interpolate into the creed of the party such new issues as the revival of the African slave trade, or a congressional slave code for the Territories, or the doctrine that the Constitution of the United States either establishes or prohibits slavery in the Territories beyond the power of the people legally to control it, as other property, it is due to candor to say that in such an event I could not accept the nomination if tendered to me." Is this the language of a man who is working and strug- gling for the presidency upon whatever terms and by the use of whatever means it could be obtained ? Or does this language justify that other charge, that I am making new issues and prescribing new tests in violation of the Cincinnati platform ? While I could nave no hesitation in voting for the nominee of my own party, with whom I might differ on certain points, in preference to the can- didate of the Black Republican Party, whose whole creed is subversive of the Constitution and destructive of the Union, I am under no obligation to become a candidate upon a platform that I would not be willing to carry out in good faith, nor to accept the presidency on the implied pledge to carry 24 into effect certain principles, and then administer the government in direct conflict with them. In other words. I prefer the position of Senator, or even that bf a private citizen, where I would be at liberty to defend and maintain the well-defined principles of the democratic party, to accepting a presi- dential Domination upon a platform incompatible with the principle of self- ernment in the Territories, or the reserved rights of the States, or the perpetuity oi' the Union under the Constitution. In harmony with these views, 1 said in those very speeches in Ohio, to which Judge Black refers in his appendix, that I was in favor of conducting the great struggle of 1860 upon "the Cincinnati platform without the addition of a word or the sub- traction ot' a letter." Yet, in the face of all these facts, the Attorney General does not hesitate to represent me as attempting to establish a new school of politics, to force new issues upon the party, and prescribe new tests of demo- cratic faith. In conclusion, I have only to suggest to Judge Black and his confederates in this crusade, whether it would not be wiser for them, and more consistent with fidelity to the party which placed them in power, to exert their ener- gies and direct all their efforts to the redemption- of Pennsylvania from the thraldom of Mack republicanism than to continue their alliance with the black republicans in Illinois, with the vain hope of dividing and defeating the democratic party in the only western or northern State which has never failed to cast her electoral vote for the regular nominee of the democratic party at any presidential election. Washington, October, 1859. university of califoe^ AT U& ANGELES UBRAR* II I I II II 3 1158 00596 0306 UNIVERSITY OF CALIFORNIA LIBRARY, LOS ANGELES This book is due on the last date stamped below. ffcURt APR 2 7 196$ iEC '0 URL-uj tamo ~t DE8 *?L to N0V 3 - 1969 REC'D LD-URL £ flSV 15 1971 NOV 14 1974 ^Cd Lu . uitt WAV 0U98< Book Slip — Series 4280