UNIVERSITY OF MASSACHUSETTS 
 AT AMHERST 
 
 UNIVERSITY LIBRARY 
 
 Special Collections & Rare Books 
 
J 
 
 ijf^'.'^aS't^ - ^bl 
 
HISTORICAL AND LEGAL 
 
 EXAMINATION 
 
 OF THAT PAET OF THE 
 
 DECISION OF THE SUPREME COURT OF THE UNITED STATES 
 
 DEED SCOTT CASE, 
 
 ■WHICH DECLARES THE 
 
 UNCONSTITUTIONALITY OF THE MISSOURI COMPROMISE ACT, 
 
 AND THE SELF-EXTENSION OF THE CONSTITUTION TO 
 
 TERRITORIES, CARRYING SLAVERY ALONG WITH IT. 
 
 m\\\ m cy^ 
 
 CONTAINING : 
 
 I. The Debates in the Senate in Maech, 1849, between Me. 'Webstee and Mk. Calhoun, 
 ON THE Legislative Extension op the Constitution to Territories, as contained in Vol. 
 IL Cn. CLXXXIL op the "Thirty Years' View." 
 
 IL The Inside View of the Southern Sentiment, in relation to the Wilmot Proviso, 
 AS seen in Vol. II. Cn. CLXVIII. of the " Thirty Years' View." 
 
 III. Eeview op President Pierce's Annual Message to Congress of December, 1856, 
 
 BO FAR AS it relates TO THE ABROGATION OP THE MISSOURI COMPROMISE ACT AND THE CLASSI- 
 FICATION OP Parties. 
 
 BY THE 
 
 AUTHOR OF THE '' THIRTY YEARS' VIEW." 
 
 NEW YORK: 
 D. APPLETON AND COMPANY, 
 
 846 & 348 BKOADWAY, NEW YOKE. 
 
 1858. 
 
Entered, according to Act of Congress, in tlie year 1857, by 
 
 D. APPLETON & COMPANY, 
 
 In the Clerk's Oflice of the District Court of tlie United States for the Southern District of 
 
 New York. 
 
INTRODUCTOKY NOTE. 
 
 The title is an index to the character of this Examination, 
 which only goes to the two points mentioned ; and goes to them 
 because they are held to be political, affecting Congress in its 
 legislative capacity, and on which the Supreme Court has no 
 right to bind, or control that body : as heretofore seen m the 
 case of the Bank of the United States, the Sedition law, &c. ; 
 cases in which Congress followed its own opinion of its own 
 powers, regardless of the Court's decision ; and the Court had 
 no way to compel it to obedience, or to punish it for contempt. 
 
 Congress holds its powers from the Constitution, where every 
 grant of authority is preceded by the words — '^^ Shall have 
 power to : " and to the support of which the members are 
 Bworn. The grant of power is from the Constitution, and the 
 oath is to the Constitution ; and it is written, that its words, al- 
 ways the same, may be always seen, and no excuse for disre- 
 garding them. The duty of the member — ^liis allegiance — his 
 fealty — is to the Constitution ; and in performance of this duty 
 - — in the discharge of this allegiance — in the keeping of this 
 fealty — he must be governed by the words of the instrument, 
 and by the dictates of his conscience. The member may en- 
 lighten himself, and should, with the counsels of others : but as 
 authority — as a rule of obligation — as a guide to conduct — the 
 Constitution and the oath alone can govern ; and were it other- 
 wise — was Congress to look to judicial interi^retation for its 
 powers — it would soon cease to have any fixed rules to go by : 
 would soon have as many diverse interpretations as different 
 courts : and the Constitution itself, like the Holy Scriptures, 
 in the hands of councils and commentators, would soon cease to 
 be what its framers made it. 
 
4: INTKODUCTOEY NOTE. 
 
 The power of the Court is judicial — so declared in the Con- 
 stitution ; and so held in theory, if not in practice. It is limited 
 to cases " in law and equity /" * and though sometimes en- 
 croaciiing upon political subjects, it is without right, without 
 authority, and without the means of enforcing its decisions. It 
 can issue no mandamus to Congress, or the people, nor punish 
 them for disregarding its decisions, or even attacking them. 
 Far from being bound by their decisions, Congress may proceed 
 criminally against the judges for making them, when deemed 
 criminally wrong — one house impeach and the other try : as 
 done in the famous case of Judge Chase. 
 
 In assuming to decide these questions, — (Constitutionality of 
 the Missouri Compromise, and the self-extension of the Consti- 
 tution to Territories,) — it is believed the Court committed two 
 great errors : fii'st^ in the assumption to try such questions : 
 secondly ^ in deciding them as they did. And it is certain that 
 the decisions are contrary to the uniform action of all the de- 
 partments of the government — one of them for thirty-six years ; 
 and the other for seventy years ; and in their effects upon each 
 are equivalent to an alteration of the Constitution,f by insert- 
 
 * The judicial power shall extend to all cases, in law and equity, arising under 
 this Constitution, the laws of the United States, and treaties made, or which shall be 
 made, <fec. — Article III., Sec. 2. 
 
 f " The question here is, whether they (the arguments referred to) are sufficient to 
 authorize this Court to insert into this clause of the Constitution an exception of the 
 exclusion or allowance of slavery, not found therein, nor in any other part of that in- 
 strument. To ingraft on any instrument a substantiye exception not found in it, must 
 be admitted to be a matter attended with great difficulty. And the difficulty increases 
 with the importance of the instrument, and the magnitude and complexity of the 
 interests involved in its construction. To aUow this to be done with the Constitution, 
 upon reasons purely political, renders its judicial interpretation impossible — because 
 judicial tribunals, as such, cannot decide upon political considerations. Political 
 reasons have not the requisite certainty to afford rules of juridical interpretation. 
 They are different in different men. They are different in the same men at different 
 times. And when a strict interpretation of the Constitution, according to the fixed 
 rules which govern the interpretation of laws, is abandoned, and the theoretical 
 opinions of individuals are allowed to control its meaning, we have no longer a Con- 
 stitution ; we are under the government of individual men, who for the time being 
 have power to declare what the Constitution is, accordmg to their own views of what 
 it ought to mean. WTien such a method of interpretation of the Constitution obtains, 
 in place of a republican Government, with limited and defined powers, we have a 
 Government which is merely an exponent of the wiU of Congress ; or what, in my 
 opinion, would not be preferable, an exponent of the individual pohtical opinions of 
 the members of this Court." — Mr. Justice Curtis. 
 
INTRODUCTORY NOTE. 5 
 
 ing new clauses iu it, wliicli could not have been put in it at 
 the time that instrument was made, nor at any time since, nor 
 now. 
 
 The Missouri Compromise act was a ^^ political enactment,''^ 
 made by the political power, for reasons founded in national 
 policy, enlarged and liberal, of which it was the proper judge : 
 and which was not to be reversed afterwards by judicial inter- 
 pretation of words and phrases. 
 
 Doubtless the Court was actuated by the most laudable 
 motives in undertaking, while settling an individual controversy, 
 to pass from the private rights of an individual to the public 
 rights of the whole body of the people ; and, in endeavoring 
 to settle, by a judicial decision, a political question which en- 
 grosses and distracts the country : * but the undertaking was 
 beyond its competency, both legally and potentially. It had 
 no right to decide — no means to enforce the decision — no ma- 
 chinery to carry it into efi'ect — no penalties of fines or jails 
 to enforce it : and the event has corresponded with these in- 
 abilities. Far ftom settling the question, the opinion itself 
 has become a new question, more virulent than the former ! 
 has become the very watchword of parties ! has gone into 
 party creeds and platforms — ^bringing the Court itself into 
 the political field — and condemning all future appointments 
 of federal judges, (and the elections of those who make the ap- 
 pointments, and of those who can multiply judges by creating 
 new districts and circuits,) to the test of these decisions. This 
 being the case, and the evil now actually upon us, there is no 
 resource but to face it — to face this new question — examine its 
 foundations — show its errors ; and rely upon reason and intelli- 
 gence to work out a safe deliverance for the country. 
 
 Eepulsing jurisdiction of the original case, and dismissing it 
 for want of right to try it, there would certainly be a difficulty 
 in getting at its merits — at the merits of the dismissed case 
 itself ; and, certainly, still greater difficulty in getting at the 
 merits of two great political questions which lie so far beyond 
 it. The Court evidently felt this difficulty, and worked sedu- 
 
 * " The case involves private rights of value, and Constitutional principles of the 
 highest importance, about which there has become such a difference of opinion that the 
 peace and harmony of the country required the settlement of them by a judicial de- 
 cision." — Mr. Justice Wayne. 
 
6 INTRODUCTORY NOTE. 
 
 lonsly to siirmonnt it — sedulously, at building the bridge, long 
 and slender — upon whicli the majority of the judges crossed the 
 wide and deep gulf which separated the personal rights of Dred 
 Scott and his family from the political institutions and the po- 
 litical rights of the whole body of the American people. They 
 did their work to their satisfaction, and it is right they should 
 have the benefit of it in their own words : which are here ac- 
 cordingly given : 
 
 " The principle of law is too well settled to be disputed, that a 
 court can give no judgment for either party, where it has no jurisdic- 
 tion ; and if, upon the showing of Scott himself, it appeared that he 
 was still a slave, the case ought to have been dismissed, and the judg- 
 ment against him and in favor of the defendant for costs, is, like that 
 on the plea in abatement, erroneous, and the suit ought to have been 
 dismissed by the Circuit Court for want of jurisdiction in that Court. 
 
 " But, before we proceed to examine this part of the case, it may 
 be proper to notice an objection taken to the judicial authority of this 
 Court to decide it ; and it has been said that, as this court has decided 
 against the jurisdiction of the Circuit Court on the plea in abatement, 
 it has no right to examine any question presented by the exception ; 
 and that any thing it may say upon that part of the case will be extra- 
 judicial, and mere obiter dicta. 
 
 " This is a manifest mistake ; there can be no doubt as to the juris- 
 diction of this court to revise the judgment of a circuit court, and to 
 reverse it for any error apparent on the record, whether it be the error 
 of giving judgment in a case over which it had no jurisdiction, or any 
 other material error ; and this, too, whether there is a plea in abate- 
 ment or not 
 
 " The correction of one error in the Court below does not deprive 
 the appellate court of the power of examining further into the record, 
 and correcting any other material errors which may have been commit- 
 ted by the inferior Court. There is certainly no rule of law — nor any 
 practice — nor any decision of a court — which even questions this power 
 in the appellate tribunal. On the contrary, it is the daily practice of 
 this Court, and of all appellate Courts where they reverse the judgment 
 of an inferior court for error, to correct by its opinions whatever errors 
 may appear on the record material to the case ; and they have always 
 held it to be their duty to do so where the silence of the court might 
 lead to misconstruction or future controversy, and the point has been 
 relied on by either side, and argued before the Court." 
 
INTEODUCTOET NOTE. T 
 
 Tills is the justification for going into the merits of tlie Scott 
 case after deciding there was no right to try it : (for the want 
 of jurisdiction is the want of a right to try, or even to examine 
 a case :) and the strength of this justification, compressed into a 
 few words, seems to be, that the Supreme Court, in its appel- 
 late character, has a right, in reviewing judgments at common 
 law, to go beyond the errors on which the appeal was taken, 
 and search for other errors in the record : and correct all that 
 can be discovered. Without impugning this practice in the 
 least — admitting its entire correctness in cases where the reason 
 for it applies — it is believed that the reason for the j)ractice had 
 no application in this case : that, far from applying, it was ab- 
 solutely forbidden by the reason on which it was founded. That 
 reason is, that a return of the record to the Court below with 
 errors in it, would be a silent sanction of those errors — would 
 cause them to be repeated by the court below, and give parties 
 the delay and cost of another appeal ; and the Supreme Court 
 the trouble and care of a new decision. But that delay, and 
 cost and trouble, can only be where the case is remanded for re- 
 trial, and never when it is remanded to be dismissed for want of 
 jurisdiction. In this latter case there is no danger of a repeti- 
 tion of the error. In the case of such dismission there is nothing 
 further foi' the Court below to do — no repetition of error for it 
 to commit — no future trouble to be given to the Court above — 
 nor any future cost or delay to the parties. Tested by its reason, 
 and this rule of practice could not obtain in the Dred Scott 
 case : tested by actual practice, if a case in point — (dismission 
 for want of jurisdiction, and still a correction of all discovera- 
 ble errors) — can be found, and it is believed the rule will fail in 
 this case as completely for want of precedent as for want of 
 reason. In this case, the suit was dismissed for want of juris- 
 diction, and that in the first step of the plaintifl:* in getting into 
 wurt.* He was turned back from the door, for want of a right 
 to enter the court room — debarred from suing, for want of citi- 
 
 * " Upon the whole, therefore, it is the judgment of this Court, that it appears hy 
 the record before us that the plaintiff in error is not a citizen of Missouri, in the same 
 sense in which that word is used in the Constitution ; and that the Circuit Court of 
 the United States, for that reason, had no jurisdiction in the case, and could give no 
 judgment in it. Its judgment for the defendant must, consequently, he reversed, and 
 11 mandate issued, directing the suit to be dismissed for want of jurisdiction." — 
 Opinion of the Court. 
 
8 INTEODUCTOEY NOTE. 
 
 zensliip ; after wliich it would seem to be a grave judicial 
 solecism to proceed to try the man when he was not before the 
 Court, and when he could take nothing from its decision if the 
 merits had all been found in his favor. 
 
 These remarks are made without reference to Scott, or to 
 any injury, real or supposed, which might concern him : they 
 are made wholly in relation to the two great political questions 
 which I handle, and to show that the Court had no jurisdiction 
 of them — no legal way to get at them — ^no foundation to stand 
 upon in concatenating that chain bridge of slender links on 
 which the Court crossed from Scott and his family, and their 
 claim to personal freedom, to the whole people of the United 
 States, and their political government. It was by going into the 
 merits of the Scott case, that the Court got hold of the Constitu- 
 tion and the Missouri Compromise ; and I think, with Mr. Jus- 
 tice Curtis, in his dissenting opinion,* that so grave an inquiry, 
 going to the foundations of our government, ought not to be got 
 hold of in that incidental, subaltern, and contingent way. Even 
 if there had been jurisdiction in the Scott case, and the Court had 
 got fairly at that case, I cannot consent that so momentous po- 
 litical questions should have been hung on to it, and tried as 
 appendant, and been saved, or condemned, as a mere conse- 
 quence of the decision of the question of personal freedom to 
 Dred Scott, his wife and children. Such parties as the Congress 
 and the people, their Constitution and its administration, are 
 certainly of sufficient dignity to have a trial of their own, and 
 to be present at it by their counsel. "Who was counsel for these 
 parties on that trial of Scott and his family ? Nobody ! for tlie 
 
 * " I regret I must go further, and dissent both from what I deem their assump- 
 tion of authority to examine the constitutionality of the act of Congress commonly 
 called the Missouri Compromise Act, and the grounds and conclusions announced in 
 their opinion. 
 
 " Having first decided that they were bound to consider the sufficiency of the plea 
 to the jurisdiction of the Circuit Court, and having decided that this plea showed that 
 the Circuit Court had pot jurisdiction, and consequently that this is a case to which 
 the judicial power of the United States does not extend, they have gone on to examine 
 the merits of the case as they appeared on the trial before the Court and jury, on the 
 issues joined on the pleas in bar, and so have reached the question of the power of Con- 
 gress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, 
 in my opinion, such an exertion of judicial power transcends the limits of the authority 
 of the Court, as described by its repeated decisions, and, as I understand, acknowledged 
 in this opinion of the majority of the Court." — Mr. Justice Curtis. 
 
INTEODUCTORT NOTE. 9 
 
 very respectable counsel who appeared were the counsel of 
 Scott ; and their business was to save Scott ! save him as the 
 primary object ! leaving the safety of the other parties for a 
 secondary object, and a mere resulting consequence. 
 
 What makes this assumption of authority the more regret- 
 able, is the perfect immateriality to the parties, (Scott and his 
 master,) as declared by the Court, of the consequences of termi- 
 nating the case, either by dismission for want of jurisdiction, or 
 by judgment on the merits for the defendant — both modes of 
 terminating it being about the same, (as declared by the Court,)* 
 in its consequences to each party, personally and pecuniarily. 
 ITow, when the consequences either way would have been so 
 immaterial to the parties to the suit — to Scott and to Sanford — 
 why take the course which has been so serious to our Constitu- 
 tion ? so contrary to seventy years' action of our government ? 
 so inflammatory to political parties ? and so aggravating to the 
 spirit of sectional division ? 
 
 But there is another view to be taken of this point — (the 
 Court's assumption of jurisdiction over the Constitution and the 
 compromise) — which shows that, according to the opinion of 
 the Court itself, there was no necessity, in deciding upon the 
 question of freedom or slavery to Scott and his family, to decide 
 upon the constitutionality of the Missouri Compromise Act. That 
 view of the case is this : that it was a case of two aspects, — 
 one, that of Scott alone ; the other, that of himself and family 
 together; in fact, two different cases, in one of which Scott 
 stood alone, and in the other he and his family stood together. 
 Thus, before he had a family, Scott had been carried by his 
 owner from Missouri into the State of Illinois, where the ordi- 
 nance of '87 against slavery was admitted by the Court to be in 
 full force ; but which residence in a free State gave him no 
 freedom, because being brought back to the State of Missouri, 
 his condition depended upon the laws of Missouri, and not of 
 
 * " It is true that the result either way, by a dismissal or by a judgment for the 
 defendant, makes very little, if any, difference m a pecuniary or personal point of view 
 to either party. But the fact that the result would be very nearly the same to the 
 parties in either form of judgment, would not justify this Court in sanctioning an error 
 in the judgment which is patent on the record, and which, if sanctioned, might be 
 drawn into precedent, and lead to serious mischief and injustice in some future suit." — 
 Opinion of the Court. 
 
10 INTRODUCTOEY NOTE. 
 
 Illinois.* Upon the same principle, Scott and liis whole family 
 having been taken back to Missouri from the north side of the 
 compromise line, would have their free or servile condition 
 determined by the laws of the State to which they were return- 
 ed, and not by those of the Territory in which they had sojourned. 
 So that, free soil or slave soil north of 36° 30', made no difference 
 to the sojourning slaves brought back. And in this part of the 
 case the Court says : " As Scott was a slave when taken into 
 the State of Illinois by his owner, and was there held as such, 
 and brought back in that character, his status^ as free or slave, 
 depended on the laws of Missouri, not of Illinois." So that, to 
 the decision of the question of freedom or slavery to Scott and 
 his family, the validity or immateriality of the Missouri Com- 
 promise Act was wholly immaterial, and entirely unnecessary 
 to be determined. I say nothing about this as law : I take it as 
 I find it in the pronounced opinion of the Supreme Court ; f 
 and so taking it as the Court's own law, I must be allowed to 
 
 * " But tliere is another point in the case which depends on the State power and 
 State law. And it is contended, on the part of the plaintiff, that he is made free hy 
 heing taken to Rock Island, in the State of Illinois, independently of his residence in 
 the territory of the United States ; and heing so made free, he was not again reduced 
 to a state of slavery hy heing hrought hack to Missouri. Our notice of this part of the 
 case wUl be very brief; for the principle on which it depends was decided in this Court, 
 npon much consideration, in the case of Strader et al. v. Graham, reported in 10th 
 Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with 
 the consent of the owner, and afterwards hrought hack to Kentucky. And this Court 
 held that their status or condition, as free or slave, depended upon the laws of Ken- 
 tucky, when they were brought back into that State, and not of Ohio ; and that this 
 Court had no jurisdiction to revise the judgment of a State court upon its own laws. 
 This was the point directly before the Court, and the decision that this Court had not 
 jurisdiction turned upon it, as will be seen hy the report of the case. As Scott was a 
 slave when taken into the State of Illinois hy his o^vner, and was there held as such, 
 and brought back in that character, his status, as free or slave, depended on the laws 
 of ^lissouri, and not of Illinois." — Ojnnioii of the Court. 
 
 •j- For my opinion of the law I am willing to take it as declared by Mr. Chief Justice 
 Gamble, of the Missouri Supreme Court, in a long course of decisions at times when 
 the question had not become partisan, political and geogi-aphical, and when there were 
 no new lights suddenly breaking oi;t to throw all past wisdom in the shade. But to 
 Judge Gamble's opinion : — " I regard the question as conclusively settled by repeated 
 adjudications of this Court ; and if I doubted or denied the propriety of those decisions, 
 I would not feel myself any more at liberty to overturn them, than I would any other 
 series of decisions by which the law npon any other question had been settled. There 
 is with me nothing in the law of slavery which distinguishes it from the law on any 
 other subject, or allows any more accommodation to the temporary excitements which 
 
INTEODUCTOEY NOTE. 11 
 
 believe that, in no possible aspect of the Scott case, even in a 
 trial on the merits, and with clear jurisdiction, was there the 
 least necessity to judge the Compromise Act and the Constitu- 
 tion : consequently, that the act of the Court in judging them 
 was unnecessary and extra-judicial. So that the decision of the 
 Court seems to be open to the preliminary objections of assum- 
 ing jurisdiction where it had none — hunting for errors by virtue 
 of a rule which did not apply — making a bridge to get from a 
 case of personal rights to a question of political power — and act- 
 ing, without necessity, in a case of no consequence to the parties, 
 on a different case dreadfully momentous to the pulblic. 
 
 This is the exposition of the first great error of the Court, as 
 I hold it, in the part of its opinion which I propose to examine : 
 the error of assuming without right, and Avithout necessity, to 
 decide upon the constitutionality of the Missouri Compromise 
 Act, and the self-extension of the Constitution to territories. The 
 second great error is in the decision itself upon these questions. 
 I propose to examine these decisions ; and in doing so, limit my- 
 self, as the Court did, to the strict legal inquiry which the sub- 
 ject exacts. I shall not go beyond this limit — although as a 
 political subject entirely appropriate to do so — to inquire into 
 the origin and design of the course of measures which have pro- 
 duced the present disturbance in the Union, and in the attempt 
 to compose which by a judicial decision the Court overrules the 
 action of two generations, virtually inserts a new clause in the 
 Constitution, changes its character, and makes a new point of 
 departure in the working of the Federal Government. That 
 task belongs to history, veracious and fearless, and will require 
 a chapter of its own in the annals of our Union. 
 
 The Court sets out with a fundamental mistake, which per- 
 vades its entire opinion, and is the parent of its portentous 
 
 have gathered around it. * * * * * But in the midst of all such excitement, 
 it is proper that the judicial mind, calm and self-balanced, should adhere to principles 
 established when there was no feeling to disturb the view ot the legal questions upon 
 which the rights of parties depend. In this State it has been recognized from the be- 
 ginning of the Government as a coiTect position in law, that the master who takes hia 
 slave to reside in a State or Territory, where slavery is prohibited, thereby emancipates 
 his slave." (Winney v. Whitesides, 1 Mo. 473; Le Grange v. Chouteau, 2 Mo. 20; 
 Milley i). Smith, lb. 36; Ralph v. Duncan, 3 Mo. 194; Julia v. McKinney, lb. 270; 
 Nat V. Ruddle, lb. 400 ; Rachel v. Walker, 4 Mo., 350', Wilson v. Melvin, 592.)— Chief 
 Justice Gamble, Missouri Supreme Court. 
 
12 mTEODUCTOKr NOTE. 
 
 errors. That mistake is in the assumption, that the Constitution 
 extends to Territories as well as to States, and includes these in- 
 fant settlements in the provisions made for sovereign States. 
 Well do I remember the day — and if I had forgotten it, parlia- 
 mentary history would preserve its memory — when a view of 
 that doctrine was first revealed* to the astonished vision of the 
 American Senate. It was in the last days of the Session 1848- 
 '49, and in an unparliamentary attempt to hitch on to the Gen- 
 eral Appropriation Bill, which had come up from the House, the 
 defeated bills (three made into one) for giving territorial govern- 
 ments to California, ISTew Mexico, and Utah. These territories 
 had remained without governments for nearly two years — all 
 attempts at legislating for them being baffled, ^>'5^, by the move- 
 ment of Mr. Wilmot to prohibit the introduction of slavery, 
 (defeated because the prohibition was already complete under 
 the Mexican laws,) — and, next^ by the movements of Mr. Calhoun 
 to carry slavery there. It was an injury to these territories, a 
 reproach upon our Government, and a humiliation to Congress, 
 to remain in this state of impassibility with resjDCct to the gov- 
 ernment of the new acquisitions. But the power of Congress 
 
 * '■'•First revealed:'''' for it had been there once before, without a revelation of 
 itself. It was the session before, in one of the many abortive bills for giving govern- 
 ments to these territories, reported from a committee specially appointed for the pur- 
 pose, composed of Mr. Calhoun and a majority of his immediate friends and sympa- 
 thizers on the slavery subject. It was a conglomerate biU which lumped all the terri- 
 tories together — even Oregon. It was an enormously long biU of three dozen ponder- 
 ous sections, the penultimate one of which, namely, the 35th, was in these words : 
 " The Constitution and the laws of the United States are hereby extended over and de- 
 clared to be in full force in said territories of New Mexico and California, so far as the 
 same, or any provision thereof, may be applicable." — This comprehensive section, the 
 only short one in the bill, but so new and startling, was relegated to its fag-end, where 
 nothing but details of form are ever found — details to carry out principles contained 
 in the front sections, and upon which alone the bill is debated — and seems to have 
 escaped all notice at the time. No speaker mentioned it, and there were many able 
 jurists who spoke on the bill — among others, Mr. Webster. No one hinted at it — a per- 
 suasive evidence that no one knew of it but those who put it there, and who had the 
 same reason for not referring to it that they would have for putting it where it would 
 not be seen. Mr. Benton voted for the bill without knowing such a provision was in 
 it — nor did he know of it until long after. — This bill did not become law, and has passed 
 into the receptacle of things forgotten, but its remembrance may be of some value 
 now in showmg that, on that day, (July 22d, 1848,) the authors of that bill deemed an 
 act of Congi-ess necessary to carry the Constitution into a territory', and give it force 
 therein the same as statutes of Congresss — and so classed it with the statutes to be 
 extended. 
 
mTKODUCTORY NOTE, 15 
 
 was paralyzed by the pertinacity of two extremes, which, oper- 
 ating from opposite points, and with mutual crimination of each 
 other, worked to the same eflect in baffling Congress, and co- 
 operated in producing the same results while denouncing each 
 other's means — each extreme a minority, and unable to do any- 
 thing of itself, but potent enough in conjoint action to prevent 
 Congress from doing any thing. A succession of bills intro- 
 duced during three Sessions to give governments to these orphan 
 territories, had each been defeated ; and now Congress was at 
 the end of its Session, and at the end of the Administration 
 which acquired the territories, and a recess of nine months in 
 view ; and the same abortive result to the territorial bills. In 
 this extreme moment, the civil and diplomatic bill, commonly 
 called the General Appropriation Bill — the one on which the 
 life of the Government depended, and to which nothing extra- 
 neous could be added — came up from the House, matured by 
 that body, and only waiting the action of the Senate upon it. 
 The Senate had acted — ^liad made the appropriate additions ger- 
 mane to the bill — had finished the bill, and was on the point of 
 returning it to the House, when Mr. Isaac P. Walker, of Wis- 
 consin, moved to amend it by adding to it a lumping bill for the 
 government of the three territories. The proposition fixed no 
 attention, and seemed to excite no concern, being considered un- 
 sustainable on a question of order, until it took a sudden and 
 sharp turn into the epidemic slavery question. For, it seemed 
 to be with the mind in those days as it was with the body in the 
 time of the great plague in Athens during the " Thirty Years' 
 War," when the historian Thucydides says — That whatever dis- 
 ease a man had before, or might take during the time, no matter 
 what, it immediataly ran into the plague, and took the form of 
 that pestilence, entirely losing its own milder character in the 
 virulence of the prevailing distemper : so, in the mental malady 
 of our slavery agitation, all questions in Congress immediately 
 ran into that malady, and took the form of the slavery question. 
 So of this proposed amendment of Mr. Walker. It had nothing 
 to do with slavery, and no affinity to the Appropriation Bill ; and. 
 left to itself, would have been quickly disposed of^either ruled 
 out as disorderly, or rejected as objectionable. But its nature 
 was wholly altered after he had first presented it. At that first 
 presentation it contained a section, as does every territorial 
 
14: INTRODUCTORY NOTE. 
 
 government bill, extending certain emimerated acts of Congress 
 to the territories — sucli acts as Congress thinks proper to extend 
 — no act of Congress obtaining force in a territory, unless ex.- 
 pressly spread over it, Mr. Walker's bill conformed to this 
 practice. It contained the nsual list of acts which were suitable 
 to territories ; for the list is nearly always the same. 
 
 N^othing was done upon this proposition the day it was 
 offered. It remained unacted upon during that day. The next 
 day Mr. Walker asked the leave of the Senate to modify his 
 amendment, at the request of a friend, as he said. Leave was 
 given, and the modification made in open Senate, and consisted 
 of heading the list of the enumerated acts of Congress, with the 
 Constitution : so as to make the list read, " The Constitution of 
 the United States, and all and singular the several acts of Con- 
 gress {describing them) he, and the same hereby, are extended over 
 and given full force and efficacy in the said territories^ The 
 novelty and strangeness of this proposition called up Mr. Web- 
 ster, who repulsed as an absurdity, and as an impossibility, the 
 scheme of extending the Constitution to territories — declaring 
 that instrument to have been made for States, not territories — - 
 that Congress governed the territories independently of the Con- 
 stitution, and incompatibly with it — that no part of it went to a 
 territory but what Congress chose to send — that it could not act 
 of itself anywhere, not even in the States for which it was 
 made : and that it required an act of Congress to put it into 
 operation before it had effect anywhere.* This was clear con- 
 stitutional law, shown in the preamble to the Constitution, and 
 in every word of it, that it was made for States — so understood 
 
 * But this is a case in which Mr. Webster should have his own words — at least a 
 few of them ; and here they are : " Let me say, tliat in this general sense there is no 
 such thing as extending the Constitution, The Constitution is extended over the 
 United States, and nothing else. It cannot be extended over any thing, except the old 
 States and the new States that shall come in hereafter, when they do come in. There 
 is a want of accuracy of ideas in this respect that is quite remarkable, among eminent 
 gentlemen, and es.penalhi professional and judicial gentlemen* It seems to be taken 
 for granted that the right of trial by jury, the habeas corpiis, and every principle 
 designed to protect personal liberty, is extended by force of the Constitution itself over 
 every new Territory. That proposition cannot be maintained at all. How do you 
 arrive at it by any reasoning or deduction ? It . can only be arrived at by the loosest 
 of all possible constructions. It is said that this must be so, else the right of habeas 
 
 * Stick a pin here. Mr. Webster points out lawyers and judges as being specially 
 befogged on this point. Nothing but a sense of painful duty could have carried Mr. W. 
 out ot his wa_v to make such a remark of a profession of which he was himself the highest 
 ornament, and of the ermine which he so much reverenced. 
 
INTRODUCTORY NOTE. 15 
 
 in the legislation of seventy years — every part of it requiring a 
 specific law to execute it before it could be enforced. Even the 
 oath commanded by the Constitution could not be taken until 
 an act of Congress was passed to prescribe the mode, and that 
 act was No. 1 of the acts of the first Congress, and required the 
 members Avho made it, (and who had been sworn in by a volun- 
 tary resolution for the purpose of making it,) to be sworn in un- 
 der it immediately ; and all other oflicers as soon as appointed. 
 So of every other clause of the Constitution, no matter how 
 plain or peremptory the provision. Nothing could be done un- 
 der it without a law, as in the case of fugitives from service or 
 
 corpus would te lost. Undoubtedly, these rights must be conferred by law before they 
 can be enjoyed in a Ten-itory." — Webster, Ifarch Bd, 1849. 
 
 To the same efifect IVIr. Clay, when he first heard of this new doctrine, which was 
 near the end of his natural as well of his parliamentary life : 
 
 " Now, really, I must say that the idea that eo mstanti upon the consummation of 
 the treaty, the Constitution of the United States spread itself over the acquired territory, 
 and carried along with it the institution of slavery, is so irreconcilable with any com- 
 prehension, or any reason that I possess, that I hardly know how to meet it. WTiy, 
 sir, these United States consist of thirty States. In fifteen of them there is slavery : 
 in fifteen slaveiy does not exist. How can it be argued that the fifteen slave States, 
 by the operation of the Constitution of the United States, carried into the ceded country 
 their institution of slavery, any more than it can be argued upon the other side, that 
 by the operation of the same Constitution the fifteen free States carried into the ceded 
 Territories the principle of freedom, which they, from views of public policy, have 
 chosen to adopt within their limits ? Let me suppose a case. Let me imagine that 
 Mexico had never abolished slavery there at all. Let me suppose that it was existing 
 there, by virtue of law, from the shores of the Pacific to those of the Gulf of Mexico, 
 at the moment of the cession of those countries to us by the treaty in question. 
 With what patience would gentlemen, coming from the slaveholding States, listen to 
 an argument which should be urged by the free States, that, notwithstanding the exist- 
 ence of slavery within these territories, the Constitution of the United States, the mo- 
 ment it operated upon and took effect within the ceded Territories, abolished slavery 
 and rendered them free ? Well, is there not just as much ground to contend, where 
 a moiety of the States are free, and the other moiety are slaveholding States, that 
 the principle of freedom wliich prevails in the one class shall operate, as the prin- 
 ciple of slavery, which operates in the other class of States, shall operate ? Can yon, 
 amidst this conflict of interests, of principles, and of legislation which prevails in 
 the two parts of the Union — can you come to any other conclusion than that which I 
 miderstand to be the conclusion of the public law of the world, of reason, and of jus- 
 tice, that the status of law, as it existed at the moment of the conquest, or acquisition, 
 remains unchanged, until it is altered by the sovereign authority of the conquering or 
 acquiring power ? The laws of Mexico, as they existed at the moment of the cession 
 of the ceded territories to this country, remained their laws still, unless they were 
 altered by that new sovereign power under which this people and these territories 
 came, in consequence of the ti-eaty of cession, to the United States. — Mr. Clay on Com- 
 promise Measures, 1850. 
 
16 INTRODrCTOEY NOTE. 
 
 justice : none of whom could be delivered up except in pursu- 
 ance to a law made to cany the clause into efiect. Knowing 
 the impossibility of self-action on the part of the Constitution — 
 a mere declaration of principles without vitality until germi- 
 nated by law — Mr. Webster scouted as an impossible absurdity, 
 the extension of the Constitution to territories. Mr, Calhoun 
 replied, and immediately became the prominent speaker on the 
 extension side — contending that the Constitution could be so 
 extended, and, being the supreme law of the land, would carry 
 along with it protection to persons and property, to witj the 
 owner and his slaves ; and would override and control all laws 
 opposed to that protection. The debate then took the regular 
 slavery form, and developed this new question which had been 
 feeling its way in some remarks, but never before took the 
 shape of a formal proposition to be enacted into law — that of 
 extending slavery into the new territories. Mr. Calhoun boldly 
 avowed his intent to carry slavery into them nnder the wing of 
 the Constitution, and denounced as enemies to the South all who 
 opposed it. Mr. "Webster rejoined, going into an extended ar- 
 gument in support of his positions. Several senators joined in 
 it, and the whole debate may be seen in the Appendix to the 
 Congress Debates of the day. A brief notice of it, with parts 
 of Mr. Webster's and Mr. Calhoun's speeches, may be seen in 
 the Thirty Years' Yiew, (vol. 2, ch. 182,) and also in the Appen- 
 dix to this Examination of the Court's Opinion. 
 
 The amendment was carried, the whole Territorial Bill of 
 Mr. Walker, as modified at the instance of a friend ; and being 
 returned to the House for its concurrence, the amendment was 
 rejected, and a contest was brought on between the two Houses, 
 which threatened the loss of the General Appropriation Bill, 
 and the consequent stoj^page of the government for the want of 
 the means of keeping it alive. It was after midnight, and the 
 last night not only of the session but of the Congress, and of the 
 presidential term ; and when many Senators had retired, or re- 
 fused to vote, believing their power was at an end. Mr. Polk, 
 who, according to the custom of the presidents, had remained 
 in the capitol until midnight to sign bills, had left it and gone 
 home ; the House had ceased to do business, was without a 
 quorum, and had sent to the Senate the customary adjournment 
 message. One-third of the Senate was absent, or refusing to 
 
INTRODUCTORY NOTE. 17 
 
 vote, Mr. Cass and Mr. Benton among the latter. The motion 
 was made to adjourn sine die, which, under the imminent cir- 
 cumstances of the occasion, the presiding officer refused to put. 
 It was after four o'clock in the morning of the 4:tli of March 
 when this contest was brought to an end by the recession of the 
 Senate — by the Senate receding from its amendment — and the 
 General Appropriation Bill (the life of the government) per- 
 mitted to pass.* It was passed on the morning of the 4th of March, 
 and signed by the President on that day, but antedated of the 
 third to prevent the invalidity from appearing on its face. Such 
 were the portentous circumstances under which this new doc- 
 trine first revealed itself in the American Senate ! and then as 
 needing a legislative sanction, as requiring an act of Congress to 
 carry the Constitution into the territories, and to give it force 
 and efficacy there. Failing in that attempt, the higher ground 
 was afterwards taken, that the Constitution went of itself, and 
 enforced itself in these territories, so far as slavery is concerned : 
 and this, I apprehend, is what the Supreme Court has decided. 
 This being the decision of the Court, it becomes proper to 
 give it in their own words, thus : 
 
 " This Territory being a part of the United States, the Government 
 and the citizen both enter it under the authority of the Constitution, with 
 their respective rights defined and marked out ; and the Federal Grov- 
 ernment can exercise no power over his person or property, beyond what 
 that instrument confers, nor lawfully deny any right w^^'^h it has re- 
 served. 
 
 " It seems, however, to be supposed, that there is a difference be- 
 tween property in a slave and other property, and that different rules 
 may be applied to it in expounding the Constitution of the United 
 States. And the laws and usages of nations, and the writings of emi- 
 nent jurists upon the relation of master and slave and their mutual 
 rights and duties, and' the powers which Governments may exercise over 
 it, have been dwelt upon in the argument. 
 
 " Now, as we have already said in an earlier part of this opinion, 
 upon a different point, the right of property in a slave is distinctly and 
 expressly affirmed in the Constitution. The right to traffic in it, like 
 
 * Only seven Senators voted against receding, Mr. Calhoun himself not voting in 
 this last stmggle — for what reason not stated. It is due to Mr. Webster to say, that 
 his skill and perseverance passed this bill, and prevented the Government from being 
 stopped until a new Congress could be assembled, of which a considerable number of 
 members were yet to be elected. 
 
 2 
 
18 INTEODTICTOEY NOTE. 
 
 an ordinary article of merchandise and property, was guaranteed to the 
 citizens of the United States, in every state that might desire it, for 
 twenty years. And the Government in express terms is pledged to 
 protect it in all future time, if the slave escapes from his owner. This 
 is done in plain words — too plain to be misunderstood. And no word 
 can be found in the Constitution which gives Congress a greater power 
 over slave property, or which entitles property of that kind to less pro- 
 tection than property of any other description. The only power con- 
 ferred is the power coupled with the duty of guarding and protecting 
 the owner in his rights. 
 
 " Upon these considerations, it is the opinion of the Court, that the 
 act of Congress which prohibited a citizen from holding and owning 
 property of this kind in the Territory of the United States north of the 
 line therein mentioned, is not warranted by the Constitution, and is 
 therefore void ; and that neither Dred Scott himself, nor any of his 
 family, were made free by being carried into this Territory ; even if they 
 had been carried there by the owner, with the intention of becoming a 
 permanent resident." * 
 
 * This opinion of the Court, and the reasons given for it, correspond with the fol- 
 lowing resolutions submitted by Mr. Calhoun iu the Senate (February, 1847) : 
 
 " Resolved, That the Ten-itories of the United States belong to the several States 
 composing this Union, and are held by them as their joint and common property. 
 
 " Resolved, That Congress, as the joint agent and representative of the States of the 
 Union, has no right to make any law or do any act whatever that shall directly, or by 
 its effects, make any discrimination between the States of this Union, by which a,ny one 
 of them shall be deprived of its full and equal rights in any Territory of the United 
 States acquired or to be acquired. 
 
 " Resolved, That the enactment of any law which should directly, or by its effects, 
 deprive the citizens of any of the States of this Union from emigrating, with their 
 property, into any of the Territories of the United States, would make such a discrimi- 
 nation ; and would, therefore, be a violation of the Constitution, and the rights of the 
 States from which such citizens emigrated, and in derogation of that pei-fect equality 
 which belongs to them as members of this Union, and would tend directly to subvert 
 the Union itself." 
 
 These resolutions were in response to the Wilmot proviso ; and the sincerity of their 
 author in offering them has been since shown, in a confidential letter which has come 
 to light, in which this proviso, thus presented to the Senate to be adopted as adequate 
 cause for dissolving the Union, was considered by Mr. Calhoun as a God-send, abso- 
 lutely necessary, or something like it, to keep up the slavery agitation in the South ; 
 and, of which any compromise, adjustment, or even its defeat, would be unfortunate for 
 the South. — See Appendix II. — These resolutions were never brought to a vote in the 
 Senate. They were denounced upon the spot as a ^^ fire-brand," and suffered to die out 
 there, but sent to the slave States for adoption; by a few of which (\%ginia. South 
 Carolina, Florida, and Missouri) they were legislatively adopted, and became the basis 
 of new party organization. 
 
INTKODUCTOKT NOTE. 19 
 
 It is believed that these positions are based upon errors of 
 fact, which being corrected, the erroneous deductions fall of 
 themselves. The prohibition of slavery in a Territory is assumed 
 to work an inequality in the States, allowing one part to carry 
 its property with it — the other, not. This is a mistake — a great 
 error of fact — the source of great errors of deduction. The 
 citizens of all the States, free and slave, are precisely equal in 
 their capacity to carry their property with, them into Territories. 
 Each may carry whatever is property by the laws of nature : 
 neither can carry that which is only property by statute law : 
 and the reason is, because he cannot carry with him the law 
 which makes it property. Either may carry the thing which is 
 the subject of this local property, but neither can cany the law 
 which makes it so. The Virginian may carry his man slave ; 
 but he cannot carry the Virginian law which makes liim a slave- 
 The citizen of Massachusetts may carry the pile of money which, 
 under a State law, constitutes a bank ; but he cannot carry the 
 law or charter which makes it a bank : and his treasure is only 
 a pile of money ; and, besides being impossible, it would be ab- 
 surd, and confusion confounded to be otherwise. For, if the 
 citizen of one State might carry his slave State law with him into 
 a Territory, the citizens of every other slave State might do the 
 same ; and tlien what Babylonish confusion, not merely of tongues, 
 but of laws, tvould be found there ! Fifteen different codes, as 
 the slave States now number, and more to come. For every 
 slave State has a servile code of its own, differing from others in 
 some respects — and, in some, radically : as much so as land, in 
 the eye of the law, differs from cattle. Thus, in some States, as 
 in Virginia, and others, slaves are only chattels : in others, as in 
 Kentucky and Louisiana, they are real estate. How would all 
 these codes work together in a Territory under the wing of the 
 Constitution, protecting all equally ? no law of Congress there, or 
 of the Territory, to reconcile and harmonize them by forming 
 them into one ; no law to put the protecting power of the Con- 
 stitution into action ; but of itself, by its own proper vigor, it 
 is to give general and equal protection to all slaveholders in the 
 enjoyment of their property — each, according to the law of the 
 State from which he came. For, there being no power in Con- 
 gress, or the Territorial Legislature, to legislate upon slavery, 
 the whole subject is left to the Constitution and the State law ! 
 
20 INTRODUCTOET NOTE. 
 
 that law which cannot cross the State line ! and that Constitution 
 which gives protection to slave property but in one instance, 
 and that only in States, not in Territories — the single instance of 
 recovering runaways. The Constitution protect slave property 
 in a Territory ! when by that instrument a runaway from the 
 Territory or into the Territory, cannot be reclaimed. Beautiful 
 Constitutional protection that ! only one clause under it to pro- 
 tect slave property, and that limited, in express words, to fugi- 
 tives between State and State ! and but one clause in it to j)ro- 
 tect the master against his slaves, and that limited to States ! 
 and but one clause in it to tax slaves as property, and that 
 limited to States ! and but one clause in it to give a qualified 
 representation to Congress, and that limited to States. No ; the 
 thing is impossible. The owner cannot carry his slave State 
 law Avith him into the Territory ; nor can he carry it into another 
 slave State, but must take the law which he finds there, and have 
 his property governed by it ; and, in some instances, wholly 
 changed by it, and rights lost, or acquired by the change. For 
 instance^ in Virginia slaves are a chattel interest, and belong to 
 the husband, though come by the wife, and may be seized and 
 sold for his debts — even those contracted before marriage; or 
 he may give them away, or devise them to his own kin, or chil- 
 dren by another marriage. Removed to Kentucky with these 
 slaves, they become real estate, and belong to the wife, and her 
 blood ; and the husband has no more rights in them than in her 
 land. If he removed again and got into Tennessee with his 
 slaves, they return to their chattel condition ; and go as they 
 would in Virginia. And if he passed on as far as Louisiana, 
 another metamorphosis of his property ! for there they become 
 real estate again, governed by its laws — and also become sub- 
 ject (the husband's own, if he has or acquires any) to the civil 
 law partnership between husband and wife. So that the doc- 
 trine of the Supreme Court will not do — neither in States nor 
 Territories : for the owners can in no case carry their slave law 
 beyond the limits of their own State.* 
 
 * This obvious view did not escape Mr. Webster when this novel doctrine was first 
 broached in the Senate, in 1818, (on an Oregon Territorial Bill,) nor the dissenting 
 justices in the Dred Scott case. Mr. Webster, with a few remarks, exposed the fallacy 
 of the objection — thus : " The southern Senators say we deprive them of the right to 
 go into these newly acquired Territories with their property. We certainly do not 
 
INTEODUCTORT NOTE. 21 
 
 In its terms the opinion of the Supreme Court stops at the 
 invalidation of an act of Congress which shall prohibit slavery 
 in a Territory : upon its principle and reasons it should invali- 
 date any other act having the same eifect — whether it be the 
 
 prevent them from going into those Territories with what is, in general law, called 
 property. But these States have hy their local laws created a property in persons, and 
 they cannot carry these local laws with them. Slavery is created, and exists hy a 
 local law, which is limited to a certain section ; and it is asked that Congress shall 
 establish a local law in other Territories to enable southern Senators to carry their par- 
 ticular law with them. No man can be held as a slave unless the local law accompany 
 him." 
 
 And thus Mr. Justice M'Lean : — " Will it be said that the slave is taken as prop- 
 erty, the same as other property which the master may own ? To this I answer, that 
 colored persons are made property by the law of the State, and no such power has 
 been given to Congress. Does the master carry with him the law of the State from 
 which he removes into the Territory ? and does that enable him to coerce his slave in 
 the Territory ? Let us test this theory. If this may be done by a master from one 
 slave State, it may be done by a master from every other slave State. This right is 
 supposed to be connected with the person of the master, by virtue of the local law. 
 Is it transferable ? May it be negotiated, as a promissory note or bill of exchange ? 
 If it be assigned to a man from a free State, may he coerce the slave by virtue of it ? 
 What shall this thing be denominated ? Is it personal or real property ? Or is it an 
 indefinable fragment of sovereignty, which every person carries with him from bis late 
 domicil ? One thing is certain, that its origin has been very recent, and it is un- 
 known to the laws of any civilized country. It is said the Territories are common 
 property of the States, and that every man has a right to go there with his property. 
 This is not controverted. But the Court say, a slave is not property beyond the opera- 
 tion of the local law which makes him such. Never was a truth more authoritatively 
 and justly uttered by man. Suppose a master of a slave in a British island owned a 
 million of property in England ; would that authorize him to take his slaves with him 
 to England ? The Constitution, in express terms, recognizes the status of slavery as 
 founded on the municipal law : ' No person held to service or labor in one State, under 
 the laws thereof, escaping into another, shall,' &c. Now, unless the fugitive escape 
 from a place where, by the municipal law, he is held to labor, this provision affords no 
 remedy to the master. What can be more conclusive than this ? Suppose a slave 
 escape from a Territory where slavery is not authorized by law, can he be reclaimed ? 
 In this case, a majority of the Court have said that a slave may be taken by his 
 master into a Territory of the United States, the same as a horse, or any other kind 
 of property. It is true, this was said by the Court, as also many other things, which 
 are of no authority." 
 
 And thus Mr. Justice Curtis : — " Is it conceivable that the Constitution has con- 
 ferred the right on every citizen to become a resident on the Territory of the United 
 States with his slaves, and there to hold them as such, but has neither made nor pro- 
 vided for any municipal regulations which are essential to the existence of slavery ? 
 Is it not more rational to conclude that they who framed and adopted the Constitution, 
 were aware that persons held to service under the laws of a State are property only to 
 the extent and under the conditions fixed by those laws ; that they must cease to be 
 available as property^ when their owners voluntarily place them permanently witliin 
 
22 
 
 INTEODUCTORY NOTE. 
 
 constitution, or law, of a State coming into existence in tlie same 
 Territory, and taking its place. The principle is, tliat the con- 
 stitution carrying slavery into the territory, the holding slaves 
 there is a constitutional right which cannot be defeated by an 
 act of Congress. jN^ow, that being the case, can any other au- 
 thority defeat it ? Can a State do it ? Can one State do by it- 
 self what all the States together in Congress cannot do ? The 
 inequality, degradation, insult and injury of being debarred from 
 an equal use of a common property, is the gravamen of the 
 complaint: now this degradation, insult, injury, and inequality, 
 would be precisely the same if done by a State law, or a State 
 constitution, as if done by an act of Congress. The damage 
 would be the same, and the insult greater, because done by a 
 single State, and a young one fresh from the territorial condition, 
 and setting at defiance the rights of all the old slave States to 
 which it might owe its existence. The case would cry equally 
 for the interposition of the Supreme Court, and it would be a 
 case in which the court would have a clear right to interpose. 
 For the Constitution of the United States is supreme over State 
 constitutions. State laws, and State judiciaries. It overrides 
 them all wherever it goes ; * and going into the new State with 
 the same right and duty to protect persons and property in the 
 enjoyment of a common right with which it had entered the ter- 
 ritory, the same remedy would require to be given for the same 
 wrong. And there would be no taking position upon State 
 rights ; for no State has any right to do any thing contrary to the 
 Constitution. The argument of the Court proves too much ; 
 
 another jurisdiction, where no municipal laws on the subject of slavery exist ? more- 
 OTer, if the right exists, what are its limits, and what are its conditions ? If citizens 
 of the United States have the right to take tlieir slaves to a Territory, and hold them 
 there as slaves, without regard to the laws of the Territorj', I suppose this right is not 
 to be restricted to the citizens of slaveholding States. A citizen of a State which does 
 not tolerate slavery can hardly be denied the power of doing the same thing. And 
 what law of slavery does either take with him to the Territoiy ? If it be said to be 
 those laws respecting slavery which existed in the particular State from which each 
 slave last came, what an anomaly is this? Where else can we find, under the 
 law of any civilized country, the power to introduce and permanently continue diverse 
 systems of foreign municipal law, for holding persons in slavery?" 
 
 * This Constitution, and the laws of the United States which shall be made in pur- 
 suance thereof, and all treaties made, or which shall be made, under the authority of 
 the United States, shall be the supreme law of the land ; and the judges in every 
 State shall be bound thereby, any thing in the constitution or laws of any State to the 
 contrary notwithstanding. [Cons.. Art. 6.] 
 
INTKODUCTOET NOTE. 23 
 
 and, pushed to its legitimate conclusions, would invalidate State 
 constitutions and laws as readily as it does acts of Congress, 
 there being no difference in the right to go and to stay in the 
 State as well as the Territory, as long as there remained in it 
 any soil acquired by the common blood, and the common treas- 
 ure of the whole. 
 
 But there is practice as well as argument on this doctrine of 
 carrying slaves into territories, and having them protected there 
 by the Constitution. We have had some slave territories — Mis- 
 souri, Arkansas, Florida, — into which that property was carried. 
 "Was it done under the Constitution ? JSTo ! But under the ter- 
 ritorial law, sanctioned, not by the Constitution, but by Congress, 
 and governed after it got there by the territorial law. No one 
 carried the State law with him. He left that behind, and took 
 what he found in the Territory ; and if he had found no law 
 there, the slaves would have been free, maugre the Constitution, 
 which, extended over territories without laws to apply it, Avould 
 be a cloud without rain, as even in the States for which it was 
 made, and in which it recognizes slavery and the rights of the 
 owner. ISTo right can be exercised under it, not even reclaiming 
 a fugitive from service, without an act of Congress. 
 
 I only occupy myself with the political part of the Court's 
 opinion — that part of it which is intended to act on the power of 
 Congress ; and to set forth this part in its clearest light, and to 
 separate it from the personal part which acts on the freedom of 
 Scott and his family. I here present these political decisions, 
 (as I deem them to be,) from the official report of the case, as I 
 find them condensed in the Reporter's synoptical view, prefixed 
 to the report. That synopsis classes the different branches of 
 the decision under five divisions, of which only two — the third 
 and the fourth — claim my attention. They are as follow : 
 
 III. 
 
 " The clause in the Constitution authorizing Congress to make all 
 needful rules and regulations for the government of the territory and 
 other property of the United States, applies only to territory within the 
 chartered limits of some one of the States when they were colonies of 
 Great Britain, and which was surrendered by the British Government 
 to the old Confederation of the States, in tlie treaty of peace. It does 
 not apply to territory acquired by the present Federal Government, by 
 treaty or conquest, from a foreign nation. 
 
 " The United States, under the present Constitution, cannot acquire 
 
24 iNTEODUCTOKr NOTE. 
 
 territory to be held as a coIobj,* to be governed at its will and pleasure. 
 But it may acquire territory wliicli, at the time, has not a population 
 that fits it to become a State, and may govern it as a Territory until it 
 has a population which, in the judgment of Congress, entitles it to be 
 admitted as a State of the Union. 
 
 " During the time it remains a Territory, Congress may legislate over 
 it within the scope of its constitutional powers in relation to citizens of 
 the United States — and may establish a Territorial Government — and 
 the form of this local Government must be regulated by the discretion 
 of Congress — but with powers not exceeding those which Congress 
 itself, by the Constitution, is authorized to exercise over citizens of the 
 United States, in respect to their rights of persons or rights of 
 property. 
 
 IV. 
 
 " The territory thus acquired, is acquired by the people of the United 
 States for their common and equal benefit, through their agent and 
 trustee, the Federal Government. Congress can exercise no power over 
 the rights of persons or property of a citizen in the Territory which ia 
 prohibited by the Constitution. The Government and the citizen, when- 
 
 * " Colony." — It is no part of the design of this Examination to remark npon any 
 tiling in the Court's decision but the two points mentioned — the abrogation of the 
 Compromise Act, and the extension of the Constitution to territories ; but the phrase 
 " colony," and the doctrine dehvered in relation to that species of dependency, calls 
 for a remark which, as it cannot go into the body of the work, must find a place in a 
 note. The meaning of it is too well fixed to admit of ambiguous sense, even in a 
 popular harangue, much less in a judicial decision. It always signifies a body of ctd- 
 tivators transplanted by the govermnent to a distant possession, and governed and 
 protected there by the mother country, of which it is to be always the dependent — 
 never the equal. The term has never been applied to our territories, and cannot be 
 without a total change in their nature. Distance, governmental transplantation, per- 
 petual inferiority, is their inexorable characteristic. As such, the question of colonies 
 is purely and simply a pohtical question, for the determination of the political power ; 
 and as such was determined some fifty odd years ago by our Government. The de- 
 termination was, that the United States would have no colony which required a navy 
 to giiard it, and to keep open communication with it. And that determination, by its 
 import and express terms, admitted Cuba as an exception — that island being near 
 enough to our coast to be safely reached without the convoy of a fleet, and strong 
 enough in its natural and artificial defences to be protected by land forces. But 
 while this exception of Cuba was made, all designs upon it inconsistent with fair pur- 
 chase, or honorable conquest in just war, were sternly repudiated. The doctrine of 
 the old school was that, geographically, Cuba belonged to the New World, and to the 
 North American part of it, and to the United States as the chief power of North 
 America ; and politically, to Spain : and that, while Spain declined to sell, and gave 
 us no just cause of war, she was to be undisturbed in the possession of that island—- 
 
ESTTRODUCTOEY NOTE. 25 
 
 ever the Territory is open to settlement, both enter it with their re- 
 spective rights defined and limited by the Constitution. 
 
 " Congress have no right to prohibit the citizens of any particular 
 State or States from taking up their home there, while it permits citi- 
 zens of other States to do so. Nor has it a right to give privileges to 
 one class of citizens which it refuses to another. The Territory is ac- 
 quired for their equal and common benefit — and if open to any, it must 
 be open to all upon equal and the same terms. 
 
 " Every citizen has a i-ight to take with him into the Territory any 
 article of property which the Constitution of the United States recog- 
 nizes as property, 
 
 " The Constitution of the United States recognizes slaves as property, 
 and pledges the Federal Government to protect it. And Congress 
 cannot exercise any more authority over property of that description 
 than it may constitutionally exercise over property of any other kind. 
 
 " The act of Congress, therefore, prohibiting a citizen of the United 
 States from taking with him his slaves when he removes to the Terri- 
 tory in question to reside, is an exercise of authority over private 
 property which is not warranted by the Constitution — and the removal 
 of the plaintifij by his owner, to that Territory, gave him no title to 
 freedom." 
 
 These decisions upon their face show themselves to be politi- 
 cal, and tried by the test of enforcement, they are proved to be so. 
 The Supreme Court cannot enforce these decisions ; and that is the 
 test of its jurisdiction. "Where it cannot enforce, it cannot try. 
 The Court is an authoritative body, acting with authority, and 
 having power to enforce its decisions wherever it has jurisdic- 
 tion. It can issue its command — {inandamus^ loe command) — 
 and has a machinery to execute it — marshals, jails, fines, im- 
 prisonment. Kone of this machinery can be emj)Iojed upon 
 Congress and the people. Suasion is the only operative agent 
 upon them; and this agent, either moral or political, is not the 
 weapon of the Court. The pulpit and the forum persuade : a 
 court commands. It, therefore, acted, on these points, without 
 jurisdiction ; that is to say, without right ; and, what is more, 
 
 as mucli so as in the island of Cadiz. But no other power was to be allowed to get it 
 from Spain, either by purchase or conquest. If it was to be sold, the United States 
 had the pre-emption right of purchase : if to be conquered, we the conqueror. But 
 all this open and above board — no pretexted wars, no false claims, no fictitious quar- 
 rels, no annoying, no bullying, no forced sale. — Jefferson's Loiters. 
 
26 liSTTRODUCTOKT NOTE. 
 
 (as will be seen in tlie course of this examination,) did what the 
 political power refused to do when moved thereto in 184:7 and 
 '48. The extension of the Constitution to Territories was then 
 attempted and repulsed. To give a right to the Supreme Court 
 to try the question of African slavery in free Territories, was 
 then attempted, and denied.'^ To abrogate the Missouri Com- 
 promise, though the act was then denounced, was not attempted 
 — Mr. Calhoun himself saying it was " not to be attempted " — 
 assigning as a reason that the attempt would disturb the Union ; 
 his real reason being, that the party which did it would stand 
 responsible for what might (in consequence) happen to the 
 Union : for he was a man of head, and of system, and in all 
 these movements constantly affected the defensive. 
 
 I conclude this introductory note with recurring to the great 
 fundamental error of the Court, (father to all the political errors,) 
 that of assuming the extension of the Constitution to the 
 Territories. I call it assuming, for it seems to be a naked as- 
 sumption without a reason to support it, or a leg to stand upon 
 — condemned by the Constitution itself, and the whole history 
 of its formation, and administration, "Who were the parties to 
 
 * It was in 1848, in one of the abortive bills reported by a select committee for the 
 government of the new territories, and in which the slave was to have the right of suing 
 his master for his freedom, with an appeal to the Supreme Court. The readiness with 
 which the debate I'an into the personal composition of the Court, and became political 
 and geographical, and distrustful of the judges, as the speaker and the judge should 
 be on opposite sides of Mason & Dixon's line, shows the extreme delicacy of carrying 
 such questions to the Court. Thus : " Mr. Corwin asserted his belief, that if Senators 
 fi-om the South believed that in an appeal to the Supreme Court, in cases under this 
 bill, the decision would be against them, they would never vote for this biU. So, if 
 the Senator from Vermont (Mi*. Phelps) thought the decision would be agamst him, he 
 would never vote for it." " Mr. Foote feared that the decision of the Supreme Court, as 
 now constituted, would be against the South." " Mr. Hale professed to have no con- 
 fidence in the Supreme Court, as now constituted." " Mr. Reverdy Johnson believed in 
 the existence of the power in Congress to pass a law to prohibit slavery in territories, and 
 if such a law was presented to the Supreme Court for a decision on its constitutionality, 
 it would be in favor of the law. As a judicial question, the decision would be against 
 the protection of the South." Mr. Badger, of North Carolina, " Had a respect for the 
 Supreme Court, but he was not willing to leave the decision of the question to a court, 
 so large a portion of which was opposed to slavery." Mr. Bell, of Tennessee, opposed 
 the biU on the ground, " that the Court was the weakest of the three co-ordinate 
 branches of the Government — too weak to command obedience, or to settle such ques- 
 tions ; and he drew the inference tliat a decision of it before a tribunal so feeble might 
 break down the Court, while it failed to satisfy the public miud. — Mr. Bell on Oregon, 
 
INTEODtrCTOEY NOTE. 27 
 
 it? The States alone. Tlieir delegates framed it in the Federal 
 convention : their citizens adopted it in the State conventions. 
 The Korth-West Territory was then in existence, and had been 
 for three years ; yet it had no voice, either in the framing, or 
 adopting of the instrument — no delegate at Philadelphia, no 
 submission of it to their will for adoption. The preamble shows it 
 was made by States, and for States. Territories are not alluded to 
 in it. The body of the instrument shows the same thing, every 
 clause, except one, being for States ; and Territories, as political 
 entities, never mentioned once ; and the word " territory," oc- 
 curring but once, and that as property, assimilated to other pro- 
 perty — as land, in fact ; and as a thing to be disposed of — to be 
 sold. Now you never sell a territorial government ; but you 
 sell property : and in that sense alone does the word territory 
 occur, and that but once in the whole instrument. Tried by 
 the practice under it, and the Territory is a subject, without a 
 political right — no right to vote for President, or Vice President, 
 or Senator, or Pepresentative in Congress ; nor even to vote 
 through tlieir delegate, on any question in Congress — all their 
 officers aj^pointable and removable by the federal authority, 
 even their judges — their Territory to be cut up as Congress 
 pleases ; even parts of it to be given to Indians : no political 
 rights under it, except as specially granted by Congress : no 
 benefit from any act of Congress, except specially named in it, 
 or the act specially extended to them, like the subject colonies 
 and dependencies of Great Britain. How can the Constitution 
 go to them of itself, when no act of Congress under it can go 
 to them unless specially extended ? Far from embracing these 
 Territories, the Constitution ignores them, and even refuses to 
 recognize their existence where it would seem to be necessary 
 — ^as in the case of fugitives from service, and from labor. Look 
 at the clause. It only applies to States — fugitives from States 
 to States.* Why ? because the ordinance of '8T, the organic law 
 of the Territories, made that provision for the Territories, and 
 about in the same words, and before it was put in the Consti- 
 
 * " No person held to service or labor in one State, under the laws thereof, and 
 escaping into another, shall, in consequence of any law or regulation therein, bo dis- 
 charged from such service or labor, but shall be delivered up on the claim of the party 
 to whom such service, or labor, may be due." — Article 4, nee. 2. 
 
28 IXTKODUOTOET NOTE. 
 
 tution.* In both places it is an organic jirovision, barren of ex 
 edition nntil a law sbould be passed under it to give it effect — 
 which was done in the fugitive slave and criminal act of 1T93 
 — that act applying to Territories as well as to States — and so 
 carrying both the Constitution and the ordinance into effect. 
 This view is fundamental and decisive, and requires to be bet- 
 ter known by the public than it is. There are two distinct 
 clauses in the Constitution — one applying to fugitives from ser- 
 vice, the other to fugitives from justice. They are both limited 
 to States.f Under these clauses, a criminal or slave fugitive to 
 or from a Territory, or from one Territory to another, or from 
 one State to a Territory, or from a Territory to a State, cannot 
 be demanded. A felon escaping with a stolen slave into a Ter- 
 ritory, cannot be demanded under the Constitution. There are 
 other clauses in the Constitution relating to slaves, not one of 
 which extends to Territories. Tlie fourth Article, section 4, 
 guarantees protection against " domestic violence," (servile in- 
 surrection;) but the protection is limited to States.:}: Territo- 
 ries can only receive it from Congress. The acknowledgment 
 of property in a slave, contained in the first Article, (which taxes 
 slaves as property,) is confined to States. Not a clause in the 
 Constitution which relates to slaves, extends to Territories — 
 neither the fugitive slave clause, nor the protection against do- 
 mestic violence, nor the acknowledgment of property implied 
 in taxation : and if the Constitution was extended to Territories, 
 (which it cannot be,) not a claim could be set up %mder it for 
 protection to slave property ! I^ot a law could be made under 
 it for the protection of that property. The Constitution does 
 
 * "Provided, always, that any person escaping into the same, (the North-West 
 Territory,) from whom labor or ser^'ice is lawfully claimed in any one of the original 
 States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming 
 his or her labor or service as aforesaid." — Ordinance of '87, Art. 6. 
 
 j- " Any person charged in any State with treason, felony, or other crime, who shall 
 flee from justice, and be found in another State, shall, on demand of the executive 
 authority of the State from which he fled, be delivered up to the State having jurisdio- 
 tion of the crime," — Article i, section 2. 
 
 :): The United States shall guarantee to every State in the Union a republican fonn 
 of government, and shall protect each oi them against invasion ; and, on application of 
 the legislature or of the executive, (when the legislature cannot be convened,) against 
 domestic violence." — Art, 4, sec. 4. 
 
nSTTKODTJCTOET NOTE. 29 
 
 not even grant protection to a Territory against invasion ! * nor 
 does it guarantee tliem a republican f form of government ! 
 and that is the reason that they have never been governed on 
 republican principles. And this is the instrument which gives 
 such supreme protection to slave property in Territories ! 
 After this, to say that the Constitution extends to Territories, 
 would be about equal to saying that the territorial ordinance 
 of '87 extends to the States. The pretension was driven out 
 of Congress when it presented itself there : judicially decreed 
 by the Supreme Court, it becomes accepted law to one half the 
 Union ; and acquiescence from all others who do not consider 
 the difference between judicial and political subjects : and is 
 not to be a barren power in the administration of our Govern- 
 ment. Mr. Calhoun declared its effect when he jDroclaimed it, 
 saying : 
 
 " / deny that the laws of Mexico can have the effect attributed to 
 them, (that of lieeping Slavery out of New Mexico and California.) 
 As soon as the treaty between the two countries is ratified, the sove- 
 reignty and authority of Mexico hi the territory acquired by it becomes 
 extinct, and that of the United States is substituted in its place, con- 
 veying the Constitution with its overriding control over all the laws 
 and institutions of Mexico inconsistent with it.'''' — Oregon Debate, 
 1848. 
 
 This is the declared effect of the transmigration of the Con- 
 stitution to free territory by the author of the doctrine ; and 
 great is the extent of country, either acquired or to be acquired, 
 in which the doctrine is to have application. All Kew Mexico 
 and California at the time it was broached — all the Territories 
 now held, wherever situated, and as much as can be added to 
 them — these additions have already been considerable, and vast 
 and varied accessions are still expected. Arizonia has been 
 acquired ; fifty millions were offered to Mexico for her northern 
 half, to include Monterey and Saltillo ; a vast sum is now offer- 
 ed for Sonora and Sinaloa, down to Guaymas ; Tehuantepec, 
 Nicaragua, Panama, Darien, the Spanish part of San Do- 
 mingo, Cuba ! with islands on both sides of the tropical con- 
 tinent. ISTor do we stop at the two Americas, their coasts 
 
 * Article 4, section 4. \ Same. 
 
30 INTRODUCTORY NOTE. 
 
 and islands, extensive as they are ; but circumvolving tlie teiTa- 
 queous globe, we look wistfully at the Sandwich Islands, and 
 on some gem in the Polynesian group ; and plunging to the 
 antipodes, pounce down upon Formosa in the Chinese Sea. Such 
 were the schemes of the last Administration, and must continue, 
 if its policy should continue. Over all these provinces, isth- 
 muses, islands, and ports, now free, our Constitution must spread, 
 (if we acquire them, and the decision of the Supreme Court 
 stands,) overriding and overruling all anti-slavery law in their 
 respective limits, and planting African slavery in its place, be- 
 yond the power of Congress or the people there to prevent it. 
 
 I object to the Court's opinion, not only because it was with- 
 out jurisdiction, and wrong in itself, but because it was political, 
 pertaining to the policy, or civil government of the Union — 
 interfering with the administration of the affairs of the State. 
 
HISTORICAL AND LEGAL 
 EXAMINATION 
 
 SUPREME COURT'S DECISION ON THE MISSOURI COMPROMISE 
 
 ACT, AND THE EXTENSION OF THE CONSTITUTION 
 
 TO TERRITORIES, 
 
 A3 PRONOtTNCED IN 
 
 THE DUED SCOTT O^SE. 
 
 This Examination divides itself into three parts : — 
 First. — As it concerns the power exercised by Congress 
 over the original Territory of the United States. Secondly. — 
 As it concerns the new Territory acqiiired by the Louisiana pur- 
 chase. Thirdly. — As it concerns the Missouri Compromise Act. 
 And it will be the point of the whole Examination to show that 
 Congress exercised, and rightfully, supreme authority over these 
 Territories, both original and acquired ; that it governed them 
 indej)endently of the Constitution, and incompatibly with it, 
 and by virtue of sovereign and proprietary rights ; that it did 
 what it deemed best for the young community, as a father does 
 for his children ; and that the question of admitting or prohib- 
 iting slavery, either in the new or old Territories, never rose 
 higher than a question of expediency. And that this continued 
 to be the case, without distinction of men or parties, and with the 
 
32 EXAMINATION OF THE 
 
 universal concuiTence of all departments of the Government — 
 legislative, judicial and executive, State and Federal — from the 
 legislative adoption of the ordinance of '87 in the year '89, 
 down to the abrogation of the Missouri Compromise Act, in 
 1854. 
 
 FIEST STAGE OF THE EXAMmATIOX :— POWER OF 
 CONGEESS OYER THE ORIGEN"AL TERRITORY. 
 
 I. — At the head of the objections to the Court's opinion, 
 stands the uniform action of the Government for thirty-six years 
 on one of its branches, and seventy on the other. Uniformity 
 of action on the part of authorities, appointed to administer 
 government, is usually admitted to be evidence of right action ; 
 and, it is believed, no higher case of uniformity of governmen- 
 tal action — or of longer continued uniformity — or on the part of 
 better qualified autiiorities — can be found than in the case un- 
 der consideration. In point of length of time, it is that of the 
 existence of the Government ; in point of uniformity, no excep- 
 tion ; in point of fitness in the actors, most eminent — consisting 
 of the generation which founded the Government, and the sec- 
 ond generation, disciple of the first, which succeeded to its ad- 
 ministration ; comprehending in all this time all the depart- 
 ments of all the governments. State and Federal — and in all 
 their branches — legisLative, executive, and judicial. Such uni- 
 formity furnishes a persuasive evidence that this action was 
 right ; and it is the object of this Examination to show that it 
 was so, by showing what that action was, and the reasons upon 
 which it was founded ; so that the autliority of law and reason 
 may be added to that of uniform joractice. 
 
 It was from the 7th day of August, 1789 — that is to say, 
 from the beginning of the first session of the first Congress un- 
 der the Federal Constitution — that this uniformity began. It 
 was on that day that the new-born Congress, putting the new 
 Government into operation, adopted as a part of its machinery, 
 and adapted to the working of the new Government, the famous 
 ordinance of 1787, for the government of the Korth-West Terri- 
 frvT^' — chan.2:ing not one word in its whole enactments, except 
 
SUPEEME COUIiT's DECISION, ETC. 33 
 
 to substitute tlie President and Senate for the old Continental 
 Congress, in making the Territorial ai3pointments, and holding 
 the communications with the officers, which the ordinance re- 
 quired. The preamble declared its object — to adapt it to the 
 present Constitution, and to continue its full effect in the Terri- 
 tories ; and the enactments of this adopting, and adapting, stat- 
 ute, corresponded with its declared object. It was brief, and in 
 these words : 
 
 "Whereas, In order that the ordinance of the United States in 
 Congress assembled, for the government of the territory Northwest of 
 the river Ohio may continue to have full effect, it is requisite that cer- 
 tain provisions should be made, so as to adapt the same to the present 
 Constitution of the United States : Therefore, Be it enacted, That in 
 all cases in which by the said ordinance any information is to be given, 
 or communication made by the Governor of the said Territory to the 
 United States in Congress assembled, or to any of their officers, it shall 
 be the duty of the said Governor to give such information, and to 
 make such communication to the President of the United States ; and 
 the President shall nominate, and by and with the advice and consent 
 of the Senate, shall appoint all officers which by the said ordinance were 
 to have been appointed by the United States in Congress assembled ; 
 and all officers so appointed shall be commissioned by him; and in all 
 cases where the United States in Congress assembled might, by the said 
 ordinance, revoke any commission or remove from any office, the Presi- 
 dent is hereby declared to have the same powers of revocation and re- 
 moval. Section 2. — That in case of the death, removal, resignation, 
 or necessary absence of the Governor of the said Territory, the Secre- 
 tary thereof shall be, and he hereby is authorized and required to ex- 
 ecute all the powers, and perform all the duties, of the Governor during 
 the vacancy occasioned by the removal, resignation, or necessary absence 
 of the said Governor." 
 
 Thanks to the wise custom which still, in proper cases, pre- 
 fixed preambles to bills, and which was in use at the time of 
 the passing of this act. The preamble is a key to unlock the 
 meaning of an act, and in this case unlocks it very completely, 
 by showing that its object was to " continue the full operation 
 of the ordinance," — and merely to adapt its working to the 
 machinery of the new Government, wliich was done by the 
 simple substitution of the President and Senate for tlie old Con- 
 gress in the business of appointments, removals, and communi- 
 3 
 
34 EXAMINATION OF THE -". 
 
 cations: and with this exception, no other part of the ordinance 
 was touclied — every provision and every enactment remaining 
 as it was, and the new Congress left to do whatever was re- 
 quired from the old Congress, as in approving or disapproving 
 the acts of the Territorial legislation. 'No continuation of an 
 act, at the change of a Government, could be more complete 
 and perfect than in this brief act of the 7th of August, 1789, 
 and its place in the list of acts passed, shows the degree of im- 
 portance attached to it. It was No. 8. in that list! — the pre- 
 vious seven being those which were indispensable in putting 
 the machinery of the new Government into operation in the 
 States, as this act was to do the same for the Territories. The 
 ordinance, then, became as much the act of the new Government 
 as if it had originated under it ; as if it had never existed be- 
 fore ; as if it had undergone no transition from an expiring to a 
 new-born Government. And with this accords the opinion of 
 the Supreme Court, for it says : 
 
 " Among the earliest laws passed under the new Government, is one 
 reviving the ordinance of 1787, which had become inoperative and a 
 nullity upon the adoption of the Constitution. This law (the reviving 
 law) introduces no new form or principles for its government, but recites, 
 in the preamble, that it is passed in order that the ordinance may con- 
 tinue to have full effect, and proceeds to make only those rules and 
 regulations which were needful to adapt it to the new Government, into 
 whose hands the power had fallen." 
 
 And to the same effect, Mr. Justice M'Lean, in his dissent- 
 ing opinion, thus : 
 
 " It is clear that the ordinance did not go into operation by virtue 
 of the authority of the confederation, but by reason of its modification 
 and adoption by Congress under the Constitution. It seems to be sup- 
 posed, in the opinion of the Court, that the articles of cession placed it 
 on a different footing from Territories subsequently acquired. I am 
 unable to perceive the force of this distinction. That the ordinance was 
 intended for the government of the Northwestern Territory, and was 
 limited to such Territory, is admitted. It was extended to southern 
 Territories, with modifications, by acts of Congress, and to some northern 
 Territories. But the ordinance was made valid by the act of Congress, 
 and without such act could have been of no force. It rested for its 
 validity on the act of Congress, the same in my opinion, as the Mis- 
 souri compromise line." 
 
SUPKEME court's DECISION, ETC. 35 
 
 And tliiis the ordinance of the Continental Congress of 1787, 
 became an act of the Federal Congress of 1789, and those who 
 wish to attack it, must attack it as that act, and not as that or- 
 dinance. And now, the question is, by what anthority ? As 
 an act of the old Congress, its validity had been questioned, there 
 being nothing in the articles of confederation to justify it. As 
 an act of the new Congress, it must find its authority independ- 
 ently of the one which had ceased to exist. Was it in the Con- 
 stitution? The ordinance, as ordinance, was made before the 
 Constitution, consequently not made under it. As an act of 
 Congress, it was made after the Constitution, but not under it, 
 for it is a clean and naked piece of abnegation and contradic- 
 tion of the Constitution from beginning to end. Here there is a 
 beginning — a starting point — necessary to be seen and con- 
 sidered at the commencement of every examination of the power 
 of Congress to legislate for Territories ; and at this point we see 
 a Territorial form of government adopted and enforced, made 
 before the Constitution, and contrary to its essential and funda- 
 mental principles ; made in the plenitude of absolute power, 
 and governing the Territory for its own good without reference 
 to its will, and as a father governs and takes care of his infant 
 children. And seeing all this, the question still recurs, by what 
 authority ? And the answer is, by the same authority in the 
 new Congress of 1789 as in the old one of 1787, and that was the 
 right of the owner to use what he owned, and of the sovereign 
 to rule within his sovereignty. There was no authority in the 
 articles of confederation to make the ordinance, yet Congress 
 made it, and with the approbation of all the States. There was 
 no authority in the Constitution to adopt it, yet Congress adopted 
 it, and with the approbation of two generations. The right to 
 hold land, and plant people upon it, was a right to take care of 
 the land and the people ; and that right became a duty in this 
 case, by the engagement entered with the ceding States to dis- 
 pose of the soil, and to build up political communities upon it. 
 The Congress of the Confederation made the engagement, and 
 executed it in the ordinance of 1787 ; the Constitution devolved 
 the engagement upon the new Congress,* which executed it in 
 
 * All debts contracted, and all engagements entered into before the adoption of 
 this Constitution, shall be as valid against the United States under this Constitution 
 as under the Confederation. — Article 6. 
 
36 EXAMINATIOl OF THE 
 
 the same way. One made the ordinance, the other adopted it ; 
 and the latter was the superior authority ; and from the moment 
 of the adoption, effaced the other ; so that, while descriptively 
 we may still quote the act as the ordinance of 1787, yet for 
 legal effect and virtue, and for all the purposes of right and 
 justice, it must be cited and considered as an act of Congress 
 of 1789. 
 
 The character of the ordinance — its provisions and enact- 
 ments — become the next inquiry ; for the new Congress having 
 adopted it, and made it its own, and enforced it, its provisions 
 became the measure of the authority which the Congress exer- 
 cised. And these will be found to be of the highest sove- 
 reign order — ^I'uling people without their consent ; giving and 
 taking away offices ; granting what it pleased as favor, nothing 
 as right; and even abolishing the rights of private property 
 without compensation : for many were the slaves set free in the 
 old French settlements of Indiana and Illinois without compen- 
 sation — set free for a public political object, without reference 
 to the rights, or regard to the will of the owners.* That act of 
 Congress, of August 7th, 1789, did all this, and with universal 
 approbation ; and certainly not under the Constitution ; for they 
 contradict it at all points. Certainly not by exercising the 
 powers of the States; for no State had ever exercised such 
 power. Certainly not under any written authority any where ; 
 for none such can be shown. How then did it get these pow- 
 ers ? Simply as proprietor, and as sovereign ! Tlie Federal 
 Congress of '89 got it as the Continental Congress of '87 got it — 
 as a right incident to ownership and jurisdiction, and as a duty 
 under the cession acts ; and the only limitation upon its power 
 was in the cession acts — in the obligation to dispose of the soil, 
 to populate it, and to build up future Kepublican States upon it. 
 And this it did, in the wisest manner for young, distant, and 
 miscellaneous communities, subject to be composed of the 
 vicious and the violent, as well as the good and the gentle — 
 
 * I consider the passage of this law to have been an assertion by the first Congress 
 of the power of the United States to prohibit slavery within this part of the Territory 
 of the United States ; for it clearly shows that slavery was thereafter to be prohibited 
 there, and it could be prohibited only by an exertion of the power of the United States, 
 under the Constitution ; no other power being capable of operating within that Terri- 
 tory after the Constitution took eflfect. — Mr. Justice Curtis. 
 
SUPEEME COUEt's DECISION, ETC. 37 
 
 holding tliem in a state of pui^ilage, as a father does his chil- 
 dren, training them by degress to self-government, and admit- 
 ting them to it when prepared for it. On no other ground than 
 that of absolute authority (limited only by the cession acts) over 
 these Territories can the enactments of this act of Congress be 
 accounted for ; and upon that ground I place it, disclaiming 
 any help from any quarter — from Federal or State authority, 
 single or combined. 
 
 The ordinance provided only for the government of the 
 Territories — not for the disposal of the lands within them ; and 
 hence the propriety of the clause in the Constitution to au- 
 thorize Congress to dispose of the territory, ^. e, the land ; and 
 to make needful rules and regulations resj)ecting It. ISTeither 
 that clause, nor any other in the Constitution, applied to the 
 government of the Territory, because that had been provided for 
 in the ordinance ; and the ordinance itself had been provided 
 for in the assumption by the new Federal Government of all 
 the engagements entered into by tlie old Continental Congress ; 
 and that engagement was promptly fulfilled by the adoption of 
 the ordinance among the very first acts of the new Government. 
 Though entitled for the Korth-"West Territory, this fundamental 
 Territorial law was intended for the South-West also, and was 
 applied to the Territories there as soon as they were ceded ; and, 
 in fact, became the basis of all the Territorial governments down 
 to the passage of the Kansaz-Kebraska Act in 1854. The ordi- 
 nance was the Constitution for the Territories, as the Constitu- 
 tion itself was for the States ; and both were parts of the same 
 system, and made at the time, (the ordinance a few days first,) 
 and by the same men, it may be said ; * and in concert : and 
 no Constitution could have been made but hand in hand with 
 the ordinance. That measure settled the slavery question ! 
 without which settlement no Constitution could have been 
 made. It settled it, by dividing the western Territory about 
 equally between the free and the slave States — the Ohio river, 
 (about equidistant from the northern lakes and the southern 
 gulf,) being taken as the dividing line ; and it made the free 
 
 * Besides the identity of feelings and of object, iu the members of the two bodies, 
 several were actually members of both at the same time: as, Mr. Madison, of Virginia; 
 Mr. Rufus King, of New York ; William Samuel Johnson, of Connecticut ; William 
 Blount, of North Carolina ; Charles Pinckuey, of South Carolina ; William Few, of 
 Georgia. 
 
38 EXAMINATIOIT OF THE 
 
 Territorj safe for the slave States by the stipulation in favor of 
 the restoration of fugitive slaves. The settlement of this ques- 
 tion smoothed the road to the formation of the Constitution. 
 The two bodies sat at the same time — the Continental Congress 
 at ISTew York, the Federal Convention in Philadelphia — and 
 were composed of men united in principle, and laboring for the 
 same object. The ordinance was formed the 13th of July, 
 abolishing slavery in the ISTorth-West, and autliorizing the re- 
 covery of fugitives from service : the corresponding clause in 
 the Constitution for the recovery of fugitives was adopted on 
 tlie 29th of August following. That brings them near together 
 in point of time, and shows the dependence of one upon the 
 other. Then comes identity of phraseology, both the same, and 
 so dainty in the selection of its words : * " Persons," instead of 
 slaves — " fugitives," instead of runaways — " held to service," 
 instead of being owned — " the party lawfully claiming," instead 
 of master ; and then the phrase " escaping," used in both, and not 
 proper in either as applicable to a runaway slave. The phrase 
 implies a condition which is not the normal state of the slave ; 
 as confinement, and danger. A prisoner escapes from custody ; 
 a soldier escapes death. Such identity of language, and so un- 
 usual in speaking of runaway slaves, and all amphibological, 
 could not have been hit upon except in concert, and as agreed 
 upon beforehand ; which in fact was the case : for the clause is 
 one of the compromises of tlie Constitution. And then the con- 
 gruity of their provisions, each providing for a want in its own 
 case, not in the other. The clause in the ordinance being made 
 for Territories, the recovery of the fugitive is limited to the 
 escapes from one of the original States to a Territory: the 
 clause in the Constitution being made for States, is confined to 
 escapes from one State to another. And why ? Because the 
 Constitution was made for States, and would not in any way act 
 
 * There shall be neither slavery nor involuntary servitude in the said Territory, 
 otherwise than in the punishment of crimes, -whereof the party shall have been duly 
 convicted, provided always, that any person escaping into the same, from whom labor 
 or service is lawfully claimed in any one of the original States, such fugitive may be 
 lawfully reclaimed, and conveyed to th(? person claiming his or her labor or service as 
 aforesaid. — Ordinance. 
 
 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 or labor may be due. — Constitution. 
 
SUPEEME court's DECISION, ETC, 39 
 
 upon a Territory.* Then the identity of the vote in each ; for in 
 each the vote upon the clause was the same — to wit : unani- 
 mous. Then the origin of the clause in each, being both from 
 the South ; the clause in the Ordinance coming from a com- 
 mittee of five, of which two were from Virginia and one from 
 South Carolina : that in the Constitution coming from Soutli 
 Carolina, moved by Mr. Pierce Butler, and seconded by his 
 colleague, Mr. Charles Pinckney. These similitudes in the two 
 clauses, and the instant adoption of the Ordinance by the first 
 Congress under the Constitution, identify them as parts of the 
 same system, the work of the same heads, and essential the one 
 to the other — that is to say, the Ordinance to the Constitution : 
 for if the slavery question had not been settled as therein done 
 — ^Territory divided and runaway slaves to be given up — there 
 would have been no Constitution ! and, consequently, no Union ! 
 So indispensable was the Old Congress to the Convention, 
 that it not only sat as long as the Convention did, but longer — 
 waited to receive its work, and provide for its adoption by the 
 States. Some members of the Convention, as Mr. Madison, 
 returned to the expiring Congress, and assisted at this good 
 work. The newly -formed Constitution was forwarded by Gen. 
 Washington, as President of the Convention, to the President of 
 the Congress, with a patriotic letter recommending its adop- 
 tion. The old Congress placed the instrument before the States, 
 urged its acceptance, and expired after that last act ; so that 
 the Congress and the Convention — the Ordinance and the Con- 
 stitution — were all parts of one harmonious whole. 
 
 The whole Constitution was carried out upon the principle of 
 ignoring the existence of Territories ; I speak of Territories, im- 
 plying political existence and organization, in contradistinction 
 to territory, signifying land ; and repeat that, as political enti- 
 ties, the Constitution ignores them. This may be seen in every 
 
 * The same in the clause for reclamation of fugitives from justice. It only applies 
 between State and State. " A person charged in any State with treason, felony, or 
 other crime, who shall flee from justice, and be found in another State, shall on demand 
 of the executive authority of the State from which he fled, be delivered up, to be re- 
 moved to the State having jurisdiction of the crime." No Territory included here 
 although State is four times mentioned, and the evil to justice is the same, whether the 
 fugitive flies to a land called State, or called Territory. And why this limitation to 
 States in a case equally exigent in Territories? Because the Constitution was not 
 made for Territories, and would not authorize any action upon them. 
 
40 EXAMINATION OF THE 
 
 clause — strongly in the two instances just given, and in those 
 previously given ; and still more strongly in the article which 
 relates to the establishment of courts. If there is one branch 
 of the government which, above all others, and more than all 
 others, concerns the whole body of the community, it is the ju- 
 dicial department. The administration of justice, civilly and 
 criminally, may reach every individual of a country. No age 
 or sex, no rank, no condition of rich or poor, no conduct — not 
 even that of virtue and merit itself — is secure from litigious in- 
 volvement. The first care of the organic and legislating power 
 is to give a judiciary to the people ; and this is w^hat our Con- 
 stitution has carefully done, as far as our system of government 
 required its action. It has provided for the trial of all cases 
 which could invoke the Federal authority — all between citizens 
 of different States, and between citizens and foreigners, and for 
 all cases arising under the Federal laws ; all cases, in short, 
 which were not left to the State courts ; so that between the 
 two systems the citizen should have a remedy for every wrong. 
 Did this extend to the Territories ? Kot at all ! The Federal 
 judiciary system does not reach them, nor the State systems 
 either. "What then ? are they without Courts ? By no means. 
 Congress supplies them, and in a way to show that they do not 
 do it under the Federal Constitution, or in conformity to any 
 State Constitution known in our America. They made judges 
 to hold office for a term of years, siibject to he removed hy the 
 President^ like any common office-holder ; and several have been 
 so removed : and they gave codes of law, both civil and crim- 
 inal, not only over the organized Territories, reduced to our 
 possession, but over the wild territory, still in the hands of the 
 Indians. By the decision of the Supreme Court, this would 
 seem to be unconstitutional and void — a consequence which 
 seemed to sit hard on one of the brother justices who had acted 
 under these laws, and who, while agreeing in the decision upon 
 the Missouri Compromise Act, did it for a difierent reason from 
 that which would have condemned his own action.* Certainly 
 
 * " It is due to myself to say, that it is asking much of a judge, who has for nearly 
 twenty years heen exercising jurisdiction, from the western Missouri line to the Rocky 
 Mountains, and, on this understanding of the Constitution, inflicting the extreme pen- 
 alty of death for crimes committed where the direct legislation of Congress was the only 
 mle, to agree that he had heen aU the while acting in mistake, and as an usurper.'" — 
 Mr. Justice Catron. 
 
SUPREME COUET's DECISION, ETC. 41 
 
 all this legislation was incompatible with the Constitution, but 
 no violation of it, because the Constitution did not reach these 
 Territories, either civilized or savage. Finally, and to make 
 clear this point, the clause in the original proposition to make 
 needful rules and regulations respecting the territory of the 
 United States, also proposed to authorize Congress to institute 
 temporary governments in the new States arising therein — 
 which was struck out, and properly ; the ordinance having al- 
 ready made provision for such governments. 
 
 People of the slave States have a prejudice against that or- 
 dinance as being a northern measure, put upon them by the 
 North, and from hostility to slavery. 'No conception could be 
 more unfounded. That ordinance, in all its forms and features, 
 in its inception, in its consummation, and in the cause which 
 gave rise to it, was a southern measure, given by the South to 
 the country — known to everybody as such at the time — and 
 provably so now. It grew out of the Virginia cession, (the 
 instant that cession was made,) and the other expected cessions 
 from ISTortli Carolina and Georgia. It was these cessions which 
 gave territory ; others were little better than barren quit-claims. 
 Virginia gave the Northwest ; Georgia and North Carolina the 
 Southwest ; * and the delegates of these States naturally and 
 
 * South Carolina believed at the date of her cession, (August 9, 1787,) that she 
 was ceding a large territory quite out to the Mississippi ; but it was afterwards found 
 to be small. Still, her deed of cession, though barren inland, is rich in showing her good 
 will to the Union, (the fonnation of which required these cessions ;) and also in showing 
 her good will to the ordinance ; the cession having been a month after it, and when 
 she expected her ceded Territory to be governed by it. Of tliis cession one of the 
 dissenting judges says : 
 
 " But this Northwestern Territory was not the only Territory, the soil and jaris- 
 diction whereof were then understood to have been ceded to the United States. The 
 cession by South Carolina, made in August, 1787, was of ' aU the territory included 
 within the river Mississippi, and a line beginning at that part of the said river which 
 is intersected by t e southern boundary of North Carolina, and continuing along the 
 said boundary line until it intersects the ridge or chain of mountains which divides 
 the eastern from the western waters ; then to be continued along the top of the said 
 ridge of mountains, until it intersects a line to be drawn due West from the head of 
 the southern branch of the Tugaloo River, to the said mountains ; and thence to run a 
 due West course to the river Mississippi.' It is true that by subsequent explorations it 
 was ascertained that the source of the Tugaloo River, upon which the title of South 
 Carolina depended, was so far to the northward, that the transfer conveyed only a 
 naiTow slip of land, about twelve miles wide, lying on the top of the ridge of moun- 
 tains, and extending from the northern boundary of Georgia to the southern boundary 
 
42 EXAMINATION OF THE 
 
 properly, in tlie Continental Congress, took the lead in providing 
 for the government of the districts which had been their own, 
 and of which they were the donors to a new sovereign. The 
 Yirginia deed of cession was delivered in March, 17S4 ; Mr. 
 Jefferson, then a delegate in Congress, and one of the signers 
 of the Virginia deed, immediately moved for a committee to 
 bring in a bill to give a government to the ceded territory. 
 Leave was granted — himself chairman of the committee. It 
 was a proper occasion for the organizing mind of that law-giver 
 and statesman, and well did he avail himself of it. In a month 
 he reported his plan. It was one of the most perfect pieces of 
 legislation that ever came from the human mind — a code in 
 itself, and divided into two parts, and each part complete for 
 its object ; the first part, to train up young republican commu- 
 nities for the exercise of sovereign rights ; the second, to secure 
 to the same communities, when ripened into States, the perma- 
 nent blessings of civil and religious liberty. Plato had his 
 imaginary Eepublic, and Sir Thomas More his mythical Utopia, 
 for which they framed imaginary governments, founded in the- 
 ories of human perfectability ; but Jefferson had a real field to 
 work in — a vast domain, fertile and beautifiil, extending from 
 the Alleghanies to the Mississippi, and from the northern lakes 
 to the southern gulf, (for it was known that Korth Carolina and 
 Georgia would cede,) in which to plant real communities, and 
 to build up real republics ; and nobly did he do his work — how 
 nobly the States attest which have grown up upon it. And for 
 seventy years it stood, immarred and undefaced, and spread far 
 
 of North Carolina. But this was a discovery made long after the cession, and there 
 can he no douht that the State of South Carolina, in making the cession, and the 
 Congress in accepting it, viewed it as a transfer to the United States of the soU and 
 jurisdiction of an extensive and important part of the unsettled territory ceded by 
 the Cro^vn of Great Britain by the treaty of peace, though its quantity or extent 
 then remained to be ascertained." — Mr. Justice Curtis. 
 
 To the same effect spoke another of the justices — one from the West, though not 
 exactly in the predicament of Mr. Justice Catron, thus : — " There is a law of Congress 
 to punish our citizens for crimes committed in districts of country where there is no 
 organized government. Criminals are brought to certain Territories or States, desig- 
 nated in the law, for punishment. Death has been inflicted in Arkansas and in Mis- 
 Eouri, on individuals, for murders committed beyond the limit of any organized Terri- 
 tory or State; and no one doubts that such a jurisdiction was rightfully exercised. If 
 there be a right to acquire territory, there necessarily must be an implied power to 
 govern it." — Mr. Justice McLean. 
 
SUPREME COUEt's DECISION, ETC. 43 
 
 wider than he had foreseen — from the Mississippi to the Rocky 
 Mountains — from these to the shores of the Pacific. For, Avherever 
 a Territorial government has been formed on our continent in all 
 this long time, and over all this wide expanse — from '87 to '54 — 
 from Florida to Oregon — the ordinance of '87 has been its basis. 
 Even the Kanzas-Nebraska act, in all that is good and wise in 
 it, is copied from that fundamental law. 
 
 The ordinance which he (Mr. Jefferson) reported, passed 
 the Congress of the Confederation — ^became the law — was in 
 force for three years, with all the wise and beneficent provisions 
 now in it — one only excepted — and until it was repealed in 1787. 
 He reported it with an anti-slavery clause, the prohibition to 
 take effect after the year 1800 : that is to say, sixteen years after 
 the passing of the ordinance.* This clause, on the motion of 
 Mr. Spaight, some time Governor of Korth Carolina, was struck 
 out — the reason being that it did not contain a provision for the 
 recovery of fugitives from service. For the rest, the ordinance 
 passed — went into operation — and remained in force until super- 
 seded by the amended, and, in some degree, new-modeled ordi- 
 nance of 1787 — a southern measure in all its aspects. It was passed 
 in a sitting of the Congress in which the slave States present 
 were as near as could be, two to one ; to wit : five to three ; and 
 where the slave State delegates were exactly two to one over 
 the free State members. The power of the slave States was 
 there : Virginia, the two Carolinas, Georgia. It was reported 
 from a committee of which the majority were from slave States, 
 and passed unanimously — every State voting for it, and every 
 delegate from every State, except one from New York.f This 
 
 * The clause was in these words : " That after the year 1800 of the Chi-istian era, 
 there shall be neither slavery nor involuntary servitude in any of the said States, (those 
 to be formed out of the North-west Territory,) otherwise than in punishment of crimes 
 whereof the party shall have been convicted to have been personally guilty." 
 
 f The committee consisted of Messrs. Carrington and R. H. Lee, of Virginia ; Mr. 
 J. Kean, of South Carolina; Mr. Dane, of Massachusetts ; Mr. Smith, of New York. 
 The ordinance was reported, Wednesday, the 11th of July, read a first time, and ordered 
 to a second reading the next day ; read the second time the next day, and ordered to a 
 third reading on the ensuing day, (Friday, 13th ;) was read the third time that day, and 
 unanimously passed. The States present, and voting for it, were : Massachusetts, New 
 York, New Jersey ; (three non-slaveholding :) Delaware, Virginia, North Carolina, 
 South Carolina, Georgia ; (five slave-holding.) The act of Congress for continuing it 
 in force passed the House with the same readiness, receiving its three readings in four 
 
44 EXAMINATION OF THE 
 
 amended ordinance contained the anti-slavery clause, with the 
 fugitive slave recovery clause, (without which latter it could not 
 have been passed ;) and it was known at the time that this 
 clause, and the parallel one in the Constitution, were parts of 
 one system, necessary to the formation of the Constitution ; and 
 putting the recovery of fugitives from service on the same foot- 
 ing in the Territories as in the States. In the anti-slavery clause 
 of this amended ordinance, it is to be remembered there was a 
 wide departure from the terms of Mr. Jefferson's provision of 
 1784, in this : that by his provision the abolition of slavery in 
 the Territory did not take effect until sixteen yeai-s after the 
 passing of the ordinance, giving the owner time to be indem- 
 nified in labor for his care and expense about the young slaves ; 
 but the amended act abolished all ownership at once, without 
 reference to the rights or interests of the owner. And it is this 
 amended act, thus governing a young community as children 
 under age, and thus seizing private property for an object of 
 public policy, that the Congress of 1789 adopted, and made a 
 statute of the United States ; and in which Congress, as Mr. 
 Justice Curtis has taken the trouble to ascertain, there were 
 fourteen members who had been delegates in the Federal Con- 
 vention which made the Constitution — Mr. Madison one of them. 
 I must be allowed to make a stand at this point — and upon 
 this point — and to consider it as the authoritative exemplifica- 
 tion, and assertion, of the power of Congress over the Territories ; 
 going the whole length of governing a Territory as it pleased, 
 and legislating upon slavery to the extent of the instant and un- 
 compensated emancipation of a great number of slaves.* 
 
 days (16th to 21st July) — without objection or division, as far as can be seen from the 
 journals and debates. And thus, the record history of the day proves that ordinance to 
 he a southern measure — southern in all its aspects — conception and consummation, 
 and the cause which gave rise to it. Yet in the South and West it is generally regarded 
 as an invidious measure, imposed upon the slave States by the free — an error much cul- 
 tivated of late, but taking its rise in the great debate on nullification between Mr. 
 Webster and Mr. Hayne, and in the prominent part assigned by the former to Mr. 
 Dane, of Massachusetts, in the formation of that ordinance — a prominence excusable 
 in oratory, but not justifiable in history. 
 
 * The freed were in great numbers, and greatly to the loss and discontent of the 
 owners, which led to many applications to suspend that part of the ordinance, and 
 many legislative contrivances in Indiana and Illinois to evade it — resulting in many 
 lawsuits, either at home or in the neighboring slave States of Missouri and Kentucky — 
 
SUPREME COUET's DECISION, ETC. 45 
 
 It miglit be supposed that this was sufficient, (and it cer- 
 tainly is so,) to show that the Congress of the Constitution made 
 the ordinance of '87 its own, and must stand for its author by 
 the adoption they gave it. But I am not yet done with the 
 Congress sanctions of this measure. Five times afterwards it 
 was sanctioned by one or other House of Congress — as far as a 
 refusal to impair it can become a sanction. It has been seen 
 that the inhabitants of Indiana and Illinois — (Vincennes, Kas- 
 kaskia, Cahokia, Prairie de Rocher, &c.,) — were discontented at 
 the loss of their slaves, and had recourse to legislative contri- 
 vances, and judicial reclamations, to evade the eifect of the ordi- 
 nance. They also applied to Congress to suspend, for a limited 
 term, the anti-slavery clause in favor of the rights of the slave- 
 holder — all in vain — each refusal (and there were five of them,) 
 operating as a congressional sanction of the measure. In one 
 of these refusals, the report of the committeej drawn by Mr. 
 Randolph, states the reasons for refusing to grant the request 
 of the jDetitioners, with so much clearness and beauty of lan- 
 guage, and with such elevated views of national policy, and pays 
 so just a tribute to the " sagacious and benevolent" ordinance, 
 and so well pronounces the danger and inexpedience of impair- 
 ing — a danger and inexpedience since fully realized in the ab- 
 rogation of the parallel case of the Missouri Compromise Act — 
 that all may read it with pleasure who either admire chaste writ- 
 ing, or enlightened statesmanship. It is here put in a note for 
 their perusal.* 
 
 the freed people always preferring to try their case in a slave State, where they found 
 most favor. Of this, Mr. Senator Breese, of Elinois, well acquainted ■ndth what he re- 
 lated, hore testimony in the Senate in the debate on an Oregon bill in '48. Replying 
 to a member who thought a free person of color could not get a fair trial in a slave 
 State, he said : " In all his observations and experience in cases of this sort, and they 
 have not been inconsiderable, he has discovered that the courts of the slave States have 
 been more liberal in their adjudications upon the question of slavery than the courts of 
 Bome of the free States. The courts of one of them (Hhnois) had uniformly decided 
 against the right of freedom claimed by persons held in bondage under a modified form 
 of servitude recognized by its old Constitution. In precisely similar cases, the courts 
 of Kentucky and Missouri, to which States such persons had been taken, decided in 
 favor of the right to freedom. And it is a remarkable fact that in all cases in these 
 States, and he believed in other slave States, where there was any doubt about the 
 right to hold the person in slavery, the decision has been invariably in favor of the 
 right to freedom." 
 
 * "The rapid population of the State of Ohio sufHciently evinces, in the opinion of 
 your committee, that the labor of slaves is not necessary to promote the growth and 
 
46 EXAMINATION OF THE 
 
 Having seen what tlie first Congress, and some of its early- 
 successors, thought of this ordinance, we will now look into the 
 opinion of some of the States — beginning with Yirginia — a 
 State which from its character and weight in the Union, its 
 generation of illustrious men, and its close connection with the 
 subject as the great donor of public lands, should be of the 
 greatest authority in this case. Beginning with Yirginia, so 
 much bound, and so well able to scrutinize the conduct of Con- 
 gress in executing the high trust confided to it : what did she 
 say to this ordinance ? Eepulse it ? No ! But took it to her 
 bosom, and embraced it with maternal affection. As early as 
 December 80th, 1788, the Yirginia General Assembly, by a 
 solemn act, sanctioned the ordinance in agreeing to a single al- 
 teration which the Continental Congress asked to be made in it, 
 and which could not be made without her consent. Tliat was 
 the sanction of Yirginia, the year after the ordinance was made, 
 and the year before it was adopted by Congi*ess. She saw noth- 
 ing in it beyond the power of the Congress of the Confederation 
 to achieve ; and she was then the sole party to it on the side of 
 the States, being up to that time the only effective grantor of 
 public lands. Next came North Carolina, another effective 
 donor, ceding her western territory in April, 1790 — the year 
 after Congress had adopted the ordinance ; and in her deed of 
 cession made it an article of compact, irrevocable by Congress, 
 to grant to her ceded territory, (now the State of Tennessee,) 
 the whole ordinance of '87, with the single stipulation that 
 Congress should not emancipate slaves — a clear admission that 
 Congress might otherwise do it.* Twelve years after came 
 
 settlement of colonies in that region. That this labor, demonstrably the dearest of 
 any, can only he employed to advantage in the cultivation of products more valuable 
 than any known to that quarter of the United States ; that the committee deem it 
 highly dangerous and inexpedient to impair a provision wisely calculated to promote 
 the happiness and prosperity of the Northwestern country, and to give strength and 
 security to that extensive frontier. In the salutarj' operation of this sagacious and 
 benevolent restraint, it is believed that the inhabitants will, at no very distant day, 
 find ample remuneration for a temporary privation of labor and of emigration." — 
 l^Committee Reports, 1 806.] 
 
 * Fourthly. That the territory so ceded shall be laid out and formed into a State 
 or States, containing a suitable extent of territory, the inhabitants of which shall 
 enjoy all the privileges, benefits, and advantages set forth in the ordinance of the late 
 
 Congress for the government of the Western Territory of the United States 
 
 Provided dicays. That no regulation made, or to be made by Congress, shall tend to 
 emancipate slaves. — North Carolina Cession Deed, 
 
SUPREME COTJEt's DECISION, ETC. 47 
 
 Georgia — the last of the effective ceding States, and in her deed 
 of cession made it also an irrevocable article of compact, the 
 same as North Carolina had done, that the ordinance should 
 be extended to her ceded territory — now the States of Alabama 
 and Mississippi. The stipulation was in these words : (and that 
 of North Carolina was the same : ) — 
 
 " That the territory thus ceded shall form a State, and he admitted 
 as such into the Union as soon as it shall contain 60,000 /ree inhabi- 
 tants, or at an earlier period, if Congress shall think expedient^ on the 
 same conditions and restrictions, with the same privileges, and in the 
 same manner provided in the ordinance of Congress of the \^th of 
 July, 1787, for the government of the Western Territory of the United 
 States, ivhich ordinance shall, in all its parts, extend to the territory 
 contained in the present act of session, that article only excepted which 
 forbids slavery ^ 
 
 This was in the year 1802; and thus we have, in a period of 
 fourteen years, tlie sanctions of the three great ceding States — 
 and they Southern States — to this ordinance ; Virginia, as a 
 question of expediency, accepting the abolition of slavery on 
 the part she ceded; North Carolina and Georgia, as a like 
 question of expediency, retaining slavery in the parts ceded by 
 them. It is needless to add that all the other nominally ceding 
 States, (South Carolina inclusive,) gave in their sanction to the 
 ordinance — after it was made, as well through their delegates in 
 the old Congress when it was made — and through their repre- 
 sentatives in the first Federal Congress when it was adopted. 
 
 I return to the Congress — the Federal Congress, and give two 
 strong instances of action on slavery in that body — South-west- 
 ern Territory, and original United States Territory ; one in 1798, 
 the other in 1806. The first was in organizing the Mississippi 
 Territory, which was done by spreading the ordinance of '87 
 over it ; the whole, with the exception of the anti-slavery clause, 
 and that clause having been proposed to be applied to it also, it 
 was resisted solely upon expedient grounds — not a word being 
 uttered against the power of Congress to do so.* But a provi- 
 
 * Mr. Harper, of South Carolina : " In the Northwestern Territory the regulation 
 forbidding slavery was a very proper one, as the people inhabiting that part of the 
 country were from parts where slavery did not prevail, and they had, of course, no 
 slaves among them ; but in the Mississippi Territory it would be very improper to 
 make such a regulation, as that species of property already exists, and persons emigrat- 
 
48 EXAMINATION OF THE 
 
 sion in restraint of the growtli of slavery there was adopted, (on 
 the motion of Mr. Kobert Goodloe Harper, of South Carolina,) 
 in forbidding the importation of slaves from any port or place 
 without the limits of the United States, and making such imjDor- 
 tation a penal offence, punishable by fine, and giving freedom 
 to the slave.* This was a strong measure, especially in its pen- 
 alty, and marks the difference between States and Territories, 
 being ten years before Congress would have the constitutional 
 right to prohibit such importation into one of the old States. 
 
 The other instance was in the year 1806, when Mr. David R. 
 Williams, then, and for six years afterwards, a leading member 
 from South Carolina, moved, (Feby. 7,) that a committee be 
 
 ing there from the Southern States would cany with them property of this kind. To 
 agree to such a proposition would, therefore, be a decree of banishment to all the per- 
 sons settled there, and of exclusion to all those intending to go there. He believed 
 it could not, therefore, bo carried into effect, as it struck at the habits and customs of 
 the people." Mr. Giles, of Virginia: "Did not know whether the tendency of the pro- 
 posed measure was calculated to ameliorate the condition of the class of men alluded 
 to : he believed not. On the contrary, it was his opinion that, if the slaves of the 
 Southern States were permitted to go into the Southern country, by lessening the num- 
 ber in these States, and spreading them over a large surface of country there would be, 
 a greater probability of ameliorating their condition." Mr. John Nicholas, of Virginia, 
 and Mr. Rutledge, of South Carolina, spoke against the expediency of the measure ; 
 and also some members from the free States — among them Mr. Harrison Gray Otis, 
 of Massachusetts, who was glad to have it in his power to show his indisposition to in- 
 terfere with the Southern States in their management of this species of property. 
 " He thought it was not the business of those who had nothing to do with that kind 
 of property to interfere with that right; and he really wished that the gentlemen who 
 held slaves might not be deprived of the means of keeping them in order. If the 
 amendment prevailed, it would declare that no slavery should exist in the Natchez 
 country. This would not only be a sentence of banishment, but of war. An immedi- 
 ate insurrection would take place, and the inhabitants would not be suffered to retire 
 in peace, but would be massacred on the spot." None of these speakers, nor anybody 
 else at that time, saw any thing unconstitutional in Congress legislating upon slavery 
 in Territories, and abolishing it in such districts if it thought proper. 
 
 * Section 7. "That from and after the establishment of the aforesaid government, 
 it shall not be lawful for any person or persons, to import or bring into the said Mis- 
 sissippi Territory, from any port or place without the limits of the United States, or 
 to cause to be so imported or brought, or knowingly to aid or assist in so importing or 
 bringing any slave or slaves ; and that every person so offending, and being thereof con- 
 victed before any court witliin the said Territory, having competent jurisdiction, shall 
 forfeit and pay for each and every slave so imported or brought, the sum of three hun- 
 dred dollars ; one moiety for the use of the United States, and the other moiety for 
 the use of any person or persons who shall sue for the same ; and that every slave, so 
 Imported or brought, shall thereupon become entitled to, and receive his or her free- 
 dom." lAct of April 7, 1798.] 
 
SUPEEME' COUKt's DECISION, ETC. 49 
 
 appointed, " to inquire wither any, and if any, what additional 
 provisions were necessary to prevent the importation of slaves 
 into the Territories of the United States." The committee was 
 granted, and tlie members consisted ahnost exclusively of slave 
 State representatives, to wit : Mr. David R. Williams, of South 
 Carolina; Mr. John G. Jackson, of Virginia; Mr. Thomas 
 Spalding, of Georgia ; Mr. James Kelly, of Pennsylvania ; and 
 Mr. William Blackledge, of North Carolina : Mr. Macon, of 
 North Carolina, the sj^eaker, making the appointments. On the 
 27th of March, the committee reported, and brought forward a 
 bill, ^'- to prohibit the iritroduction of slaves into the Mississippi 
 Territory^ and the Territory of Orleans / " which was read a 
 first, and a second time, and committed to a Committee of the 
 whole House ; but was not reached during the brief remainder 
 of the season. Tlie proceedings upon it, however, as far as they 
 went, are pregnant with pertinent reflection. The motion was 
 made by a Southern member ; the committee, appointed by a 
 Southern speaker, were four to one from the slave States : the 
 bill seems to have been unanimously reported ; it applied both 
 to the original and the newly acquired territory, and in all the 
 steps in relation to it — raising the committee, reading the bill, 
 referring it to the Committee of the whole House ; it was treated 
 as a mere ordinary piece of legislation, to the consideration of 
 which there was no objection. Though a silent mode of showing 
 an opinion, there could not have been a clearer one in favor of 
 the constitutionality of the proceeding, nor a stronger declara- 
 tion that the House saw no difference in the power of Congress 
 over the old and the new territory.* 
 
 In addition to these States, and the Congress, there was an- 
 other authority which acknowledged this ordinance, and 
 sanctioned it, and provided for it — and with power to do so ; and 
 that in the critical moment of its existence in the government's 
 transition from the confederate to the Union State. That 
 
 * I have caused search to be made in the files of the House for this bill, but without 
 effect — it belonging to the period when the capital was burnt by the British, and the 
 records before 1814 in great part destroyed. But the precision of the journal shows the 
 character of the bill, — '■'■ to prohibit the. introduction of slaves into the 3Iississippi Territory^ 
 and Territory of Orleans^" This was a universal prohibition, and evidently intended to 
 restrain the great increase of slaves in those two Territories — the considerate and 
 thinking men of that day looking forward to the time, when, in that extreme south, 
 the black population might become too numerous for the tranquillity and safety of the 
 white race. a 
 
50 EXAMINATION OF THE 
 
 autliorit J is the Constitution itself ; a very competent authority, 
 and which provided for the ordinance co-incidently with its 
 creation, and in terras clear in themselves, and well understood 
 at the time, though I believe forgotten now — although they 
 stand in the Constitution, and nothing else has been found for 
 them to attach to. It is in that clause of Article YI. which 
 says : — 
 
 " All debts contracted, and all engagements entered into, before the 
 adoption of this Constitution, shall be as valid against the United States 
 under this Constitution as under the Confederation." 
 
 Here are two classes of obligations provided for — " debts 
 contracted, and engagements entered into;" — and the framers of 
 our Constitution were not the men to provide for two things 
 when they only knew of one ; nor even then to use two words 
 when one was enough ; nor to use any word which had not an 
 object of its own to attach to. The first class of obligations here 
 referred to — the debts — readily commanded their appropriate 
 attention, and were long enough a weight upon the country to 
 be understood and remembered : but what of the other — " en- 
 gagements entered into," — hardly remembered, or understood 
 at all, and nothing to call attention to it, or any use for it 
 since the 7th day of August, Anno Doinini, 1789 — the day 
 on which the first Congress of the Constitution provided for 
 the engagements which the Congress of the Confederation had 
 entered into with the land-ceding States. The adoption of the 
 ordinance of '87, on that day, was the performance of that en- 
 gagement. The parties to it were the Congress of the Confeder- 
 ation and the land-ceding States — all of them ; for it was known 
 at the time that North Carolina and Georgia would follow the 
 example of Virginia in ceding theirs. The engagement itself 
 v:as,—frst, to dispose of the ceded land, — secondly^ to build up 
 political communities upon it. And the Constitution provided 
 for the fulfilment of both branches of the engagement, and the 
 adoption of the ordinance fulfilled the political part of the engage- 
 ment, — building up political communities on the Territory ; and 
 the clause in the Constitution for disposing of the Territory, and 
 other property of the United States, followed by acts of Congress 
 to sell the public land, fulfilled the other. This latter clause, 
 with its authority to make needful rules and regulations respect- 
 ing the territory, &c., has been, in latter times, generally under- 
 
SUPREME court's DECISION, ETC. 51 
 
 stood as authorizing tlie political action of Congress over the 
 Territories. The history of the times shows this to be an error, 
 so far as giving a government to the Territory is to be under- 
 stood. The clause, as first proposed by Mr. Madison, included 
 temporary governments for the new States arising on this ter- 
 ritory. Referred to the Committee of Detail, of which Gouver- 
 neur Morris was chairman, it was returned with " governments" 
 struck out, and adopted by the Convention as it now stands,* the 
 " temporary governments" omitted, and " unappropriated lands" 
 substituted by "territory or other property," and rules and 
 regulations added — significant alterations, and which go to re- 
 pulse the government power, and to identify " territory " as 
 meaning land. This makes it clear that this needful rule and 
 regulation clause did not include government, and that it was 
 struck out, and properly because the ordinance had provided for 
 these governments — both Territorial and State. I know it has 
 been much, and most respectably relied on, that this clause gave 
 to Congress both the right to govern these Territories, and to 
 dispose of the lands within them. I think not, with respect to 
 the government. As to the disposition of the territory, and the 
 rules and regulations respecting it, I think Congress would have 
 as much power in making this disposition and establishing these 
 rules and regulations as an}'- other land-holder ; and that would 
 certainly include, not merely its sale, but the choice of labor, 
 free or slave, and the entrance of persons upon it. 
 
 It is remarkable that this ordinance of an expiring Govern- 
 ment was its last act, and its adoption the first act (nearly) of 
 the nascent Government, born out of its ruins ; the former, a 
 circumstance which has been dwelt upon (of late) to the disad- 
 vantage of the expiring Government, as an act of authority when 
 
 * The entries in relation to tMs clause, stand thus in Mr. Madison's debates in the 
 Federal Convention : — 
 
 " Jlr Madison submitted, in order to be referred to the Committee of Detail, the 
 following powers, as proper to be added to those of the general legislature. 
 
 " To dispose of the unappropriated lands of the United States. 
 
 " To institute temporary governments in the new States arising therein." 
 These propositions were referred to the Committee of Detail, August 18, 1787. 
 Mr. Gouverneur Morris moved to take up the following : — 
 
 " The legislature shall have power to dispose of, and make all needful rules and 
 regulations respecting the territory or other property belonging to the United States ; 
 and nothing in this Constitution contained shall be so construed as to prejudice any 
 claims, either of the United States, or any particular States." [August 30.] 
 
52 * EXAMINATION OF THE 
 
 power was departing, but wliicli history classes with tlie pru- 
 dent foresight of a wise man dying, and putting his affairs in 
 order for the benefit of his successor ; for such was the conduct 
 of the last Congress of the expiring Confederation. It knew it 
 was expiring ; it knew it was to be succeeded by a new Govern- 
 ment ; it knew it had entered into engagements which others 
 would have to fulfil ; and it wisely and honestly put these engage- 
 ments into perfect form, in the revised and amended ordinance, 
 that its successor should have nothing to do but adopt its work. 
 And it should never be forgotten that this ordinance was the 
 work of the southern land-ceding States, of Yirginia, the two 
 Carolinas, and Georgia, whose power did it. As to its adoption 
 by the first federal Congress, it seems to have been unanimously 
 done; the journals and debates showing no division ; and that 
 Congress knew what it was about was very probable, both from 
 the character of the members, their familiarity with the events 
 of the day, and the fact that fourteen of them had been mem- 
 bers of the Convention which framed the Constitution. 
 
 Such is the testimony of States, of Congresses, and of the 
 Constitution in favor of this ordinance ; but we have another of 
 a difierent character, partaking of the judicial, as the others do 
 of the legislative autJiority, and hardly less entitled to respect. 
 I speak of St. George Tucker, (the father,) some time one of the 
 judges of the General Court of Virginia, professor of law in the 
 ancient University of William and Mary, and editor of an 
 edition of Sir William Blackstone's Commentaries, with notes 
 and references to American law, to assist the American law- 
 student. In one of these notes, (Appendix D., vol. 1.) written 
 some fifty-five yeai*s ago, when the history of the formation of 
 tliis Government was part of his daily current knowledge, he 
 thus speaks of this ordinance, and the engagement clause in the 
 Constitution : — 
 
 " Congress, under the former Confederation, passed an ordinance, 
 July ISth, 1787, for tlie government of the territory of the United 
 States north-west of the Ohio, which contained, among other things, six 
 articles, which were to be considered as articles of compact between the 
 original States and the people and States of the said territory, and to 
 remain unalterable, unless by common consent. These articles appear 
 to have been confirmed by the sixth article of the Constitution, which 
 declares that all debts contracted, and all engagements entered into 
 
SUPEEME court's DECISION, ETC. 53 
 
 before the adoption of the Constitution, shall be as valid against the 
 United States, under the Constitution as under the Confederation." 
 
 Such is the coiitemporaiy evidence of an eminent judge, 
 writing for the information of the young generation, free from 
 question or excitement, and in daily intercourse with the men 
 who founded the Government. To him it was all clear that the 
 ordinance was made to fulfil the engagement to the land-ceding 
 States, and that the sixth article in the Constitution was put in 
 to devolve the fulfilment upon the new Government. 
 
 It is observable that the Supreme Court, in its opinion, tates 
 no notice of Judge Tucker's application of this engagement 
 clause in the Constitution, and without applying it in the same 
 way, is somewhat indistinct in its own application of it, result- 
 ing, possibly, from having read the clause in three parts instead 
 of two ; " debts, contracts, and engagements entered into," in- 
 stead of " debts contracted, and engagements entered into." It 
 seems, in fact, merely referred to to illustrate, by analogy, the 
 meaning of the clause in relation to the territory and other 
 property of the United States.* As providing for the ordinance, 
 
 * " The necessity of this special provision in relation to property and the rights of 
 property held in common by the confederated States, is illustrated by the first clause 
 of the sixth article. This clause provides that ' all debts, contracts, and engage- 
 ments entered into before the adoption of this Constitution, shall be as valid against 
 the United States under this Government as under the Confederation.' This provision, 
 like the one under consideration, was indispensable if the new Constitution was adopted. 
 The new Government was not a mere change in a dynasty, or in a form of government, 
 leaving the nation or sovereignty the same, and clothed with all the rights, and bound 
 by all the obligations of the preceding one. But, when the present United States 
 came into existence under the new Government, it was a new political body, a new 
 nation, then for the first time taking its place in the family of nations. It took 
 nothing by succession from the Confederation. It had no right, as its successor, to any 
 property or rights of property which it had acquired, and was not liable for any of its 
 obligations. It was evidently viewed in this light by the framers of the Constitution. 
 And as the several States would cease to exist in their former confederated character 
 upon the adoption of the Constitution, and could not, in that character, again assemble 
 together, special provisions were indispensable to transfer to the new Government the 
 property and rights which at that time they held in common ; and at the same time 
 to authorize it to lay taxes and appropriate money to pay the common debt which they 
 had contracted ; and this power could only be given to it by special provisions in the 
 Constitution. The clause in relation to the territory and other property of the United 
 States provided for the first, and the clause last quoted provided for the other." — 
 Opinion of the Court. 
 
54 EXAMINATION OF THE 
 
 it does not seem to be referred to at all. And, it may be, that 
 admitting the force of the ordinance in the old territories, the 
 Court saw no necessity to fortify it. But that admission is so 
 hedged in with qualifications, limiting it to the old territory, 
 and so hampered with dependence upon the compacts, and so 
 stinted in its reduction to the combined power of Congress and 
 the States, that I have deemed it just to trace it through its 
 history, and place it upon its proper foundation : 1. The broad 
 and solid foundation of sovereignty. 2. Proprietorship. 3. The 
 Constitution. 4. The adopting act of Congress. 5. Tlie sanc- 
 tion of many Congresses, and of all the land-ceding States. And 
 thus fortified, it becomes the strongest measure over persons 
 and property, in Territories, which the history of our legislature 
 affords; as much stronger than the Missouri Compromise Act 
 as the abolition of existing slavery, without regard to proprie- 
 tary rights, is stronger than the prospective prohibition of 
 slavery in places where it never existed. 
 
 SECOND STAGE OF THE EXAMINATION : POWER OF 
 CONGRESS OYER THE NEW TERRITORIES. 
 
 11. In the acquisition of Louisiana came the first new terri- 
 tory to the United States, and over it Congress exercised the 
 same power that it had done over the original territory. It saw 
 no difference between the old and new, as the Court has done, 
 and governed both, independently of the Constitution, and in- 
 compatibly with it, and by virtue of the same right — Sover- 
 eignty and Proprietorship ! the right converted into a duty, 
 and only limited by the terms of the grant in each case. 
 
 Louisiana was acquired in the spring of 1803 : an extra ses- 
 sion of Congress was called to ratify the treaty of acquisition, 
 and to provide for the occupation and government of the new 
 possession. The called session met in October, and immediate- 
 ly passed an act providing for the two objects — the first section 
 of the act putting the armed force, military and naval, at the 
 disposition of the President to enable him to receive the pos- 
 session ; the second, providing for a temporary government : and 
 which was in these words : — 
 
SUPEEME court's DECISION, ETC. 55 
 
 " That until the expiration of the present session of Congress, unless 
 provision for the temporary government of the said territories be sooner 
 made by Congress, all the military, civil and judicial powers exercised 
 by the officers of the existing government of the same, shall be vested 
 in 6uch persons, and shall be exercised in such manner, as the President 
 of the United States shall direct for maintaining and protecting the in- 
 habitants of Louisiana in the free enjoyment of their liberty, property 
 and religion." 
 
 This bill emanated from a select committee, of which Mr. 
 John Randolph was chairman ; Messrs. John Rhea, of Tennes- 
 see, "William Hoge, of Pennsylvania, Gaylord Griswold, of 
 'New York, and George Michael Bedinger, of Kentucky, were 
 members : but those who are familiar with the inside working 
 of the legislative machinery, know very well that bills of this 
 particular kind — to carry into effect a measure of the Govern- 
 ment, originating in a treaty with a foreign power — always come 
 down from the department of State, supervised by the Presi- 
 dent : and in this instance, the special message of the President 
 which brought the subject before Congress, and asked for " tem- 
 porary provision " for the government of the Territory, the pre- 
 sumption of its origin in the State Department assumes the 
 character of certainty. It was a startling bill — continuing the 
 existing Spanish government — putting the President in the 
 place of the King of Spain — putting all the territorial officers 
 in the place of the King's officers — and placing the appoint- 
 ment of all these officers in the President alone, without refer- 
 ence to the Senate. Nothing could be more incompatible with 
 our Constitution than such a government — a mere emanation 
 of Spanish despotism, in which all powers, civil and military, 
 legislative, executive and judicial, were in the Intendant Gene- 
 ral representing the King ; and where the people, far from pos- 
 sessing political rights, were punishable arbitrarily for presum- 
 ing to meddle Avith political subjects. N'ot only was the nature 
 of the Government thus continued wholly incompatible with 
 our Constitution, but its machinery and aj)pointment of officers 
 were equally so. They were to be appointed by the President 
 without the advice and consent of the Senate : and certainly the 
 American Governor who was to replace the Spanish Intendant 
 General in that important province, and the judges who were 
 to replace the royal Cabildo in the city of New Orleans, were 
 
56 EXAinNATION OF THE 
 
 not the " inferior officers " whose appointment, by the Constitu- 
 tion, would vest in the President alone. In no Temtory organ- 
 ized under the ordinance of 1787, even the most inconsiderable, 
 were these officers so considered. Here then was a double in- 
 compatibility with our Constitution— ;;?r5^, in the Government 
 itself ; secondly, in the appointment of the officers to adminis- 
 ter it : and it is not to be supposed that such enactments, so 
 startling in themselves, and so novel in a Republic of Anglo- 
 Saxon origin, could pass without observation — without scrutiny 
 — from that jealous Republican party which had just come into 
 power, and come in upon the cry of saving the Constitution at 
 the last gasp. And still less to be supposed that it would escape 
 the notice of the eminent Federal men in Congress, no friends 
 to the acquisition of Louisiana, and willing to hold the Repub- 
 lican members to the test of their liberty-loving principles. 
 The unobserved passage of such an act, in such a state of par- 
 ties, was not to be expected : and unobserved it was not, nor 
 uuscrutinized either. It roused attention when it was read. 
 It was canvassed from the beginning, and through all its stages, 
 and on the double ground mentioned. Mr. Roger Griswold, of 
 Connecticut, (Federal,) moved to strike out the whole section, 
 saying : " He wished to know what were the civil, military, and 
 judicial functions exercised by the Spanish officers; and ex- 
 pressed the belief that some of them were inconsistent with 
 the Constitution of the United States ; and referred to the writ 
 of haheas corjnis, which could not be in force under the act, and 
 which Congress could only constitutionally suspend in cases of 
 rebellion or invasion." Mr. James Elliott, of Yermont, (Re- 
 publican,) seconded the motion of Mr. Griswold, saying : " He 
 would never consent to delegate, for a single moment, such ex- 
 tensive powers to the President, even over a Territory : such a 
 delegation of power was unconstitutional." Mr. Dana, of Con- 
 necticut, (Federal,) expressed himself thus : " The President 
 may, under this authority, establish the whole code of Spanish 
 laws, however contrary to our own, appoint whomsoever he 
 pleases as governor and judges, and remove them accord- 
 ing to his pleasure ; thus uniting in himself all power — legisla- 
 tive, judicial, and executive." 
 
 This was bringing out objections to the constitutionality of 
 the bill, sufficiently clearly and strangely to merit an answer 
 
SUPREME court's DECISION, ETC. 67 
 
 from its friends — and received it, reminding tlie objectors that 
 this was a Territory — not a State ; and that the Constitution had 
 nothing to do with it. Thus, Mr. Rodney (Cesar Augustus) of 
 Delaware, (Republican :) "There is a wide distinction between 
 States and Territories, and the Constitution appears clearly to 
 indicate it. In the Territories of the United States, under the 
 ordinance of Congress, the Governor and judges have a right to 
 make laws. Could this be done in a State ? I presume not. It 
 shows that Congress have a power in the Territories which they 
 cannot exercise in the States, and that the limitations of power, 
 found in the Constitution, are applicable to States and not to 
 Territories." 
 
 Mr. Griswold replied, and more earnestly and pointedly, 
 saying : " By the section under consideration, power is given 
 to the President to appoint all the officers in the province, from 
 the governor down to the lowest officer. Gentlemen will not 
 say that the office of governor, or judge, is one of the inferior 
 offices contemplated by the Constitution. They had never been 
 so considered. In all the arrangements for the territorial gov- 
 ernments the sanction of the Senate had been required for the 
 governors, judges, secretaries, etc. ; whereas, in this instance, 
 the President is clothed with power to appoint all officers in the 
 Territory. He apprehended that such a power could not be 
 constitutionally given." — ^This brought up Mr. Randolph, who 
 compressed his argument into the single word, sovereignty, 
 saying : " Gentlemen will see the necessity of the United States 
 taking possession of this country in the capacity of sovereigns, in 
 the same extent as that of the existing government of the prov- 
 ince." — Mr. Joseph H. Nicholson, of Maryland, (Republican,) 
 spoke more at large. He said : " Is there any difference be- 
 tween this section and the provisions of the ordinance of 1787, 
 which relates to territorial governments ? By that ordinance, 
 and I have never heard its constitutionality questioned, all the 
 civil, military, and judicial powers are vested in such persons as 
 the President may appoint. Judicial powers are vested in per- 
 sons appointed by the President : so with respect to the civil 
 and military powers : and the legislative power is vested in a 
 body, part of which is appointed by the President. I am, with 
 other gentlemen, unable to say what are the nature and extent 
 of the powers exercised by the present government of Louisiana ; 
 
68 EXAMINATION OF THE 
 
 but we must autliorize the taking possession of tlie country ; and 
 we must, in such an event, authorize the exercise of tliese pow- 
 ers."— Mr. Mitchell, (Dr. Samuel H.) of New York, (Kepubli- 
 can :) " The third section of the fourth article of the Constitu- 
 tion contemplates that territory and other property may belong 
 to the United States. By a treaty with France, the United 
 States has lately acquired title to a new Territory, with various 
 kinds of property on it, or annexed to it. By the same section 
 of the Constitution, Congress is clothed with power to dispose of 
 such territory and property, and to make all needful rules and 
 regulations respecting it. This is as fair an exercise of constitu- 
 tional power as that by which we assemble, and hold our seats 
 in this house.'* — Mr. Joseph B. Yarnum, of Massachusetts, (Re- 
 publican,) and sometime speaker of the House : " We are told 
 we are about to authorize the exercise of power over the ceded 
 territory not authorized by the Constitution : he would ask if the 
 Constitution was to take eflect as soon as the United States took 
 possession of the Territory ? On this point he would refer to 
 the treaty. It provides for the incorporation of the inhabitants 
 into the Union : but when ? As soon as it can be done according 
 to the principles of the Federal Constitution. In the mean 
 time they are to be protected in the enjoyment of their liberty 
 and property, and the religion they profess. In what mean 
 time ? There is a time when the country is acquired, and a 
 time when it will be admitted into the Union. Between these 
 periods — in the mean time — the people are to enjoy their lib- 
 erty, property, and religion." — Dr. Eustis, of Massachusetts, 
 (Republican,) and sometime Secretary at War: "Though 
 called upon to take immediate possession of this Territory, you 
 are told you are not to govern it. This is the amount of the 
 argument of gentlemen ; for if you cannot govern it in this 
 way, you can govern it in no other. He saw no other alter- 
 native : there was no possibility of any other course. He was, 
 therefore, happy to see nothing in the Constitution which for- 
 bade pursuing it. On the contrary, it arose imperiously from 
 the acquisition." — Mr. John Smilie, of Pennsylvania, (Repub- 
 lican :) " He agreed in opinion with the gentleman from Mas- 
 sachusetts, (Mr. Yarnum,) that the Constitution did not extend 
 to this Territory any further than they were bound by the com- 
 pact between the ceding power and the people. On this prin- 
 
SUPREME court's DECISION, ETC. 69 
 
 ciple tliey had a riglit, viewing it in the light of a colony, to 
 give it such a government as the Government of the United 
 States might think proper, without thereby violating the Con- 
 stitution. When incorporated into the Union, the inhabitants 
 must enjoy all the rights of citizens. He would thank gentle- 
 men to show him any part of the Constitution which extends either 
 legislative, executive, or judicial power over this territory. If 
 none such could be shown, it must rest with the discretion of the 
 Government to give it such a system as might seem best for it." 
 
 On these objections and answers to the bill, the vote was 
 taken to strike out the second section — the one objected to — 
 and the motion almost unanimously rejected ; and the question 
 being taken on the passage of the bill, it passed in the affirma- 
 tive — 89 yeas to 23 nays : the negatives consisting almost en- 
 tirely of those Federal members who, having opposed the ac- 
 quisition of Louisiana, worked out their principle to its legiti- 
 mate conclusion, in refusing to legislate for it. And thus the 
 act passed the House as good as unanimousl3\ 
 
 The bill had come from the Senate, and there being but little 
 reporting of debates in that body at that time, and nothing re- 
 ported on this bill, we are remitted to the journal to see the 
 mere proceedings which took place upon it : and these are suffi- 
 ciently full and significant to show the sentiments of that body 
 upon it. From the journal of these proceedings it appears that 
 on the 21st of October — (it was the session of 1803-4) — Mr. 
 Jefferson, by special message, informed the Senate as well as 
 the House, that the Senate had ratified the Louisiana treaty, 
 and asked the legislative aid from Congress which would enable 
 him to take possession of the province and govern it tem]3ora- 
 rily. The same day Mr. John Breckenridge, of Kentucky,* 
 gave notice that he would ask the leave of the Senate to bring 
 in a bill to accomplish the objects of the message : — doubtless 
 done in concert with Mr. Jefferson, of whom he was a leading 
 friend. Leave was given, and the bill brought in the next 
 day, and was the same that passed the House, with an amend- 
 ment limiting its duration to the end of the session. It was 
 read a first time, for information, the day it was brought in — 
 the second time for reference, or consideration, the next day — 
 
 * Grandfather of the present Vice President. 
 
60 EXAMmATION OF THE 
 
 and was referred to a select committee, (Mr. Breckenridge, Mr. 
 Jonathan Dayton, of Kew Jersey, and Mr. Abram Baldwin, of 
 Georgia,) to consider and report npon. On the day after, (Oct. 
 23d j) Mr. Breckenridge reported back the bill without any pro- 
 posed alteration ; the next day it was read the third time, and 
 passed. 'No motion was made to strike out the second section, 
 and the vote on its passage was nearly unanimous,* only six 
 members voting against it, and they the members who opposed 
 the treaty, and would no nothing to carry it into effect. The 
 bill thus passed received the approbation of the President the 
 same day it was laid before him ; and to those who are acquaint- 
 ed with the worldng of the legislative machinery, it may well 
 be believed that the whole proceeding was in concert with the 
 administration — that Mr. Jefferson picked out Mr. Brecken- 
 ridge to bring in the bill — that its principles were settled in 
 cabinet meeting — that Mr. Madison drew it : and that every 
 question in relation to it was duly considered before it was sub- 
 mitted to final action. And thus, this first instance of Congress 
 legislation upon newly acquired territory was as high an in- 
 stance of disregard of the Constitution as the imagination could 
 conceive — being nothing less than the continuation of the Span- 
 ish regal despotism — the President taking the place of the King 
 of Spain ; Governor Claiborne,t the place of the Intendant 
 General, Morales ; the laws of Spain remaining in force and 
 administered by American judges : and the whole provincial 
 administration going on as if no change of government had 
 taken place. It was a royal despotic Government,f and every 
 
 * The yeas were : Messrs. Joseph Anderson, of Tennessee ; Theodoras Bailey, of 
 New York ; Abraham Baldwin, of Georgia ; John Breckenridge, of Kentucky ; John 
 Brown, of Kentucky ; Pierce Butler, of South Carolina ; William Cooke, of Tennessee ; 
 John Condit, of New Jersey ; Jonathan Dayton, of New Jersey ; Christopher Ellery, 
 of Ehode Island ; Jesse Franklin, of North Carolina ; James Jackson, of Georgia ; 
 George Logan, of Pennsylvania ; Samuel Maclay, of Pennsylvania ; Wilson Carey 
 Nicholas, of Virginia ; John Taylor, of Virginia, (usually discriminated as John Tay- 
 lor, of Caroline ;) Samuel J. Potter, of Rhode Island ; Israel Smith, of Vermont ; John 
 Smith, of Ohio ; Samuel Smith, of ]\Iaryland ; David Stone, of North Carolina ; Wil- 
 liam HiU Wells, of Delaware ; Samuel White, of Delaware ; Thomas Worthington, 
 of Ohio ; Robert Wright, of Maryland. 
 
 f William Charles Cole Claiborne, native of Virginia, sometime representative in 
 Congress from Tennessee, and at that time territorial governor of Mississippi. He 
 was a very proper man to be intrusted with the responsible and delicate duty to 
 which he was appointed — ua-bane in manners, discreet in judgment, conciliatory in 
 
SUPKEME COUKT's DECISION, ETC. 61 
 
 body knew it ; and no one thonglit of testing it by the Consti- 
 tution (some few new members in the House excepted) than by 
 the Koran. 
 
 Tliis was the character of the first American territorial gov- 
 ernment of Louisiana — a continuation of Spanish despotism — 
 and established by such men as then constituted the Federal 
 Government — and who have had no superiors, before or since. 
 Many of them had assisted in making the Constitution : all were 
 under oath to support it : and all, (or as good as all,) voted for 
 a bill which is contrary to that Constitution from beginning to 
 end. And now, by what authority did they so vote ? and the 
 answer is, in the single phrase pronounced by Mr. Randolph — 
 Sovereignty ! 
 
 High as was this instance of Congressional absolute power 
 over territories, it was succeeded at the same session by another, 
 not so striking in its general character, but more so in some of 
 its features, and very exemplificative of the fact that Congress 
 paid no more attention to the Constitution in governing new 
 Territories than in governing the old ones. The continuation of 
 the Spanish monarchical government was an expedient for the 
 occasion, temporary, and only intended to remain until a more 
 suitable form of government could be matured; and no time 
 was lost in carrying that intention into efi'ect. As early as No- 
 vember 28th, Mr. Breckenridge, always a coadjutor of Mr. Jef- 
 ferson, submitted a resolution in the Senate to raise a committee 
 to prepare a form of government for Louisiana. The motion 
 was ordered to lie for consideration. On the 5th of December 
 it was considered and adopted, and Messrs. John Breckenridge, 
 Eobert "Wright, of Maryland ; General James Jackson, of 
 Georgia ; Abraham Baldwin, of Georgia ; and John Quincy 
 Adams, were the select committee to which the motion was re- 
 ferred. On the 30th December the bill was reported, and read 
 a first time, and ordered to a second reading ; on the 16th of 
 January, read a second time, and being open to amendment, 
 was taken up for discussion. On the 18th of February it had 
 
 temper ; and gave so mnch satisfaction, that he was continued Governor during the 
 eight years that the territorial condition remained, and was elected first Governor of 
 the State, and afterwards Senator in Congress : hut died before taking his seat. 
 
 * The first territorial government of Louisiana was an imperial one, founded upon 
 a French or Spanish model — Mr. Justice Campbell. 
 
62 EXAMINATION OP THE 
 
 received its final consideration, and was passed by a vote al- 
 most unanimous, (only the usual six negatives opposed to the 
 ti'eaty,) and, so far as the provisions of the bill were concerned, 
 quite so ; for on motions to amend, or strike out, those who 
 voted against the passage of the bill voted for its strongest pro- 
 visions separately. 
 
 I am thus particular with these initiatory steps to show the 
 care and caution with which our Congress proceeded in that 
 early day, its close observance of all the rules which experience 
 had devised for due deliberation in conducting business, and 
 especially to show that all these rules were scrupulously observed 
 in this case, and a most able committee appointed to bring in 
 the bill. 
 
 The bill thus matured, and passed, and sent to the House, 
 had taken the ordinance of 1787 for its basis, but with devi- 
 ations required by the geographical position of the country, and 
 its peculiar circumstances. It divided the jDrovince of Louisiana 
 into two Territories, the upper and the lower ; the upper taking 
 the name, ultimately, of the Missouri Territory ; the lower tak- 
 ing that of Orleans Territory, It is in the part of the bill which 
 relates to this latter Territory, that the provisions were made 
 which most strongly asserted the power of Congress in terri- 
 torial legislation, and especially upon the subject of slavery. 
 The tenth section was wholly taken up with this subject, and 
 ran as follows : — 
 
 " Sect. 10. It shall not he lawful for any person or persons to 
 import or bring into the said Territory, from any port or place without 
 the limits of the United States, or cause or procure to be so imported 
 or brought, or knowingly to aid or assist in importing or bringing any 
 slave or slaves. And every person so offending, and being thereof con- 
 victed before any Court within said Territory, having competent juris- 
 diction, shall forfeit and pay for each and every slave so imported or 
 brought, the sum of three hundred dollars ; one moiety for the use of 
 the United States, and the other moiety for the use of the person or 
 persons who shall sue for the same ; and every slave so imported or 
 brought, shall thereupon become entitled to and receive his or her free- 
 dom. It shall not be lawful for any person or persons to import or 
 bring into the said Territory, from any port or place within the limits of 
 the United States, or to cause or procure to be so imported or brought, 
 or knowingly to aid or assist in so importing or bringing, any slave or 
 
SUPREME court's DECISION", ETC. 63 
 
 slaves, which shall have been imported since the first day of May, one 
 thousand seven hundred and ninety-eight, into any port or place within 
 the limits of the United States, or which may hereafter be so imported 
 from any port or place without the limits of the United States ; and 
 every person so offending, and being thereof convicted before any Court 
 within said Territory, having competent jurisdiction, shall forfeit and 
 pay for each and every slave so imported or brought from without the 
 United States, the sum of three hundred dollars, one moiety for the use 
 of the United States, and the other moiety for the use of the person or 
 persons who shall sue for the same ; and no slave or slaves shall directly 
 or indirectly be introduced into said Territory, except by a citizen of the 
 United States removing into said Territory for actual settlement, and 
 being at the time of such removal bona fide owner of such slave or 
 slaves ; and every slave imported or brought into the said Territory, con- 
 trary to the provisions of this act, shall thereupon be entitled to, and 
 receive his or her freedom." 
 
 Tills section contains tliree provisions on the subject of 
 slaves : 1. That no one shall be imported into the Territory from 
 foreign parts. 2. That no one shall be carried into it who had 
 been imported into the United States since the first day of May, 
 1798. 3. That no one shall be carried into it except by the 
 owner, and for his own use as a settler ; the penalty in every 
 instance being a fine npon the violator of the law, and freedom 
 to the slave. The first of these prohibitions is the same that 
 was passed for the Territory of Mississippi at its organization, in 
 April, 1798 ; and which, as it has been shown, was unanimously 
 supported by Southern members at the time it was adopted. 
 The prohibition in the Orleans Territorial Act was four years 
 before, and that in the Mississippi Act was ten years before, the 
 constitutional right of Congress accrued to prevent the impor- 
 tation of slaves into the original States. It was a strong meas- 
 ure, in both instances, to show the impatience of Congress to 
 put an end to the slave trade, and that, while it discriminated 
 between States and Territories, it made no distinction between 
 old and new territory, and legislated for each according to its 
 discretion. The second prohibition was still stronger, and asserts 
 a still higher power over the subject of slavery in a Territory. 
 It reaches back to the first day of May, 1798, to get hold of a 
 slave imported from abroad into any State or Territory since that 
 time, and gives him liberty, and fines his conductor, if carried 
 
64 EXAMINATION OF THE 
 
 into tlie Territory of Orleans. Xow, the slave so to be liberated, 
 was property in the State from which he should be carried, hav- 
 ing been constitutionally imported into that State ; yet if taken 
 into this Territory by authority of his owner, the property was 
 forfeited and lost, without compensation to his owner, and with 
 a fine upon the owner for doing so ; and all this as long as ten 
 years, it might be, before the Congress had a right to prohibit 
 the foreign importation of slaves. For what reason the first 
 day of May, 1798, should have been taken for this date of 
 prohibition, forfeiture and fine, does not appear ; but, probably, 
 to make it correspond with the prohibition of imported slaves 
 into the Territory of Mississippi — the first Southern Territory in 
 which Congress legislated upon slavery. But whether the date 
 was taken for that reason, or for any other, or without reason, 
 arbitrarily, the character of the act is the same — the assertion 
 of a right in Congress to legislate upon slavery in a Territory 
 without regard to the Constitution. The third prohibition was 
 in the same line of policy, and still stronger than the two preced- 
 ing. It liberated any slave, from any part of the United 
 States, who should have been taken into the Tei'ritory, except by 
 the Ijona'Jide owner, removing into it for actual settlement, and 
 bringing the slave for his own use. 
 
 These three prohibitions certainly amount to legislating up- 
 on slavery in a Territory, and that a new Territory, acquired 
 since the formation of the Constitution, and without the aid of 
 compacts with any State. 
 
 Kone of these prohibitions passed the Senate without obser- 
 vation, or without consideration of their import. They were 
 voted upon separately, either on motions to strike them out, or 
 to extend them ; so that the judgment of the Senate was delib- 
 erately expressed in each case, besides being sanctioned in the 
 lump in the almost unanimous vote on the final passing of the 
 bill. 
 
 Tlie bill having passed the Senate, was taken uj) in the 
 House, in which, besides the sanction to all its provisions in the 
 final vote, there were several special votes given on motions of 
 amendment, in which the House showed that it acted independ- 
 ently of the Constitution and repugnantly to it, and that upon 
 special objection. Thus : the right to a jury trial, where the 
 matter in controversy exceeded the value of twenty dollars, was 
 
SUPEEME COUKT's DECISION, ETC. 65 
 
 denied, though guaranteed by the Constitution, which was in- 
 voked on the occasion, but in vain. The royal power of proro- 
 gation was continued to the governor, though opposed by some 
 members. Then the appointment of judges for a term of years, 
 instead of during good behavior. In these, and many other 
 instances a direct question was made upon the constitutionality 
 of the provision, and always rejected upon the broad ground 
 that the Constitution was not made for Territories, and had 
 nothing to do with them. 
 
 A special stand was made on each of these cases, and some 
 others, by a few members, holding the Constitution in their 
 hands, and pleading its infraction by the proposed provisions. 
 Thus, as an example of the whole, and as a repulse of the Con- 
 stitution where its words would clearly apply ; Mr. GeorgeWash- 
 ington Campbell, of Tennessee, moved to amend the section 
 providing for the judicial power ; and which gave the right of 
 jury trial both in civil and criminal cases, '"'' if either jparty de- 
 sired it^'' so as to make the right absolute in all criminal cases 
 whatever, and in all civil cases where the value in controversy ex- 
 ceeded twenty dollars. He said : " He conceived that in legislat- 
 ing for the people of Louisiana they were bound by the Constitu- 
 tion of the United States. Tlie Constitution expressly declares 
 that, in criminal cases, the trial shall be by jury, and in all civil 
 cases where the sum in controversy exceeds the value of twenty 
 dollars the trial shall likewise be by jury. The ninth article of the 
 amendments to the Constitution says : ' In all suits at common 
 law where the value in controversy exceeds twenty dollars the 
 right of trial by jury shall bo preserved ; ' and the eighth arti- 
 cle says : ' In all criminal trials the accused shall enjoy the right 
 of a speedy trial by an impartial jury.' " Here was a direct 
 question made between the bill and the Constitution, and the 
 vote showed that the House deemed the bill, because territorial, 
 independent of the Constitution. Only about thirty members 
 voted for Mr. Campbell's motion, and about twenty-five of them, 
 the opponents to the treaty, and who would do nothing to recog- 
 nize the acquisition of the purchased province. 
 
 The anti-slavery section — the tenth — which contained the 
 three prohibitions on importations and removals of slaves into 
 Orleans Territory, encountered but little opposition ; but there 
 was some instructive debate on the general character of the bill 
 
66 EXAMI2JATI0N OF THE 
 
 for the government of the Territory, as being a novelty in terri- 
 torial government, in not conforming to either of the three 
 grades provided by the ordinance of '87, but being a mixture 
 of the two first grades. In this sense Mr. Macon, of North 
 Carolina, said : "My first objection to the principle contained 
 in the section, (the 4th,) is, that it establishes a species of gov- 
 ernment unknown to the laws of the United States. "We have 
 three descriptions of governments — that of the Union — that 
 of the States — and that of the Territories. I believe the terri- 
 torial government, as established by the ordinance of the old Con- 
 gress, the best adapted to the circumstances of the people of 
 Louisiana, and that it may be so modified as to meet their con- 
 venience. Tlie people residing in the Mississippi Territory are 
 under this kind of government. Is it not likely that the people 
 of Louisiana will expect the same form of government and 
 laws with their neighbors ? The simple question is, what kind 
 of government is most fitted for those people ? I will not pre- 
 tend to say they are fitted for a State government. The best 
 way to prepare them for such a government is the system alrea- 
 dy known to our laws — one grade, or the other, of the territo- 
 rial government. For my part, I should prefer (for them) the 
 adoption of the second grade ; but I would prefer the first to 
 any new system." Mr. Lucas, (John B. C.,) of Pennsylvania : 
 " An argument was drawn from the treaty, that these people 
 are to be admitted to the absolute enjoyment of the rights of 
 citizens ; but gentlemen would not deny that the time when, 
 and the circumstances under which the provisions of the treaty 
 were to be carried into effect, were submitted to the decision of 
 Congress. It has been remarked that this bill establishes ele- 
 mentary principles of government never previously introduced 
 in the government of any Territory of the United States. Grant- 
 ing the tnith of this observation, it must be allowed that the 
 United States had never before devolved upon them the making 
 provision for the government of a people under such circum- 
 stances." Mr. Yarnum was of opinion that the section in the 
 bill, (the 4:tli,) provided such a form of government as had never 
 been known in the United States. Dr. Eustis, of Massachusetts, 
 " did not believe that the section under consideration, in its pres- 
 ent form, consistent either Avith the spirit of the Constitu- 
 tion or the treaty. The government laid down in the bill is 
 
SUPEEME court's DECISION, ETC. 67 
 
 certainly a new thing in tlie United States ; but the. people of 
 this country differ materially from the citizens of the United 
 States. 1 speak of the character of the people at the present 
 time. When they shall be better acquainted with the principles 
 of our Government, and shall have become desirous of partici- 
 pating in our privileges, it will be full time to extend to them 
 the elective franchise." Mr. Holland, of North Carolina : — 
 "The provisions of this section are said to be worse than those 
 of the first grade of territorial governments ; but this is incor- 
 rect. The plan is not equal to the second grade, but it is cer- 
 tainly superior to the first grade. The first grade gives the 
 governor and judges all the power granted by this section ; and 
 this section, in addition to the governor and judges, contem- 
 plates the appointment of thirteen councillors. Is not this pre- 
 ferable to giving the whole power to the governor and judges ? " 
 Mr. Boyle, of Kentucky : " I am unwilling to extend Govern- 
 ment patronage beyond the line of irresistible necessity. For 
 I believe, if ever this country is to follow the destiny of other 
 nations, this destiny will be accelerated by the overwhelming 
 torrent of executive patronage. I feel as high a veneration for 
 the j)resent chief magistrate as any man on this floor. I have 
 retained the full force of my regard for him ; but were he an 
 angel instead of a man, I would not clothe him with this power ; 
 because, in my estimation, the investitm*e of such high powers 
 is unnecessary." Mr. Sloan, of Pennsylvania : " Can anything 
 be more repugnant to the principles of just government ? Can 
 any thing be more despotic than for a President to appoint a gov- 
 ernor and a legislative council, the governor having a negative 
 on all their acts, and power to prorogue them at pleasure ? 
 "What liberty, what power, is here vested in the peoj^le ? " 
 
 Mr. Justice Campbell, in quoting from these speeches, has 
 been too brief to show distinctly their points of objection.* In 
 
 * Mr. Varnum said : " The bill provided such a government as had never been 
 known in the United States." Mr. Eustis : " The government laid down in this bill is 
 certainly a new thing in the United States." — Mr. Lucas : " It has been remarked, 
 that this bill establishes elementary principles never previously introduced in the gov- 
 ernment of any Temtory of the United States. Granting the truth of this observation," 
 &c. &c. Mr. Macon : " My first objection to the principle contained in this section is^ 
 that it establishes a species of government unknown to the United States." Mr. Boyle : 
 " Were the President an angel instead of a man, I would not clothe him with this 
 
68 EXAMINATIOIS OF THE 
 
 looking at^tliem more fully, and in seeing the reasons they give 
 for their opinions, they are seen to apply to the form of the gov- 
 ernment to be established, as being despotic, and as not con- 
 forming to the ordinance of '87, which, after its adoption by 
 Congress in the year '89, became a law of the United States, and 
 intended for the South-western as well as the North-western Ter- 
 ritories : the anti-slavery clause alone excepted. The character 
 of the bill was doubtless, as declared by these members, a des- 
 potism, unsanctioned by any principle in the Constitution, and 
 repugnant both to its sj^irit and provisions ; bnt that only proves 
 that they acted independently of the Constitution, and know- 
 ingly refused to be governed by it. The bill was passed by a 
 great majority — 66 to 21. 
 
 But the legislative action of Congress on Territories at this 
 session — 1803-'4 — did not stop at these two acts for Lower 
 Louisiana : there was another act for the upper half of the prov- 
 ince, afterwards called the Territory of Missouri, very worthy to 
 be considered in this connection for its disregard of the Consti- 
 tution and its want of discrimination between new and old ter- 
 ritory. Tlie Supreme Court makes a great difference between 
 these two classes of territories, and a corresponding difference 
 in the power of Congress with respect to them, and to the pre- 
 judice of the new Territory. The Congress of ISOS-'tt did not 
 see this difference ; and acting upon a sense of plenary author- 
 ity, it extended the ordinance across the Mississippi — sent the 
 governor and judges of Indiana (for Indiana had then become a 
 Territory) — sent this governor (William Henry Harrison) and 
 the three Indiana judges across the Mississippi river, to admin- 
 ister the ordinance of '87 in that upper half of Louisiana. Such 
 was the fact ! and here is the law under which it was done, be- 
 ing section 12 of the act erecting Louisiana into two Territories, 
 and providing for their temporary government : — 
 
 " The residue of the province of Louisiana, ceded to the United 
 States, shall be called the District of Louisiana, the government whereof 
 shall be organized and administered as follows : The executive power 
 
 power." Mr. G. W. Campbell : " On examining the section, it vnll appear that it 
 really establishes a complete despotism." Mr. Sloan : " Can any thing be more repug- 
 nant to the principles of just government ? Can any thing be more despotic ? " — 
 Mr, Justice Camphell. — Annals of Congress, 1803-'-t. 
 
8UPEEME COUET's DECISION, ETC. 69 
 
 now vested in the governor of Indiana, (then including Illinois,) shall 
 extend to and be exercised in the said district of Louisiana. The 
 governor and judges of Indiana Territory shall have power to establish, 
 in the said district of Louisiana, inferior courts, and to prescribe their 
 jurisdiction and duties, and to make all laws which they may deem con- 
 ducive to the good government of the inhabitants thereof — subject to the 
 disapproval of Congress." 
 
 Here was old and new territory coupled together nnder one 
 territorial government, and the new put under the officers of the 
 old, and both governed by the ordinance of 1787. The law- 
 making power was delegated to them, and they might have 
 suppressed slavery under that power ; but finding the institution 
 there, they let it alone. Such was the first territoi-ial govern- 
 ment of Upper Louisiana. 
 
 And now for the men who passed these acts — who established 
 these governments — so incompatible with the Constitution, and 
 so fully asserting absolute power over this new territoiy. Who 
 were they ? They were the men of the Revolution — of the ordi- 
 nance of '87 — of the Constitution of that year — of the first ad- 
 ministration of the Federal Government in its early age ; — and 
 the authors of the acquisition of Louisiana. Mr. Jefferson was 
 President — Mr. Madison Secretary of State — and the two Houses 
 of Congress filled with men who had acted their good part in 
 founding, and in putting into operation, the new Federal Gov- 
 ernment. These were the men who did these things, and who 
 ought to be allowed to know something of their own work ; and 
 if they did not, somebody existing at the time ought to have 
 known of their dreadful usurpations, and proclaimed them to 
 the world. 'No such discovery was made. Fifty-four years 
 have passed away since these things were done, and by such 
 men, and with universal acceptance at the time, and with a half 
 century of universal approbation : yet, if the decisions of the 
 Supreme Court are to stand, and these territorial acts subjected 
 to the test of the Constitution, it will only want a case to be got 
 before the Court to subject them to abrogation, as the Missouri 
 Compromise Act was after an honored existence of thirty-seven 
 years. 
 
 It is now seen, from what has been shown, that, in govern- 
 ing their Territories, Congress and the Executive looked to their 
 
70 EXAMINATION OF THE 
 
 rights as sovereigns and proprietors, and not to the Constitution, 
 for their authority : and this view seems to liave been that of 
 the Supreme Court of the United States some thirty years ago. 
 A case from tlie Territory of Florida, under a territorial law, 
 was brought up to that Court which gave rise to the question, 
 what Congress might do in the Territory ? and what it might 
 authorize the territorial legislature to do? In deciding this 
 question, the Court, speaking through Chief Justice Marshall, 
 says : — 
 
 " In the mean time Florida continues to be a Territory of the United 
 States, governed by that clause of the Constitution which empowers 
 Congress to make all needful rules and regulations respecting the terri- 
 tory or other property of the United States. Perhaps the power of 
 governing a Territory belonging to the United States, which has not, by 
 becoming a State, acc[uired the means of self-government, may result, 
 necessarily, from the facts that it is not within the jurisdiction of any 
 particular State, and is within the power and jurisdiction of the United 
 States. The right to govern may be the inevitable consequence of the 
 right to acquire territory. Whichever may he the source from which 
 the power is derived, the possession of it is unquestionable.^^ 
 
 " Tlie right to govern may be the inevitable consequence of 
 the right to acquire territory," — a very fair deduction, even in 
 a naked case of unconditional acquisition. How much stronger 
 where the acquisition is accompanied by an obligation to gov- 
 ern ? where the territory and its inhabitants are received upon 
 the condition that they shall be protected ! protected in their 
 persons, property, and religion ! How was that to be done 
 without government ? This is the case with the Louisiana pur- 
 chase ; and the right to hold the territory, not only gives the 
 right of government, but imposes the duty of government upon 
 the new owner. 
 
 The present Supreme Court, in pronouncing its " Opinion," 
 has noticed this decision of its predecessor, but with an argu- 
 ment to show that it was not a decision, and that the present 
 Court is not bound by it. And it is right to give it the benefit 
 of this argument ; thus : — 
 
 " It is thus clear, from the whole opinion on this point, that the 
 Court did not mean to decide whether the power was derived from the 
 clause in the Constitution, or was the necessary consequence of the right 
 
SUPKEME court's DECISION, ETC. 71 
 
 to acquire. They do decide that the power in Congress is unquestion- 
 able, and in this we entirely concur, and nothing will be found in this 
 opinion to the contrary. The power stands firmly on the latter alterna- 
 tive put by the Court — that is, as ' ihe inevitable consequence of the 
 right to acquire territory.'' 
 
 " And what still more clearly demonstrates that the Court did not 
 mean to decide the question, but leave it open for future consideration, 
 is the fact that the case was decided in the Circuit Court by Mr. Justice 
 Johnson, and his decision was affirmed by the Supreme Court. His 
 opinion at the circuit is given in full in a note to the case, and in that 
 opinion he states, in explicit terms, that the clause of the Constitution 
 applies only to the territory then within the limits of the United States, 
 and not to Florida, which had been acquired by cession from Spain. 
 This part of his opinion will be found in the note in page 517 of the 
 report. But he does not dissent from the opinion of the Supreme 
 Court ; thereby showing that, in his judgment, as well as that of the 
 Court, the case before them did not call for a decision on that particular 
 point; and the Court abstained from deciding it. And in a part of its 
 opinion subsequent to the passage we have quoted, where the Court 
 speak of the legislative power of Congress in Florida, they still speak 
 with the same reserve." 
 
 This is the argument of the present Court, to show the inap- 
 plicability of the Florida decision to the c^se before itself; and 
 granting, for the sake of the argument, that Chief Justice Mar- 
 shall leaves it doubtful from which source the power is derived, 
 yet he says it is unquestionably possessed : and that is sufficient 
 — for in either case the power is unlimited ; and where there 
 are two concurrent rights, the superior always takes effect, and 
 the inferior is only cumulative. The sovereign derivation of 
 the right is the highest, and is sufficiently affirmed by Chief 
 Justice Marshall in the declaration of the inevitability of the 
 right to govern what you have a right to hold. And this view 
 is confirmed in another part of the same Florida decision, where 
 the Chief Justice, speaking of the territorial courts, and of the 
 right of Congress to establish such courts, with judges holding 
 for a term of years instead of good behavior, he says : — 
 
 " They are legislative courts, created in virtue of the general right 
 of sovereignty which exists in the Government, or in virtue of that 
 clause which enables Congress to make all needful rules and regulations 
 respecting the territory belonging to the United States." 
 
72 EXAMINATION OF THE 
 
 Tills is enough — sufficiently explicit — to affirm the sovereign 
 right of government in the owner of these Territories. But a 
 member of the present Court, (Mr. Justice M'Lean,) differed 
 from Chief Justice Taney in his estimate of this decision. He 
 deemed it sufficiently clear in itself, and authorized by the 
 point raised for the Court's decision. He says, (in his dissent- 
 ing opinion :) — 
 
 " I can see no want of precision In the language of the Chief Jus- 
 tice ; his meaning cannot be mistaken. He states, first, the third 
 section as giving power to Congress to govern the Territories, and two 
 other grounds from which the power may also be implied. The objec- 
 tion seems to be, that the Chief Justice did not say which of the 
 grounds stated he considered the source of the power. He did not 
 specifically state this, but he did say, ' whichever may be the source 
 whence the power is derived, the possession of it is unquestioned.' No 
 opinion of the Court could have been expressed with a stronger empha- 
 sis ; " the power in Congress is unquestioned." But those who have 
 undertaken to criticise the opinion, consider it without authority, be- 
 cause the Chief Justice did not designate specially the power. This 
 is a singular objection. If the power be unquestioned, It can be a 
 matter of no importance on which ground It is exercised. The opinion 
 clearly was not obiter dicta. The turning point In the case was, 
 whether Congress had power to authorize the territorial Legislature 
 of Florida to pass the law under which the territorial court was 
 established, whose decree was brought before this Court for revision. 
 The power of Congress, therefore, was the point In issue." 
 
 I think Mr. Justice M'Lean entirely right in his understand- 
 ing of the opinion delivered by Chief Justice Marshall ; and I 
 think that opinion clear in referring a right of governing a Ter- 
 ritory to the right of acquiring it. And in this it corresponds 
 with the action of Congress, and the declaration of eminent 
 members at the time — ^namely, by Mr. Kandolph, that the right 
 of government was the right of sovereignty ; and by Dr. Eustis, 
 that the government of the Territory was imperiously com- 
 manded by its acquisition. 
 
 Strong as was the course of Congress in the act taking pos- 
 session of Louisiana, and continuing therein the Spanish gov- 
 ernment under American officers, it w^as repeated, in all its 
 extent, sixteen years afterwards, on the acquisition of Florida. 
 The Louisiana act of October, 1803, was copied for Florida in 
 
BUPKEME court's DECISION, ETC. 73 
 
 March, 1S19. All the powers exercised there by the King's 
 officers were to be exercised, until the end of the session of the 
 next Congress, by such persons as the President should direct.* 
 And thus, two different administrations, and two different Con- 
 gresses, at the distance of sixteen years apart, governed two 
 acquisitions of new territory exactly alike, and as incompatibly 
 with our Constitution as a Spanish regal despotism is incompat- 
 ible with our free Kepublican government. That act was ap- 
 proved by Mr. Monroe, and no dissenting voice was ever heard 
 from his cabinet — able, vigilant, and strongly Southern as that 
 cabinet was. 
 
 Following, step by step, the course pursued in the Louisiana 
 case, a territorial government was afterwards provided there, 
 but after an interval of four years — during all which time the 
 Spanish government was continued over the people — General 
 Jackson, the governor, took care that power should be no 
 " barren sceptre " in his hands. This territorial government, 
 established in March, 1823, took the ordinance of '87 for its 
 basis, but with the modifications which assimilated it to the act 
 for the government of the Orleans Territory. It was nearly a 
 transcript from that act, so far as government was concerned ; 
 and we have seen what that was — a total abnegation of the 
 Constitution of the United States in all its provisions, letter 
 and spirit. So that, in these two first instances of the acquisi- 
 tion of foreign territory — 'Florida and Louisiana — two different 
 administrations, and three different Congresses — those of 1803 
 -'4, of 1818-'19, and of 1822-'3— at intervals of sixteen years 
 and twenty years apart, acted in the same way, governing the 
 Territories independently of the Constitution, and incompatibly 
 
 * The following was the act : 
 
 Sec. 2. And be it further enacted. That, until the end of the first session of the 
 next Congress, unless provision for the temporary government of said territories be 
 sooner made by Congress, all the military, civil, and judicial powers, exercised by the 
 officers of the existing government of the same territories, shall he vested in such 
 person and persons, and shall be exercised in such manner, as the President of the 
 United States shall direct, for the maintaining the inhabitants of said temtories in the 
 free enjoyment of their liberty, property and religion ; and the laws of the United 
 States, relative to the collection of revenue, and the importation of persons of color, 
 shall be extended to the said territories. 
 
 ' Up to this time no one thought of extending the Constitution to a Territory ; 
 laws only were so extended, and only the few deemed applicable. 
 
74 EXAMINATION OF THE 
 
 with it. Both these acts for the government of Florida passed 
 under the administration of Mr. Monroe — Mr. John Quincy 
 Adams, Secretary of State ; Mr. "VVm. H. Crawford, Secretary 
 of the Treasury ; Mr. John C. Calhoun, Secretary at War ; Mr. 
 Smith Thompson, Secretary of the Navy ; Mr. Return Jona- 
 than Meigs, Post-Master General ; Mr. Wirt, Attorney Gene- 
 ral : a President and cabinet inferior to none that ever appeared 
 in this Union, and who saw no want of power in Congress to 
 pass, or in themselves to approve, these forms of territorial 
 government in which the whole spirit of our Constitution is 
 ignored, and its written provisions either disregarded or flatly 
 contradicted. And what were the two Houses of Congress at 
 that time ? Perhaps if the period of our legislative history 
 was to be picked out when the national legislature appeared to 
 the greatest advantage, it would be in that middle period of 
 Mr. Monroe's administration, when the surviving great men of 
 the first generation were still upon the stage, and the gigantic 
 progeny of the second were mounting upon it. I came into 
 Congress at that j)eriod, and such was the awe and reverence 
 with which the Senate inspired me, that I sat there six years 
 without opening my mouth on any subject outside of my own 
 State. O I si sic semjper I And yet this assemblage of the 
 illustrious old, and not less illustrious young, are now, after al- 
 most forty years, to be considered as ignorant of the Constitution 
 which they had helped to make, and were sworn to observe, 
 and doing things which require to be repudiated. 
 
 The Supreme Court, in its elaborate opinion, has put itself 
 to great labor to prove the territorial legislation of Congress to 
 be incompatible with the Constitution : — most superfluous 
 labor, as I conceive, there being no pretension on the part of 
 Congress to be acting under the Constitution, and continued de- 
 clarations, (as well as acts,) to the contrary — members continu- 
 ally supporting measures in Territories which they repulsed in 
 States — as, for local objects of internal improvement, for banks, 
 corporations. It can be said, and without allowing a single ex- 
 ception, that there has not been a member of either House, from 
 the formation of the Government to the present day, who has 
 not voted for these objects in Territories who would not vote for 
 them in States, upon the avowed ground that the Constitution 
 did not extend to Territories. I have seen all parties so vote — 
 
SUPREME court's DECISION, ETC. 75 
 
 the very strictest of the State Eights party. Tlie proceedings 
 of Congress are full of such votes, and of the remark, " It is a 
 Territory : the Constitution does not extend to it.''^ And this 
 finishes the second stage of this Historical and Legal Examina- 
 tion, comprising the governmental legislation of Congress upon 
 these two new Territories — Louisiana and Florida — and showing 
 that they were governed without limitations, and in the pleni- 
 tude of sovereign right, qualified only by the conditions on 
 ■which they were ceded. 
 
 THIED STAGE OF THE EXAMINATION,— EMBEAC- 
 ING THE LEGISLATION ON THE MISSOURI COM- 
 PEOMISE ACT. 
 
 III. It was at the session of 1818-'19 that the Missouri Ter- 
 ritory, having been trained through the three grades of territo- 
 rial government prescribed by the ordinance of '87, and being 
 then in tlie third grade, and with a competent population, 
 applied through her Territorial Legislature for an Act of Con- 
 gress to enable her to hold a convention for the formation of a 
 State Constitution, preparatory to the formal application for 
 admission into the Union. The bill had been perfected, its 
 details adjusted, and was upon its last reading, when a motion 
 was made by Mr. James Tallmadge, of New York, to impose a 
 restriction on the State in relation to slavery, to restrain her 
 from the future admission of slavery within her borders. The 
 motion gave rise to a vehement debate, which soon divided the 
 House geographically, set the members on fire, and soon attain- 
 ed a height which threatened the Union with dissolution. As a 
 sample, take a specimen of what passed between some members 
 from the Free and the Slave States — thus : — 
 
 Mr. Scott, delegate from Missouri : " He would trouble the House 
 no longer ; he thanked them for the attention and indulgence already 
 extended to him. But he desired to apprise gentlemen, before he sat 
 down, that they were sowing the seeds of discord in this Union, by 
 attempting to institute States with unequal privileges and unequal rights 
 — that they were signing, sealing, and delivering their own death war- 
 rant — that the weapon they were so unjustly wielding against the people 
 
76 EXAMIKATION OF THE 
 
 of Missouri was a two-edged sword. From the cumulative nature of 
 power, the day might come when the General Government might, in turn, 
 undertake to dictate to them on questions of internal policy. Missouri, 
 now young and feeble, whose fate and murmurs would excite but little 
 alarm or sensibility, might become an easy victim to motives of policy, 
 party zeal, or mistaken ideas of power ; but other times and other men 
 would succeed : a future Congress might come, who, under the sancti- 
 fied forms of Constitutional power, would dictate to them odious condi- 
 tions — nay, inflict on their internal independence a wound more deep 
 and dreadful than even this on Missouri. The House had seen the 
 force of the precedent, in the mistaken application of the conditions 
 imposed on the people of Louisiana anterior to their admission into the 
 Union. And, whatever might be the ultimate determination of the 
 House, he considered this question big with the fate of Caesar and of 
 Rome." 
 
 To this Ml*. Tallmadge replied : 
 
 " The honorable gentleman from Missouri, who has just resumed his 
 seat, has told us of the Ides of March, and cautioned us to beware of 
 the fate of Caesar and of Rome, Another gentleman, Mr. Cobb, from 
 Georgia,* in addition to other expressions of great warmth, has said, 
 that if we persist, the Union will be dissolved ; and, with a look fixed 
 on me, has told us that we have kindled a fire which all the waters of 
 the ocean cannot put out, and seas of blood can alone extinguish. Sir, 
 language of this sort has no effect on me. My purpose is fixed ; it is 
 interwoven with my existence ; its durability is limited with my life ; 
 it is a great and glorious cause, setting boundaries to a slavery the most 
 cruel and debasing the world ever witnessed. It is the freedom of man 
 — it is the cause of unredeemed and unregenerated human beings. Sir, 
 if a dissolution of the Union must take place, let it be so ! If civil 
 war, which gentlemen so much threaten, must come, I can only say, let 
 it come ! My hold on life is probably as frail as that of any man who 
 now hears me ; but, while that hold lasts, it shall be devoted to the ser- 
 vice of my country — to the freedom of man. If blood is necessary to 
 extinguish any fire which I have assisted to kindle, I can assure gentle- 
 men, while I regret the necessity, I shall not forbear to contribute my 
 mite." 
 
 And this was the character of the debate on the second day 
 after it opened ! — so rapid was the conflagration of the passions, 
 
 * Thomas "W. Cobb. His speech on this occasion is merely noted, not reported 
 ftrr-nr\<x the debates, as, in fact, but a small part of the speeches were at that day. 
 
8UPKEME COUKT's DECISION, ETC. 77 
 
 and the desperation of the resolves. To what height did they 
 not rise in tlie two years that this exasperating controversy con- 
 tinued in Congress I inflamed all the while by the resolves of 
 popular meetings and legislative assemblies — by newspaper 
 publications — by popular harangues — and even by pulpit 
 addresses. 
 
 The numerical force of the House was against Missouri, and 
 the restriction was there incorporated into the bill by a vote of 
 87 to 76 ; but in the Senate the majority was the other way, 
 and the restriction was struck out by a vote of 22 to 16. The 
 House then adhered to its amendment : the Senate adhered to 
 its rejection : and so the bill was lost between the two Houses. 
 This was at the end of a short session — ^the sessions terminating 
 in odd years — when the end of the third daj'' of March is the 
 termination of the session, and of the Congress. It would be 
 nine months before Congress met again, and during that long inter- 
 val the fire kindled in Congress must continue spreading — and 
 did. It was in that period that the anxieties of patriots rose to 
 the highest pitch — that the surviving founders of the Union 
 began to feel as if they were hearing the death-knell of the Con- 
 stitution. Many of them, withdrawn from public cares, tran- 
 quil at home, and happy in the belief of the long duration of 
 their cherished work, were alarmed from their security, and 
 gave vent to their misgivings in letters which found their way 
 to the public eye. Among others, Mr. Madison, who, in the 
 ensuing November, shortly before the inflamed Congress was to 
 meet again — still more inflamed by contact of the members 
 with their constituents — wrote that letter to Mr. Robert Walsh, 
 of Philadelphia, which has been quoted in high places as his 
 opinion against the Missouri Compromise : that letter, so quoted, 
 in which the word " compromise " does not occur ! — which was 
 written four months before the Compromise was made ! and 
 every word of which shows that it was only applicable to the 
 then impending and absorbing question of the restriction on the 
 State. To complicate the question, and render it still more 
 diflScult of settlement, was the attitude beginning to be assumed 
 by Missouri. She had asked Congress for an enabling act to 
 facilitate the holding of a State Convention. It was deferential 
 to Congress to do so, but not imperative ; and being denied, 
 except on a degrading condition, the yoimg Territory saw her 
 
78 EXAMINATION OF THE 
 
 right under the treaty with France, the principles of the Gov- 
 ernment, and the ordinance of '87, to assemble in Convention, 
 form their Constitution, see that it was republican, lay it before 
 Congress, and stand the question of its rejection, because it did 
 not exclude slavery. There was a short way for her to sur- 
 mount the difficulty — to put in a prohibition, to satisfy Con- 
 gress, and strike it out when the Constitution came back, to 
 satisfy herself. There could be no legal objection to that 
 course ; but there was an objection to it of morality and of 
 policy ; it would be neither moral nor politic to do so ; and the 
 determination was, if again denied the enabling act, to erect 
 herself into a State, ask admission into the Union, and throw 
 upon Congress the entire responsibility of refusing to admit her. 
 Such an attitude was impressing a new ernphasis on the ques- 
 tion, and portending a crisis of inevitable approach and fearful 
 termination. Thinking men looked with apprehension to the 
 next meeting of Congress ; and, after it met — things continuing 
 to grow worse until the Compromise came, with balm on its 
 wings, to heal the wounds which the restriction had inflicted. 
 But before I speak of this Compromise, and the patriotic men 
 who made it, there is another measure to be spoken of, showing 
 still more strongly the dangers of the country, enhancing still 
 higher its merits, and illustrating still more fully the constitu- 
 tional distinction between States and Territories. This was the 
 Arkansas question — the question of restricting the Territory of 
 Arkansas in the article of slavery — a question still more startling 
 tlian that of Missouri, and equally portentous at the time, but 
 overshadowed in the greater magnitude and longer duration 
 than the other ; equally deserving of public attention, but, in the 
 impossibility of public access to the past Congress debates, now 
 unknown to the public. The forthcoming abridgment of these 
 debates will make them accessible. 
 
 Tlie case was this : On fixing the boundaries for the new 
 State of Missouri, it became necessary to curtail her limits, 
 before co-extensive with the whole province of Louisiana out- 
 side of the State of Louisiana. On the southern side of the new 
 State the Territory of Arkansas was to be cut off, and formed into 
 a new Territory. It extended from the southern limit of Mis- 
 souri — 30° 30' — to the Louisiana State line, and to the Texas, or 
 Mexi.can boundary ; in fine, to all the territory south of Mis- 
 
SUPKEME court's DECISION, ETC. 79 
 
 souri. To tliis southern Territory, tlius appurtenant to the 
 South — in the latitude of its staple productions — and with a 
 slaveholding population upon it — was proposed to attach the 
 slaver}'- prohibition. Cotemporaneously with the report of the 
 hill to enable Missouri to take steps for the formation of a State 
 government, was another reported tor the erection of the Terri- 
 tory south of it into a new territorial government — Arkansas by 
 name, as covering that river. And as soon as the attempt had 
 succeeded in the House to impose the slavery restriction on the 
 State of Missouri, the same attempt was made to impose it on 
 the Territory of Arkansas. Mr. John "W". Taylor, of Xew York, 
 made the motion.* This motion gave rise to an extended de- 
 bate, in which the ablest speakers in the House, from both sides, 
 took part ; and which is more applicable, and authoritative, than 
 any other debate that ever took place in Congress, to the ques- 
 tion now under examination, to wit: the power of Congress 
 over its territory, (and new territory at that;) and its right to 
 legislate upon slavery in it, and to admit or reject it as deemed 
 proper. The Arkansas question is the master one for this ex- 
 amination ; for it presents the territorial question alone, unin- 
 fluenced by any consideration connected with a State; and be- 
 cause it applied to a territory so far south ; and which was, so 
 far as the admission or rejection of slavery was concerned, the 
 entire province of Louisiana ; for, if the institution was excluded 
 from that southern part, it would recoil from the rest of itself. 
 It was, therefore, a question to excite the slave States still more 
 than the Missouri question had done, and to stimulate them to 
 the use of the strongest objections against it. The strongest 
 would have been unconstitutionality ! yet no one took that ob- 
 jection. Expedient grounds, and the treaty of cession, were the 
 highest grounds they took; and there were able men in the 
 Government then — both in the Senate and the House, and in 
 the Cabinet. These able men, and zealous for the South, and 
 stimulated to the highest exertions, took no ground under the 
 Constitution ! On the contrary, they admitted the constitu- 
 tional right of Congress to do as it deemed right on the question, 
 
 * It was in these words : " That the further introduction of slavery, or involuntary 
 servitude, be prohibited, except for the punishment of crimes, whereof the party sliall 
 have been duly convicted. And that all children bom within the State after the ad- 
 mission thereof into the Union, shall be free at the age of twenty-five years. 
 
80 EXAMINATION OF THE 
 
 and limited their opposition to expedient objections. Among 
 these was Mr. Louis M'Lane, of Delaware, an able and zealous 
 defender of the rights and interests of the slave States, though 
 opposed to the institution of slavery, and who was one of the 
 first to reply to Mr. Taylor's proposition to restrict the Territory 
 —repulsing it on expedient grounds, and making the first sug- 
 gestion of a policy which afterwards ripened into the Missouri 
 Compromise. He said : 
 
 " He would yield to no gentleman in the House in his love of free- 
 dom, or in its abhorrence of slavery in its mildest form. His earliest 
 education, and the habits of his life, were opposed to the holding of 
 slaves and the encouragement of slavery. At the same time, he would 
 yield to no gentleman in the House in his regard for the Constitution of 
 his country, and for the peace, safety, and preservation of the Union of 
 these States. To these great objects all minor considerations should 
 give way. Beyond this, the oath he had taken, as a member of the 
 House, forbade him to go. The fixing of a line on the west of the Mis- 
 sissippi, north of which slavery should not be tolerated, had always been 
 with him a favorite policy, and he hoped the day was not far distant 
 when, upon principles of fair compromise, it might constitutionally be 
 effected. He was apprehensive, however, that the present premature 
 attempt, and the feelings it had elicited, would interpose new and almost 
 insuperable obstacles to the attainment of the end." 
 
 In the concluding part of his speech, Mr. M'Lane returned 
 to the idea of dividing Louisiana between the Free and the 
 Slave States— enforced it by referring to the happy effects in 
 promoting the formation of the Union, of a similar division un- 
 der the ordinance of '87— and showed that Southern and West- 
 ern members had already avowed the same policy. Thus :— 
 
 "On the whole, it seems to me that we have no right to impose this 
 restriction ; and that, if we had, it would be useless, impracticable, and 
 unavailing. At the same time, I do not mean to abandon the policy to 
 which I alluded in the commencement of my remarks. I think it but 
 fair that both sections of the Union should be accommodated on this 
 subject, with regard to which so much feeling has been manifested. The 
 same great motives of policy which reconciled and harmonized the jar- 
 ring and discordant elements of our system, originally, and which enabled 
 the framers of our Constitution to compromise the different interests 
 which then prevailed on this and other subjects, if properly cherished 
 
SUPREME court's DECISION, ETC. 81 
 
 by us, ■will enable us to achieve similar objects. If we meet upon prin- 
 ciples of reciprocity, we cannot fail to do justice to all. It has already 
 been avowed by gentlemen on this floor, from the South and the West, 
 that they will agree upon a line which shall divide the slaveholding from 
 the non-slaveholding States. It is this proposition I am anxious to 
 effect ; but I wish to effect it by some compact which shall be binding 
 upon all parties and all subsequent legislatures — which cannot be 
 changed, and will not fluctuate with the diversity of feeling and of senti- 
 ment to which this empire in its march must be destined. There is a 
 vast and immense tract of country west of the Mississippi yet to be set- 
 tled, and intimately connected with the northern section of the Union, 
 upon which this compromise can be effected. Believing as I do that the 
 Constitution and the compact* before mentioned will not permit us to 
 extend our policy over the whole, I will be very willing to take as great 
 a part ds I can obtain ; and in so doing, though I may lament that the 
 humane policy of those who are so anxious to effect this end cannot be 
 more widely diffused, I shall enjoy at least the consciousness of having 
 conformed to the Constitution of the country, and executed the national 
 compacts in good faith." 
 
 Mr. M'Lane was from a slave-liolding State, and acting with 
 the South — I should rather say with the Union — on this occasion. 
 He was of course in communion with the Southern and Western 
 members, but only spoke of avowals on the floor wlien he alluded 
 to their readiness for a fair compromise on the j)i'inciples of the 
 ordinance of '87. Several of those members spoke — Mr. Clay 
 and George Kobertson, of Kentucky ; Messrs. Hugh Kelson, 
 James Johnson, John Tyler, and Philip P. Barbour, of Virginia 
 — but their speeches are not reported, only noted. The author- 
 ity of Mr. M'Lane, however, is sufficient for the fact which 
 stamps the Compromise, (for into that measure the suggestions 
 of Mr. M'Lane eventually ripened,) as a Southern measure, con- 
 ceived and shadowed forth, and afterwards embodied as such ; 
 and also shows it to have been a deliberate and considered 
 measure — meditated for upwards of a year before it was adopted. 
 
 The vote was taken on Mr. Taylor's f>roposition, the first 
 clause of it to restrict the Territory, and it was handsomely re- 
 jected — 68 to SO — in Committee of the Whole, where there are 
 
 * The stipulations in the treaty of cession on wLich the province was ceded, and 
 which constituted a compact with France. 
 
 6 
 
82 EXAMINATION OF THE 
 
 no yeas and nays ; many of the nortliern members voting with 
 the slave-State members, who were in an absohite minority of 
 the House. But when the same vote came to be repeated in 
 the House, where there are yeas and nays, it was as near even 
 as could be to miss it — TO to 71 — the proposition being only 
 rejected by one vote ; a difference in the voting which showed 
 many free-State members to be, in their private feelings and 
 judgment, what they could not openly show themselves to be- 
 But Mr. Taylor's proposition consisted of two parts : the first 
 prohibiting the future introduction of slaves into the Territory ; 
 the second acting upon those already there, and emancipating 
 the slave children born there, at the age of twenty-five years ; 
 and this part of the proposition was carried — a close vote, 75 to 
 73 — and Mr. Lewis Williams, of ISTorth Carolina, being -one of 
 the seventy-five. His name being low down in the alphabetical 
 order, and the vote so close as to raise the apprehension that the 
 clause would be carried, he voted with the aftirmatives, that, 
 being one of the majority, he would have the right to move a 
 reconsideration, which he immediately did, and lost it by two 
 votes, some members having come in. It was a mistake in him ; 
 for his vote, taken from the afiirmatives, and given to the nega- 
 tives, would have made the two stand 7^, 74 ; and the support- 
 ers of the proposition holding the afiirmative of the question, 
 and not getting a majority, would be defeated, and that without 
 the casting vote of the Speaker, which is only efiective when he 
 votes with the afiirmatives ; and in this case, he would go with 
 the negatives. The case now looked desperate. To emancipate 
 the slave children born in Arkansas, was equivalent to saying 
 none such should be born there, or that they should be carried 
 away before arriving at the liberating age. To do this in 
 Arkansas was equivalent to doing it in all Louisiana, as Arkan- 
 sas covered the southern half of the province ; and excluded 
 from there it would stand no chance to go north. It was more 
 extensive in its efi'ects than the Missouri State restriction, and 
 more odious to the slaveholding States, because further south. 
 The question would immediately come up again upon the en- 
 grossment of the bill, and ordering it to be read a third time. 
 The exigency called for the cool judgment, the urbane deport- 
 ment, and captivating address, of Mr. Lowndes ; and he an- 
 swered the call. Consultinor a moment with some friends, Mr. 
 
SUPREME court's DECISIO^f, ETC. 83 
 
 Scott, of Missouri, Mr. Weldon N. Edwards, of ISTorth Carolina, 
 and Messrs. Colston and Pindall, of Virginia, he took his course, 
 and moved that the bill be laid upon the table — saying, at the 
 same time, that to prevent surprise, and ensure a full vote, he 
 would himself move a call of the House the next day, at twelve 
 o'clock, and then immediately take the final vote. All the 
 Northern members whose feelings were with the South, imme- 
 diately called out " that is fair ! " and the bill was laid ujDon the 
 table by a good vote. 
 
 This was a respite for the night, and an occasion for anxious 
 consultation. The course agreed upon was a decided one — that 
 a motion to recommit the bill to a select committee, with instruc- 
 tions to strike out the emancipation clause, should be made ; 
 and that Mr. George Robertson, of Kentucky, the reporter of 
 tlie bill, should make the motion. He made it. The vote was 
 even — 88 to 88 — and the motion lost, except for the casting vote 
 of the Speaker, (Mr. Clay,) which was promptly given, and the 
 bill re-committed, with the instruction. The select committee 
 was Mr. George Eobertson, of Kentucky, Mr. Lowndes, of South 
 Carolina, Messrs. Nathaniel Silsbee and Elijah H. Mills, of Mas- 
 sachusetts, and Mr. "William H. Burwell, of Virginia. The in- 
 struction was quickly complied with, and the bill returned to 
 the House, when the question Avas to concur with the committee 
 in the striking out which they reported. The vote was — 89 for 
 the concurrence ; 87 against it. So that the question was car- 
 ried by a majority of two, which was only a diiference of one 
 man. But the struggle was not yet over. Mr. Taylor continued 
 his anti-slavery motions, which were finally modified into the 
 following : 
 
 " That neither slavery nor involuntary servitude shall hereafter be 
 introduced into any part of the territories of the United States, lying 
 north of 36 degrees and 30 minutes of north latitude." 
 
 Tliis was not the subsequent famous Missouri Compromise ; 
 for that compromise left out the State of Missouri, and this in- 
 cluded it. It was, in fact, the continuation of the line which 
 divides Virginia from I^orth Carolina, and Kentucky from Ten- 
 nessee ; and which would cross the Mississij^pi and continue to 
 the Rocky Mountains, without any deflexion. Mr. Philip P. 
 Barbour, of Virginia, replied to this proposition. He said : 
 
84 EXAinxATTo> or the 
 
 " He was opposed to Mr. Taylor's amendment, and to all others of 
 similar character. He spoke with much earnestness against the proposi- 
 tion, and at some length, as partial and inexpedient — arguing that if the 
 principle was wrong in itself, it ought not to be withheld from one part 
 of the Territory and applied to another : that it was legislating partially 
 by applying a rule to the one portion, and a different rule to another 
 portion of citizens having equal rights under similar circumstances. If 
 the rule was wrong at the 25th degree of latitude, it was equally so at 
 the 40th. He argued that it was as impolitic as it was unjust, to draw 
 this line. It was proper to let a future Congress act on it, as it should 
 then seem expedient ; and this opinion, as well as others which he ad- 
 vanced, he maintained at some length." 
 
 Sucli was the replj of Mr. Barbonr, one of tlie ablest lawyei-s, 
 one of the closest adherents of State rights, and of constitutional 
 strict constniction, which the Yirginia school of lT9S-'99 pro- 
 duced. He saw much wrong in Mr. Taylor's proposition — all 
 the injury that is now seen in preventing slaveholders in re-' 
 straining southern emigration — but no violation of the Consti- 
 tution , and he was afterwards a justice of the Supreme Court 
 of the United States, and died as such. His objections rose no 
 higher than to the class of inexpedient, and several members 
 concurred with him. The discussion became heated ; some 
 Kortheni members showed themselves indisposed to it ; and Mr. 
 Taylor, seeiug more opposition than he had expected, withdi'ew 
 his proposition, saying it was not probable any line would be 
 agreed upon by the House, or any compromise of opinion 
 effected. The bill was then read a third time — sent to the 
 Senate for concurrence — concurred in there ; and Arkansas be- 
 - came a separate Territory, free from slavery restriction. 
 
 I have deemed it right to give this detailed account of the 
 attempt to exclude slavery from Arkansas ; and to show by 
 what narrow chances that attempt was defeated. It shows 
 more clearly than any thing else — more clearly than the Mis- 
 som-i controversy itself — the danger which beset the Union at 
 that time, and greatly enhances the merits of that compromise, 
 which, a year afterwards, averted that danger. It also shows 
 the first germination of the idea of that compromise — that it 
 came from Mr. Louis M'Lane, with the sanction of Southern 
 members, and took the compromise line in the ordinance of 
 '87 for its ffuide and model. 
 
SUPKEME COUKt's DECISION, ETC. 85 
 
 I return to the Missouri bill, and to the movements of which 
 it continued to be the subject in the two Houses. The session 
 of 181S-'19, had terminated, leaving the bill lost in the disa- 
 greement of the two Houses. It was the short session, termi- 
 nating the 3d of March ; the long recess of nine months to 
 intervene before Congress met again ; and, in the mean time, 
 the question becoming more aggravated and injSamed from the 
 daily inflammatory appeals to the public mind : popular meet- 
 ings, harangues, newspaper publications, denunciations, violent 
 resolves. By the time Congress met in December, the whole 
 country was aroused, the geographical line fully developed, and 
 the two halves of the Union arrayed against each other. Things 
 were far worse than at the end of the last session. Public 
 opinion at home, and town-meeting resolves, were bearing 
 down the moderate members from the free States who opposed 
 the restriction, or even favored compromise. At the same time 
 the Territory of Missouri had taken its stand — determined not 
 to be restricted ; and it was well known that the slave States 
 would stand by her in a body. So dark an hour had never 
 been seen for the Union as at the commencement of this session 
 — 1819-20 ; and that darkness continued to deepen during three 
 agonizing months. It was during this time that the whole 
 country became convulsed, and patriots disheartened, and when 
 many of them, in letters now extant, gave vent to their mis- 
 givings and despair. It was during this time that Mr. Madison 
 wrote that letter, in reply to Mr. "Walsh, wholly directed against 
 restricting the State of Missouri, wdiich has been so strongly 
 applied to the compromise — not then broached. And it was 
 during this time that our Congress, profoundly penetrated with 
 a sense of the public danger, exhibited all the varieties of fervid 
 and patriotic eloquenc® — close reasoning, calm argument, im- 
 passioned declamation, gorgeous elocution : and all with the 
 impressive earnestness of a real contest involving the fate of the 
 country. And it was now that Pinkney, of Maryland, delivered 
 that great speech which consummated his oratorical fame, and 
 which was worthy to call forth all his powers; for he was 
 speaking of that Union which patriot heroes had formed, and 
 which it now required patriot heroes to save. 
 
 In this state of the public mind Congress met, December, 
 1819. Bills to enable the Ten-itory of Missouri to hold a con- 
 
86 EXAMINATION OF THE 
 
 Tention to form a State government, were early introduced into 
 eacli House ; and the friends of compromise in tlie free States, 
 who were still able to follow their inclinations, were vigilant 
 and ready, and preoccupied the ground with their conciliatory 
 propositions. Mr. Storrs, of New York, always respectable and 
 sometimes grand in debate, and well disposed to do justice to 
 the South, offered a proposition upon the basis of dividing the 
 whole territory about equally between the two classes of States ; 
 but he proposed the parallel of 38 degrees — which would not 
 suit the friends of Missouri, and came to nothing. Mr. Thomas, 
 of the Senate, from Illinois, also friendly to the slave States, 
 proposed a compromise upon the same principle, but on a dif- 
 ferent line — 36° 30', exclusive of Missouri : being the same that 
 was eventually adopted. Each House had a bill of its own, and 
 both were at work on the same subject, at the same time : for, 
 in fact, nothing else could be attended to in Congress, nor 
 talked of in the country. The friends of compromise had taken 
 the advance in each House ; but their pacific propositions were 
 quickly superseded, and lost sight of, by the introduction of 
 others of a different character. Mr. Burrill, of Khode Island, 
 in the Senate, and Mr. John "W. Taylor, of ISTew York, in the 
 House, respectively proposed the imposition of the restriction 
 upon the State of Missouri ; and, from that time, a long interval 
 before conciliatory measures could be admitted to any attention. 
 It was the ITth of February before a vote was obtained in the 
 Senate on Mr. Thomas's amendment — when it was carried by a 
 vote of 34 to 10. But this vote included several Senators who 
 would not vote for the bill when so amended ; so that, on 
 ordering the bill to a third reading, the vote was 24 to 20. 
 Thus, in the Senate the bill stood as the friends of Missouri 
 wished it ; to wit : the restriction rejected, and the compromise 
 accepted. But this bill would stand no chance in the House in 
 a trial of strength there : address and management alone could 
 save her : and there was room for something to be done in that 
 way. Massachusetts had divided herself to form the State of 
 Maine : it was determined in the Senate to unite the two, (Mis- 
 souri and Maine,) and keep them together : that was one hold 
 upon the House. ' Then there was another. The Missouri re- 
 striction bill, passed by the House, would come to the Senate 
 for concurrence ; it was determined there to amend it by 
 
SUPREME COUKT's DECISION, ETC. 87 
 
 striking out tlie restriction, and inserting the Thomas Compro- 
 mise ; and that was a second hold upon that body ; and both 
 were firmly seized. Missouri and Maine, for their admission, 
 were put into one bill, and would go down to the House, united 
 — to sink or swim together. The Missouri House bill would 
 carry back the compromise, in place of the restriction which it 
 brought up ; and thus, address and management, laying hold 
 of coincident circumstances, were working well for the settle- 
 ment of the question, and for the harmony and preservation of 
 the Union. It was the second of March when the vote was 
 obtained on the bill with Mr. Thomas's amendment, and when 
 it was carried by a vote of almost two to one — 27 to 15.* All 
 these affirmative votes affirmed the constitutionality, and the 
 expediency of the compromise ; and it was an imposing list of 
 names. The whole negative vote affirmed the same constitu- 
 tionality ; for it was given on the principle of total exclusion of 
 slavery from the whole province of Louisiana. 
 
 The question was now in the House, and the restriction on 
 the State having been greatly debated, and the two Houses 
 become mutually impeded by the state of their resjtective bills 
 — for, while each could check the other, neither could carry its 
 own — some of the most strenuous of the restrictionists had 
 begun to relax, and to hold the language of conciliation, and 
 to propose the application of the restriction to Territories alone. 
 In this sense Mr. John W. Taylor spoke, and acted, and took 
 the initiative for his party. (It was on the 14th of December, 
 1819.) He said : 
 
 " He rose to iuvite the attention of the House to a subject of very 
 great moment. The question of slavery in the territories of the United 
 States west of the MississipjDi, it was well known, had at the last session 
 of Congress excited feelings, both in the House and out of it, the recur- 
 
 * The detail of the affirmative vote was : Messrs. James Barbour, of Vir. ; James 
 Brown, of Lou. ; Eaton, of Tenn. ; Ninian Edwards, of El. ; John Elliott, of Geo. , 
 Gaillard, of S. C. ; Horsay, of Del. ; William Hunter, of R. I. ; R. M. Johnson, of 
 Ken. ; Henry .Johnson, of Lou. ; William Rufus King, of Ala. ; James Lanman, of 
 Conn. ; Walter Leake, of Mppi. ; Edward Lloyd, of Md. ; William Logan, of Ken. ; 
 Nathaniel Macon, of N. C. ; John F. Parrott, of N. H. ; William Pinknej, of Md. ; 
 James Pleasants, of Vir. ; William Smith, of S. C. ; Montford Stokes, of N. C. ; Jesse 
 B. Thomas, of 111. ; Nicholas Van Dyke, of Del. ; John W. Walker, of Ala. ; Freeman 
 Walker, of Geo. ; Thomas H. Williams, of Mppi. ; and John Williams, of Tenn. 
 
88 EXAMINATION OF THE 
 
 rence of whicli he sincerely deprecated. All who love our country, and 
 consider the Union of these States as the ark of its safety, must view 
 with deep regret sectional interests agitating our national councils. 
 He could not himself, nor would he ask others, to make a sacrifice of 
 principle to expediency. He could never sanction the existence of 
 slavery where it could be excluded, consistently with the Constitution 
 and public faith. But it ought not to be forgotten that the American 
 family is composed of many members : if their interests are various, 
 they must mutually be respected ; if their prejudices are strong, they 
 must be treated with forbearance. He did not know whether concilia- 
 tion was practicable, but he considered the attainment worthy of an 
 effort. He was desirous that the question should be settled in that 
 spirit of amity and brotherly love, which carried us through the perils 
 of the Revolution, and produced the adoption of our Federal Constitution. 
 If the resolution he was about to introduce should be sanctioned by the 
 House, it was his purpose to move a postponement of the Missouri bill 
 to a future day, that this interesting subject, in relation to the whole 
 Western Territory, may be submitted to the consideration of a committee." 
 
 Mr. Taylor tlien introduced the following resolution : — 
 
 ^'■Eesolved^ That a Committee be appointed to inquire into the ex- 
 pediency of prohibiting by law the introduction of slaves into the Ter- 
 ritories of the United States west of the Mississippi." 
 
 This resolution, limited to Territories, and presented as a feeler 
 to compromise, was received in the spirit in which it was made — as 
 a proposition for a compromise ; and, therefore, to bo kindly en- 
 tertained. But it was not adopted in haste, but, on the motion 
 of Mr. Strother, of Virginia, laid upon the table until the next 
 day, " to give time for reflection." The next day it was taken up, 
 and, as the result of the night's reflection was adopted the next 
 day, without debate, and, without division ! a strong symptom 
 that no one in the House, at that time, saw any thing unconsti- 
 tutional in legislating upon slavery in Territories. A committee 
 of seven was appointed : — Messrs. John"W. Taylor ; Livermore, of 
 N, H. ; P. P. Barbour, of Virginia; Lowndes; Fuller, of Mass. ; 
 Hardin, of Kentucky ; Cuthbert, of Georgia. The committee 
 could not agree upon a plan, and would not report a mere 
 majority proposition as a basis of compromise ; and, upon their 
 own request, were discharged from the consideration of the 
 
SUPKEME COUET's DECISION, ETC. 89 
 
 subject. Mr. Taylor tlien introduced a ]3eremptory resolution, 
 that a committee be appointed, with instructions to bring in a 
 bill prohibiting the further admission of slaves into the Terri- 
 tories of the United States west of the river Mississippi. In com- 
 mendation of this resolution, Mr. Taylor made the following re- 
 markable declaration : — " He helievccl there was no meoiiber — he 
 knew of none — wJio doiibted the Constitutional power of Congress 
 to impose such a restriction on the Territories ', and the only 
 question which the Mil could present was one of expediency.''^ 
 This was a remarkable declaration, addressing itself to every 
 member of the House, and calling for immediate rectification, 
 if there was any mistake in it. There was no remark made upon 
 it, one way or the other. The declaration of Mr. Taylor must 
 then be taken to be true — that there was not a member of the 
 House who did not hold that Congress had the right to abolish 
 slavery in the Territories. Other parts of the resolution were 
 remarked upon ; and, without being acted upon, it went to its 
 place on the calendar, not to be reached until after the Missouri 
 bill should be disposed of, and in the adjustment of which the 
 Southern and Western members preferred that the territorial 
 question should be settled. 
 
 This was the 27th of December. It was a month afterwards 
 — just a month (26th January) — before the subject was mention- 
 ed again, when it came up on a motion from Mr. Storrs, of New 
 York, to amend the bill, (that of the House,) by inserting a com- 
 promise clause — nearly the same which afterwards came down 
 from the Senate. It was on statins: his understandino; of the 
 effect of that motion, that General Smith of Maryland declared 
 the j)ower of Congress to be unlimited and supreme in the 
 Territories — a declaration which no one impugned. Tliese were 
 his words — all that he said on the ]3oint : — 
 
 " He rose principally with a view to state his understanding of the 
 proposed amendment ; viz. : — That it retained the boundaries of 
 Missouri, as delineated in the bill — that it prohibited the admission of 
 slaves west of the west line of Missouri, and north of the north line — 
 that it did not interfere with the Territory of Arkansas, or the uninhab- 
 ited laud west thereof. With this understanding, he thought the prop- 
 osition not exceptionable, but doubted the propriety of its forming a 
 part of this bill. He considered the power of Congress over the Terri- 
 tory as supreme, unlimited, before the admission — that Congress could 
 
90 EXAMINATION OF THE 
 
 bestow on its Territories any restrictions that it thought proper, and the 
 people, when they settled therein, did so under a knowledge of the re- 
 striction." 
 
 Kow, General Smith was not a lawyer, but he was a man of 
 vigorous common sense, of close business habits, of a thinking 
 turn of mind, and large political and legislative experience — 
 having been in Congress from the beginning of Washington's 
 administration. The opinion of such a man, upon the legislative 
 powers of Congress, is always something, and in this case his opin- 
 ion was weighty — for it was decisive, and no one impugned it. 
 
 There was, in fact, no question raised on the point of power ; 
 no one disputed it, and no one argued it ; but, from time to 
 time, different members expressed their opinions, chiefly in illus- 
 tration of the difference between States and Territories, and the 
 power of Congress over them, or in elucidation of clauses in the 
 Constitution. Thus Mr. M'Lane, of Delaware :— 
 
 " No little reliance has been placed by the honorable mover upon 
 the clause in the Constitution, vesting in Congress a power to dispose 
 of, and make all needful rules and regulations respecting the territory, 
 or other property of the United States. I do not propose to enter 
 minutely into the inquiry, whether the power of Congress to establish a 
 Territorial Grovernment is derived from this clause. I incline to the 
 opinion that it is not. The power here conferred is a power to dispose 
 of, and make needful rules respecting the property of the United States- 
 It was designed, I think, to authorize the sale of the land for purposes 
 of revenue, and all regulations which might be deemed necessary for its 
 proper disposition ; or to convert it to other public objects disconnected 
 with sale or revenue — to retain this power even after the territory 
 had assumed the State government, and perhaps to divert from the State 
 government the right of taxing it, as it would do the property of indi- 
 viduals. It is silent as to the people; and their slaves are the property 
 of their owners, and not of the government. The right of governing a 
 Territory is clearly incident to the right of acquiring it. It would be 
 absurd to say that the government might purchase a Territory, with a 
 population upon it, and not have the power to give them laws : but from 
 whatever source the power is derived, I admit it to be plenary, so long 
 as it continues in a state of territorial dependence, but no longer. I am 
 willing at any time to execute this power. The condition of the people 
 of a Territory is, to be governed by others — of a State, to goA^ern them- 
 selves." 
 
SUPREME COUKt's DECISION, ETC. 91 
 
 So spoke Mr. M'Lane, a lawyer, and one of the ablest men in 
 Congress. In that part of his understanding, of the " needful 
 rules and regulation " clause, he is coincident with the late Opin- 
 ion of the Supreme Court, but diametrically opposed to them 
 in the derivation of the power of Congress over Territories — 
 they construing it, generally, out of the Constitution — ^he deriv- 
 ing it direct from sovereignty and ownership. And in his 
 whole opinion of this j)Ower as being plenary and absolute, 
 whether derived from sovereignty, or from the quoted clause in 
 the Constitution, he so entirely coincides with the former opin- 
 ions of the Supreme Court as twice delivered by Chief Justice 
 Marshall, (heretofore quoted,) that it would be held to be a rep- 
 etition of those decisions were it not for the fact that it was 
 before them. 
 
 Nearly to the same effect was the opinion of General Alex- 
 ander Smyth, of Yirginia, and one of the best legal and most in- 
 vestigating minds in Virginia, and who, in the progress of the 
 Missouri Bill, expressed himself thus : — 
 
 " It has been contended that this clause (the needful rules and regu- 
 lation clause) gives a power of legislation over persons and private prop- 
 erty within the Territories of the United States. The clause obviously 
 relates to the territory belonging to the United States as property only- 
 The power given is to dispose of, and make all needful regulations 
 respecting the territorial property, or other property of the United 
 States, and Congress have power to pass all laws necessary and proper 
 to the exercise of that power. This clause speaks of the territory as 
 property, as a subject of sale. It speaks not of the jurisdiction. That 
 the Convention considered sufficiently provided for by the Ordinance of 
 Congress. This clause contains no grant of power to legislate over per- 
 sons and private property within a Territory. A power to dispose of, 
 and make all needful regulations respecting the property of the United 
 States, is very different from a power to legislate over the persons and 
 property of the citizens. When it was the intention of the Convention 
 that the Constitution should convey to Congress power to legislate over 
 persons and private property, they expressed themselves in terms not 
 doubtful. Thus, they said, Congress shall have power to exercise exclu- 
 sive legislation in all cases whatsoever within the ten miles square. But 
 no such power to legislate over the Territories is granted." 
 
 Mr. Smyth is very distinct in his exposition of the meaning 
 of this clause — the needful rules and regulation clause. He 
 
92 EXAMINATION OF THE 
 
 considers that clause as only applying to the management of 
 property, and that limited to the property of the United States. 
 He considers it no grant of the jurisdiction or right of govern- 
 ment : that, to wit^ jurisdiction and government, being provided 
 for by the Ordinance. This is historically, as well as logically 
 true. The Ordinance and the Constitution were each parts, and 
 essential parts of the same system — made at the same time, by 
 the same men, (it maybe said,) and for the same purpose, that of 
 founding and settling the Union. Each was necessary — the 
 Ordinance for the government of the Territories ; the Constitu- 
 tion for the government of the States. It was necessary to settle 
 the political condition of the Territories, and the Ordinance was 
 their Constitution. It framed their Governments, and the Con- 
 stitution had nothing to do with them. This is what Mr. 
 Smyth means, and what history, and the obvious meaning of 
 language, justifies him in saying, to wit, that the needful rule 
 and regulation clause did not confer jurisdiction, and give the 
 right of government to the Territories, hecause that had heen pro- 
 vided for hj the Ordinance. The Ordinance was made for the 
 Territory of the United States, then in possession or expectation. 
 It was not made under the Articles of Confederation, for 
 there was no authority in those articles to make it ; it was 
 not made under the Constitution, for it was made before it. By 
 what authority, then, was it made ? By right of ownership) 
 both of soil and jurisdiction, and by virtue of the compacts with 
 the ceding States ; and the new Territory is governed in the same 
 way — not by virtue of any tiling in the Constitution, but by 
 virtue of proprietary rights of soil and jurisdiction — as an inci- 
 dent to its acquisition — and by virtue of the comj^acts with 
 France in the treaty of the cession. And this is what Mr. 
 Smyth says in this most pregnant passage of his. A right to 
 use the soil as property, and to govern the people politically, 
 until prepared to govern themselves, necessarily resulted from 
 these premises ; and the right of government was full and com- 
 plete, limited only by the compacts and the treaty. The ordi- 
 nance of '87 compromised the slavery question in Territories by 
 dividing them about equally between the free and the slave 
 States ; the Congress of 1820 had the same right to compromise, 
 and were under the same inducement to do so ; and did it. 
 I say the same inducement, and mean what I say ; for the com- 
 
SUPKEME COUET'S DECISION, ETC. 93 
 
 promise of '87 made the Union, and tlie compromise of 1820 
 saved it. 
 
 I hasten to tlie actnal compromise. 
 
 The debate in the House was npon the restriction of the State 
 of Missouri, moved by Mr. John "VV. Taylor, and most bitterly 
 contested. It was not until the last day of February that the 
 vote was obtained on the motion of Mr. Taylor, and that it was 
 carried by 94 to 86 ; and the bill was passed the next day by a 
 vote nearly the same. In the mean time the bill for the admis- 
 sion of Maine had returned from the Senate, with the Missouri 
 bill attached to it, and embracing the compromise proposition 
 moved by Mr. Thomas. The House promptly disagreed to these 
 amendments, and a committee of conference was appointed, 
 which came in with a compromise proposition — that the Senate 
 should recede from their amendment adding Missouri to Maine, 
 and the House give up the restriction, and take the compromise 
 in its place. Pending this conference, the Missouri House bill 
 returned from the Senate with the restrictions struck out, and the 
 compromise inserted — the same which Mr. Storrs offered in the 
 House, and Mr. Thomas in the Senate. Tlie compromise was 
 then in both bills — the one from the Senate, and the one from 
 the House ; and the struggle became close and intense, — on one 
 side, to strike out the compromise — on the other to retain it ; for 
 that question included in its result the fate of the bill, and with 
 it the fate of the Union. The esteemed Mr. Lowndes, always 
 listened to with deference by the House, was the first to speak, 
 and earnestly for the compromise ; but the reported debates 
 only give briefly the points of his speech, thus : — 
 
 " Mr. Lowndes spoke briefly in support of the compromise recom- 
 mended by the Committee of Conference, and urged with great earnest- 
 ness the propriety of a decision which would restore tranquillity to the 
 country ; which was demanded by every consideration of discretion, of 
 moderation, of wisdom, and of virtue." 
 
 Mr. Kinsey, of New Jersey, a Free State member wlio had 
 voted steadily through two sessions for the restriction, was too 
 seriously impressed with the dangers of the country to continue 
 that vote any longer. He determined to change his vote, and 
 gave his reasons publicly for it. He said : — 
 
94 EXAMINATION OF THE 
 
 '' A period has now arrived when it becomes necessary to close this 
 protracted debate, and, as I shall vote for the compromise offered by 
 the Senate, it is proper to state my reasons for so doing. We have ar- 
 rived at an awful period in the history of our empire, when it behooves 
 every member of this House now to pause, and to consider that on the 
 next step we take depends the fate of unborn millions. I firmly believe 
 that on the question now before us rest the highest interests of the 
 whole human family. Now, sir, is to be tested whether this grand 
 and hitherto successful experiment of free government is to continue, 
 or, after more than forty years' enjoyment of the choicest blessings of 
 Heaven under its administration, we are to l)reak asunder on a dispute 
 about the division of territory. Gentlemen of the majority have treated 
 the idea of a disunion with ridicule ; but to my mind, it presents itself 
 in all the horrid, gloomy features of reality : and when we unfold the 
 volume of past ages, and, in the history of man, trace the rise and fall 
 of governments, we find trifles, light as air compared to this, dissolving 
 the most powerful confederacies, and overturning extensive empires. 
 If we inquire what causes operated to destroy the Amphyctionic League, 
 or dissolve the German Confederacy, in almost every case we find ques- 
 tions of territorial jurisdiction, and what, for ages, has deluged Europe 
 in blood ? disputes concerning territorial rights. On questions of this 
 high and mighty import, it behooves us to make our approaches with 
 the most awful consideration. What at this period is a matter of con- 
 jecture, may in a short time become real history. It is not a question 
 like that heretofore, in which a diversity of opinion commingled in the 
 same society where a division of sentiment, on subjects political, spread 
 itself over the whole Union ; but on this question the division is, not 
 of individuals, but of States — and of States almost equally divided. 
 And what is the case now before us ? Opinions from which every gen- 
 tleman, a few months past, would have recoiled with horror, as treason 
 to imagine, are now unhesitatingly threatened. That which had no 
 ideal existence, engendering as this discussion progresses, assumes a 
 positive shape ; and mixing with this unpropitious debate, presents itself 
 in all the dreadful appearances of reality. May God, in mercy, inspire us 
 with a conciliatory spirit, to disperse its fury and dispel its terrible con- 
 sequences." 
 
 Other members from Free States, like Mr. Kinsey, changed 
 their votes, and gave their reasons for doing so — among others, 
 Mr. Stephens, of Connecticut. Thus : — 
 
 " If gentlemen are in favor of any compromise, it is a fit time to 
 discuss that subject, and see if any can be hit on that will give general 
 
SUPEEME COUET's DECISION, ETC. 95 
 
 satisfaction. We Iiave now arrived at a point at wbicli every gentleman 
 agrees something must be done. A precipice lies before us, at wbich 
 perdition is inevitable. Gentlemen on both sides of this question, and 
 in both Houses, in doors and out of doors, have evinced a determination 
 that augurs ill of the high destinies of this country ! and who shall not 
 tremble for the consequences ? I do not pretend to say that, in just 
 five calendar months your Union will be at an end ; but I do say, and 
 for the verity of the remark cite the lamentable history of our own 
 time, that the result of a failure to compromise at this time, in the way 
 now proposed, or in some other way satisfactory to both, would be to 
 create ruthless hatred, irradieable jealousy, and a total forgetfulness of 
 the ardor of patriotism, to which, as it has heretofore existed, we owe, 
 under Providence, more solid, rational glory and social happiness, than 
 ever before was possessed by any people, nation, kindred, or tongue, 
 under Heaven." 
 
 Amidst such appeals the eventful question was called, and 
 resulted 13-1 for the compromise to 42 against it^ — a majority 
 of three to one, and eight over. Such a vote was a real com- 
 promise ! a surrender on the part of tlie restrictionists, of strong 
 feeling to a sense of duty to the country ! a settlement of a dis- 
 ti'acting territorial question upon the basis of mutual concession, 
 and according to the principles of the ordinance of 1787. Such 
 a measure may appear on the statute book as a mere act of 
 Congress ; and lawyers may plead its repealability : but to 
 those who were cotemporary with the event, and saw the sacri- 
 fice of feeling, or prejudice, which was made, and the loss of 
 popularity incurred, and how great was the danger of the 
 country from which it saved us, it becomes a national compact, 
 founded on considerations higher than money : and which good 
 faith and the harmony and stability of the Union deserved to 
 be cherished next after the Constitution. 
 
 Of the 42 who voted against the compromise, there was 
 not one who stated a constitutional objection : all that stated 
 reasons for their votes, gave those of expediency — among others 
 that it was an imequal division, which was true, but the fault of 
 the South ; for, while contending for their share in Louisiana, 
 they were giving away nearly all below 36° 30' to the King of 
 Spain.'^ There being no tie, the speaker (Mr. Clay) could not 
 
 * Mr. Justice Catron notices tliis inequality of tlie division, and considers it a 
 great aggravation of an aggressive measure : 
 
 " The Missouri Compromise line of 1820 was very aggressive : it declared that 
 
96 EXAMINATION OF THE 
 
 vote ; biit his exertions were as zealous and active in support 
 of it, as indispensable to tlie pacification of the country. 
 
 From Congress the bill went to the President for liis appro- 
 val ; and there it underwent a scrutiny which brought out the 
 sense both of the President and his cabinet upon the precise 
 point which has received the condemnation of the Suj^reme 
 Court, and exactly contrary to the Court's decision. There was 
 a word in the restrictive clause which, taken by itself and with- 
 out reference to its context, might be construed as extending 
 the slavery prohibition beyond the territorial condition of the 
 country to which it attached — might be understood to extend 
 it to the State form. It was the word " forever." Mr. Mon- 
 roe took the opinion of his cabinet upon the import of this 
 word, dividing his inquiry into two questions — whether the 
 word would apply the restriction to Territories after they be- 
 came States ? and whether Congress had a right to impose the 
 restriction upon a Territory ? Upon these two questions, the 
 opinion of the cabinet was unanimous — negatively, on the first ; 
 afiirmatively, on the other. These questions were put formally, 
 and with a view to official and responsible answers. A sepa- 
 rate, written interrogatory was addressed to each member of his 
 cabinet, and a written answer required. These answers, so re- 
 quired, were received by the President, and by him delivered 
 to his Secretary of State (Mr. John Quincy Adams) to be filed 
 in the Department of State : and it is in full proof that they 
 were so filed — though no longer to be found there. The opinions 
 of the cabinet were unanimous, uj^on both points submitted to 
 them ; and that cabinet was a majority Southern, and the Presi- 
 dent himself a Southern man. Mr. Monroe was the President ; 
 Mr. Crawford, Secretary of the Treasury ; Mr. Calhoun, Secre- 
 tary at "War ; Mr. "Wirt, Attorney General. And thus, all the 
 branches of the legislative power — the President, the Senate, 
 
 slavery was abolished forever throughout a country reaching from the Mississippi 
 River to the Pacific Ocean, stretching over thirty-two degrees of longitude, and twelve 
 and a half degrees of latitude on its eastern side, sweeping over four-fifths, to say no 
 more, of the original province of Louisiana." — Mr. Justice Catron. 
 
 The answer to this is, that the South made the treaty which gave away so much 
 of Louisiana, but as it was all got back, and more too, before the abrogation of the 
 Missouri Compromise Act, the inequality of the division could no longer be male a 
 subject of regret. 
 
SCTPKEME court's DECISION, ETC. 97 
 
 and the House of Representatives — were of accord on the 
 question of this compromise, both as it regards constitution- 
 ality and expediency : and it may be well said, the three 
 branches were never abler than at that time. Mr. Monroe him- 
 self an experienced man, of sound judgment, and one of the 
 fathers of the Constitution : his cabinet, admitted to be one of 
 the strongest that we have ever had : the Senate, a solid body 
 of able men — Pinkney, of Maryland, the orator and the jurist, 
 the prominent and brilliant figure : in the House, a long list of 
 eminent men, of whom Clay and Lowndes shone most conspic- 
 uous. And in that House, and in the thick array of its emi- 
 nent men — themselves eminent — two, who, if Providence liad 
 spared their lives, might have prevented the condemnation of 
 the compromise in the Supreme Court: I speak of Henry 
 Baldwin, of Pennsylvania, and Philip P. Barbour, of Virginia 
 — both members of the House at the time of the compromise 
 — ^both supporting its constitutionality, (one by his speech, the 
 other by his vote :) both afterwards Justices of the Supreme 
 Court ; and who could hardly be expected to change their old 
 opinions thirty-seven years after they had acted so responsibly 
 upon them. Upon the supposition of their continued life, and 
 seats on the bench, and unchanged opinions, the decision of 
 the Court might have deen different. 
 
 It is true, that in the year 1848, when the new dogma was 
 invented of " 'No power in Congress to act upon slavery in a 
 Territory," Mr. Calhoun forgot that he had supported the Mis- 
 souri Compromise, and argued that he could not have done so ; 
 but it is equally true that ten years before, to wit, in 1838, he 
 had not forgotten it ; but remembered very well that he then 
 supported the Compromise, and blamed Mr. Randolph for op- 
 posing it. It was at that period that Mr. Calhoun had occasion, 
 in the Senate, to speak of that measure, and his course in rela- 
 tion to it, and did so in these words : — 
 
 " He was not a member of Congress when that compromise was 
 made, but it is due to candor to state, that his impressions were in its 
 favor ; but it is equally due to it to say that, with his present expe- 
 rience and knowledge of the spirit which then, for the first time, began 
 to disclose itself, (abolitionism,) he had entirely changed his opinion. 
 He now believed that it was a dangerous measure, and that it has done 
 7 
 
98 EXAMIXATION OF THE 
 
 much to rouse into action the present spirit. Had it then been met 
 with uncompromising opposition, such as a then distinguished and saga- 
 cious member from Virginia, (Mr. Randolph,) now no more, opposed to 
 it, abolition might have been crushed forever in its birth. He then 
 thought of Mr. Randolph as, he doubts not, many think of him now, who 
 have not fully looked into the subject, that he was too unyielding — too 
 uncompromising — too impracticable ; but he had been taught his error, 
 and took pleasure in acknowledging it." * 
 
 Thus, in 1838 — eighteen years after the Compromise — Mr. 
 Calhoun well remembered his support of it, and his blame of 
 Mr. Randolph for not supporting it. He also remembered his 
 change of opinion, and the reason for the change, namely, that 
 it encouraged the abolitionists; and up to that time, (1838,) he 
 had no constitutional objection to the Compromise — nothing 
 but its tendency to encourage abolitionism. But it needed not 
 this avowal of Mr. Calhoun to invalidate his subsequent for- 
 getting so material a point. It was fully proved — 1. By a letter 
 from Mr. Monroe to General Jackson : 2, By the diary of Mr. 
 Adams : 3. By the Index-book in the Department of State, re- 
 ferring to the filing of the Cabinet answers : 4. By traditionary 
 history, which told of the Cabinet consultation, and that its 
 opinion was unanimous.f It is a public loss and a mystery, that 
 
 * The occasion which drew these remarks from Mr. Calhoun was the introduction of 
 his six famous resolutions of the session 1837-38, laying down a code of slavery legis- 
 lation for the District of Columhia and the Territories, aU bottomed upon the constitu- 
 tional right of Congress to legislate upon slavery in these places, but deprecating the 
 exercise of the right by abolishing slavery either in the District or in a Territory where 
 it existed by law, not as a breach of the Constitution but as a " dangerous attack " 
 upon slavery in the States, and leading to the dissolution of the Union. The dogma 
 of " No power in Congress to legislate upon slavery in Territories," had not then been 
 invented, and owes its discoveiy to a period ten years later. 
 
 f Extract from Mr. Dix's speech, above referred to : 
 "The Senator from Florida (Mr. Westcott) read to the Senate yesterday the /ac- 
 simile of an original paper found among the manuscripts of Mr. Monroe, and in his 
 handwriting, by which it appears, that when the Missouri Compromise Act, as it is 
 called, was passed, he took the opinions of the members of his Cabinet, in writing, in 
 respect to the constitutionality of that act. The Senator from South Carolina (Mr. 
 Calhoun) was one of the Cabinet ; and as I took and endeavored to sustain, on a late 
 occasion, the position that Congress possesses the right to prohibit slavery in the Ter- 
 ritories of the United States, I am naturally desirous of fortifying it with all the 
 authority I can command ; and I shall be particularly gratified, if it shall be found 
 that the distinguished Senator alluded to, though now denying the right, was then in 
 fiivor of it. I will read to the Senate all of this paper which relates to the subject : 
 
SUPKEME court's DECISIOX, ETC. 99 
 
 these Cabinet answers, so carefully obtained by Mr. Monroe, 
 and intended to be preserved as an archive of the government 
 in the Department of State, should have disappeared from that 
 office. Many searches were made for them without effect — the 
 last nnder General Taylor's administration, when Mr. John M. 
 Clayton was Secretary of State ; but nothing could be found 
 but the Index entry of their filing, as stated by Mr. Adams in 
 
 (From Mr. Monroe's manuscripts.) — A paper endorsed " Interrogatories, Missouri — 
 March 4, 1820. — To the Heads of Departments and Attoi'ney General." 
 Questions, (on opposite page :) 
 
 " Has Congress a right, under the powers vested in it by the Constitution, to make 
 a regulation prohibiting slavery in a Territory ? 
 
 " Is the eighth section of the act which passed both Houses on the 3d instant, for 
 the admission of Missouri into the Union, consistent with the Constitution ? " 
 
 With the above is the original draft of the following letter, in President Monroe's 
 handwriting, on half a sheet of paper, but not endorsed or addressed to any one- 
 There are interlineations, but the text, as left by the writer, is as fohows : — 
 
 " Dear Sir : The question which lately agitated Congress and the public has been 
 settled, as you have seen, by the passage of an act for the admission of Missouri as a 
 State, unrestrained, and Arkansas likewise, when it reaches maturity, and the estab- 
 lishment of the 36" 30' north latitude as a line, north of which slavery is prohibited, 
 and permitted to the south. I took the opinion, in writing, of the Administration as 
 to the constitutionality of restraining Territories, [and the vote of every member teas 
 unanimous and^'\ which was explicit in favor of it, and as it was that the 8th section of 
 the act was applicable to Territories only, and not to States when they should be ad- 
 mitted into the Union. On this latter point I had at first some doubt; but the 
 opinion of others, whose opinions were entitled to weight with me, supported by the 
 sense in which it was viewed by all who voted on the subject in Congress, as will ap- 
 pear by the journals, satisfied me respecting it." 
 
 This letter has been supposed to have been written to General Jackson, though 
 there is no evidence of the fact. 
 
 Mr. Calhoun: "If the Senator will give way, it will be perhaps better that I make a 
 ttatement at once respecting this subject, as far as my recollection will serve me. 
 During the whole period of Mr. Monroe's administration, I remember no occasion on 
 which the members of his Administration gave written opinions. I have an impres- 
 sion — though not a very distinct one — that on one occasion they were required to give 
 written opinions ; but for some reason, not now recollected, the request was not carried 
 into effect. He was decidedly opposed to the imposition of any restriction on the 
 admission of Missouri into the Union, and I am strongly of the impression that he was 
 opposed in feeUng to what was called the Missouri Compromise." 
 
 Mr. Johnson, of Maryland : " Is this the original letter ? ' 
 
 Sir. Dix : " I understand it to be a facsimile of the original. As a long period 
 (nearly thirty years) has elapsed since the act to admit Missouri into the Union was 
 passed, it is quite natural that the Senator from South Carolina should have forgotten 
 the circumstances attending the discussion of it in the Cabinet. Having heard, some 
 days ago, of the existence of such a paper, and being very desirous of ascertaiuincr 
 
100 EXAiONATIOlS OF THE 
 
 bis diary. This sliows that Mr. Calhoun saw nothing unconsti- 
 tutional in the Missouri Compromise in 1838 : another sena- 
 torial act of his shows that he saw nothing unconstitutional in 
 it in ] 847, when he voted, in an amendment to the Oregon Ter- 
 ritorial Bill, to extend the Compromise line to the Pacific 
 Ocean — a thing not to be done, if the line was unconstitutional, 
 and null and void. 
 
 the facts, I wrote to Mr. Charles F. Adams, of Boston, a son of the late ex-President, 
 inquiring of him if his father's diary contained any thing on the subject. In reply to 
 my inquiry, I received an extract from the diary of the father, certified by the son, 
 which I will now read, and which confirms fully the statement contained in Mr. Mon- 
 roe's letter : 
 
 Extracts from the Diary of J. Q. Adams. 
 
 " Maech 3, 1820. — ^AVhen I came this day to my oSice, I found there a note, re- 
 questing me to call at one o'clock at the President's house. It was then one, and I 
 immediately -^eut over. He expected that the two bills, for the admission of Maine 
 and to enable lilissouri to make a Constitution, would have been brought to him for 
 his signature ; and he had summoned all the members of the Administration to ask 
 their opinions in -writing, to be deposited in the Department of State, upon two ques- 
 tions : 1. Whether Congress had a constitutional right to prohibit slavery in a Terri- 
 tory? and 2, Whether the 8th section of the Missouri bill (which interdicts slavery 
 forever in the Territory north of 36^ latitude) was applicable only to the territorial 
 state, or would extend to it after it should become a State ? As to the first question, 
 it was unanimously agreed that Congress have the power to prohibit slavery in the 
 Territories." 
 
 This is the first extract ; and before I proceed to the others, I will state that, in 
 respect to the second question, there was a diversity of opinion — Mr. Adams contend- 
 ing that a State would be bound by such a prohibition after its admission into the 
 Union, and the other members of the Cabinet, that it was only operative during the 
 territorial term. In order to secure unanimity in the answers, the second question 
 was modified, as will appear by the remaining extracts, which I proceed to give : 
 
 " March 5. — ^The President seilt me yesterday the two questions in writing, upon 
 which he desired to have answers in writing, to be deposited in the Department of 
 State. He wrote me that it would be in time, if he should have the answers to-mor- 
 row. The first question is in general terms, as it was stated at the meeting on Friday. 
 The second was modified to an inquiry, whether the 8th section of the Missouri biU 
 is consistent with the Constitution. To this I can without hesitation answer, by a 
 simple afiirmative, and so after some reflection I concluded to answer both. * * 
 
 " March 6. * * * I took to the President's my answer to his two constitu- 
 tional questions, and he desired me to have them deposited in the Department, together 
 with those of the other members of the Administration. They differed only as they 
 assigned their reason for thinking the 8th section of the Missouri bill consistent with 
 the Constitution, because they considered it as only applying to the territorial term ; 
 and I barely gave my opinion, without assigning for it any explanatory reason. The 
 President signed the IMissouri bill this morning." 
 
 These extracts are certified to be " a true copy from the original by me, 
 
 " Charles Fr^vncis Adams." 
 
SUPKEME court's DECISION, ETC. 101 
 
 It was at the conclusion of tliis eventful session (1819-'20), 
 and in allusion to the momentous struggle through which the 
 House had passed, and its happy termination, that Mr. Clay, in 
 taking leave of the House, and in returning his acknowledg- 
 ments for the vote of thanks received, after expressing his personal 
 regrets at parting from so many friends, rose to a higher senti- 
 ment, and said : — 
 
 " But interesting as have been the relations in which I have stood, 
 for many years, to this House, I have yet higher motives for continuing 
 to behold it with the deepest solicitude. I shall regard it as the great 
 depository of the most important powers of our excellent Constitution 
 — as the watchful and faithful sentinel of the freedom of the people — as 
 the fairest and truest image of their deliberate will and wishes ; and, as 
 that 'branch of the Government where — if our beloved country shall, 
 unhappily, be destined to add another to the long list of melancholy 
 examples of the loss of public liberty — we shall witness its last strug- 
 gles and its expiring throes." 
 
 It was in the year 1820 that this great compromise was 
 effected. Twenty-five years afterwards it received a re-enact- 
 ment, and under circumstances the most impressive. It was in 
 the year 1845, and on the occasion of the legislative admission 
 of the State of Texas into the Union. In the previous year, 
 annexation by treaty had been refused ; legislation was held by 
 many to be the indispensable basis to any incorporation ; and, 
 accordingly, that mode of annexation prevailed. Early in the 
 session, 1844-'45, the last of Tyler's administration, a joint reso- 
 lution was brought into the House of Representatives for the 
 admission of that Republic as a State into the Union. It was 
 in these words : — 
 
 " That Congress doth consent that the territory properly included 
 within, and rightfully belonging to the Republic of Texas, may be 
 erected into a new State, to be called the State of Texas, with a repub- 
 lican form of government, to be adopted by the people of said Republic, 
 by deputies in convention assembled, with the consent of the existing 
 Government, in order that the same may be admitted as one of the 
 States of this Union ; and that the foregoing consent of Congress is given 
 upon the following conditions, and with the following guarantees : 
 " Article I." (Relates to settlement of boundaries.) 
 " Article II." (Relates to public property and vacant lands.) 
 
102 EXAMINATION OF THE 
 
 " Article III. New States, of convenient size, not exceeding four 
 in number, in addition to said State of Texas, and having sufficient 
 population, may hereafter, by the consent of said State, be formed out 
 of the territory thereof, which shall be entitled to admission under the 
 provisions of the Federal Constitution. And such States as may be 
 formed out of that portion of said Territory lying south of thirty-six 
 degrees thirty minutes, north latitude, commonly called the Missouri 
 Compromise line, shall be admitted into the Union, with or without 
 slavery, as the people of each State asking may desire ; and, in such 
 State or States as shall be formed out of said Territory, north of said 
 Missouri Compromise line, slavery, or involuntary servitude (except for 
 crime), shall be prohibited." 
 
 Here is a complete re-enactment of tlie Missouri Compro- 
 mise Act, and with such particularity that the line is both 
 astronomically marked by its latitude — 36 degrees 30 minutes — 
 and also nominated, and twice nominated, by its popular de- 
 scriptive aj)pellation of " the Missouri Compromise Line.^^ It 
 is a copy of the Compromise clause in the act of March 6th, 
 1820, copied to a word, except one, and that one word omitted 
 is as significant of identification as any one of those employed. 
 It is the word " forever," prefixed to prohibit. Tlie Missouri 
 Compromise of 1820 has it; the Texas Compromise of 1845 
 omits it, and not by accident, but for a reason, as well under- 
 stood by all who were cotemporary with the event. It was that 
 word whicli occasioned the cabinet consultation under Mr. 
 Monroe — that word which raised the question whether the re- 
 striction would follow the Territory, and stick to it after it 
 became a State ? and on which all the cabinet of Mr. Monroe 
 were required to give written opinions, to be filed in the Depart- 
 ment of State, for perpetual reference. Mr. Calhoun was a 
 member of Mr. Mom-oe's Cabinet at the time of the Missouri 
 Compromise, and of Mr. Tyler's at the time of the Texas Com- 
 promise. As Secretary of State, he drew up the joint resolution 
 for the admission of Texas, and, recollecting the trouble which 
 the word '■'■ forever " had occasioned in one cabinet of which he 
 was a member, he took care to prevent a like occurrence in 
 another, of which he was head. This is the reason of the omis- 
 sion of that word ; and its omission goes still further to identify 
 the latter Compromise as the copy — copy in spirit as well as in 
 words — of the former ; and Mr. Calhoun its author, a fact other- 
 
SUPREME COUEt's DECISION, ETC 103 
 
 wise well known at tlie time. Among persons from the South it 
 has hecome the vogue to decry the Missouri Compromise, and 
 to prejudice it with the imputation of being a Northern meas- 
 ure, while its history shows the contrary ; and being an event 
 long since passed, and its history inaccessible to the community, 
 many are persuaded to believe in the fable. But not so with 
 the Texas Compromise ; it is recent, the actors are still on the 
 stage, and the witnesses alive ; and there is no room for mis- 
 take, or deception, or misrepresentation, or misconception, 
 about it. The event is of our own day, and the performers 
 (most of them) still in being. It was done under a Southern 
 administration — an administration not merely of the South, but 
 ultra South ; of the extreme South Carolina States' Rights 
 school. Mr. John Tyler was President ; Mr. Calhoun Secretary 
 of State, with the ascendant in the cabinet which it is the pre- 
 rogative of genius to take over inferior minds ; and that cabinet 
 was a unit for the measure. One hundred and twenty mem- 
 bers of the House — a full majority, and nearly every Southern 
 member — voted for it.'"^ The negatives (97 in number) were 
 
 * Their names are: Messrs. Archibald H. Arrington, John B.Ashe, Archibald 
 Atkinson, Thomas H. Bailey, James E. Belser, Benjamin A. Bidlack, Edward J. Black, 
 James Black, James A. Black, Julius W. Rockwell, Gustavus M. Bower, James B. 
 Bawlin, Linn Boyd, Richard Broadhead, Aaron V. Brown, Milton Brown, WilHam J. 
 Brown, Edmund Burke, Armistcad Burt, George Alfred Caldwell, John Campbell, 
 Stephen Carey, Reuben Chapman, Augustus A. Chapman, Absalom H. Chappell, 
 Duncan L. Clerich, James G. Clinton, Howell Cobb, Walter Coles, Edward Cross, 
 Alvan Cullom, John R. I. Daniel, John W. Davis, John B. Dawson, Ezra Dean, James 
 Dellet, Stephen A. Douglass, George C. Dromgoole, Alexander Duncan, Chesselden 
 Ellis, Isaac G. Farlee, Orlando B. Ficklin, Henry D. Foster, Richard French, George 
 Fuller, AViUiam H. Hammett, Hugh A. Haralson, Sam. Hayes, Thomas J. Henley, 
 Isaac E. Holmes, Joseph P. Hoge, George W. Hopkins, George S. Houston, Edmund 
 W. Hubard, AVilliam S. Hubbell, James M. Hughes. Charles J. Ingersoll, John Jame- 
 son, Cave Johnson, Andrew Johnson, George W. Jones, Andrew Kennedy, Littleton 
 Kirkpatrick, Alcee Labranche, Moses G. Leonard, William Lucas, John H. Lumpkin, 
 Lucius Lyon, William C. McCauslen, William B. l\Iaclay, John A. McClernand, Felix 
 Grundy McConnel, Joseph J. McDowell, James J. McKay, James Matthews, Joseph 
 Morris, Isaac E. Morse, Henry C. Murphy, Willoughby Newton, Moses Norris, jr., 
 Robert Dale Owen, WiUiani Parmenter, William W. Payne, John Pettit, Joseph H. 
 Peyton, Emery D. Potter, Zadock Pratt, David S. Reid, James H. Relfe, R. Barn- 
 well Rhett, John Ritter, Robert W. Roberts, Jeremiah Russell, Romulus M. Saunders, 
 Wm. T. Senter, Thomas H. Sej-mour, Samuel Simons, Richard F. Simpson, John 
 Slidell, John T. Smith, Thomas Smith, Robert Smith, Lewis Steemard, Alexander H. 
 Stephens, John Stewart, James W. Stone, Selah B. Strong, Wm. H. Styles, George 
 
104 EXA3HINATI0N OF THE ♦ 
 
 chiefly from the free States. In the Senate, it was carried by 
 Southern votes, and so close, that no two could have been 
 spared. This re-enactment of the Missouri Compromise stands 
 forth, then, as an unmistakable Southern measure — Southern in 
 its conception. Southern in its support, Southern in its consum- 
 mation ; and the speakers for it either all Southern men, or that 
 part from the free States who most cherished the Southern 
 interest. Of these, Mr. Buchanan, one of the most eminent 
 among the ]^ortliern friends of the South, and one of the most 
 zealous for the re-enactment of the Missouri Compromise, thus 
 spoke : — 
 
 " He was pleased with it (the renewed Compromise) again, because 
 it settled the question of slavery. These resolutions went to re-establish 
 the Missouri Compromise, by fixing a line within which slavery was to 
 be in future confined. That controversy had nearly shaken the Union 
 to its centre in an earlier and better period of our history ; but this 
 Compromise, should it be now re-established, would prevent the recur- 
 rence of similar dangers hereafter. Should this question be now left 
 open for one or two years, the country could be involved in nothing but 
 one perpetual struggle. We should witness a feverish excitement in 
 the public mind ; parties would divide on the dangerous and exciting 
 question of abolition ; and the irritation might reach such an extreme 
 as to endanger the existence of the Union itself; but close it now, and 
 it will be closed forever. 
 
 " Mr. B. said he anticipated no time when the country would ever 
 desire to stretch its limits beyond the Rio del Norte ; and such being 
 the case, ought any friend of the Union to desire to see this question 
 left open any longer ? Was it desirable again to have the Missouri 
 question brought home to the people, to goad them to fury ? That ques- 
 
 Sykes, William Taylor, Jacob Thompson, John W. Tibbatts, Tilghman H. Tucker, 
 John B. Weller, John Wentworth, Joseph A. Woodward, Joseph A. Wright, Wm. L. 
 Yancy, Jacob S. Yost. 
 
 The Senators voting for it were : 
 
 Messrs. Allen, of Ohio ; Ashley, of Arkansas ; Atchison, of Missouri ; Atherton, 
 of New Hampshire ; Bagley, of Alabama ; Benton, of Missouri ; Breese, of Illinois ; 
 Buchanan, of Pennsylvania ; Colquet, of Georgia ; Dickinson, of New York ; Dix, 
 of New York ; Fairfield, of Maine ; Hannegan, of Indiana ; Haywood, of North Car- 
 olina ; Henderson, of Mississippi ; Heger, of South Carolina ; Johnson, of Georgia ; 
 Lewis, of North Carolina ; JIcDuffie, of South Carolina ; Men-ick, of Marj'land ; 
 Miles, of Connecticut; Semple, of Elinois; Sevier, of Arkansas; Sturgeon, of 
 Pennsylvania; Tappan, of Ohio; Walker, of Mississippi; Woodbury, of New 
 Hampshire. 
 
SUPEEME COUKt's DECISION, ETC. 105 
 
 tion between the two great interests of our country had been well dis- 
 cussed and well decided ; and from that moment Mr. B. had set down 
 his foot on the solid ground then established, and there he would let the 
 question stand forever. Who could complain of the terms of that 
 Compromise ? It was then settled that north of 36 degrees 30 minutes, 
 slavery should be forever prohibited. The same line was fixed upon in 
 the resolutions recently received from the House of Representatives, now 
 before us. The bill from the House for the establishment of a territo- 
 rial government in Oregon, excluded slavery altogether from that vast 
 country. How vain were the fears entertained in some quarters of the 
 country that the slaveholding States would ever be able to control the 
 Union ! "While, on the other hand, the fears entertained in the South 
 and West, as to the ultimate success of the Abolitionists, were not less 
 unfounded and vain. South of the Compromise line of 36 degrees 30 
 minutes, the States within the limits of Texas applying to come into 
 the Union, were left to decide for themselves whether they would permit 
 slavery within their limits or not. And under this free permission, he 
 believed with Mr. Clay (in his letter on the subject of annexation), that 
 if Texas should be divided into five States, two only of them would be 
 slaveholding, and three free States." 
 
 Thus spoke Mr. Buchanan, and, in so speaking, was the 
 accepted mouthpiece, and fair reflector of the sentiments of the 
 large party with whom he acted. And here it is proper to 
 explain the reason why it became necessary to re-enact the Mis- 
 souri Compromise line; and the explanation is found in the 
 history of the times. Thus : six months after the establishment 
 of the Missouri Compromise line, the treaty with Spain was 
 ratified, by which a new boundary with that power was estab- 
 lished, by which Texas was brought up to the river Arkansas 
 in about north latitude 37 ; and followed that river, north-west, 
 to its source, above latitude 39 — according to the treaty, as far 
 as north latitude 42. Texas admitted slavery, and her laws 
 and constitution spread the institution all over her territory ; 
 and as the parallel of 36° 30'— about 450 miles of it— fell within 
 her territory, the Missouri Compromise line was, to that extent, 
 efiaced. It was to restore it in that effaced part, being in fact 
 much the greatest part of it, that the line was re-established in 
 the compact for admitting Texas into the Union. This is a clear 
 case of Congress legislating upon slavery in a Territory ; and the 
 distinction taken that it was done by compact, and not law, is 
 
106 EXAMINATION OF THE 
 
 Tinfoiinded and absurd. Tlie compact itself is only a law of 
 Congress, agreed to by Texas ; and the law passed before Texas 
 acted : and the Constitution is paramount over treaties and 
 compacts as over laws. ISTeither statute, treaty, nor compact 
 can alter the Constitution, nor do any thing contrary to it : and 
 the only difference between the Texas and Missouri Compro- 
 mises is, that while both rest upon acts of Congress, one has 
 been made the foundation of a proceeding with a foreign power. 
 Quere : Can the Supreme Court invalidate this re-enacted line ? 
 This brings down the sanctions of the Missouri Compromise 
 to the year 1845 — being twenty-five years after its first enact- 
 ment — ample time it might be supposed for its constitutionality 
 to be questioned, if there was ground for it ; and ample time for 
 it to have been found out, if such was the fact, that its enact- 
 ment worked an inequality of the States, and involved degrada- 
 tion and injury to a part of them. No such things were then 
 discovered, and we will now go forward four years further, and 
 under another administration, and that a Southern one, and 
 show that same measure still receiving the sanction of those 
 who have since commenced its repudiation. This further sanc- 
 tion was also on a responsible legislative measure — the estab- 
 lishment of the Oregon territorial government, August, 1848. 
 The bill had come up from the House without any thing in it 
 on the subject of slavery : Mr. Hale moved to extend the anti- 
 slavery ordinance of '87 to the Territory, and it was done. 
 Mr. Douglass moved to extend the Missouri Compromise line to 
 the Pacific Ocean, and tliat motion received the follovring vote : 
 Yeas — Messrs. Atchison, of Mri. ; Badger, of N. C. ; Bell, of 
 Tenn. ; Benton, of Mri. ; Berrian, of Geo. ; Borland, of Ark. ; 
 Bright, of Ind. ; Butler, of S. C. ; Calhoun, of S. C. ; Cameron, 
 of Penn. ; Davis, of Mppi. ; Dickinson, of K Y. ; Downs, of 
 Lou. ; Fitzgerald, of Mich. ; Foote, of Mppi. ; Hannegan, uf 
 Ind. ; Houston, of Tex. ; Hunter, of Yir. ; Johnson, of Md. ; 
 Henry Johnson, of Lou. ; Johnson, of Geo. ; King, of Ala. ; 
 Lewis, of Ala. ; Mangum, of N. C. ; Mason, of Yir. ; Metcalf, of 
 Ken. ; Pearce, of Md. ; Sebastian, of Ark. ; Spruance, of Del. ; 
 Sturgeon, of Penn. ; Turney, of Tenn. ; Underwood, of Ken. 
 The amendment itself, thus ofiered by Mr. Douglass, was not 
 merely an extension of the line in a particular case, but a re- 
 
SUPREME court's DECISION, ETC. 107 
 
 vival, and a general and perpetual enforcement of the Missouri 
 Compromise line on all Territories. It was in these words : — 
 
 " That the line of 36 degrees, 30 minutes of north latitude, known 
 as the Missouri Compromise line, as defined by the eighth section of an 
 Act entitled, ' An Act to authorize the people of the Missouri 
 Territory to form a constitution and State government, and for the 
 admission of such State into the Union on an equal footing with the 
 original States, and to prohibit slavery in certain Territories, ap- 
 proved March 6th, 1820,' be, and the same is hereby declared to 
 extend to the Pacific Ocean; and the eighth section, together with the 
 compromise therein efi"ected, is hereby revived, and declaimed to be in 
 full force and binding for the future organization of the Territories of 
 the United States, in the same sense, and witk the same understanding, 
 with which it was originally adopted." 
 
 It was on Thursday, August the 10th, 1848 (for in cases of 
 sudden political conversions it is profitable to look to dates, 
 even to a day) — it was on this first decade of the second month, 
 of the second half, of the year 1848, that this vote passed in the 
 American Senate ; and it must be received as the highest sanc- 
 tion of the compromise on the part of those voting for it, which 
 could be devised. It is not merely an extension of the compro- 
 mise line : it is also its perpetuation, and application of it to all 
 the United States Territories — to enter into their organization, 
 and to be in full force, and binding upon them. Such a vote 
 went beyond the admission of constitutionality : it went to the 
 merits and expediency of the measure — approved it under every 
 aspect. It even went beyond the words of the Missouri act — 
 entered its spirit — seized its sense and intent, as understood at 
 the time of its adoption ; — and solemnly sanctioned and pre- 
 served the whole. Certainly, with respect to those so voting, 
 and they were men to vote responsibly, nothing more could be 
 asked. Constitutionality, and expediency, were equally vouched 
 for. The 33 affirmative votes were a majority of the Senate: 
 the amendment was incorporated with the bill, and went to the 
 House for its concurrence, where it received the vote of the 
 Southern members, and some part of their friends in the free 
 States — 82 in all ; * not enough to carry it : so it was disagreed 
 
 * The members of the House voting in favor of concurring with the Senate, i. e. 
 Mr. Douglass's amendment, were : — Messrs. Adams, Atkinson, Barringer, Barrow, 
 
108 EXAMINATION OF THE 
 
 to, and returned to the Senate. It was in tlie niglit, and the 
 last night of the session ; and Mr. Benton, fearing the loss of the 
 Oregon bill in the disagreement between the two Houses, moved 
 that the Senate recede from its amendment. Then came another 
 vote on the Missouri Comjjromise clause ; and twentj-five Sen- 
 ators — being the array that always stood most firmly for the 
 South * — voted against receding ; that is to say, in favor of ex- 
 tending, enforcing, preserving, and perpetuating the Missouri 
 Compromise line, and making it applicable to all Territories. It 
 was called the Missouri Compromise line, and, astronomically, 
 the extension would have been the same as the original part, 
 but politically far difierent and stronger ; for the Louisiana part 
 went through territory, all slave, and made one side of the line 
 free; the California part would go through territory, all free, 
 and make one part slave. This was an effect which many of 
 the free State members of the House, usually voting with the 
 South on slavery questions, could not stand : and hence the loss 
 of the amendment there. 
 
 This vote in the Senate was accompanied by declarations of 
 their opinions by several Senators — among others, by Mr. John- 
 son, of Maryland, who said : " He helieved in the exutence of the 
 jpoioer in Congress to pass a law to 'prohibit slavery^ and if such 
 a law were prese'rited to the Supreme Court for a decision on its 
 constitutionality, it would he in favor of the laio. As a judicial 
 question, the decision would he against protection to the SouthJ" 
 On a previous bill providing territorial governments for Oregon, 
 California, and New Mexico, he had said that he should him- 
 
 Bayly, Beale, Bedinger, Birdsall, Bocock, Botts, Bowdon, Bowlin, Boyd, Boydon, 
 Brodliead, Charles Brown, Albert G. Brown, Buckner, Burt, Cabell, Chapman, Chase, 
 Reverly L. Clarke, Clingman, Howell Cobb, Williamson R W. Cobb, Cocke, Crozier, 
 Daniel, Donnell, Garnett Duncan, Alexander Evans, Featherston, Flournoy, French, 
 Fulton, Gayle, Goggin, Greene, Willard P. Hall, Haralson, Harmanson, Harris, Haskell, 
 Hill, Hilliard, Isaac E. Holmes, George S. Houston, Charles J, Ingersoll, Iverson, 
 Andrew Johnson, Rob ert W. Johnson, George W. Jones, John W. Jones, Kaufman, 
 Thomas Butler King, Ligon, Lumpkin, McDowell, McKay, M'Lane, Meade, Morehead, 
 Outlaw, Pendleton, Phelps, Pillsbury, Preston, Rhett, Roman, Shepperd, Stanley, 
 Stephens, Thomas, Jacob Thompson, John B. Thompson, Robert A. Thompson, 
 Tompkins, Toombs, Venable, Wallace, and Woodward — 82. 
 
 * Their names : — Messrs. Atchison, Badger, Bell, Berrien, Borland, Butler, Cal- 
 houn, Davis of Mississippi, Downs, Foote, Hunter, Johnson of Maryland, Johnson of 
 Louisiana, Johnson of Georgia, Lewis, Mangum, Mason, Metcalfe, Pearce, Rusk, 
 Sebastian, Turney, Underwood, Westcott, and Yulee — 25. 
 
SUPREME court's DECISION, ETC. 109 
 
 self have submitted an amendment adopting tlie line of the Mis- 
 souri Compromise, had he not been anticipated in his motion 
 by a Senator from Indiana (Mr. Bright). 
 
 The passage of the Oregon bill gave occasion to President 
 Polk to exj^ress his opinion of the Missouri and Texas com- 
 promises — ^their happy effects in tranquillizing the Union, and 
 the necessity of preserving them inviolate. He said : — 
 
 " In December, 1819, application was made to Congress by the 
 people of the Missouri Territory, for admission into the Union as a 
 State. The discussion upon the subject in Congress involved the ques- 
 tion of slavery, and was prosecuted with such violence as to produce 
 excitements alarming to every patriot in the Union. But the good 
 genius of conciliation which presided at the birth of our institutions 
 finally prevailed, and the Missouri Compromise was adopted. This 
 compromise had the effect of calming the troubled waves, and restoring 
 peace and good will throughout the States of the Union. I do not 
 doubt that a similar adjustment of the questions which now agitate the 
 public mind would produce the same happy results. If the legislation 
 of Congress on the subject of the other Territories shall not be adopted 
 in a spirit of conciliation and compromise, it is impossible that the coun- 
 try can be satisfied, or that the most disastrous consequences shall fail to 
 ensue. When Texas was admitted into our Union, the same spirit of 
 compromise which guided our predecessors in the admission of Missouri, 
 a quarter of a century before, prevailed without any serious opposition. 
 The Joint Kesolution for annexing Texas to the United States, approved 
 March 1st, 1845, provides that, ' such States as may be formed out of 
 that portion of the Territory lying south of 36 degrees 30 minutes north 
 latitude, commonly called the Missouri Compromise line, shall be ad- 
 mitted into the Union with, or without slavery, as the people of such 
 State asking admission may decide. And to such State or States as 
 shall be formed out of said Territory north of the Missouri Compromise 
 line, slavery or involuntary servitude (except for crime) shall be pro- 
 hibited. The Territory of Oregon lies far north of 36 degrees 30 min- 
 utes, the Missouri and Texas Compromise lines. Its southern boundary 
 is the parallel of 42, leaving the intermediate distance to be 330 geo- 
 graphical miles. And it is because the provisions of this bill are not 
 inconsistent with the terms of the Missouri Compromise, if extended 
 from the Rio Grande to the Pacific Ocean, that I have not felt at liberty 
 to withhold my sanction. Had it embraced Territories south of that 
 compromise, the question presented for my consideration would have 
 been of a far different character, and my action upon it would have cor- 
 
110 EXAMINATION OF THE 
 
 responded with my convictions. Ouglit we now to disturb the Missouri 
 and Texas compromises ? Ought we, at this late day, in attempting to 
 annul what has been so long established, and acquiesced in, to excite 
 sectional divisions and jealousies — to alienate the people from different 
 portions of the Union from each other — and to endanger the existence 
 of the Union itself ?" 
 
 These were the earnest and patriotic appeals of Mr. Polk, in 
 favor of the two compromises ; one of which restored peace to 
 a distracted country, the other brought Texas into the Union. 
 He prayed for the perpetuity of these healing measures, not 
 only in liis message on the Oregon bill, but also in his last an- 
 nual message — the last of his most formal communications to 
 Congress : in that last message he repeated his sentiments, 
 saying :— 
 
 " Upon a great emergency, and under menacing dangers to the Union, 
 the Missouri Compromise line with respect to slavery was adopted. The 
 same line was extended further west on the acquisition of Texas. After 
 an acquiescence of near thirty years in the principles of compromise 
 recognized and established by these acts, and to avoid the danger to the 
 Union which might follow, if it were now disregarded, I have heretofore 
 expressed the opinion that that line of compromise should be extended 
 on the parallel of 36° 30' from the western boundary of Texas, where it 
 now terminates, to the Pacific Ocean." 
 
 Such were the reiterated sentiments of President Polk, up 
 to the end of his presidential service, which, unfortunately, was 
 only precursor to the termination of his life. Far from seeing 
 any thing in the Missouri Compromise violative of the Consti- 
 tution, or insulting and injurious to the slave States, or as mak- 
 ing an inequality in the States, he saw in it only beneficent and 
 felicitous effects — pacification of the country, extinction of a 
 rising conflagration, and preservation of the Union. He was a 
 Southern man and a slaveholder, and certainly could not be 
 blind to dangers to Southern States and slaveholders ; his cabi- 
 net, also, were men of the South, or l^orthern men deep in South- 
 ern sympathies, principles, and feelings : James Buchanan, 
 Secretary of State ; Eobert J. Walker, of the Treasury ; Wil- 
 liam L. Marcy, of ^ew York, War Department ; John Y. Mason, 
 I^avy ; Cave Johnson, Postmaster-General ; Isaac Toucey, At- 
 torney-General. 
 
SUPKEME court's DECISIOjST, ETC. Ill 
 
 The year 1850 presents tlie last instance to be given of 
 Southern sanction of the Missouri Compromise line — a date suf- 
 ficiently recent to avoid the statute of limitations, if any date 
 can be late enough to prevent the running of that statute against 
 mutable politicians. Mr. Calhoun was then dead : Mr. Davis, 
 of Mississippi, seemed to succeed to the head of his party ; and 
 in the discussion of Mr. Clay's compromise scheme, reported 
 from the Committee of Thirteen, demanded the extension of the 
 Missouri line to the Pacific Ocean, and the recognition of slavey 
 on the south side of that line ; and declared these terms to be 
 the least that he would take. Thus : — 
 
 " I here assert that never will I take less than the Missouri Com- 
 promise line extended to the Pacific Ocean, with the specific recognition 
 of the right to hold slaves in the Territory below that line ; and that, 
 before such Territories are admitted into the Union as States, slaves may 
 be taken there from any of the United States, at the option of their 
 owners." 
 
 Mr. Clay replied to the demand of Mr. Davis, and said : — 
 
 " I am extremely sorry to hear the Senator from Mississippi say 
 that he requires, first, the extension of the Missouri Compromise line to 
 the Pacific, and, also that he is not satisfied with that, but requires, if I 
 understood him correctly, a positive provision for the admission of 
 slavery south of that line. And now, sir, coming from a slave State as 
 I do, I owe it to myself, I owe it to truth, I owe it to the subject, to say 
 that no earthly power could induce me to vote for a specific measure for 
 the introduction of slavery where it had not before existed, either south 
 or north of that line. Coming as I do from a slave State, it is my 
 solemn, deliberate, and well-matured determination, that no power — no 
 earthly power — shall compel me to vote for the positive introduction of 
 slavery either south or north of that line. Sir, while you reproach, and 
 justly too, our British ancestors for the introduction of this institution 
 upon the continent of North America, I am, for one, unwilling that the 
 posterity of the present inhabitants of California and of New Mexico, 
 shall reproach us for doing just what we reproach Great Britain for 
 doing to us. If the citizens of these Territories choose to establish 
 slavery, and if they come here with Constitutions establishing slavery, I 
 am for admitting them with such provisions in their Constitutions ; but 
 then it will be their own work, and not ours ; and their posterity will have 
 to reproach them, and not us, for forming Constitutions allowing the in- 
 stitution of slavery to exist among them. These are my views, sir, and 
 
112 EXAMINATION OF THE 
 
 I choose to express them ; and I care not how extensively, or universally 
 they are known." 
 
 Mr. Turney, of Tennessee, moved the amendment to cover 
 the demand of Mr. Davis : it was to extend the Missouri Com- 
 promise line to the Pacific, limiting the State of California to 
 the north side of that line, and establishing slavery to the south 
 of it. His amendment consisted of two sections, and constituted 
 a ne ^v bill, and was in these words : — 
 
 " When it shall be made to appear to the President of the United 
 States, by satisfactory evidence, that the people inhabiting the Territory 
 of California, (or so much of said Territory as is comprehended in the 
 limits proposed by this bill as the boundaries of the State of California,) 
 assembled in convention, have agreed to a line not further south than 
 the parallel of 36 degrees 30 minutes north latitude, as the southern 
 boundary of said State, and limited the representation of said State to 
 one State until after the next census of the inhabitants of the United 
 States, the said State of California may be admitted into the Union upon 
 the proclamation of the President, upon an equal footing with the origi- 
 nal States. 
 
 " Sec, 2, And he it further enacted^ That the line of 36 degrees 30 
 minutes north latitude, known as the Missouri Compromise line, as de- 
 fined in the eighth section of an act entitled, ' an act to authorize the 
 people of the Missouri Territory to form a Constitution and State Gov- 
 ern7nent, and for the admission of such State into the Union on an equal 
 footing ivith the original States, to prohibit slavery in certain Terri- 
 tories,'' approved March 6th, 1820, be, and the same is declared to 
 extend to the Pacific Ocean : and the said eighth section, together with 
 the compromise therein effected, is hereby revived, and declared to be 
 in full force and binding for the future organization of the Territories of 
 the United States in the same manner and with the same understanding 
 with which it was originally adopted.'* 
 
 For this amendment twenty-four Senators voted ; to wit : — 
 Messrs. Atchison, Badger, Barnewell, Bell, Berrien, Butler, 
 Clemens, Davis, of Mississippi; Dawson, of Georgia; Downs, 
 of Louisiana; Foote, Houston, Hunter, (R. M. T.), King, of 
 Alabama ; Mangum, Mason, Morton, of Florida ; Pearce, of 
 Maryland ; Pratt, of Maryland ; Eusk, of Texas ; Sebastian, of 
 Arkansas ; Soule, of Louisiana ; Turney, of Tennessee ; and 
 Yule(?, of Florida. 
 
 It was Tuesday, the 6th day of August, Anno Dornini 1!^"^ 
 
SUPREME court's DECISION, ETC. 113 
 
 that this vote was given ; so that up to that clay, this array of 
 Senators, reputed to represent Southern interests, feelings, and 
 principles, saw nothing unconstitutional, unjust, or derogatory to 
 other States in it ; and adopted it in spirit and understanding, 
 and with the same intent of perpetual observance with which 
 it was originally adopted. That understanding was, that Con- 
 gress had power to legislate upon slavery in Territories, and to 
 abolish it therein when it saw fit, and that such legislation 
 worked no inequality in the States ; and, in the particular case 
 of the Missouri Compromise act, the partition of the province of 
 Louisiana between free and slave States was a continuation of 
 the policy which divided the territory east of the Mississippi, 
 between the same classes of States ; and as necessary then to 
 save the Union as the ordinance of 1787 had been to save it. 
 This is the "understanding" to which those Senators bound 
 themselves who voted for Mr. Turney's amendment, on Tuesday, 
 the 6th day of August, Ajmo Domini 1850. The amendment 
 was not agi-eed to. Thirty-two Senators voted against it — not 
 for unconstitutionality, but for being the reverse in its effects 
 of the measure it professed to extend, the original line acting on 
 territory all slave, and abolishing it on one side ; the extension 
 acting upon territory all free, and establishing slavery where 
 it never had been. The non-extension of this line was a great 
 subject of complaint, and deluded many people into a belief of 
 its injustice — deceived by a name which, being the same 
 throughout, was exactly the reverse in its practical effect. The 
 California State bill passed : the Compromise line was not ex- 
 tended to the Pacific : ten Senators signed a protest against it, 
 and presented it to the Senate for entry on the journal, (which 
 was refused,) as injurious to the slave States, '■'•fatal to th6])eac6 
 and equality of the States they rejpresented^ and leading^ if per- 
 sisted in, to the dissolution of that coiifederacy in which the 
 slaveholding States have never sought more than an equality, 
 and in which they will not he content to remain with less.'''' This 
 protest was signed by — Messrs. Mason and Hunter, of Virginia ; 
 Butler and Barnewell, of South Carolina ; Mr. Turney, of Ten- 
 nessee ; Mr. Pierre Soule, of Louisiana ; Mr. Jefferson Davis, 
 of Mississippi ; Mr. Atchison, of Missouri ; and Ifessrs. Yulee, 
 and Morton, of Florida. 
 
 It was in this discussion on the Oregon territorial bill that 
 8 
 
114 EXAMINATION OF THE 
 
 Mr. Callioun arrived at his ultimate doctrines ou the slavery 
 question. The extension of the ordinance of '87 to Oregon 
 greatly excited him — proclaiming it the end of the Union.* 
 He denounced that ordinance as proper to constitute the first 
 chapter when the history of the dissolution of this Union should 
 be written : he denounced the Missouri Compromise Act as fit 
 to constitute the second chapter of that same history ; and he 
 denounced the extension of the old ordinance to Oregon as 
 furnishing proper matter for the tliird chapter of that same 
 history. He declined to say wdiat would be the fourth chapter, 
 but clearly intimated its character, f 
 
 But while thus making the Missouri Compromise Act a 
 cause for the dissolution of the Union, and a theme for the 
 future American historian as such, yet it was not for unconsti- 
 
 * " The great strife between the North and the South is ended. Tlie North is de- 
 termined to exclude the property of the slaveholder, and, of course, the slaveholder 
 himself, from its territories. On this point there seems to be no division in the North. 
 In the South, he regretted to say there was some division of sentiment. The effect 
 of this determination of the North was to convert all the Southern population into 
 slaves ; and he would never consent to entail that disgrace on his posterity. He 
 denounced any Southern man who would not take the same course. Gentlemen were 
 greatly mistaken if they supposed the presidential question in the South would over- 
 ride this more important one. The separation of the North and the South is com- 
 pleted. The South has now a most solenm obligation to perform — to herself — to the 
 Constitution — to the Union. She is bound to come to a decision not to permit this to 
 go any further, but to show that, dearly as she prizes the Union, there are questions 
 which she regards as of greater importance than the Union. She is bound to fulfil 
 her obligations as she may best understand them. This is not a question of territorial 
 government, but a question involving the continuance of the Union." — Mr. Calhoun, 
 on Oregon. 
 
 Mr. Bell, of Tennessee, replied to this annunciation and denunciation, saying: 
 
 " He believed that the Senator from South Carolina (Mr. Calhoun), and those who 
 concurred with him, had placed the South in a wTong position, when they assumed 
 that by the decision of this question the die would be cast, and the issue now be made 
 which involves the dissolution of the Union. He contended that the issue was prema- 
 turely made when it was made on the Oregon question. If we are to quarrel with 
 the North, let us be sure that in all respects our ground of dispute be tenable for us." 
 — Mr. Bell's Speech. 
 
 f " Now let me say. Senators, if our Union and system of government is doomed 
 to share the fate of so many great people who have gone before us, the historian, who, 
 in some future day, may record the events leading to so calamitous a result, will 
 devote his first chapter to the ordinance of 1787, as lauded as it and its authors have 
 been, as the first in that series which led to it. His next chapter will be devoted to 
 the Missouri Compromise, and the next to the present agitation. Whether there will 
 be another beyond, I know not ; it will depend on what we may do." — Same speech. 
 
SUPEEME court's DECISION, ETC. 115 
 
 tutionality, but for its effects — for the insult, injustice, degrada- 
 tion of preventing a slaveholder from carrying his slave property 
 (^. €. the law of the State which makes it property) into a com- 
 mon estate, j^rocured by tlie blood and money of all. For this 
 reason he condemned it, but not to abrogation, or repeal, ex- 
 pressly stopping short of these remedies, because of the effect 
 which the " attempt " even would have upon the Union. In 
 this sense, he thus delivered himself : — 
 
 " After an arduous struggle of more than a year on the question, 
 whether Missouri should come into the Union, with or without restric- 
 tions prohibiting slavery, a compromise line was adopted between the 
 North and the South; but it was done under circumstances which 
 made it nowise obligatory on the latter. It is true it was moved by one 
 of its distinguished citizens, (Mr. Clay,) but it is equally so that it was 
 carried by the almost united voice of the North against the almost 
 united voice of the South ; and was thus imposed on the latter by supe- 
 rior numbers in opposition to her strenuous efforts. The South has 
 never given her sanction to it, or assented to the power it asserted. She 
 was voted down, and has simply acquiesced in an arrangement which 
 she has not had the power to reverse, and which she could not attempt 
 to do without disturbing the peace and harmony of the Union — to 
 which she has ever been adverse."* 
 
 I quote this part of the speech for two purposes : first, to 
 show that the dogma of the unconstitutionality of the Missouri 
 Compromise Act, had not at that time, (Aug. 1848,) been invent- 
 
 * " It was on this occasion that Mr. Dix, of New York, brought out the proof that 
 Mr. Calhoun, as a member of Mr. Monroe's cabinet, had given a written opinion in 
 favor of the constitutionality of the Missouri Compromise, and also in favor of its 
 expediency — a fact which he himself had stated in the Senate ten years before, (in 
 1848,) and how he blamed Mr. Randolph for opposing it, and that he had since changed 
 his opinion because it encouraged the abolitionists. As for the rest of his account of 
 the compromise, it was all of a piece with his own forgetfulness of the part he had 
 acted in it — all moonshine and figment of the brain. It was not Mr. Clay who moved 
 the compromise, but it came down from the Senate, where it had been moved by Mr. 
 Thomas, of Illinois, a fiiend to the South, and voted for by every Southern senator, 
 and some of their friends from the North. It had been first suggested in the House 
 the year befor e it was passed by Mr. Louis M'Lane, of a slaveholding State, and as a 
 friend to the South, and as he said, with the approbation of Southern members. It was 
 moved in the House by Mr. Storrs, of New York, a friend of the South, but rejected by 
 Northern votes. It was not imposed upon the South by Northern votes, but sought by 
 the South and obtained by its vote — the whole vote in the Senate and a majority in the 
 House. The South did give her sanction to it, in her almost imdivided support of its 
 re-enactment at the admission of Texas. 
 
116 EXAISnNATION OF THE 
 
 ed ; and, seco7idly^ that its abrogation was not to be attemj^ted, be- 
 cause " the attemrpt to reverse it toould disturlj the peace and har- 
 irwny of the JJnionP Mr. Calhoun was a man of head and sys- 
 tem, and though working at a dissohition of the Union since Jhe 
 year 1830, his system was to throw upon tlie ]^orth the blame of 
 the separation — to make the segregation of the slave States an act 
 of necessity — of self-defence — forced upon them by aggressions, 
 encroachments, and crusades against their slave property. To 
 attack the Missouri Compromise was to give up tliat defensive 
 attitude — to make the South the aggressor — and consequently to 
 make it responsible for disturbing the peace and harmony of the 
 Union, and also for furnishing matter for the contents of that 
 fourth chapter in the history of its dissolution which he shad- 
 owed forth, but forbore to name. 
 
 It was in one of the bills brought forward at this period, 
 (July, 1848,) to give governments to the newly acquired Terri- 
 tories, that Mr. Calhoun gave glimpses of two doctrines which, 
 classing with the vagaries of an over-excited imagination, at- 
 tracted no attention at the time, but have since acquired an 
 ominous pre-eminence ; namely, 1. Tlie self-extension of the 
 Constitution to Territories, carrying slavery along with it. 2. The 
 remission of the slavery question in Territories to the Supreme 
 Court of the United States,* by appeals from the Territorial 
 Courts, authorized to try questions of freedom or slavery between 
 the slave and his master. The first of these doctrines was ex- 
 hibited in the declaration quoted in the introductory note to this 
 examination, that upon the instant of the ratification of the 
 treaty with Mexico, the sovereignty of the United States enter- 
 ed upon the acquii-ed territory, carrying with it the Constitu- 
 
 * " Writs of error and appeals from the final decisions of said Supreme Court shall 
 be allowed, and may be taken to the Supreme Court of the United States, in the same 
 manner and under the same regulations as from the circuit courts of the United States, 
 except only that in all cases involving title to slaves the said writs of error or appeals 
 shall be allowed and decided by the said Supreme Court, without regard to the value 
 of the matter, property, or title in controversy ; and except, also, that a ■mrit of error 
 or appeal shall be allowed to the Supreme Court of the United States from the decision 
 of the Supreme Court created by this act, or any judges thereof, or of the district 
 courts created by this act, or of any judge thereof, upon any writ of habeas corpus 
 involving the question of personal freedom ; and each of the said district courts shall 
 have and exercise the same jurisdiction in all cases arising under the Constitution and 
 laws of the United States, as is vested in the circuit and district courts of the United 
 States; and the first six days of every term of said courts, or so much thereof a' 
 
SUPREME court's DECISION, ETC. 117 
 
 tion, with its overriding control over all the laws and institu- 
 tions of Mexico inconsistent with it. The second was formally 
 proposed in a bill to give governments to California, ^N'ew Mexico, 
 and Oregon, all lumped together in one conglomerate enactment, 
 with a special provision to autliorize the initiation of freedom 
 proceedings in the two former by the slave against his master, 
 either in a trial at law, or upon a writ of habeas corj^iis' with 
 appeal to tlie Supreme Court. This bill passed the Senate, after 
 a curious debate, of more import now than then, but was unce- 
 remoniously repulsed from the House without even the respect 
 of a first reading — being tabled for ever the instant its advent 
 was announced, It was a strange bill, and voted for by those 
 who did vote for it, upon most contradictory reasons — some 
 because they deemed it tlie best kind of a Wilmot proviso — some 
 to gratify Mr. Calhoun, whose solicitude for it was excessive — 
 some as for an absurdity Avhich could not pass, and if it did, 
 could have no operation, as no man would carry a negro free or 
 bond, to California or Kew Mexico, just to try the question of 
 freedom with him, with appeal to the Supreme Court — a trial in 
 which the owner would be loser, whether lie won or lost tlie 
 suit. For the slave being entitled to his liberty while the suit 
 was going on, would be free during that period, say seven 
 years ; and having no property, and subject to no process for 
 costs or damages, the owner would merely get him back at the 
 end of the suit — if he could catch him after seven years of free 
 range from the shores of the Pacific to AYashington City — minus 
 the loss of his labor for the time, his court fees, and lawyers' 
 fees, his personal expenses attending courts in California, and 
 in the District of Columbia, and in his journey ings backwards 
 and forwards all the while, and damage to his other neglected 
 business — ^besides the degradation of being sued by his own 
 negro, and dragged by him across the continent, and outshone 
 by him in the splendor of his living and in liberality to his 
 coimsel (for the anti-slavery societies would supply him with 
 bags of gold, while his poor master would be selling his stinted 
 crops to get the means of carrying on the suit). AYith such 
 
 shall be necessary, shall he appropriated to the trial of causes arising under the said 
 Constitution and laws; and writs of error and appeals, in all such cases, shall be made 
 to the Supreme Court of said Territory, the same as in other cases." — Section 24 of the 
 Conglomerate hill. 
 
118 EXAMINATION OF THE 
 
 coiiseqiTences before liim, no man would cany his slave six 
 thousand miles by water, and over free soil at Panama or Nica- 
 ragua, or three thousand miles over land and Indian country 
 between the old States and the Pacific Ocean, just to begin that 
 suit with him wliicli the Senate's bill proposed. Yet the bill 
 M^as the work of a Select Committee, eight in number, (being 
 three more than the usual Senate committees,) including Mr. 
 Calhoun, and a majority of his friends on the slavery question.* 
 Mr. Badger, of North Carolina, saw in it a surrender of the 
 rights of the South, and as effectual a bar to the introduction of 
 slavery as the Wilmot proviso could have been. He said, " He 
 regarded this bill as a complete surrender of the rights of the 
 South. He believed negro slavery would be as effectually ex- 
 cluded by this bill as if the Wilmot proviso, or any other bill, 
 had passed.f " 
 
 It was in the discussion on this bill that those remarks upon 
 the probable decision of the Supreme Court were made which 
 were quoted in the Introductory Note, and which foreshadowed 
 the fate of any judges who should have to pronounce upon 
 the question of African slavery, as a political question under 
 our Constitution. The remarks and speculations ran right off 
 to the geographical locus in quo of each judge ! and when that 
 could take place in the American Senate, and in anticipation of 
 any decision, what might not be expected after an actual deci- 
 sion, and a strongly developed geographical line, in the line of 
 division between different opinions ? 
 
 It was also in the same bill — the conglomerate for giving 
 governments to three Territories together — that was placed that 
 section, unobserved at the time, as mentioned in the Introduc- 
 tion to this Examination, which proposed to extend the Consti- 
 
 * They were: — Messrs. John M. Clayton, of Delaware; Bright, of Indiana ; Cal- 
 houn, of South Carolina; Clarke, of Rhode Island; Atchison, of Missouri ; Phelps, of 
 Vermont ; Dickenson, of New York ; Underwood, of Kentucky. Of this committee, 
 two of its members, Messrs. Clarke and Underwood, voted against the bill. Of course, 
 the authors of the bill believed that a slave of the African race could maintain a suit in 
 the United States Supreme Court. 
 
 t Mr. Benton voted for it, (taking care to condemn it in his speech,) " to estop Mr^ 
 Calhoun," with a measure of his own — a Wilmot proviso of his own concoction. Cer- 
 tainly, no Wilmot ever devised so efficacious a measure for keeping slavery out of New 
 Mexico and California, and Mr. Benton was perfectly willing that Mr. Calhoun should 
 have that credit. 
 
SUPKEME court's DECISION, ETC. 119 
 
 tution to Territories. It^as in section 35 of the bill — that is to 
 say, in the penultimate section of an enormous bill of 36 sec- 
 tions, where no one would look for a new principle, that this 
 unprecedented novelty found its berth. I^othing but details and 
 matters of form go to the end of the bill — its whole power and 
 character being in a few of the front sections. Parliamentarily, 
 nothing but formal details to cany out a principle can follow 
 the principle, always put foremost. To these front sections the 
 opponents of bills look ; and fighting the battle upon these 
 main sections, the details are left with the friends of the 
 measui'e. They are considered matters of form, to carry out 
 what the leading sections establish ; and, in that point of view, 
 are left to the committee who prepares the bill. Tliis is the 
 case in all bills, even those of considerable length, where the 
 whole could be read in a reasonable time. How much more 
 so in an enormous bill of six and thirty sections ! and that upon 
 as old a subject as territorial government, all the details of 
 which had been a matter of course since the ordinance of 1787. 
 Of such a bill it may well be conceived that none but those who 
 drew it ever saw the concluding sections ; and such I am able to 
 say, upon the highest jjresumptive evidence, was the case with 
 this conglomerate bill of 36 sections. That j^resumption is 
 founded upon two facts : first, that no speaker for, or against 
 the bill, ever alluded to it in a single word spoken ! an absence 
 of remark on such a new and startling provision which can only 
 be accounted for upon the hypothesis of a total absence of all 
 knowledge of its existence. Secondly, that I myself knew 
 nothing of it ! and so actually voted for a bill containing a novel 
 provision, never heard of before — and of absurd impossibility. 
 The section was in these words : 
 
 Section 35. And he ii further enacted^ That the Constitution and 
 laws of the United States are hereby extended over., and declared to he 
 in force in said Territories of California and Neiv Mexico, so far as 
 the same, or any provision thereof, may he applicahle.^'' 
 
 As the bill did not pass the House, this section, though it 
 passed the Senate, became in fact as if it never had been ; but 
 it answers a purpose now, in showing that the framers of the 
 bill then deemed an act of Congress necessary to extend the 
 Constitution over Territories, and give it force and effect therein 
 
120 EXAMINATION OF THE 
 
 — tlie same as acts of Congress are so extended : with tliis in- 
 congruity, tliat the laws so extended being rules of action, are 
 capable of operation ; while the Constitution, being a collection 
 of principles, can operate nowhere until these principles are 
 vitalized by law : and that can only be done by Congress — 
 Congress alone being the body which can legislate under the 
 Constitution. So that, if the Constitution could be extended to 
 a Territory, not a provision in it could take effect until Congress 
 had passed an act to put it in operation. 
 
 Nine months afterwards, that is to say, at the end of the 
 ensuing session, (March 3d, 1849,) that attempt was made 
 through Mr. "Walker, of Wisconsin, to extend the Constitution 
 to the three Territories in a lump, which has been noticed here- 
 tofore, and which being repulsed, the higher ground is taken that 
 the Constitution goes of itself to Territories, carrying slavery 
 along with it, in defiance of Congress and the people of the 
 Territory. And this is what the Supreme Court has decided — 
 the judicial power deciding a political question! and in a way 
 which the pohtical power had twice repulsed.* 
 
 * One good effect the decision of the Court has had, and that is — the extermina- 
 tion of Squatter Sovereignty. It tears up that doctrine root and branch ; and, it 
 would seem, to the gratification of its votaries. For they rally to the Court's decision, 
 and make adherence to it the test of democracy, with the same zeal with which they 
 supported that doctrine during its brief day. 
 
 WTiat tests of democracy we have seen in three brief years ! Adherence to the 
 l\Iissouri Compromise the test when Mr, Douglass brought in his Nebraska bill, and 
 until Mr. Dixon's proposed amendment started new game. Then destruction to the 
 Compromise, and devotion to Squatter Sovereignty was the test. And this test con- 
 tinued for about two years, when it was exploded by the Supreme Court's decision. 
 Then that decision becomes the test, and the democrat is politically excommunicated 
 who does not change again — give up Squatter Sovereignty, as he did the Compromise ; 
 and take the Constitution, per se, as sole slavery legislators in a territory, and only a 
 one-sided legislation ! to carry slavery into all territories, and abolish it in none ! and 
 keeping it, and protecting it, there in defiance of Congress, and the people, and in de- 
 fiance of all laws previously existing there. And this to be done by virtue of a Consti- 
 tution in which its framers would not permit the word " slave," or any equivalent 
 phrase, to be used ! 
 
SUPEEME court's DECISION, ETC. 121 
 
 CONCLUSIOK 
 
 This completes the historical view which I proposed to take 
 of the Supreme Court's decision on the two points detuned po- 
 litical — 1. The invalidation of the Missouri Compromise Act ; 
 2. The self-extension of the Constitution to Territories, carrying 
 African slavery along with it. And the result is, that the de- 
 cisions conflict with the uniform action of all the departments 
 of the Federal Government from its foundation to the present 
 time, and cannot be received as rules to govern Congress and 
 the people without reversing that action, and admitting the po- 
 litical supremacy of the Court, and accepting an altered Con- 
 stitution from its hands, and taking a new and portentous j)oint 
 of departure in the working of the Government. These deci- 
 sions being political, are dependent upon moral considerations 
 for their etfect. They cannot be enforced. No mandamus can 
 be directed to Congress and the people : no process of contempt 
 can issue against them. Influence — not authority — is the only 
 power the Court can wield. This being the case, and the two 
 conflicting powers, (that of two generations on one hand, and the 
 Supreme Court on the other,) being reduced to moral consider- 
 ations to establish the best title to supremacy, it becomes indis- 
 pensable to run a comparison between their respective claims 
 to superiority, and strike the balance on the side that shows the 
 best title. This I propose to do, and to make the jDoints of com- 
 parison co-extensive with the influencing considerations in the 
 whole case : 1. Numbers on eacli side. 2. Qualifications for 
 forming a correct judgment. 3. Adaptation of times to calm 
 consideration. 4. Freedom from connection with party contests. 
 5. Jurisdiction. 6. Unanimity, 7. Weight of reasons: — and 
 of these, each in its order. 
 
122 EXAMINATION OF THE 
 
 1. The numbers. These are as units to myriads. Two gen- 
 erations stand on one side : six judges sit on the other, and 
 these six morally reduced to five, by the non-concurrence in one 
 of them in the reasons of the others. So that, compared by 
 numbers, the result is that one side counts with the stars of 
 heaven ; the other, with the fingers or toes on the hand or foot. 
 — 2. Qualifications for forming a correct judgment. Here the 
 com])arison is entirely in favor of the same side. They were 
 the men who formed the Constitution, and put it into operation, 
 while the Court are only new comers in that field, and can 
 hardly be supposed to know more about the Constitution than 
 those who made it, and the two generations who agreed with 
 them. "Without disparagement to the members of the Court, 
 it must be admitted that the other side is their equal in point 
 of ability, and these equals outnumbering them as myriads do 
 units. And, without disparaging the legal profession, it must 
 be remembered that the lawyer and the statesman are held to 
 be incompatible characters — the cast of mind w^hich qualifies a 
 man for the great lawyer, disqualifying him for the safe states- 
 man ;* and in this case our ancestors were statesmen, the judges 
 lawyers, and the questions political. — 3. Adaptation of times to 
 calm consideration. Here the advantage is with the two gene- 
 rations. They acted in times of calm : the judges during a 
 storm of the passions. They acted upon an old light, shining 
 steadily in a calm atmosphere : the judges on a new light, sud- 
 denly breaking out, and flashing fitfully in the bursts of a 
 raging tempest. And such new lights are not considered safe 
 guides in law, religion, or politics.f — L Freedom from connec- 
 
 * See the speectes of William Pitt, (the father,) — of Burke, Fox, Sheridan, and 
 the American John Randolph ; and the histories of almost all great lawyers who have 
 turned their hands to politics. Also rememher Webster, already quoted, going out of 
 his way to point out lawyers and judges as peculiarly subject to inaccurate ideas on 
 the question of the Constitution and the Territories. 
 
 f And of this opinion was the present Supreme Court some two years ago, (1 855,) 
 as quoted by IVIr. Justice M'Lean in his dissenting opmion— Mr. Justice Grier being 
 the organ of the Court. 
 
 "We entertain the highest respect for that learned Court, (the Supreme Court of 
 Michigan,) and in any question affecting the construction of their own laws, where we 
 entertain any doubt, would be glad to be relieved from doubt and responsibility by re- 
 posing on their decision. There are, it is true, many dicta to be found in our decisions, 
 averrhio- that the courts of the United States are bound to follow the decisions of the 
 
SUPREME court's DECISION, ETC. 123 
 
 tion with party contests. With our ancestors these questions 
 knew no party, political or geographical. The Republican and 
 the Federalist of the first generation, the "Whig and the Democrat 
 of the second, — the man of the North, South, East and West, 
 — all concurred, (until the new light sprung up,) in one concur- 
 rent opinion, manifested by continual acts, that Congress had 
 power to legislate upon slavery in Territories, and that the Con- 
 stitution did not extend to Territories : while the new opinion 
 which conflicts with that, was born of party, and has be- 
 come a new test of party, (of democracy,) outlawing from the 
 democratic ranks every man that does not go it — that does not 
 keep up with the changes, from the abrogation of the Missouri 
 Compromise (which saved the Union) to squatter sovereignty, 
 ^which killed the compromise ;) and thence to the decisions of 
 the Supreme Court (which kills both). So that the new doc- 
 trine is both the child and champion of party, and itself a 
 touchstone of party. — 5. Jurisdiction. As a political question, 
 the Court had no right to decide it, even if it came fairly before 
 it. Congress had not only a right to act, but was bound to do 
 so ; and always had the subject fairly before it in seventy years' 
 necessity to act upon it. Without right to try it, even if the 
 case before them made it necessary, yet here the Court had no 
 jurisdiction, and dismissed it for want of jurisdiction ; and 
 
 State courts on the construction of their owu laws. But although this may be cor- 
 rect, yet a rather strong expression of a general rule, it cannot be received as the 
 annunciation of a maxim of universal application. Accordingly, our reports furnish 
 many cases of exceptions to it. In all cases where there is a settled construction of 
 the laws of a State, by its highest judicature established by admitted precedent, it is 
 the practice of the courts of the United States to receive and adopt it, without criti- 
 cism or further inquiry. When the decisions of the State court are not consistent, 
 we do not feel bound to follow the last, if it is contrary to our own convictions ; and 
 much more is this the case where, after a long course of consistent decisions, some 
 new light springs up, or an excited public opinion has elicited new doctrines subver- 
 sive of former safe precedent." 
 
 Upon which Mr. Justice M'Lean remarks : 
 
 " These words, it appears to me, have a stronger application to the case before us 
 than they had to the cause in which they were spoken as the opinion of this court ; 
 and I regret that they do not seem to be as fresh in the recollection of some of my 
 brethren as in my own. For twenty-eight years, the decisions of the Supreme Court 
 of Missouri were consistent on all the points made in this case. But this consistent 
 course was suddenly terminated, whether by some new light suddeidy springing up, 
 or an excited public opinion, or both, it is not necessary to say." — Dissenting Opinion. 
 
12i EXAMINATION OF THE 
 
 thus, left without a leg to stand on, it reached far over to get 
 hold of the political questions by virtue of a rule which had no 
 application, even in an actual existing case : so that, on the 
 point of jurisdiction, our ancestors had it, and were under a 
 necessity to act upon it : the Court had it not, and assumed it 
 upon a supposition which had nothing to rest on, and as an adden- 
 dum to a case which had no existence, and by virtue of a rule 
 which had no application. — 6. Unanimity in the decisions. Here 
 again the flagrant contrast appears. Our ancestors were the 
 myriad, and acted through seventy years without division of 
 sentiment. All departments of the Government — legislative, 
 executive, and judicial — and both classes of governments, State 
 and Federal — men changing all the while — acted with one 
 voice.* The Court was but nine — a single term — the same men 
 
 * " The judicial mind of this country, State and Federal, has agreed on no subject, 
 within its legitimate action, vrith equal unanimity, as on the power of Congress to es- 
 tablish territoi-ial governments. No court, State or Federal, no judge or statesman, 
 is known to have had any doubts on this question for nearly sixty years after the 
 power was exercised. Such governments have been established from the sources of 
 the Ohio to the Gulf of Mexico, extending to the Lakes on the north and the Pacific 
 Ocean on the west, and from the lines of Georgia to Texas. Great interests have 
 grown up under the territorial laws over a country more than five times greater in ex- 
 tent than the original thirteen States ; and these interests, corporate or otherwise, 
 have been cherished and consolidated by a benign policy, without any one supposing 
 the law-making power had united with the Judiciary, under the universal sanction of 
 the whole country, to usurp a jurisdiction which did not belong to them. Such a dis- 
 covery at this late date is more extraordinary than any thing which has occurred in 
 the judicial history of this, or any other country. What do the lessons of wisdom and 
 experience teach, under such circumstances, if the new light, which has so suddenly 
 and unexpectedly burst upon us, be true ? Acquiescence ; acquiescence under a set- 
 tled construction of the Constitution for sixty years, even if erroneous." — Mr. Jus- 
 tice McLean. 
 
 To the same effect Mr. Justice Catron, in his concurring opinion, who, although 
 agreeing with the Court in its judgment, did so for a different reason ; resting his own 
 on a supposed violation of the treaty with France, and the equality of States under 
 the Constitution. Thus : 
 
 "More than sixty years have passed away since Congress has exercised power to 
 govern the Territories, by its legislation directly, or by territorial charters, subject to 
 repeal at all times, and it is now too late to call that power into question, if this Court 
 could disregard its own decisions ; which it cannot do, as I think. It was held in the 
 case of Cross v. Harrison, (16 How., 193-'4,) that the sovereignty of California was 
 in the United States, in virtue of the Constitution, by which power had been given to 
 Congress to dispose of and make all needful rules and regulations respecting the ter- 
 ritory or other property belonging to the United States, with the power to admit new 
 -Stjites into the Union. That decision followed preceding ones, there cited. The ques- 
 
SUPKEME court's DECISION, ETC. 125 
 
 all the while ; and great diversity of opinion. Two of the 
 Justices dissent entirely from the opinion of the Court, and give 
 well reasoned arguments against that opinion, and in favor of 
 a different one. Another of the Justices (Mr. Justice l^elson) 
 abstained from expressing any opinion on the point in question. 
 That reduced the concurring Justices to six ; and of these, one, 
 (Mr. Justice Catron,) while concurring in the judgment, did so 
 for different reasons, wholly incompatible with those of the 
 Court, and attacked their reasons as wholly unfounded. And, 
 as in this case we only go by moral weight, his vote, though 
 legally counted against Scott, weighs nothing for the Court's 
 opinion ; but the contrary, as impeaching its reasons : which re- 
 duces the concurrent judges to five — a majority of one. And 
 then two of the remaining concurrents give elaborate sei>arate 
 opinions, agreeing in the result, but for reasons not always the 
 same ; and, to the extent of that difference, invalidating the 
 reasons of the Court, and lessening the weight of its decision. 
 So that, upon the head of unanimity, the difference again in 
 
 tion was then presented, how it was possible for the judicial mind to conceive that the 
 United States Government, created solely by the Constitution, could, by a lawful 
 treaty, acquire territory over which the acquiring power had no jurisdiction to hold 
 and govern it, by force of the instrument under whose authority the country was ac- 
 quired ; and the foregoing was the conclusion of this Court on the proposition. What 
 was there announced, was most deliberately done, and with a purpose. The only 
 question here is, as I think, how far the power of Congress is limited." — Mr. Justice 
 Catron, concurring. 
 
 "My opinion is, that the third article of the treaty of 1803, ceding Louisiana to 
 the United States, stands protected by the Constitiation, and cannot be repealed by 
 Congress. And, secondly, that the act of 1820, known as the Missouri Compromise, 
 violates the most leading features of the Constitiition — a feature on which the Union 
 depends, and which secures to the respective States and their citizens an entire 
 EQUALITY of rights, privileges, and immunities." — Same. 
 
 " It woiild certainly be a subject of regret that the conclusions of the Court 
 have not been assented to by all of its members, if I did not know from its history, 
 and my own experience, how rarely it has happened that the judges have been unani- 
 mous upon Constitutional questions of moment, and if our decision in this case had 
 not been made by as large a majority of them as has been usually had on constitu- 
 tional questions of importance. Two of the judges, Messrs. Justices M'Lean and Curtis, 
 dissent from the opinion of the Court. A third, Mr. Justice Nelson, gives a separate 
 opinion upon a single point in the case, with which I concur, assuming that the Cir- 
 cuit Court had jurisdiction ; but he abstains altogether from expressing any opinion 
 upon the eighth section of the act of 1820, known commonly as the Missouri 
 Compromise law ; and six of us declare that it was unconstitutional." — Mr. Justice 
 Wayne. 
 
126 EXAMINATION OP THE 
 
 favor of our ancestors is as a mountain to a mnstard seed. And 
 then, again, in these differences of opinion the geographical 
 line which divides the free from tlie slave States was palpably 
 developed, while no such line was ever seen in the Congress 
 decisions. To conclude this head, it is to be remembered that 
 two Justices of the Court who had voted for the Missouri Com- 
 promise, (Messrs. Baldwin, of Pennsylvania, and Philip P. Bar- 
 bour, of Yirginia,) and became judges afterwards, had died be- 
 fore the decision — who, if they had lived, and retained their 
 former opinions, would have made the majority the other way.* 
 — 7. Weight of reasons on each side. This is a difficult j^oint 
 of comparison, as the Court points to no clause in the Constitu- 
 tion on which it relies to overturn the practice of seventy years. 
 Its great labor seems to have been, by a careful verbal exami- 
 nation of the Constitution, to prove that it did not authorize 
 Congress to legislate upon slavery — an unnecessary labor, as 
 the whole territorial legislation of Congress, from the Ttli day 
 of August, 1789, has been independent of the Constitution, and 
 incompatible with it, and for the endless reason that the Consti- 
 tution was not made for Territories, nor extends to them, nor 
 gives them a single right under it. I^aming no clause which 
 gives the right of carrying slaves into Territories against an act 
 ot Congress, they derive it from general political considerations 
 founded in the equality of States, the common right of all to 
 the enjoyment of the common territory, and the denial of that 
 
 * The Boston Law Reporter for June, 1857, contains an article ascribed to John 
 Lowell and Horace Gray, jr., Esquires, two well-known legal gentlemen of Boston, 
 in which the discrepancies among the members of the Court, on another point in the 
 Dred Scott case, show the judgment of Courts to be too uncertain to be admitted 
 as a political expounder of the Constitution. Thus : 
 
 "As to the question, " Can a negro be a citizen of the United States ?" It has 
 been commonly supposed that the Court decided this question in the negative. This 
 is a mistake. From the form in which it was presented, it was very doubtful whether 
 it was before the Court for a decision. Four of the nine judges thought that it was ; 
 these were the Chief Justice, and Justices Wayne and Daniel, who answer the question 
 in the negative, and Justice Curtis, who answered it in the affirmative. Of the judges 
 •who gave no opinion on the point, one (Judge M'Lean) declares that if he answered 
 the question at all it would be in the afiBrmative ; Judge Catron, when Chief Justice of 
 the Supreme Court of Tennessee, gave an opinion directly involving an affirmative 
 answer to the question ; the three other judges give no clue to their opinions. On 
 this question, then, the Court stands thus : Three in the affirmative, three in the nega- 
 tive, and three silent." 
 
SIJPEEME court's DECISION, ETC. 127 
 
 right in the prohibition of slavery. In this general way the 
 Court gets its authority, the powers and rights for which it con- 
 tends seeming to ooze out of the body of the Constitution in a 
 sort of political insensible perspiration, which being collected 
 and condensed, form little streams leading to the conclusions 
 they arrive at — running in different channels, but falling into 
 the same gulf.* Such invisible, impalpable exudations cannot 
 be weighed as reasons, and besides, had been all addressed in 
 vain to the political power — to Congress itself — to get it to do 
 what the Court has done. On the other hand, all the reasons for 
 the old opinions are palpable and visible, have been seen and 
 handled for seventy years, and always the same thing : Sover- 
 eignty, and Proprietorship, and a right to make rules and regu- 
 lations respecting the territory of the United States. Between 
 the weight of reasons, impalpable and invisible on one side, and 
 those which have been seen and felt, and by all beholders for 
 two generations, on the other, there is no rule of comparison 
 
 * " It appears, however, from what has taken place at the bar, that notwithstand- 
 ing the language of the Constitution, and the long line of legislative and executive pre- 
 cedents under it, three different and opposite views are taken of the power of Congress 
 respecting slavery in the Territories. 
 
 " One is, that though Congress can make a regulation prohibiting slavery in a 
 Territory, they cannot make a regulation allowing it ; another is, that it can neither 
 be established nor prohibited by Congress, but that the people of the Territory, when 
 organized by Congress, can establish or prohibit slavery ; while the third is, that the 
 Constitution itself secures to every citizen who holds slaves, under the laws of any 
 State, the indefeasible right to cany them into any Territory, and there hold them as 
 property. 
 
 " No particular clause of the Constitution has been referred to at the bar in sup- 
 port of either of these views. The first seems to be rested upon general considera- 
 tions concerning the social and moral evils of slavery, its relation to republican 
 Governments, its inconsistency with the Declaration of Independence, and with 
 natural right. 
 
 " The second is drawn from considerations equally general, concerning the right 
 of self-government, and the nature of the political institutions which have been estab- 
 lished by the people of the United States. 
 
 " While the third is said to rest upon the equal right of all citizens to go with their 
 property upon the public domain ; and the inequality of a regulation which would 
 admit the property of some and exclude the property of other citizens ; and, inas- 
 much as slaves are chiefly held by citizens of those particular States where slavery is 
 established, it is insisted that a regulation excluding slavery from a Territory operates, 
 practically, to make an unjust discrimination between citizens of different States, in 
 respect to their use and enjoyment of the territory of the United States." — J/r. Justice 
 Curtis. 
 
128 EXAMINATION OF THE 
 
 which can reach the case; and the task of comparing them 
 must be given up. 
 
 So tliat the decisions of the Court tried by all the tests of 
 comparison — ^numbers on each side, qualifications for right de- 
 cision, tranquillity of times, freedom from party; jurisdiction, 
 unanimity, precedents, antiquity, and weight of reason — sink 
 out of view in the presence of the old, established, invariable, 
 and venerable practice of our ancestors. 
 
 One further remark will conclude this conclusion. The 
 Court dwells upon the supposed unconstitutionality of any 
 regulation which would prevent a master from taking his slaves 
 with him to a Territory. Why, the master himself may be 
 prevented from going, or turned out after he gets there. From 
 the day of becoming a landholder, the old Continental Congress 
 first, and the Federal Congress since, have exercised the right of 
 every other landholder to prevent trespasses, intrusions, and 
 settlements upon their territory, expelling with military force, 
 and punishing with fine and damages, the violator of its rules. 
 This began under the Confederation, and has continued ever 
 since.* All the old settlers on the frontiers can remember the 
 dragooning the settlers on the United States territory, driving 
 them off, and destroying their houses and growing crops. All 
 can remember the old familiar oj)eration of cutting up a Terri- 
 tory, running a line through it, giving one half to the Indians, 
 and driving the white people from it, and their slaves also.f 
 
 * Resolved, That the Secretary at War, to whom was referred the letter from 
 Major Wyllis, of the 16th instant, direct the commanding officer of the troops of the 
 United States on the Ohio, to take immediate and efficient measures for dispossessing 
 a body of men who have, in a lawless and imauthorized manner, taken possession of 
 port St. Vincent's (Vincennes), in defiance of the proclamation and authority of the 
 United States, and that he employ the whole, or such part of the force under his com- 
 mand, as he shall judge necessary to accomplish the object. — Journal of the old Con- 
 gress, 1787. 
 
 t The last instance of this kind, and a strong one it was, was in the year 1828, 
 when the organized Territory of Arkansas was amputated ; a slip 40 miles wide and 
 300 long, with its counties and settlements, was cut off and transferred to the Cherokee 
 Indians, and the inhabitants, with their herds, and flocks, and slaves, were driven from 
 their homes. The boundaries of the Territory had been fixed by Congress in 1824 ; 
 the Indian title had been extinguished; it was open to settlement, laid off into counties, 
 and Courts held in them by judges appomted by the United States. Yet by a treaty 
 with the Cherokees, it was agreed to give up these 12,000 square miles to the Chero- 
 kees, and " to remove all white persons, and also all others, from the west of said line, 
 
SUPEEME court's DECTSION, ETC. 129 
 
 Sucli is tlie power wbicli Congress exercises over its territory, 
 and witli which the Constitution has nothing to do. 
 
 To sum up, in a few words, the results of this Examination, 
 and to present the conchisions under a single view, and it is 
 shown that the Constitution was not made for Territories, and 
 does not include them — that it cannot be extended to them by 
 law, and if it could, would be barren and fruitless without law 
 to put it into operation — that no law could be made under it to 
 give any help to the slaveholder, either in recovering his pro- 
 perty, if the slave ran away, or in bringing back for justice the 
 fugitive felon that should steal it; or in getting protection from 
 the Federal Government against revolt, or in that acknowledg- 
 ment of property in the slave which results from his federal 
 taxation. In no one of these cases, nor in any other one which 
 can be imagined, can any law be made undeT the Constitution 
 to help the slave-owner, for every provision in that instrument 
 which relates to slavery is confined to States ; and the owner 
 must be thrown upon the ordinance of 1787, and the power of 
 Congress, independent of the Constitution, for every species of 
 protection which he may need about that projjerty. 
 
 I have performed an unpleasant task, but unavoidable. I 
 have been on the kindest personal terms with the judges, and 
 in my long senatorial service, and as part of the appointing 
 power, have cordially given my voice for the elevation of each 
 of them to the honorable stations they hold — for every one ex- 
 cept Mr. Justice Curtis, appointed since the termination of my 
 service. I am a friend to the Supreme Court as an institution — 
 as a high and essential part of our system — and would not will- 
 ingly derogate from its respect, or impair its utility. But the 
 whole system, of which it is a part, and the whole people, of 
 whom its members are a few, are overruling considerations; 
 and the evil of the late decision being actually upon us, going 
 
 and keep them away." And this treaty, against an urgent opposition, was ratified hy 
 Southern votes, and carried into effect by Southern votes in the House of Representatives, 
 to the almost ruin of the State of Arkansas, reducing her to a state of the middle or 
 small class, when, from her frontier position, national policy required her to be strong 
 and powerful, with which view her boundaries were fixed in 1824. The people were 
 driven off, and Congress afterwards made them indemnity in other land, but that came 
 from the bounty of Congress, and was no contract with the people who were driven 
 ofi^ as any proprietor might drive people from his land. 
 
 9 
 
130 EXAIVIINATION OF TKE SUPREME COTJRt's DECISION, ETC. 
 
 into parties,* entering into elections, giving the rule for the ap- 
 pointment of all future federal judges, establishing a new party- 
 test, bringing the federal judiciary into the vortex of federal 
 politics, and developing still more strongly the geographical line 
 which divides us ; seeing all these evils now upon us, and others 
 to come, I have found it impossible to remain silent, or to have 
 said less. I am among the last of those who, acting with the 
 generations that are passed, still adhere to their teachings. I 
 labor to preserve what they established, lamenting that the task 
 had not fallen into abler hands. A few years earlier, and the 
 preservation of the Missouri Compromise would have found its 
 adequate defender in one of its greatest architects, and the in- 
 tegrity of the Constitution would have found its champion in 
 its great expounder ; but Clay and Webster are gone ; and, before 
 them, went Pinkney and Lowndes, gloriously identified with the 
 work which recent hands have just torn down. And of those 
 who survive, and who stood by them in their great efforts, and 
 still stand where they stood, I am one of the few — no longer in 
 power, but still in armor when the works of our fathers are in 
 danger. I write for no party, but for all men who venerate the 
 works of our ancestors, and who wish to see our Government 
 kept on the foundations on which they placed it. 
 
 * So entirely has it gone into parties, that it is often a question (along the borders 
 of the free and slave line) of profit, or loss, to adopt or denounce it. In one case, on 
 the north side of the line, which I noted; the convention foimd itself in a state of im- 
 possibility from the inability to determine on which side the loss or gain would be. 
 One delegate proposed its adoption, because it would give them strength to the South; 
 another objected that they would lose more in the North than they would gain in the 
 South. And opinions being about equally balanced, the upshot was, that the decision 
 was neither adopted nor condemned ! 
 
APPENDIX. 
 I. 
 
 PROPOSED EXTENSION OF THE CONSTITUTION OF THE UNITED STATES TO 
 THE TEEEITOKIES, WITH A VIEW TO MARK it CAEPvY SLAYEKY INTO CALI- 
 FORNIA, UTAH, AND NEW MEXICO. 
 
 (From the Thirty Tears' View : Vol. II., Chap. 1S2.) 
 
 The treaty of peace with Mexico had been ratified in the session 
 of 184:T-'4S, and all the ceded Territory became subject to our 
 Government, and needing the immediate establishment of terri- 
 torial governments : but such were the distractions of the slavery 
 question, that no such governments could be formed, nor any law 
 of the United States extended to these newly acquired and or- 
 phan dominions. Congress sat for six months after the treaty 
 had been ratified, making vain efibrts to provide governments 
 for the new Territories, and adjourning without accomplishing 
 the work. Another session had commenced, and was coming 
 to a close with the same fruitless result. Bills had been intro- 
 duced, but they only gave rise to heated discussion. In the last 
 days of the session, the civil and diplomatic appropriation bill, 
 commonly called the general appropriation bill — the one which 
 provides annually for the support of the Government, and with- 
 out the passage of which the Government would stoj), came up 
 from the House to the Senate. It had received its considera- 
 tion in the Senate, and was ready to be returned to the House, 
 when Mr. "Walker, of Wisconsin, moved to attach to it, under 
 the name of amendment, a section providing a temporary govern- 
 ment for the ceded Territories, and extending an enumerated 
 list of acts of Congress to them. It was an unparliamentary 
 and disorderly proposition, the proposed amendment being in- 
 congruous to the matter of the appropriation bill, and in plain 
 violation of the obvious principle which forbade extraneous 
 matter, and especially that which was vehemently contested, 
 
132 . APPENLvX. 
 
 from going into a bill upon the passage of wliicli the existence 
 of the Government dei3ended. The proposition met no favor ; 
 it would have died out if the mover had not yielded to a south- 
 ern solicitation to insert the extension of the Constitution into 
 his amendment, so as to extend that fundamental law to those 
 for whom it was never made, and where it was inapplicable, 
 and impracticable. The novelty and strangeness of the propo- 
 sition called up Mr. "Webster, who said : — 
 
 " It is of importance that we should seek to have clear ideas and 
 correct notions of the question which this amendment of the member 
 from Wisconsin has presented to us ; and especially that we should seek 
 to get some conception of what is meant by the proposition, in a law, to 
 ' extend the Constitution of the United States to the Territories.' Why, 
 sir, the thing is utterly impossible. All the legislation in the world, in 
 this general form, could not accomplish it. There is no cause for the 
 operation of the legislative power in such a manner as that. The Con- 
 stitution — what is it ? We extend the Constitution of the United States 
 by law to Territory ! What is the Constitution of the United States ? 
 Is not its very first principle, that all within its influence and compre- 
 hension shall be represented in the legislature which it establishes, with 
 not only a right of debate and a right to vote in both Houses of Con- 
 gress, but a right to partake in the choice of the President and Vice 
 President ? And can we by law extend these rights, or any of them, to 
 a Territory of the United States ? Every body will see that it is alto- 
 gether impracticable. It comes to this, then, that the Constitution is 
 to be extended as far as practicable ; but how far that is, is to be decided 
 by the President of the United States, and therefore he is to have abso- 
 lute and despotic power. He is the judge of what is suitable, and what 
 is unsuitable ; and what he thinks suitable is suitable, and what he 
 thinks unsuitable is unsuitable. He is ' omnis in hoc ; ' and what is 
 this but to say, in general terms, that the President of the United States 
 shall govern this Territory as he sees fit till Congress makes further 
 provision. Now, if the gentleman will be kind enough to tell me what 
 principle of the Constitution he supposes suitable, what discrimination 
 he can draw between suitable and unsuitable which he proposes to fol- 
 low, I shall be instructed. Let me say, that in this general sense there 
 is no such thing as extending the Constitution. The Constitution is 
 extended over the United States, and over nothing else. It cannot be 
 extended over any thing except over the old States and the new States 
 that shall come in hereafter, when they do come in. There is a want 
 of accuracy of ideas in this respect that is quite remarkable amonp' 
 
APPENDIX. 133 
 
 eminent gentlemen, and especially professional and judicial gentlemen. 
 It seems to be taken for granted that the right of trial by jury, the 
 habeas corpus^ and every principle designed to protect personal liberty, 
 is extended by force of the Constitution itself over every new Territory. 
 That proposition cannot be maintained at all. How do you arrive at 
 it by any reasoning or deduction ? It can be only arrived at by the 
 loosest of all possible constructions. It is said that this must be so, 
 else the right of the habeas corpus would be lost. Undoubtedly these 
 rights must be conferred by law, before they can be enjoyed in a Ter- 
 ritory." 
 
 It was not Mr. Walker, of Wisconsin, the mover of the propo- 
 sition, that replied to Mr. Webster : it was the prompter of the 
 measure that did it, and in a way to show immediately that this 
 extension of the Constitution to Territories was nothing but a 
 new scheme for the extension of slavery. Denying the power 
 of Congress to legislate upon slavery in Territories — finding 
 slavery actually excluded from the ceded Territories, and desir- 
 ous to get it there — Mr. Calhoun, the real author of Mr. Walk- 
 er's amendment, took the new conception of carrying the Con- 
 stitution into them ; which arriving there, and recognizing 
 slavery, and being the supreme law of the land, it would over- 
 ride the anti-slavery laws of the Territory, and plant the insti- 
 tution of slavery under its ^gis, and above the reach of any 
 territorial law, or law of Congress to abolish it. He, therefore, 
 came to the defence of his own proposition, and thus replied to 
 Mr. Webster: — . 
 
 " I rise, not to detain the Senate to any considerable extent, but to 
 make a few remarks upon the proposition first advanced by the Senator 
 from New Jersey, fully endorsed by the Senator from New Hampshire, 
 and partly endorsed by the Senator from Massachusetts, that the Con- 
 stitution of the United States does not extend to the Territories. That 
 is the point. I am very happy, sir, to hear this proposition thus asserted, 
 for it will have the effect of narrowing very greatly the controversy be- 
 tween the North and the South as it regards the slavery question in con- 
 nection with the Territories. It is an implied admission on the part of 
 those gentlemen, that, if the Constitution does extend to the Territories, 
 the South will be protected in the enjoyment of its property — that it 
 will be under the shield of the Constitution. You can put no other in- 
 terpretation upon the proposition which the gentlemen have made, than 
 that the Constitution does not extend to the Territories. Then the 
 
134 APPENDIX. 
 
 simple question is, does the Constitution extend to the Territories, or 
 does it not extend to them ? Why, the Constitution interprets itself. 
 It pronounces itself to be the supreme law of the land." 
 
 "When Mr. Webster heard this syllogistic assertion, that the 
 Constitution being the supreme law of the land, and the Terri- 
 tories being a part of the land, ergo the Constitution being ex- 
 tended to them would be their supreme law : when he heard 
 this, he called out from his seat — " What landf"* Mr. Calhoun 
 replied, saying : — 
 
 " The land ; the Territories of the United States are a part of the 
 land. It is the supreme law, not within the limits of the States of this 
 Union merely, but wherever our flag waves — wherever our authority 
 goes, the Constitution in part goes, not all its provisions certainly, but 
 all its suitable provisions. Why, can we have any authority beyond the 
 Constitution ? I put the question solemnly to gentlemen ; if the Con- 
 stitution does not go there, how are we to have any authoi'ity or juris- 
 diction whatever ? Is not Congress the creature of the Constitution ; 
 does it not hold its existence upon the tenure of the continuance of the 
 Constitution ; and would it not be annihilated upon the destruction of 
 that instrument, and the consequent dissolution of this confederacy ? 
 And shall we, the creature of the Constitution, pretend that we have 
 any authority beyond the reach of the Constitution ? Sir, we were told, 
 a few days since, that the courts of the United States had made a decision 
 that the Constitution did not extend to the Territories without an act 
 of Congress. I confess that I was incredulous, and am still incredulous 
 that any tribunal, pretending to have a knowledge of our system of gov- 
 ernment, as the courts of the United States ought to have, could have 
 pronounced such a monstrous judgment. I am inclined to think that it 
 is an error which has been unjustly attributed to them ; but if they 
 have made such a decision as that, I for one say, that it ought not and 
 never can be respected. The Territories belong to us ; they are ours ; 
 that is to say, they are the property of the thirty States of the Union ; 
 and we, as the representatives of those thirty States, have the right 
 to exercise all that authority and jurisdiction which ownership carries 
 with it." 
 
 Mr. Webster replied, with showing that the Constitution was 
 made for States, not Territories — that no part of it went to a 
 Territory unless specifically extended to it by act of Congress — 
 that the Territories from first to last were governed as Congress 
 
APPENDIX. 135 
 
 chose to govern tliem, independentlj of the Constitution, and 
 often contrary to it, as in denying them representatives in Con- 
 gress, a vote for President and Vice President, the protection 
 of the Supreme Court : — that Congress was constantly doing 
 things in the Territories without constitutional objection (as 
 making mere local roads and bridges), which could not be at- 
 tempted in a State. He argued : — 
 
 " The Constitution, as the gentleman contends, extends over the 
 Territories. How does it get there ? I am surprised to hear a gentle- 
 man so distinguished as a strict constructionist, affirming that the Con- 
 stitution of the United States extends to the Territories, without showing 
 us any clause in the Constitution in any way leading to that result ; and 
 to hear the gentleman maintaining that position without showing us any 
 way in which such a result could be inferred, increases my surprise. 
 
 " One idea further upon this branch of the subject. The Constitu- 
 tion of the United States extending over the Territories, and no other 
 law existing there ! Why, I beg to know how any government could 
 proceed, without any other authority existing there than such as is 
 created by the Constitution of the United States ? Does the Constitu- 
 tion of the United States settle titles to land ? Does it regulate the 
 rights of property ? Does it fix the relations of parent and child, guar- 
 dian and ward ? The Constitution of the United States establishes what 
 the gentleman calls a confederation for certain great purposes, leaving all 
 the great mass of laws which is to govern society to derive their exist- 
 ence from State enactments. That is the just view of the state of things 
 under the Constitution. And a State or Territory that has no law but 
 such as it derives from the Constitution of the United States, must be 
 entirely without any State or territorial government. The honorable 
 Senator from South Carolina, conversant with the subject as he must be, 
 from his long experience in different branches of the Grovernment, must 
 know that the Congress of the United States have established principles 
 in regard to the Territories that are utterly repugnant to the Constitu- 
 tion. The Constitution of the United States has provided for them an 
 independent judiciary ; for the judge of every court of the United States 
 holds his office upon the tenure of good behavior. Will the gentleman 
 say that in any court established in the Territories, the judge holds his 
 office in that way ? He holds it for a term of years, and is removable 
 at Executive discretion. How did we govern Louisiana before it was a 
 State ? Did the writ of habeas corpus exist in Louisiana during its 
 territorial existence ? Or the right to trial by jury ? Who ever heard 
 of trial by jury there before the law creating the territorial government 
 
136 APPENDIX. 
 
 gave the right to trial bj jury ? No one. And I do not believe that 
 there is any new light now to be thrown upon the history of the pro- 
 ceedings of this Government in relation to that matter. "When new ter- 
 ritory has been acquired it has always been subject to the laws of Con- 
 gress — to such laws as Congress thought proper to pass for its immediate 
 government ; for its government during its territorial existence, during 
 the preparatory state in which it was to remain until it was ready to 
 come into the Union as one of the family of States." 
 
 All this was sound constitutional law ; or, rather, was vera- 
 cious history, showing that Congress governed as it pleased in 
 the Territories, independently of the Constitution, and often con- 
 trary to it ; and consequently, that the Constitution did not 
 extend to it. Mr. Webster then showed the puerility of the 
 idea that the Constitution went over the Territories because they 
 were ^Hand^'' and exposed the fallacy of the supposition that 
 the Constitution, even if extended to a Territory, could operate 
 there of itself, and without a law of Congress made under it. 
 This fallacy was exposed by showing that Mr. Calhoun, in 
 quoting the Constitution as the supreme law of the land, had 
 omitted the essential words which were part of the same clause, 
 and which couples with that supremacy the laws of Congress 
 made in pursuance of the Constitution. Thus : — 
 
 " The honorable Senator from South Carolina argues that the Con- 
 stitution declares itself to be the law of the land, and that, therefore, it 
 must extend over the Territories. ' The land,' I take it, means the land 
 over which the Constitution is established, or, in other words, it means 
 the States united under the Constitution, But does not the gentleman 
 see at once that the argument would prove a great deal too much ? 
 The Constitution no more says that the Constitution itself shall be the 
 supreme law of the land, than it says that the laws of Congress shall be 
 the supreme law of the land. It declares that the Constitution and the 
 law of Congress passed under it shall be the supreme law of the land." 
 
 The question took a regular slavery turn, Mr. Calhoun avoAV- 
 ing his intent to be to carry slavery into the Territories under 
 the wing of the Constitution, and openly treated as enemies to 
 the South all that opposed it. Having taken the turn of a 
 slavery question, it gave rise to all the dissension of which that 
 subject had become the parent since the year 1835. By a close 
 vote, and before the object had been understood by all the Sena- 
 
APPENDIX. 137 
 
 tors, the amendment was agreed to in the Senate, but imme- 
 diately disagreed to in the House, and a contest brought on 
 between the two Houses bj which the great appropriation bill, 
 on which the existence of the Governjuent depended, was not 
 passed until after the constitutional expiration of the Congress 
 at midnight of the third of March, and was signed by Mr. Polk 
 (after he had ceased to be President) on the 4th of March — the 
 law and his approval being antedated of the 3d, to prevent its 
 invalidity from appearing on the face of the act. Great was the 
 heat which manifested itself, and imminent the danger that 
 Congress would break up without passing the general apjDro- 
 priation bill ; and that the Government would stop until a new 
 Congress could be assembled — many of the members of which 
 remained still to be elected. Many members refused to vote 
 after midnight — which it then was.- Mr. Cass said : — 
 
 " As I am among those who believe that the term of this session has 
 expired, and that it is incompetent for us now to do business, I cannot 
 vote upon any motion. I have sat here as a mere looker on. I merely 
 desire to explain why I took no part in the proceedings." 
 
 Mr. Yulee, of Florida, moving an adjournment, said : — 
 
 " I should be very sorry, indeed, to make any proposition which may 
 in any degree run counter to the general sentiment of the Senate ; but 
 I feel bound, laboring under the strong conviction that I do, to arrest 
 at every step, and by every means, any recorded judgment of the Senate 
 at a time when we are not legally engaged in the discharge of our sena- 
 torial duties. I agree entirely in the view taken by the Senator from 
 Michigan." 
 
 Mr. Turney, of Tennessee, said : — 
 
 " I am one of those who believe that we have no right to sit here. 
 The time has expired ; one- third of this body are not present at all, and 
 the others have no right to sit here as a part of Congress. But a mo- 
 tion has been made for adjournment, and the presiding officer has refused 
 to entertain that motion. This being the case, I must regard all that 
 is done as done in violation of the Constitution, or rather not in pur- 
 suance of it. It appears to me that we sit here more in the character 
 of a town meeting than as the Senate of the United States, and that 
 what we do is no more binding on the American people than if we did 
 
138 APPENDIX. 
 
 it at a town meeting. I shall express no opinion by saying yea or nay 
 on the question before the Senate. At the same time, I protest against 
 it, as being no part of the constitutional proceedings of the Senate of 
 the United States." ^ 
 
 Mr. Benton, and many others, declined to vote. The House 
 of Eepresentatives had ceased to act, and sent to tlie Senate the 
 customary message of adjournment. The President, who, ac- 
 cording to the usage, had remained in the Capitol till midnight 
 to sign bills, had gone home. It was four o'clock in the morn- 
 ing of the fourth, and the greatest confusion and disorder pre- 
 vailed. Finally Mr. "Webster succeeded in getting a vote, by 
 which the Senate receded from the amendment it had adopted, 
 extending the Constitution to the Territories ; and that reces- 
 sion leaving the appropriation bill free from the encumbrance 
 of the slavery question, it was immediately passed. 
 
 This attemj^t, pushed to the verge of breaking up the Gov- 
 ernment in pursuit of a newly invented slavery dogma, was 
 founded in errors too gross for misapprehension. In the first 
 place, as fully shown by Mr. "Webster, the Constitution was not 
 made for Territories, but for States. In the second place, it 
 cannot operate any where, not even in the States for which it 
 was made, without acts of Congress to enforce it. This is true 
 of the Constitution in every particular. Every part of it is in- 
 operative until put into action by a statute of Congress. The 
 Constitution allows the President a salary ; he cannot touch a 
 dollar of it without an act of Congress. It allows the recovery 
 of fugitive slaves : you cannot recover one without an act of 
 Congress. And so of every clause it contains. The proposed 
 extension of the Constitution to Territories, with a view to its 
 transportation of slavery along with it, was then futile and nu- 
 gatory, until an act of Congress should be passed to vitalize 
 slavery under it. So that, if the extension had been declared 
 by law, it would have answered no purpose except to widen the 
 field of the slavery agitation — to establish a new point of con- 
 tention — to give a new phase to the embittered contest — and to 
 alienate more and more from each other the two halves of the 
 Union. But the extension was not declared. Congress did not 
 extend the Constitution to the Territories. The proposal was 
 rejected in both Houses ; and immediately the crowning dogma 
 
APPENDIX. 139 
 
 is invented, that the Constitution goes of itself to the Territories 
 without an act of Congress, and executes itself, so far as. slavery 
 is concerned, not only without legislative aid, but in defiance 
 of Congress and the people of the Territory. This is the last 
 slavery creed of the Calhoun school, and the one on which his 
 disciples now stand — and not with any barren foot. They ap- 
 ply the doctrine to existing Territories, and make acquisitions 
 from Mexico for new applications. It is impossible to consider 
 such conduct as any thing else than as one of the devices for 
 '''■forcing the issue with the North^'' which Mr. Calhoun in his 
 confidential letter to the member of the Alabama Legislature 
 avows to have been his policy since 1835, and which he avers 
 he would then have eflfected, if the members from the slave 
 States had stood by him. 
 
 II. 
 
 THE SLAVERY AGITATION: DISUNION: KEY TO ME. CALHOUN'S POLICY: 
 
 FOKGING THE ISSUE: MODE OF EOKCING IT. 
 
 (From the Thirty Years' View : Vol. II., Chap. 16S.) 
 
 In the course of this year (1847), and some months after the 
 submission of his resolutions in the Senate denying the right of 
 Congress to abolish slavery in a Territory, Mr. Calhoun wrote 
 a letter to a member of the Alabama Legislature, which furnishes 
 the key to unlock his whole system of policy in relation to the 
 slavery agitation, and its designs, from his first taking up the 
 business in Congress, in the year 1835, down to the date of the 
 letter ; and thereafter. The letter was in reply to one asking 
 his opinion " as to the steps which should he taken " to guard 
 the rights of the South ; and was written in a feeling of personal 
 confidence to a person in a condition to take steps* and which 
 he has since published to counteract the belief that Mr. Calhoun 
 was seeking the dissolution of the Union. The letter disavows 
 such a design, and at the same time proves it — recommends 
 forcing the issue between the JSTorth and the South, and lays 
 down thfe manner in which it should be done. It opens with 
 this paragraph : — 
 
 " I am much, gratified with the tone and views of your letter, and 
 
140 APPENDIX. 
 
 concur entirely in the opinion you express, that instead of shunning, we 
 ought to court the issue with the North on the slavery question. I 
 would even go one step further, and add that it is our duty — due to 
 ourselves, to the Union, and our political institutions, to force the issue 
 on the North. We are now stronger relatively than we shall be here- 
 after, politically and morally. Unless we bring on the issue, delay to 
 us will be dangerous indeed. It is the true policy of those enemies who 
 seek our destruction. Its eflfects are, and have been, and will be to 
 weaken us politically and morally, and to strengthen them. Such has 
 been my opinion from the first. Had the South, or even my own State 
 backed me, I would have forced the issue on the North in 1835, when 
 the spirit of abolitionism first developed itself to any considerable extent. 
 It is a true maxim, to meet danger on the frontier, in politics as well as 
 war. Thus thinking, I am of the impression, that if the South act as it 
 ought, the Wilmot Proviso, instead of proving to be the means of suc- 
 cessfully assailing us and our peculiar institution, may be made the 
 occasion of successfully asserting our equality and rights, by enabling us 
 to force the issue on the North. Something of the kind was indispen- 
 sable to rouse and unite the South. On the contrary, if we should not 
 meet it as we ought, I fear, greatly fear, our doom will be fixed. It 
 would prove that we either have not the sense or spirit to defend our- 
 selves and our institutions." 
 
 The phrase " forcing the issue " is here used too often, and 
 for a purpose too obvious, to need remark. The reference to 
 his movement in 1835 confirms all that was said of that move- 
 ment at the time by Senators from both sections of tlie Union, 
 and which has been related in chapter 131, vol. i., of the Thirty 
 Years View. At that time Mr. Calhoun characterized his 
 movement as defensive — as done" in a spirit of self-defence : it 
 was then characterized by Senators as aggressive and ofiensive ; 
 and it is now declared in this letter to have been so. He was 
 then openly told that he was playing into the hands of the 
 abolitionists,* and giving them a champion to contend Avith, and 
 the elevated theatre of the American Senate for the dissemina- 
 tion of their doctrines, and the production of agitation and sec- 
 tional division. All that is now admitted, with a lamentation 
 that the South, and not even his own State, would stand by him 
 then in forcing the issue. So that chance was lost. Another 
 was now presented. The Wilmot Proviso, so much deprecated 
 in public, is privately saluted as a fortunate event, gi^^ng an- 
 other chance for forcing the issue. The letter proceeds : — 
 
APPENDIX. 141 
 
 " But in making up the issue, we must look far beyond the proviso. 
 It is but one of many acts of aggression, and, in my opinion, by no means 
 the most dangerous or degrading, though more striking and palpable." 
 
 In looking beyond the proviso Mr. Calhoun took up the re- 
 cent act of the General Assembly of Pennsylvania, repealing 
 the slave sojournment law within her limits, and obstructing 
 the recovery of fugitive slaves, saying : — 
 
 " I regard the recent act of Pennsylvania, and laws of that descrip- 
 tion, passed by other States, intended to prevent or embarrass the 
 reclamation of fugitive slaves, or to liberate our domestics when travel- 
 ling with them in non-slaveholding States, as unconstitutional. Insulting 
 as it is, it is even more dangerous. I go further, and hold that if we 
 have a right to hold our slaves, we have a right to hold them in peace 
 and quiet, and that the toleration, in the non-slaveholding States^ of the 
 establishment of societies and presses, and the delivery of lectures, with 
 the express intention of calling in question our right to our slaves, and 
 of seducing and abducting them from the service of their masters, and 
 finally overthrowing the institution itself, is not only a violation of in- 
 ternational laws, but also of the Federal compact. I hold, also, that 
 we cannot acquiesce in such wrongs, without the certain destruction of 
 the relation of master and slave, and without the ruin of the South." 
 
 The acts of Pennsylvania here referred to are justly com- 
 plained of, but with the omission to tell that these injurious acts 
 were the fruit of his own agitation policy, and in his own line 
 of forcing issues ; and that the repeal of the sojournment law, 
 which had subsisted since the year 1780, and the obstruction of 
 the fugitive slave act, which had been enforced since 1T93, only 
 took place twelve years after he had commenced slavery agita- 
 tion in the South, and were legitimate consequences of that 
 agitation, and of the design to force the issue with the North. 
 The next sentence of the letter reverts to the Wilmot Proviso, 
 and is of momentous consequence as showing that Mr. Calhoun, 
 with all his public professions in favor of compromise and con- 
 ciliation, was secretly opposed to any compromise or adjust- 
 ment, and actually considered the defeat of the proviso as a mis- 
 fortune to the South. Thjis : — 
 
 " With this impression, I would regard any compromise or adjust- 
 
142 APPENDIX. 
 
 ment of the proviso, or even its defeat, -without meeting the danger in 
 its whole length and breadth, as very unfortunate for us. It would lull- 
 us to sleep again, without removing the danger, or materially diminish- 
 ing it." 
 
 So that, -while this proviso was, publicly, the Pandora's box 
 which filled the Union with evil, and while it was to Mr. Cal- 
 houn and his friends the theme of endless deprecation, it was 
 secretly cherished as a means of keeping up discord, and forcing 
 the issue between the North and the South. Mr. Calhoun then 
 proceeds to the serious question of disunion, and of the manner 
 in which the issue could be forced. 
 
 " This brings up the question, how can it be so met, without resort- 
 ing to the dissolution of the Union ? I say without its dissolution, for 
 in my opinion, a high and sacred regard for the Constitution, as well as 
 the dictates of wisdom, make it our duty in this case, as well as all others, 
 not to resort to, or even to look to that extreme remedy, until all others 
 have failed, and then only in defence of our liberty and safety. There 
 is, in my opinion, but one way in which it can be met ; and that is the 
 
 one indicated in my letter to Mr. , and to which you allude in 
 
 yours to me, viz., by retaliation. Why I think so, I shall now proceed 
 to explain." 
 
 Then follows an argument to justify retaliation, by represent- 
 ing the Constitution as containing provisions, he calls them 
 stipulations, some in favor of the slaveholding, and some in 
 favor of the non-slaveholding States, and the breach of any of 
 which, on one side, authorizes a retaliation on the other ; and 
 then declaring that Pennsylvania and other States have violated 
 the provision in favor of the slave States in obstructing the re- 
 covery of fugitive slaves, he proceeds to explain his remedy, 
 saying :— 
 
 " There is and can be but one remedy short of disunion, and that is 
 to retaliate on our part, by refusing to fulfil the stipulations in their 
 favor, or such as we may select, as the most efficient. Among these, the 
 right of their ships and commerce to enter and depart from our ports is 
 the most effectual, and can be enforced. That the refusal on their part 
 would justify us to refuse to fulfil on ou|^ part those in their favor, is 
 too clear to admit of argument. That it would be effectual in compelling 
 them to fulfil those in our favor can hardly be doubted, when the im- 
 
APPENDIX. 143 
 
 mense profit they make by trade and navigation out of us is regarded ; 
 and also the advantages we would derive from the direct trade it would 
 establish between the rest of the world and our ports." 
 
 Eetaliation by closing the ports of the State against the 
 commerce of the offending State : and this called a constitu- 
 tional remedy, and a remedy short of disunion. It is, on the 
 contrary, a flagrant breach of the Constitution, and disunion it- 
 self, and that at the very point which caused the Union to be 
 formed. Every one acquainted with the history of the formation 
 of the Federal Constitution, knows that it grew out of the single 
 question of commerce — the necessity of its regulation between 
 the States to prevent them from harassing each other, and with 
 foreign nations to prevent State rivalries for foreign trade. To 
 stop the trade with any State is, therefore, to break the Union 
 with that State ; and to give any advantage to a foreign nation 
 over a State, would be to break the Constitution again in the 
 fundamental article of its formation ; and this is what the retali- 
 atory remedy of commercial non-intercourse arrives at — a double 
 breach of the Constitution — one to the prejudice of sister States, 
 the other in favor of foreign nations. For immediately upon 
 this retaliation upon a State, and as a consequence of it, a great 
 foreign trade is to grow up with all the world. The letter pro- 
 ceeds with further instructions upon the manner of executing 
 tlie retaliation : — 
 
 " My impression is, that it should be restricted to sea-going vessels, 
 which would leave open the trade of the valley of the Mississippi to 
 New Orleans by river, and to the other Southern cities by railroad ; 
 and tend thereby to detach the North-western from the North-eastern 
 States." 
 
 This discloses a further feature in the plan of forcing the 
 issue. The North-eastern States were to be excluded from 
 Southern maritime commerce : the North-western States were 
 to be admitted to it by railroad, and also allowed to reach N"ew 
 Orleans by the Mississippi River. And this discrimination in 
 favor of the N^orth-western States was for the purpose of detach- 
 ing them from the North-east. Detach is the word. And that 
 word signifies to separate, disengage, disunite, part from : so 
 that the scheme of disunion contemplated the inclusion of the 
 North-western States in the Southern division. The State of 
 
144 APPENDIX. 
 
 Missouri was one of the principal of these States, and great 
 efforts were made to gain her over, and to beat down Senator 
 Benton wlio was an obstacle to that design. The letter concludes 
 by pointing out the only difficulty in the execution of this plan, 
 and showing how to surmount it. 
 
 " There is but one practical difficulty in the way ; and that is, to 
 give it force, it will require the co-operation of all the slaveholding 
 States lying on the Atlantic Gulf. Without that, it would be ineflfective. 
 To get that is the great point, and for that purpose a convention of the 
 Southern States is indispensable. Let that be called, and let it adopt 
 measures to bring about the co-operation, and I would underwrite for 
 the rest. The non-slaveholding States would be compelled to observe 
 the stipulations of the Constitution in our favor, or abandon their trade 
 with us, or to take measures to coerce us, which would throw on them 
 the responsibility of dissolving the Union. Which they would choose, 
 I do not think doubtful. Their unbounded avarice would, in the end, 
 control them. Let a convention be called — let it recommend to the 
 slaveholding States to take the course advised, giving, say one year's 
 notice, before the acts of the several States should go into effect, and 
 the issue would fairly be made up, and our safety and triumph certain." 
 
 This is the only difficulty — the want of a co-operation of all 
 the Southern Atlantic States : and to surmount that, the indis- 
 pensability of a convention of the Southern States is fully de- 
 clared. This was going back to the starting point — to the year 
 1835 — when Mr. Calhoun first took up the slavery agitation in 
 the Senate, and when a convention of the slaveholding States 
 was as much demanded then as now, and that twelve years be- 
 fore the Wilmot Proviso — twelve years before the Pennsylvania 
 unfriendly legislation — twelve years before the insult and out- 
 rage to the South, in not permitting them to carry their local 
 laws with them to the Territories, for the protection of their 
 slave property. A call of a Southern convention was as much 
 demanded then as now ; and such conventions often actually 
 attained ; but without accomplishing the object of the prime 
 mover. No step could be got to be taken in those conventions 
 towards dividing and sectionalizing the States, and after a vain 
 reliance upon them for seventeen years, a new method has been 
 fallen upon : and this confidential letter from Mr, Calhoun to a 
 member of the Alabama Legislature of lSi7, has come to light, 
 
APPENDIX. 145 
 
 to furnish the key which unlocks his whole system of slavery 
 agitation which he commenced in the year 1835. That system 
 was to force issues upon the North under the pretext of self- 
 defence, and to sectionalize the South, preparatory to disunion, 
 through the instrumentality of sectional conventions, composed 
 wholly of delegates from the slaveholding States. Failing in 
 that scheme of accomplishing the purpose, a new one was fallen 
 upon, which will disclose itself in its proper place. 
 
 III. 
 
 REVIEW OF PRESIDENT PIERCE'S ANNUAL MESSAGE TO CONGRESS, OF DE- 
 CEMBER, 1856, so FAR AS THE SAME RELATES TO THE ABROGATION OP 
 THE MISSOURI COMPROMISE ACT: WITH A VIEW TO EXPOSE AND CORRECT 
 ITS ERRORS OF FACT AND OF LAW. 
 
 I ENTER Upon this task with the declaration that I believe this 
 part of the message to have been written by Mr. Pierce's law 
 officer, (Mr. Caleb Gushing,) dominated by his Secretary at 
 "War, (Mr. Jefferson Davis,) and that Mr. Pierce is not obnoxious 
 to the strictures I am forced to make, and is only culpable in 
 covering with his name the fallacious statements of others. 
 And with this salvo in behalf of an innocent man, I proceed to 
 the review of the message, first presenting a specimen of the 
 epithets which are lavished upon the act, (and by consequence 
 on its authors,) the abrogation of which is the subject of so 
 much laudation and joy. "A mere nullity," "unconstitu- 
 tional," " no obligatory force," " an imperfection on the statute 
 book," "objectionable enactment," "a monument of error," 
 " a beacon of warning," " a dead letter in law," " injurious," 
 " conferring no right," " taking away no right," " affecting no 
 sense of j^ermission or prohibition," " a nullity permitted to re- 
 main for some years on the statute book," " no moral force," 
 " its repeal a matter of form, being dead of itself," " the statute 
 book rightfully relieved by its repeal of an unconstitutional, 
 injurious, objectionable enactment :" such are the terms (a 
 sample of the quality and a fraction of the quantity) which the 
 message piles up on this healing and pacifying measure of 1820, 
 as if it was intended by a mere accumulation of odious epithets 
 to " crush out " an act which was balm to the wounds of the 
 10 
 
146 APPENDIX. 
 
 country at the time of its enactment, and peace and safety to a 
 distracted Union, for nearly thirty years afterwards. And to 
 whom do these epithets apply ? To the twenty-four senators, 
 headed hy Pinkney, of Maryland, the jurist and orator, and to 
 the one hundred and thirty-four representatives, headed by 
 Clay and Lowndes, and to the administration of Mr. Monroe, to 
 whom the country was indebted for that beneficent act. To 
 these men these epithets apply. These are the men stigmatized 
 in the message as dolts and ninnies, foolish, if not wicked, and 
 barely escaping the imputation 'of criminality in consideration 
 of their ignorance and folly. But the stigmatizing does not stop 
 there : it reaches back to Washington, to his cabinet, and the 
 entire Congress of 1789 : for AVashington and that Congress, in 
 adopting the ordinance of '87, adopted that slavery clause, 
 which, being copied into the Missouri act, has given rise to all 
 this vituperation of this measure, and to all this exultation over 
 its repeal. Nor does the obloquy stop there, but reaches the 
 President, the cabinet, and the Congress of 1845, all of w^hom, 
 re-enacting the Missouri Compromise, become subject to the 
 obloquy which the message lavishes upon that measure. All 
 these, and the whole body of the American people, who ac- 
 cepted the act, come in for their share of these fine epithets : 
 but there is certainly one who ought to have been excepted, 
 one, who being twice the supporter of the vituperated act, (in 
 Mr. Monroe's cabinet and Tjder's cabinet,) ought to have es- 
 caped denunciation, and wdio, although he had forgotten that 
 support in 1848, could not make Mr. Monroe's letter forget it ; 
 nor Mr. Adams's diary forget it ; nor the index to the papers 
 filed in the department of State forget it ; nor make his own 
 speech of 1838 forget it. This gentleman ought to have been 
 excepted, both as the supporter of the Missouri Compromise in 
 1820, and of its re-enactment in 1845; and as the favorite states- 
 man of the party which the message represents. And now to 
 the review. 
 
 It is a law of Providence, from which there are but few de 
 viations, and of which the abrogation of the Missouri Compro- 
 mise has given occasion for the largest modern illustration, that 
 those who commit a great wrong are condemned, during the 
 remainder of their lives, to the painful task of inventing excuses 
 and justifications for the delinquent act. So in this case ; since 
 
APPE]SDIX. 147 
 
 the month of May, 1854, when tliis deed was done, its authors 
 have been in a permanent state of excuse and justification ; and 
 being many, and in possession of the Government, and with 
 the control of many newspapers, and the right of composing 
 official papers and public documents, they have plied the public 
 mind with incessant repetition of these justificatory pieces, each 
 an improvement upon its predecessor in all the qualities which 
 the defence of so bad a cause requires ; undaunted mendacity, 
 moral callosity, mental obliquity, Old Bailey attorney perver- 
 sions of law and evidence. The last annual message of Mr. 
 Pierce was the last opportunity for this defensive pleading, and 
 being the last, it was carefully seized on, and vigorously im- 
 proved to the best advantage. The message was big with it. 
 It was a large plea, and a bold one, and conspicuously presented. 
 In quantity it filled eleven octavo pages, (leaving but seventeen 
 for all the appropriate subjects which belong to that official 
 paper ;) in boldness, it inaugurated a new era in our Presidential 
 messages — the era of historical falsification in those high papers, 
 heretofore considered the sacred receptacle of veracious history ; 
 in conspicuity, being thrust into the front of the message, in- 
 stead of being relegated to its fag-end, where such low matter 
 should go, if, indeed, allowed to enter a message at all ; which 
 it never was before. Yeracious history must rebuke this first 
 attempt to make the Presidential annual message a vehicle of 
 historical falsification ; and the work is easily done, all the facts 
 necessary to the correction of the fallacious statements being of 
 record in the debates and journals of Congress, and other au- 
 tlientic public evidence. These misstatements, after a prelimi- 
 nary one to usher in the others, arrange themselves under three 
 heads : Ji^rst, in what relates to the formation of the Missouri 
 Compromise ; secondly, in what relates to its abrogation ; 
 thirdly, in what relates to the present state of parties, and their 
 respective shares in producing the present agitation. 
 
 This preliminary misstatement is the assumption,that the issue 
 of the last Presidential election was a national ratification of the 
 abrogation of the Missouri Compromise. IS'o assumption could be 
 more unfounded. That election proved just the reverse of what 
 has been assumed. It was intended that it should be so, (in the 
 nomination and election of some one of the prominent destroyers 
 of the compromise,) and the Convention at Cincinnati was 
 
148 APPEN1> K. 
 
 gorged with office-liolding retainers of the administration for 
 that purpose : but no such destroyer of the compromise could 
 be nominated; and no one of them could have been elected if 
 nominated. It was the trump argument in favor of Mr. Bu- 
 chanan, that he was not one of these destroyers ; and, although 
 known to " acquiesce " in the deed after it was done, yet his 
 long and most conspicuous championship of that measure, and 
 his geographical position, led to the belief that he would not 
 improve upon its abrogation, nor complete its iniquities by 
 lending himself to the ulterior designs of its authors. That 
 belief, and the discredit brought upon his opponent by the 
 support of some violent men, (and it is the violent always who 
 impress character upon a party,) who preached against the ex- 
 istence of slavery in the States — against the admission of any 
 more slave States — and against the compromises of the Consti- 
 tution and of the ordinance of '87, for the surrender of fugitive 
 slaves : it was this belief, and this discredit, which turned the 
 scales in the election ; and it required all that both these cardinal 
 causes could do to elect Mr. Buchanan. This is public, unde- 
 niable truth; and it requires a courageous and veteran disregard 
 of the laws of veracity to assume the contrary, as the message 
 is made to do. 
 
 And now for the enactment of the Missouri Compromise, 
 which the message very j)roperly styles "a political enact- 
 ment," as it certainly is ; and then gives this account of it : — 
 
 " The enactment, whicli established the restrictive geographical line, 
 was acquiesced in rather than approved by the States of the Union. It 
 stood on the Statute Book, however, for a number of years ; and the 
 people of the respective States acquiesced in the re-enactment of the 
 principle as applied to the State of Texas ; and it was proposed to ac- 
 quiesce in its further application to the territory acquired by the United 
 States from Mexico. But this proposition was successfully resisted by the 
 representatives from the Northern States, who, regardless of the statute 
 line, insisted upon applying restriction to the new territory generally, 
 whether lying north or south of it, thereby repealing it as a legislative 
 compromise, and, on the part of the North, persistently violating the 
 compact, if compact there was. Thereupon this enactment ceased to 
 have binding virtue in any sense, whether as respects the North or the 
 South ; and so in effect it was treated on the occasion of the admission 
 of the State of California, and the organization of the Territories of New 
 Mexico, Utah, and Washington." 
 
APPENDIX. 149 
 
 This paragraph is characteristic, ana exemplifies all tlie 
 modes of conveying mitruths which long ages have invented : 
 direct assertion, fallacious inference, equivocal phrase, and false 
 inuendo. The word " restrictive " has no application to the 
 Compromise Act. It applied exclusively to the State of Mis- 
 souri, and the attempt to restrain her, as a State, from the ad- 
 mission of slaves. The compromise was a territorial measure, 
 applying exclusively to territory, and establishing, not a re- 
 strictive, but a partition line ; a line of territorial division, upon 
 the principle of the division of the South-west and North-west 
 Territory by the old Congress in 1787, and sanctioned by the 
 new Congress in 1789. The principle of each was the same, 
 and the dividing line so nearly the same, that the Louisiana line 
 may stand for a continuation of the north-west line, making 
 about equal division, until the South gave away nearly the 
 whole of hers. A compromise is agreed to ; a restriction is im- 
 posed; and it is falsifying the- character of the act of 1820 to 
 call it restrictive. The power of each House of Congress agreed 
 to it ; the negative in each was inconsiderable. 
 
 Then comes a litter of unfounded suggestions, implied in 
 the word " acquiesce," three times repeated in six lines, and 
 every time pregnant with a fallacious implication — each more 
 glaring than the other. It is the law^'er-like way of saying 
 what Mr. Calhoun said pointedly, that the Missouri Compromise 
 was imposed upon the South by the North, and only acquiesced 
 in because too weak to relieve herself. For it is as notorious 
 as that the South exists, that both these compromises — that by 
 which Missouri and Arkansas became admitted as slave States, 
 and that of 1845 by which Texas (and four more slave States to be 
 made out of her territory) became admitted^were measures of the 
 South, carried by her votes, and the votes of her friends in the 
 free States ; and that, in each case, she was so determined upon 
 the measure as to threaten secession from the Union if it was 
 not obtained. This is matter of public history ; and therefore, 
 the mendacity of these three implications, in six lines, becomes 
 too flagrant to admit of comment, or to require proof. "We pro- 
 ceed to another, the Southern proposal to extend the Missouri 
 Compromise line to the Pacific, or, in the language of the 
 message, "to acquiesce" in the extension; and its defeat by 
 Northern votes. In the first place, that extension was resisted 
 
150 APPENDIX. 
 
 by otliers as well as by Northern votes — resisted by all Southern 
 men opposed to planting slavery in new places — and vehemently 
 by Mr. Clay, who repulsed the proposition indignantly when 
 pushed at him by Mr. Davis of Mississippi, declaring, with an 
 emphasis which electrified the Senate, that no power on earth 
 should ever make him vote for slavery in any place where it 
 did not already exist. For that was the nature of the vote in- 
 volved in this insidiously proposed extension — being directly 
 the reverse of voting for the same line in the ancient Louisiana. 
 Astronomically, the lines were the same : politically, they were 
 opposite : one running through territory all slave, and making 
 one-half free ; the other running tlirough territory all free, and 
 making one-half slave. Call this extended line the same ! You 
 had as well call black and white the same. And this, in fact, 
 is what the message is made to do, with a reproach to all 
 Northern men who would not agree to spread slavery over the 
 broad expanse of all that half of California, New Mexico and 
 Utah, which lies south of 36° 30' ; and it is for not agreeing to 
 convert this great extent of old free soil into new slave soil, that 
 these Northern representatives are thus chid and reproached in 
 the message. Certainly, Mr. Cushing would not so have re- 
 buked them in the year 1836, when he was opposing the admis- 
 sion of Arkansas as a slave State ; * or, in the year 1838, when, 
 with Mr. Slade, of Yermont, and with all the abolitionists in the 
 
 * Tlae extraordinary circumstances under which I rise to address the Committee, 
 impel me to hre\-ity and succinctness ; but they -vrould afford me no justification for a 
 passive acquiescence in the admission of Arkansas into the Union, with all the sins of 
 its constitution upon its head. The constitution of Arkansas contains a provision, 
 forbidding the legislature to emancipate slaves without the consent of the owner, and 
 forbidding it to pass any law to prevent slaveholders with their slaves from emigrating 
 to the State. This provision of tlie constitution of Arkansas is condemned by those I 
 represent as anti-republican, as wrong on general principles of civil poUty, and as 
 unjust to the inhabitants of the non-slaveholding States. I concur in reprobating 
 such a clause. I cannot, by any vote of mine, ratify or sanction a constitution of 
 government which undertakes in this way to foreclose in advance the progress of 
 civilization and of liberty for ever. The gentleman from Virginia (Jlr. Wise), who I 
 cheerfully admit is always frank and honorable in his course upon this floor, has just 
 declared that, as a Southern man, he had felt it to be his duty to come forward and 
 take a stand in behalf of an institution of the South. That institution is slavery. In 
 like manner I feel it to be my duty, as a Northern man, to take a counter stand in 
 conservation of one among tlie dearest of the institulions of the North. This institution 
 is liberty." — J/i\ Cushlng^s Speech against the admission of Arkansas. 
 
APPENDIX. 15!l 
 
 House of Eepresentatives, by his efforts to abolish slavery in 
 the District of Columbia, he drove the Southern members to 
 secession from the floor of the House, to consult in a committee 
 room in the basement of the Capitol, upon the decisive step of 
 returning to their constituents. * 
 
 Then comes the fundamental falsehood which lies at the 
 foundation of the attack on the Missouri Compromise, affirming 
 that it had been virtually repealed by the negative action of 
 Congress in 1850, in refusing to extend the compromise line to 
 the Pacific, and in refusing to legislate upon slavery in Califor- 
 nia, ISTew Mexico, Utah and Washington — Washington, as the 
 message says ; though there was no Territory of Washington at 
 that time, and the territory which afterwards composed it, had 
 been included in the legislation on Oregon, of which it was a 
 part ; and from which that institution was excluded. But, take 
 the statement as it stands, and judge it upon its words ; and for 
 that purpose it must be given in its own words : for nothing but 
 itself can do justice to itself in the exhibition of such legerde- 
 main in handling law and facts. And here it is : — 
 
 " But this proposition was successfully resisted by the represen- 
 tatives from the Northern States, who, regardless of the statute line, 
 insisted upon applying restriction to the new territory generally, whether 
 lying north or south of it, thereby repealing it as a legislative compro- 
 mise, and, on the part of the North, persistently violating the compact, 
 if compact there was. Thereupon this enactment ceased to have bind- 
 ing virtue in any sense, whether as respects the North or the South ; 
 and so in effect it was treated on the occasion of the admission of the 
 State of California, and the organization of the Territories of New 
 Mexico, Utah and Washington." 
 
 Here is a farrago of law and fact for you — a sample of asser- 
 tion and inference — which ignores truth, reason, common sense, 
 and law logic. A refusal to extend a line is, to repeal it : a 
 refusal to act upon slavery in Territories where it was already 
 
 * Of the sixty-three members of the House who pertinaciously backed Mr. Slade 
 during the two days that the struggle continued, one was Mr. Caleb Gushing, then as 
 zealous to abolish slavery in the District of Columbia (for the motion was to instruct 
 a committee to bring m a peremptory bill for that purpose) as he has since shown 
 himself active to abolish all impediments to the general territorial diffusion of slavery — 
 even in the old free territory, once a part of the empire of Montezuma. 
 
152 APPENDIX. 
 
 abolished by Mexican law is, to violate the Missouri Compact — 
 if there was one. The admission of the State of California with 
 her free constitution, and the organization of the Territories of 
 Utah and Xew Mexico, without excluding slavery where it was 
 already excluded, was, in effect, to deprive the Missouri Com- 
 promise of binding virtue in any sense ; and, consequently, to 
 authorize the Congress of 1854 to rub it out of the statute book 
 as being a dead thing, put to death by the Congress of 1850. 
 Happily for the inventors of all this false assertion and prepos- 
 terous inference, Mr. Clay was dead before they found out that 
 he had, in his compromise measures of 1850, destroyed the 
 Missouri Compromise of 1820. He was not the man to hear 
 such a libel upon himself without instantly blasting, with his 
 indignant invective, both the foul imputation, and its luckless 
 author. But no one of these destroyers of that compromise 
 was so unlucky as to subject himself to the lightning of that 
 reply. They had too much discretion for that. They waited 
 four years for him to be dead, and buried, before the foul im- 
 putation was cast upon him : an imputation sufficient to start 
 his spirit from the grave. I was a member of that Congress of 
 1850, and saw what was done : I was a close observer of his 
 compromise measures, and know what they were : I have ex- 
 amined them all since, and find that I was not mistaken in my 
 recollection of them. And upon all this knowledge, and upon 
 the measures themselves as they now stand on the statute book, 
 I take upon myself to affirm, that the assertion that they re- 
 pealed, or impaired in any way, the Missouri Compromise Act, 
 is one of the most unfounded assertions which ever fell from 
 the lips of man. 
 
 The assertion is, that the compromise measures of 1850 
 repealed the Missouri Compromise, and established the doctrine 
 of non-interference with slavery in Territories. This repeal, it 
 has been seen, was effected by refusing to extend the line to 
 the Pacific Ocean — certainly a new way of repealing a statute ! 
 and the non-interference will be found to be worthy to take its 
 place by the side of such an invention. Certain it is that Con- 
 gress did not legislate upon slavery in any Territory in 1850 ; 
 but why ? precisely because there was no room for legislation ! 
 because the question was then settled, by law, in every inch 
 square of territory belonging to the United States! and settled 
 
APPENDIX. 153 
 
 to tlie satisfaction of Congress, and as it was intended to remain 
 for ever, and to be, what was then called, " a finality ! " It 
 was settled every where ; in the remnant of the old North-west 
 Territory, by the ordinance of '87, re-enacted by the act of 
 Congress of 1789 ; in all the Territory of Louisiana, by the 
 Missouri Compromise line ; in Oregon, by her own organic 
 act, and by the act of her organization, extending the ordinance 
 of '87 to her ; in California, by her State constitution ; in Utah 
 and New Mexico, by the laws of Mexico, abolishing slavery 
 there before their cession to the United States ; in Texas, by the 
 terms of her admission, allowing her to come in with her slave 
 constitution, and the right to form four more slave States out of 
 her territory. This closed up the question every where. It 
 left not one inch square of territory in the United States open 
 to the slavery question. There was no way to get at the question, 
 then, but by breaking down a law ; and this was what neither 
 Mr. Clay, nor Congress would do. In his plan of compromise 
 measures, he reviewed the question of slavery in the Territories, 
 and showed it to be settled every where, and refused to unsettle 
 it any where, for the purpose of settling it over again. With 
 respect to Utah and New Mexico, the second of the resolutions 
 submitted by him expressly declared that slavery did not exist 
 there — that it was abolished by the laws and constitution of 
 Mexico, and would remain abolished until those laws were re- 
 pealed by Congress — and that it was unnecessary and inexpedient 
 " to adopt any restriction or condition on the subject of slavery," 
 This was the non-intervention of 1850. It was the non-inter- 
 vention which respects existing law ! which would not abolish 
 law, to get at the slave institution in these Territories, either to 
 restrict, or allow it; or to set the people themselves to quarrelling 
 and fighting about it. It was the non-intervention of submission 
 to law ; and to quote it as a precedent and authority for abro- 
 gating the Missouri Compromise, was to unsettle what had been 
 settled for thirty-four years by that compromise. And the 
 clear lesson taught by the measures of 1850 was, that Congress 
 would not repeal a law to re-open the hideous slavery question. 
 Tliat is the lesson taught ! non-interference with existing laws ! 
 and upon this lesson the Congress of 1854 has felt itself called 
 upon to do just the contrary of what that teaches — to break 
 down one of the most sacred and extensive of these benign 
 
154 APPENDIX. 
 
 laws, and to revive the slavery agitation which had been so 
 well and so long settled before. This is what the Congress of 
 ■54 did ! just the reverse of what the conduct of the Congress 
 of 1850 taught — ^breaking up the "finality" then established — 
 setting the people to fighting in the Territories — and bringing 
 the question back into Congress under the pretence of keeping 
 it out of Congress, when it was already out, and no way to get 
 it in again except by breaking down a law. Such is the inven- 
 tion, as barefaced as wicked, to which the repealers have had 
 recourse to justify their destruction of the Missouri Compromise 
 — a crime in itself, and doubled by laying it on an innocent 
 party ; but they found it no easy matter to come up to this 
 invention. Long it was before they conceived it, and various 
 the forms under which it appeared before it took the shape on 
 which all rallied and stood ; but of this hereafter. 
 
 II. We come now to the second head of this Review, namely, 
 the manner, {modus operandi^ in which the repeal of the Mis- 
 souri Compromise was efiected, the suddenness of the turn 
 against that measure, and the unanimity with which all took 
 the track after its repeal was determined uj)on, and the excuse 
 provided for it. To do this it will be necessary to go back a 
 year — to the end of the previous session of Congress — and see 
 how the question of repeal stood then ; see how the party stood 
 aifected towards the compromise at that time. This will be 
 done by giving the words of one who is authority upon this 
 point — Mr. Atchison, of Missouri — and who, in coming into the 
 support of the then impending Nebraska Bill upon the basis of 
 the compromise, thus expressed himself: — 
 
 " I will now state to the Senate the views which induced me to op- 
 pose this proposition in the early part of the session. I had two objec- 
 tions to it. One was that the Indian title to that Territory had not been 
 extinguished, or at least a very small portion of it had been. Another 
 was the Missouri Compromise, or, as it is commonly called, the slavery 
 restriction. It was my opinion at that time — and I am now very clear 
 on that subject — that the law of Congress when the State of Missouri 
 was admitted into the Union, excluding slavery from the Territory of 
 Louisiana north of 36°, 30', would be enforced in that Territory unless 
 it was specially rescinded ; and whether that law was in accordance with 
 the Constitution of the United States or not, it would do its work ; and 
 that work would be to preclude slaveholders from going into that Terri- 
 
APPEISTDIX. 155 
 
 tory. But when I came to looJc into that question, I foimd there teas 
 no prospect — no hope — of a repeal of the Missouri Compromise exclu- 
 ding slavery from that Territory. Now, sir, I am free to admit that 
 at this moment, at this hour, and for all time to come, I should oppose 
 the organization or the settlement of that Territory, unless my constitu- 
 ents, and the constituents of the whole South, of the slave States of the 
 Union, could go into it upon the same footing, with equal rights and 
 equal privileges, and carrying that species of property with them as 
 other people of this Union. Yes, sir, I acknowledge that that would 
 have governed me; hut I have no hope that the restriction loill ever he 
 repealed. I have always been of opinion that the first great error com- 
 mitted in the political history of this country, was the ordinance of 
 1787, rendering the North-western Territory free territory. The next 
 great error was the Missouri Compromise. But they are hoth irreme- 
 diahle. There is no remedy for them. We must suhmit to them. I 
 am prepared to do so. It is evident that the Missouri Compromise 
 cannot he repealed. So far as that question is concerned, we might as 
 well agree to the admission of this Territory now as next year, or five, 
 or ten years hence." 
 
 So spoke Mr. Atchison ; and from tliese multiplied declara- 
 tions of no hope for the repeal of the Missouri Compromise, and 
 from the declaration that, unless specially repealed, it would 
 exclude slaves from the Territory, we are allowed to draw two 
 conclusions. First : That no idea of ever repealing the Missouri 
 Compromise then existed. Secondly: That no idea tliat the 
 compromise measures of 1850 had repealed, or impaired that 
 line, then existed. These are two important points necessary to 
 be known, in order to understand the subsequent movement. 
 
 It was on a motion to take up the IlTebraska Bill, and put it on 
 its passage, that Mr. Atchison made these remarks. Mr. Doug- 
 lass, the reporter of the bill, was present, and urgent to take it 
 up, and pass it, saying : " That it was a bill very dear to his 
 heart — that for eight long years he had been trying to get it 
 through — and that, in his anxiety to pass it, he would yield his 
 privilege of speaking, that he might get an immediate vote." 
 But others would speak : it was the last night of the session, 
 when discussion was fatal to any bill. It was not taken up. 
 If it had been, it would certainly have passed ; and if it had, 
 the American people would never have heard of the repeal of 
 the Missouri Compromise, either as a direct act in 1854, or as 
 
156 ' APPENDIX. 
 
 the effect of tlie compromise measures of 1850 — albeit two- 
 thirds of the Senate, and nearly all of those engaged in the sub- 
 sequent repeal were present ! not one recollecting that the com- 
 promise had been dead for three years ! and deprived of life by 
 themselves ! 
 
 Tliis was the end of Mr. Fillmore's administration. His suc- 
 cessor, Mr. Pierce, found the country in the most happy and 
 tranquil state ; peace and prosperity at home and abroad, and 
 slavery agitation stone dead. Felicitating himself upon this 
 delightful state of the country, he made it a topic of national 
 congratulation in his first annual message, and thus dilated upon 
 the happy auspices which saluted his nascent administration : — 
 
 " We are thus not only at peace with all foreign countries, but in 
 regard to pohtical affairs, are exempt from any cause of serious disqui- 
 etude in our domestic relations. The controversies which have agitated 
 the country heretofore, are passing away with the causes that produced 
 them, and the passions they had awakened ; or, if any trace of them re- 
 mains, it may be reasonably hoped that it will only be perceived in the 
 zealous rivalry of all good citizens to testify their respect for the rights 
 of the States, their devotion to the Union, and their common determi- 
 nation that each one of the States, its institutions, its welfare, and its 
 domestic peace, shall be held alike secure under the sacred aegis of the 
 Constitution." 
 
 Such was the picture of the national felicity, at home and 
 abroad, which Mr. Pierce drew in his first annual message. 
 Slavery agitation extinct ; its causes and its passions all gone ; 
 no trace of it remaining ; and the only contention among the 
 people a zealous rivalry in showing devotion to the Union, re- 
 spect for the rights of the States, and regard for their domestic 
 institutions. It was a charming picture, and faithfully drawn, 
 and universally greeted with joy ; for never, since the first term 
 of Washington's administration, had there been such a political 
 millennium in our country as then reigned. The message did 
 right to exult-over it : — but, oh ! how sadly this lovely picture, 
 drawn, no doubt, by the President's own hand, contrasts with 
 the hideous one prepared for him by others in his last annual 
 message, and which it required eleven pages to describe. 
 
 At this session of Congress, the first under Mr. Pierce's ad- 
 ministration, Mr. Douglass renewed his K'ebraska Bill, being 
 for the ninth time, and still on the basis of respect and perpetu- 
 
APPENDIX. 157 
 
 itj to the Missouri Compromise Act — a proof that, up to that 
 time, he had no idea of its repeal by the comi3romise measures 
 of 1850, or any suspicion that it had been in any way affected 
 by those measures, then three years old, and certainly long 
 enough in force for their effect to be known. The bill was re- 
 ferred to a Committee, which returned it with what appears 
 to have been a unanimous report, reciting that there was a con- 
 troversy about the validity of the Missouri Comj)romise Act ; 
 some eminent statesmen holding it to be null and void under the 
 Constitution, and others holding the act to be valid ; and conclu- 
 ding with declaring that the Committee did not feel itself called 
 upon to engage in the discussion of these disputed points, and 
 that it was not prepared to recommend either the repeal or the 
 affirmation of the Missouri Compromise Act; or to declare the 
 meaning of the Constitution with respect to the disputed point, 
 to wit : the power of Congress to prohibit slavery in a Terri- 
 tory. The following is the language of the report on these 
 points : — 
 
 *' In the opinion of some eminent statesmen, -who hold that Congress 
 is invested with no rightful authority to legislate upon the subject of 
 slavery in the Territories, the 8th- section of the act preparatory to the 
 admission of Missouri into the Union is null and void ; while the pre- 
 vailing sentiment in large portions of the Union sustains the doctrine 
 that the Constitution of the United States secures to every citizen an 
 inalienable right to move into any of its Territories with his property, 
 of whatsoever kind and description, and to hold and enjoy the same under 
 the sanction of law. Your committee do not feel themselves called 
 upon to enter into the discussion of these controverted questions. They 
 involve the same issues which produced the agitation, the sectional 
 strife, and the fearful struggle of 1850. As Congress deemed it wise 
 and prudent to refrain from deciding the matters in controversy then, 
 either by affirming or repealing the Mexican laws, or by an act declara- 
 tory of the true intent of the Constitution, and the extent of the pro- 
 tection afforded by it to slave-property, so your committee are not pre- 
 pared to recommend a departure from the course pursued on that memo- 
 rJble occasion, either by affirming or repealing the 8th section of the 
 Missouri act, or by any act declaratory of the meaning of the Con- 
 stitution in respect to the legal points in dispute." 
 
 This report was made January 4:th, 1854 ; and up to that 
 day it is seen that the eminent committee which made it saw 
 
158 APPENDIX. 
 
 no repeal of the Missouri Compromise Act in the measures of 
 1850 — saw no occasion to recommend its repeal — no occasion 
 to declare the meaning of the Constitution with respect to sla- 
 very in Territories. They abstain from doing any of these 
 things, and for a solid and patriotic reason, which they state ; 
 and which addresses itself to the best feelings of all the friends 
 of the Union. It was, because the discussion of these points 
 " involved the same grave issues which produced the agitation, 
 the sectional strife, and the fearful struggle of 1850." Solid, 
 and patriotic reasons for not engaging in such business, and good 
 for all time. The struggle of 1850 was indeed fearful, and por- 
 tended the immediate dissolution of tlie Union. One of those 
 conventions which commenced in 1830, and which have be- 
 come an institution of the South, and which Mr. Madison qual- 
 ified as " insidious," had then assembled at Nashville, Tennes- 
 see — taken the question of union, or disunion, into its hands — 
 and were openly passing measures for the separation and segre- 
 gation of the Southern States. Tlie compromise measures of 
 1850, being received as a "finality "by the country, checked 
 this parricidal work ; and the committee, of whose report we 
 speak, acted wisely and patriotically in not touching those 
 questions which " produced the agitation, the sectional strife, 
 and the fearful struggle of 1850 ; " and in not disturbing those 
 compromise measures of that year which allayed that agitation, 
 composed that strife, and terminated that fearful struggle. The 
 committee which made the report was strongly Southern in its 
 composition — one half from the slave States — the other half 
 (except one) as strongly Southern as the South itself on all the 
 slavery issues ; and unanimous in the report. They were : 
 Messrs. Douglass, of Illinois, chairman ; Houston, of Texas ; 
 Johnson, of Arkansas ; Bell, of Tennessee ; Jones, of Iowa ; 
 and Everett of Massachusetts. The report was so acceptable to 
 the Senate that, as soon as it was read, the large number of 
 5,000 extra copies were ordered to be printed for the use of the 
 body — that is to say, for the Senators to distribute among tj|e 
 citizens of the States, for their information of the manner in 
 which the Senate was keeping out of its chamber the portentous 
 issues which had so lately convulsed the country. 
 
 This report was received as cordially outside of the Senate 
 as in it. All the friends of the Administration applauded it. 
 
APPENDIX. 159 
 
 The Dally Union, — tlie administration paper, its organ, — 
 and in which several members of the cabinet habituallj wrote, 
 was most encomiastic in its favor ; and not merely in favor of 
 the report, but of the Senator who drew it, applauding him for 
 the " sound, national, and Union-loving sentiments with which 
 it abounds." The report itself was immediately published in 
 full in the official paper, and earnestly commended to the care- 
 ful perusal of every democrat, with the declaration that the 
 President and cabinet all ajjproved it. And this laudation be- 
 came more and more intense from day to day, until it took the 
 form of fierce censures " against the wings and abolitionists," 
 who were against it, because they wanted to embarrass the ad- 
 ministration — and a rebuking caution to such Southern demo- 
 crats as showed a disposition to bring " an angry element of 
 discord into the halls of legislation." The occasion for these 
 censures and admonitions was this : Mr. Dixon, a whig Senator 
 from Kentucky, gave notice on the 16 th of January, that when 
 the bill came up for consideration he should move to add a sec- 
 tion to it, repealing the Missouri Compromise Act of 1820 ; 
 and Mr, Sumner, a free-soil Senator from Massachusetts, gave 
 notice on the other hand, that he would at the same time move 
 an amendment affirming that compromise. Both these propo- 
 sitions were immediately denounced by the Daily Organ in 
 terms, not only of condemnation, but of opprobrium — thus : 
 " Two propositions have been made in the Senate — one by Sen- 
 ator Dixon, a whig, and the other by Senator Sumner, an abo- 
 litionist — which indicate that the bill, as proposed by Mr. Doug- 
 lass, is to be vigorously assailed. Mr. Dixon proposes to amend 
 it, by a clause expressly repealing the act of 1820, commonly 
 known as the Missouri Compromise. Mr. Sumner proposes to 
 amend it, by expressly declaring that the Missouri Compromise 
 is to be continued in force." Thus, these two propositions were 
 immediately denounced, and the democratic party warned 
 against them. They were met as hostile. They indicated as- 
 sault (and vigorous assault) upon the bill of Mr. Douglass ; and 
 to aggravate the nature of this assault, as if not bad enough in 
 itself, it was carefully noted that these propositions came from 
 a whig and an abolitionist. The Daily Union, by way of commend- 
 ing Mr. Douglass's bill and report, went on to declare Mr. Cass's 
 perfect satisfaction with it, and to deprecate the reopening of the 
 
160 APPENDIX. 
 
 slavery question, as proposed by the whig and abolition Sena- 
 tors. It- gave its opinion of the effect of their propositions, 
 saying : " Mr. Dixon's amendment would stir up excitement on 
 one side, whilst Mr. Sumner's will effect the like object on the 
 other : and as whigism and abolitionism have every thing to 
 gain, and nothing to lose, the upshot may be that the agitation 
 may enure to the benefit of the common opposition of the demo- 
 cratic party." These remarks of the Organ are as significant 
 as explicit. The proposed amendments are to stir up excite- 
 ment, and to produce agitation ; and this excitement and agita- 
 tion, it is apprehensively expressed, may emn*e to the benefit 
 of the enemies of democracy. The Organ then proceeds to 
 counsel adherence to the bill and report of Mr. Douglass— -to 
 let well enough alone — and, in that phrase, to let the Missouri 
 Compromise alone. In this sense, it thus discoursed : "In a 
 word, it would be wise in all democrats to consider whether it 
 would not be safest to let well enough alone." And then goes 
 on to say — " The repeal of the Missouri Compromise might, 
 and, according to our view, would, clear the principle of Con- 
 gressional non-intervention of all embarrassment ; but we doubt 
 whether the good thus promised is so important, that it would 
 be wise to seek it through the agitation which necessarily stands 
 in our path." And upon this view of the consequences of dis- 
 turbing the compromise — inevitable agitation — and upon this 
 doubt of profit or loss to the democratic party in rousing that 
 agitation, the Daily Union deems it " safest," and " wisest," to 
 let well enough alone— that is to say, let the Missouri Compro- 
 mise stand untouched, as proposed in Mr. Douglass's bill and re- 
 port. And to this effect were several articles, and sometimes 
 as high as seven in one paper, all denouncing the whig and 
 abolition propositions of Mr. Dixon and Mr. Sumner, and re- 
 enforcing its denunciations by constantly assuming to speak the 
 sentiments of the President, his cabinet, and the democratic 
 
 party. 
 
 But it would seem that Mr. Dixon's proposition inflamed the 
 hopes of some Southern members who wished for the direct re- 
 peal of the compromise, and who began to object to Mr. Doug- 
 lass's bill and report, for not going far enough ; and these the 
 Daily Organ undertook to restrain and pacify, by addressing to 
 them a sort of curtain lecture— a mixture of expostulation, per- 
 
APPENDIX. 161 
 
 suasion, and menace. In this vein it thus discoursed in its issue 
 of the 17th of January : " If any portion of the Soutli demands 
 more than is granted in this plan of settlement, the demand is 
 prej)Osterous. We sincerely trust the democratic party in Con- 
 gress, representing all sections of the Confederacy, will, without 
 permitting an angry element of discord to enter the halls of leg- 
 islation, unite in adopting a measure which commands the ap- 
 proval of a vast prejjonderance of the American people." This 
 appeal to the " South" — or rather, to a portion of the Soutli — 
 is every word of it significant. In the first place, to give weight 
 to its exhortation, 'the Organ declares its own sincerity in trust- 
 ing that no one of the democratic party, from any section of 
 the Union, will indulge in a demand which it stigmatizes as 
 " preposterous." It deprecates the entrance into the halls of 
 legislation of the angry element of discord which the attempt- 
 ed repeal of the Missouri Compromise would involve, and calls 
 for all to " unite " in the adoption of Mr. Douglass's bill and re- 
 port. And to give weight to this exhortation to unity in the 
 whole democratic party, the Organ emerges from the mere pre- 
 cincts of the party, and takes post upon the whole American 
 people ! declaring the measures to have a vast preponderance 
 of this whole people ! And here the date is as important as the 
 words, showing how the question stood up to the eve of the cri- 
 sis ; it was the ITth of January — that is to say, twelve days after 
 Mr. Douglass's report had been made, and six days before the 
 imforeseen catastrophe that history will have to record. In the 
 same vein, the Daily Organ again wrote three days afterwards, 
 to wit, on the 20th, under the head, in capitals, " Missouri Com- 
 promise," when it said : " We trust that we shall not be con- 
 sidered officious in noting the fact, that the projDOsition in the 
 Senate for the amendment of Mr. Douglass's bill has proceeded 
 from members of the two parties who are irreconcilably op- 
 posed to democratic ascendency." And again, on the 22d, 
 " The settlement of the question involved in the Nebraska Bill, 
 calls for the exercise of that spirit of conciliation and forbear- 
 ance by which alone sectional issues can be amicably and satis- 
 factorily adjusted." 
 
 Thus, up to the morning of the 22d day of January, the 
 President and the cabinet, (according to the Daily Union,) the 
 democratic party, and a vast majoritv of the whole American 
 11 
 
162 APPENDIX. 
 
 people, were opposed to disturbing the Missouri Compromise — 
 and none but abolitionists and wbigs were for that disturbance — 
 and thus to excite agitation, and to bring an angry element of 
 discord into the halls of legislation. But these quotations are 
 but a sample of the articles to this eflfect diurnallj" appearing in 
 the administration paper for seventeen days, and by all of 
 which Mr. Douglass's plan was made an administration measure, 
 supported by all true democrats, and only opposed by whigs 
 and abolitionists. 
 
 But the ides of Marc5h were approaching — close at hand — 
 and the event to take place of which there were no portents in 
 the political horizon. 
 
 Mr. Douglass had got the N^ebraska Bill (for up to this time 
 that is the only name it bore) recommitted to the Committee 
 which had reported it, and had got Monday, the 23d day of 
 January, fixed as the day for its consideration ; but when the 
 day came, that bill, instead of being taken up for consideration, 
 as agreed upon, was di'opped from the calendar of the Senate ; 
 and two bills in one, called a substitute, for two Temtories, rose 
 up in its place. It was an apparition which required explana- 
 tion — and received it. Mr. Douglass rose to ask leave to make 
 a report from the Committee on Territories ; and leave being 
 given, he reported a substitute for the bill which he had report- 
 ed on the 5th of the month, and after stating the reasons for 
 making two Territories instead of one, went on to speak of what 
 he termed "the more delicate questions" it involved, in this 
 wise : " We have also incorporated in it one or two other amend- 
 ments, which make the provisions of the bill upon other and 
 more delicate questions, more clear and specific, so as to avoid 
 all confiict of opinion." "Without stating what these " delicate " 
 amendments were, he moved that the substitute be printed — 
 which motion prevailing, necessarily postponed the considera- 
 tion of the substitute bills until the printing could be accom- 
 plished. Mr. Douglass had said that the substitute had come 
 from the Committee : to make sure on that point, Mr. Mason, 
 of Yirginia, addressed a question to Mr. Douglass, thus : " I 
 did not hear the honorable Senator from Illinois distinctly, and 
 I wish to know whether the amendment he now proposes as a 
 substitute is reported from the Committee ? " To which Mr. 
 Douglass answered in two words, of two letters each, " It is;" 
 
APPENDIX. 163 
 
 and tlie answer may be said to include the whole of the Com- 
 mittee, except Mr. Everett, of Massachusetts, as he alone, in the 
 course of the proceedings, showed himself to be in opposition 
 to it. And at this point the proceedings for the day stopped — 
 no one inquiring what these delicate amendments, which had 
 been so gingerly * alluded to, might be. 
 
 The 24:th came, and Mr. Douglass asked for the considera- 
 tion of his substitute bill — a bill to organize the Territories of 
 ISTebraska and Kansas ; and by that title the bill was subse- 
 quently known. Several Senators objected to taking up the 
 bill so suddenly, and asked for a week's delay — among them 
 Mr. Cass. Mr. Dixon also was in favor of the delay, giving the 
 manly reason that there ought to be time for all to understand 
 the measure proposed. In this sense Mr. Dixon spoke, conclu- 
 ding with giving his idea of what the " delicate " amendment 
 was, thus : — 
 
 " The amendment, which I notified the Senate I should offer at a 
 proper time, has been incorporated by the Senator from Illinois into the 
 bill which he has reported to the Senate. The bill, as now amended, 
 meets my views, and I have no objection to it. I shall, at the proper 
 time, as far as I am able to do so, aid and assist the Senator from Illi- 
 nois, and others who are anxious to carry through this proposition, with 
 the feeble abilities I may be able to bring to bear upon it." 
 
 With this declaration, Mr. Dixon formally withdrew his 
 proposition for the repeal of the Missouri Compromise Act, and 
 Mr. Douglass formally accepted his exposition of its meaning ; 
 and the consideration of the bill was then postponed for a week. 
 Mr. Dixon advocated this postponement, saying : — 
 
 " I think it due to the Senate that they should have an opportunity 
 of understanding precisely the bearings and the effect of the amend- 
 ment which has been recently incorporated into the bill — I mean that 
 portion of the amendment which alludes to slavery in the Territories 
 proposed to be organized — Nebraska and Kansas. So far as I am indi- 
 vidually concerned, I am perfectly satisfied with the amendment reported 
 by the Senator from Illinois, and which has been incorporated into the 
 bill. If I understand it, it reaches a point I am most anxious to 
 attain — that is to say, it virtually repeals the act of 1820, commonly 
 
 * Used in the primitive seuse of the word ; nicely, cautiously. 
 
164 APPENI>JK. 
 
 called the Missouri Compromise Act, which declares that slavery shall 
 not exist north of 36 degrees 30 minutes, north latitude." 
 
 This " delicate " amendment was very daintily and cireni- 
 tously expressed, coming in the way of exception to the exten- 
 sion of the Constitution and laws of the United States to the 
 two Territories, and because superseded by the Compromise 
 measures of 1850, and become inoperative. Thus : — 
 
 " The Constitution, and all laws of the United States, not locally 
 inapplicable, shall have the same force and effect in the said Territory, 
 as elsewhere in the United States, except the eighth section of the act 
 preparatory to the admission of Missouri into the Union, approved 
 March 6th, 1820, which was superseded by the principles of the legisla- 
 tion of 1850, commonly called the Compromise measures, and is de- 
 clared inoperative." 
 
 Tliis mode of repeal was satisfactory to Mr. Dixon, but it was 
 not so to those who drew it, or some of those who would have 
 to support it. It was too glaringly absurd and false for them to 
 go to trial upon it. The Missouri Act " superseded by the 
 principles of the legislation of 1850." The assertion was as im- 
 true in fact as in logic, and would so appear at the first touch 
 of examination. Holding the affirmative of the assertion, its 
 authors would be called upon for the proof, and required to 
 show the principle which "superseded" an old Act of Congress 
 of thirty-four years' standing. That could not be done ; on the 
 contrary, it would appear, from all the legislation of Congress 
 of that year, that the Missouri Compromise Act remained un- 
 touched — neither extended nor contracted in length, nor en- 
 larged or diminished in its application, nor interfered with by 
 any enactment. It became necessary, therefore, to drop this 
 " superseding," and change it into " inconsistent ; " and also to 
 introduce the principle of " non-intervention," and to add the 
 word " void " to " inoperative ; " and then to add a little stump 
 speech to explain what all this meant. Thus altered, the re- 
 pealing enactment, as eventually settled down upon, ran in these 
 words : — 
 
 " The Constitution, and all laws of the United States which are not 
 locally inapplicable, shall have the same force and effect within the said 
 Territory of Nebraska as elsewhere in the United States, except the 
 eighth section of the act preparatory to the admission of Missouri in^^ 
 
APPENDIX. 165 
 
 the Union, approved March 6th, 1820, which, being inconsistent with 
 the principle of non-intervention by Congress with slavery in the States 
 and Territories, as recognized by the legislation of 1850, commonly 
 called the Compromise measures, is hereby declared inoperative and 
 void ; it being the true intent and meaning of this act not to legis- 
 late 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." 
 
 And thus, three years after the event, and by a sort of polit- 
 ical coroner's inquest, the Missouri Compromise Act was found 
 to be dead, and killed by those who (in much part) composed 
 the jury ; and who, for so long a time, had remained ignorant 
 of what they had done. 
 
 This was the final form which the repealing clause took ; 
 and the variations it underwent, with its circumlocutions and 
 ambiguities, show the infinite trouble its authors had in cook- 
 ing up something which would make the repeal without saying 
 so, and throw upon others the odium of an abrogation which 
 they had the will but not the face to make. Though not so 
 glaringly absurd and false as the first edition of the " delicate " 
 amendment, it was more crooked and circuitous — equally un- 
 founded in fact and inference — equally false and unjust in 
 making the Congress of 1850 the scape-goat of its own sin — 
 and dishonorable to the name of legislation, by the little stump 
 speech which is stuck into its belly. Fairly interpreted, and this 
 novel method of enactment signifies that they found the Mis- 
 souri Compromise repealed three years before, and therefore 
 they would repeal it over again — about as bad a plea in legisla- 
 tion as in the administration of justice. For, a plea from a 
 man arraigned for a homicide, that he found the man dead and 
 killed him over again, would not be admitted as a good plea in 
 any court, either of law or conscience. And yet of that nature 
 is the plea for repealing the Missouri Compromise. 
 
 This amended amendment, in a substitute bill, brings for- 
 ward the principle of " non-intervention " on the subject of 
 slavery in Territories, and finds it established in the legislation 
 of 1850 !^-which legislation established directly the contrary. 
 That legislation, in plain language, refused to pass any provision 
 on the subject of slavery in the Territories acquired from Mex- 
 
166 APPENDIX. 
 
 ico, either admitting or proliibiting it, hecause slavery was 
 already abolished there ly the laws of Mexico. It would not 
 prohibit slavery tliere, because it was already prohibited. It 
 would not repeal that law to admit slavery, because it would not 
 plant slavery where it did not exist. It would not repeal the 
 law and say nothing, because that would be to unsettle the 
 question where it was already settled, and settled to the satis- 
 faction of a great majority of Congress, and of the people of 
 the United States. This was the " non-intervention " of the 
 legislation of 1850 ! JS'ot intervene to break down a law to 
 open the slavery question where it was settled, and set people 
 to quarrelling and fighting about it. That was the non-inter- 
 vention (if the absurd term must be used where there was no- 
 thing to get between), and on this point one shall speak whose 
 voice will be potential, and from the grave rebuke those who 
 libel his memory in quoting him falsely, to justify the destruc- 
 tion of a measure which it was one of the glories of his life to 
 have promoted. 
 
 I speak of Mr. Clay, and of his report and speeches on his 
 compromise measures of 1850, and in which he has spoken for 
 himself with a clearness and precision which admits of no mis- 
 understanding. 
 
 His report, embracing all his compromise measures, con- 
 cluded with digesting their substance into seven resolutions, 
 presented for the adoption of the Senate, the second one of 
 which applied to the point now under examination, and was in 
 these words : — 
 
 " Resolved, That as slavery does not exist by law, and is not likely 
 to be introduced into any of the territory acquired by the United 
 States from the Republic of Mexico, it is inexpedient for Congress to 
 provide by law, either for its introduction into, or exclusion from, any 
 part of the said territory ; and that appropriate territorial govern- 
 ments ought to be established by Congress in all of the said territory, 
 not assigned as the boundaries of the proposed State of California, 
 without the adoption of any restriction or condition on the subject of 
 slavery." 
 
 This was the principle of Mr. Clay's non-intervention, as it is 
 called. It was non-interference ! Non-interference to unsettle 
 slaverv where it was settled ! It was non-interference with the 
 
APPENDIX. 167 
 
 law wliicli settled it! and tliere was no clap-trap blarney about 
 leaving the inhabitants of the Territories to regulate their domes- 
 tic institutions as they pleased. There was no explanatory 
 stump sj)sech in it to declare its true intent and meaning. Tliat 
 true intent and meaning was placed at the head of the resolu- 
 tion, and showed that Congress would not interfere with slavery 
 in these Territories, because, by law, it was already prohibited 
 there. This is what the resolve says, and the same sentiment 
 was reiterated in the speech which recommended its adoption 
 to the Senate. Every where in his speeches and reports his 
 non-interference was put upon that ground ; and many Senators, 
 in voting against the Wilmot proviso, gave the express reason 
 for their vote, that there was no necessity for it, for the Mexican 
 laws had put an end to slavery there, and that further legisla- 
 tion to that eifect was supererogation. And thus the interference 
 of 1850 was a refusal to break down a law to open the question 
 of slavery ; and that is quoted in 1854: as authority for doing 
 precisely the contrary. The little stump speech which was put 
 into the act about not legislating slavery in or out of the Terri- 
 tory, and leaving the people free to regulate their domestic in- 
 stitutions, could only deceive those who forgot the first word of 
 the amendment — the extension of the Constitution to the Terri- 
 tory! — carrying along with it (according to the doctrine of 
 those who put it there) African slavery in the most inexorable 
 form ! — beyond the power of Congress, or of the people in the 
 Territory to keep it out ! And this was the crooked, ambigu- 
 ous, falsely pretexted, and contradictory mode of repealing the 
 Missouri Compromise, which the substitute bill of Mr. Douglass 
 so " delicately " provided. 
 
 The report and speech of Mr. Clay — his resolve submitted to 
 the Senate for its vote — is a sufficient vindication of himself, his 
 measures, and the legislation of 1850, from the imputation cast 
 on them ; but there is another authority, equally potent in this 
 case, to make the same vindication : it is the report of Mr. 
 Douglass made at the first introduction of his bill, as heretofore 
 quoted. That report, after reciting that there was a dispute 
 about the Mexican laws, as there was about the Missouri Com- 
 promise, went on to applaud the wisdom and prudence of the 
 Congress of 1850 in refraining from deciding that dispute, 
 " either hy affii'rning or repealing the Mexican laws / " which is 
 
168 APPENDIX. 
 
 the excact truth. The Congress of 1850 would not interfere with 
 tliat Mexican law. And that non-interference, after heing first 
 quoted in the report to justify non-interference with the ]\li8- 
 souri Compromise, is afterwards quoted in the amended amend- 
 ment of the substitute bill, as a precedent and authority for re- 
 pealing the Missouri act. The first quotation was right; the 
 second, flagrantly false. 
 
 The Dixon whig amendment was now incorporated in the 
 democratic substitute bill, but without any of the manliness 
 which belonged to it when offered by the whig Senator. His 
 amendment was direct and to the point, without any of the cir- 
 cumlocutions, excuses, justifications, bolsterings, explanations, 
 recommendations, and reference to others, which imply a con- 
 sciousness of wrong which requires defence before it is attacked. 
 It went direct to the repeal of the Missouri Compromise, and to 
 the adraisson of slavery into all the Territories of the United 
 States, wiiile the substitute went to the same effect, but circui- 
 tously, crookedly, apologetically, and argumentatively ; and im- 
 proving in its reasons as it advanced, the second substitute being 
 a large emendation of the first, and both in flat contradiction of 
 the original bill and report, upon which all democrats had been 
 required to stand and to fight, under the penalty of political ex- 
 communication, and future classification with whigs and aboli- 
 tionists. Tor the sake of convenient comparison, I here repro- 
 duce, and in juxtaposition, the four shifting phases of this legis- 
 lative luminary : — 
 
 First Phase. — " In the opinion of some eminent statesmen, who 
 hold that Congress is invested with no rightful authority to legislate 
 upon the subject of slavery in the Territories, the eighth section of the 
 act preparatory to the admission of Missouri into the Union, is null and 
 void ; while the prevailing sentiment in large portions of the Union sus- 
 tains the doctrine, that the Constitution of the United States secures to 
 every citizen an inalienable right to move into any of its Territories 
 with his property, of whatsoever kind and description, and to hold and 
 enjoy the same under the sanction of law. Your Committee do not feel 
 themselves called upon to enter into the discussion of these controverted 
 questions. They involve the same issues which produced the agitation, 
 the sectional strife, and the fearful struggle of 1850. As Congress 
 deemed it wise and prudent to refrain from deciding the matters in con- 
 troversy then, either by affirming or repealing the Mexican laws, or by 
 
APPENDIX. 169 
 
 an act declaratory of the true intent of the Constitution, and the extent 
 of the protection afforded by it to slave property, so your Committee 
 are not prepared to recommend a departure from the course pursued 
 on that memorable occasion, either by affirming or repealing the eighth 
 section of the Missouri act, or by any act declaratory of the meaning of 
 the Constitution in respect to the legal points in dispute." 
 
 [3Ir. Douglasses Report. 
 
 Second Phase. — " That so much of the eighth section of an act ap- 
 proved March 6th, 1820, entitled ' An act to authorize the people of the 
 Missouri Territory to form a constitution and State government, and 
 for the admission of such State into the Union on an equal footing with 
 the original States, and to prohibit slavery in certain Territories,' as de- 
 clares ' That, in all that territory ceded by France to the United States, 
 under the name of Louisiana, which lies north of 36° 30' north latitude, 
 slavery and involuntary servitude, otherwise than in the punishment of 
 crimes whereof the parties shall have been duly convicted, shall be for 
 ever prohibited,' shall not be so construed as to apply to the Territory 
 contemplated by this act, or to any other territory of the United States; 
 but that the citizens of the several States or Territories shall be at lib- 
 erty to take and hold their slaves within any of the Territories of the 
 United States, or of the States to be formed therefrom, as if the said 
 act, entitled as aforesaid, had never been passed." 
 
 \^Mr. Dixon's Amendment. 
 
 Third Phase. — " That the Constitution, and all laws of the United 
 States which are not locally inapplicable, shall have the same force and 
 effect within the said Territory as elsewhere in the United States, except 
 the eighth section of the act preparatory to the admission of Missouri 
 into the Union, approved March 6th, 1820, which was superseded by 
 the principles of the legislation of 1850, commonly called the Compro- 
 mise Measures, and is declared inoperative." 
 
 iFirst Substitute. 
 
 Fourth Phase, — "The Constitution, and all laws of the United 
 States which are not locally inapplicable, shall have the same force and 
 effect within the said Territory as elsewhere in the United States, except 
 the eighth section of the act preparatory to the admission of Missouri 
 into the Union, approved March 6th, 1820, which, being inconsistent 
 with the principle of non-intervention by Congress with slavery in the 
 States and Territories, as recognized by the legislation of 1850, com- 
 monly called the Compromise Measures, is hereby declared inoperative 
 and void ; it being the true intent and meaning of this act, not to legis- 
 
170 APPENDIX. 
 
 late 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." [Second Substitute. 
 
 In tliis fourth phase, it is to be noted by the reflecting reader, 
 that " States " are introduced, and placed on a level with Terri- 
 tories in the article of negro slavery ! and making it a merit in 
 the bill, that it did not legislate slavery into any State, or out of 
 any State ; but left it free to States, as well as Territories, to 
 have slaves, or not, as they pleased ! as if Congress, or any one 
 out of Bedlam, had ever proposed such impertinent nonsense. 
 Surely the " States " must feel grateful for such forbearance ex- 
 tended to them, and such indulgence allowed them, and such 
 high consideration manifested for them in such slashing, times. 
 But, in the name of wonder, and in virtue of the inquiring mood 
 of the " sober second thought," how comes it that " States " were 
 lugged in here, in such company, and in such a bill? Why 
 were they lugged in ? for it was not accident. Twice they are 
 brought in, which shows it was not chance-medley, but design ; 
 and each time with the same gracious accord of the same privi- 
 leges, and the same equalization and yoking with the Territories 
 by the connective conjunction " or," which, at once, levels them 
 as equals, and yokes them as fellows. This shows design, and 
 precludes the possible conception of accident. Design, then, 
 being established, the inquiry recurs : "What was it 1 And the 
 answer is. It was to promote the general scheme of the bill ! 
 which was to mystify, obfuscate, bamboozle, and befog the 
 " squatter sovereigns,^ by making them believe that they were 
 equal to States, and might have black slaves or not, as they pleas- 
 ed, while, in reality, they themselves were to be made into white 
 slaves, under that head-clause in the bill which spreads the Con- 
 stitution of the United States over them, canying " niggerdom " 
 along with it ! and fastening it on their sovereign backs, beyond 
 their power to kick it off, or the power of Congress to lift it off, 
 or of any law to keep it off. That is the design of this desecra- 
 tion' — this dragging in of the States — all to promote the general 
 scheme of the bill ! which is all fraud, cheat, trick, swindle, 
 quackery, charlatanry, demagoguery, bladdery, and legislative 
 black-leggery. That is its design ! and if its fathers think other- 
 wise — for there were many fathers and no mother for it — let 
 
APPENDIX. 171 
 
 them out with their tools (wind and instrumental), and give iis 
 a touch of their music. In the mean time I dismiss, for the pres- 
 ent, the infamous enactment, passing it through the portals of 
 the pillory — ears cut oflf, back scourged, cheeks smoking under 
 the fiery touch of the hot, red, hissing brand. 
 
 The bill was postponed for a week, and such a week of po- 
 litical gyrations was never beheld. If Dryden had not written 
 so long before, it might have been supposed he was describing it : 
 
 " Quick, and more quick, in giddy gyres they turn." 
 
 First, the Daily Union, laureate organ to the administration, 
 and apparent manager of the democratic party, now headed by 
 nullifiers, and gorged with renegades. This paj)er had gone to 
 sleep on the night of the 22d of January in the reiteration of all 
 its imprecations on the Dixon amendment, and all its exhorta- 
 tions to the democracy of the Union to stand clear of it, and a 
 special warning to the Southern democracy not to expect any 
 thing so preposterous : it waked up on the morning of the 23d, 
 rejoicing in the adoption of that amendment in the substitute 
 bill, declaring it to be an administration measure, making adhe- 
 sion to it a test of political orthodoxy, and the sole rule of pro- 
 motion, or even of retention in the democratic ranks. Party 
 outlawry was immediately pronounced against every halting 
 brother that did not come to the " right about," and applaud the 
 measure which he had damned the day before. ISText the ad- 
 ministration. The organ proclaimed it to be a unit in favor of 
 the metamorphosed amendment, and in its name promised re- 
 wards and punishments. The democrat who refused to turn 
 was to be excommunicated : those who turned were to be the 
 only true men : all who lost the favor of their constituents by 
 turning, were to be indemnified with public ofiice. And with 
 these declarations corresponded the conduct of the President, 
 the members of the cabinet, and their immediate friends on the 
 floor of Congress. The former sent for members, and plied them 
 with exhortations, entreaties, and promises : the latter openly 
 denounced hesitation as a crime to be punished — lauded adhe- 
 sion as a merit to be rewarded — reproached the refractory with 
 abolitionism — and made the support of the new-fangled amend- 
 ment not only an administration measure, but a measure of life 
 and death to the administration, in the struggle for which no 
 
172 APPENDED. ^ 
 
 neutrals were to be allowed. Then came the body of the party, 
 and it was variously affected. The venal embraced the change 
 with alacrity, the instant they knew the administration had 
 adopted it, and ferociously assailed all who did not change with 
 them. The timid gave in slowly and sorrowfully, declaring 
 that they could not resist an administration measure, and lose 
 their place in the party. The distress of many of them was 
 pitiable to behold. Their fear of party outlawry, not their will, 
 consented — showing timidity in a public man to be equivalent, 
 in its effects, to downright treachery. Several of these unwil- 
 ling converts became champions afterwards of the detested 
 measure, and thereby ceased to be pitiable, and became con- 
 temptible. A few old democrats, solitary monuments, stood 
 firm upon the faith that was in them ; and these few were im- 
 mediately denounced as whig abolitionists, and visited with all 
 the punishment the administration could inflict upon such men 
 — the exclusion of their friends from oflice, and the appointment 
 of the most vulgar and venomous of their enemies. JSTullifiers ex- 
 ulted, and became the leaders of the democracy, and the drivers 
 of the administration. They got possession of all power, and 
 worked it to the steady purpose of carrying the bill. Patronage 
 and the press — rewards and punishments — the double battery 
 of seduction and intimidation — were all in their hands ; and 
 they wielded all without halt, and without remorse. And to 
 their honor it must be said — personal honor in the midst of po- 
 litical corruption — they faithfully complied with all the promi- 
 ses they had made. The killed and wounded were provided for ! 
 office to all who lost the favor of their constituents ! favor to all 
 that turned ! open arms to all deserters from all ranks ! nuUi- 
 fiers and disunionists preferred ! and this continued to be the 
 rule of action during the whole Pierce administration. Such 
 conduct required much defence, and received a large instalment 
 of it in those eleven pages of the last annual message, which it 
 is the object of this brief notice to point out to history for her 
 severe condemnation. 
 
 This is the record history of that abrogation of the Missouri 
 Compromise into which the administration of Mr. Pierce was 
 forced ; and the record history I only propose to give. But 
 there is well authenticated history belonging to the transaction 
 which does not aj^pear on the record; as that, the sudden 
 
APPENDIX. 173 
 
 determination to adopt the Dixon proposition was the effect of 
 a council, which, different from the Scythians, who always re- 
 solved twice before they acted — first drunk to give them 
 courage, then sober to give them discretion — resolved but once ; 
 and that in the former predicament. And, also, that there was 
 hard work to force some into the support of the measure who 
 afterwards became its champions — the more zealous, in order to 
 invest forced conversion with the semblance of honest conviction. 
 But, that no ingredient of infamy should be wanting in such 
 a ti-ansaction, the element of fraud was added to all the other 
 means of success. The case was this : Tlie Daily Organ, after 
 having diurnally, for many days, laid down the law of political 
 death to any democrat who flinched at the adoption of the 
 Dixon-whig proposition, now became administration democratic, 
 and was authorized to publish a dispensation as to " details." A 
 special article was published, to let it be known that there was 
 to be freedom of action on the " details " of the bill — that every 
 democrat was not to be required to vote for every " detail : " 
 many worthy members remonstrated against that, as requiring 
 too much. Some members, friendly to the repeal of the Mis- 
 souri Compromise, could not subscribe to the reasons given for 
 it, nor to the future grand movement of which it was to be the 
 basis.* Here then was an opening for the loss of the bill — its 
 
 * As Mr. Seward, of Georgia. This gentleman, a friend to the object of the bill, 
 as repealing the Missouri Compromise, and determined to vote for it, yet objected to 
 the reasons for their untruth and unfairness, saying : " I oppose the details of this 
 bill, because they are not consistent with themselves, or with the transactions to which 
 they relate ; and the bill itself shows that it was manufactured for a particular pur- 
 pose. Some of the clauses embraced in it, conflicting as they are, were introduced 
 for the purpose, in my opinion, of setting up a principle to be asserted in future, and 
 which the acts of 1850 never contained. Now, sir, let us see. We are called upon 
 here, now to vote for this bill, which is not drafted in the ordinary shape of legislative 
 acts. But the framers of this bill have furnished the reasons, within the bill itself, on 
 which we must act, and which they call on us to subscribe to. What is it ? They 
 tell us that the law of 1820, being inconsistent with the legislation of 1850, therefore, 
 that the act of 1820 is inoperative and void, I take issue with them, and for myself, 
 occupying the position that I do as a Southern man, I never have subscribed, never 
 will, and never can subscribe to the doctrines contained in the acts of 1850, And 
 now, when that portion of the South having feelings in common with me on this 
 question, have waived their objections to it for the purpose of uniting with the South, 
 and harmonizing public feeling on this great question, it is put here as the basis of 
 some grand movement in this country." — Mr. Seward's (of Geo.') Speech. Extract 
 
 With these objections to the details of the bill, and desire for its object, Mr. Seward 
 
174 APPENDIX. 
 
 loss in the House of Representatives, where its fate was most 
 dubious. It would be easy for some half dozen of the forced 
 members, by a critical vote, to adopt, or reject some detail, on 
 wliicli the fate of the whole bill would depend. This danger 
 had to be guarded against ; and that required a fraudulent vio- 
 lation of a rule of the House — a rule specially made to secure 
 fair legislation, and indispensable to it where the previous ques- 
 tion has become the ordinary legislative weapon in passing, or 
 defeating bills. The regular effect of that question, when or- 
 dered, was to cut off all debate, and all amendments, and bring 
 the House to a direct vote upon the passage of the measure ; 
 and this question came to be so abused by a dominant majority 
 for the time being, (often bringing the House to vote in total 
 darkness upon the measure, or cutting off amendments neces- 
 sary to honest legislation,) that all parties agreed to modify its 
 effect, so as to give a chance to the House to understand a bill, 
 and a chance to amend it by offering an amendment, to be 
 voted upon without debate. A rule was accordingly adopted 
 for that purpose, and by virtue of wdiich amendments might be 
 offered after the previous question had been ordered, and the 
 member offering it allowed five minutes to explain its object. 
 This, to be sure, was but small liberty of speech in a legislative 
 body, boasting of the largest liberty in the world ; but, small 
 as it was, it was not allowed to be used iu the abrogation of the 
 most momentous law that Congress ever passed. The bill went 
 into Committee of the Whole : it was the House bill : and the 
 friends of the bill, being a majority, moved to strike out the 
 first section. It was done ! and the bill was then dead — in the 
 slang language of the House — its head cut off. Of course, 
 there was nothing more to be done with it in committee. The 
 House was the next place for it to appear, and the question 
 before the House was to concur with the committee. This re- 
 
 found himself in the dilemma of not being able to vote at all. The grand movement, 
 obscurely hinted at by Mr. Seward, was immediately remarked upon by Mr. Benton, 
 Tvho interpreted it to be the acquisition of Cuba, and large slices from Mexico, the 
 latter to be made into slave soil under the extension of the Constitution and the vote 
 of Southern emigrants, a few of whom would overpower the feeble, ignorant ]\Iexican 
 population. (^Sec Appendix IV.) On these details of the bill, Mr. Benton felt certain 
 of smashing it up upon motions to amend ; but all such motions were cut off by the 
 fraudulent use of rules. 
 
APPENDIX. 175 
 
 quired every supporter of the bill to reverse the vote he had 
 given in committee — to vote directly contrary to what he had 
 done ; and this change was made. The same who voted to kill 
 the bill in committee, voted to bring it to life in the House — 
 which was done. The bill being then alive, could receive an 
 amendment : and instantly there was a motion to amend, by 
 striking out the whole of the House bill, and substituting the 
 whole of the Senate bill — all which was done under the gag of 
 the previous question. Though called an amendment, the Sen- 
 ate bill, thus adopted, was a complete bill in itself, and a long 
 one of thirty-seven sections, and, as a Vill^ requiring three read- 
 ings on different days ; but, as an amendment^ to be read once, 
 which it had not been when offered ; but a reading was forced 
 afterwards under the rule which authorizes a demand for the 
 reading of an amendment. Technically, it was an amendment : 
 in reality a bill ; and, although the rules required but one 
 reading, yet it was an outrage upon all fair legislation to drive 
 it through as it was done. It was under the gag of the previous 
 question, and no further debate, nor the least amendment per- 
 mitted—not even to a friend of the measure. 
 
 Viewing the whole proceeding as a fraud, about eighty 
 members refused in the committee to vote on the motion to 
 strike out the enacting clause of the House bill ; and when the 
 motion was made for the committee to rise and report the bill 
 to the House, only 103 members voted ; to wit : 101 for the 
 motion, and 2 against it ! upwards of 100 refusing to vote ! and 
 among the number, to their honor be it said, no less than 12 
 who were for the bill. Only 103 voting, there was no quorum, 
 and objection was made to rise and report. The temporary 
 chairman, ]VIr. Olds, of Ohio, decided that a quorum was not 
 necessary to authorize the committee to rise — which was true ; 
 but a quorum was necessary to authorize a report to the House, 
 as, without a quorum, nothing could be done in the committee ; 
 and the rules provided for the case by requiring the roll to be 
 called, to bring in the absent members. The chairman, Mr. 
 Olds, reported the bill and the proceedings upon it to the House, 
 without telling there was no quorum. Several members ob- 
 jected on the report, proclaiming that there had been no quorum 
 to authorize it ; but the Speaker (Mr. Linn Boyd) said he had no 
 " official " notice of this want of a quorum, and could only know 
 
176 APPENDIX. 
 
 "officially" what the chairman of the committee (Mr. Olds) re- 
 ported to him. It was a most humiliating scene — the whole 
 proceedings, from the motion in committee to cut off the head 
 of the House bill, down to the substitution and passage of the 
 Senate bill — the House being in a continued state of uproar 
 through a most extended day and night session, all motions to 
 adjourn being negatived, and the result received in the galleries 
 with clapping and shouting — as in the old time of the Bank of 
 the United States.* 
 
 * Monday, May 22, 1854. In Committee of the Whole, Mr. Olds of Ohio, in the 
 Chair. House hill (No. 2S6) for the Organization of Kansas and Nebratka Territories^ 
 being under consideration. Extract from the Register of Debates. 
 
 Mr. Stephens, of Georgia: "I rise to a privileged question. I move to strike out 
 the enacting clause of this bill. I will state to the committee, and I want the atten- 
 tion of the committee to my object in making that motion ; it is to cut off all amend- 
 ments, and to have this bill reported to the House, that we may have a vote upon it." 
 — Mr. Chandler, of Pennsylvania : " I rise solemnly to protest against this extra gag 
 which is applied to the passage of this bill, and to say, that while it is possible a 
 majority may thus ride rough-shod." — (Loud cries of " Order " and great excitement.) 
 — Mr. Orr, of South Carolina: "Does my friend, from Pennsylvania, say that this is 
 not in strict comformity to the rules ? " — (Renewed and vociferous cries of " Order.") — 
 Mr. Chandler : " I am satisfied that the motion now made is one that was not contem- 
 plated by those who drew up these rules ; nor was it, I hope, contemplated by those 
 who drove us from the regular debate in the committee, and told us to take shelter 
 under the five minutes debate rule." — Mr. Washburn, ofjfaine: "I rise to a question 
 of order. It is this : that it is not in order to move to strike out the enacting clause 
 of the bill, while the House is in Committee of the Whole, but that the motion can 
 only be made in the House." — (Loud cries of " Order" and " Question.") — The Chau*- 
 man overruled the point of order. — (Vociferous cries for the question.) — 3Ir. Rogers, 
 of North Carolina: "I wish to state to the country, and to the members of the House 
 with whom I have been acting to this time, that I desire to introduce an amendment to 
 this bill. I feel it due to myself to state " — Chairman, Mr. Olds : " Is it the pleasxire 
 of the committee that the gentleman from North Carolina be heard ? " — (Cries of " No ! 
 No ! No ! ") — Mr. Sage, of New York : "I desire to offer an amendment to the amend- 
 ment." — The Chairman, Mr. Olds: "The amendment is not amendable." — Mr. 
 Dickinson, of Massachusetts : "I desire to offer an amendment to the bill now before 
 the Committee." — The Chairman : " It is not in order while a motion to strike out the 
 enacting clause is pending." — Mr. Dickinson: "I wish to have the bill read." — 
 Chairman: "It is not in order to have it read while a motion to strike out the enact- 
 ing clause is pending." — (Incessant cries for the question.) — Question taken : 103 for 
 the motion to strike out, 2 in the negative. — Mr. Dean, of NewYork (in the midst of 
 great confusion) : " I hope that no member in the minority will vote upon the question. 
 Oppose tyranny by revolution." — (\^ehement cries of " Order," and calls for the Ser- 
 geant-at-arms.) — Mr. Lewis D. Campbell, of Ohio, (passing through the tellers) : " There 
 will be one vote against the motion at all events." — (The tellers thereafter reported 
 103 ayes, 22 noes.) — Ttie Chair announced the motion carried. — Mr. Richardson, of 
 
APPENDIX. 177 
 
 And thus fraud was superadded to all the other iniquities of 
 the bill, and its passage — superadded to the seduction, intimida- 
 tion, coercion, the moral duresse under which it was driven 
 along, and the false pretexts on which it was founded, and the 
 sudden adoption of it, as an administration democratic measure, 
 after stigmatizing it as a whig abolition measure. And this is 
 the measure, thus conducted and thus passed, to the laudation of 
 
 Illinois : " I move that the Committee rise, and report to the House the action of the 
 Committee." — The question for tlie Committee to rise was then put, and only 103 
 voted, and two of them in the negative. — (Cries of " No quorum ! " " No quorum !") — TTie 
 Chair : " No quorum is necessary to enable the Committee to rise." — The Committee 
 rose, and the Chairman reported the bill to the House, saying : " The Committee had 
 directed him to report the bill back, with a recommendation to strike out the enacting 
 portion of the bill." — Mr. Bean, of New York: "I rise to a question of order. It is 
 this : That less than a quorum of the Committee of the Whole cannot report a bill to 
 the House." — Tlie Speaker, {Mr. Boyd,) being in the Chair: "The Chair has no of- 
 ficial knowledge of the number of votes given in Committee." — Mr. Hughes, of Neie 
 York : " I rise to a question of order. I submit that the report of the Chairman of 
 the Committee of the AVhole on the state of the Union, shows that the action of that 
 Committee is tantamount to a rejection of the bill, which the Committee have no 
 power to do." — The Speaker : " Will the gentleman from New York indicate the rale 
 under which it denies the Committee that power ? " — Mr. Hughes : " It is under rule 
 119, and under that rule the Speaker of the House once decided in the same manner. 
 The Speaker refused to entertain the report of a Committee upon the ground that it 
 was tantamount to a rejection of the bill, which was beyond the power of the com- 
 mittee. The note to the 119th rule gives the same construction to the rule, and upon 
 that I raise my question of order." — The Speaker : " Would remark that the same 
 note declares the very object of the rule was to supersede and obviate the offering of 
 further amendments." — Mr. Meacham, of Vermont ; " I rise to a question of privilege 
 under the 34th rule, which provides that * where debate is closed by order of the House, 
 any member shall be allowed in Committee five minutes to explain any amendment, 
 after which any member, who shall first obtain the floor, shall be allowed to speak five 
 minutes in opposition to it.' Now, I submit that the rights of members under this 
 rule have not been respected in Committee." — The Speaker: "That Is a question for 
 the Committee to decide for itself. It is not competent for the Chair to know ofiicially 
 what has taken place in Committee except through the report of its Chairman." — 
 Mr. Richardson, of Illinois : "I demand the previous question upon concurring with 
 the report of the Committee." — Mr. Ellison, of Ohio : " I rise to a question of order. 
 The 26th rule provides that when the Committee of the "Whole on the state of the 
 Union finds itself without a quorum, the Chairman shall cause the roll to be 
 called. Now, Sir, I submit, that the Committee did find itself without a 
 quomm — that it was not competent for it to report the bill to the House 
 without a quorum — and that the roll was not called as the rule directs." — 
 The Speaker : " That is a question which the gentleman should have raised in 
 Committee, and which it is not competent for the House to have any knowledge of, 
 unless so reported by the chairman of the Committee." — Mr. Campbell, of Ohio : " I 
 
 12 
 
178 AprEXDix. 
 
 wliicli, and to the condemnation of all who opposed it, eleven 
 pages of his last message was devoted by President Pierce. 
 
 But the message was not allowed to stoj) at one .falsification 
 of history, large as that was, bnt was made to go on to another, 
 supposed to be written by the same hand ; and, in fact, a sup- 
 plement and continuation of the first one. It undertakes to give 
 the state of parties in the United States, classifying them, and 
 assuming to say which is culpable for the present distracted 
 condition of the comitry ; and, of course, putting all censure 
 upon one, and all praise uj)on the other. It sees but two jDar- 
 ties — al)olitionists, and democrats : and lays all blame upon the 
 former. The message is severe upon the abolitionists ; * and so 
 
 would make an appeal to the gentleman from Illinois (Mr. Richardson), to withdraw 
 his call for the previous question imtil I can make a suggestion in relation to this bill." 
 Mr. Richardson : " The appeal is in vain. I decline to withdraw the call." — (The 
 House refused to conciir with the Committee fn striking out the enacting clause of the 
 bill.) — Mr. Richardson : " I now move to amend the bill by striking out all after the 
 enacting clause, and inserting in lieu thereof what I send to the Clerk's table : and 
 upon that proposition I demand the previous question." — (It was the substitute bill 
 from the Senate which was thus sent, and upon which the previous question was de- 
 manded before it was even read, as an amendment.) — Mr. Dean : " I call for the read- 
 ing of the substitute." — (It was read, consisting of 37 sections.) — The vote on adopting 
 the substitute was then taken under the previous question, and instantly 3Ir. Richard- 
 son moved the third reading of the bill under the same gag : and it was passed — not 
 one word being spoken, or any amendment allowed to it.) — The announcement of 
 the vote was received with prolonged clapping of hands, and hisses, both in the House 
 and the galleries, and cries of " Order! " " Order! " 
 
 * " To accomplish their objects, they dedicate themselves to the odious task of de- 
 preciating the government organization which stands in their way, and of calumni- 
 ating, with indisci'iminate invective, not only the citizens of particular States, with 
 whose laws they find fault, but all others of their fellow-citizens throughout the coun- 
 try, who do not participate with them in their assaults upon the Constitution, framed 
 and adopted by our fathers, and claiming for the privileges it has secured, and the 
 blessings it has oonfeiTed, the steady support and grateful reverence of their childi'cn. 
 They seek an object which they well know to be a revolutionary one. They are per- 
 fectly aware that the change in the relative condition of the white and black races in 
 the slaveholding States, which they would promote, is beyond their lawful authority ; 
 that to them it is a foreign object ; that it cannot be effected by any peaceful instru- 
 mentality of theirs ; that for them, and the States of which they are citizens, the only 
 pnth to its accomplishment is through burning cities, and ravaged fields, and slaugh- 
 tered populations, and all there is most terrible in foreign, complicated -with civil 
 and sen'ile war; and that the first step in the attempt is the forcible disruption 
 of a country embracing in its broad bosom a degree of liberty, and an amount of in- 
 dividual and public prosperity, to which there is no parallel in histoiy, and substituting 
 in its place hostile governments, driven at once and inevitably into mutual devastation 
 
APPENDIX. 179 
 
 far as tlie severity is confined to them — to persons who deny 
 property in slaves, and labor to defeat that property — I have 
 nothing to say, and leave them to the tender mercies of the 
 presumed writer of that part of the message. He was long 
 enough among them to know their designs, and it would not 
 become me to hazard speculative opinions against his positive 
 knowledge. But, to include all under that definition who were 
 opposed to the abrogation of the Missouri Compromise, and all 
 who object to the further extension of slavery into free territory, 
 and especially into territory free under the laws of other coun- 
 tries and to be slaves under ours : to include all such in the 
 class of abolitionists, is to libel ninety-five per centum of the 
 population of the free States. I claim for this ninety-five per 
 centum total exenjption from any part in word, deed, or wish, 
 in producing the present slavery agitation. It comes exclusive!}^ 
 from the nullifiers and the abolitionists playing into each other's 
 Jiand, and embroiling the country with their equal fanaticism 
 for and against slavery, and their criminal designs against the 
 Union. The message is unjust in throwing upon the abolition- 
 ists (even tliose properly so called) the exclusive censure of 
 producing the present troubles. They are culpable, but not 
 exclusively, or even equally so. There is another party more 
 culpable than they, and whom the message qualifies as patriotic, 
 and who originated this agitation, — who began it, and keep it 
 up ; but who, witliout the co-operation of the abolitionists, 
 could never have brought it to a head. These are the Southern 
 nullifiers and secessionists, Siamese twins to the Northern abo- 
 litionists, and the two as indispensable to each other as the two 
 halves of a pair of shears, neither of which can cut without 
 being joined to the other. 
 
 The brief story of this close co-operation between Southern 
 nullifiers and jSTorthern abolitionists, is this : In the year, 1830, 
 some Southern politicians, having some private griefs of their 
 
 and fratricidal carnage, transforming the now peaceful and felicitous brotherhood into 
 a Tast permanent camp of armed men, like the rival monarchies of Europe and Asia. 
 Well knowing that such, and such only, are the means and the consequences of their 
 plans and purposes, they endeavor to prepare the people of the United States for civil 
 war, by doing every thing in their power to deprive the Constitution and the laws of 
 moral authority, and to undermine the fabric of the Union by appeals to passion and 
 sectional prejudice, by indoctrinating its people with reciprocal hatred, and by edu- 
 cating them to stand face to face as enemies, rather than shoulder to shoulder as 
 friends," — 3Iessage, p. 9. 
 
180 APPEKb.X. 
 
 own to redress, and some ambitious objects of their own to ac- 
 complish, conceived that a separation of the States, and the 
 erection of a new Kepublic South, was the way to accomplish 
 their purposes: and at that object (the segregation of the States 
 south of the Potomac) they went to work — pretexting their op- 
 erations with " the oppressions of an unconstitutional protective 
 tariflV "With this view, and upon this pretext, the first South- 
 ern (South Carolina) Convention was held, I^ovember, 1832, 
 which passed the ordinance of nullification and secession — de- 
 claring the revenue laws null and void, fixing the first day of 
 February, then next ensuing, for the secession, (unless Congress 
 in the mean time should abandon protective tariff;) and levy- 
 ing an army to maintain her attitude. The Jackson Proclama- 
 tion of December, 1832,* denouncing the penalties of high trea- 
 son upon all who should commit the " overt act " under that 
 ordinance, and the full belief that he would do what he said, 
 
 * " A recent proclamation of the present Governor of South Carolina has openly- 
 defied the authority of the Executive of the Union, and general orders from the head- 
 quarters of the State, announced his determination to accept the services of volunteers, 
 and expressed his belief that, should their country need their services, they \dU. be 
 found at the post of honor and duty, ready to lay down their lives in her defence. 
 Under these orders the forces referred to are dh-ected to ' hold themselves in readiness 
 to take the field at a moment ; ' and in the city of Charleston, within a collection dis- 
 trict and a port of entry, a rendezvous has been opened for the purpose of enlisting 
 men for the magazine and municipal guard. Thus, South Carolina presents herself in 
 the attitude of hostile preparation, and ready even for military violence, if need be, to 
 enforce her laws for preventing the collection of the duties within her limits. Under 
 these circumstances, there can be no doubt that it is the determination of the authori- 
 ties of South Carolina to carry into effect their ordinance and laws, (for nullification 
 and secession,) after the first of February next. This solemn denunciation of the laws 
 and authority of the United States, has been followed up by a series of acts, on the 
 part of the authorities of that State, which manifest a determination to render inevita- 
 ble a resort to those measures of self-defence which the paramount interest of the 
 Federal Government requires, and iipon the adoption of which, that State will proceed 
 to execute her purpose of withdrawing from the Union. By these various proceed- 
 ings, therefore, the State of South Carolina has forced the General Government, una- 
 voidably, to decide the new and dangerous alternative, of permitting a State to obstmct 
 the execution of the laws within its limits, or seeing it attempt to execute a threat of 
 withdrawing from the Union. In my opinion, both purposes are to be regarded as 
 revolutionary in their character and tendency, and subversive of the supremacy of the 
 laws and of the integrity of the Um"on. In this posture of affairs, the duty of the 
 Government seems to be plain. Duty to the rest of the Union demands that open and 
 organized resistance to the laws, should not be executed with impunity." — Proclama- 
 tion, Decemher, 1832. 
 
APPENDIX. 181 
 
 balked that project, and gave birth to the tariff compromise 
 of 1833, bj which protective tariff (as a pretext for secession) 
 was laid aside, to be substituted by the slavery agitation, 
 generated out of the alarms of the slave States for their lives 
 and property through fear of the anti-slavery " aggressions, en- 
 croachments, and crusades " of the North against the South. 
 Tlie substitution was instant, and notorious. On returning 
 home from Congress, Mr. Calhoun told his friends that the 
 South could never be united against the ^N'orth on the tariff 
 question — that the sugar interest of Louisiana would keep her 
 out — and that the basis of Southern union must be shifted to the 
 slave question ; and, shifted accordingly it immediately was. 
 Incontinently all the nullification newspapers opened for seces- 
 sion for that new cause, filling the couiitry with alarm for the 
 safety of slave property, and spreading the terrors of servile in- 
 surrection — inevitable consequence of the abolition designs. The 
 whole Soutli immediately took fire. Before the month of June 
 — that is to say, in less than three months after the protective 
 tariff^ pretext for secession had been laid aside — the new pretext 
 had been installed in its place, and so fully developed as to be 
 seen by all observers. Mr. Clay saw it, and on the 28th of 
 May, in a letter to Mr. Madison, exj)ressed his apprehensions 
 of this new danger, and declared his disbelief of any foundation 
 for the alarm which was attempted, Mr. Madison immediately 
 replied, reciprocating, both his apprehensions and his disbelief; 
 and, in a brief paragraph, fixing all the points — date, locality, 
 actors, pretext, and mode of operation — in this new phase of 
 the secession movement ; and branding it with as much repro- 
 bation as the amiable moderation of his temper would permit. 
 That letter becomes a starting point in this inquiry, which his- 
 tory will seize upon, and find in it the key which unlocks the 
 door that gives the inside view of all the machinations which 
 have led to the present portentous slavery agitation. In that 
 letter to Mr. Clay, he said : — 
 
 " It is painful to see the unceasing efforts to alarm the South, by 
 imputations against the North of unconstitutional designs on the sub- 
 ject of the slaves. You are right, I have no doubt, that no such inter- 
 meddling disposition exists in the body of our Northern brethren. 
 Their good faith is sufficiently guaranteed by the interest they have as 
 
182 APPENDIX. 
 
 merchants, as ship-owners, and as manufacturers, in preserving a union 
 with the slaveholding States. On the other hand, what madness in the 
 South to look for greater safety in disunion. The danger from the 
 alarms is, that the pride and resentment excited by them may be an 
 overmatch for the dictates of prudence, and favor the project of a South- 
 ern Convention, insidiously revived, as promising by its councils, the 
 best securities against grievances of every sort from the North."' 
 
 This is the stand-point — this letter from Mr. Madison to Mr. 
 Claj — from which to view and to understand, the whole nature, 
 origin, and design, and operative means, of the slavery agita- 
 tors which has brought our country to its present distracted 
 condition. It puts the linger upon every part of the disease. 
 Mr. Madison sees, and sees with pain, the efforts — the unceas- 
 ino; efforts — made to alarm the South with the fear of uncon- 
 stitutional designs in the ISTorth upon slave property. He does 
 not believe in the considerable extent of any such designs on 
 the part of our ISTorthern brethren, and in that disbelief he con- 
 curs with Mr. Clay — a concurrence which shows that Mr. Clay 
 had expressed the same sentiment in the letter which he was 
 answering. He believed there was danger from the alarm, 
 though unfounded ; and that this fear of danger, acting on the 
 passions, might be an overmatch for prudence, and favor the 
 revival of that convention, which he qualiiied as " insidious.''^ 
 It was the convention which passed the secession ordinance to 
 which he referred, and which, having failed to combine the 
 South against the Xorth on the tariff pretext, was now to at- 
 tempt the same thing on a slavery pretext. And it was re- 
 vived, and for that purpose, and has been kept alive ever since 
 — having become a new Southern institution, sitting annually, 
 and vindicating its title to the character of '■' insidious," (so far 
 as the managers are concerned,) by masking its real object of 
 segregating the Southern States by presenting an endless suc- 
 cession of barren projects for their amelioration. Every thing 
 which Mr. Madison foresaw in 1833, we have all seen since — the 
 unceasing attempts to alarm the slave States — its success in re- 
 viving the " insidious " conventions — its effect on the j^ride, and 
 resentment of the Southern people — and the mastery which the 
 nullihers have accpiired in gaining control in all the slave States, 
 and brino-ino- them to act as a unit ao;ainst the North in the Federal 
 
ArPENDIX. 183 
 
 elections <and legislation. His letter, and that of Mr. Clay, are 
 cardinal to the history of these times, and cannot be overlooked, 
 or discredited, by any one who seeks either to teach truth, or 
 to learn it, on this eventful period of American history. They 
 mark the origin of the slavery agitation. They show its local- 
 ity, and fix it in the South : they show its pretext, and expose 
 its want of truth : they point to its designs, and probable suc- 
 cess — and in that they were prophetic. But this was not the 
 only letter of Mr. Madison to this effect. The last three years 
 of his life were occupied, and rendered miserable, by the j3ro- 
 gress which nullification, through an unfounded slavery alarm, 
 was making in getting control of the State governments, with 
 the undisguised object of a new Southern confederacy. All 
 his letters of this period were filled with this subject. Many 
 of these letters have been saved from loss by Mr. James C. 
 M'Guire, of Washington City, and a quarto volume of them 
 beautifully printed for presents to the friends of the great states- 
 man — among them, several to liis early and life-long friend. 
 Governor Edward Coles, now of Philadelphia. In one of these, 
 of date August, ISS-i, he says: — 
 
 '• On the other hand, what more dangerous than nullification, or 
 more evident than the progress it continues to make, either in its 
 original shape, or in the disguises it assumes ? And for its progress, 
 hearken to the tone in which it is now preached. Cast your eye on its 
 increasing minorities in most of the Southern States, without a decrease 
 in any one of them. Look in Virginia herself, and read in the gazettes, 
 and in the proceedings of popular meetings, the figure which the anar- 
 chical principle now makes, in contrast with the scouting reception given 
 to it but a short time ago. A susceptibility of the contagion in the 
 Southern States is visible; and the danger not to be concealed, that 
 the sympathy arising from known causes, and the inculcated impression 
 of a permanent incompatibility of interest between the North and the 
 South, may put it in the power of popular leaders, aspiring to the high- 
 est stations, to unite the South, on some critical occasion, in a course 
 that will end in creating a new theatre of great though inferior extent. 
 In pursuing this course, the first and most obvious step, is nullifica- 
 tion ; the next, secession ; and the last, a farewell separation." 
 
 This is enough to mark the origin, the authors, and the pur- 
 poses of the present slavery" agitation, and to expose tlie falsity 
 
184 APPENDIX. 
 
 of the message in throwing all npon the ]S'orth ; but it is only 
 the beginning of the public proof on that head. In the year 
 1835, Mr. Calhonn undertook to install the agitation in the Sen- 
 ate of the United States : the design was rebuked, and repulsed 
 by Southern Senators — Mr. Bedford Brown, of jSTorth Carolina ; 
 Mr. John P. King, of Georgia. Foiled in 1835, he returned to 
 the work in 1838, and was again rebuked by slave State Sena- 
 tors — Mr. Clay, Mr. Crittenden, Mr. Strange, of ISTorth Caroli- 
 na ; Mr. Hichard H. Bayard, of Delaware ; Mr. William Camp- 
 bell Preston, of South Carolina ; and by Mr. Buchanan, of 
 Pennsylvania. He brought in a set of resolutions, five in num- 
 ber, intended to be a digest of territorial slavery law, all bot- 
 tomed upon the right of Congress to legislate upon slavery in 
 Territories, (for the dogma of no such power was not invented at 
 that time, and he had not then forgot his support of the Missouri 
 Compromise,) and deprecating the abuse of the right. In support 
 of these resolutions Mr. Calhoun delivered many speeches, all 
 tending to promote slavery agitation, and to excite the South 
 against the North ; for which he was rebuked by all the Sena- 
 tors named.* 
 
 But I am not now writing the history of the present slavery 
 agitation — a history which the young have not learnt, and the 
 old have forgotten, and w^liich every American ought to under- 
 stand. I only indicate cardinal points to show its character ; 
 and of these a main one remains to be stated. Up to Mr. 
 Pierce's administration the plan had been defensive — that is to 
 
 * By some of them severely — by the mildest more temperately — ^but not less deci- 
 sively ; as this from Mr. Buchanan : — " / cannot believe that the Senator from South Ca- 
 rolina {Mr. Calhoun) has taken the lest course to attain these results (quieting agitation.') 
 This IS the great centre of agitation : from this Capitol it spreads over the whole Union. 
 I, therefore, deprecate a protracted discussion of the question here. It can do no good, but 
 Timy do much harm both in the North and in the South." Mr. Buchanan then added, that 
 the Northern members who stood up for the rights of the South, and had to bear the 
 bnint of the battle at home, were forced into false positions, and made to fight aboli- 
 tionism on the right of petition, and placed between the fire of friends and foes — saying, 
 " Thus iL-e stand : and those of us in the North who must sustain the brunt of the battle are 
 forced into false positions. Abolitionism thus acquires force by bringing to its aid the right 
 of petition, and the hostility which exists at the North against the doctrines of nidi if cation. 
 The fact is, and it cannot be disguised, that those of us in theKorthem States tcho have deter- 
 viined to sustain the rights of the Southern Stafe3 at every hazard, are placed in a mx)st 
 embarrassing situation. We are almost literally between two fires. While in front v;e are 
 assailed by the abolitionists, our own fiends in the South are constantly driving us into po- 
 sitions ichere their enemies, and our enemies, nviy gain important advantages.'" 
 
APPENDIX. 185 
 
 saj, to make the secession of the South a measure of self-defence 
 against the abolition encroachments, aggressions, and crusades 
 of the ISTorth : in the time of Mr. Pierce, the plan became offen- 
 sive — that is to say, to commence the expansion of slavery, and 
 the acquisition of territory to Sjjread it over, so as to overpower 
 the North with new slave States, and drive them out of the 
 Union. In this change of tactics originated the abrogation of 
 the Missouri Compromise, the attempt to purchase the one half 
 of Mexico, and the actual purchase of a large part ; the design 
 to take Cuba ; the encouragement to Kinney and to Walker in 
 Central America ; the quarrels with Great Britain for outlandish 
 coasts and islands ; the designs upon the Tehuantepec, the Nic- 
 aragua, the Panama, and tlie Darien routes ; and the scheme to 
 get a foothold in the Island of San Domingo. The rising in 
 the free States in consequence of tlie abrogation of the Missouri 
 Compromise, checked these schemes, and limited the success of 
 the disunionists to the revival of the agitation which enables 
 them to wield the South against the North in all the federal 
 elections and federal legislation. Accidents and events have 
 given this party a strange pre-eminence. Under Jackson's ad- 
 ministration, proclaimed for treason ; since, at the head of the 
 Government and of the Democratic party. The death of Har- 
 rison, and the accession of Tyler, was their first great lift ; the 
 election of Mr. Pierce was their culminating point. It not only 
 gave them the government, but power to pass themselves for 
 the Union party, and for Democrats ; and to stigmatize all who 
 refused to go with them, as disunionists, and abolitionists. And 
 to keep up this classification, is the object of the eleven pages 
 of the message which calls for this Review — unhappily assisted 
 in that object by the conduct of a few real abolitionists, (not 
 five per centum of the population of the free States ;) but made 
 to stand, in the eyes of the South, for the whole. 
 
186 APPENDIX. 
 
 IV. 
 
 ABROGATION OF THE MISSOURI COMPROMISE : ITS ULTERIOR OBJECTS. 
 
 Those wlio suppose that there was no object in view in this 
 abrogation but merely to make Kansas a free State, are far 
 behind the state of the facts, and can have had but little oppor- 
 tunity of knowing the intentions of the prime movers of that 
 measure — those who ruled the council that commanded it. 
 Certainly that was one of the objects ; but there were others 
 far beyond it, far transcending it in importance ; and of which 
 the establishment of Kansas as a slave State was only an intro- 
 duction, and a means of attainment. To form the slave States 
 into a unit for federal elections and legislation, by the revival 
 of the slavery question, was one object, coimting upon the fed- 
 eral patronage to gain as much help from the free States as 
 would give the slave States the majority. Yast acquisitions of 
 free territory to the southward, to be made slave (besides Cuba), 
 was another object; and for this purpose the principles of the 
 Kansas-lSTebraska bill were doubly contrived; first.) to carry 
 slavery into these free Territories by the Constitution ; next.^ to 
 establish it by the inhabitants of the States, enough Southern 
 people going in to dominate over the feeble and ignorant 
 natives. Separation of the slave States, or domination over the 
 free States, driving out of the Union the North Atlantic States, 
 was to be the consequence of this consolidation of the slave 
 States and vast acquisition of Southern territory. All these 
 objects would have been brought out, on motions to amend the 
 bill, if amendments and discussion had been allowed : as it was, 
 they were only glanced at by a couple of speakers, and one of 
 these enigmatically and gently, and the other more clearly, but 
 stintedly in the few minutes which were allowed him, and 
 which were in fact borrowed out of another member's time. 
 Mr. Seward, of Georgia, was one ; Mr. Benton, of Missouri, the 
 other. Mr, Seward was thoroughly in favor of the rej^eal of 
 the Missouri Comjiromise, but could not stomach the pi-etexts 
 on which the repeal was founded, nor favor the ulterior objects 
 of which it was the forerunner, nor respect a piece of legislation 
 with a demagogical stump speech in its belly. He expressed 
 himself gingerly, but strongly (considering his geographical 
 
APPENDIX. 187 
 
 position and partj relations) and clearly enongli to be nnder- 
 stood, and also to show more than party fealty permitted him 
 to tell. lie opposed the details of the bill, and showed wherein 
 and wdiy. First: "These details were not consistent with 
 themselves, nor with the transactions to which they relate : " a 
 mode of expression, to expose a double falsehood, sufficiently 
 emphatic in a friend. Then : " That these details were manu- 
 factured for a particular purpose :" the word manufactured here 
 being clearly equivalent to fabricated, and the purpose intended 
 being sufficiently indicated as selfish and sinister, by the use of 
 the word particular instead of public. Then: "Some of the 
 clauses in it were introduced for the purpose of setting up a 
 principle to be acted on in future, and which the acts of 1850 
 never contained " — a significant intimation of future operations, 
 to be pretexted upon the acts of 1850, falsified for the purpose. 
 Then again, he says : " We are called upon now to vote for this 
 bill, which is not drafted in the ordinary shajDe of legislative 
 acts." And well might Mr. Seward object to such a shape of 
 drafting laws, for never was such a farrago of unlegislative and 
 demagogue stuff put into any bill before. Mr. Seward then 
 denied that the acts of 1850 authorized it, declaring that he 
 would subscribe to no such thing ; and offered to "join issue" 
 upon it. Far from joining issue, all chance for it was cut off 
 by the manner of dropping the House bill and driving the 
 substitute bill through. Then Mr. Seward alluded to " a grand 
 movement" which was in contemplation, professing not to 
 know what it was, for, probably as disaffected to the bill, he was 
 not let into the secret, but clearly showing that there was some 
 "grand movement" on foot. Mr. Benton got a chance to say 
 a few words, and interpreted that " grand movement " to be the 
 seizure of Cuba, and the purchase of the northern half of 
 Mexico. He got a chance to say a few words by a contrivance — 
 a representative from Illinois, Mr. Knox, who had the floor for 
 an hour, giving him some minutes of his time — for whicli he 
 and the speaker were called to account, when it was seen what 
 was said. The Congressional Globe shows this scene : — 
 
 Friday, May 19, 1854 : {late in the evening.) 
 Mr. Knox was assigned the floor. 
 Mr. Wright, of Pennsylvania. If the gentleman from Illinois will 
 
188 APPENDIX. 
 
 give way for a moment, I will move that the committee take a recess 
 until seven o'clock. 
 
 Mr. Benton. If no gentleman wants the floor now, I wish to 
 occupy it for about ten minutes. 
 
 The Chairman. The gentleman from Illinois (Mr. Knox) is en- 
 titled to the floor, the Chair having recognized him. If the gentleman 
 from Illinois will yield the floor for ten minutes, and if the committee 
 will be willing that the gentleman from Missouri (Mr. Benton) may 
 proceed, he may do so. 
 
 The gentleman from Illinois yielded the floor, and general assent 
 was given to the gentleman from Missouri to proceed. 
 
 Mr. Benton said : Mr. Chairman, I have nothing more to say to 
 this bill on account of its interference with the Missouri Compromise. 
 On that point I have spoken my share, and shall not recur to it again. 
 I pass on to a new point — one significantly revealed to us some ten days 
 ago by a Representative from Georgia, the member from the first con- 
 gressional district of that State, (Mr. Seward.) That gentleman spoke 
 against the bill in a way entirely accordant to my own opinions ; but 
 came to the conclusion that he would vote for it, * and gave his reasons 
 for doing so — reasons which had not been mentioned by any other 
 speaker, and which struck me as momentous, and worthy to arrest the 
 attention of the House, and of the country. He objects to the bill 
 because it is unfounded and contradictory in its statements and assump- 
 tions — inconsistent with itself, with the act of 1820, and of the acts of 
 1850 — because it was manufactured for a particular purpose, and is of 
 no value in itself to the slave States ; but which commands his support, 
 as a Southern man, on account of its ulterior operations, as containing a 
 principle to be asserted in future, and which was put into the bill to 
 become the basis of some grand movement in this country. I will read 
 what he said, as the proper way of doing justice to his clear and well- 
 expressed opinions — to his momentous revelations — and as the best way 
 of availing myself of his important declarations. I find them thus in 
 the official copy of the speech : — 
 
 " I oppose the details of tliis till, because they are not consistent -svith themselves 
 or -with the transactions to which they relate ; and the bill itself shows that it was 
 manufactured for a particular purpose. Some of the clauses embraced in it, conflict- 
 ing as they are, were introduced for the purpose, in my opinion, of setting up a prin- 
 ciple to be asserted in future, and which the acts of 1850 nerer contained. Now, sir, 
 let us see. We are called upon here now to vote for this bill, which is not drafted in 
 
 * This was said before the vote was taken, when it was supposed that Mr. Seward, 
 notwithstanding his objections, would vote with his party for the bill ; but he did not. 
 He did not vote at all, neither for nor against. 
 
APPENDIX. 189 
 
 the ordinary shape of legislative acts. But the framers of this bill have furnished the 
 reasons, within the bill itself, on which we must act, and which they call on us to 
 subscribe to. "What is it ? They tell us that the law of 1820, being inconsistent with 
 the legislation of 1850, therefore that the act of 1820 is inoperative and void. I take 
 issue with them ; and, for myself, occupying the position that I do as a Southern man, 
 I never have subscribed, never will, and never can subscribe to the doctrines con- 
 tained in the acts of 1850. My objections to the acts of 1850 are known at home. 
 They are recorded in the proceedings of the convention which took place in Georgia 
 in 1850. I was a member of that convention. I voted against the Georgia platform 
 on principle. And now, when that portion of the South having feelings in common 
 with me on this question, have waived their objections to it for the purpose of uniting 
 with the South, and harmonizing public feeling on this great question, it is put in here 
 as the basis of some grand movement in this country. I know not what that move- 
 ment is." 
 
 I concur in the truth and justice of every thing which the member 
 from Georgia has here said, but differ from him in the conclusion to 
 which he arrives — that of voting for the bill ; and find in his reasons 
 for that vote, additional reasons for my own vote against it; but he 
 votes as a Southern man, and votes sectionally. I also am a Southern 
 man, but vote nationally on national questions. He sees in it a prin- 
 ciple set up which is false and useless in its application to Nebraska, 
 but which is to be asserted in future, and which is put into the bill as 
 the basis of some grand impending movement in this country. Of the 
 nature of this movement, which is to be so grand, and at the same time 
 sectional, the member declares himself to be ignorant ; and that igno- 
 rance, I would suppose, should be a reason for holding back from a bill 
 which commits its supporters to great unknown things. That is the 
 way it works with me. I also am ignorant, that is to say, uninformed 
 of this grand movement which is to be in this country ; but I believe 
 in it, and so believing am the more against the bill. I am against any 
 thing that I do not understand, and which nobody will explain to me, 
 and which, according to my own short and dubious lights, is dangerous 
 to the peace and honor of the country. I believe in the futility of this 
 bill — its absolute futility to the slaveholding States — and that not a 
 single slave will ever be held in Kansas or Nebraska under it, (even 
 admitting it to be passed.) Though adapted to slave labor in two of 
 its great staples, (hemp and tobacco,) I do not believe that slaves will 
 ever be held there. The popular vote will expel them. Kansas is 
 contiguous to middle and southern Missouri, where slave labor is profit- 
 able, and slaves held in great number — a single owner within two hours' 
 ride of the line holding one hundred more than the five hundred of 
 Randolph of Roanoke ; and five thousand in his county alone ; but the 
 holder of slaves will have but one vote, and will be beat at the polls by 
 
190 APPENDIX. 
 
 the many who have none. In relation to Kansas and Nebraska, then, 
 I hold the bill to be a deception and a cheat — what gamesters call 
 gammon, congressmen buncombe, and seamen a tub to the whale : that 
 is to say, an ambidextrous operation upon the senses of confiding people, 
 by which they are made to see what is not, and not to see what is. 
 This is what I believe ; and not being obliging enough to join in a 
 scheme of self-deception, or to sufi'er a game of deception to be played 
 upon me, I must now turn my back upon the illusions of this Nebraska 
 bill, and look out for its real object — the particular purpose for which it 
 was manufactured, and the grand movement of which it is to be the 
 basis. 
 
 In this search I naturally look about into the signs and rumors of 
 the times, and into the cotemporaneous events which may connect them- 
 selves with the grand movement in question ; and think I find them in 
 two diplomatic missions, of which the country has heard much — but not 
 all. I speak upon rumor, but neither tell, nor believe, the half of the 
 half of what I hear ; but believe enough to excite apprehension, and to 
 justify inquiry. What is a state secret in the city of Washington, is 
 street talk in the city of Montezuma. 
 
 First. The mission of Mr. Gadsden to Santa Anna. It must have 
 been conceived about the time that this bill was ; and, according to 
 transpiring accounts, must have been a grand movement in itself-^ 
 $50,000,000 for as much Mexican territory on our southern border as 
 would make five or six States of the first class. The area of the acqui- 
 sition, as I understand it, was to extend from sea to sea, on a line that 
 would give us Santander, Monterey, Saltillo, Parras, Sonora, and all 
 Lower California. This was certainly a large movement, both in point 
 of money and of territory, and also large in political consequence ; and 
 clearly furnishing a theatre for the doctrine of non-intervention, if there 
 should be any design to convert the newly-acquired territory from free- 
 eoil, that it is, into slave soil that it might be desired to be. Here, 
 then, I believe I have found one branch of the grand movement ; and 
 although Mr. Gadsden returned from his mission with a small slice only 
 of the desired territory, yet he has returned to his post, and may have 
 better luck on a second trial — if Santa Anna escapes from the speckled 
 Indians (Los Indios Pintos) who have him at bay in the Sierra I say 
 nothing on the merits of this new acquisition, only that it is an old 
 acquaintance with me, having first heard of it in November, 1846, and 
 afterwards in March, 1848 — at which latter time it was proposed in the 
 Senate, (by Mr. Davis, of Mississippi,) on the ratification of the Guada- 
 lupe Hidalgo treaty; and rejected by the Senate. I voted against the 
 Santander and Monterey line then, and have not seen cause to change 
 
APPENDIX. 191 
 
 my opinion. [Here Mr. Benton read tlie article proposed by Mr. Davis 
 for the new line.] 
 
 Secondly. The mission of Mr. Soule to Madrid — also a grand move- 
 ment in itself, if reports be true — two hundred and fifty millions for 
 Cuba ; and a rumpus kicked up if the island is not got. Here again 
 might be found a case for the non-intervention principle ; but of that I 
 say nothing, because I know nothing, and wish to know something. Of 
 the acquisition itself I say nothing now, but did say something, about 
 forty-four years ago, in a Nashville newspaper, published by Thomas 
 Eastin, called the Impariial Review ; in which I discussed Cuba as the 
 geographical appurtenance of the valley of the Mississippi, and eventu- 
 ally to become its political appurtenance ; but to be got with honor 
 whenever it was got ; and in all that faith I still remain firm. No dis- 
 honor ! no stain on the bright and spotless fame left us by our fathers ! 
 
 Mr. Chairman, I discuss nothing in relation to those rumored acqui- 
 sitions of the Island of Cuba and a broad side of Mexico ; I only call 
 attention to them as probable indexes to the grand movement of which 
 the 'member from Greorgia gave us the revelation, and which no one has 
 denied. According to him, and according to my own belief, this Ne- 
 braska bill is only an entering-wedge to future enterprises — a thing 
 manufactured for a particular purpose — a stepping-stone to a grand 
 movement which is to develop itself in this country of ours. I wish to 
 know what that movement is. I have a right to know, to enable me to 
 discharge my duties uuderstandingly ; and I respectfully crave the in- 
 formation from those who have the conducting of the bill. 
 
 Mr. Smith, of Virginia. — I would like to know, Mr. Chairman, how 
 much of this time consumed in the remarks of the gentleman from 
 Missouri, is to be taken out of the hour allotted to the gentleman from 
 Illinois ? 
 
 The Chairman. — The gentleman from Missouri occupied twenty 
 minutes. As a matter of course, that time must be takeil out of the 
 hour allowed to the gentleman from Illinois. It is distinctly understood 
 +hat the Chair did not authorize the gentleman from Missouri to take 
 the floor from the gentleman from Illinois. 
 
 Mr. Knox. — I am very happy in having yielded to the gentleman 
 from Missouri so much of my time, because what he may have said is of 
 far greater interest, and of far more importance to the country, than any 
 poor I'emarks of mine would have been. 
 
 [This declaration was greeted with warm applause.] 
 
 This is the end of the rejiorted proceedings, and not a word 
 was said more on the ominous subject broached by Mr. Seward, 
 
192 APPENDIX. 
 
 of Georgia, and pursued by me, (by tlie favor of Mr. Knox, of 
 Illinois, in giving me part of liis time,) for twenty minutes, for 
 which he had to defend himself; and did it bravely and gener- 
 ously, commanding the applause of the House. There was spirit 
 in the House, and if a few of us could have had a chance at the 
 bill, it would have been smashed into atoms, and the country 
 roused to a knowledge of the meditated crimes. But there was 
 no chance. A vulgar, infuriate tyranny prevailed — greater than 
 ever w^as seen in the French National Convention in the Reign 
 of Terror ; for even there, debate could not be entirely silenced. 
 Members carried arms there ; and brave men (but no braver 
 than we were) with loaded pistols in their hands, would say what 
 they pleased, and see Robespierre, Marat, CoUot, Merlin, turn 
 pale under their terrific denunciations. "We could not carry 
 arms into the national hall of legislation, and parliamentary 
 rules signified nothing against an inexorable majority, some 
 subdued by their fears, some seduced by the administration, 
 some debauched by gambling, and drinking, and plunder legis- 
 lation ; and all driven along by the furious nullifiers, to whom 
 the administration had surrendered the government. Still there 
 was a plenty of good material, if it could have been worked up. 
 Many voted with the majority, who only waited a favorable 
 moment to attack the tyranny of which they were the unwilling 
 and mortified instruments. The war upon the details of the 
 bill would have furnished the opportunity. Successive attacks 
 upon the details, even with the five minutes' speeches, would 
 have been enough ; for, in certain conditions of all public bodies 
 — the inflamed and excited condition — ^long speeches are not 
 wanted : they are even bad ; and a sudden, vehement, and brief 
 appeal to the passions has often sufficed to overturn a powerful 
 majority, or even a whole government. But the fraudulent use 
 of the rules, and the fatality of having all questions of order de- 
 cided against us, left us without rights, or favors, in presence of 
 an inexorable majority, which, governed by party machinery, 
 drove on to their object regardless of law, decency, or shame. 
 
APPENDIX. 1'93 
 
 A LAST WOPtD. 
 
 I was breaking down under the terril)le attack whicli kejil 
 me, for two weeks, face to face with death, when I was writing 
 tliis Examination ; and had to break oif abruptly — leaving two 
 entire heads untouched, and not even alluded to. Besides these 
 two heads, now postponed, there was another which I wished 
 to bring before the American people, to wit : The conduct of an 
 Administration and a Senate (called Democratic), which has 
 done, and is doing, what no former administration and Senate, 
 (whether "Whig, Federal, Democratic, or Republican,) ever did ! 
 tliat is to say, suppressing and concealing the evidences of a 
 foreign negotiation, after the negotiation is all over and done 
 ■with ; which negotiation is surrounded by circumstances which 
 connect it with a scheme to bring on a sejDaration of the slave 
 from the free States : I speak of the Gadsden negotiation, and 
 of the fifty millions he was authorized to give for a broad side 
 of Mexico, with a port on the Gulf of California, and a railway 
 to it, to suit the United States South after the separation — to 
 which point all the schemes for a Southern Pacific Pailroad 
 tend, while the credulous public are made to believe they are 
 hunting the best way to California, where they mean it shall 
 never go, because California rejects slavery. Every Union- 
 loving State Legislature should post its Senator under instruc- 
 tions to bring those hidden negotiations to the public view, 
 though with but little prospect of getting the whole truth after 
 so many years' suppression — the same reasons which have in- 
 duced suppression thus far, being equally strong t^^ make it per- 
 petual ; so that much may be gone past recovery, 
 
 Washington City, September, 1857. 
 
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SPECIMEN PAGE OF THE WORK. 
 
 82 
 
 ACTS 
 
 ACUTE DISEASES 
 
 three wives living; and there is <i lavish promis- 
 cuousness about the notions of all, male and 
 female, onthesubject of family relations; other- 
 Avise they are models of excellence, being kind 
 mothers, children, and fathers. It is ■^vorthy 
 of mention that this is the only profession open 
 to women on equal terms with the stronger 
 sex. 
 
 ACTS OF THE Apostles, the fifth book of 
 the New Testament, written by Luke, a phy- 
 sician and painter of Antioch, who had been 
 converted by St. Paul, whose friend and com- 
 panion he afterwards was, and whom he accom- 
 panied to Rome, sharing his first captivity in that 
 city. The Acts of the Apostles could not have 
 been written before A. D. 62, at which time St. 
 Paul was at Rome, and were probably written 
 between that and the period of his death, A. D, 
 68. The personal acquaintance of the writer 
 with the subject, especially with the life and 
 experiences of St. Paul, must have given him 
 every facility for the work. The Acts include 
 the history of the church in Judea and Asia 
 Minor during a period of about 30 years after 
 the death of Christ. Theophilus (friend of 
 God), mentioned in the dedication, has by some 
 been considered an ideal for the inquiring hea- 
 then, by others a real person. The dates in the 
 Acts have been assumed to be, martyrdom of 
 Stephen, A. D. So, Paul's conversion, A. D. 86, 
 Paul's journey to Rome, A. D. 62 and 63. the 
 style in which the Acts are written is perspicu- 
 ous, the narrative striking. The principal per- 
 sonage is St. Paul ; next to him St. Peter and 
 Philip. The labors and trials of the other apos- 
 tles, whose missions led them to distant coun- 
 tries, are but slightly adverted to. 
 
 ACTUARY, a word generally used to signify 
 the manager of a joint stock company under 
 a board of directors, particularly of an insur- 
 ance company. 
 
 ACU^A. T. Christoval de, Spanish Jesuit 
 missionary in the ITth century. lie was one 
 of the early explorers of the river Amazon, and 
 was S'Uit in Texeira's expedition to that river, 
 \^'lth the special object of reporting the inci- 
 dent.-; of the exploration. Father Andres de 
 Artioda was appointed as his associate. The 
 expi.'dition lasted from February to December, 
 1639. Acuua went to Spain with his history 
 of the expedition, but the distraction of the 
 country prevented the government from taking 
 any intei-est in the colonization of the country, 
 on which so much energy and talent had been 
 devoted. He returned to South America, and 
 died on his journey from Panama to Lima. The 
 narrative was published at Madrid, 1641, in 4to. 
 II. Pedeo de, Spanish governor of the Philip- 
 pines and Moluccas, 16th century. He fought 
 at the great battle of Lepanto in 1572, and in 
 1593 held the post of captain-general of the 
 province of Carthagena, and resisted the attacks 
 of the English. He drove the Dutch out of the 
 Moluccas, and annexed them to Spain. 
 
 ACUPUNCTURE, a surgical operation em- 
 ployed among the Chinese and Japanese, in 
 
 headaches, lethargies, convulsions, colics, &;c. It 
 is accomplished by jjiercing the part which is 
 the seat of the malady with a silver needle. It 
 has recently been adopted, in some cases, by 
 British surgeons. 
 
 ACUTE DISEASES. An acute disease is on 
 that is severe in character, rapid in its jirogress 
 and short in its duration. Chronic disease is the 
 very opposite ; it is less severe in character, slow 
 in its progress, and of comparatively long dura- 
 tion. Measles, scarlet fever, small pox, cholera 
 morbus, are acute diseases, Avhich may be more 
 or less severe in character, but always run their 
 course in a short time ; and even where they 
 prove fatal, they are rapid in their progress, and 
 of short duration ; when neither fatal, nor com- 
 plicated with other morbid symptoms, they are 
 easily and promptly cured. Diseases are often 
 distinguished by the words acute and chronic, 
 but these terms are not sufliciently definite to 
 form the basis of a general classification of dis- 
 eases; for many alfections are acute in the first 
 instance, and not being cured in this stage of 
 their progress, they abate somewhat in the se- 
 verity of their symptoms, and assume, first, a 
 subacute form, and then a lingering chronic 
 state, which may continue for months and years, 
 until the vitality of the patient is exhausted, 
 unless medical advice be sought in time to con- 
 quer the disease, and renovate the system.--Di3- 
 eases are more conveniently divided into ' ' gen- 
 eral and local," rather than " acute and chronic," 
 the latter words being applicable to two differ- 
 ent stages of the same disease, without regard 
 to the periodicity of certain affections, which 
 run their course in a few hours, days, or weeks. 
 General diseases include those which affect the 
 whole system at the same time ; local diseases, 
 those which affect mainly some particular tis- 
 sue, organ, or function, and in which the gene- 
 ral disturbance arising therefrom is only second- 
 ary. — General diseases are mostly connected 
 with diseases of the blood, which being univer- 
 sally distributed, causes general disturbance, 
 fever, and prostration to the whole organism. 
 This may be caused either by the direct admis- 
 sion of some virus or miasmatic poison into the 
 blood, or by disease of the nervous system, and 
 consequent defective innervation in the organs, 
 perturbation in their functions, and reaction 
 on the blood by defective elaboration or secre- 
 tion. Eruptive fevers, gout, and rheumatism, 
 are the leading forms of general disease. Irrita- 
 tive fevers, miasmatic fevers, intermittent fevers, 
 remittent or continued fevers, inflammatory re- 
 mittent fevers, congestive or malignant fevers, 
 hectic fevers, pernicious fevers, country fever, 
 j-ellow fever, typhus fever, typhoid fever, re- 
 lapsing fever, rubeola, scarlatina, variola or 
 small pox, varioloid, varicella, or chicken pox, 
 vaccina, erysipelas, gout, and rheumatism — ■ 
 some of these are acute diseases, others chronic, 
 but all are general, and easily distinguished from 
 local affections, though erysipelas and gout may 
 seem to hold an ambiguous relation to both 
 classes. — Local diseases are those which are 
 
AmilDGMENT OF THE DEBATES OF CONGRESS. 
 
 PUBLISHED BY D. APPLETON & CO., NEW TORL 
 
 OPINIONS OF THE PRESS. 
 
 New York Examiner. 
 
 "Mr Senton fully sustains bis reputation for eBetgj ^nd 
 Industry. A careful examination of the second volnino con- 
 firms the opinion which we have already expressed of the 
 great importance of this truly national work." 
 
 New York Commercial. 
 
 "The Abridgment of the Debates of Congress, by Mr. Bon- 
 ton, are made with much care and excellent judgment. This 
 ^irk will form almost a complete history of the United 
 States since the adoption of the federal constitution, and 
 will be an invaluable work of reference." 
 
 New York Observer. 
 
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 sions, will be complete without the Debates of Congress." 
 
 New York Journal of Commerce. 
 
 "The value of this work cannot easily be overrated." 
 New York Herald. 
 
 " Had Col. Benton rendered no other service to the country 
 than by the initiation of this undertaking, it would have pre- 
 served for him an honorable place in the recollection of future 
 generations. It was of all others the work most wanted. It 
 realizes a desideratum long felt, but which no one has had 
 courage enough to attempt to supply." 
 
 New York Times. 
 
 " These Debates will contain the wisdom of Congress for 
 seventy years, and form a history of the government from the 
 time of its institution. The advantages which this abridgment 
 offers will be appreciated by every one." 
 
 New York Independent. 
 
 " This work will bring to the attention of the present gene- 
 ration a multitude of things connected with the government 
 which have long lain in forgetfulness." 
 
 New York Tribune. 
 
 " Our parliamentary history will now not only be reduced 
 to a compass which will bring the work within the means of 
 private individuals, but it will render it easy of consultation 
 and reference." 
 
 New York Courier & Enquirer. 
 
 " This work will prove of immense value to public men, 
 and to every American citizen who aims to know the civil 
 history of his country." 
 
 Boston Evening Transcript. 
 
 " This abridgment will form one of the most valuable com- 
 pendinms for private and public libraries ever issued. They 
 will contain the history of the working of iho government 
 from its foundation — show what has been done and bow it 
 •?as done." 
 
 Boston Daily Advertiser. 
 
 " It is surprising to see how many of the subjects which are 
 still before us were discussed by the fathers in the very in- 
 fancy of the confederation. We shall welcome each successive 
 volume of this work as a very valuable addition to the his- 
 tory of the country." 
 
 Boston Courier. 
 
 " Here is a work of unusual value, for without coming for- 
 ward exactly in the form of history, it yet is a compendious 
 history of our public affairs." 
 
 Boston Journal. 
 
 "Punctual to the time appointed, the secona volume of this 
 great work has made its appearance. Mr. Benton gives the 
 spirit of these Debates, and the material seems well digested, 
 and *Uh impartiality. The indexing is very complete." 
 
 Boston Traveler. 
 
 "Col. Benton's qualifications for this task no one can dis- 
 pute. His name upoc the title page at once inspires confi- 
 dence in its statements, and faith in its impartiali*v a>ii en- 
 tire faithfulness." 
 
 Boston Post. 
 
 " An enterprise like this, so interesting, invaluable, and n> 
 tional, deserves the most ample encouragement. The authm 
 says, in bis preface that the work will be to him a labor ol 
 love and of pride, resuscitating the patriotic dead— no one 
 skippeil, and each in his place, with the best of his works In 
 hand." 
 
 Boston Atlas. 
 
 "The parliamentary history of the United States will be 
 in these volumes made accessible." 
 
 Philadelphia North American. 
 
 " In this work the people will have, for the first time, an 
 opportunity to become acquainted with the manner and spirit 
 in which public alTairs were discussed in the early stages of 
 the government This abridgment or ' annals,' will be an in- 
 valuable part of the history ot the country," 
 
 Philadelphia Pennsylvanian. 
 
 "We are glad that Mr. Benton has devoted himself to thit 
 important undertaking. The task could not have been con- 
 fided to abler hands. The work is of national interest and 
 importance." 
 
 Philadelphia Inquirer. 
 
 "All the important debates will be given, and every act 
 and resolution that possesses the slightest interest." 
 
 Philadelphia Ledger. 
 
 " The great merit of this work is, that while it is (r^densad 
 within a compass which enables every reader to find Ki.- 
 master them, every argument which tends to throw Viii. 
 upon the question discussed is given clearly and inteUigibly." 
 
 Rochester Democrat. 
 
 " For the future of the country — for the information of po- 
 liticians, and of legislators and others now in public service^ 
 for the instruction of posterity in the principles of our govern- 
 ment, and the rights and duties of its citizens — for permanc. 
 and perpetual use in all that relates to politics and statesmai- 
 ship — there is nothing so much required as the debates of 'j, 
 national legislature oy a competent hand, and this the countn 
 has now the assurance of from the hand of CoL Benton," 
 
 Rochester Union. 
 
 " It is in itself an invaluable history of our country, as 
 well as a contemporaneous exposition of the theory of our 
 government and our varied institutions, proceeding from out 
 
 ablest statesman." 
 
 Bu£falo Advertiser. 
 
 " The theory of our institutions, the nature and working of 
 the various parts, can be correctly understood by those who 
 will be at the trouble to study ; and the sources of this infor- 
 mation will be, in these Debates, within the reach of every 
 citizen. The indexes at the end of each volume render it 
 easy to turn to any particular subject." 
 
 Buffalo Courier. 
 
 " We regard the extensive circulation of this work as a 
 matter of national importance, in that it will instruct men in 
 what has been the principles and policy of contending par- 
 ties, and which has been the controlling ones." 
 
 Madison Daily Argus. 
 
 " Its wide range of characters — each one speaking for him- 
 self and representing his own party — and its far stretch of 
 time, make it of the greatest value to the nation." 
 
 Chicago Daily Democrat. 
 
 " CoL Benton has condensed the Debates included In this 
 volume into a form at once convenient and intelligible, and ia 
 vigorously at work preparing the succeeding volumes. The 
 work will be at least one of the monuments which he will 
 himself erect that will bear his memory through coming 
 time." 
 
 Cincinnati Daily Commercial. 
 
 " For the statesman, politician, historian, and brief chronl 
 cler of the times, this work will be of almost incalcolabia 
 value." 
 
OPINIONS OF THE PRESb. 
 
 Olncinnati Commercial. 
 
 "This vroil ta to contain the history of the working of oar 
 government, preserve and hand down to pobterity the wisdom 
 of ages, and shed lijlit upon the study of all impending ques- 
 tions — for there will not be a question of the day which will 
 not be illustrated by something in said debates." 
 
 Colimibus State Journal. 
 
 "We are willing to trust the Old Statesman, and we wish 
 him God speed in'his undertaking." 
 
 Mobile Advertiser. 
 
 "With all his faults, no man now living is so well auapted 
 to the compilation of the Debates of Congress as Mr. Benton." 
 
 Montgomery Advertiser. 
 
 " It commends itself to the favor of all Americans. The 
 work is most important. It will place within the reach of 
 thousands otherwise inaccessible treasures of historic know- 
 ledge." 
 
 Commercial Btilletin, New Orleans. 
 
 "This abridgment, considering the inestimable value of the 
 Debates, as a complete political history of the country, forms 
 a treasury of knowledge which should be possessed by every 
 citizen who can afi'ord it— and there are few who are not able, 
 coming out as it will, serially." 
 
 Daily Picayune, New Orleans. 
 
 " This abridgment is not to be restricted to the speeches of 
 celebrated orators, but will extend to the business ?««?!, and to 
 the plainest speakers who spoke, so as to give information on 
 subjects of surviving interest" 
 
 Memphis Weekly Appeal. 
 
 " The compilation of the Debates of Congress Is a laboi. 
 which requires immense research, untiring energy, strong 
 memory, and a tolerable knowledge of great principles — ana 
 In this work Col. Benton has at length found his true occu- 
 pation. The reader will get the gi*t of the debates — and there 
 are many questions upon which the early patriots seemed to 
 throw a clearer and steadier light than the politicians of the 
 present day are able to do." 
 
 N. Y. Correspondent Charleston News. 
 
 " Col. Benton will reduce the pile of huge, unhandy volumes 
 of the legislative history of the country into a convenient 
 form, excluding all the chaff and retaining all the grain." 
 
 Troy Whig. 
 
 "An American statesman, seeking a profund knowledge oJ 
 the nature and operations of our government, cannot well do 
 without them." 
 
 Christian Mirror, Portland. 
 
 '• The brain and nerve to accomplish the herculean .abor 
 of bringing seventy years of congressional debates into fifteen 
 volumes will insure a reward more desirable than gold." 
 
 Portland Argus. 
 
 " Another valuable feature of this work Is that the discus- 
 sions are so arranged as to render them readable. One can 
 sit down at his leisure, and read the book through, as he 
 would an interesting history. And a marvellous history it is 
 These pages are the recording and everlasting evidence that 
 ' man is capable of self government,' and will go farther to 
 solve that great problem than a thousand theories." 
 
 National Intelligencer, Washington. 
 
 "By these Debates we find the first business introduced 
 into the House of Representatives. After the inauguration 
 was a bill to collect 'Duties on Imports,' and a curious and 
 interesting feature of the debate was, that every speaker 
 seemed to regard the protection of home industry as one of 
 the objects to be embraced as a matter of course in any pro- 
 ject for raising the revenue. We shall probably receive the 
 assent of every reader in saying, that no living person com ■ 
 bines more of the qualities necessary for the proper execution 
 of this work than the veteran ex-senator who has undertaken 
 it" 
 
 Albany Statesman. 
 
 " It will be found in the retrospect of the Presidency of 
 Washington, moderate expenses and moderate taxation 
 marked the era. During the space of that eight years most 
 important measures matured, so that it may truly be called 
 ' the age of gold ' in the history of the United States," 
 
 Albany Argus. 
 
 " The compiler, while he retains the substance of all the 
 debates of the slightest interest, vrill exclude all unimportant 
 matter. These volumes should be in every public library 
 and every young man should have a copy " 
 
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