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 The just supremacy of Congress over the 
 
 Clin 
 
 3 1924 030 469 740 
 
THE 
 
 JUST SUPREMACY OF COMRESS 
 
 THE TEEHITOEIM 
 
 BY GEOEGE TICKNOR CURTIS. 
 
 SUPER ANTIQUAS VUS. 
 
 BOSTON: 
 
 A. WILLIAMS AND COMPANY, 
 
 100, Washington Stkeet. 
 1859. 
 
Entered, according to Act of Congress, in the year 1869, b; 
 
 GBOEGE T. CURTIS, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts. 
 
 INTEODUCTOEY NOTE. 
 
 It is, perhaps, scarcely necessary to say, that this pamphlet was written as an 
 answer to the article by the Hon. Stephen A. Douglas, which originally appeared 
 in Harpers' Magazine, entitled " The Dividing Line between Federal and Local 
 Authority; Popular Sovereignty in the Territories;" and which has since been re- 
 published in a separate form. Private engagements and other circumstances have 
 delayed the publication of my Essay longer than I had originally intended; but I 
 believe that the subject is not likely to lose its interest. The impersonal style in 
 which it is written is to be accounted for by the fact that it was designed for publi- 
 cation in some periodical work, and it was not convenient to make any change in this 
 respect after I determined to publish it in a pamphlet. I should add, that I have seen 
 no other of Mr. Douglas's writings on this subject than the article to which this pam- 
 phlet undertakes to reply ; nor have I read the papers written by the Attorney-General, 
 Mr. Black. 
 
 G. T. C. 
 
 BoBTOM, Not. 5, 1869. 
 
 BOSTON: 
 
 printed by john wilson and son, 
 
 22, School Street. 
 
JUST SUPEEMACY OF CONGHESS 
 
 OVER THE TERRITORIES. 
 
 THE appearance, in a popular magazine, of an article on a con- 
 stitutional question, written by a prominent candidate for the 
 Presidency, with his name prefixed to it, is something new. We do 
 not know that there can be any reasonable objection to this mode of pro- 
 mulgating or defending political opinions. It has one advantage over 
 electioneering speeches, inasmuch as what is written is likely to be 
 more deliberate than what is spoken ; and if our public men would 
 employ the pen a little more, and the tongue a little less, we think that 
 they and the country would be gainers. On the other hand, what is 
 thus carefully prepared in an elaborate article, as the doctrine on which 
 a statesman means to challenge the suffrages of his countrymen for the 
 highest office in their gift, brings him in a peculiarly responsible atti- 
 tude before the tribunals of contemporary criticism and public judgment. 
 What he says and maintains in such a form is not like a Congressional 
 speech, which may be thrown off in the heat of debate or while defend- 
 ing or attacking a particular measure, and which is liable, even if not 
 likely, to be forgotten when the interest in the occasion has passed. 
 Mr. Douglas steps forward boldly and frankly, as becomes him, and 
 puts on record, in a journal of a very wide circulation, his opinions upon 
 a grave constitutional question, which enters largely into the politics of 
 the day ; and the doctrine which he thus promulgates is notoriously 
 relied upon by his friends, as the great topic, the championship of 
 which is to carry him into the White House. He certainly will not 
 
be disposed to complain if his opinions thus put forth are subjected to 
 examination in the same form of discussion. 
 
 We shall begin what we have to say upon this subject with the free 
 admission, that there are a good many elements of popularity both in 
 Mr. Douglas's character and in his present position. The public man 
 who presents himself as an advocate for the right of self-government for 
 any people, however they are situated, will always command popular 
 sympathy in this country. But we are not now concerned with Mr. 
 Douglas's chances or means of political success, but with the soundness 
 and correctness of his constitutional opinions. Whether he is or is not 
 of that order of men who " would rather be right than be President," 
 we do not presume to decide ; but we are sure for ourselves, that, 
 having no personal interest in the matter, we would rather be right 
 than be able to prevent him or any other man from reaching the 
 Presidency, if we had the power of all the nominating conventions or 
 of all the voters in the land. 
 
 It is the purpose of Mr. Douglas's article to maintain, that the 
 people of a Territory have the right to decide, independently of the will 
 of Congress, whether the institution of slavery shall or shall not exist 
 among them while they are in the Territorial condition. On a cursory 
 reading of his paper, we were a little at a loss to determine whether 
 he meant to be understood that this power belongs to the people of a 
 Territory because the organic act bestows upon them general legisla- 
 tive power, or, as in the case of Kansas, declares that they shall be free 
 to form their own institutions in their own way ; or whether he holds 
 that the people of a Territory are originally free to establish or prohibit 
 slavery without any Congressional declaration or-grant of such a power, 
 or even against a Congressipnal prohibition. But, on a more careful 
 perusal, we find that his argument goes the entire length of maintaining, 
 that, in reference to what he calls their local concerns and internal 
 polity, the people of a Territory are absolutely sovereign in the same 
 sense in which the people of a State are sovereign. In order to 
 establish what he calls " popular sovereignty in the Territories," Mr. 
 Douglas undertakes to define the dividing line between federal and 
 local authority ; and he places it, in respect to the Territories, substan- 
 tially where it is in respect to the States. He sums up the whole dis- 
 cussion in the following "principle," — "that every distinct political 
 
commanity, loyal to the Constitution and the Union, is entitled to all 
 the rights, privileges, and immunities of self-government in respect to 
 their local concerns and internal polity, subject only to the Constitution 
 of the United States." 
 
 A very important question, therefore, arises upon Mr. Douglas's 
 proposition ; namely, What does he mean when he says that the 
 people of a Territory are " entitled " to all the rights of self-government ? 
 Are they " entitled " morally, or legally ? as a matter of comity, or as a 
 strict constitutional right ? If Mr. Douglas were asked this question 
 as a jurist, in a matter of private right involving a correct answer to it, 
 would any man be disposed to risk a litigation upon the correctness 
 of the views by which Mr. Douglas undertakes to guide and enlighten 
 the political opinions of his countrymen ? In our judgment, the di- 
 viding line between federal and local authority, in respect to the 
 Territories, would have to be drawn more in accordance with settled 
 principles than it is drawn by him, before it would be safe to admit the 
 soundness of his very sweeping conclusion. 
 
 Nor is he any more satisfactory to us as a statesman than he would 
 be as a jurisconsult. The importance of a clear and reliable answer 
 to the question, ^' In what sense and how are the people of a Territory 
 entitled to the full and absolute right of self-government?" will be appa- 
 rent to any one who will consider that polygamy is an institution which 
 must be within this right, if the right exists in the unqualified extent 
 for which Mr. Douglas claims it. This, and a variety of other institu- 
 tions which might be against the will of Congress and the entire policy 
 of a Christian civilization, would come within his principle. The vast 
 inconvenience of his doctrine, therefore, renders it in the highest degree 
 necessary to ascertain where his opinions, if they are to become pre- 
 dominant in our government, are to lead us ; for if it be true, as he 
 seems to us to maintain, that the mere fact of their organization into 
 a distinct political community entitles the people of one of the Terri- 
 tories of the United States, before they are admitted as a sovereign State 
 of this Union, to make what laws or institutions they see fit, upon the 
 plea that such laws or institutions relate to their internal concerns, it 
 is quite essential to our peace and safety to know whether they are so 
 " entitled " in a moral sense only, or in a strict constitutional and legal 
 sense. If it is only as a moral claim that we are to regard the alleged 
 
6 
 
 right, then, in each particular case, Congress can consider the expe- 
 diency of yielding what is demanded. If, on the other hand, the right 
 is a constitutional and legal one, Congress can exercise no volition in 
 the matter. Still, it occurs to us to ask, if the latter is the true 
 character of the supposed right, what was the necessity and what is 
 the meaning of Mr. Douglas's grant, made in his own Kansas-Nebraska 
 Act to the people of those Territories, of " perfect freedom to form and 
 regulate, their domestic institutions in their own way " ? Why repeal 
 the Missouri Compromise, and enact the principle of " non-intervention" 
 by Congress, if the people of a Territory, after they are made a Terri- 
 tory, are "entitled" to say that Congress shall not "intervene" in 
 respect to their domestic institutions? 
 
 But it is not our purpose to anticipate the course of Mr. Douglas's 
 argument. We shall endeavor to state and to answer it fairly, and shall 
 then suggest what seem to us to be the insuperable diflSculties which 
 surround it. 
 
 The first part of Mr. Douglas's paper is occupied with a statement 
 that the American Colonies, in their struggle with Great Britain, placed 
 themselves upon the assertion of a right to legislate in their Colonial 
 Assemblies respecting their local concerns, free from all interference by 
 the English Parliament. The use which he makes of this is sufficiently 
 apparent from his proposition, that " the dividing line between federal 
 and local authority was familiar to the framers of the Constitution " 
 [of the United States], because they had had a controversy with their 
 mother-country respecting the dividing line between the authority of 
 Parliament and the authority of their Colonial Legislatures. Nothing 
 can be more inaccurate than the idea of an analogy between the question 
 which our fathers raised with the Imperial Government, and the ques- 
 tion, under the Constitution of the United States, respecting the power 
 of Congress over the Territories. In the first place, we are to remember 
 that it was no easy matter, even for Englishmen of liberal principles of 
 government and with just feelings towards their American brethren, to 
 state what the tj-ue theory of the English Constitution then was on the 
 subject of the right of Parliament to bind the Colonies. Lord Chatham, 
 it is true, in one of the most magnificent periods ever uttered in St. 
 Stephen's, undertook a distinction between the regulation of trade and 
 the levying of taxes ; and, in his haughty and daring dogmatism, he 
 
■went so far as to assert that " there is no such thing, no such idea, 
 in this Constitution, as a supreme power operating upon property." 
 Burke, on the contrary, refused to discuss the right of Parliament to 
 bind the Colonies, in respect either to trade or to taxation. He regarded 
 the abstract merits of the dispute as — 
 
 " That great Serbonian bog, 
 Betwixt Damiata and Mount Cassius old, 
 Where armies whole have sunk ; " — 
 
 and he bent the whole force of his splendid genius to the argument, 
 that any exercise of the right, or attempt to exercise it, was inexpedient 
 and dangerous. There is as little in the views maintained, in that contro- 
 versy, on our side of the water, that can furnish a useful analogy, or aid 
 us in determining what is the true relation of our Federal Government 
 to those creatures of its legislation which we call the Territories. In the 
 early stages of their contest with England, the people of the Colonies 
 relied upon their charters and fundamental grants of political power, as 
 80 many assurances and guaranties of a limited right of independent local 
 legislation. At a later period, when the contest grew closer, but when 
 it was stUl necessary to secure a reconciliation if possible, they conceded 
 the right of Parliament to bind them in matters of trade, but denied it 
 in taxation. Soon, however, all consideration of their rights as British 
 subjects, whether under charters or under the general principles of the 
 Constitution of the Empire, was merged in the grand natural right 
 of revolution, on which they constructed their " dividing line " between 
 imperial and local authority. A triumphant Revolution, and an abro- 
 gation of all political power save their own, put an end to all disputes 
 about their rights as subordinate or dependent communities. This por- 
 tion of our history, therefore, can afford very little aid in drawing " the 
 dividing line between federal and local authority " under a Constitution 
 which no one has yet, happily, found it necessary to subject to any 
 revolutionary process, but which all parties, by whatever name they are 
 known, must administer upon rules that are consistent with the preserva- 
 tion of its just authority. The Constitution of the Unit ed^tates was not 
 made for_ ^e_piiEpose-«»£-eHabedy4tig ■ the priu(iipltii5' of the Revolution. 
 It was made in order that the fruits of that Revolution — the national 
 independence — might not be lost in a state of anarchy, or in the 
 tyranny to which anai-chy inevitably tends. It was made in order that 
 
8 
 
 a regulated, republican liberty, founded upon order and system and posi- 
 tive institution, might save us from the domination of mobs, and from 
 their natural consequence, — the oppression of military despotism. 
 
 The next step in Mr. Douglas's argument for " popular sovereignty 
 in the Territories " is taken upon the action of Congress, before the 
 Constitution was adopted, respecting the North-Western Territory 
 ceded by Virginia to the Union ; and, strange to say, he confines his 
 survey of this part of his subject to Mr. Jefferson's measure for the 
 government of the Territory, which was adopted in 1784. He is quite 
 correct in saying that this Jeffersonian plan of government for the tracts 
 of country ceded, or to be ceded, to the Union by the States, contem- 
 plated the formation of political communities which it denominated 
 " new States ; " that these " new States " were to be, in general, the 
 same kind of communities as those which we now call " Territories; " 
 that they were to ,have temporary governments, on which was to be 
 conferred a general power of legislation ; and that these governments 
 were to remain until the communities should become States proper by 
 admission into the Union. But, as to all the residue of the legislation 
 which preceded the Constitution, Mr. Douglas is wholly silent. He 
 represents Mr. Jefferson's plan as standing on the statute-book, "unre- 
 pealed and irrepealable," when the Convention assembled to form the 
 Constitution. He omits to notice the Ordinance for the government 
 of the' North -Western Territory, adopted by Congress July 13, 1787, 
 while the Federal Convention was sitting, and which was actually 
 communicated to the Convention ; and, insisting that Mr. Jefferson's 
 plan still stood as the existing law when the Constitution was framed, 
 he makes the bold assertion, that the dividing line between federal and 
 local authority was known to the framers of the Constitution, as a line 
 which excluded from the power of the Federal Union all legislation 
 respecting the internal concerns of Territories. This is not creditable 
 to a person of Mr. Douglas's distinction. The simple truth is, that 
 Mr. Jefferson's plan never took effect so far as to have a " new State " 
 or Territorial government, of the kind contemplated, formed under it ; 
 that the Ordinance of July 13, 1787, was framed to supersede, and 
 actually repealed it, in reference to the North -Western Territory ; that 
 this Ordinance made numerous, and in some cases very strict, funda- 
 mental provisions concei-ning personal rights and relations, one of which 
 
related to slavery ; that it was before the framers of the Constitution 
 when they made the so-called Territorial clause, and when they passed 
 the Constitution through its final draught ; and consequently there is the 
 strongest reason to contend, that " the dividing line between federal and 
 local authority" in respect to Territories, as it had been practically 
 drawn by the existing Congress, and as it was repeated by the Congress 
 which, under the Constitution, afterwards re-enacted the Ordinance, 
 was understood, in those days, as a line which included in the federal 
 power any and all direct legislation, upon personal rights and relations, 
 in such Territories, which it might be the pleasure of Congress to 
 exercise. 
 
 Stepping over this great hiatus which Mr. Dquglas has made in our 
 national history, we come to the following singular proposition : — 
 
 " In the formation of the Constitution of the United States, the Federal 
 Convention took the British Constitution, as interpreted and explained by the 
 Colonies during their controversy with Great Britain, for their model ; making 
 such modifications in its structure and principles as the change in our condi- 
 tion had rendered necessary." 
 
 After running out what he considers the parallel between the two 
 governments, and suggesting the views which our fathers maintained 
 concerning the true relations of the mother-country to the Colonies, he 
 asks if the framers of the Constitution can be supposed to have con- 
 ferred upon Congress " that unlimited and despotic power over the 
 people of the Territories which they had resisted with their blood when 
 claimed by the British Parliament over British Colonies in America." 
 This is somewhat ad captandum, and we doubt not Brother Jonathan 
 will be struck with its force. But we believe it to be entirely unsound. 
 
 Probably Mr. Douglas stands alone in making the assertion, that 
 the Constitution of the United States was modelled on the Constitution 
 of Great Britain, as the latter was understood either by the colonists 
 or by any one else. It has sometimes been charged as a reproach, 
 that certain members of the Federal Convention leaned too much in 
 their plans and wishes towards the English Constitution; but it has 
 never been said before, so far as we know, that the whole body 
 regarded that Constitution as their " model." Certainly it would not 
 be difficult to show that the copy has so far departed from the 
 " model," that very little resemblance can be detected. But suppose 
 
 2 
 
10 
 
 it were, as Mr. Douglas imagines : does it follow that the framers of 
 our Constitution could not have designed to vest in Congress a gene- 
 ral power to govern the Territories or the subordinate communities 
 which they might have occasion to establish outside of the limits of the 
 original States, because, as colonists, they had contended for their 
 rights under positive charters, or because they threw themselves upon 
 revolutionary and natural rights ? The two cases are totally unUke. 
 When the Revolution commenced, the Colonial governments had long 
 been in existence, with their several charters and other grants of poli- 
 tical authority ; and the early dispute, as we have said, was mainly on 
 the construction and operation of those grants. When the Constitu- 
 tion of the United States was established, there was not a single Terri- 
 torial, Colonial, or subordinate government, organized by the federal 
 power, in actual existence anywhere. All was as yet in the future, or, 
 as lawyers say, in fieri, except that certain fundamental principles, 
 some of them dealing with minute details, had been laid down by the 
 old Congress in the Ordinance for the government of the North- 
 western Territory. But one of the acknowledged reasons for making 
 a stronger government for the Federal Union was the alleged incapa- 
 city of the confederacy to provide for the management and govern- 
 ment of the new countries then already come and coming into the 
 possession of the United States. Under these circumstances, there is 
 certainly nothing remarkable in the supposition, that the framers of 
 the Constitution, considering that they had to meet the want of a 
 power to establish political communities of a subordinate nature on the 
 borders of the Union, and that the character of those communities 
 would materially affect the welfare of the Union, should have intended 
 to give to Congress the power of shaping the institutions of those new 
 regions, just as the wisdom of Congress and the policy of the country 
 might require, with a view of their being ultimately admitted into the 
 Union on an equal footing with the original States. There can be no 
 rational doubt, that, immediately after the Constitution was adopted, 
 and for a long subsequent period, it was understood that Congress had 
 been invested with this power : for it was exercised repeatedly, and in 
 a great variety of ways ; and, on the particular topic of slavery, it was 
 exercised sometimes against and sometimes for the institution. 
 
 The particular clause in the Constitution in which this power has. 
 
11 
 
 until recently, been supposed to have plainly resided, so far as it re- 
 quired a positive text, is the clause known as the Territorial clause : — 
 
 " Congress shall have power to dispose of and make all needful rules and 
 regulations respecting the Territory or other property belonging to the United 
 States." (Art. iv. sect. 3.) 
 
 Mr. Douglas dismisses this source of power with the mere assump- 
 tion, that " Territory " means, in this clause, nothing but landed pro- 
 perty; which meaning he rests upon the assertion, that, at the time 
 when the Constitution was formed, the word " Territory " had " never 
 been used or understood to designate a political community or govern- 
 ment of any kind, in any law, compact, deed of cession, or public docu- 
 ment." In this, we think, he is entirely mistaken. The very first 
 clause in the Ordinance of 1787 ordains "that the said Territory, for 
 the purposes of temporary government, be one district ; subject, how- 
 ever, to be divided into two districts," &c. ; and these words " Territory " 
 and " district " are used throughout the Ordinance as convertible terms, 
 describing the political community for which the Ordinance makes cer- 
 tain provisions of fundamental law.. Aside from this verbal criticism, 
 however, Mr. Douglas surely does not require to be informed that the 
 history and surrounding facts relating to this clause of the Constitu- 
 tion have again and again been made the basis of an argument, which 
 regards it as a grant of poUtical jurisdiction as well as of proprietary 
 interest ; and we humbly think it becomes him to answer that argu- 
 ment by something more than a begging of the question. A far 
 greater authority than he, the greatest authority in the interpretation of 
 the Constitution since its actual framers passed away, — Chief-Justice 
 Marshall, — was accustomed to regard this clause as an indubitable 
 source of poUtical power. In a case, in the year 1810, in which he 
 had occasion to pronounce the opinion of the, Supreme Court on a 
 question relating to the authority of Congress to confer a capacity on 
 the citizens of a Territory to sue and be sued in a court erected by 
 Congress for that Territory, he said, — 
 
 " The power of governing and legislating for a Territory is the inevitable 
 consequence of the right to acquire and to hold territory. Could this posi- 
 tion be contested, the Constitution of the United States declares that 
 ' Congress shall have power to dispose of and make all needful rules and regu- 
 lations respecting the Territory or other property belonging to the United 
 
12 
 
 States.' Accordingly, we find Congress possessing and exercising the abso- 
 lute and undisputed power of governing and legislating for the Territory of 
 Orleans. Congress has given them a legislative, an executive, and a judi- 
 ciary, with such powers as it has been their will to assign to those depart- 
 ments respectively."* 
 
 On a more recent occasion (in 1828), when Bushrod Washington, 
 Johnson, Duval, Story, Thompson, and Trimble, were his associates, he 
 did not hesitate, in pronouncing their opinion and his own, again to 
 assign the same force and meaning to the Territorial clause, although 
 he admitted that the right to govern territory might also be derived 
 from the right to acquire it. " Whichever may be the source whence 
 the power is derived," said the Chief-Justice, "the possession of it is 
 unquestioned. ... In legislating for them [the Territories], Con- 
 gress exercises the combined powers of the General and of a State 
 Government." t 
 
 While Mr. Douglas refuses to recognize that source of power 
 which such jurists as Marshall, Washington, Story, Thompson, and 
 their associates, regarded as amply sufficient, — namely, the Territorial 
 clause, — he assigns the right of Congress to institute temporary 
 governments for the Territories to the clause of the Constitution 
 which gives power to admit new States into the Union ; which, he 
 says, taken in connection with the clause which empowers Congress 
 " to make all laws which shall be necessary and proper " to that end, 
 " may fairly be construed to include the right to institute temporary 
 governments for such new States or Territories, the same as Great 
 Britain could rightfully institute similar governments for the Colonies ; 
 but certainly not to authorize Congress to legislate in respect to their 
 municipal affairs and internal concerns, without violating that great 
 fundamental principle in defence of which the battles of the Revolution 
 were fought." 
 
 We have already had occasion to suggest, that the battles of the 
 Revolution were not fought for the purpose of ascertaining the just 
 powers of the British Government over its Colonies, or to establish one 
 or another doctrine of the English Constitution ; but that they were 
 fought for the expulsion of that Constitution and all its relations from 
 
 * Serfe vs. Pitot, 6 Cranoh, 332. 
 
 t American Insurance Company m. Canter, 1 Peters, 511. 
 
13 
 
 our land. Not to repeat ourselves on this point, therefore, we now 
 proceed to consider Mr. Douglas's theory, which we understand to 
 be this : — 
 
 That, while the right to acquire territory for the purpose of enlar- 
 ging the limits of the Union by the admission of new States, and the 
 power to admit them, necessarily involve the right to institute tempo- 
 rary governments, yet that the right to create a legislative department 
 in such temporary governments, as part of the. political organization, 
 extends only to the conferring of legislative power on the people of 
 the Territory, but does not include the power of legislating over them 
 or for them. In support of this distinction, he refers, by way of illus- 
 tration, to the right of Congress to create inferior courts, as an instance 
 where Congress may confer a power which they cannot exercise, 
 because Congress cannot render a judgment, or hear or determine a 
 cause. In the same way, he says that Congress may confer the execu- 
 tive, legislative, and judicial functions on proper officers in a Territory, 
 but that they cannot exercise one of those functions within the 
 Territory. 
 
 Assuming, for the present, that the Territorial clause in the Consti- 
 tution is out of the question, and that the right to acquire territory, and 
 to form and admit new States out of it, is the source of the power to 
 govern it, we may fairly ask, in the first place, where is the obUgation 
 to be found which imposes the necessity for creating any legislative 
 department within the Territory when a temporary government is insti- 
 tuted? The power of Congress to govern, when deduced from the 
 source above mentioned, is not less broad and general than when it is 
 deduced from the clause giving authority to make all needful rules and 
 regulations. In either case, there is no express limit to the power of 
 Congress ; and none is implied beyond that which the judgment of Con- 
 gress may assign. The power to govern, as deduced from the power 
 to acquire, is entirely analogous to the power which results fl-om con- 
 quest, which is only one of the forms of acquiring ; and it is as broad 
 and universal as any political power can be. There is, therefore, no 
 reason for saying that Congress is under any obligation to create any 
 particular kind of temporary government for a Territory. It may be 
 highly expedient and proper to make it a republican government, and 
 to give to it the three regular departments of such a government, 
 
14 
 
 because the Territory is at some day to be admitted into the Union as 
 a State ; but we shall look into the Constitution in vain for any direc- 
 tion on the subject: nor can any obligation concerning the kind of 
 government be deduced from the nature of the power, whether that 
 power rests on one or another provision of the Constitution. 
 
 Again : if we concede the power to institute temporary governments 
 for the Territories, as Mr. Douglas does, where can we draw the line 
 between mere poUtical organization and that kind of regulation which 
 Mr. Douglas would call legislation on municipal affairs and internal 
 concerns ? What is the institution of a government, but the enactment 
 of the fundamental law by and under which a people are to live ? If a 
 power outside of the limits of such a people is authorized to prescribe 
 the departments of their government, the qualifications of officers and 
 electors, and their several functions, does not the exercise of this power 
 touch their " municipal affairs and internal concerns " ? If Congress 
 can create a legislative department in a Territorial government, can 
 they not give or reserve just so much legislative power as they may see 
 fit to confer or withhold ? Can they not restrict the subjects of that 
 legislative power, or make them general and universal, at pleasure ? 
 Can they not enact or adopt a code ? Can they not make the reserva- 
 tion of a right to annul Territorial laws, or concede the legislative 
 power without such reservation, as they may see fit ? Can they not 
 confer the legislative power on any officers to whom they may think 
 proper to confide it? All these things, have hitherto been assumed in 
 the action of Congress to be within their legitimate functions ; and, if 
 this assumption has been wrong, the legislation of seventy years has 
 been a series of wrongs and usurpations. 
 
 The illustration put by Mr. Douglas, of a power which may be 
 conferred, but which cannot be exercised directly, does not afford a dis- 
 tinction applicable to the question. Congress cannot exercise judicial 
 power; although it may create a court, and confer upon it judicial 
 power. But, in the matter of instituting a government, it is legislative, 
 not judicial power, that is exercised. The authority which can exercise 
 the power of saying what a government is to be may make a subordi- 
 nate legislature, if it sees fit; and it may confer an unrestricted or 
 a restricted legislative faculty ; and, so far as it has not parted with its 
 original power, it may continue to exercise it. Upon any other suppo- 
 
15 
 
 sition, there is no mode in which Congress can retain any control over 
 a Territory or its inhabitants, after Congress has once erected a tempo- 
 rary government, or created a political organization of the people of 
 such a Territory. 
 
 We have referred to the authority of Chief-Justice Marshall, and 
 that of the Court over which he presided, in support of the position that 
 the legislative power of Congress over the Territories is a plenary 
 power, from whatever source in the Constitution it may be derived. 
 We wiU next show that the Judges of the Supreme Court of the United 
 States who are now upon the bench held the same views until the par- 
 ticular question respecting slavery arose in the Dred Scott case. 
 
 In 1851, the question came before the Supreme Court of the United 
 States, whether a law enacted by a Territorial legislature, and supposed 
 to be in conflict with a provision of the Federal Constitution, could be 
 declared by the Supreme Court to be inoperative. The opinion of the 
 Court was pronounced by Mr. Justice Daniel ; and after pointing out 
 the distinction between laws passed by States and laws passed by Terri- 
 tories, and showing that the control of the former only is vested in the 
 Supreme Court, when they violate the Federal Constitution, he added, 
 " It seems to us, that the control of these Territorial governments pro- 
 perly appertains to that branch of the government which creates and 
 can change or modify them to meet its views of public policy ; viz., the 
 Congress of the United States." In another part of the same opinion, 
 he shows that Territorial governments may be invested with general 
 legislative power, and, at the same time, "be subjected to proper 
 restraints from their superior ; " viz., Congress.* 
 
 This decision points out very clearly the true remedy against im- 
 proper or objectionable legislation by a Territorial legislature. It 
 places the remedy in the hands of Congress, — the political " superior," 
 as Mr. Justice Daniel appropriately calls the Federal Government, in 
 its relation to the governments of the Territories. This idea of the 
 " superior " power is entirely inconsistent with the " dividing line be- 
 tween federal and local power" which Mr. Douglas undertakes to draw. 
 Either he is wrong, or the judges who attributed to Congress the 
 
 * Miner's Bank of Dubuque vs. Iowa, 12 Howard, I. 
 
16 
 
 superior and paramount authority were wrong ; for it is clear that the 
 subject of legislation of which the judges were then speaking — namely, 
 a bank-charter — was a matter in the strictest sense belonging to the 
 municipal affairs and internal concerns of the Territory : and, more- 
 over, that Territory was one whose legislative power, according to the 
 organic act, embraced " all rightful subjects of legislation ; " while, at 
 the same time, the Territorial laws were subjected by the same act 
 to the revision of Congress. 
 
 Still more recently (in 1853), a question was before the Supreme 
 Court, involving the validity of acts done by the Federal Government 
 in California, after the conquest of that country, and while it was held 
 as a Territorial possession. Mr. Justice Wayne pronounced the 
 unanimous decision of the Bench, in which he said, — 
 
 " The Territory had been ceded as a conquest, and was to be preserved and 
 governed as such until the sovereignty to which it had passed had legislated 
 for it. That sovereignty was the United States, under the Constitution, hy 
 which power had been given to Congress to dispose of and make all needful 
 rules and regulations respecting the Territory or other property belonging to 
 the United States, with the power also to admit new States into this Union, 
 with only such limitations as are expressed in the section in which this power 
 is given. The government, of which Col. Mason was the Executive, had its 
 origin in the lawful exercise of a belligerent right over a conquered Territory. 
 It had been instituted during the war, by the command of the President of 
 the United States. It was the government when the Territory was ceded as 
 a conquest ; and it did not cease as a matter of course, or as a necessary con- 
 sequence of the restoration of peace. The President might have dissolved it 
 by withdrawing the army and navy officers who administered it ; but he did 
 not do so. Congress could have put an end to it ; but that was not done. 
 The right inference from the inaction of both is, that it was meant to be con- 
 tinued until it had been legislatively changed. No presumption of a contrary 
 intention can be made. Whatever may have been the causes of delay, it 
 must be presumed that the delay was consistent with the true policy of the 
 government ; and the more so, as it was continued untU the people of the 
 Territory met in convention to form a State government ; which was subse- 
 quently recognized by Congress, under its power to admit new States into the 
 Union. 
 
 " In confirmation of what has been said in respect to the power of Congress 
 over this Territory, and the continuance of the civil government estabhshed 
 as a war-right until Congress acted upon the subject, we refer to two of the 
 decisions of this Court, in one of which it is said, in respect to the treaty by 
 which Florida was ceded to the United States, ' This treaty is the law of the 
 
17 
 
 land, and admits the inhabitants of Florida to the enjoyment of the privileges, 
 rights, and immunities of the citizens of the United States. It is unnecessary 
 to inquire whether this is not their condition, independently of stipulations. 
 They do not, however, participate in political power : they do not share in 
 the government untU Florida shall become a State. In the mean time, 
 Florida continues to be a Territory of the United States, governed by virtue 
 of that clause in the Constitution which empowers Congress to make all 
 needful rules and regulations respecting the Territory or other property be- 
 longing to the United States. Perhaps the power of governing a Territory 
 belonging to the United States, which has not, by becoming a State, acquired 
 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 
 natural consequence of the right to acquire territory ' (American Insurance 
 Company vs. Canter, 1 Pet. 542, 543). 
 
 " The Court afterwards, in the case of the United States vs. Gratiot, 14 
 Pet. 526, repeats what it said in the case of Canter, in respect to that clause 
 of the Constitution giving to Congress the power to make all needful rules 
 and regulations respecting the Territory or other property of the United 
 States." * 
 
 Thus it appears, that, for a period of more than forty years, the 
 Supreme Court has been in the habit of referring to the Territorial 
 clause of the Constitution as an undoubted, source of municipal jurisdic- 
 tion ; and has, in the most explicit terms, placed the sovereignty of all 
 Territories in the government of the United States. We are therefore 
 warranted in saying, that if any constitutional lawyer, North or South, 
 had been asked, before the year 1856, to believe that the Territorial 
 clause confers no municipal authority, and that " popular sovereignty " 
 is a sound doctrine, the answer would have been, that these propositions 
 are to be received when the Supreme Court of the United States has 
 judicially unsaid what it has judicially said for nearly half a century. 
 
 We have thus endeavored to show, that when Mr. Douglas denies I 
 to Congress all legislative authority over the Territories, other than to ! 
 institute temporary governments, he is opposed to the whole practice of I 
 Congress, and to the former and the present members of the Supreme 
 Court of the United States ; and that he is not consistent with himself, 
 since the power to institute a government necessarily implies the au- 
 thority to determine what powers that government shall possess, and 
 
 * Opinion of the Court in the case of Cross vs. Harrison, 16 Howard, 164. 
 
 3 
 
18 
 
 what subjects shall be included within its legislation. We shall now 
 refer to another of the arguments which he adduces in support of his 
 position. We understand him to maintain, that in the word " States," 
 in those clauses of the Constitution which require the surrender of 
 fugitives from justice and service, and which embrace the prohibitions 
 and restraints upon State legislation, are included the Territories as well 
 as the States proper. Hence he argues that the people of a Territory 
 are sovereign in the same sense in which the people of a State are 
 sovereign, and that the sovereignty of the former is restrained and 
 limited by the Federal Constitution in the same way in which the 
 sovereignty of a State is restrained. This brings us to the great prac- 
 tical objection to Mr. Douglas's whole theory of " popular sovereignty 
 in the Territories." 
 
 The framers of the Constitution of the United States saw occasion to 
 subject the sovereignties of the " States " to certain restraints and pro- 
 hibitions. These would all have been ineffectual and nugatory, without 
 some means of enforcing them ; and accordingly the judicial power of 
 the United States was provided, and made to extend to " cases arising 
 under the Constitution." In providing the machinery by which a case 
 (arising under the Constitution because a State law is supposed to 
 conflict with one of its provisions) may be brought within the Federal 
 Judicial Power, the statesmen .of that day framed a section of the 
 Judiciary Act, by which such cases can be drawn into the Supreme 
 Court of the United States, even though they originate in a State Court. 
 But it has been repeatedly decided, that the law, whose conformity with 
 the Federal Constitution can thus be passed upon by the Federal Judi- 
 ciary, must be a law enacted by a State proper, — that is, a member 
 of the Union ; and that laws passed by Territorial legislatures are not 
 included in this machinery of Federal judicial control. If, then, Mr. 
 Douglas's doctrine is sound,. that the word " States" in the prohibitory 
 clauses of the Constitution includes " Territories," the first thing that 
 strikes us is, that there are no means provided by which the Federal 
 Government can enforce these provisions of the Constitution against the 
 legislation of Territories, unless Congress reserves to itself a power 
 directly to annul the Territorial laws. Such a reservation is plainly 
 inconsistent with Mr. Douglas's theory ; for he insists that Con- 
 gress has no power to control the people of a Territory in respect to 
 
19 
 
 their domestic concerns. But as he qualifies this position with the 
 reservation, that their domestic legislation must not violate the pro- 
 visions of the Federal Constitution, he may still retain to Congress 
 so much superintending power as is necessary to preserve the Federal 
 Constitution intact. But the diflSculty in the way of his theory is, that 
 if the Constitution, when it says the " States " shall not do certain things, 
 also means the " Territories," we have got two classes of sovereignties 
 in our system, hoth of which are subjected to the same restraints by 
 the Federal Constitution ; but those restraints are to be enforced, 
 as against the States, by the Judicial, and as against the Territories by 
 the Legislative, department of the Federal Government. 
 
 This discrepancy naturally leads to the inquiry, what reason there 
 is for supposing that when the framers of the Constitution provided 
 that no " State " shall pass laws impairing the obligation of contracts, or 
 emit bills of credit, &c., they intended to be understood as extending 
 these same prohibitions to " Teiritories,'' which could only owe their 
 existence to Acts of Congress. It is notorious, that all these prohibi- 
 tions were inserted in the Constitution to prevent the repetition of acts 
 of wrong that had previously been committed by the legislatures of 
 sovereign States, members of the Union ; or to secure the just work- 
 ing of the powers conferred on the National Government. But if we 
 suppose that the framers of the Constitution intended to have Congress 
 invested with power to erect temporary governments in regions beyond 
 the limits of the then existing States, as Mr. Douglas concedes they 
 did, there is no conceivable reason why they should not have left to 
 Congress to put upon those governments just such restraints as the 
 occasion might require ; nor why they should have included those 
 governments in the prohibitions addressed to the " States ; " nor why 
 they should have used the word " States " alone, if they meant " States " 
 and " Territories." The view that was taken by Mr. Justice Daniel 
 explains the true reason why Congress should be regarded as the 
 " superior " of the Territories ; for there may be a vast deal of legisla- 
 tion by a Territory, which would violate no provision of the Federal 
 Constitution, but would yet be exceedingly objectionable, and ought to 
 be corrected, and could be if Congress has the superior authority attri- 
 buted to it by the Supreme Court in the case to which we have 
 referred. But if Congress is the political " superior " only so far as to 
 
20 
 
 see that the Federal Constitution is not infringed, then indeed the Ter- 
 ritorial legislature, which is the mere creature of Congress, may make 
 lawful a plurality of wives, or establish the most pernicious system of 
 banking, or create a most objectionable system of divorce, — may make 
 the Territory a nuisance and a pest to the surrounding communities ; 
 and there will be no earthly power that can interfere, whether Congress 
 has or has not reserved the right to revise the Territorial laws. For 
 if Mr. Douglas's doctrine is correct, that, in all domestic affairs, the 
 people of the Territory are sovereign just as the people of a State are 
 sovereign, all such reservations are simply void. 
 
 We protest, therefore, against this popular cry, which seeks to class 
 the pretended sovereignties of the Territories with the sovereignties of 
 the States. We are neither anxious nor alarmed about the matter of 
 slavery. We are not disposed to look at every doctrine solely as it 
 affects this particular institution. We seek no sectional triumphs on 
 this or any other subject. In a particular case of real fitness for a fair 
 and unbiased decision as to their true interests, we should have no 
 unwillingness to see the people of a Territory invested, by Act of Con- 
 gress, with fuU power to decide whether they would have slavery or 
 not ; although we never could see its propriety in the case of Kansas, 
 and think that the whole country has infinite cause to regret, that, in 
 this case, a new and unoccupied region was made a battle-field for the 
 contending sections of the Union. But, however this may be, we pro- 
 test against an effort, by means of a clamor about popular sovereignty, 
 which tends to wrench the Constitution out of its appropriate sphere, 
 to render its harmonious action impracticable, and to throw unlimited 
 political authority into the hands of communities which may require, 
 for their own good and the good of the country, the strong restraining 
 hand of a " superior." Train the people of every Territory, as fast as 
 you practicably can, in the business of self-government; but do not 
 begin with ignoring your duty to deal out pohtical power just as fast as 
 they can safely be intrusted with it, and no faster, merely because you 
 desire to contrive a short-hand method of disposing of the "slavery 
 question,'' or to avoid the responsibilities which that question involves. 
 If you believe that the Constitution, propria vigore, carries slavery 
 into the Territories, march up to the point, and say so. If you believe 
 that it does not, but that legislation is necessary to plant slavery there, 
 
21 
 
 vote yes or no when such legislation is proposed. If you think it 
 inexpedient to have the question decided while the Territorial condition 
 continues, place that question in abeyance by suitable provisions. If 
 you wish to leave it to the people of a particular Territory to decide it 
 for themselves before they acquire the right of self-government by 
 becoming a sovereign State, confer on them the necessary power. But 
 take care how you emasculate the Constitution by a doctrine which 
 wiU return to plague your invention in a hundred ways, and wUl render 
 the full and free administration of the Federal Government impracti- 
 cable, by making the sovereignties of the States and the sovereignties 
 of the Territories one and the same. 
 
 The sovereignties of the " States " are founded in something more 
 than an abstract right of self-government. We are not to forget that 
 they are older than the Federal Constitution ; that the Federal system 
 itself is the embodiment of certain portions of sovereign power which 
 the States originally held, but which they found it convenient and 
 necessary to part with, and to vest in a central authority, for their com- 
 mon good ; and that if, for the same great object of the common good, 
 they deemed it necessary to convey to that central authority their 
 several claims to unoccupied territory, or their several rights to acquire 
 territory outside of their respective limits, it is not a very probable 
 supposition that they intended to convey their political jurisdiction over 
 such regions to any power but that which they had instituted as their 
 common agent for the accomplishment of the objects which they had in 
 view. They held, without doubt, most tenaciously to their right of 
 popular sovereignty; that is, the right of self-government. But this 
 right, as embodied in the idea of State sovereignty, is founded, likewise, 
 in the proud consciousness of capacity for its exercise. That lofty 
 State independence, which feels an encroachment like a wound, is the 
 result of conscious fitness for the condition which it jealously guards, 
 and which use has made normal. How strange it seems, that political 
 societies, which have thus blended together in their own existence the 
 ideas of an abstract right and a capacity of self-government, should be 
 supposed to lay the former only at the foundation of new communities, 
 and to treat the latter as of no account in the formation of a system for 
 the creation of new members of their general confederacy ! Again and 
 again has each generation, since the Federal Constitution was esta- 
 
22 
 
 Wished, witnessed the settlement of Territories, whose inhabitants, in 
 the earlier stages of their career, have been practically incapable of 
 holding and fulfilling the trusts of a full self-government. How can it 
 be otherwise in sparsely settled regions, where the people have not 
 been accustomed to act together ; where they come from communities 
 of differing political ideas ; where some have had no civil training at all, 
 where others are entirely lawless, while a few are perhaps skilled in 
 all the arts of political management; where no homogeneous popular 
 character has been formed ; and where there are as yet none of the 
 institutions which brace society together, and none of the settled habits 
 of order which precedents supply ? When we consider what legislation 
 sometimes results from general suffrage, even in our oldest States, we 
 cannot see in the doctrine of popular sovereignty in the Territories, 
 with all that is claimed for it by one of the wings of modern democracy, 
 any thing that should cause us to embrace it for its wisdom and expe- 
 diency, any more than for its conformity to sound constitutional prin- 
 ciple. 
 
 We have said that the sovereignties of the States are founded in 
 something more than an abstract or natural right. Let us now add to 
 the illustrations which we have already suggested upon this point the 
 further fact, that the very idea of State sovereignty involves the exist- 
 ence of some system of fundamental law, which we call a constitution. 
 No one can conceive of a State, a sovereign member of this Union, 
 without some restraints of fundamental law, — self-imposed, it is true, 
 and resting upon the popular will, but defining the limits of legislative 
 power, operating to protect the minority against the majority, the weak 
 against the strong, and preventing the government from being the 
 mere despotism of an irresponsible mob. It is the presence of these 
 restraints on popular power — voluntarily assumed, but at the same 
 time solemnly incorporated into public compacts — which makes a 
 democracy a republic, and secures the individual against injustice and 
 oppression. Without this high achievement in political science, the 
 sovereignty of a State would be destitute of its noblest attribute. This 
 is the diadem which popular sovereignty places upon its own brow ; 
 and, if it were lost, all would indeed be lost with it. 
 
 But how can these restraints, or any fundamental law whatever, 
 save the act of Congress which organizes it, exist in a Territory? 
 
23 
 
 There, no local constitution throws its shield over private or public 
 rights. There, if we accept the theory of " popular sovereignty " 
 which we are invited to embrace, there can be no restraints upon the 
 absolute will of the majority ; and legislation may be, as we have seen 
 it in Kansas, violent, proscriptive, and tyrannical, disgraceful to the 
 age, and shocking to the common sense of mankind, without the least 
 remedy on earth for the individual, because there is no test of esta- 
 blished principle, in the nature of a Bill of Rights, to which such legis- 
 lation can be brought. In a Territory, there is absolutely nothing that 
 can answer to the place of a BUI of Bights for individuals ; and there 
 is nothing that can fiU this place, for the Territories, except the large 
 superintending discretion of Congress, — the public conscience of the 
 nation, — which can watch the Territorial legislation, and can restrain 
 it where it ought to be restrained. 
 
 'If we look to the practical benefits which are expected from this 
 new doctrine of " popular sovereignty,'' in reference to " the slavery 
 question,'' we see still less to hope from it. The grand recommenda- 
 tion with which it is presented to us is, that it will prevent agitation of 
 the slavery question in Congress. In the session of 1853-4, Mr. 
 Douglas carried his point. He procured the repeal of the Missouri 
 Compromise, and obtained a Congressional declaration, that the Fede- 
 ral authority would neither put slavery into or put it out of Kansas, 
 but that the people of that Territory should be perfectly free to 
 decide this question for themselves. We were told that this legisla- 
 tion was to put the slavery question and all agitation of it out of 
 Congress, and that universal peace was to reign. We may give all 
 credit to Mr. Douglas for patriotic motives ; but how has his experi- 
 ment succeeded? For five years, we believe, there has not been a 
 session of Congress during which this subject has not been discussed. 
 It could not have been otherwise. The direct consequence of throwing 
 this matter into Kansas, to be acted upon there in the legislative body, 
 in the attempts to make constitutions, in the struggles of parties, re- 
 enforced as they were by outside intermeddlers, was, that an almost 
 countless series of questions was thrown back into Congress, invok- 
 ing and precipitating constant agitation of the subject of slavery. 
 "Topeca" and "Lecompton," of necessity, claimed the intervention 
 which the organic act had vainly undertaken to forestall and prevent. 
 
24 
 
 It is not extravagant to say, that there has been more and worse agita- 
 tion of " the slavery question " in Congress, in the last five years, in 
 consequence of this effort to put the subject out of Congress, than 
 could have taken place if the National Legislature had proceeded, after 
 having made a clean field by removing the Missouri restriction, to 
 consider anew, on grounds of expediency, whether slavery should or 
 should not be directly introduced and legalized in that unhappy Ter- 
 ritory. 
 
 If we turn to the state of things that has existed in Kansas itself, 
 we cannot fail to see the utter futility of the hope that the Federal 
 Government would be relieved from embarrassment by remitting the 
 decision respecting slavery to the supreme arbitrament of "popular 
 sovereignty." The Federal Executive was forced to remove governor 
 after governor, and secretary after secretary, because " the policy of 
 the administration," in respect to the principles of the organic act and 
 its requirements, was supposed to be misunderstood or misinterpreted 
 by those local functionaries. The Territory was torn by factions, 
 whose struggles created a civil confusion amounting nearly or quite to 
 civil war, in which the intervention of the National Government became 
 absolutely unavoidable. This intervention carried with it, naturally, 
 inevitably, some further display of " the policy of the administration." 
 That policy was supposed, rightfully or wrongfully, to have a leaning 
 on the subject of slavery. The acts of the Executive and its supposed 
 policy could not escape examination in Congress ; and the whole cir- 
 cumstances of the case led to discussions, which opened again and again 
 the widest door for the introduction of bitter sectional controversy. 
 
 As it has been, so it will be again if a similar course is again 
 pursued. The expedient of " popular sovereignty " will be of no more 
 efficacy in keeping the subject of slavery out of Congress hereafter 
 than it has been heretofore. If all branches of the Government and 
 a majority of the people of the whole country were to acquiesce in 
 the doctrine that Congress cannot rightfully legislate directly on the 
 subject of slavery in the Territories, it would still be in the power of 
 Congress to exert an indirect influence ; that influence would be in- 
 voked ; and the invoking of it would produce agitation, as extensive, 
 as fierce, and as dangerous as any discussion of a proslavery or an 
 antislavery bill. For if we suppose the case of a Territory whose 
 
25 
 
 inhabitants, proceeding to decide this question for themselves, had evi- 
 dently determined to decide it against the wishes of a majority, or even 
 of a strong minority, of the States, as represented in Congress, it would 
 be impossible for them to deal with it in such a way as to remove it 
 out of the indirect reach of that majority or minority. The opportuni- 
 ties for throwing impediments in their way, without direct violation of 
 their " sovereignty," would be endless ; and those opportunities would 
 produce Congressional agitation. Kansas, with all the boasted non- 
 intervention of its organic act, has proved this to demonstration. 
 
 Another of the practical benefits which Mr. Douglas seems to pro- 
 mise himself will flow from the doctrine of " popular sovereignty " is 
 that it will furnish an answer to the extreme Southern pretension, that 
 slavery goes into a Territory by force of the Constitution of the United 
 States, and that the people of the Territory cannot legislate to keep it 
 out. He denies that this pretension has received any sanction from 
 the opinions expressed by the majority of the Judges in the Dred Scott 
 case ; and he maintains, that, while those opinions sustain his denial of 
 the power of Congress to legislate directly against the introduction 
 of slavery into a Territory, they do not negative the power of the 
 people of the Territory to exclude it by their own action. We differ 
 entirely from Mr. Douglas in respect to this point ; and will now pro- 
 ceed to show why the views expressed in the case of Dred Scott are 
 entirely irreconcilable with his doctrine of " popular sovereignty." 
 
 It is difficult to speak of the case of Dred Scott with proper pre- 
 cision. To call it a decision, without a great deal of discrimination, is 
 quite incorrect. The conclusion arrived at by a majority of the Court 
 was, that the plaintiff could not maintain his action. But most lawyers; 
 who have examined the case critically, are aware, that in consequence 
 of the peculiar state of the record, as it came before the Supreme 
 Court, the views expressed by the several Judges (who united in the 
 above-mentioned conclusion), respecting the legislative power of Con- 
 gress over the Territories, do not constitute a judicial decision, so as to 
 overrule the series of former cases, which had affirmed that Congress 
 possesses a municipal authority over the Territories by virtue of what 
 has been called the Territorial clause of the Constitution * (Art. iv. 
 
 • See the note on the Dred Scott case, in the Appendix, A. 
 
 4 
 
26 
 
 sect. 3). At the same time, it is undoubtedly true, that a majority of 
 the Judges did give their personal sanction to two propositions : first, 
 that Congress derives no municipal authority over the Territories from 
 the Territorial clause ; and, secondly, that, whatever its authority may 
 be, slave property cannot be excluded by Congress from any place 
 where Congress has jurisdiction. Now, in order to see whether the 
 same Judges did not equally maintain that the Territorial , legislature 
 is also destitute of power to exclude slave property, we have only to 
 look at the opinion of the Chief-Justice, which was written and read 
 as the opinion of a majority of the Court. From that opinion, we 
 maintain that Mr. Douglas can derive no support for the power of a 
 Territorial legislature to exclude slavery; but that, on the contrary, 
 the opinion negatives the power of both Territory and Congress. 
 
 The Chief-Justice maintains, that while Congress may have an im- 
 plied power to regulate the political organization of a Territory, in 
 order to prepare it for admission as a State, yet that Congress has no 
 power of legislation which can reach a subject to which the Constitution 
 has extended its protection, which it has placed under certain guaranties, 
 and which is, therefore, as fully excluded from the control of Congress 
 as if it were named in an express prohibition. In order to establish 
 the last of these conclusions, the venerable Chief-Justice refers to the 
 express prohibitions which the Constitution has imposed as restrictions 
 upon the powers of Congress, — such as the prohibition against making 
 laws respecting an establishment of religion ; the quartering of soldiers 
 in time of peace ; the depriving any person of life, liberty, or property, 
 without due process of law, &c., — and he shows conclusively, that 
 neither in a Territory nor in a State can Congress exercise any 
 power over the person or property of a citizen, beyond what the Con- 
 stitution confers, or lawfully deny any right which it has reserved. 
 This position, which is taken with great strength, and which no 
 Constitutional lawyer will contest, is thus summed up by the Chief- 
 Justice : — 
 
 " The powers over person and property of which we speak are not only 
 not granted to Congress, but are in express terms denied i and they are [it 
 is] forbidden to exercise them. And the prohibition is not confined to the 
 States ; but the words are general, and extend to the whole Territory over 
 which the Constitution gives it [Congress] power to legislate, including those 
 
27 
 
 portions of it remaining under Territorial government, as well as that covered 
 by States. It is a total absence of power everywhere within the dominion of 
 the United States, and places the citizens of a Territory, so far as these 
 rights are concerned, on the same footing with citizens of the States, and 
 guards them as firmly and plainly against any inroads which the General 
 Government might attempt under the plea of implied or incidental powers. 
 And, if Congress itself cannot do this, — if it is beyond the powers conferred 
 on the Federal Government, — it will be admitted, we presume, that it could 
 not authorize a Territorial government to exercise them. It could confer no 
 power on any local government, established by its authority, to violate the 
 provisions of the Constitution." * 
 
 From this, it is sufficiently apparent that the Chief-Justice meant 
 to lay it down as a proposition which admitted of no denial or excep- 
 tion, that where there is a right secured or guaranteed by the Constitu- 
 tion, or a prohibition imposed on the legislative power of Congress 
 ■which that body is forbidden to violate by its own action, the Territo- 
 rial legislature is equally forbidden ; because Congress cannot autho- 
 rize any body to do that which it is itself prohibited from doing. Now, 
 the mode in which the Chief-Justice places slavery within this undenia- 
 ble principle is this, — that although the Constitution contains no 
 express prohibition against the passing of laws respecting slavery, yet 
 that it manifestly withholds the power to decide what is or is not to be 
 regarded as property ; that it not only- withholds this power, but that it 
 recognizes the right of property of the master in a slave, and recog- 
 nizes no distinction between that and all other property; that, this 
 right of the master being thus recognized by the Constitution as a right 
 of property, no tribunal, acting under the authority of the United States, 
 can take away that property without due process of law ; and that a 
 legislative act forbidding a citizen to bring his property into a particular 
 Territory would deprive him of it " without due process of law." — ■-" And 
 if the Constitution," says the Chief-Justice, " recognizes the right of 
 property of the master in a slave, and makes no distinction between 
 that description of property and other property owned by a citizen, 
 no tribunal acting under the authority of the United States — whether 
 it be legislative, executive, or judicial — has a right to draw such a dis- 
 tinction, or deny to it the benefit of the provisions and guaranties 
 
 * Opinion of Mr. Chief-Justice Taney in the case of Dred Scott, 19 Howard, 460. 
 
28 
 
 which have been provided for the protection of private property against 
 the encroachments of the government." 
 
 Hence it is quite plain, that when Mr. Douglas reads the opinion 
 of the Chief-Justice as if, in speaking of those things which neither 
 Congress nor its creature the Territory can do, he intended to embrace 
 only the express prohibitions of the Constitution, and therefore did not 
 mean to exclude " the slavery question " from the legislative power of 
 a Territory, he does not appreciate the Chief-Justice's argument : for it 
 is clear, from the whole tenor of that argument, that it meant to bring 
 slave property, as property, within the protection of the Constitution, 
 and to deny that there is any authority in any legislative body, orga- 
 nized under the Constitution, to exclude it from any place where such 
 body has jurisdiction ; because such exclusion would be a depriving the 
 citizen of his property " without due process of law ; " which cannot be 
 done, either by the Territory or by Congress. 
 
 We are not at present concerned with what we beUeve to be the 
 true answer to this argument ; but we wish to impress upon our 
 readers, that every thing depends upon the truth and extent of the two 
 postulates, — first, that the Constitution recognizes, and means to pro- 
 tect, slaves as property ; and, secondly, that to legislate for its exclusion 
 from a particular place, which is under the jurisdiction of Congress, 
 violates that provision of the Constitution which declares that "no 
 person shall be deprived of life, liberty, or property, without due 
 process of law.'' 
 
 If these positions are well taken, the conclusion is inevitable, that 
 neither Congress nor the Territorial legislature can prevent the intro- 
 duction of such property into any Territory of the United States. 
 
 "We may well ask, then, of what avail is " popular sovereignty '' to 
 be against this doctrine ? Mr. Douglas himself allows, that the sove- 
 reignty of the people of a Territory is subject to the restraints imposed 
 by the Constitution of the United States. Indeed, it would be impos- 
 sible for him to construct his theory upon any other basis ; for whether 
 the sovereignties of the Territories are or are not to be regarded -as 
 subjected to the same restraints which are imposed upon the sovereign- 
 ties of the States, it is certain that the legislative power of a Territory, 
 
29 
 
 •which is called into existence by the action of Congress, can have no 
 greater latitude than the Constitution allows to the power of Congress 
 itself. " Popular sovereignty," therefore, can furnish no answer to the 
 doctrine which a majority of the Judges of the Supreme Court unques- 
 tionably did sanction in the case of Dred Scott, although the technical 
 posture of the record in that case was not such as to give their affirm- 
 ance of this doctrine the force of a judicial precedent. That doctrilie 
 can only be met by asserting the general legislative authority of 
 Congress over the Territories, and by showing that this authority is 
 not restrained in respect to slavery in the mode contended for by the 
 Chief-Justice. 
 
 This last position is to be established by showing that the Constitu- 
 tion simply recognizes the fact, that in certain of the States there are 
 persons who, by the local laws of those States, owe service to certain 
 other persons ; that this relation, founded in the local law, is recognized 
 beyond the dominion of that law, only in the exceptional case of an 
 escape into a State to whose local law it is unknown ; and that, as it is 
 competent to a State to make the law of personal relations within its 
 own limits (subject to the exception of an escape), it is in the same 
 way competent to Congress to make that law where Congress has 
 exclusive jurisdiction ; namely, in the Territories.* 
 
 No one can have observed attentively the signs of the times, with- 
 out perceiving the influence which the doctrine of " popular sovereignty " 
 has had, and is yet likely to have, in promoting the extreme Southern 
 claim for an active interference by Congress to protect slave property 
 in the Territories. In this respect, we look upon this doctrine as one 
 of the worst among the various provocatives of sectional agitation. 
 There are many politicians, and other persons who are not politicians, 
 in the South, who feel strongly on the subject of their general claim to 
 emigrate into regions which confessedly belong to the people of the 
 whole Union, and to carry with them that form of labor to which they 
 are accustomed. They know that Congress is the administrator of the 
 public domains of the Union, in trust for the common good ; and, in a 
 pending case, they would feel the necessity, and at the same time the 
 equity, of an appeal to Congress to give them that protection without 
 
 • See the note on the property doctrine, in the Appendix, B. 
 
30 
 
 which their abstract claim of right would be of no value. But the 
 doctrine of " popular sovereignty " turns them away from the doors 
 of Congress, — the legitimate umpire with respect to their claim to 
 share in the common domain, ■ — and sends them to a tribunal where 
 they may not be represented, and where, if they are represented, the 
 decision may be nothing but the result of a social scramble. Who can 
 wonder, then, that they are driven by this new dogma into the mainte- 
 nance of a theory that will override it ? — the theory that the Consti- 
 tution itself protects slaves as property, and that, where the jurisdiction 
 of Congress exists, it is bound to legislate for the protection of that 
 which the Constitution sanctions and recognizes. You propose to 
 deny them a hearing in Congress, and to send them before the people 
 of a Territory for a decision of a purely equitable claim, which 
 addresses itself to the national justice. If you thus ignore your duty 
 to decide, how can you expect that they will not convert their equitable 
 claim into a claim of positive right, and thus circumvent you if they 
 can? 
 
 We have no faith in any of the expedients for quieting sectional 
 controversy which involve a negation of the proper duty of Congress. 
 All such expedients have a necessary tendency to multiply the occasions 
 and causes of strife. If either section of the. Union were to be outvoted 
 in Congress on the direct question of slavery in a Territory, the mis- 
 chiefs to be apprehended from the result would bear no comparison with 
 such a state of things as that which followed the reference of this ques- 
 tion to the people of Kansas. 
 
 Having thus endeavored to show that "popular sovereignty" is 
 likely to be attended with no practical advantages, we beg leave to 
 ask of our Democratic friends, why they cannot cease to agitate about 
 the means of putting an end to agitation. If any voice of ours could 
 reach them, we would respectfully but firmly inquire of the great 
 Democratic party of this country, what they expect to gain by the 
 establishment of this theory of popular sovereignty in the Territories, 
 if they shall adopt it, and shall succeed in carrying a popular election 
 by it, as the means of disposing of " the slavery question." Whether 
 rightfully or wrongfully maintained, when a Presidential election is 
 carried upon a Constitutional doctrine, that doctrine becomes, in the 
 practical administration of the government, a settled construction, — at 
 
31 
 
 least, for the party which adopts it, — however ill adapted the popular 
 tribunal may be for the correct decision of such a question. The 
 Democratic party, therefore, if it succeeds upon this doctrine, will 
 consistently adhere to it. It will administer the government, in 
 respect to the affairs of all Territories, upon the principle laid down 
 by Mr. Douglas; namely, that Congress has no power to interfere 
 in respect to their local or municipal affairs. It will organize aU 
 Territories, hereafter, not simply with a concession of " popular 
 sovereignty" on this particular matter of slavery, but without any 
 reservation to Congress of the least control over the Territorial legis- 
 lation on any domestic subject whatever. Let the mischiefs of that 
 legislation be what they may, the Democratic party must reap as it 
 shall have sown, and can only profess the inability of the Federal power 
 to afford either preventive or cure. 
 
 Are our Democratic countrymen prepared for this surrender of the 
 authority of Congress ? If they would fall back, in respect to the mere 
 " slavery question," upon the doctrine of a majority of the Judges in the 
 Dred Scott case, and would say that the legislative authority of Con- 
 gress is restrained, because the property character of slavery brings it 
 within one of the positive prohibitions which the Constitution has laid 
 upon all the powers of Congress, their course would be intelligible, 
 unsound as we might be disposed to regard it. But they are urged to 
 go much beyond this : they are counselled to abrogate the entire legis- 
 lative and superintending jurisdiction of Congress over the Territories, 
 without looking to see whether a case of special prohibition is or is not 
 made out. For ourselves, we do not mean to consent to this abdi- 
 cation in favor of the people of any Territory, on the slavery or any 
 other question, however willing we might be to confer on them the 
 faculty of self-government in suitable cases. 
 
 To show that we have not overstated the. consequences of a general 
 denial of the municipal authority of Congress over the Territories, we 
 desire to vouch the testimony of Mr. Justice Catron, — a man of great 
 fearlessness, a citizen of a slaveholding State, and, in his early days, a 
 political disciple of Andrew Jackson ; whose life and actions certainly 
 tended to any thing rather than to a diminution of the Federal powers. 
 
 In considering the various grounds on which the Court had been 
 
32 
 
 urged, in the Dred Scott case, to decide that Congress could not legis- 
 late to exclude slavery from a Territory, Judge Catron was evidently 
 struck with the consequences of that sweeping denial of the general 
 authority of Congress over Territories, which is embraced in the 
 political phrase "popular sovereignty." He knew, that, in regions 
 beyond the Mississippi, his official duty had, for nearly twenty years, 
 called upon him to perform judicial acts whose validity rested on the 
 lawful supremacy of Congress over the Territories and their inhabitants ; 
 and that, sitting on the Supreme Bench at Washington, he had united 
 with his brethren in declaring that that supremacy rests upon the 
 power " to make all needful rules and regulations " for such Territo- 
 ries. When, therefore, he came to announce his concurrence with 
 those of his brethren who held the Missouri-Compromise restriction 
 void, he used the following significant language ; which we commend to 
 all advocates of the doctrine of" popular sovereignty," as it is expounded 
 by Mr. Douglas : — 
 
 " It was hardly possible [in framing the Constitution] to separate the 
 power ' to make all needful rules and regulations ' respecting the government 
 of the Territory, and the disposition of the public lands. ... It is due to 
 myself to say, that it is asking much of a Judge who has, for nearly twenty 
 years, been exercising jurisdiction from the western Missouri line to the 
 Eocky Mountains, and, on this understanding of the Constitution, inflicting 
 the extreme penalty of death for crimes committed where the direct legisla- 
 tion of Congress was the only rule, to agree that he had been, all the whUe, 
 acting in mistake and as an usurper. 
 
 " 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 vs. Harrison 
 (16 Howard, 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 territory or other property belonging to the United States, with the 
 power to admit new States into the Union. That decision followed preceding 
 ones there cited. The question 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 
 
33 
 
 force of the instrument under whose authority the country was acquired ; 
 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." * 
 
 In conclusion, we have only to say, that it has for some years 
 excited our special wonder to observe how politicians and parties, and 
 even the people of the United States, go on in reference to this relation 
 of the Federal Government to the Territories, apparently without think- 
 ing of that portentous cloud which hangs upon oui- Western horizon, — 
 the Territory of Utah. The country is actually about to be precipitated 
 into a Presidential election, in which the sweeping doctrine is to be 
 proclaimed, — perhaps to be sanctioned, — that the Federal power can 
 exercise no interference whatever with the local and municipal con- 
 cerns of the inhabitants of any of its Territories ; while, at this very 
 day, a problem is before us at which statesmen may stand aghast, and 
 which may call for all the Constitutional power that our fathers devised, 
 and for all the physical resources that the country can spare, to enforce 
 its supremacy. 
 
 With respect to the topic of slavery, as involved in the exercise 
 of the jurisdiction which we contend rightfully belongs to Congress in all 
 the Territories, we desire to say, that we advocate and earnestly pray for 
 a return, if such a return be possible, to the policy of those who founded 
 the Federal Government, and who administered it with the knowledge 
 which, as its founders, they must have possessed. That policy was as far 
 removed from all previous or abstract popular agitation of this question 
 as it was eminently liberal, wise, and practical. Our fathers waited 
 until they had a Territory to organize and a Territorial government to 
 provide. When this practical duty was before them, they inquired who 
 were the present, or who were likely to be the future, settlers ; what 
 would subserve the interests, or be in accordance with the wishes, of 
 those settlers ; and, if the circumstances by which the case was surrounded 
 seemed to require it, they sought for such a compromise of the merely 
 sectional demands involved in it as justice, fairness, and comity would 
 dictate. In this way, while they endeavored to guard the Southern 
 
 * Opinion of Mr. .Justice Catron in the case of Dred Scott, 19 Howard, 622-3. 
 
 6 
 
34 
 
 Territories (even before the year 1808) against the introduction of fresh 
 slaves from Africa, they permitted Southern men to enter those Territo- 
 ries with the slaves which they already possessed. In this way, too, 
 they succeeded, both before and after the Constitution, in impressing 
 an unalterable condition of freedom upon the whole region north- 
 west of the Ohio. They thus made Free States and Slave States, side 
 by side, without sectional feuds, down to the time of the Missouri 
 Compromise, which was the first occasion on which this question 
 seriously threatened the harmony of the Union. How the dangers of 
 that occasion were avoided, all of us understand. 
 
 Since that period, what has the history of the country demonstrated? 
 It has shown, beyond the possibility of denial, that, whenever popular 
 agitation begins in reference to what is called the extension of slavery, 
 it inevitably runs into a chronic inflammation of the sectional passions, 
 engendering extravagant doctrines and unreasonable demands, at both 
 ends of the Union. In the South, such doctrines and demands take 
 the shape of a revival of the slave-trade, and the scriptural warrant 
 for slavery : in the North, a fierce and uncalled-for hostility to the 
 special feature of Southern society becomes developed into plots and 
 conspiracies for the liberation of those over whose condition we have 
 neither a legal nor a moral right of jurisdiction, and in the execution of 
 which not a single step can be taken without bloodshed. Now, unless 
 we mean to go on in this way until we have created both a civil and 
 a servile war for the gratification of a few madmen, we must consider 
 what are our duties, and must proceed resolutely to discharge them. 
 
 One of the first of our duties, which is as much incumbent on the 
 people of the South as it is on the people of the North, is to divest 
 ourselves of the influence which an ejfaggerated sense of the importance 
 of this Territorial-stoery question has exerted over our minds. It has 
 been found, in both sections, to be an engine useful to the politician. 
 This very capacity of the subject — its capacity to win votes for parties 
 or individuals — should lead us to watch its treatment with the utmost 
 jealousy, and to watch its influence over ourselves. If, in so doing, the 
 people of either section would calmly consider what degree of practical 
 importance belongs at any time to this question, apart from all other 
 matters involved in the relation of the Federal Government to the 
 
35 
 
 Territories, they would find that its chief value consists in its power 
 of creating political excitement ; or, in other words, in its power for 
 mischief. This being the case, our next imperative duty is to make 
 ourselves fully sensible of the fact, that neither of the political parties, 
 which are responsible for the agitation of this question, has dealt 
 with it wisely or properly. The Democratic party, for example, found 
 this question, six years ago, in reference to all the territory then de- 
 manding organization, settled by a compromise which had stood on 
 the statute-book for more than thirty years. They repealed that settle- 
 ment ; from what motive, we do not now inquire. They thus repudi- 
 ated the policy of settling the character of particular Territories by 
 Congressional compromise or arrangement ; and, so far as they covld 
 do it, rendered a resort to that ancient and peaceful method exceedingly 
 difficult, if not impracticable, hereafter. They thus entailed upon 
 tl|emselves the necessity of finding some rule, of a universal and perma- 
 nent character, which would furnish a solution of the difficulty created 
 by their abrogation of the old policy. In pursuit of this rule, they have 
 been ever since — 
 
 " In wauderiug mazes lost." 
 
 Agreeing only in their repudiation of the power of Congress to prohibit 
 slavery in a Territory, they present the spectacle of a great national 
 party seeking in the most contradictory ways for an answer to the 
 question, — which they never should have suffered to arise, — What is 
 the true condition of a Territory, when there is neither prohibition nor 
 sanction of slavery by Congressional interference'^ 
 
 We say this in no spirit of triumph or exultation ; for we regard it 
 as a national misfortune, when a political party, strong by its ramifica- 
 tions throughout the country, and renowned for its fidelity to the Union, 
 paralyzes its own power of usefulness by such a course. It is difficult 
 to conceive of a greater political error than the one that was thus com- 
 mitted by the Democratic party. It immediately gave rise to what 
 ought to have been foreseen, — the pretension, on the part of their ex- 
 treme Southern wing, that slavery goes into a Territory against the will 
 of both Congress and th'e people of that Territory ; while it compelled 
 the Northern portion of the same party to look about for a doctrine on 
 which they can exist in the Free States, and to find it in " popular 
 
36 
 
 sovereignty," which overturns the supremacy of Congress on a vast 
 many other subjects as well as on the subject of slavery.* 
 
 But this was not all, if it was even half, of the evil. A political 
 party must have an antagonist in every free, constitutional government ; 
 and, although the Democracy succeeded in scattering their ancient op- 
 ponents, another organization arose to be their adversaries. The denial 
 by the Democratic party of the power of Congress to exclude slavery 
 from a Territory, led the Eepublicans, of course, to embrace and 
 defend that power ; and, if the Republicans had contented themselves 
 with the discharge of this obvious duty, they might have restored the 
 Constitution to its true position, and have earned for themselves a title to 
 be called benefactors of their country. This was their mission ; and 
 rarely has there been a higher one presented to any political organiza- 
 tion. But, easy as it may be to trace their error, it is not so easy to 
 excuse it. They should have made themselves the defenders of the 
 supremacy of Congress over the Territories, and should have vindicated 
 its power to deal with slavery therein, as with all other things, whether 
 by compromise, or by naked legislation without compromise. But here 
 they should have stopped. 
 
 Instead of this, they mingled with this great argument — which 
 demanded Southern as well as Northern support, and to which the 
 South should have been won by the power of reason and the persuasive 
 gentleness of brotherly love — the untenable dogma, offensive at once 
 to Southern pride, that the power is a power to prohibit, and includes no 
 authority to establish or sanction, slavery. They declared, that, every- 
 
 * As we write these paragraphs, we read in the " Chicago Times," a paper in the 
 interest of Mr. Douglas, that, " from the day of Mr. Douglas's triumph in Congress 
 over the administration in the afifnir of Lecompton, he has been denounced as a traitor, 
 and every man has been proscribed who avowed sympathy or conviction with him. 
 The masterly Essay on 'The Dividing Line between Local and Federal Authority' 
 thus became necessary, as well to his own vindication as for the rescue of Hie party 
 from impending ruin." 
 
 An impartial spectator cannot fail to ask why it is that the Democratic party is 
 exposed to "impending ruin;" and such a spectator cannot avoid seeing, that when 
 a political party departs from estabhshed principles of the Constitution, seeking for 
 new theories to take the place of plain Constitutional powers long recognized and 
 acted upon, it must necessarily become divided against itself in the pursuit of such 
 theories. Had the Missouri Compromise been left undisturbed, neither Mr. Douglas 
 nor "the administration" would ever have had occasion to contend about "popular 
 sovereignty in the Temtories." 
 
37 
 
 where and under all circumstances, the slaveholder shall be excluded 
 from the national domains, if he goes with the servants whom he 
 possesses at home. They sought to rouse the Free States, by a general 
 antislavery agitation, to a combination for the enforcement of a policy, 
 the declaration of which increased instead of diminishing the perils to 
 which the Constitutional power was already exposed. These were acts 
 of consummate imprudence. They were acts which gave the control of 
 the Republican party to its least reliable members ; made its fanatics 
 leaders ; and, of necessity, reduced it to the position of a purely sectional 
 organization, to be feared and abhorred throughout one-half of the 
 Union. Over this error, too, we have no feeling of gratification to 
 indulge. It is mournful to see a noble cause frustrated by those to whose 
 hands fortune has committed its defence. It is mournful to see a great 
 Constitutional power which was lodged by our fathers in their frame of 
 government, for wise and beneficent purposes, and which can alone 
 furnish a safe means of disposing of questions which imperil our peace, 
 thus put still further from its office by the indiscretion of those who 
 ought to have gained for it the glad acquiescence of the whole land, by 
 making the South to feel that her interest in its maintenance is even 
 greater than the interest of the North. 
 
APPENDIX. 
 
 A. 
 
 Note on the Bred Scott Case, referred to ante, p. 25. 
 
 The decision of the Supreme Court of the United States in the Dred Scott 
 case is so little understood, and its character as a judicial precedent is so 
 generally misapprehended and so often misrepresented, that the following 
 analysis of it may be useful. 
 
 The plaintiff, Dred Scott, brought an action of trespass in the Circuit Court 
 of the United States for the District of Missouri, against the defendant, Sand- 
 ford, for the purpose of establishing his freedom ; and according to the require- 
 ments of law, in order to gain the jurisdiction of the Court, the plaintiff, in his 
 writ, averred himself to be a " citizen " of the State of Missouri, and the 
 defendant to be a " citizen" of the State of New York. The defendant filed 
 a plea in abatement, alleging that the plaintiff is not a " citizen " of Missouri, 
 because he is a negro of African descent, his ancestors having been of pure 
 African blood, brought into this country and sold as slaves. To this plea the 
 plaintiff demurred ; and, as by his demurrer he admitted the facts alleged in 
 the plea, the sole question on the demurrer was the question of law, whether 
 a negro of African descent, whose ancestors were slaves, can be a citizen of 
 the United States, for the purpose of suing a citizen of another State than 
 his own in a Circuit Court. The Circuit Court gave judgment for the plain- 
 tiff on this question ; and the defendant was ordered to plead to the merits of 
 the action. He did so ; and the substance of his plea in bar of the action 
 was, that the plaintiff was his (the defendant's) slave, and that he had a right 
 to restrain him as such. Upon the issue joined upon this allegation, the case 
 went to trial upon the merits, under an agreed statement of facts, which 
 ascertained, in substance, that the plaintiff, who was a slave in Missouri in 
 1834, was carried by his then master into the State of Illinois, and afterwards 
 into that part of the Louisiana Territory in which slavery had been prohibited 
 by the act of Congress called the Missouri Compromise, and was afterwards 
 brought back to Missouri, and held and sold as a slave. The jury, under the 
 instructions of the Court, found that the plaintiff, at the time of bringing his 
 action, was a slave ; and the defendant obtained judgment. The plaintiff 
 
39 
 
 then sued out a writ of error to the Supreme Court of the United States, 
 ■which removed the whole record into that Court. 
 
 It will be observed that the record, as brought into the Supreme Court, 
 presented two questions : — 
 
 1. The question arising on the plea to the jurisdiction of the Circuit 
 Court, whether a negro of African descent, whose ancestors were slaves, can 
 be a citizen. 
 
 2. The question involved in the verdict and judgment on the merits, 
 whether the plaintiff was a slave at the time he brought his action. This 
 question involved, among others, the inquiry whether the Missouri Compro- 
 mise, which prohibited the existence of slavery in the Territory where the 
 plaintiff was carried, was constitutional or not. 
 
 The importance and effect of the Dred Scott decision depend entirely upon 
 the manner in which these questions were dealt with by the Supreme Court. 
 If either of them was judicially decided by a majority of the Bench in the 
 same way, the decision constitutes a judicial precedent, binding upon the 
 Court hereafter, and upon all other persons and tribunals, until it is reversed 
 in the same Court, to just the extent that such decision goes. If either of 
 them was not judicially decided by a majority of the Bench in the same way, 
 there is no precedent and no decision on the subject; and the case embraces 
 only certain individual opinions of the judges. The following analysis will 
 determine what has been judicially decided. The reader will observe, that, 
 when the plea in abatement is spoken of, it means that part of the pleadings 
 which raised the question whether a negro can be a citizen : the merits of the 
 action comprehend the question whether the plaintiff was a slave, as affected 
 by the operation of the Missouri Compromise, or otherwise. Keeping these 
 points in view, every reader of the case should endeavor to ascertain the true 
 answers to the following questions : — 
 
 I. How many of the judges, and which of them, held that the plea in 
 abatement was rightfully before the Court, on the writ of error, so that they 
 must pass upon the question whether a negro can be a citizen ? 
 
 Answer. — Four : Chief-Justice, and Justices Wayne, Daniel, and Curtis. 
 
 II. Of the above four, how many expressed the opinion that a negro can 
 not be a citizen ? 
 
 Answer. — Three : Chief-Justice, and Justices Wayne and Daniel. 
 
 Judge Curtis, who agreed that the plea in abatement was rightfully before 
 the Court, held that a negro may be a citizen, and that the Circuit Court, 
 therefore, rightfully had jurisdiction of the case. 
 
 The opinions of these four judges on this question are to be regarded as 
 judicial ; they having held that the record authorized and required its deci- 
 sion. But as there are only three of them on one side of the question, and 
 there is one on the other, and there were five other judges on the bench, 
 there is no judicial majority upon this question, unless two at least of the 
 other fiive concurred in the opinion that the question arising on the plea in 
 
40 
 
 abatement was to be decided by the Supreme Court, and also took the same 
 view of that question with Judges Taney, Wayne, and Daniel. 
 
 But, in truth, there is not one of the other five judges who concurred 
 with the Chief-Justice and Judges Wayne and Daniel on either of the above 
 points. 
 
 Judge Nelson expressly avoided giving any opinion upon them. Indeed, 
 he seems to have leaned to the opinion, that the plea in abatement was not 
 before him : but, after saying there may be some question on this point in 
 the Courts' of the United States, he goes on to say, " In the view we [I] have 
 taken of this case, it will not be necessary to pass upon this question ; and 
 we [I] shall therefore proceed at once to an examination of {he case upon its 
 merits." He then proceeds to decide the case upon the merits, upon the 
 ground, that, even if Scott was carried into a region where slavery did not 
 exist, his return to Missouri, under the decisions of that State, is to be 
 regarded as restoring the condition of servitude. Judge Nelson has never 
 given the opinion that a negro cannot be a citizen, or that the Missouri Com- 
 promise was unconstitutional, or given the least countenance to either of 
 these positions. 
 
 Judge Grier, after saying that he concurred with Judge Nelson on the 
 question embraced by his opinion, also said that he concurred with the Chief- 
 Justice that the Missouri-Compromise Act was unconstitutional. He neither 
 expressed the opinion that a negro cannot be a citizen, nor did he intimate 
 that he concurred in that part of the opinion of the Chief-Justice : on the 
 contrary, he placed his concurrence in the disposal of the case, as ordered by 
 the Court, expressly upon the ground that the plaintiff was a slave, as alleged 
 in the pleas in bar. 
 
 Judge Campbell took great pains to avoid expressing the opinion that a 
 free negro cannot be a citizen, and has given no countenance whatever to 
 that dogma. He said, at the commencement of his opinion, after reciting the 
 pleadings, " My opinion in this case is not affected by the plea to the juris- 
 diction, and I shall not discuss the question it suggests." Accordingly, in 
 an elaborate opinion of more than twenty-five pages 8vo, he confines himself 
 exclusively to the question, whether the plaintiff' was a slave ; and he adopts 
 or concurs in none of the reasoning of the Chief-Justice, except so far as it 
 bears upon the evidence which shows that the plaintiff was in that condition 
 when he brought his suit. He concurred with the rest of the Court in 
 nothing but ths judgment ; which was, that the case should be dismissed from 
 the Court below for want of jurisdiction ; and that want of jurisdiction, he 
 takes good care to show, depends, in his view, on the fact that the plaintiff 
 was a slave, and not on the fact that he was a free negro, of African descent, 
 whose ancestors were slaves. 
 
 Thus there were only three of the judges who declared that a free negro, 
 of African descent, whose ancestors were slaves, cannot be a " citizen," for 
 the purpose of suing in the Courts of the United States, and whose opinions 
 
41 
 
 on this point are to be regarded as judicial, because they were given under 
 the accompanying opinion, that the question was brought before them on the 
 record. As three is not a majority of nine, the case of Dred Scott does not 
 furnish a judicial precedent or judicial decision on this question. 
 
 With regard to the other question in the case, — that arising on what has 
 been called the merits, — the, reader will seek an answer to the following 
 questions : — 
 
 I. Of the judges who held that the plea in abatement was rightly before 
 them, and that it showed a want of jurisdiction in the Circuit Court, how 
 many went on, notwithstanding their declared opinion that the case ought to 
 have been dismissed by the Circuit Court for that want of jurisdiction, to con- 
 sider and pass upon the merits which involved the question of the constitu- 
 tional validity of the Missouri Compromise ? 
 
 Answer. — Three : Chief-Justice, and Judges Wayne and Daniel. 
 
 n. Of the above three judges, how many held the Missouri-Compromise 
 Act unconstitutional ? 
 
 Answer. — Three : the same number and the same judges. 
 
 III. Of the judges who did not hold that the question of jurisdiction was 
 to be examined and passed upon, and gave no opinion upon it, how many 
 expressedthe opinion on the merits that the Compromise Act was void ? 
 
 Answer. — Three : Judges Grier, Catron, and Campbell. 
 
 rV. Of the remaining three judges, how many gave no opinion upon 
 either of the two great questions, — that of citizenship, or that of the vali- 
 dity of the Compromise ? 
 
 Answer. — One : Judge Nelson. 
 
 v. Of the remaining two judges, how many, who held that the question of 
 citizenship was not open, stiU expressed an opinion upon it in favor of the 
 plaintiff, and also sustained the validity of the Compromise ? 
 
 Answer. — One : Judge McLean. 
 
 VI. The remaining judge (Curtis) held that the question of citizenship 
 was open upon the record ; that the plaintiff, for all that appeared in the plea 
 in abatement, was a citizen ; and, consequently, that the Circuit Court had 
 jurisdiction. This brought him necessarily and judicially to a decision of the 
 merits, on which he held that the Compromise Act was valid. 
 
 Thus it appears that six of the nine judges expressed the opinion that the 
 Compromise Act was unconstitutional. But, in order to determine whether 
 this concurrence of six in that opinion constitutes a judicial decision or pre- 
 cedent, it is necessary to see how the majority is formed. Three of these 
 judges, as we have seen, held that the Circuit Court had no jurisdiction of 
 the case, and ought to have dismissed it, because the plea in abatement 
 showed that the plaintiff was not a citizen ; and yet, when the Circuit Court 
 had erroneously decided this question in favor of the plaintiff, and had ordered 
 the defendant to plead to the merits, and, after such plea, judgment on the 
 merits had been given against the plaintiff, and he had brought the record 
 
42 
 
 into the Supreme Court, these three judges appear to have held that they 
 could not only decide judicially that the Circuit Court was entirely without 
 jurisdiction in the case, but could also give a judicial decision on the merits. 
 This presents a very grave question, which goes to the foundation of this case 
 as a precedent or authoritative decision on the constitutional validity of the 
 Missouri-Compromise Act, or any similar law. 
 
 If it be true, that a majority of the Judges of the Supreme Court can ren- 
 der a judgment ordering a case to be remanded to a Circuit Court, and there 
 to be dismissed for a want of jurisdiction, which three of that majority declare 
 was apparent on a plea in abatement, and these three can yet go on in the 
 same breath to decide a question involved in a subsequent plea to the merits, 
 then this case of Dred Scott is a judicial precedent against the validity of the 
 Missouri Compromise. But if, on the other hand, the judicial function of 
 each judge who held that the Circuit Court was without jurisdiction, for rea- 
 sons appearing in a plea to the jurisdiction, was discharged as soon as he had 
 announced that conclusion, and given his voice for a dismissal of the case on 
 that ground, then all that he said on the question involved in the merits was 
 extra-judicial, and the so-called " decision " is no precedent. Whenever, 
 therefore, this case of Dred Scott is cited hereafter in the Supreme Court as a 
 judicial decision of the point that Congress cannot prohibit slavery in a Ter- 
 ritory, the first thing that the Court will have to do will be to consider and 
 decide the gerious question, whether they have made, or could make, a judi- 
 cial decision that is to be treated as a nrecedent, by declaring opinions on a 
 question involved in the merits of a judgment, after they had declared that 
 the Court which gave the judgment had no jurisdiction in the case. 
 
 When it is claimed, therefore, in grave State-papers or elsewhere, whether 
 in high or low places, that the Supreme Court of the United States, or a 
 majority of its judges, has authoritatively decided that Congress cannot pro- 
 hibit slavery in a Territory, it is forgotten or overlooked, that one thing 
 more remains to be debated and determined ; namely, whether the opinions 
 that have been promulgated from that Bench adverse to the power of Congress 
 do, in truth and in law, constitute, under the circumstances of this record, an 
 actual, authoritative, judicial decision. 
 
 These observations respecting the Dred Scott case are submitted to the 
 public, and especially to the legal profession, with the most entire respect for 
 the several judges ; with every one of whom, the writer believes he may say, 
 he has the honor to sustain friendly relations, as he certainly reverences their 
 exalted functions. In perfect consistency with these sentiments, he may be 
 permitted to say, that whatever may be thought of the expediency of express- 
 ing opinions on every question brought up by a record, or argued at the bar, 
 there must always be a subsequent inquiry how far such opinions, in the 
 technical posture of the case, as it was presented and disposed of, make a 
 judicial decision. 
 
43 
 
 B. 
 
 Note on the Property View of Slavery, under the Constitution of the 
 United States. 
 
 It is difficult to appreciate the importance which some Southern men ap- 
 pear to attach to the doctrine, that the Constitution of the United States 
 recognizes slaves as property. It is a doctrine which cannot increase, 
 by one jot or tittle, the security of the master's right. That right 
 depends exclusively upbn the law of the State, and is no more capable of 
 being affected by the Federal Government, when the Federal Constitution is 
 not held to recognize it as a right of property, than it is when the property 
 doctrine is admitted. In point of truth, the Federal Constitution takes notice 
 of the existence of the status of slavery in three modes only. First, it 
 secures to the federal authority, through the commercial power, the right to 
 prevent the increase of persons in the condition of servitude by importation ; 
 and there, in this direction, it stops, leaving it entirely to each State to per- 
 mit their increase by birth upon the soil of the State. Secondly, the Consti- 
 tution recognizes the fact, that besides the " free persons, including those 
 bound to service for a term of years, and excluding Indians not taxed," 
 there may be in the States " other persons ; " it permits each State, in 
 making the basis of its Congressional representation, to add to its free popu- 
 lation three-fifths of these " other persons ; " and, as it is perfectly well 
 known historically that this provision had reference to persons in the condi- 
 tion of servitude, it is quite legitimate to say that the Constitution, through 
 this provision, recognizes such servitude as an existing status of persons 
 under the local law. Thirdly, the Constitution requires that "persons 
 owing service" in one State, and escaping into another, shall not be dis- 
 charged of their service in consequence of any law of the State into which 
 they may have escaped, but shall be delivered up. 
 
 Now, what is there, in all this, which looks like a recognition of the right 
 of the master as a right of property, in the sense in which that terra raust be 
 used by jurists ? The Constitution neither defines, afiects, nor deals with, the 
 right itself. If it is the pleasure of the State to abolish it, those who were its 
 subjects pass out of the scope of these provisions of the Federal Constitution. 
 If the State chooses to continue its sanction of the condition of servitude, 
 these provisions continue to operate : they continue to operate so long as 
 there are persons who come within the description, whether the State treats 
 them as persons or as property, or as both. Indeed, under the provision 
 relating to fugitives from service, there^is no pretence to say that the Consti- 
 tution looks to any property ; for its terms embrace apprentices as well as 
 
44 
 
 It is of some consequence to the harmonious working of our complex sys- 
 tem of government, that the exclusive and irresponsible control of each State 
 over the personal condition of its inhabitants should not be felt to be capable 
 of being affected by any theory respecting the mode in which the Federal 
 Constitution recognizes the peculiarities of that condition. Of course, no 
 Slave State can ever permit its sovereign control over its inhabitants to be 
 put for a moment in peril ; not only because its peace and safety require a 
 jealous defence of its own prerogative, but because that prerogative affords 
 the only means by which we can rationally hope for a gradual amelioration 
 of the condition of the African race. It scarcely seems desirable, therefore, to 
 weaken the just foundations of this most important right, by maintaining 
 theories which are in no way necessary to its defence. 
 
 With regard to this property doctrine, as affording the means of securing 
 to slaveholders an entrance into the Territories with then- slaves, we are 
 entirely unable to perceive its value. It will be conceded by every reflecting 
 person, that, when the right so to enter the Territories is established, it is a 
 mere abstraction ; and that, unless some means of protecting and upholding 
 the relation of master and slave are provided under the local law, the relation 
 will practically cease to exist. It is equally apparent that such protection 
 can only be obtained by legislation, either Congressional or Territorial. If 
 we suppose the application for a slave code to be made to Congress, how is 
 the case strengthened by the property doctrine ? If the property carried into 
 a Territory is of such a character as to require the protection of a peculiar 
 code, it is of very little consequence whether we call it property before it 
 arrives, or call it something else ; for, until the code is furnished, the thing 
 itself is of no value. Whether the necessary code shall or shall not be fur- 
 nished, depends entirely upon the legislative discretion of Congress. As the 
 appeal must be made to that discretion, it would seem to be far better to 
 have the whole matter depend at once upon those large considerations of 
 political expediency which should in the end govern it, rather than to under- 
 take to control the legislative discretion by an artificial subtlety, which sup- 
 poses a duty to do that which the legislative power cannot be compelled 
 to do.