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right in the prohibition of slavery. In this general way the Court gets its authority, the powers and rights for which it contends seeming to ooze out of the body of the Constitution in a sort of political insensible perspiration, which being collected and condensed, form little streams leading to the conclusions they arrive at―running in different channels, but falling into the same gulf.* Such invisible, impalpable exudations cannot be weighed as reasons, and besides, had been all addressed in vain to the political power-to Congress itself-to get it to do what the Court has done. On the other hand, all the reasons for the old opinions are palpable and visible, have been seen and handled for seventy years, and always the same thing: Sovereignty, and Proprietorship, and a right to make rules and regulations respecting the territory of the United States. Between the weight of reasons, impalpable and invisible on one side, and those which have been seen and felt, and by all beholders for two generations, on the other, there is no rule of comparison

* "It appears, however, from what has taken place at the bar, that notwithstanding the language of the Constitution, and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories.

"One is, that though Congress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by Congress, but that the people of the Territory, when organized by Congress, can establish or prohibit slavery; while the third is, that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property.

"No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relation to republican Governments, its inconsistency with the Declaration of Independence, and with natural right.

"The second is drawn from considerations equally general, concerning the right of self-government, and the nature of the political institutions which have been established by the people of the United States.

"While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain; and the inequality of a regulation which would admit the property of some and exclude the property of other citizens; and, inasmuch as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States, in respect to their use and enjoyment of the territory of the United States."-Mr. Justice Curtis.

which can reach the case; and the task of comparing them must be given up.

So that the decisions of the Court tried by all the tests of comparison--numbers on each side, qualifications for right decision, tranquillity of times, freedom from party; jurisdiction, unanimity, precedents, antiquity, and weight of reason—sink out of view in the presence of the old, established, invariable, and venerable practice of our ancestors.

One further remark will conclude this conclusion. The Court dwells upon the supposed unconstitutionality of any regulation which would prevent a master from taking his slaves with him to a Territory. Why, the master himself may be prevented from going, or turned out after he gets there. From the day of becoming a landholder, the old Continental Congress first, and the Federal Congress since, have exercised the right of every other landholder to prevent trespasses, intrusions, and settlements upon their territory, expelling with military force, and punishing with fine and damages, the violator of its rules. This began under the Confederation, and has continued ever since. All the old settlers on the frontiers can remember the dragooning the settlers on the United States territory, driving them off, and destroying their houses and growing crops. All can remember the old familiar operation of cutting up a Territory, running a line through it, giving one half to the Indians, and driving the white people from it, and their slaves also.†

* Resolved, That the Secretary at War, to whom was referred the letter from Major Wyllis, of the 16th instant, direct the commanding officer of the troops of the United States on the Ohio, to take immediate and efficient measures for dispossessing a body of men who have, in a lawless and unauthorized manner, taken possession of port St. Vincent's (Vincennes), in defiance of the proclamation and authority of the United States, and that he employ the whole, or such part of the force under his command, as he shall judge necessary to accomplish the object.―Journal of the old Congress, 1787.

The last instance of this kind, and a strong one it was, was in the year 1828, when the organized Territory of Arkansas was amputated; a slip 40 miles wide and 300 long, with its counties and settlements, was cut off and transferred to the Cherokee Indians, and the inhabitants, with their herds, and flocks, and slaves, were driven from their homes. The boundaries of the Territory had been fixed by Congress in 1824; the Indian title had been extinguished; it was open to settlement, laid off into counties, and Courts held in them by judges appointed by the United States. Yet by a treaty with the Cherokees, it was agreed to give up these 12,000 square miles to the Cherokees, and "to remove all white persons, and also all others, from the west of said line,

Such is the power which Congress exercises over its territory, and with which the Constitution has nothing to do.

To sum up, in a few words, the results of this Examination, and to present the conclusions under a single view, and it is shown that the Constitution was not made for Territories, and does not include them-that it cannot be extended to them by law, and if it could, would be barren and fruitless without law to put it into operation-that no law could be made under it to give any help to the slaveholder, either in recovering his property, if the slave ran away, or in bringing back for justice the fugitive felon that should steal it; or in getting protection from the Federal Government against revolt, or in that acknowledgment of property in the slave which results from his federal taxation. In no one of these cases, nor in any other one which can be imagined, can any law be made under the Constitution to help the slave-owner, for every provision in that instrument which relates to slavery is confined to States; and the owner must be thrown upon the ordinance of 1787, and the power of Congress, independent of the Constitution, for every species of protection which he may need about that property.

I have performed an unpleasant task, but unavoidable. I have been on the kindest personal terms with the judges, and in my long senatorial service, and as part of the appointing power, have cordially given my voice for the elevation of each of them to the honorable stations they hold-for every one except Mr. Justice Curtis, appointed since the termination of my service. I am a friend to the Supreme Court as an institutionas a high and essential part of our system-and would not willingly derogate from its respect, or impair its utility. But the whole system, of which it is a part, and the whole people, of whom its members are a few, are overruling considerations; and the evil of the late decision being actually upon us, going

and keep them away." And this treaty, against an urgent opposition, was ratified by Southern votes, and carried into effect by Southern votes in the House of Representatives, to the almost ruin of the State of Arkansas, reducing her to a state of the middle or small class, when, from her frontier position, national policy required her to be strong and powerful, with which view her boundaries were fixed in 1824. The people were driven off, and Congress afterwards made them indemnity in other land, but that came from the bounty of Congress, and was no contract with the people who were driven off, as any proprietor might drive people from his land.

130 EXAMINATION OF THE SUPREME COURT'S DECISION, ETC.

into parties, entering into elections, giving the rule for the appointment of all future federal judges, establishing a new party test, bringing the federal judiciary into the vortex of federal politics, and developing still more strongly the geographical line which divides us; seeing all these evils now upon us, and others to come, I have found it impossible to remain silent, or to have said less. I am among the last of those who, acting with the generations that are passed, still adhere to their teachings. I labor to preserve what they established, lamenting that the task had not fallen into abler hands. A few years earlier, and the preservation of the Missouri Compromise would have found its adequate defender in one of its greatest architects, and the integrity of the Constitution would have found its champion in its great expounder; but Clay and Webster are gone; and, before them, went Pinkney and Lowndes, gloriously identified with the work which recent hands have just torn down. And of those who survive, and who stood by them in their great efforts, and still stand where they stood, I am one of the few-no longer in power, but still in armor when the works of our fathers are in danger. I write for no party, but for all men who venerate the works of our ancestors, and who wish to see our Government kept on the foundations on which they placed it.

* So entirely has it gone into parties, that it is often a question (along the borders of the free and slave line) of profit, or loss, to adopt or denounce it. In one case, on the north side of the line, which I noted, the convention found itself in a state of impossibility from the inability to determine on which side the loss or gain would be. One delegate proposed its adoption, because it would give them strength to the South; another objected that they would lose more in the North than they would gain in the South. And opinions being about equally balanced, the upshot was, that the decision was neither adopted nor condemned!

APPENDIX.

I.

PROPOSED EXTENSION OF THE CONSTITUTION OF THE UNITED STATES TO THE TERRITORIES, WITH A VIEW TO MAKE IT CARRY SLAVERY INTO CALIFORNIA, UTAH, AND NEW MEXICO.

(From the Thirty Years' View: Vol. II., Chap. 182.)

THE treaty of peace with Mexico had been ratified in the session of 1847-'48, and all the ceded Territory became subject to our Government, and needing the immediate establishment of territorial governments: but such were the distractions of the slavery question, that no such governments could be formed, nor any law of the United States extended to these newly acquired and orphan dominions. Congress sat for six months after the treaty had been ratified, making vain efforts to provide governments for the new Territories, and adjourning without accomplishing the work. Another session had commenced, and was coming to a close with the same fruitless result. Bills had been introduced, but they only gave rise to heated discussion. In the last days of the session, the civil and diplomatic appropriation bill, commonly called the general appropriation bill-the one which provides annually for the support of the Government, and without the passage of which the Government would stop, came up from the House to the Senate. It had received its consideration in the Senate, and was ready to be returned to the House, when Mr. Walker, of Wisconsin, moved to attach to it, under the name of amendment, a section providing a temporary government for the ceded Territories, and extending an enumerated list of acts of Congress to them. It was an unparliamentary and disorderly proposition, the proposed amendment being incongruous to the matter of the appropriation bill, and in plain violation of the obvious principle which forbade extraneous matter, and especially that which was vehemently contested,

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