WASHINGTON.
"Liberty and Union, now and forever, one and inseparable."
SATURDAY, SEPTEMBER 17, 1859.
THE TERRITORIAL QUESTION—NO. IV.
We proceed to-day, in continuation of the his-torical examination we are making into the legis-lation of Congress over the Territories, to consider the progress of events under this head during the last ten or fifteen years. Up to the year 1845 we need not say that the power of Congress to pass the Missouri Compromise, and thus to exercise the prerogative of prohibiting slavery in one part of our territorial dominion, while sanctioning it in another, remained generally acquiesced in by all parts of the country. In that year this sentiment received a solemn expression and reaffirmation in the resolutions adopted on the 1st of March, 1845, and approved the same day by President Tyler, admitting the Republic of Texas into the Union of the United States. In these resolutions it was provided, among other things, that the Missouri compromise line, as a recognised com-pact on the subject of slavery, should be applied to the territory of Texas, in the case of any new States formed out of said territory north or south of said line. We cite the fact as show-ing that at that day, whatever may have been the original opinions of certain distinguished gentle-men with regard to the propriety of that great adjust-ment, its constitutionality was now no longer held to be doubtful by those who had been the most deter-mined among its opponents at the date of its adop-tion. Of these opponents we have seen that none was more decided in the year 1820 than Mr. Tyler, then a leading Representative from the State of Virginia. Yet in 1845, as President of the Uni-ted States, he affixed his signature to the Texas Resolutions, which re-affirmed the Missouri line; thus giving his solemn assent to a condition which we may be assured he would never have accepted if at that day he had not become convinced of its constitutionality, whatever may have been his re-corded doubts on the subject a quarter of a century before. And the Congress, by inserting this pro-vision, quite as clearly indicated the convictions of that body on this head in the year 1845.
Equally significant of the power of Congress over slavery in the Territories (we do not say the need-fulness of its exercise) was the legislation of that body in organizing, in the year 1848, the Territory of Oregon. The bill originally introduced for this purpose in the House of Representatives contained a proviso prohibiting slavery in the said Territory. That prohibition, expressed in the terms of the ordi-nance of 1787, which for this purpose was applied to the new Territory, the House sanctioned by a vote of 114 yeas to 88 nays, and the bill finally passed in that body, on the second day of August, by a vote of 129 yeas to 71 nays. Taken up in the Senate on the 10th day of the same month the bill containing the proviso thus attached, was, on motion of Mr. Douglas, of Illinois, amended by substituting in its stead a provision extending the Missouri line to the Pacific. It is to be remembered that at that day, by the terms of the treaty of Guadalupe Hidalgo, concluded on the 2d of February, 1848, our territories south as well as north of that com-promise line had received vast accessions, the prospective status of which, in relation to sla-very, would thus have been inferentially deter-mined by the adoption of the amendment offered by Mr. Douglas and accepted by the Senate, which thus anew set its seal to the compro-mise of 1820. The House of Representatives, for reasons which will be considered more appro-priately under another head, refused its assent to the amendment of the Senate. The bill, being thus returned to the Senate, with the amendment of Mr. Douglas stricken out, was finally adopted by that body with a "regulation" prohibiting sla-very in the new Territory. The organic act also contained an article which provided that "all laws passed by the Legislative Assembly shall be sub-mitted to the Congress of the United States, and if disapproved shall be null and of no effect.” Whether this "regulation," which was adopted in the House of Representatives by a vote of 132 yeas to 63 nays, was consistent with the doc-trine of Popular Sovereignty in the Territo-ries, (at that date a theory not fully fledged, but in process of incubation,) our readers can judge for themselves. Not quite two years afterwards Mr. Calhoun, in his last great speech of March 4, 1850, discoursing on a cognate topic of debate, remarked as follows:
"When the Oregon question was before this body not two years since, you took (if I mistake not) universally the ground that Congress had the sole and absolute power of legislating for the Territories."
The reader will perceive that, in reaching the final determination of Congress with regard to the Territorial question raised in relation to Oregon, we have slightly anticipated a contemporaneous topic of wider and more angry controversy between the North and the South in respect to the Territories. We allude of course to the bitter disputes which arose from the acquisition of Mexican territory by the treaty of Guadalupe Hidalgo. Sagacious and patriotic statesmen, foreseeing the domestic dissen-sions of which that acquisition would be the pe-rennial source, vainly strove to guard against any such policy on the part of the Executive. It can-not be said that President Polk and his coadjutors were left in ignorance or doubt with regard to the dragon's teeth they were sowing while sturdily insist-ing, with words of menace and exaction, upon the acquisition of Mexican land by way of "indemnity for the past and security for the future." As early as the 8th of August, in the year 1846, on the in-troduction of a bill appropriating $2,000,000 to aid in the adjustment of our difficulties with Mexico, Mr. David Wilmot, a Democratic member of Con-gress from the State of Pennsylvania, brought for-ward his celebrated proviso, drawn, mutatis mu-tandis, from the sixth article of the Ordinance of 1787, but denuded of the clause requiring the ren-dition of fugitive slaves. It was expressed in the following words:
"Provided, That as an express and fundamental con-dition to the acquisition of any territory from the Re-public of Mexico by the United States, by virtue of any treaty which may be negotiated between them, and to the use by the Executive of the moneys herein appro-priated, neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime whereof the party shall be duly convicted."
The Representatives of the North, exasperated by what they believed the sectional purposes of the war, as conceived and waged by the Executive and as avowed by some of his supporters, who had not hesitated to call it "a Southern war," and smart-ing moreover under a sense of defeat in what some of them considered the improper and unconstitu-tional annexation of Texas for similar objects, voted with great unanimity for the amendment of Mr. Wilmot, and thus precipitated upon the coun-try a contest whose murmurs have to this day hardly died away. The bill with the proviso an-nexed was adopted in the House of Representa-tives by a vote of 85 yeas to 79 nays.
The bill, as thus amended, went to the Senate, where, by parliamentary strategy, it was suffered to fall through, for want of time to act upon it before the hour fixed for the final adjournment of Con-gress at that session.
At the next session, however, the same subject, on a motion to appropriate $3,000,000 for the pur-pose of concluding a treaty with Mexico, was again pressed, and on the 8th of February, 1847, Mr. Wilmot moved that the provisions of the sixth article of the ordinance of 1787 should be declared applicable to ''all territory on the continent of America which shall hereafter be acquired by or annexed to the United States." In this shape the proviso was adopted in Committee of the Whole, but subsequently rejected by the House on the 3d of March, 1847, by a majority of five votes.
By these repeated expressions the temper of the North and of the South was shown to be roused upon the disposition that should be made of any territory conquered from Mexico, and hence pru-dent and conservative statesmen were instant in their warnings against the policy of the Executive, pointing to such acquisition as the inevitable con-sequence of the war. Whatever may have been their differences on other points, the two great leading minds then in the Senate, the “representa-tive men" of their respective sections—we allude of course to Mr. Webster and Mr. Calhoun—both joined in deprecating the impending policy, which they foresaw to be fraught with dangers so immi-nent. To this effect Mr. Calhoun, on the 15th day of December, 1847, shortly after the Thirtieth Congress had assembled, introduced the following resolutions into the Senate:
"Resolved, That to conquer Mexico and to hold it either as a province or to incorporate it into the Union would be inconsistent with the avowed object for which the war has been prosecuted; a departure from the settled policy of the Government; in conflict with its character and genius; and, in the end, subversive of all our free and popular institutions.
"Resolved, That no line of policy in the further pro-secution of the war should be adopted which may tend to consequences so disastrous."
Mr. Webster was equally earnest in his opposi-tion to any dismemberment of Mexico, and the views of these enlightened statesmen were shared by many in both Houses of Congress. Mr. Polk, however, persisted in his original design, and the treaty of Guadalupe Hidalgo, though concerted by Mr. Trist after his recall, (and therefore without authority,) was submitted by the President to the Senate for its ratification. After undergoing some modification it was adopted by that body, and the ratifications of the instrument being exchanged be-tween the two countries at Queretaro on the 30th of May, 1848, the United States came into the pos-session of a vast region containing upwards of eight hundred thousand square miles.
Henceforth the Territorial question began to as-sume vaster proportions, commensurate not only with the extent of the newly acquired domain, but also with the growing rivalry and increasing exas-peration of the two sections. We had "conquered a peace" from Mexico, but there was no peace among ourselves. The confusion, invoked and de-nounced by the Holy Book against "the nation that delights in war," had settled on our heads.
Hardly was the ink dry upon the parchment be-fore the baleful fires of sectional discord loomed up in still more lurid and disastrous lustre. The treaty having omitted to make any stipulations respecting the political status of the new domain, Congress was left to adjust this matter under an exacerbation of temper such as we have already de-scribed. The Representatives of the North contended that the citizens of the South had no legal right to emi-grate to the new territory with their slave property, because, by the Constitution of Mexico and by the local law, the institute of slavery, which is the creature of positive municipal law, had no recognised existence on the soil in question. On the other hand, South-ern gentlemen maintained with warmth that the Territories, as the common property of the several States, were held in trust by the Federal Govern-ment, under the sanctions of the Constitution, for the common enjoyment of the people of the United States, with all the rights and immunities severally secured by law in the several States. They fur-ther contended that at the moment the acquisition was consummated the antecedent local law was superseded by the Constitution of the United States, which, proprio vigore, extended over the annexed Territory, and thus placed the rights of the South under its shield. The adverse theories which con-fronted each other on this head are discerned in the following words of Mr. Webster, uttered con-temporaneously with the promulgation of what he pronounced a new and fallacious doctrine:
"The Constitution is extended over the United States, and over nothing else. It cannot be extended over any thing except over the old States and the new States that shall come in hereafter, when they do come in. There is a want of accuracy of ideas in this respect that is quite remarkable among eminent gentlemen, and espe-cially professional and judicial gentlemen. It seems to be taken for granted that the right of trial by jury, the habeas corpus, and every principle designed to protect personal liberty, is extended by force of the Constitution itself over every new Territory. * * * How did we govern Louisiana before it was a State? Did the writ of habeas corpus exist in Louisiana during its Territorial existence? or the right of trial by jury? Whoever heard of trial by jury there before the law creating the Terri-torial government gave the right to trial by jury? No one. And I do not believe that there is any new light to be thrown upon the history of the proceedings of this Government in relation to that matter. When new ter-ritory has been acquired it has always been subject to the laws of Congress—to such laws as Congress thought proper to pass for its immediate government—for its government during its Territorial existence—during the preparatory state in which it is to remain until it is ready to come into the Union as one of the family of States."
In this aspect of the question an attempt at re-conciliation was made by a proposition from the South to adopt the Missouri compromise line as ap-plicable to this territory. The proposition was re-jected by the North, which, in the person of its Representatives, steadfastly resisted any such par-tition of the new territory. Another attempt was made, under the auspices of what has been subse-quently called the "Clayton Compromise," in honor of the distinguished Senator under whose lead it was initiated. He moved that the whole Terri-torial question, as then pending, in relation to Ore-gon, California, and New Mexico, be referred to a committee of eight members, four from the North and four from the South, equally divided in a party sense. Of the proceedings of that committee, of which he was chairman, he has left the following concise history, as found in a speech delivered in the Senate at a subsequent day:
"As soon as we assembled a proposition was made by a member from the South to extend the Missouri com-promise line to the Pacific. The vote upon it stood four Southern members for it and four Northern members against it. We renewed the proposition in every proper conceivable form, but our Northern friends rejected it as often as it was proposed. We discussed it, we en-treated them to adopt it. We did not pretend that it was a constitutional measure, but that it had been held by many as a compact between the North and the South, and was justified as a measure of peace. We argued to show the justice of extending the line to the Pacific. I obtained a statement from the Land Office showing that, by such an extension of this line, the North would have the exclusive occupation of one million and six hundred thousand square miles in the Territories outside the States, and the South but two hundred and sixty two thousand square miles, in which, observe, slavery could only be tolerated in case the people residing there should allow it. The proposition being rejected by the North, there was, indeed, as the Senator from South Carolina, Mr. Calhoun, has described it, 'a solemn pause in the committee.' All hope of amicable settlement for the moment vanished, and unnatural contention seemed likely to prevail among us. It was then proposed to rest the present hope of settlement on the Supreme Court as the ark of our safety. We came into the Senate with three-fourths of the committee in favor of it, and the other fourth not fixed against it. An appeal was pro-vided in the bill from all decisions of the Territorial judges in cases of writs of habeas corpus, or other cases where the issues of personal freedom should be presented. The South agreed in the Senate, with extraordinary unanimity, to submit the validity of their claims to the Supreme Court, but the North were by no means so unanimous. There was, however, a majority in favor of the bill embracing this principle. Having passed the Senate, it was sent to the House, where, on the twenty-eighth day of July, 1848, it was defeated by a vote of one hundred and twelve to ninety-seven, five-sixths of the opposition to it being from the North."
After the failure of this attempt at reconcilia-tion, the Oregon bill, as already described, was passed as a separate measure, with the proviso an-nexed, prohibiting slavery in the terms of the or-dinance of 1787. President Polk signed the bill, and, in an elaborate message giving his reasons for so doing, relied mainly upon the obligations im-posed by the Compromise of 1820, with reference to the Louisiana purchase, and reaffirmed in the annexation of Texas.
In the mean time the country was passing through the agitations incident to a Presidential canvass. The present venerable Secretary of State was the Democratic nominee, and being interrogated on the subjects then of most prominent concern, respond-ed in the well-known "Nicholson letter," which contained a distinct enunciation of the doctrine subsequently denominated "Popular Sovereignty in the Territories."
From the narrative already recited it will be seen that Congress had virtually abdicated its func-tion in reference to the new Territories. Rendered impotent by its dissensions, the Federal Legis-lature had been unable to perfect any bill for their government, when, on the 4th of March, 1849, the new Administration of President Tay-lor found itself endowed with the fatal legacy bequeathed by his predecessor. The Congress, we repeat, had abdicated its appropriate functions in the premises, and the inhabitants of the newly-annexed region—particularly in California, where the discovery of mineral wealth had attracted a large and tumultuary immigration—were thus thrown upon their own resources by the necessities of their situation, and by the delinquency of the Federal Legislature in failing to provide for their Territorial organization. Under these circum-stances, the Executive branch of the Government, if it did not actively countenance, certainly did not restrain the voluntary movements of the inha-bitants in their efforts at self-government, rendered necessary by the instincts of self-preservation. The part taken by the Administration in these embar-rassing circumstances is disclosed in the following communication, made to the House of Representa-tives by President Taylor, under date of Janua-ry 21, 1850:
"On coming into office I found the military command-ant of the department of California exercising the func-tions of Civil Governor in that Territory, and, left as I was to act under the treaty of Guadalupe Hidalgo, with-out the aid of any legislative provision establishing a government in that Territory, I thought it best not to disturb that arrangement, made under my predecessor, until Congress should take some action on that subject. I therefore did not interfere with the powers of the mili-tary commandant, who continued to exercise the func-tions of civil governor as before; but I made no such appointment, conferred no such authority, and have al-lowed no increased compensation to the commandant for his services.
"I did not hesitate to express to the people of those Territories my desire that each Territory should, if pre-pared to comply with the requisitions of the Constitu-tion of the United States, form a plan of a State consti-tution, and submit the same to Congress, with a prayer for admission into the Union as a State; but I did not anticipate, suggest, or authorize the establishment of any such Government without the assent of Congress, nor did I authorize any Government, agent or officer to inter-fere with or exercise any influence or control over the election of delegates, or over any Convention, in making or modifying their domestic institutions, or any of the provisions of the proposed constitution. On the con-trary, the instructions given by my orders were that all measures of domestic policy adopted by the people of California must originate solely with themselves; that while the Executive of the United States was desirous to protect them in the formation of any Government, re-publican in its character, to be at the proper time sub-mitted to Congress, yet it was to be distinctly understood that the plan of such a Government must at the same time be the result of their own deliberate choice, and originate with themselves, without the interference of the Executive.
"In advising an early application by the people of these Territories for admission as States I was actuated principally by an earnest desire to afford to the wisdom and patriotism of Congress the opportunity of avoiding occasions of bitter and angry dissensions among the people of the United States.
"Under the Constitution every State has the right of establishing and from time to time altering its municipal laws and domestic institutions, independently of every other State and of the General Government, subject only to the prohibitions and guaranties expressly set forth in the Constitution of the United Slates. The subjects thus left exclusively to the respective States were not designed or expected to become topics of national agitation. Still as, under the Constitution, Congress has power to make all needful rules and regulations respecting the Territo-ries of the United States, every new acquisition of terri-tory has led to discussions on the question whether the system of involuntary servitude which prevails in many of the States should or should not be prohibited in that Territory. The periods of excitement from this cause which have heretofore occurred have been safely passed, but during the interval, of whatever length, which may elapse before the admission of the Territories ceded by Mexico as States, it appears probable that similar ex-citement will prevail to an undue extent.
"Under these circumstances I thought, and still think, that it was my duty to endeavor to put it in the power of Congress, by the admission of California and New Mexico as States, to remove all occasion for the unnecessary agi-tation of the public mind."
It was under these circumstances that an attempt at conciliation and compromise was made by Henry Clay who had been returned to the Senate express-ly to lend his great abilities to the National Coun-cils at this critical period. On the 29th of Janu-ary, 1850, he brought forward a series of resolu-tions intended to form the basis of measures subse-quently to be adopted in order to stanch "the bleeding wounds of the country." These resolu-tions provided for—(1) the admission of California as a State; (2) the adjustment of the boundaries of Texas; (3) for the recovery of fugitive slaves; (4) the abolition of the slave traffic in the District of Columbia; and (5) for the Territorial organiza-tion of Utah and New Mexico. These propositions, with all others then pending on the subject, were on the 19th of April referred to a committee of thirteen, consisting of Messrs. Clay, (chairman,) Cass, Dickinson, Bright, Webster, Phelps, Cooper, King, Mason, Downs, Mangum, Bell, and Berrien. On the 8th of May following, Mr. Clay, from this select committee, submitted an elaborate report covering all the points in controversy, and com-monly nicknamed "the omnibus bill." In relation to the Territories, this bill provided for their orga-nization, but declared that the legislative power exercised in them should not extend to the passage of "any law in respect to African slavery." Pending the consideration of this measure, Mr. Davis, of Mississippi, moved on the 15th of May to amend the bill by substituting for the words "in respect to African slavery" as follows: "No law shall be passed interfering with those rights of property growing out of the institution of African slavery as it exists in any of the States of the Union."
On the same day Mr. Chase, of Ohio, offered the following amendment:
“Provided further, That nothing herein contained shall be construed as authorizing or permitting the introduc-tion of slavery or the holding of persons as property within said Territory."
Upon these amendments—the one affirming the pro-slavery and the other the anti-slavery position, in opposition to the right of the people of the Ter-ritories to decide the slavery question for them-selves—an animated debate ensued, at the conclu-sion of which they were each rejected by a vote of yeas 25, nays 30.
After various other amendments had been offer-ed and rejected, Mr. Douglas moved to amend the bill by striking out all relating to African slavery, and declaring the legislative power of the Territory to extend "to all rightful subjects of legislation consistent with the Constitution of the United States." Which amendment, after being first re-jected, (receiving only two votes,) was finally adopted on the 31st of July by a vote of yeas 32, nays 19; thus restoring this section of the bill to the form in which it had been originally reported from the Committee on Territories on the 25th of March preceding, and conferring on the Territorial Legislature power over "all rightful subjects of legislation consistent with the Constitution of the United States," without expressly excepting Afri-can slavery.
By this arrangement it was held, on the one hand, that Congress had yielded the principle that the inhabitants of the Territories should decide, the slavery question for themselves through the ac-tion of their Territorial Legislatures.
On the other it was maintained that any such action, which should be exclusive of or inimical to slave property, would be null and void, because not "consistent with the Constitution of the Uni-ted States."
The controverted question being, however, thus disposed of, if not settled, the Senate proceeded on the same day to consider the other portions of the bill, and, after striking out all except those pro-visions which provided for the organization of the Territory of Utah, ordered the bill to be engrossed for a third reading, and on the next day—August 1, 1850—the bill was read a third time and passed.
On the 14th of August the bill for the organiza-tion of the Territory of New Mexico was taken up and amended so as to conform fully to the pro-visions of the Utah act in respect to the power of the Territorial Legislature over "all rightful sub-jects of legislation consistent with the Constitu-tion," without excepting African slavery, and was ordered to be engrossed for a third reading without a division; and on the next day the bill was pass-ed—yeas 27, nays 10.
These two bills were sent to the House of Rep-resentatives, and passed that body without any alteration in respect to the power of the Territorial Legislatures over the subject of slavery, and were approved by President Fillmore, September 9, 1850.
This disposition of the Territorial question, as then numbered among the outstanding topics of controversy between the North and the South, was, as our readers are aware, made in pursuance of the method marked out by the distinguished Senator from Maryland, Mr. PEARCE, under whose able management, after the failure of the "omnibus bill," the other measures of pacification were in like manner separately taken up and passed.
The compromises thus made were generally acqui-esced in by the country. Both of the leading political parties pledged themselves in National Convention, in 1852, to abide by the existing settlement, of the slavery question, which, we were assured, had been definitively laid to rest by the Great Adjustment of 1850. The Democracy were especially em-phatic on this point. The surviving murmurs of the storm that had lately agitated the land were growing fainter and fainter, until, on the accession of Mr. Pierce in 1853, the only question was who should be held to have most firmly pledged them-selves to resist any reopening of the forbidden and forbidding controversy. The Whigs, in the person of their candidate, Gen. Scott, were defeated, main-ly because of some groundless suspicions that they were not sufficiently steadfast in their purpose to abide by existing arrangements in relation to slave-ry. The fair promises of the Democracy, if not deceitful, certainly proved illusory. The country was suddenly startled in 1854 by a proposition to repeal the Missouri Compromise in connexion with the proposed organization of the Territories of Kan-sas and Nebraska. This had not been attempted in the first stages of the movement under this head, and the reason found for it in the terms of the compromise of 1850 was an afterthought. A sim-ple statement of facts and dates will sufficiently substantiate this assertion.
The House of Representatives at the session pre-ceding that of December, 1853, had passed a bill for the organization of the Territory of Nebraska, in which no mention was made of any conceived necessity for repealing the Missouri Compromise. The Committee on Territories in the Senate re-ported a similar measure without any such intima-tion. On the opening of the Thirty-third Con-gress in December, 1853, the subject naturally was again brought up for consideration, as the popula-tion in that region was held to demand the estab-lishment of a Territorial government for their protection. Accordingly on the 4th of January, 1854, a report from the Committee on Territories in the Senate was presented to that body by its chairman, Mr. Douglas, from which we make the following extract, as well for its historical bearing on this whole controversy as in order to show with what gradual steps the committee approv-ed the issue they finally determined to join with the great compact of 1820, on the ground of its alleged inconsistency with the recent Compro-mise of 1850. We extract from Mr. Douglas's Report, as published in the National Intelligencer on January 7, 1854:
"The Committee on Territories, to which was referred a bill for an act to establish the Territory of Nebraska, have given the same that serious and deliberate consid-eration which its great importance demands, and beg leave to report it back to the Senate, with various amend-ments, in the form of a substitute for the bill.
"The principal amendments which your committee deem it their duty to commend to the favorable action of the Senate in a special report are those in which the principles established by the compromise measures of 1850, so far as they are applicable to Territorial orga-nization, are proposed to be affirmed and carried into practical operation within the limits of the new Terri-tory. The wisdom of those measures is attested not less by their salutary and beneficial effects in allaying sec-tional agitation and in restoring peace and harmony to an irritated and distracted people, than by the cordial and almost universal approbation with which they have been received and sanctioned by the whole country. * *
“It was a disputed point whether slavery was pro-hibited by law in the country acquired from Mexico. On the one hand, it was contended, as a legal proposi-tion, that, slavery having been prohibited by the enact-ments of Mexico, according to the laws of nations we received the country with all its local laws and domestic institutions attached to the soil, so far as they did not conflict with the Constitution of the United States; and that a law either protecting or prohibiting slavery was not repugnant to that instrument, as was evidenced by the fact that one-half of the States of the Union tolerated while the other half prohibited the institution of slavery. On the other hand it was insisted that, by virtue of the Constitution of the United States, every citizen had a right to remove to any Territory of the Union and carry his property with him, under the protection of law, whether that property consisted in persons or things. The difficulties arising from this diversity of opinion were greatly aggravated by the fact that there were many persons on both sides of the legal controversy who were unwilling to abide the decision of the courts on the matters in dispute. * * *
"Such being the character of the controversy in re-spect to the territory acquired from Mexico, a similar question has arisen in regard to the right to hold slaves in the proposed Territory of Nebraska, when the Indian laws shall be withdrawn and the country thrown open to emigration and settlement. By the eighth section of 'An act to authorize the people of the Missouri Terri-tory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States, and to prohibit slavery in certain Territories,' approved March 6 1820, it was provided ‘that in all territory ceded by ‘France to the United States under the name of Louisi-‘ana, which lies north of thirty-six degrees and thirty ‘minutes north latitude, not included within the limits ‘of the State contemplated by this act, slavery and in-‘voluntary servitude, otherwise than in the punishment ‘of crimes whereof the parties shall have been duly con-‘victed, shall be and is hereby forever prohibited,' &c.
“Under this section, as in the case of the Mexican law in New Mexico and Utah, it is a disputed point whether slavery is prohibited in the Nebraska country by valid ensetment. The decision of this question involves the constitutional power of Congress to pass laws prescribing and regulating the domestic institutions of the various Territories of the Union. In the opinion of those emi-nent statesmen who hold that Congress is invested with no rightful authority to legislate upon the subject of slavery in the Territories, the eighth section of the act preparatory to the admission of Missouri is null and void; while the prevailing sentiment in a large portion of the Union sustains the doctrine that the Constitution of the United States secures to every citizen an un-alienable right to move into any of the Territories with his property, of whatever kind and description, and to hold and enjoy the same under the sanction of law.
"Your committee do not feel themselves called upon to enter into the discussion of these controverted questions. They involve the same grave issues which produced the agitation, the sectional strife, and the fearful struggle of 1850. AS CONGRESS DEEMED IT WISE AND PRUDENT TO REFRAIN FROM DECIDING THE MATTER IN CONTROVERSY THEN, either by affirming or repealing the Mexican laws, or by an act declaratory of the true intent of the Constitution and the extent of the protection afforded by it to the slave property in the Territories, so YOUR COMMITTEE ARE NOT PREPARED NOW TO RECOMMEND A DEPARTURE FROM THE COURSE PURSUED ON THAT MEMORABLE OCCASION, EITHER BY AFFIRMING OR REPEALING THE 8TH SECTION OF THE MISSOURI ACT, or by any act declaratory of the meaning of the Constitution in respect to the legal points in dispute.
“Your committee deem it fortunate for the peace of the country and the security of the Union that the con-troversy then resulted in the adoption of the Compro-mise measures, which the two great political parties, with singular unanimity, have affirmed as a cardinal article of their faith, and proclaimed to the world as a final settlement of the controversy and an end of the agita-tion. A due respect, therefore, for the avowed opinions of Senators, as well at a proper sense of patriotic duty, enjoin upon your committee the propriety and necessity of a strict adherence to the principles and even a literal adop-tion of the enactments of that adjustment in all their Territorial bills, so far as the same are not locally inap-plicable." * * *
To these evidences of caution on the part of the committee in approaching the brink of a chasm we append the following citations as illustrating the rapid strides which at the same time were taken in the direction of Popular Sovereignty:
“In the judgment of your committee, those measures [the compromises of 1850] were intended to have a far more comprehensive and enduring effect than the mere adjustment of the difficulties arising out of the recent acquisition of Mexican territory. They were designed to establish certain great principles, which would not only Furnish adequate remedies for existing evils, but, in all time to come, avoid the perils of a similar agita-tion, by withdrawing the question of slavery from the halls of Congress and the political arena, and commit-ting it to the arbitrament of those who were immediate-ly interested in and alone responsible for its conse-quences. With a view of conforming their action to the settled policy of the Government, sanctioned by the approving voice of the American people, your commit-tee have deemed it their duty to incorporate and perpe-tuate in their Territorial bill the principles and spirit of those measures."
After presenting and reviewing certain provi-sions of the bill, the committee conclude as follows:
“From these provisions it is apparent that the Com-promise measures of 1850 affirm and rest upon the fol-lowing propositions:
"First. That all questions pertaining to slavery in the Territories, and in the new States to be formed there-from, are to be left to the decision of the people residing therein by their appropriate representatives, to be chosen by them for that purpose.
"Second. That all cases involving title to slaves and questions of personal freedom are referred to the adju-dication of the local tribunals, with the right of appeal to the Supreme Court of the United States.
“Third. That the provision of the Constitution of the United States in respect to fugitives from service is to be carried into faithful execution in all the organized Territories the same as in the States. The substitute for the bill which your committee have prepared, and which is commended to the favorable action of the Se-nate, proposes to carry these propositions and princi-ples into practical operation, in the precise language of the Compromise Measures of 1850.”
On the 16th of January Senator Dixon, of Ken-tucky, gave notice of his purpose to move an amendment formally repealing the act of 1820, commonly known as the Missouri Compromise, and on the following day Mr. Sumner, of Massachusetts, gave notice of his intention to move an amend-ment expressly declaring that the Missouri Com-promise should continue to be of force over all the territory to which it had been applied at the date of its enactment. While these two opposing propo-sitions were pending, together with the bill report-ed by Mr. Douglas, the Government paper in this city commented on the whole subject as follows. We quote from the Washington Union of January 20, 1854.
“When a prominent Whig Senator like Mr. Dixon proposes to go beyond Judge Douglas, and beyond the Compromise of 1850, in showing his devotion to the rights of the South, it may not be out of order to remind our friends that in the great issue of 1850 the body of Mr. Dixon's political friends, especially at the North, were not prepared to go even as far as the Nebraska bill goes. But Mr. Dixon's amendment may serve to stir up ex-citement on one side, whilst Mr. Sumner's will effect the like object on the other; and, as Whigism and Aboli-tionism have nothing to gain and nothing to lose, the upshot may be that the agitation may inure to the bene-fit of the common opposition to the Democratic party. Prudence, patriotism, devotion to the Union, the interest of the Democratic party, all suggest that that public senti-ment which now acquiesces cheerfully in the principles of the Compromise of 1850 should not be inconsider-ately disturbed. The triumphant election of President Pierce shows that on this basis the hearts and the judg-ments of the people are with the Democracy. We may venture to suggest that it is well worthy of considera-tion whether a faithful adherence to the creed which has been so triumphantly endorsed by the people does not re-quire all good Democrats to hesitate and reflect maturely upon any proposition which any member of our party can object to as an interpolation upon that creed. In a word, it would be wise in all Democrats to consider whether it would not be safest to ‘let well enough alone.' To repeal the Missouri Compromise might, and according to our view would, clear the principle of Congressional non-intervention of all embarrassment; but we doubt whether the good thus promised is so important that it would be wise to seek it through the agitation which necessarily stands in our path. Upon a calm review of the whole ground we yet see no such reasons for disturbing the Compromise of 1820 as would induce us to advocate either of the amendments proposed to Mr. Douglas's bill.
On the 23d of January Mr. Douglas reported from the Committee on Territories a substitute for the Nebraska bill as already pending. The substi-tute provided for the establishment of two Terri-tories—one to be called Nebraska, and the other Kansas—and proposed to extend over them the Constitution and all laws of the United States, "except the 8th section of the act preparatory to the admission of Missouri into the Union, ap-proved March 6, 1820, which was superseded by the principles of the legislation of 1850, common-ly called the Compromise measures, and is declared inoperative."
It will be seen that by this language the Mis-souri Compromise was not repealed, but declared to have been repealed already. Notwithstanding the premonitions and misgiv-ings expressed by the official paper, and with a clear prospect of "the agitation which stood in their path,” the Democracy finally determined to commit themselves to the express repeal of the Missouri Compromise, for the reason, then no longer intimated, but explicitly declared, that the enactment of 1820 required to be made null and void in order to leave ample room and verge enough for the principles of the later com-promise to display their "far more comprehensive and enduring effect,” than was seen "in the mere adjustment of the difficulties arising out of the re-cent acquisition of Mexican territory." Accord-ingly, on the 6th of February, Mr. Douglas amend-ed his bill, as last reported, by providing for the textual repeal of the Missouri Compromise, as it now stands in the Kansas-Nebraska act. He has himself explained the motive of this amendment, as thus finally perfected, in the following extract, which we cite from his recent elaborate paper, on "The Dividing Line between Federal and Local Authority:"
“It having been suggested, with some plausibility, during the discussion of the bill, that the act of Congress of March 6, 1820, prohibiting slavery north of the paral-lel of 36° 30', would deprive the people of the Territory of the power of regulating the slavery question to suit themselves while they should remain in a Territorial condi-tion, and before they should have the requisite popula-tion to entitle them to admission into the Union as a State, an amendment was prepared by the chairman of the committee, and incorporated into the bill, to remove this obstacle to the free exercise of the principle of popular sovereignty in the Territory, while it remained in a Territorial condition, by repealing the said act of Congress, and de-claring the true intent and meaning of all the friends of the bill in these words:
“That the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said Territory as else-where within the United States, except the eighth sec-tion of the act preparatory to the admission of Missouri into the Union, approved March 6, 1820, which, being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognised by the legislation of 1850, commonly called the ‘Compromise measures,' is hereby declared inopera-tive and void—it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfect-ly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.'
“To which was added, on motion of Mr. Badger, the following:
“Provided, That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of the 6th of March, 1820, either protecting, establishing, or abolish-ing slavery.'"
If it was the purpose of Mr. Douglas in this amendment to remove an obstacle to the free exer-cise of the principle of popular sovereignty in the Territories, while they remained "in a Territorial condition," others supported the bill with equal warmth because they fancied themselves to have secured a safeguard against any Territorial legisla-tion inimical to slavery in the provision which ren-dered all such legislation "subject to the Constitu-sion of the United States," and in the additional provision, which was specially made for an appeal to the Courts of the United States in case slave property should be attacked by the Territorial Le-gislature. The views of the latter class are repre-sented in the subjoined remarks made by Mr. Sen-ator Mason, in support of the Kansas-Nebraska bill, on the 25th of May, 1854:
“Then, Mr. President, where do we stand? Here is a bill repealing and forever annulling a measure always odious to the South, and offensive to its honor, volunta-rily brought forward from a quarter where the majority resides; and it the South to reject it because it contains also an incidental policy on a different principle, which we do not approve? For one, sir, with a clear unhesitating judgment, I answer, NO !
“Mr. President, I am not going to discuss this ques-tion of squatter sovereignty, on which my honorable friend from Michigan (Mr. Cass) appears to be so very sensitive. I do not recognise the inhabitants of a Ter-ritory as a political community at all. The very act of Congress which provides a government for the Territory is a negation of the right of the inhabitants to do it for themselves. They are mere occupants of the public do-main—nothing else. And it has been only because Con-gress deemed it expedient to give them a right of legis-lation, reserving to itself a power of revision, that the Territories have any political existence whatever. But when Congress delegates the power to them, it is a mere dele-gation, and how Congress measures it out is a matter of ex-pediency, not of principle And from the experience which the Southern States have had of the tendencies of Congress heretofore, on the subject of slavery, I do not know that we may not quite as safely trust the people, come from where they may, as the Congress of the United States, with that institution.
“I say, then, Mr. President, to sum up, this bill is objectionable in some of its features, it is true. It is ob-jectionable in that feature of it, for one, which does not deny to the people the right to legislate on the subject of slavery. It is also objectionable in that clause of it which pro-vides that foreigners—those not naturalized—shall par-ticipate in the political power of the Territory. These, however, are questions of expediency alone. There is no principle, far less any constitutional law, involved in them; and if we can get the other and higher principle established on your statute book, that henceforth power is denied to the Congress of the United States to legislate for the exclusion of slavery by yielding the question of expediency, I do not think we shall be rebuked for a bad bargain."—(See Appen-dix Congressional Globe, 1st Sess , 33d Cong , vol. 31, p. 774.)
It will thus be seen that the advocates of "the great healing measure" were not agreed as to its purport and significance. How these differences were postponed and where they were relegated for settlement is explained in the following extract from the remarks made on the subject by Mr. Sen-ator Hunter on the 24th of February, 1854:
“The bill provides that the Legislatures of these Ter-ritories shall have power to legislate over all rightful subjects of legislation consistently with the Constitution. And if they should assume powers which are thought to be inconsistent with the Constitution, the courts will decide that question wherever it may be raised. There is a differ-ence of opinion among the friends of this measure as to the extent of the limits which the Constitution imposes upon the Territorial Legislature. This bill proposes to leave these differences to the decision of the courts. To that tribunal I am willing to leave this decision, as it was once before proposed to be left by the celebrated com-promise of the Senator from Delaware, (Mr. Clayton,) a measure which, according to my understanding, was the best compromise which was offered upon the subject of slavery. I say, then, that I am willing to leave this point, upon which the friends of the bill are at difference, to the decision of the courts."—(See Appendix Cong. Globe, 1st session, 33 Cong., vol. 31, p. 224.)
If, then, the friends of the measure were thus at variance in its interpretation, what was the com-mon advantage which both professed to promise themselves and the country from the passage of the bill? We answer that it was the total and sempi-ternal banishment of the subject of slavery from the halls of Congress. This we were told by all would be the beneficent consequence of the bill. There might, indeed, be turmoil in the Territories under the operation of the new system, but if there was to be contention over slavery any where, it was better that the unseemly strife should be localized than that the whole nation should be set by the ears every time a new Territory was to be opened for occupation. How well this promise has been realized can be learned from a perusal of Congres-sional debates during the last few years.
In 1850, when Congress, rent by its dissensions, was unable to reach any solution of the question raised in relation to the territory acquired from Mexico, without exciting to a dangerous degree the sensibilities of the one section or the other, the expedient of Territorial sovereignty, in a dis-guised shape, was adopted as a way of escape from what was found an inextricable dilemma. The spirit of compromise had for a time fled from the National Councils, and Congress, after first abdi-cating, ended by delegating and parcelling out its sovereignty to the people in the Territories. It was under these circumstances that Mr. Clay then counselled as follows:
“The true principle which ought to regulate the ac-tion of Congress in forming Territorial governments for each newly-acquired domain is to refrain from all legis-lation on the subject of slavery in the Territory acquired so long as it retains the Territorial form of government, leav-ing it to the people of such Territory, when they have attained to such a condition which entitles them to ad-mission as a State, to decide for themselves the question of the allowance or prohibition of domestic slavery."
While the Kansas-Nebraska bill was pending we have seen that its friends were unable to agree as to its true meaning, but they decided to submit their differences to the arbitration of the courts, which were accordingly left to ascertain and deter-mine the ultimate character and scope of this enactment. The effects subsequently held to flow from this arrangement will be considered in the concluding article of this series on Tuesday next.
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