Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

[130] the grant can, of course, be no greater in a territory than in a State, and it necessarily follows that this clause of the Constitution confers on Congress no general power of legislation, either within States or territories.

It is not a satisfactory reply to this argument to say that such a power has, to some extent, been exercised. Is it better to acquiesce in and extend the usurpation than to put a stop to it, as in the case of the United States bank, by bringing the Government back to the constitutional test? Which is safest for the South, the constitutional principle that Congress shall not legislate for the Territories at all, or the adoption of a principle unknown to the Constitution, which, in its general application, would not only defeat the object it is advanced to promote, but would enable the free State majority to surround the slaveholding States and encircle the Union with an empire outside of the organized States, over which the majority should exercise the power of unlimited and exclusive legislation? If such an idea be chimerical, the apprehension is not chimerical that the black republicans, should they acquire the control of all branches of the Government, will use the claim now set up for Congressional legislation over one species of property in the territories, as an apology for assuming the power of general legislation, involving the power to destroy as well as to protect.

It by no means follows that the people who may occupy a territory of the United States constitute an independent community with all the attributes of sovereignty. Though the Constitution of the United States does not apply to them, they live under another constitution of powers perhaps more limited. I mean the paramount law of necessity. They are in the condition of bands of hunters or miners located in the wilderness, who may adopt such rules and regulations as may be absolutely necessary for the protection of persons and property, until Congress acknowledges their independence by admitting them in the Union on the same footing with the original States. At that moment, and not before, the powers of a limited sovereignty accrued to them, and may be exercised to protect or destroy local institutions which may have grown up while the legislative power was limited to the absolute necessities of the occasion. If it be said, that the law of necessity may be transcended and regulations adopted to destroy some kinds of property instead of protecting it, I answer that such regulations would be an assumption of power not justified by the law of necessity, analogous to usurpations of power in organized communities, remediless perhaps, but for that reason none the less unjust.

If this be not the true theory in relation to our territories, when does sovereignty therein begin? Is the first settler a sovereign? Does sovereignty accrue when there are ten, or one hundred, or one thousand, or ten thousand settlers? Where shall we draw the line and pronounce that on this side the settlers live under the law of necessity, and on that they become rightfully sovereign?

The Constitution of the United States was not made for territories, but for States, as its name implies. It has, by strict rules of construction, nothing to do with territories outside of the States united, beyond the protection and disposition of the common property therein. It seems to contemplate that the territories shall be left to themselves until they have a population adequate to the formation of a respectable community, when their independence should be acknowledged and their admission into the Union granted on the sole condition that they adopt a republican government.

But if there be a doubt as to the power of Congress to legislate for the territories, is it not safer and more consistent with democratic principles to deny the power than to assume it? Some of the original States, when admitted into the Union, had not the population of a third-rate city of the present day, and no harm would be likely to arise by leaving the territories to themselves until they have doubled the population of Delaware or Rhode Island in 1780. But would it not be incomparably better to admit them into the Union as States, with a much less population, than to leave them to be a bone of contention among demagogues and disunionists, disturbing every essential interest of the country and jeopardizing the union of the existing States?

Let us briefly consider the practical workings of the remedy for Southern wrongs, which you suggest, in case a black republican is elected to the presidency. You ask, “Is it wise, if we do not intend to submit to such consequences, to allow a black republican President to be inaugurated,” &c., and you say, “If the South should think upon this subject as I do, no black republican President should ever execute any law within her borders unless at the point of the bayonet, and over the dead bodies of her slain sons.”

I know there are men in the South who would sacrifice their lives and endanger the communities in which they live, upon a point of honor, and that such men often fire up with unwonted fierceness if reminded of the probable consequences of their own rashness. But the time has come when consequences should be looked in the face, not for purposes of defiance, but that we may consider whether the policy which would lead to them is required by Southern interests or honor.

How do you propose to prevent the inauguration of a black republican President, should such an one be unfortunately elected? Will you come to this city with an armed force, and attempt to prevent an inauguration by violence? In that event force would be met by force, and there would be instant civil war, in which the country and the world would declare the South to be the aggressor.

He would be inaugurated, here or elsewhere,