[490]
Appendix F
speech of Davis of Mississippi in the Senate of the United States, on the resolutions offered by him relative to the relations of the states, the federal government, and the territories, May 7, 1860.Mr. President: Among the many blessings for which we are indebted to our ancestry is that of transmitting to us a written Constitution; a fixed standard to which, in the progress of events, every case may be referred, and by which it may be measured. But for this, the wise men who formed our Government dared not have hoped for its perpetuity; for they saw, floating down the tide of time, wreck after wreck, marking the short life of every republic which had preceded them. With this, however, to check, to restrain, and to direct their posterity, they might reasonably hope the Government they founded should last for ever; that it should secure the great purposes for which it was ordained and established; that it would be the shield of their posterity equally in every part of the country, and equally in all time to come. It was this which mainly distinguished the formation of our Government from those confederacies or republics which had preceded it; and this is the best foundation for our hope to-day. The resolutions which have been read, and which I had the honor to present to the Senate, are little more than the announcement of what I hold to be the clearly-expressed declarations of the Constitution itself. To that fixed standard it is sought, at this time, when we are drifting far from the initial point, and when clouds and darkness hover over us, to bring back the Government, and to test our condition to-day by the rules which our fathers laid down for us in the beginning. The differences which exist between different portions of the country, the rivalries and the jealousies of to-day, though differing in degree, are exactly of the nature of those which preceded the formation of the Constitution. Our fathers were aware of the different interests of the navigating and planting States, as they were then regarded. They sought to compose those difficulties, and, by compensating advantages given by one to the other, to form a Government equal and just in its operation, and which, like the gentle showers of heaven, should fall twice blessed, blessing him that gives and him that receives. This beneficial action and reaction between the different interests of the country constituted the bond of union and the motive of its formation. They constitute it to-day, if we are sufficiently wise to appreciate our interests, and sufficiently faithful to observe our trust. Indeed, with the extension of territory, with the multiplication of interests, with the varieties, increasing from time to time, of the products of this great country, the bonds which bind the Union together should have increased. Rationally considered, they have increased, because the free trade which was established in the beginning has now become more valuable to the people of the United States than their trade with all the rest of the world. I do not propose to argue questions of natural rights and inherent powers. I plant my reliance upon the Constitution; that Constitution which you have all sworn to support; that Constitution which you have solemnly pledged yourself to maintain while you hold the seat you now occupy in the Senate; to which you are bound in its spirit and in its letter not grudgingly, but willingly, to render [491] your obedience and support as long as you hold office under the Federal Government. When the tempter entered the garden of Eden and induced our common mother to offend against the law which God had given to her through Adam, he was the first teacher of that “higher law” which sets the will of the individual above the solemn rule which he is bound, as a part of every community, to observe. From the effect of the introduction of that higher law in the garden of Eden, and the fall consequent upon it, came sin into the world; and from sin came death and banishment and subjugation, as the punishment of sin; the loss of life, unfettered liberty, and perfect happiness followed from that first great law which was given by God to fallen man. Why, then, shall we talk about natural rights? Who is to define them? Where is the judge who is to sit over the court to try natural rights? What is the era at which you will fix the date by which you will determine the breadth, the length, and the depth of those called the rights of nature? Shall it be after the fall, when the earth was covered with thorns, and man had to earn his bread in the sweat of his brow? Or shall it be when there was equality between the sexes, when he lived in the garden, when all his wants were supplied, and when thorns and thistles were unknown on the face of the earth? Shall it be then? Shall it be after the flood, when, for the first sin committed after the waters retired from the face of the earth, the doom of slavery was fixed upon the mongrel descendants of Ham? If after the flood, and after that decree, how idle is all this prating about natural rights as standing above the obligations of civil government! The Constitution is the law supreme to every American. It is the plighted faith of our fathers; it is the hope of our posterity. I say, then, I come not to argue questions outside of or above the Constitution, but to plead the cause of right, of law and order, under the Constitution, and to plead it to those who have sworn to abide by that obligation. One of the fruitful sources, as I hold it, of the errors which prevail in our country, is the theory that this is a Government of one people; that the Government of the United States was formed by a mass. The Government of the United States is a compact between the sovereign members who formed it; and, if there be one feature common to all the colonies planted upon the shores of America, it is desire for community independence. It was for this the Puritan, the Huguenot, the Catholic, the Quaker, the Protestant, left the land of their nativity, and, guided by the shadows thrown by the fires of European persecution, they sought and found the American refuge of civil and religious freedom. While they existed as separate and distinct colonies they were not forebearing toward each other. They oppressed opposite religions. They did not come here with the enlarged idea of no established religion. The Puritans drove out the Quakers; the Church-of-England men drove out the Catholics. Persecution reigned through the colonies, except, perhaps, that of the Catholic colony of Maryland; but the rule was—persecution. Therefore, I say the common idea, and the only common idea, was community independence—the right of each independent people to do as they pleased in their domestic affairs. The Declaration of Independence was made by the colonies, each for itself. The recognition of their independence was not for the colonies united, but for each of the colonies which had maintained its independence; and so, when the [492] Constitution was formed, the delegates were not elected by the people en masse, but they came from each one of the States; and when the Constitution was formed it was referred, not to the people en masse, but to the States severally, and severally by them ratified and approved. But, if there be anything which enforces this idea more than another, it is the unequal dates at which it received this approval. From first to last, nearly two years and a half elapsed; and the Government went into operation something like a year—I believe more than a year—before the last ratification was made. Is it then contended that, by this ratification and adoption of the Constitution, the States surrendered that sovereignty which they had previously gained? Can it be that men who braved the perils of the ocean, the privations of the wilderness, who fought the war of the Revolution, in the hour of their success, when all was sunshine and peace around them, came voluntarily forward to lay down that community independence for which they had suffered so much and so long? Reason forbids it; but, if reason did not furnish a sufficient answer, the action of the States themselves forbids it. The great State of New York—great, relatively, then, as she is now—manifested her wisdom in not receiving merely that implication which belongs to the occasion, which was accepted by the other States, but she required the positive assertion of that retention of her sovereignty and power over all her affairs as the condition on which she ratified the Constitution itself. I read from Elliott's Debates (page 327). Among her resolutions of ratification is the following: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remain to the people of the several States, or to their respective State governments to which they may have granted the same.” North Carolina, with the Scotch caution which subsequent events have so well justified, in 1788 passed this resolution: “Resolved, That a declaration of rights, asserting and securing from encroachments the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of Government, ought to be laid before Congress and the convention of the States that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid, on the part of the State of North Carolina.” And in keeping with this North Carolina withheld her ratification; she allowed the Government to be formed with the number of States which was required to put it in operation, and still she remained out of the Union, asserting and recognized in the independence which she had maintained against Great Britain, and which she had no idea of surrendering to any other power; and the last State which ratified the Constitution long after it had in fact gone into effect, Rhode Island, in the third of her resolutions, says: “III. That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness. That the rights of the States respectively to nominate and appoint all State officers, and every other power, jurisdiction, and right, which is not by the said Constitution clearly delegated to [493] the Congress of the United States, or the departments of Government thereof, remain to the people of the several States, or their respective State governments to whom they may have granted the same.” Here the use of the phrase “State governments” shows how utterly unwarrantable the construction has been, to say that the reference here was to the whole people of the States—to the people of all the States—and not to the people of each of the States severally. I spoke, however, Mr. President, but a moment ago, of the difference of politics, products, population, constituting the great motive for the Union. It was, indeed, its necessity. Had all the people been alike—had their institutions all been the same—there would have been no interest to bring them together; there would have been no cause or necessity for any restraint being imposed upon them. It was the fact that they differed which rendered it necessary to have some law governing their intercourse. It was the fact that their products were opposite—that their pursuits were various—that rendered it the great interest of the people that they should have free trade existing among each other; that free trade which Franklin characterized as being between the States such as existed between the counties of England. Since that era, however, a fiber then unknown in the United States, and the production of which is dependent upon the domestic institution of African slavery, has come to be cultivated in such amounts, to enter so into the wearing apparel of the world, so greatly to add to the comfort of the poor, that it may be said to-day that that little fiber, cotton, wraps the commercial world and binds it to the United States in bonds to keep the peace with us which no Government dare break. It has built up the Northern States. It is their great manufacturing interest to-day. It supports their shipping abroad. It enables them to purchase in the markets of China, when the high premium to be paid on the milled dollar would otherwise exclude them from that market. These are a part of the blessings resulting from that increase and variety of product which could not have existed if we had all been alike; which would have been lost to-day unless free trade between the United States was still preserved. And here it strikes me as somewhat strange that a book recently issued has received the commendation of a large number of the representatives of the manufacturing and commercial States, though, apart from its falsification of statistics and low abuse of Southern States, institutions, and interests, the great feature which stands prominently out from it is the arraignment of the South for using their surplus money in buying the manufactures of the North. How a manufacturing and commercial people can be truly represented by those who would inculcate such doctrines as these, is to me passing strange. Is it vain boasting which renders you anxious to proclaim to the world that we buy our buckets, our rakes, and our shovels from you? No, there is too much good sense in the people for that; and, therefore, I am left at a loss to understand the motive, unless it be that deep-rooted hate which makes you blind to your own interest when that interest is weighed in the balance with the denunciation and detraction of your brethren of the South. The great principle which lay at the foundation of this fixed standard, the Constitution of the United States, was the equality of rights between the States. This was essential; it was necessary; it was a step which had to be taken first, [494] before any progress could be made. It was the essential requisite of the very idea of sovereignty in the State; of a compact voluntarily entered into between sovereigns; and it is that equality of right under the Constitution on which we now insist. But more: when the States united they transferred their forts, their armament, their ships, and their right to maintain armies and navies, to the Federal Government. It was the disarmament of the States, under the operation of a league which made the warlike operations, the powers of defense, common to them all. Then, with this equality of the States, with this disarmament of the States, if there had been nothing in the Constitution to express it, I say the protection of every constitutional right would follow as a necessary incident, and could not be denied by any one who could understand and would admit the true theory of such a Government. We claim protection, first, because it is our right; secondly, because it is the duty of the General Government; and, thirdly, because we have entered into a compact together, which deprives each State of the power of using all the means which it might employ for its own defense. This is the general theory of the right of protection. What is the exception to it? Is there an exception? If so, who made it? Does the Constitution discriminate between different kinds of property? Did the Constitution attempt to assimilate the institutions of the different States confederated together? Was there a single State in this Union that would have been so unfaithful to the principles which had prompted them in their colonial position, and which had prompted them, at a still earlier period, to seek and try the temptations of the wilderness; is there one which would have consented to allow the Federal Government to control or to discriminate between her institutions and those of her confederate States? But, if it be contended that this is argument, and that you need authority, I will draw it from the fountain; from the spring before it had been polluted; from the debates in the formation of the Constitution; from the views of those who at least it will be admitted understood what they were doing. Mr. Randolph, it will be recollected, introduced a projet for a Government, consisting of a series of resolutions. Among them was one which proposed to give Congress the power “to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” That was, to give Congress the power to coerce the States; to bring the States into subjection to the Federal Government. Now, sir, let us see how that was treated; and first I will refer to one whose wisdom, as we take a retrospective view, seems to me marvelous. Not conspicuous in debate, at least not among the names which first occur when we think of that bright galaxy of patriots and statesmen, he was the man who, above all others, it seems to me, laid his finger upon every danger, and indicated the course which that danger was to take. I refer to Mr. Mason. “Mr. Mason observed, not only that the present Confederation was deficient in not providing for coercion and punishment against delinquent States, but argued very cogently that punishment could not, in the nature of things, be executed on the States collectively; and, therefore, that such a Government was necessary as could directly operate on individuals, and would punish those only whose guilt required it.”1 [495] Mr. Madison, who has been called sometimes the father of the Constitution, upon the same question, said: “A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” Mr. Hamilton, who, if I were to express a judgment by way of comparison, I would say was the master intellect of the age in which he lived, whose mind seemed to penetrate profoundly every question with which he grappled, and who seldom failed to exhaust the subject which he treated—Mr. Hamilton, in speaking of the various powers necessary to maintain a Government, came to clause four: “4. Force, by which may be understood a coercion of laws, or coercion of arms. Congress have not the former, except in few cases. In particular States, this coercion is nearly sufficient; though he held it, in most cases not entirely so. A certain portion of military force is absolutely necessary in large communities. Massachusetts is now feeling this necessity, and making provision for it. But how can this force be exerted on the States collectively? It is impossible. It amounts to a war between the parties. Foreign powers, also, will not be idle spectators. They will interpose; the confusion will increase; and a dissolution of the Union will ensue.” The consequence was, the proposition was lost. In support of this same idea of community independence, which I have suggested, the argument upon the proposition least likely to have exhibited it, that to give power to restrain the slave-trade, shows the Northern and Southern men all arguing and presenting different views, yet concurred in this, that there could be no power to restrain a State from importing what she pleased. As the Senator from Vermont [Mr. Collamer] looks somewhat surprised at my statement, I will refer to the authority. Mr. Rutledge said: “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers.”2 Mr. Pinckney: “South Carolina can never receive the plan if it prohibits the slave-trade. In every proposed extension of the powers of Congress, that State has expressly and watchfully excepted that of meddling with the importation of negroes. If the States be all left at liberty on this subject, South Carolina may, perhaps, by degrees, do of herself what is wished, as Virginia and Maryland already have done.”3 “Mr. Sherman was for leaving the clause as it stands. He disapproved of the slave-trade; yet, as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, and as it was expedient [496] to have as few objections as possible to the proposed scheme of government, he thought it best to leave the matter as we find it.”4 Mr. Baldwin had conceived national objects alone to be before the Convention: not such as, like the present, were of a local nature. Georgia was decided on this point. That State has always hitherto supposed a General Government to be the pursuit of the central States, who wished to have a vortex for everything; that her distance would preclude her from equal advantage; and that she could not prudently purchase it by yielding national powers. From this, it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. “If left to herself, she may probably put a stop to the evil. As one ground for this conjecture, he took notice of the sect of ——, which, he said was a respectable class of people who carried their ethics beyond the mere equality of men, extending their humanity to the claims of the whole animal creation.”5 “Mr. Gerry thought we had nothing to do with the conduct of the States as to slaves, but ought to be careful not to give any sanction to it.”6 “Mr. King thought the subject should be considered in a political light only. If two States will not agree to the Constitution, as stated on one side, he could affirm with equal belief, on the other, that great and equal opposition would be experienced from the other States. He remarked on the exemption of slaves from duty, while every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the Northern and Middle States.”7 Here, as will be observed, everywhere was recognized and admitted the doctrine of community independence and State equality—no interference with the institutions of a State—no interference even prospectively save and except with their consent; and thus it followed that at one time it was proposed to except, from the power to prohibit the further introduction of Africans, those States which insisted upon retaining the power; and finally it was agreed that a date should be fixed beyond which, probably, none of them desired to retain it. These were States acting in their sovereign capacity; they possessed power to do as they pleased; and that was the view which they took of it. I ask, then, how are we, their descendants, those holding under their authority, to assume a power which they refused to admit, upon principles eternal and lying at the foundation of the Constitution itself? If, then, there be no such distinction or discrimination; if protection be the duty (and who will deny it?) with which this Government is charged, and for which the States pay taxes, because of which they surrendered their armies and their navies; if general protection be the general duty, I ask, in the name of reason and constitutional right—I ask you to point me to authority by which a discrimination is made between slave-property and any other. Yet this is the question now fraught with evil to our country. It is this which has raised the hurricane threatening to sweep our political institutions before it. This is the dark spot which some already begin to fear may blot out the constellation of the Union from the political firmament of mankind. Does it not become us, then, calmly to consider it, justly to [497] weigh it; to hold it in balances from which the dust has been blown, in order that we may see where truth, right, and the obligations of the Constitution require us to go? It may be pardoned to one who, from his earliest youth up, has been connected with a particular party, who has always believed that the welfare and the safety of the country most securely rested with that party, who has seen in the triumph of Democracy the triumph of the Union, and who has believed for years past that the downfall of Democracy would be its destruction—it may be pardoned, I say, under such circumstances as these, to such a person as that, to refer even in this connection to that feature of the particular point which I am discussing, which has been brought forward by the recent action of that party. States met together to consult as brethren, to see whether they could agree as well upon the candidate as upon the creed, and it was apparent that division had entered into our ranks. After days of discussion, we saw that party convention broken. We saw the enemies of Democracy waiting to be invited to its funeral, and jestingly looking into the blank faces of those of us to whom the telegraph brought the sad intelligence. I hope this is, however, but the mist of the morning. I have faith in the Democracy, and that it still lives. I have faith in the patriotism and in the good sense of the Democracy, that they will assert the truth, boldly pronounce it, meet the issue, and I trust in the good sense and patriotism of the people for their success. In this connection, it may be permissible to review our present party condition. For a long time two parties divided the people of the United States. The controversy was mainly upon questions of expediency; sometimes of constitutionality. They divided men in all of the States. The contest was sometimes won by one, and sometimes by the other. The Whig party lives now but in history, yet it has a history of which any of its members may be proud. It bore the high but not successful part of stemming the tide of popular impulse, and thus failed to attain the highest power. Differing from them upon the points at issue, I offer the homage of my respect to those who, adhering to what they believed to be true, go down sooner than find success in the abandonment of principle. With the disappearance of that party—and perhaps for the very reasons that caused its disappearance—up rose radical organizations who strode so far beyond progressive Democracy that Democracy took the place now left vacant by the old Whig party, and became the reservoir into which all conservatism was poured. Therefore it is that so many of those men, eminent in their day, eminent for their services, eminent in their history, have approved of the Democratic party in the present condition of the country as the only conservative element which remains in our politics. In the midst of this radicalism, of this revolutionary tendency, it becomes not the regret of a partisan merely; it is the sadness of an American citizen, that the party on which the conservative hopes of the country hang has been threatened with division, and possibly may not hereafter be united. Thanks to a sanguine temperament, thanks to an abiding faith, thanks to a confidence in the Providence which has so long ruled for good the destiny of my country, I believe it will reunite, and reunite upon sound and acceptable principles. At least, I hope so. From the postulates which I have laid down result the fourth and fifth resolutions. They are the two which I expect to be opposed. They contain the assertion of the equality of rights of all the people of the United States in the Territories, [498] and they declare the obligation of the Congress to see these rights protected. I admit that the United States may acquire eminent domain. I admit that the United States may have sovereignty over territory; otherwise the sovereign jurisdiction which we obtained by conquest or treaty would not pass to us. I deny that their agent, the Federal Government, under the existing Constitution, can have eminent domain; I deny that it can have sovereignty. I consider it as the mere agent of the States—an agent of limited power; and that it can do nothing save that which the Constitution empowers it to perform; and that, though the treaty or the deed of cession may direct or control, it can not enlarge or expand the powers of the Congress; that it is not sovereign in any essential particular. It has functions to perform, and those functions I propose now to consider. The power of Congress over the Territories—a subject not well defined in the Constitution of the United States—has been drawn from various sources by different advocates of that power. One has found it in the grant of power to dispose of the Territory and other public property. That is to say, because the agent was authorized to sell a particular thing, or to dispose of it by grant or barter, therefore he has sovereign power over that and all else which the principal, constituting him an agent, may hereafter acquire! The property, besides the land, consisted of forts, of ships, of armaments, and other things which had belonged to the States in their separate capacity, and were turned over to the Government of the Confederation, and transferred to the Government of the United States, and of this, together with the land so transferred, the Federal Government had the power to dispose; and of territory thereafter acquired, of arms thereafter made or purchased, of forts thereafter constructed, or custom-houses, or docks, or lights, or buoys; of all these, of course, it had power to dispose. It had the power to create them; it must, of necessity, have had the power to dispose of them. It was only necessary to confer the power to dispose of those things which the Federal Government did not create, of those things which came to it from the States, and over which they might signify their will for its control. I look upon it as the mere power to dispose of, for considerations and objects defined in the trust, the land held in the United States, none of which then was within the limits of the States, and the other public property which the United States received from the States after the formation of the Union. I do not agree with those who say the Government has no power to establish a temporary and civil government within a Territory. I stand half-way between the extremes of squatter sovereignty and of Congressional sovereignty. I hold that the Congress has power to establish a civil government; that it derives it from the grants of the Constitution—not the one which is referred to; and I hold that that power is limited and restrained, first, by the Constitution itself, and then by every rule of popular liberty and sound discretion, to the narrowest limits which the necessities of the case require. The Congress has power to defend the territory, to repel invasions, to suppress insurrection; the Congress has power to see the laws executed. For this it may have a civil magistracy—territorial courts. It has the power to establish a Federal judiciary. To that Federal judiciary, from these local courts, may come up to be decided questions with regard to the laws of the United States and the Constitution of the United States. These, combined, give power to establish a temporary government, sufficient, perhaps, for the simple wants of the inhabitants of a Territory, until they shall acquire the population, until they shall have the [499] resources and the interests which justify them in becoming a State. I am sustained in this view of the case by an opinion of the Supreme Court of the United States in 1845, in the case of Pollard's Lessee vs. P. Hagan (3 Howard, 222, 223), in which the court say: “Taking the legislative acts of the United States, and the States of Virginia and Georgia, and their deeds of cession to the United States, and giving to each separately, and to all jointly, a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the United States with the eminent domain of the country ceded, both national and municipal, for the purposes of temporary government; and to hold it in trust for the performance of the stipulations and conditions expressed in the deeds of cession and the legislative acts connected with them.” This was a question of land. It was land lying between high and low water, over which the United States claimed to have and to exercise authority, because of the terms on which Alabama had been admitted into the Union. In that connection the Court say, in the same case: “When Alabama was admitted into the Union, on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States for the temporary purpose provided for in the deeds of cession and the legislative acts connected with it. Nothing remained in the United States, according to the terms of the agreement, but the public lands; and if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative; because the United States has no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain within the limits of a State or elsewhere, except in the cases in which it is expressly granted.” Another case arose not long afterward, in which not land, but religion, was involved, where suit was brought against the municipality of New Orleans because they would not allow a dead body to be exposed at a place where, according to the religious rites of those interested, it was deemed they had a right thus to expose it. On that the Supreme Court say, speaking of the ordinance for the government of Louisiana: “So far as they conferred political rights and secured civil and religious liberties (which are political rights) the laws of Congress were all suspended by the State Constitution; nor is any part of them in force, unless they were adopted by the Constitution of Louisiana, as laws of the State.”8 Thus we find the Supreme Court sustaining the proposition that the Federal Government has power to establish a temporary civil government within the limits of a Territory, but that it can enact no law which will endure beyond the temporary purposes for which such government was established. In other cases the decisions of the Court run in the same line; and in 1855 the then Attorney-General, most learned in his profession—and in what else is he not learned, for he may be said to be a man of universal acquirements?—Attorney-General Cushing [500] then foretold what must have been the decision of the Supreme Court on the Missouri Compromise, anticipating the decision subsequently made in the case of Dred Scott; that decision for which the venerable justices have been so often and so violently arraigned. He foretold it as the necessary consequence from the line of precedents descending from 1842, affirmed and reaffirmed in different cases, and now bearing on a case similar in principle, and only different in the mere reference to the subject involved from those which had gone before. As connected with the decision which had agitated the peace of the country; as the anticipation of that decision before it was made, viewing it as the necessary consequence of the decision the court had made before; if it be the pleasure of the Senate, I ask my friend from South Carolina [Mr. Chesnut] to read for me a letter of the Attorney-General, being an official answer made by him in relation to the military reservation which was involved in the question before him. Mr. Chesnut read from the “Opinions of the Attorneys-General,” vol. VII, page 575: The Supreme Court has determined that the United States never held any municipal sovereignty, jurisdiction, or right of soil in the territory of which any of the new States have been formed, except for temporary purposes, and to execute the trusts created by the deeds of cession. . . . “By the force of the same principle, and in the same line of adjudications, the Supreme Court would have had to decide that the provision of the act of March 6, 1820, which undertakes to determine in advance the municipal law of all that portion of the original province of Louisiana which lies north of the parallel 36° 30′ north latitude, was null and void ab incepto, if it had not been repealed by a recent act of Congress. (Compare IV, Statutes at Large, p. 848, and x, Statutes at Large, p. 289.) For an act of Congress which pretends of right, and without consent of compact, to impose on the municipal power of any new State or States limitations and restrictions not imposed on all, is contrary to the fundamental condition of the Confederation, according to which there is to be equality of right between the old and new States ‘in all respects whatsoever.’ ” Mr. Davis: It was not long after this official opinion of the Attorney-General before the case arose on which the decision was made which has so agitated the country. Fortunate indeed was it for the public peace that land and religion had been decided—those questions on which men might reason had been the foundation of judicial decision—before that which drives all reason, it seems, from the mind of man, came to be presented the question whether Cuffee should be kept in his normal condition or not; the question whether the Congress of the United States could decide what might or might not be property in a Territory—the case being that of an officer of the army sent into a Territory to perform his public duty, having taken with him his negro slave. The court, however, in giving their decision in this case—or their opinion, if it suits gentlemen better—have gone into the question with such clearness, such precision, and such amplitude, that it will relieve me from the necessity of arguing it any further than to make a reference to some sentences contained in that opinion. And here let me say, I can not see how those who agreed on a former occasion that the constitutional right of the slaveholder to take his property into the Territory—the constitutional power of the Congress and the constitutional power of the Territory to legislate upon that subject—should be a judicial question, can now attempt to escape [501] the operation of an opinion which covers the exact political question which, it was known beforehand, the Court would be called upon to decide. Decided in strictness of technical language, it was known it could not be. Hundreds, thousands, a vast variety of cases may arise, and centuries elapse, and leave that Court if our Union still exists, deciding questions in relation to that character of property in the Territories; but the great and fundamental idea was that, after thirty years of angry controversy, dividing the people and paralyzing the arm of the Federal Government, some umpire should be sought which would compose the difficulty and set it upon a footing to leave us in future to proceed in peace; and that umpire was selected which the Constitution had provided to decide questions of law. I ask my friend to read some extracts from the decision. Mr. Chesnut read as follows, from the case of Dred Scott vs. Sandford, pp. 55-57: The Territory being a part of the United States, the Government and the citizen both entered it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved. . . . The powers over person and property, of which we speak, are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those 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 can not 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. . . . And if the Constitution recognizes the right of property of the master in the 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 distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government. . . . This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave-property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights. “Upon these considerations, it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind, in the territory of the United States north of the line therein mentioned, is [502] not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory, even if they had been carried there by the owner, with the intention of becoming a permanent resident.” Mr. Davis: Here, then, Mr. President, I say the umpire selected as the referee in the controversy has decided that neither the Congress nor its agent, the territorial government, has the power to invade or impair the right of property within the limits of a Territory. I will not inquire whether it be technically a decision or not. It was obligatory on those who selected the umpire and agreed to abide by the award. It is well known to those who have been associated with me in the two Houses of Congress that, from the commencement of the question, I have been the determined opponent of what is called squatter sovereignty. I never gave it countenance, and I am now least of all disposed to give it quarter. In 1848 it made its appearance for good purposes. It was ushered in by a great and good man. He brought it forward because of that distrust which he had in the capacity of the Government to bear the rude shock to which it was exposed. His apprehension, no doubt, to some extent sharpened and directed his patriotism, and his reflection led him to a conclusion to which, I doubt not, to-day he adheres as tenaciously as ever; but from which it was my fortune, good or ill, to dissent when his letter was read to me in manuscript—I being, together with some other persons, asked, though not by the writer, whether or not it should be sent. At the first blush I believed it to be a fallacy—a fallacy fraught with mischief; that it escaped an issue which was upon us which it was our duty to meet; that it escaped it by a side path, which led to a greater danger. I thought it a fallacy which would surely be exploded. I doubted then, and still more for some time afterward, when held to a dread responsibility for the position which I occupied. I doubted whether I should live to see that fallacy exploded. It has been more speedily, and, to the country, more injuriously than I anticipated. In the mean time, what has been its operations? Let Kansas speak—the first great field on which the trial was made. What was then the consequence? The Federal Government withdrawing control, leaving the contending sections, excited to the highest point upon this question, each to send forth its army, Kansas became the battle-field, and Kansas the cry, which well nigh led to civil war. This was the first fruit. More deadly than the fatal upas, its effect was not limited to the mere spot of ground on which the dew fell from its leaves, but it spread throughout the United States; it kindled all which had been collected for years of inflammable material. It was owing to the strength of our Government and the good sense of the quiet masses of the people that it did not wrap our country in one widespread conflagration. What right had Congress then, or what right has it now, to abdicate any power conferred upon it as trustee of the States? What right had Congress then, or has it now, to shrink from the performance of a duty because the mere counters spread on the table may be swept off, when they have not answered the purpose for which they were placed? What is it to you, or me, or any one, when we weight our own continuation in place against the great interests of which we are conservators; against the welfare of the country, and the liberty of our posterity to the remotest ages? What is it, I say, which can be counted in the balance on our side against the performance of that duty which is imposed upon us? If any one believes [503] Congress has not the constitutional power, he acts conscientiously in insisting upon Congress not usurping it. If any one believes that the squatters upon the lands of the United States within a Territory are invested with sovereignty, having won it by some of these processes unknown to history, without grant, or without revolution, without money and without price, he, adhering to the theory, may pursue it to its conclusion. To the first class, who claim sovereign power over the Territories for Congress, I say, lay your hand upon the Constitution, and find there the warrant of your authority. Of the second, those of whom I have last spoken, I ask, in the Constitution, reason, right, or justice, what is there to sustain your theory? The phraseology which has been employed on this question seems to me to betray a strange confusion of ideas—to speak of a sovereignty, a plenary legislative power deriving its power from an agent; a sovereignty held subject to articles with the formation of which that sovereignty had nothing to do; a compact to which it was not a party! You say to a sovereign: “A and B have agreed on certain terms between themselves, and you must govern your conduct according to them; yet I do not deny your sovereignty!” That is, the power to do as they please, provided it conforms to the rule which others chose to lay down! Can this be a definition of sovereignty? But again, sir, nothing seems to me more illogical than the argument that this power is acquired by a grant from the Congress, connected with the other argument that Congress have not got the power to do the act themselves; that is to say, that the recipient takes more than the giver possessed; that a Territorial Legislature can do anything which a State Legislature can do, and that “subject to the Constitution” means merely the restraints imposed upon both. This is confounding the whole theory and the history of our Government. The States were the grantors; they made the compact; they gave the Federal agent its powers; they inhibited themselves from doing certain things, and all else they retained to themselves. This Federal agent got just so much as the States chose to give—no more. It could do nothing save by warrant of the authority of the grant made by the States. Therefore its powers are not comparable to the powers of the State Legislature, because one is the creature of grant, and the other the exponent of sovereign power. The Supreme Court have covered the whole ground of the relation of the Congress to the Territorial Legislatures—the agent of the States and the agent of the Congress—and the restrictions put upon the one are those put upon the other, in language so clear as to render it needless further to labor the subject. In 1850, following the promulgation of this notion of squatter sovereignty, we had the idea of non-intervention introduced into the Senate of the United States, and it is strange to me how that idea has expanded. It seems to have been more malleable than gold; to have been hammered out to an extent that covers boundless regions undiscovered by those who proclaimed the doctrine. Nonintervention then meant, as the debates show, that Congress should neither prohibit nor establish slavery in the Territories. That I hold to now. Will any one suppose that Congress then meant by non-intervention that Congress should legislate in no regard in respect to property in slaves? Why, sir, the very acts which they passed at the time refute it. There is the fugitive slave law, and that abomination of laws which assumed to confiscate the property of a citizen who [504] should attempt to bring it into this District with intent to remove it to sell it at some other time and at some other place. Congress acted then upon the subject —acted beyond the limit of its authority, as I believed, confidently believed; and, if ever that act comes before the Supreme Court, I feel satisfied they will declare it null and void. Are we to understand that those men, thus acting at the very moment, intended by non-intervention to deny and repudiate the laws they were then creating? The man who stood most prominently the advocate of the measures of that year, who, great in many periods of our history, perhaps shone then with the brightest light his genius ever emitted—I refer to Henry Clay—has given his own view on this subject; and I suppose he may be considered as the highest authority. On June 18, 1850, I had introduced an amendment to the compromise bill, providing: “And that all laws, or parts of laws, usages, or customs, preexisting in the Territories acquired by the United States from Mexico, and which in said Territories restrict, abridge, or obstruct, the full enjoyment of any right of person or property of a citizen of the United States, as recognized or guaranteed by the Constitution or laws of the United States, are hereby declared and shall be held as repealed.” Upon that, Mr. Clay said: “Mr. President: I thought that upon this subject there had been a clear understanding in the Senate that the Senate would not decide itself upon the lex loci as it respects slavery; that the Senate would not allow the Territorial Legislature to pass any law upon that question. In other words, that it would leave the operation of the local law, or of the Constitution of the United States upon that local law, to be decided by the proper and competent tribunal—the Supreme Court of the United States.”9 That was the position taken by Mr. Clay, the leader. A mere sentence will show with what view I regarded the dogma of non-intervention when that amendment was offered. I said: “But what is non-intervention seems to vary as often as the light and shade of every fleeting cloud. It has different meanings in every State, in every county, in every town. If non-intervention means that we shall not have protection for our property in slaves, then I always was, and always shall be, opposed to it. If it means that we shall not have the protection of the law because it would favor slaveholders, that Congress shall not legislate so as to secure to us the benefits of the Constitution, then I am opposed to non-intervention, and shall always be opposed to it.”10 Mr. Downs, one of the Committee of Thirteen, and an advocate of the measures, said: “What I understand by non-intervention is, an interposition of Congress prohibiting, or establishing, or interfering with slavery.”11 By what species of legerdemain this doctrine of non-intervention has come to extend to a paralysis of the Government on the whole subject, to exclude the Congress from any kind of legislation whatever, I am at a loss to conceive. Certain it is, it was not the theory of that period, and it was not contended for in all [505] the controversies we had then. I had no faith in it then; I considered it an evasion; I held that the duty of Congress ought to be performed; that the issue was before us, and ought to be met, the sooner the better; that truth would prevail if presented to the people; borne down to-day, it would rise up to-morrow; and I stood then on the same general plea which I am making now. The Senator from Illinois [Mr. Douglas] and myself differed at that time, as I presume we do now. We differed radically then. He opposed every proposition which I made, voting against propositions to give power to a Territorial Legislature to protect slave-property which should be taken there; to remove the obstructions of the Mexican laws; voting for a proposition to exclude the conclusion that slavery might be taken there; voting for the proposition expressly to prohibit its introduction; voting for the proposition to keep in force the laws of Mexico which prohibit it. Some of these votes, it is but just to him I should say, I think he gave perforce of his instructions; but others of them, I think it is equally fair to suppose, were outside of the limits of any instructions which could have been given before the fact. In 1854, advancing in this same general line of thought, the Congress, in enacting territorial bills, left out a provision which had before been usually contained in them, requiring the Legislature of the Territory to submit its laws to the Congress of the United States. It has been sometimes assumed that this was the recognition of the power of the Territorial Legislature to exercise plenary legislation, as might that of a State. It will be remembered that, when our present form of government was instituted, there were those who believed the Federal Government should have the power of revision over the laws of a State. It was long and ably contended for in the Convention which formed the Constitution; and one of the compromises which was made was an appellate power—to lodge power in the Supreme Court to decide all questions of constitutional law. But did this omission of the obligation to send here the laws of the Territories work this grant of power to the Territorial Legislature? Certainly not; it could not; and that it did not is evinced by the fact that, at a subsequent period, the organic act was revised because the legislation of the Territory of Kansas was offensive to the Congress of the United States. Congress could not abdicate its authority; it could not abandon its trust; and, when it omitted the requirement that the laws should be sent back, it created a casus which required it to act without the official records being laid before it, as they would have been if the obligation had existed. That was all the difference. It was not enforcing upon the agent the obligation to send the information. It left Congress, as to its power, just where it was. I find myself physically unable to go as fully into the subject as I intended, and therefore, omitting a reference to those acts, suffice it to say that here was the recognition of the obligation of Congress to interpose against a Territorial Legislature for the protection of personal right. That is what we ask of Congress now. I am not disposed to ask this Congress to go into speculative legislation. I am not one of those who would willingly see this Congress enact a code to be applied to all Territories and for all time to come. I only ask that cases, as they arise, may be met according to the exigency. I ask that when personal and property rights in the Territories are not protected, then the Congress, by existing laws and governmental machinery, shall intervene and provide such means as will secure in each case, as far as may be, an adequate remedy. [506] I ask no slave code, nor horse code, nor machine code. I ask that the Territorial Legislature be made to understand beforehand that the Congress of the United States does not concede to them the power to interfere with the rights of person or property guaranteed by the Constitution, and that it will apply the remedy; if the Territorial Legislature should so far forget its duty, so far transcend its power, as to commit that violation of right. That is the announcement of the fifth resolution. These are the general views which I entertain of our right of protection and the duty of the Government. They are those which are entertained by the constituency I have the honor to represent, whose delegation has recently announced those principles at Charleston. I honor them, and I approve their conduct. I think their bearing was worthy of the mother-State which sent them there; and I doubt not she will receive them with joy and gratitude. They have asserted and vindicated her equality of right. By that asserted equality of right I doubt not she will stand. For weal or for woe, for prosperity or adversity, for the preservation of the great blessings which we enjoy, or the trial of a new and separate condition, I trust Mississippi never will surrender the smallest atom of the sovereignty, independence, and equality, to which she was born, to avoid any danger or any sacrifice to which she may hereby be exposed. The sixth resolution of the series declares at what time a State may form a Constitution and decide upon her domestic institutions. I deny this right to the territorial condition, because the Territory belongs in common to the States. Every citizen of the United States, as a joint owner of that Territory, has a right to go into it with any property which he may possess. These territorial inhabitants require municipal law, police, and government. They should have them, but they should be restricted to their own necessities. They have no right within their municipal power to attempt to decide the rights of the people of the States. They have no right to exclude any citizen of the United States from owning and equally enjoying this common possession; it is for the purpose of preserving order, and giving protection to rights of person and property, that a municipal territorial government should be instituted. The last resolution refers to a law founded on a provision of the Constitution, which contains an obligation of faith to every State of the Union; and that obligation of faith has been violated by thirteen States of the Confederacy—as many as originally fought the battles of the Revolution and established the Confederation. Is it to be expected that a compact thus broken in part, violated in its important features, will be regarded as binding in all else? Is the free trade which the North sought in the formation of the Union, and for which the States generally agreed to give Congress the power to regulate commerce, to be trampled under foot by laws of obstruction, not giving to the citizens of the South that free transit across the territory of the Northern States which we might claim from any friendly state under Christendom; and is Congress to stand powerless by, on the doctrine of non-intervention? We have a right to claim abstinence from interference with our rights from any Government on the earth. Shall we claim no more from that which we have constituted for our own purposes, and which we support by draining our own means for its support? We have had agitation, changing in its form, and gathering intensity, for the last forty years. It was first for political power, and directed against new States; [507] now it has assumed a social form, is all-prevailing, and has reached the point of revolution and civil war. For it was only last fall that an overt act was committed by men who were sustained by arms and money, raised by extensive combination among the non-slaveholding States, to carry treasonable war against the State of Virginia, because now, as before the Revolution, and ever since, she held the African in bondage. This is part of the history and marks the necessity of the times. It warns us to stop and reflect, to go back to the original standard, to measure our acts by the obligation of our fathers, by the pledges they made one to the other, to see whether we are conforming to our plighted faith, and to ask seriously, solemnly, looking each other inquiringly in the face, what we should do to save our country. This agitation being at first one of sectional pride for political power, has at last degenerated or grown up to (as you please) a trade. There are men who habitually set aside a portion of money which they are annually to apply to what are called “charitable purposes”—that is to say, so far as I understand it, to support some vagrant lecturer, whose purpose is agitation and mischief wherever he goes. This constitutes, therefore, a trade; a class of people are thus employed —employed for mischief, for incendiary purposes, perhaps not always understood by those who furnish the money; but such is the effect; such is the result of their action; and in this state of the case I call upon the Senate to affirm the great principles on which our institutions rest. In no spirit of crimination have I stated the reasons why I present it. For these reasons I call upon them now to restrain the growth of evil passion, and to bring back the public sense as far as in them lies, by earnest and united effort, if it may be, to crown our country with peace, and start it once more in its primal channel on a career of progressive prosperity and justice. The majority section can not be struggling for additional power in order to preserve their rights. If any of them ever believed in what is called Southern aggression, they know now they have the majority in the representative districts and in the electoral college. They can not, therefore, fear an invasion of their rights. They need no additional political power to protect them from that. The argument, then, or the reason on which this agitation commenced, has passed away; and yet we are asked, if a party hostile to our institutions shall gain possession of the Government, that we shall stand quietly by, and wait for an overt act. Overt act! Is not a declaration of war an overt act? What would be thought of a country that, after a declaration of war, and while the enemy's fleets were upon the sea, should wait until a city had been sacked before it would say that war existed, or resistance should be made? The power of resistance consists, in no small degree, in meeting the evil at the outer gate. I can speak for myself—and I have no right to speak for others—when I say that, if I belonged to a party organized on the basis of making war on any section or interest in the United States, if I know myself, I would instantly quit it. We have made no war against you. We have asked no discrimination in our favor. We claim to have but the Constitution fairly and equally administered. To consent to less than this would be to sink in the scale of manhood; would be to make our posterity so degraded that they would curse this generation for robbing them of the rights their Revolutionary fathers bequeathed them. . . . Among the great purposes declared in the preamble of the Constitution is one [508] to provide for the general welfare. Provision for the general welfare implies general fraternity. This Union was not expected to be held together by coercion; the power of force as a means was denied. They sought, however, to bind it perpetually together with that which was stronger than triple bars of brass and steel—the ceaseless current of kind offices, renewing and renewed in an eternal flow, and gathering volume and velocity as it rolled. It was a function intended not for the injury of any. It declared its purpose to be the benefit of all. Concessions which were made between the different States in the Convention prove the motive. Each gave to the other what was necessary to it; what each could afford to spare. Young as a nation, our triumphs under this system have had no parallel in human history. We have tamed a wilderness; we have spanned a continent. We have built up a granary that secures the commercial world against the fear of famine. Higher than all this, we have achieved a moral triumph. We have received, by hundreds of thousands, a constant tide of immigrants—energetic, if not well educated, fleeing, some from want, some from oppression, some from the penalties of violated law—received them into our society; and by the gentle suasion of a Government which exhibits no force, by removing want and giving employment, they have subsided into peaceful citizens, and have increased the wealth and power of our country. If, then, this temple so blessed, and to the roof of which we were about to look to see it extended over the continent, giving a protecting arm to infant republics that need it—if this temple is tottering on its pillars, what, I ask, can be a higher or nobler duty for the Senate to perform than to rush to its pillars and uphold them, or be crushed in the attempt? We have tampered with a question which has grown in magnitude by each year's delay. It requires to be plainly met—the truth to be told. The patriotism and the sound sense of the people, whenever the Federal Government from its high places of authority shall proclaim the truth in unequivocal language, will, in my firm belief, receive and approve it. But so long as we deal, like the Delphic oracle, in words of double meaning, so long as we attempt to escape from responsibility, and exhibit our fear to declare the truth by the fact that we do not act upon it, we must expect speculative theory to occupy the mind of the public, and error to increase as time rolls on. But, if the sad fate should be ours, for this most minute cause, to destroy our Government, the historian who shall attempt philosophically to examine the question will, after he has put on his microscopic glasses and discovered it, be compelled to cry out, “Veritably so the unseen insect in the course of time destroys the mighty oak!” Now, I believe—may I not say I believe? if not, then I hope—there is yet time, by the full, explicit declaration of the truth, to disabuse the popular mind, to arouse the popular heart, to expose the danger from lurking treason and ill-concealed hostility; to rally a virtuous people to their country's rescue, who, circling closer and deeper as the storm gathers fury, around the ark of their fathers' covenant, will place it in security, there happily to remain a sign of fraternity, justice, and equality, to our remotest posterity.
