Jefferson Davis, The Rise and Fall of the Confederate Government

[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.