The Crisis! (Galveston, Tex.), Vol. 1, No. 6, Ed. 1 Monday, August 27, 1860 Page: 3 of 4
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III •«<
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whether I should live to see that result. It has beeu
more speedily exploded, and to the country with more
injurious consequences than I anticipated. In the
meantime what has been its operation? Let Kansas
speak—the first great field on which the trial was
made. What there was the consequence ? The Fed-
eral Congress withdrawing control, leaving the con-
tending 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 its 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 Unit«d States ; it
kindled all the inflammable material which had been for
years collected. It was owing to the strength of pop-
ular respect for our Government and the good sense of
the quiet masses, that it did not wrap our country in
one wide spread conflagration.
What right had Congress then, or what right has it
now, to abdicate any power conferred upon it as trus-
tee of the States ? What can we weigli against the
great interests of which we are conservators ; against
the welfare of the country, and the liberty of our pos-
terity of the remotest ages ? If any one believes that
Congress has not the constitutional power, he acts con-
scientiously in insisting that Congress do not usurp it.
He who believes that the squatters upon the lands of
the United States, within a Territory, are invested
with sovereignty, having won it by some of those pro-
cesses unknown to history, without grant or without
revolution, without money and without price, adhering
to such theory, may pursue it to its conclusion. To
the first class, that which claims sovereign power over
the Territories, for Congress, I say, turn to the Con-
stitution, and find there the warrant of your authority.
Of the second, that of which 1 have last spoken, I
ask, what is there in the Constitution, in reason, right,
•or justice, to sustain this theory ?
The phraseology whicli has been employed on this
question seems to me to betray a strange confusion of
ideas. To speak of a sovereignty, a plenary legisla-
tive power deriving its authority from an agent : a
sovereignty Held subject to articles with the formation
of which that sovereignty had nothing to do ; a com-
pact to which it was not party ! You say to a sover-
eign, "A and B have agreed on certain terms between
themselves, and you must govern your conduct accord-
ing to them ; yet I do not deny your sovereignty ! "
That is the power to do as they please, provided it con-
forms to the rule which others chose to lay down !
Can this be a definition of sovereignty ?
Nothing seems to me more illogical than the argu-
ment that this power is acquired by a grant from Con-
gress, connected with the other argument that Con-
gress have not got the power to do the act themselves
—that is to say, that the recipient takes more than
the o-iver possessed ; that a Territorial Legislature
can do anything which a State Legislature can do, and
that "subject to the Constitution,'' means merely the re-
straints imposed on both. This is confounding the whole
theory and the history of our Government. The States
were liui irraators ; they made the compact: they gave
the Federal agent its powers; they inhibited them-
selves from doing certain things, and all else they re-
tained to themselves. This Federal agent got just so
much as the States chose to give, and no more. It
could do nothing save by the authority of the grant
made by the States. Therefore its powers are not
comparable to the powe.-s 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
Congress to the Territorial Legislatures—the agent
of the States and the agent of Congress—and the re-
strictions put upon the one arc there put upon the
other in language so clear as to render it needless
further to elaborate the subject.
In 1850, following the promulgation of this notion
of squatter sovereignty, we had the idea of non-inter-
tion introduced into the Senate of the United States,
and it is admirable to see 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 pro-
claimed the doctrine. Non-intervention then meant,
as the debates show, that Congress should neither pro-
hibit nor establish slavery in the Territories. To that
I hold now. Will any one suppose that non-interven-
tion then meant that Congress should not legislate at
all in respect to property in slaves? The acts which
they passed at the time forbid that conclusion. There
is a fugitive slave law, and that abominable law which
assumed to confiscate the property of a citizen who
should bring it, into this District with intent to remove
it to f ell it at some other time and at some other place.
Congress acted then upon the subject, acted bejond
the limit of its authority, as I confidently believe ;
and if ever that act comes before the Supreme Court,
I feel satisfied that they will declare it void. Are we
to understand that these men, thus acting at the very
moment, intended by non-intervention to deny and re-
pudiate the laws they were th'en creating? The man
who stood most prominently the advocate of the mea-
sures of that year, who, great in many periods of our
history, perhaps shone then with the brighest light his
«■enius ever emitted—I refer to Henry Clay lias
given his own view on this subject; and I suppose he
may be considered as the highest authority. <)n June
18, 1850,1 had introduced an amendment Jto the com-
promise bill, providing:
" And that all laws, or parts of laws, usages, or cus-
toms, pre-existing in the Territories acquired by the
United States from Mexico, and which in said Terri-
tories restrict, abridge, or obstruct the full enjoyment
of any right of person or property of a citizen of the
United States, as recognized or guarantied 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."—Appendix to Congress-
ional Globe, Thirty first Congress, first session, p 916.
That was the position taken by Mr. Clay, the leader.
A mere sentence will show with what view I regarded
the doctrine 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 meant that
we shall not have protection for our property in slaves,
then I always was, and always will be, opposed to it.
If it means that we shall not have the protection of
the law because it would favor slaveholders, that Con-
gress shall not legislate so as to secure to us the bene-
fits of the Constitution, then I am opposed to non-in-
tervention, and always shall be opposed to it."—Ap-
pendix to Congressional Globe, Thirty-first Congress,
first session, p. 910.
Mr Downs, one of the committee of thirteen, and
an advocate of the measure, said :
" What I understand by non-intervention is, an in-
terposition of Congress prohibiting, or establishing,
or interfering with slavery."—Appendix to Congress-
ional Globe, Thirty-first Congress, first session, p. 919.
By what species of legerdemain this doctrine of
non-intervention has been construed as to paralyse the
Government on the whole subject, to exclude Congress
from any kind of legislation whatever, I am at a
loss to conceiv.e. Certain it is, it was not the theory
at that period, and it was not contended for in any of
the controversies we had then upon that question. I
had no faith in it then ; I considered it an evasion ; I
held that Congress ought to perform its duty ; 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 : 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 pre-
sume we do now. We differed radically then, lie
opposed every proposition which I made, refusing to
give power to a Territorial Legislature to protect
slave property which should be taken there; to re-
move the obstruction of the Mexican laws ; voting for
a proposition to exclude the conclusion that slavery
might be taken there ; voting for the proposition ex-
pressly to prohibit its introduction ; voting for the
proposition to keep in force the laws of Mexico which
prohibited it. Some of these votes, it is but just to
him I should say, I think he gave in obedience to his
instructions ; but others of them, I think, it is equally
fair to suppose, were outside of the limits of any in-
structions which could have been given before the fact.
In 1854, advancing in this same general line of
thought, Congress, in enacting Territorial bills, left
out a provision which had usually been 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 re-
cognition of the power of the Territorial Legislature
to exercise plenary legislation, in the same manner as
a State. It will be remembered that, when our present
form of Government was instituted, there were those
who believed the Federal Government ought to have
the power of revision over the laws of a State. This
was long and ably contended for in the convention
whicli formed the Constitution ¡ and one of the com-
promises which was made was, to lodge an appellate
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, ced« this grant of power
to the Territorial Legislature ? Certainly not; it
could not, and that it did not is proved by the fact that
at a subsequent period the organic act was revised
because the legislation of the Territory of Kansas
was offensive to Congress. Congress could not ab-
dicate its authority ; it could not abandon its trust;
and when it omitted the requirement that the laws
should not be sent back, it created a casus which re-
quired it to act without the official records beiug 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 the Constitution placed it, which, in 1856," de-
fined to be for the Territories such non-intervention
as was proper in the States and in the District of Col-
umbia. I find myself physically unable to go as fully
into this subject as I intended, and therefore omitting
a reference to these acts, suffice it to say, that here
was the recognition of the obligation of Congress to
interpose against a Territorial Legislature for the pro-
tection of personal right. That is what we ask of
Congress now. I do not ask Congress to go into
speculative legislation. I am not one of those who
would willingly see Congress enact a code to be ap-
plied to all Territories and for all time to come. I
only ask that cases, as they arise, may be met accord-
ing to the exigency. I ask that when personal and
property rights in the Territories are not by existing
laws and governmental machinery adequately protect-
ed, then the Congress shall intervene and provide
such means as will secure in each case, as far as may
be, an adequate remedy. I ask no slave code, no horse
code, no 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 guarantied 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.
My colleague arraigned that resolution because it
did not go far enough. He thought the mere proposi-
tion to act, when necessary, did not meet the case,
because, he said, the necessity had arisen. To that
my answer is, that here I ask the Senate to declare
great truths for to-day, and for all time to came ; to
bring back the popular judgment to the standard of
the Constitution ; that I am not seeking legislation in
these resolutions; I am but making declarations on
which legislation may be founded. They will speak
a restraining voice to the Territorial Legislature.
They will speak our sentiments as to the rights of per-
son and property, the obligation and' duties of the
Constitution. It is for that purpose I introduced
them; it is for that purpose I seek the Vote of the
Senate. At some other time I may institute a com-
parison between these resolutions and their doctrines,
and those ot some others before us ; particularly those
of my colleague, who has twice criticised mine, once
very harshly when I was detained by illness from the
Senate. I will only say now, however, that this sec-
ond resolution contains what I consider too near an
affiliation with his "distinguished friend from Illinois."
The admission that every Territory when organized is
to exercise legislative power, inclines rather too much
to the direction of squatter sovereignty. At an earlier
period of our history many Territories were organized
without a legislature, with simply a Governor and
council, and if the Territory of Utah was fitted for
anything in the form of civil government, a governor
and council are as much as it ever ought to have had.
I thus illustrate my opinion by a case in point.
These are the general views which 1 entertain of
our right of protection and the duty of the Govern-
ment. They are those which are entertained by the
constituency I have the honor to represent, whose
delegation has recently announced them at Charles-
ton. I honor the men, and cordially endorse their
conduct. I think their bearing was worthy of their
mother State ; and doubt not she will receive them
with approving gratitude. They have asserted and
vindicated her equality of right. By that assertion 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, inde-
pendence, and equality to which she was born, to avoid
any danger or any sacrifice to which she may thereby
be exposed.
The sixth resolution of the scries declares at what
time a State may form a Constitution. I deny this
right to the territorial condition, because the Terri-
tory belongs in common to the States. Every citizen
of the United States, as a joint owner of that Terri-
tory, has a right to go into it with any property which
he may lawfully, under the State government, have pos-
sessed. These territorial inhabitants require muni-
cipal law, police, and government. They should have
it, but it should be restricted to their own necessities.
They have no right within their municipal power to
attempt to decide the rtglits of the people of the
States. They have no right to exclude any citizen of
the United States from coming and equally enjoying this
common possession; it is for the purpose of preserving
order, giving protection to rights of person and pro-
perty in the Territory, not to prejudice the interest of
any State or citizcn, that a municipal territorial gov-
ernment should be instituted.
The last resolution refers to a law founded on a pro-
vision of the Constitution, one unanimously adopted
and which imposes a special obligation of faith on
every State of the Union; but that obligation ha?
been violated by thirteen States of the Confederacy—
as many as originally fought the battles of the revolu
tion and established the Confederation. Is it to be
expected that a compact thus broken in part, violated
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The Crisis! (Galveston, Tex.), Vol. 1, No. 6, Ed. 1 Monday, August 27, 1860, newspaper, August 27, 1860; Galveston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth181139/m1/3/: accessed June 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting The Dolph Briscoe Center for American History.