right to define the terms of sale. The seller may affix such conditions and limitations as he pleases to the thing sold. If this be not so, then the buyer may dictate his terms to the seller. Answer these simple questions: Does the United States own land in fee-simple? Is the Government of the United States under guardianship, or disabled by minority? Is it compos mentis? If none of these disabilities: apply to it then it may sell ;-it may sell the fee-simple, or it may carve out any lesser estate, and sell that. It may incorporate such terms and conditions as it pleases into its deed or patent of sale. It may make an outright quit-claim, or it may reserve the minerals for its own use, or the navigable streams for public highways, as it has done in the territory northwest of the river Ohio. It may insert the conditions and limitations in each deed or patent; or, where the grantees are numerous, it may make general "rules and regulations," which are understood to be a part of each contract, and are therefore binding upon each purchaser. No man is compelled to buy, but if any one does buy, he buys subject to the "rules and regulations" expressed in the grants; and neither he, nor his grantees, nor his or their heirs after them, can complain. I want, therefore, no better foundation for legislating over the territories than the fact of ownership in the United States. Grant this and all is granted. If I own a farm, or a shop, I may, as owner, prescribe the conditions of its transfer to another. If he does not like my conditions, then let him abandon the negotiation; if he accedes to the conditions, then let him abide by them, and hold his peace. Sir, in the State to which I belong we hold Temperance to be a great blessing, as well as a great virtue; and Intemperance to be a great curse, as well as a great sin. I know of incorporated companies there, who have purchased large tracts of land for manufacturing purposes. They well know how essential is the sobriety of workmen to the profitableness of their work; they know, too, how wasteful and destructive is inebriety. In disposing of their land, therefore, to the men whom they would gather about them and employ, they incorporate the provision, as a fundamental article in the deed of grant, that ardent spirits shall never be sold upon the premises; and thus they shut up, at once,. one of the most densely thronged gateways of hell. Have they not a right to do so, from the merefact of ownership? Would any judge or lawyer doubt the validity of such a condition; or would any sensible man ever doubt its wisdom or humanity? Pecuniarily and morally, this comes under the head of "needful rules and regulations." If tipplers do not like them, let them stagger away, and seek their residence elsewhere. But the United States is not merely a land owner, it is a sovereignty. As such, it exercises all constitutional jurisdiction over all its territories. Whence, but from this right of sovereignty, does the Government obtain its power of saying that no man shall purchase land of the natives, or aborigines, and that if you wish to buy land in the territories, you shall come to the Government for it? Is there any express power in the Constitution authorizing Congress to say to all the citizens of the United States, "If you wish to buy ungranted land in the territories, you must come to us, for no one else can sell, or shall sell?" This right, sustained by all our legislation and adjudications, covers the whole ground. Lessee of Johnson et al. vs. McIntosh, 8 Wheaton, 543; 5 Cond. Re. 515. But, leaving the Constitution, it is denied that there are precedents. The honorable gentleman from Virginia (Mr. BAYLY) has not only contested the power of Congress to legislate on the subject of slavery in the territories, but he has denied the existence of precedents to sustain this power. Sir, it would have been an assertion far less bold, to deny the existence of precedents for the election of ax President of the United States; for the instances of the latter have been far less frequent than of theformer. Congress has legislated on the subject of slavery in the territories all the way up, from theadoption of the Constitution to the present time; and this legislation has been sustained by the judiciary of both the General and State Governments, and carried into execution by the executive power of both. See Menard vs. Aspasia, 5 Peters, 505; Phebe et al. vs. Jay, Breese's Re., 210; Hogg vs. the Zanesville Canal Co., 5 Ohio Re., 410; Martin's Louisiana Re., N. S., 699; Spooner vs. Mc Connell, I McLean's Re., 341., Harvey vs. Deeker, Walker's Mississippi Re., 36; Rachael vs. Walker, 4 Missouri Re.,. 350. So far as the uniform practice of sixty years can settle a doubtful, or confirm an admitted right, this power of legislating over the territories has been taken from the region of doubt, and established upon the basis of acknowledged authority. In legislating for all that is now Ohio, Indiana, Illinois, Wisconsin, Michigan, Iowa, Missouri, Arkansas, Mississippi, Louisiana, and Florida, we have legislated on the subject of slavery in the territories. Sixty years of legislation on one side, and not a denial of the right on the other. But the gentleman from Virginia (Mr. BAYLY) says, that the action of Congress, in regard to the territories, has been rather that of constitution-making than of law-making. Suppose this to be true;, does not the greater include the less? If Congress could make a Constitution for all the territoriesan organic, fundamental law-a law of laws could it not, had it so pleased, make the law itself? A Constitution prescribes to the legislature what it shall do, and what it shall not do; it commands, prohibits, and binds men by oaths to support itself. It says, "hitherto SHALT thou come, and no farther."* And if Congress can do this, can it not make the local law itself? Can aught be more preposterous? As if we could command others to do what we have no right to do ourselves, and prohibit others from doing what lies beyond our own jurisdiction. Surely, to decree on what subjects a community shall' legislate, and on what they shall not legislate, is the exercise of the highest power. But Congress has not stopped with the exercise of the constitution-making power. In various forms, and at all times, it has legislated for the territories, in the strictest sense of the word legislation. It has legislated again and again, and ten times again, on this very subject of slavery. See the act of 1794, prohibiting the slave trade from any "port or place" in the United States. Could any citizen of the United States, under this act, have gone into one of our territories and fitted out vessels for the slave trade? Surely he could, if Congress has no right to legislate over territories only as so much. land and water. By statute 1798. chapter 28, § 7, slaves were forbidden to be brought into the Mississippi territory from without the United States; and all slaves so brought in were made free. So the act of 1800, chapter 51, in further prohibition of the slave trade, applied to all the citizens of the United States, whether living in territories or in organized States. Did not this legislation cover the territories? By statute 1804, chapter 38, § 10, three classes of slaves were forbidden to be introduced into the Orleans territory. Statute 1807, chapter 22, prohibiting the importation of slaves after January 1, 1808, prohibited their importation into the territories in express terms. Statute 1818 chapter 91, statute 1819, chapter 101, and statute 1820, chapter 113, prohibiting the slave trade, and making it piracy, expressly included all the territories of the United States. Statute 1819, chapter 21, authorized the President to provide for the safe-keeping of slaves imported from Africa, and for their removal to their home in that land. Under this law, the President might have established a depot for slaves within the limits of our territories, on the Gulf, or on the Mississippi. By statute 1820, chapter 22, § 8, Congress established what has been called the Missouri compromise line, thereby expressly legislating on the subject of slavery. So of Texas. See Jo. Res. March 1, 1845. By statute 1819, chapter 93, statute 1821, chapter 39, § 2, and statute 1822, chapter 13, § 9, Congress legislated on the subject of slavery in the Territory of Florida. Does it not seem almost incredible that a defender and champion of slavery should deny the power of Congress to legislate on the subject of slavery in the territories? If Congress has no such power, by what tight can a master recapture a fugitive slave escaping into a territory? The Constitution says: "No person held to service, or labor, in one State, escaping into another, "-that is, another State," shall be discharged from such service, or labor," &c. The act of 1793, chapter 7, § 3, provides that when a person "held to labor," &c., "shall escape into any other of the said States, or territory," he may be taken. By what other law than this can a runaway slave be retaken in a territory? If Congress has no power to legislate on the subject of slavery in any territory, then, surely, they cannot legislate for the capt ire of a fugitive slave in a territory. The argument cuts both ways. The knife wounds him who would use it to wound his fellow. By Further than this. If slavery is claimed to be one of the common subjects of legislation, then any legislation by Congress for the territories, on any of the common subjects of legislation, is a precedent, going to prove its right to legislate on slavery itself. If Congress may legislate on one subject belonging to a class, then it may legislate on any other subject belonging to the same class. Now, Congress has legislated for the territories on almost the whole circle of subjects belonging to common legislation. It has legislated on the elective franchise, on the pecuniary qualifications and residence of candidates for office, on the militia, on oaths, on the per diem and mileage of members, &c., &c. statute 1811, chapter 21, § 3, authorizing the Territory of Orleans to form a constitution, it was provided, that all legislative proceedings and judicial records should be kept and promulgated in the Englis language. Cannot Congress make provision for the rights of the people, as well as for the language in which the laws and records defining those rights shall be expresse1? Any language is sweet to the ears of man which gives him the right of trial by jury, of habeas corpus, of religious freedom, and of life, limb, and liberty; but accursed is that language, and fit only for the realms below, which deprives an immortal being of the rights of intelligence and of freedom; of the right to himself, and the dearer rights of family. But all this is by no means the strongest part of the evidence with which our statutes and judicial decisions abound, showing the power of Congress to legislate over territories. From the beginning, Congress has not only legislated over the territories, but it has appointed and controlled the agents of legislation. The general structure of the legislature in several of the earlier territorial governments was this: It consisted of a governor and of two houses-an upper and a lower. Without an exception, where a governor has been appointed, Congress has always reserved his appointment to itself, or to the President. The governor so appointed has always had a veto power over the two houses; and Congress has always reserved to itself, or to the President, a veto power, not only over him, but over him and both the houses besides. Congress has often interfered also with the appointment of the upper house, leaving only the lower house to be chosen exclusively by the people of the territory; and it has determined even for the lower house the qualifications both of electors and of elected. Further still: The power of r moving the governor, at pleasure, has always been reserved to Congress, or to the President. and Look at this: Congress determines for the territory the qualifications of electors and elected-at least in the first instance. No law of the territorial legislature is valid until approved by the governor. Though approved by the governor, it may be annulled by Congress, or by the President; the governor is appointed, and may be removed, at pleasure, by Congress, or by the President. To be more specific, I give the following outline of some of the territorial governments: Ohio Territory, statute 1789, chapter 8.-A governor for four years, nominated by the President, approved by the Senate, with power to appoint all subordinate civil and military officers. A secretary for four years, appointed in the same way. Three judges, to hold office during good behavior. Governor and judges the sole legislature, until the district shall contain 5,000 free male inhabitants. Then, A house of assembly, chosen by qualified electors, for two years. A legislative council of five, to hold office for five years. The house of assembly to choose ten men; five of whom are to be selected by the President and approved by the Senate. These five to be the "legislative council." A governor, as before, with an unconditional veto, and a right to convene, prorogue, and dissolve the assembly. Power given to the President to revoke the commissions of governor and secretary. Indiana Territory, statute 1800, chapter 41.-Similar to that of Ohio. At first the lower house to consist of not more than nine nor less than seven. Mississippi Territory, statute 1800, chapter 50.-Similar to that of Indiana. Wisconsin Territory, statute 1836, chapter 54.-Governor for three years, appointed as above, and removable by the President, with power to appoint officers and grant pardons. Unconditional veto. Secretary for four years, removable by the President. In the absence, or during the inability, of the governor, to perform his duties. Legislative assembly to consist of a council and a house of representatives, to be chosen for two years. Congress to have an unconditional vetc, to be exercised on laws approved by the governor. Louisiana Territory, statute 1803, chapter 1.-Sole dictatorial power given to the President of the United States; and the army and navy of the United States placed at his command to govern the territorial inhabitants.-(This was under Mr. Jefferson.) Territory of Orleans, statute 1804, chapter 38.-Governor nominated by President, approved by Senate, tenure of office three years. Removable by the President. Secretary for four years, to be governor in case, &c. Legislative council of thirteen, to be annually appointed by the President. Governor and council, of course, a reciprocal negative on each other. Congress an unconditional veto on both. District of Louisiana, statute 1804, chapter 38.-To be governed by the governor and judges of the Territory of Indiana. Congress an unconditional veto on all their laws. Missouri Territory, statute 1812, chapter 95.-A governor, appointable and removable as above. A legislative council of nine, eighteen persons to be nominated by the house of representatives for the Territory; nine of these to be selected and appointed by the President and Senate. A house of representatives to be chosen by the people. Arkansas Territory, statute 1819, chapter 49.—A governor and secretary, appointable and removable as above. All legislative power vested in the governor and in the judges of the superior court. When a majority of the freeholders should elect, then they might adopt the form of government of Missouri. East and West Florida, statute 1819, chapter 93.-Statute 1821, chapter 29.-Statute 1822, chapter 13.From March 3, 1819, to March 30, 1822, the government vested solely in the President of the United States, and to be exercised by such officers as he should appoint. After March 30, 1822, a governor and secretary appointable and removable as above. All legislative power vested in the governor, and in thirteen persons, called a legislative council, to be appointed annually by the President. Yet, Sir, notwithstanding all this legislation of Congress for the Territories, on the subject of slavery itself; notwithstanding its legislation on a great class of subjects of which slavery is acknowledged to be one; notwithstanding its appointment, in some cases, of the legislative power of the Territory; making its own agent-the governor-removable at pleasure; giving him a veto in the first place, and reserving to itself a veto when he has approved; notwithstanding the exercise, in other cases, of full, absolute sovereignty over the inhabitants of the Territories, and all their interests; and notwithstanding such has been the practice of the Government for sixty years, under Jefferson, Madison, Monroe, Jackson, and others, it is now denied that Congress has any right to legislate on the subject of slavery in the Territories. Sir, with a class of politicians in this country, it has come to this, that slavery is the only sacred thing in existence. It is self-evident like a god, and human power cannot prevent it. From year to year, it goes on conquering and to conquer, and human power cannot dethrone it. Sir, I will present another argument on this subject, and I do not see how any jurist or statesman can invalidate it. Government is one, but its functions are several. They are legislative, judicial, executive. These functions are co-ordinate. Each supposes the other two. There must be a legislature to enact laws. There must be a judiciary to expound the laws enacted, and point out the individuals against whom they are to be enforced. There must be an executive arm to enforce the decisions of the courts. every theory of government, where one of these exists, the others exist. Under our Constitution, they are divided into three parts, and apportioned among three co-ordinate bodies. Whoever denies one of these must deny them all. in If the Government of the United States, therefore, has no right to legislate for the Territories, it has no right to adjudicate for the Territories; if it has no right to adjudicate, then it has no right to enforce the decisions of the judicial tribunals. These rights must stand or fall together. He who takes from this Government the law-making power, in regard to Territories, strikes also the balances of justice from the hands of the judge, and the mace of authority from those of the executive. There is no escape from this conclusion. The Constitution gives no more authority to adjudge suits in the Territories, or to execute the decisions of the territorial courts, than it does to legislate. If Congress has no power over territory, only as land, then what does this land want of judges and marshals? Is it not obvious, then, that this new reading of the Constitution sets aside the whole legislative, judicial, and executive administration of this Government over Territories, since the adoption of the Constitution? It makes the whole of it invalid. The Presidents, all members of Congress, all judges upon the bench, have been in a dream for the last sixty years; and are now waked up and recalled to their senses by the charm of a newly discovered reading of the Constitution. Hitherto, sir, I have not directed my remarks to the actual legislation by Congress on the subject of slavery in the Northwestern Territory, so called. That Territory was consecrated to freedom by the ordinance of 1787. It was said that the Confederation had no power to pass such an ordinance. One answer to this is, that the ordinance was a "compact," in terms, and so was adopted and ratified by the 6th article of the Constitution, under the term " engagement." But whatever may be thought of this answer, there is another one which is conclusive. Congress has ratified the ordinance again and again; the first Congress at its first session passed an act, whose preamble is as follows: "Whereas in order that the ordinance of the United States, in Congress assembled, for the government of the territory northwest of the river Ohio, may continue to have full effect," &c. It then proceeds to modify some parts of the ordinance, and to adopt all the rest.* In the 2d section of the act of 1800, chapter 41, establishing the Indiana Territory, it is expressly provided that its government shall be "in all respects similar to that provided by the ordinance of 1787." In the act of 1802, chapter 40, section 5, authorizing Ohio to form a constitution and State government, this ordinance of 1787, is three times referred to as a valid and existing agreement; and it has always been held to be so by the courts of Ohio. So in the act of 1816, chapter 57, section 4, authorizing the erection of Indiana into a State, the ordinance is again recognized, and is made a part of the fundamental law of the State. So in the act of 1818, chapter 67, section 4, authorizing Illinois to become State. So in the act of 1805, chapter 5, section 2, establishing the Territory of Michigan. So of Wisconsin; see act of 1847, chapter 53, in connection with the constitution of Wisconsin. But all this is tedious and superfluous. I have gone into this detail, because I understand the gentleman from Virginia (Mr. BAYLY) to have denied this adoption and these recognitions of the ordinance. I hazard nothing in saying that the ordinance of 1787 has been expressly referred to as valid, or expressly or impliedly re-enacted a dozen times by the Congress of the United States; and, in the State courts of Ohio, Illinois, Louisiana, Mississippi, and Missouri it has been adjudged to be constitutional. How, then, is it possible for any mind amenable to legal rules for the decision of legal questions, to say that Congress cannot legislate, or has not legislated, (except once or twice inadvertently,) on the subject of slavery in the Territories. On this part of the argument, I have only a concluding remark to submit. The position I am contesting affirms generally that Congress cannot legislate on the subject of slavery in the Territories. The inexpediency of so legislating is further advocated, on the ground that it is repugnant to Democratical principles to debar the inhabitants of the Territories from governing themselves. Must the free men of the Territories, it is asked, have laws made for them by others? No! It is anti-democratic, monarchical, intolerable. All men have the right of self-government; and this principle holds true with regard to the inhabitants of Territories, as well as the inhabitants of States. Now, if these declarations were a sincere and honest affirmation of human rights, I should respect them and honor their authors. Did this doctrine grow out of a jealousy for the rights of man, a fear of usurpation, an assertion of the principle of self-government, I should sympathize with it, while I denied its legality. But, sir, it is the most painful aspect of this whole case, that the very object and purpose of claiming these ample and sovereign rights for the inhabitants of the Territories, is, that they may deny all rights to a portion of their fellow-beings within them. Enlarge, aggrandize the rights of the territorial settlers! And why? That they may abolish all rights for a whole class of human beings. This claim, then, is not made for the purpose of making freemen more free, but for making slaves more enslaved. The reason for denying to Congress the power to legislate for the Territories, is the fear that Congress will prevent slavery in them. The reason for claiming the supreme right of legislation for the territorial inhabitants, is the hope that they will establish slavery within their borders. Must not that Democracy be false, which begets slavery as its natural offspring? If it has now been demonstrated that Congress has uniformly legislated, and can legislate, on the subject of slavery in the Territories, I proceed to consider the next question. Is it expedient to exclude slavery from them? Here, on the threshold, we are confronted with the claim that the gates shall be thrown wide open to the admission of slavery into the broad Western world; because, otherwise, the Southern or slave States would be debarred from enjoying their share of the common property of the Union. I meet this claim with a counter-claim. If, on the one hand, the consecration of this soil to freedom will exclude the slaveholders of the South; it is just as true, on the other hand, that the desecration of it to slavery will exclude the free men of the North. We, at the North, know too well the foundations of worldly prosperity and happiness; we know too well the sources of social and moral welfare, ever voluntarily to blend our fortunes with those of a community where slavery is tolerated. If our demand for free territory, then, excludes them, their demand for slave territory excludes us. Not one in five hundred of the freemen of the North could ever be induced to take his family and domicil himself in a territory where slavery exists. They know that the institution would impoverish their estate, * Mr. Madison thought the original ordinance to be clearly invalid. See Federalist, No. 38. It is just as clear that he thought the Constitution gave validity to it. See Federalist, No. 43. demoralize their children, and harrow their own consciences with an ever present sense of guilt, until those consciences, by force of habit and induration, should pass into that callous and more deplorable state, where continuous crime could be committed without the feeling of remorse. Sir, let me read a passage from Dr. Channing, written in 1793-fifty years ago-when, at the early age of nineteen, he lived for some time in Richmond, Va., as a tutor in a private family. While there, he wrote a letter, of which the following is an extract: "There is one object here which always depresses me. It is slavery. This alone would prevent me from ever settling in Virginia. Language cannot express my detestation of it. Master and slave! Nature never made such a distinction or established such a relation. Man, when forced to substitute the will of another for his own, ceases to be a moral agent; his title to the name of man is extinguished; he becomes a mere machine in the hands of his oppressor. No empire is so valuable as the empire of one's self. No right is so inseparable from humanity, and so necessary to the improvement of our species, as the right of exerting the powers which nature has given us in the pursuit of any and of every good which we can obtain without doing injury to others. Should you desire it, I will give you some idea of the situation and character of the negroes in Virginia. It is a subject so degrading to humanity, that I cannot dwell on it with pleasure. I should be obliged to show you every vice, heightened by every meanness, and added to every misery. The influence of slavery on the whites is almost as fatal as on the blacks themselves." This was written fifty years ago, by a young man from New England, only nineteen years old. I know that, on all subjects of philanthropy and ethics, Dr. Channing was half a century in advance of But the sentiments he expressed on this subject, at the close of the last century, are now the prevalent, deep-seated, feelings of Northern men, excepting, perhaps, a few cases, where these feelings have been corrupted by interest. his age. I repeat, then, that the North cannot shut out the South from the new territories by a law for excluding slavery, more effectually than the South will shut out the North by the fact of introducing slavery. Even admitting, then, that the law is equal for both North and South, I will show that all the equity is on the side of the North Sir, from the establishment of our independence by the treaty of 1783, to the time of the adoption of the Constitution, and for years afterwards, no trace is to be found of an intention to enlarge the bounds of our Republic; and it is well known that the treaty of 1803, for acquiring Louisiana, was acknowledged by Mr. Jefferson, who made it, to be unconstitutional. In 1787, the Magna Charta of perpetual freedom was secured to the Northwest territory. But the article excluding slavery from it had an earlier date than '87. On the 1st of March, 1784, Congress voted to accept a cession from the State of Virginia of her claim to the territory northwest of the Ohio river. The subject of providing a government for this and other territory was referred to a committee, consisting of Mr. Jefferson, Mr. Chase, of Maryland, and Mr. Howell, of Rhode Island. On the 19th of April, 1784, their report was considered. That report contained the following ever-memorable clause : That after the year 1800, of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said States, [they were spoken of as States, because, it was always contemplated to erect the territories into States,] otherwise than in punishment of crimes whereof the party shall have been convicted to have been personally guilty." Sir, we hear much said in our day of the Wilmot proviso against slavery. In former years, great credit has been given to Mr. Nathan Dane, of Massachusetts, for originating the 6th article, (against slavery,) in the ordinance of 1787. Sir, it is a misnomer to call this restrictive clause the "Wilmot proviso." It is the Jefferson proviso, and Mr. Jefferson should have the honor of it; and would to heaven that our Southern friends, who kneel so devoutly at his shrine, could be animated by that lofty spirit of freedom, that love for the rights of man, which alone can make the place of their devotion sacred. But what is most material to be observed here, is, that the plan of government reported by Mr. Jefferson, and acted upon by the Congress at that time, embraced all the "Western territory;" it embraced all the "territory ceded or to be ceded, by individual States to the United States." See Journals of Congress, April 23, 1784. If, then, we leave out Kentucky and Tennessee, as being parts of Virginia and North Carolina, all the residue of the territory North or South of the Ohio river, within the treaty limits of the United States, was intended, by the Jefferson proviso, to be rescued from the doom of slavery. For that proviso, there were sixteen votes, and only seven against it. Yet so singularly were these seven votes distributed, and so large a majority of the States did it require to pass an act, that it was lost. The whole of the representation from seven States voted for it unanimously. Only two States voted unanimously against it. Had but one of Mr. Jefferson's colleagues voted with him, and had Mr. Spaight, of North Carolina, voted for it, (only nine out of twenty three,) the restrictive clause in the report would have stood. But a minority of seven from the slaveholding States controlled a majority of sixteen from the free States,-omínous even at that early day of a fate that has now relentlessly pursued us for sixty years. That vote was certainly no more than a fair representation of the feeling of the country against slavery, at that time. It was with such a feeling that the " compromises of the Constitution," as they are called, were entered into. Nobody dreaded or dreamed of the extension of slavery beyond its then existing limits. Yet behold its aggressive march. Besides Kentucky and Tennessee, which I omit for reasons before intimated, seven new slave States have been added to the Union-Mississippi, Alabama, Missouri, Arkansas, Louisiana, Florida, and Texas-the last five out of territory not |