was then maintained, as now, among various sources of authority, that the right to admit new States carried with it the power to establish governments. "There are two purposes for which territory is held," said one of the most able and experienced members of the Senate, "the disposition of the soil and the erection of new States. Now, the right of governing new territory is necessary to the efficient exercise of both objects." And yet one power is expressly given ard the other withheld; and we are called upon to assume the latter, as if it were actually granted, for reasons as numerous almost as the speakers, but which would render a written constitution a plastic instrument, to be formed and moulded at the will of its creature, the legislative authority.

"The purpose," (of the right of government,) said another distinguished Senator, "is to train up a nation of freemen, and to fit them to share in the privileges of this Union." And the doctrine is pushed to as latitudinarian an extent as the loosest constructionist can desire, "Whatever," said the speaker, “is necessary to this object, Congress is authorized to do.”

The majority of the Committee on Territories, and the two members of the Senate whose opinions I have quoted, equally derive the authority to govern our colonial establishments from the power to admit new States into the Union. Whether with the same views to justify the action of Congress, or, in other words, with the same views as to the connexion between the power of government and the power of admission, so as to render the former a true constitutional auxiliary of the latter, I am at a loss to determine. The senatorial predecessors of the committee, in the annunciation of the origin of the power, trace it to the duty or necessity of training up freemen, and fitting them to share in the privileges of the Union, and to the training up of these infant communities under such institutions as may fit them to become members of our great confederacy.

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The following paragraph contains the position assumed and maintained by the committee; and, in whatever light it is viewed, it appears to me equally erroneous in theory and dangerous in practice:

"Is not the organization of a Territory eminently necessary and proper as a means of enabling the people thereof to form and mould their local and domestic institutions and establish a State government under the authority of the constitution, preparatory to its admission into the Union? If so, the right of Congress to pass the organic act for the temporary government is clearly included in the provision which authorizes the admission of new States."

I do not understand these views of the committee. When analyzed, it will be found that the power of instituting a Territorial government is claimed in a double capacity-first, as a means to enable Congress to enable the people to form and mould their institutions; and, second, to establish a State government. The forming and moulding of political institutions is a figurative expression-a dangerous process of reasoning in strict investigations; but it seems here to imply their adoption, and then their change, from time to time, till the work is completed by its adaptation to the wants or will of the community. In another part of the report it is declared, that the people must be left "entirely free" in the exertion of the rights of self-government; entirely free to regulate their domestic institutions and internal concerns in their own way, for such is substantially the proposition. This is a full measure of self-government; and, if the doctrine is correct, whatever provision in the organic law interferes with it interferes also with the constitution, and is void. The people, therefore, upon this political theory, must be left free to regulate, "in their own way," the election of governor, the appointment of judges and other officers, and the nature and extent of their duties, as well as the system of jurisprudence, or they are deprived of this "true freedom."

Experience is certainly desirable in the work of establishing a new system of laws for a new country a state of things designated as preparatory" to that permanent condition which admission to the Union brings with it. How far the committee consider this chrysalis state a kind of school in which the knowledge of self-government is to be acquired does not distinctly appear; whether the people are to be enabled to form and mould their institutions with a view to their practical operation during their subordinate condition, or as a means of learning how to exercise the rights and privileges which are to become their heritage. We have seen that distinguished senators have heretofore maintained upon this floor that the last object is the one which really confers upon Congress this disputed power. And the process of the committee would seem to indicate somewhat kindred views in the application of the power, as it indicates an identity of views in its derivation. For it is worthy of observation-perhaps, indeed, a significant fact that the protection of life and property and the preservation of order, the great objects of human governments, are not even alluded to by the committee as reasons for congressional interposition, nor is the necessity of legal organization for any such purposes sought to be derived from any express grant of power. There are those, and Judge McLean is among them, who, while they deny the authority to establish Territorial governments as directly included in the power to dispose of and regulate the public land, yet derive it as an incident from that provision, because the establishment of order among the emigrants would facilitate the sale and settlement of the land. Mr. Rhett also maintained that doctrine in the House of Representatives. But the committee, while claiming the same power, do not attempt to show in what manner it is an incident, or, in other words, how its exercise is necessary and proper to the exertion of the right to admit new States. They say, indeed, that the organization of a Territory is necessary and proper as a means of enabling the people thereof to form and mould their institutions, but there they stop. What bearing this work of forming and moulding has

upon the act of admission, so as to render it a just incident of that great power, we may in vain scarch the report to discover.

The doctrine is repeated, though in somewhat different language, in another part of the roport; but with the same defect in the process. We are told that "the organic act" "must leave the people entirely free to form and regulate their domestic institutions and their internal concerns in their own way," "to the end that, when they attain the requisite population and establish a State government, they may be admitted into the Union," "on an equal footing," &c. But we are not told how this "end," admission, is reached by the means indicated, the regulation of internal concerns; and I cannot supply this hiatus in the argument by maintaining that the power of government may be assumed, in order, by the establishment of law, that the prosperity of those remote communities may be promoted, and their population augmented with a view to their admission into the Union, because the adoption of such a principle might lead to very fearful consequences. It proceeds upon the assumption that Congress may, by virtue of the power to admit new States, take such measures as it may judge best calculated to facilitate their formation, and application and admission. A large discretion would be the result of the establishment of this doctrine, and how it might be used or abused it were preSumptuous to foretell.

The right to exclude slavery from each Territory, as an avowed means of promoting its growth and prosperity, would soon find friends and advocates in Congress, and perhaps, ere long, enough of them to make that measure a permanent one; and, as it is, the theory of the committee places the denial of this power of exclusion upon no very safe foundation; for it is urged upon the ground that the State must be admitted into the Union upon an equal footing with the original States. The proposition is incontrovertible; but its application to the intermediate condition of Territorial existence is not so clear. It would render all previous congressional interference void upon the formation of a new State; all prohibitions of s'avery would fall before the will of the people. But if the true reason for the restraint upon the action of Congress is given by the Committee-to wit: equal admission after the formation of a State constitution-it is difficult to see how this condition of things is to operate until the arrival of the period of political sovereignty. That the exercise of such an act of intermediate authority might have the effect to encourage the settlement of the country by a population favoring the restriction, there can be no doubt. But the question does not touch the effect upon emigration to the Territory, but upon the admission of the State. If the people composing it at the time of application for admission become free from all restraints but those imposed by the constitu tion upon sovereign States, then this great principle can hardly be said to have been violated, whatever circumstances may have preceded this last condition. That they are thus free is maintained, and justly, by the committee, because this equality is one of the fundamental principles of our institutions. Those who believe that civil government is essential to the new Territories, and that the right of Congress to establish it-the duty rather-is the result of necessity, whether arising from implication or otherwise, hold opinions which are free from this difficulty and danger, as Congress can exert its power no further than the necessity extends, and cannot reach the domestic relations of the people. In fact, if the view of the committee be the true one, it is not easy to prescribe boundaries to congressional legislation..

I have already said that the power to establish these temporary governments was not claimed by the committee as a means of securing public order; nor, if it were so claimed, do I see what effect such a measure could have upon the power of admission, which does not come into operation till the temporary organization is terminated, unless, indeed, the inadmissible one to which I have alluded, of controlling the condition of the country.

As to the exercise of political rights by any portion of the American people as a means of Improving their capacity for self-government, and of fitting them for any change before them, it is a principle of organization unknown to our institutions Governments are not established Es schools, where "free men are to be trained," and "fitted to become members of our great confederacy." And nothing but an entire misapprehension of the true functions of the general government could lead to this fundamental error, as to the nature of its just operation. This whole subject has been made the victim of fa se analogies instead of the object of constitutional inquiries; nor has the heresy been more prevalent in any branch of the controversy than in the derivation of the power of government from the necessity of political instruction. Our Territories are settled by our citizens, who all their lives have enjoyed the privilege of self-government. A man knows as much in a Territory as in a State, and is just as capable of discharging his political duties. He does not pass the boundary to learn the lesson of a freeman, but he passes it in order, by a life of industry and enterprise, to improve his condition, and to grow with the growth of the country.

I have said that the power of congressional government is claimed by the committee, not only as a means of enabling the people to form and mould their institutions, but also as a means of establishing a State government, preparatory to admission into the Union. I am here at fault again, and it is as to the "necessary and proper" connection between the institution of a government and its avowed purpose, which is to justify the action of Congress-namely, the establishment of a State government. Assuming that the power to establish States is among the granted powers which carry necessary and proper" incidents with them, is the machinery of Territorial governments an incident necessary to the exercise of this power by Congress? F confine the inquiry to this single purpose, leaving out of view the necessity of civil organization

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for the wants of society, because the latter is ignored by the committee, and the former constitutes the only ground on which they place this congressional right of interposition. I repeat, is the means constitutionally adapted to the end? The postulate is, that Congress may estab lish Territorial governments, in order to enable the people to establish State governments. But how? The only means known to our system is by the election of conventions. And how are these bodies to be elected? Cases have occurred, though they are the exceptions, which have been justified by the circumstances, in which the local authority has taken the initiative in calling conventions. But this is not a proceeding which the committee would sanction as an established one. The "means" to which they refer is the action of Congress authorizing the election and the convocation of a convention. And what, then, is left to the agency of a Territorial government in this change of political condition? The power to petition Congress, or, instead of that measure, the power to call upon the people to do so, either by vote or by direct application. And this interference, which is an assumed authority, exhausts the whole power of these Territorial legislatures. And we are now brought to this inquiry, is this intermediation, confined to this single object, such a necessary means as to justify the creation of a Territorial government with a jurisdiction extending over all the concerns of life? Why is any intermediation necessary? Why cannot Congress exercise the power itself, if it possess it, and receive the application of the people, and then provide for the election of a convention? Or, why not make early and previous provision, by which the wishes of the people can at any time be ascertained, thus rendering any other interference, either general or local, unnecessary? This principle was once adopted by the Congress of the confederation. It was in 1784, in an ordinance, the predecessor of that of 1787, and in some respects it superior, for it avoided the contested points which have made the latter a subject of long and bitter controversy; such as the articles of compact and the want of power to regulate governments, &c. It authorized the people upon any Indian cession to establish temporary governments for themselves; and it went still further, indicating the course for the Congress of the constitution to take, proper, not only in itself, but also, if all its authority over this subject is derived, as the committee intimates, from a power to enable the people of a Territory to establish a State government. That seems to have been the opinion in 1784 of the Congress of the confederation respecting the extent of its own authority. The ordinance provided :

"That when any such State shall have acquired twenty thousand free inhabitants, on giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a convention of representatives to establish a permanent constitution and government for themselves."

If, then, Congress has the constitutional power to enable the people of a Territory to establish a State government, it can exert that power without intermediation, and no other agency is required for that purpose. Still less is it necessary, or constitutional-if other means are resorted to that they should far exceed the necessity which can alone call them into being. If Territorial governments are required only as the means of enabling the people to apply to Congress to call a convention, how happens it that such governments are not confined to the object of their institution? Judge McLean lays it down as a principle

"That implied powers can only be exercised in carrying into effect a specific power; and this implication is limited to such measures as shall be appropriate to the object. This is an admitted and safe rule of construction. It is believed to be the only one which has been sanctioned by statesmen and jurists. Powers exercised beyond this are not derived from the constitution, but must depend upon unlimited discretion, and this is despotism."

This principle, in effect, receives the sanction of the committee, who admit that the organic law, deriving its validity from the power to admit new States, must be exercised with reference only to that end, and that "beyond that point the authority cannot extend." Then, sir, the constitutional power is to admit new States. The necessary means, forming the implied power, is an authority to enable the people to establish a State government; or, in other words, to form a Stare, by providing for the calling of a convention. What, then, becomes of the principle of limitation laid down by Judge McLean, and by the committee, that an implied power must be exercised, so far only as is necessary to carry into effect a granted power?-a principle by which the committee except from the jurisdiction of Congress the subject of slavery, and which, if carried to its legitimate conclusion, would except every power but the one which touches the convocation of a convention. How, then, are all the issues of life and death, all the social and political relations, all the objects for which governments are instituted-how are they brought within the jurisdiction of a local legislature, instituted for a single constitutional purpose, and that purpose connected with the action of the people in the formation of a new State? Is not this the "diffusive and ductile interpretation" of Mr. Madison? Does the power to admit new States create, in the words of Mr. Jefferson, a necessity, "invincible by any other means" than the complete organization of Territorial governments? I content myself with proposing these questions asked by two of the great expounders of constitutional law, avoiding the embarrassment of answering them.

Mr. President, the Senator to whom I first referred, as tracing the right to establish Territorial governments to the power to admit new States, calls the act of admission the erection of a new State. This is a grave error, and certainly much of the reasoning of the committee indicates their participation in it. The erection or formation of new States, and their admission into the Union, are separate and independent acts; the former belonging to the people, the latter

to Congress. Congress may rightfully pass any laws, necessary and proper--these are the words on the TABLET, for carrying into effect its granted power. What is the granted power touching new States? It is to admit them, and by virtue of that high trust to make legislative provision for all the measures which justly belong to that step in the career of self-government, such, perhaps, as ascertaining the wishes of the inhabitants, the taking of a census, and other proceedings having a direct bearing upon the act of admission. Congress cannot precede its exercise, for an almost indefinite period of time, by a series of measures relating not to the act itself, but to the government and institutions of a country over which the national legislation has no just control. Does not such a boundless latitude of construction, to quote the expressive language of Mr. Jefferson, "swallow up all the delegated powers," and leave to Congress to substitute its own will, under the name of discretion, for all the safeguards of the constitution? I find myself no clear power even to pass laws for the assembling of conventions, but it has often been done, though not always; and as its exercise calls for no interference with the rights of the people, but is designed to aid them in their progress to State sovereignty, I am not disposed to censure the practice.

In reviewing the history of our legislation over the Territories, it is obvious that the mould-ing of their own institutions by the people, whether with a view to knowledge or to admission, has constituted neither the motive for the action of Congress, nor the object it has sought to attain. It is numbers, not political intelligence, which have regulated the entrance of States. into the Union. When the system was commenced each State had one vote in Congress; and there would have been neither justice nor policy in permitting these small communities, with their sparse population, to take their places as coequals in the confederacy. They had, therefore, to occupy subordinate positions, till their numbers should enable them to share the duties and expenses, as well as the rights of the Union. If this condition is considered a school for the acquisition of poliucal knowledge, to " fit them to become members of our great confederacy," then there was much injustice dore to some of the scholars, or they did great injustice: to themselves, as is shown by their respective periods of tuition; for while the school of Ohio, under the name of a Territorial government, continued fourteen years, that of Tennessee occupied but six years, Louisiana seven years, and Iowa nine years; and while Alabama, the most precocious of the family, underwent but two years' "training" Michigan, it would appear, the least gifted of the sisters, required thirty years in order to be prepared for the full rights of majority."I need not say, sir, that all this analogical illustration is a mere effort of the imagination, and that the change was the result of numbers depending, for their augmentation,, upon the rapidity of emigration. And as to the agency of the people in moulding their institutions, as the foundation of civil government, the idea is a pleasant one, but it will hardly bear a close scrutiny. From the first Territorial government in 1757 to the last in 1854, there has not been one where the people have had the actual control of their institutions, so as to be able to "mould " them agrecably to their will. In all the earlier Territories, till within a few years indeed, there was a period called the first grade of government, when the laws were passed by the governor and judges, and during which the people had no more concern in the administration of their public affairs, executive, judicial, or legislative, than they had in those of China. When the free white male population, above the age of twenty-one years, reached the number of five thousand, then a legislature was organized, consisting of a house of representatives, elected by the people, and of a council appointed by the President from a list fur nished by the house.

I need not pursue this investigation to show how limited was the participation which the inhabitants had in the management of their political interests. After the cession of Louisiana. an act of Congress was passed giving authority to the President, (Mr. Jefferson.) to prescribe the manner in which all powers, "civil, military, and judicial," should be exercised. A poor school this for the people, but a good opportunity for a one-man. "moulding" of institutiona. The power, however, could not have been in safer hands I am well aware, sir, that these harsh examples of congressional interference settle no questions of constitutional law. I refer to the course of our legislative proceedings with relation to the Territories, to show that the reason given by the committee for the institution of these governments will not fully bear out the exercise of the authority in a single instance. Certainly a favorable change, for some time, has been going on in our system of Territorial administration. The interference of the general gov-ernment has been relaxing, and the political condition of the people improving. And I am happy in being able to render a tribute of justice to the honorable Senator of Illinois, the chair-man of the Committee on the Territories, by saying, that he has lent his powerful influence to these meliorations. The latest Territorial acts-those for the government of Kansas and Nebraska-introduced and most ably advocated by the Senator, are marked by this feature. They are more liberal, more just I should say, than any organic laws that preceded them.. They surrender the absolute veto of the governor, and the supervisory power of legislation by Congress. But even in these, and still more in other late acts-those for the government of Oregon, New Mexico, Utah, and Washington-there are provisions incompatible with the power of the people to form and mould their institutions at their own pleasure, and which make it undeniable that some other foundation than this must be resorted to as a justification for con-gressional action. In fact, it is difficult to see why this principle, if the true one, does not carry with it the entire right of government, uncontrolled by any external dictation; as, without exemption from interference, both in the Territory and elsewhere, the attainment of the very

object alleged to be the justification for the establishment of a government may be defeated, and their institutions prevented from being formed and moulded by the people.

I propose to review, very briefly, the reasons which have recently been offered in favor of the derivation of the power of governing the Territories from that clause of the constitution which rendered the new government responsible for the engagements of the old. During the last autumn there was quite a flourish of trumpets, either at the fancied discovery of this origin of congressional authority, or at the powerful arguments by which it was vindicated. This laudation was behind the time; for years ago this branch of the subject was fully considered and fairly exhausted. But the honorable Senator from Georgia, [Mr. TOOMBS,] in his able and interesting remarks upon these Kansas difficulties, to which we all listened with so much interest and pleasure, a short time since, presented views of this question upon the interrogatory of the Senator from New Hampshire, [Mr. HALE,] which met, like everything which falls from him, the careful attention of the Senate. I think the Senator was led into error; and as that error materially affects the positions he reached, I consider it important to examine it with a view to correct some of the conclusions.

In the first place, it is evident to me, not less from the subject-matter than from the words and the context, that the phrase, "debts contracted and engagements entered into," was never intended to touch the exercise of political power."

In the next place, the "engagements" referred to in the constitution must be "valid," in order to be obligatory by virtue of this clause. This self-styled compact never had any claim to validity-none whatever; it was void from its initiation.

1. Because the Congress of the confederation never had, as Mr. Madison said, "the least color of constitutional authority to establish Territorial governments," much less to make irrepealable compacts to regulate their destiny in all time to come. From the first word to the very last of the articles of confederation, there is not one which looks even to this power, or has the remotest reference to it. Let him who doubts this position examine the constitution of the confederation, and he will soon find his doubts removed.

2. A compact is an agreement-nothing more, nothing less; “a mutual appointment,” as Johnson says, "between two or more to do or to forbear something."

There was evidently in the minds of the framers of that ordinance an impression of their want of legislative power; and they sought to supply this defect of authority by endeavoring to convert what should have been an act of legislation into a compact or contract. Now, a contract must have two or more parties, each assenting to the instrument of agreement. But it is all idle to talk about the compacts in this ordinance of 1787. The articles so designated are destitute of the very first elements of reciprocal obligation. This arbitrary declaration is unilateral; it never had more than one party. That party was the Congress of the old confederation "overstepping its power," to borrow again the authority of Mr. Madison. The other party should have been the "people and States" (these are the descriptive words) of this new 'Territory, where there were then no States, and very few people. No assent was ever asked, none was ever given, either then or since, either expressly or by the most remote implication. Had the land been sold to the settlers upon condition that they should be considered as yielding their assent to this perpetual and unchangeable obligation, such an attempt to extort an unwilling obedience, and to barter great political rights and State equality for an unworthy consideration, though not defensible, might yet have been less reprehensible than this open attack upon the will of the people, the fundamental principle of the institutions of our country. But there was no resort to this expedient. The land was sold without condition, and the compact depends for its efficacy upon its own arbitrary authority. It must be recollected that, at the time this ordinance was passed, there were many thousands of people living in this Territory, settlers upon the Wabash, in the Illinois country, in the Detroit country, at Green Bay, at Prairie du Chien, and elsewhere, little colonies scattered over this extensive region, mostly relics of French enterprise; and they were all entitled by the treaty of peace to the privileges of American citizens. And still more it was declared in the deed of cession of Virginia; and as one of the conditions, that they should be "protected in the enjoyment of their rights and privileges." A precious kind of protection that, which inaugurated a new government by a falsely-styled compact, perpetually binding this transferred population to the most solemn obligations, without their assent, and even without their knowledge. These ancient inhabitants of the country constituted the counter party then actually existing; and this compact, by a kind of legislative legerdemain, was made forever binding upon them and their descendants. Why, sir, if there had been but one man in that country, instead of the thousands who occupied it, he would not have been bound by a contract he knew nothing of, and to which his assent was never asked. As to making a contract with unborn States and millions, by the simple act of a foreign body constituting itself one of the parties, and acting for the other, and without demanding its assent; now or hereafter, for all time to come, had we not witnessed the zeal with which this utter contempt of all the principles of law and ethics is maintained and defended, we might well doubt whether a single man could be found to contend for such a monstrous usurpation. Mr. President, the honorable Senator from Georgia, in discussing this branch of the subject, and in alluding to the transfer of the Territorial governments from the confederation to the constitution, remarked that " by that constitution Congress was bound by all the contracts of the old government." He then quotes the first act of Congress, extending the new power over the Territories, and making some necessary changes in the provisions of the ordinance to