33D CONG....2D SESS.

passing it, or with a view of getting a vote upon the proviso, but solely for the purpose of getting before the House the substitute from which the Clayton proviso was excluded, and of forcing a vote upon it under such circumstances as to preclude the possibility of getting that proviso in it. That substitute was never read in the House until the previous question was called upon its adoption, and a motion to amend by inserting the Clayton proviso would have been out of order. The bill was sent back to the Senate, and the distinguished Senator from Maryland [Mr. PEARCE] moved again the Clayton amendment. I desire, for a few minutes, to review the discussion which then took place. No discussion was had in this House upon it, because the amendment or proviso was retained until discussion was out of order, and a vote obliged to be had upon the substitute without it. Was that amendment right? Was it important? What I have said before in relation to the number of immigrants to this country, and the character of a large portion of them, goes very far to answer these questions. The Territories belong to the people of all the States of this Union. North Carolina has an interest in them as well as New Hampshire. And the people of North Carolina ask no further protection for their property in the Territories, than that which is guaranteed to them by the Constitution. In my humble opinion, they are unwilling to substitute for their constitutional rights that protection which may be found in alien suffrage and squatter sovereignty.

On offering the amendment Mr. PEARCE said: "Mr. President, my object in moving the amendment is obvious. I did not hear the debate in the Senate on the night when the amendment of the Senator from Delaware was adopted; but I take it for granted that the reason for that amendment was the conviction, on the part of the majority of the Senate, that the elective franchise should be conferred, within the Territories, upon citizens of the United States only. For my own part, I cannot conceive any reason why this privilege, which peculiarly belongs to citizenship, should be extended to those who are not citizens. It is a part of political sovereignty. It seems to be the essential duty of a citizen, but of no one else, to exercise that power. It is at war with the principles of all government, it seems to me, to confer upon those who are not citizens the power to control the Government through the right of suffrage. That right belongs only to those who are members of the body politic, and no foreigner can be so until he has, by naturalization, entered into the compact which constitutes him one of the political community."

The distinguished Senator then goes on to review the legislation of the country upon this subject, and shows that the right of suffrage, and of holding office, was limited in all the territorial bills, except for Oregon, Minnesota, and Washington, to citizens of the United States since the adoption of the Constitution, and prior to the adoption of the Constitution to citizens of some one of the States. In regard to the bills organizing governments for Oregon, Minnesota, and Washington, he says:

"The provision which extended the elective franchise to these who are not citizens, I think never entered in to the consideration of any member of the Senate." * "In regard to Oregon Territory, there was. erhaps, a peculiar reason why Congress should be more liberal than in regard to other Territories. I presume, however, that in regard to all of them, the provision was established in consequence of the attention of Congress being absorbed by subjects of much greater importance. Be that as it may, these three later precedents being the only cases of extending the franchise to those who are not citizens of the United States, and who have only declared their intention to become such, seems to be entitled, under the circumstances, to but little consideration; at all events, they should not overrule the precedents which Í have mentioned in the Territories of Missouri, Mississippi, Arkansas, Iowa, Wisconsin, Utah and New Mexico.

"But I see this bill provides that, while the alien, who may have come into the Territory only the day before, may entitle himself, by a declaration of his intention to become a citizen, to exercise

Nebraska and Kansas, &c.-Mr. Rogers.

this privilege of citizenship, and vote in the organization of the government, or in the election of those who are to conduct it, no officer, soldier, seaman, or marine, or any other person in the Army or Navy of the United States, shall be allowed to vote or hold office in the country.

"Mr. WALKER. I desire to correct the Senator. He shall not be entitled to vote by reason of being stationed there is the reason of it. He may be a resident and citizen elsewhere; and he is not to be allowed to vote by reason of being stationed in the Territory,

"Mr. PEARCE. Then, a man who is stationed there by orders of his Government, shall not be allowed to vote because he is a citizen of some State of the Union; but the alien, who may go in the day before he declares his intention to become a citizen, shall be entitled to vote, though not a citizen. That is practically declaring that our naturalization laws shall have no force at all in this Territory, and placing the newly arrived foreign emigrant above the citizen of the United States. I can conceive of no higher exercise of the right of citizenship than that of voting, unless it be the right of being elected a Representative; yet you propose to bestow it upon one who may never proceed further than the declaration of his intention to become a citizen, though that declaration may never be carried out, and the party may never become a citizen at all."

In this debate, Mr. BRODHEAD said: "I will only consider the section respecting the qualification of voters, which the honorable Senator from Maryland [Mr. PEARCE] has moved to amend by striking out the clause authorizing unnaturalized citizens to vote. The section authorizes all free white persons above the age of twenty-one to vote at the first election, including foreigners who have not become citizens, but have declared their intention to become such, and excluding the officers and soldiers of the Army. So that a foreigner, unacquainted with our language or laws, not twenty-four hours in the Territory, and who has not been in our country ten days, can vote, without paying a tax; and General Scott, if he happened to be there commanding our troops, could not. The honorable Senator from Maryland has moved what is called the Clayton amendment, which restricts the right to vote to those who are citizens, either native-born or those who have become such under our naturalization laws, and as I voted for it when the bill was before the Senate upon another occasion, and have seen no reason for changing my vote, I will do so again. The right to vote, and take part in the Government, is a high privilege, and I hold it should only be exercised by those who have become citizens, and entitled to the rights and immunities, and who have incurred the obligations, of citizenship." "The Constitution, in the eighth section, says, Congress may establish a uniform rule of naturalization.' Therefore, whenever Congress acts, it must make the rule uniform. Well, Congress has established a rule, by an act passed in 1801, requiring five years' residence before admission to citizenship; and now it is proposed to establish another rule for Nebraska. And what good reason can be given for it? Why should an alien have greater privileges in Nebraska than in Pennsylvania?" "And how does an

*

*

*

*

alien become a citizen in this country? only

under the clause of the Constitution which I have cited, and the act of Congress passed in pursuance thereof. And can the right to vote properly appertain to another than a citizen? If foreigners can have and enjoy the rights and privileges of citizens, the highest one of which is to vote, why did not our forefathers' establish a uniform rule of naturalization?' And why have so many aliens conformed to it?"

Mr. BRODHEAD concluded by saying: "I do not care who votes with me on this amendment. It is right. It is right and just to the aliens themselves. It is for the purpose of maintaining the Constitution and the rights of American citizens, and I will vote for it, be the consequences, to myself, what they may.'

An honorable Senator from Indiana, Mr. PETTIT, on the 24th of May, used this language:

"Mistake not yourselves, Senators, in supposing that every man who comes and resides here

Ho. OF REPS.

five years is better qualified to vote then, than others are the day they land. A great many of the men who come here, come well educated, weil read, well informed, and, indeed, know all the details of our own history and of our own Government, better than many Senators here know them. Then, sir, as a question of safety and strength to ourselves, give them, at the earliest moment you can, an interest in the country, and they will be Americans indeed, they will be Americans in heart as well as name. But keep them for five or ten years, deprive them of an early enjoyment of political privileges, and you tend to alienate them, instead of attaching their affections to you, your people, and the country, and its Constitution. Safety and prudence to ourselves, and justice to them, alike demand this policy, in my judgment."

The Senator's premises, it may, perhaps, be unbecoming in me to question, because he has been in daily intercourse with Senators, and therefore may be supposed to have had better opportunities of knowing than I have had, what their qualifications are; yet I may be permitted, without offense, to say that I know no Senator of whom his remark is correct. If, however, his premises be true, his conclusions certainly are. If these foreign immigrants know "all the details of our own history and of our own Government, better than many Senators," the sooner they are admitted to the rights and privileges of citizenship the better Americans they are. Why, certainly they ought to be invested with such rights and privileges at the earliest possible period, even before they land upon our soil, and with great haste those Senators from purely patriotic motives should resign their seats, and invoke their respective Legislatures, for the country's sake, to fill them with these better informed gentlemen, so as to attach their affections to Senators, the people and the country, and its Constitution. If they are not patriotic enough voluntarily to give place to their betters, the people ought certainly to see to it, as "a question of safety and strength to ourselves," that they be made to do what patriotism requires. Kossuth, according to this theory, with his notions of what our foreign policy should be, would, I suppose, make a Senator more acceptable to the American people-a Senator to whose care they could more safely trust their interest-than many Senators chosen by the States to represent them, on account of their supposed qualifications. All this may be so; yet I hope some little incredulity may be pardoned to me. I have too much confidence in the capacity and patriotism of Senators who have had the misfortune to be born in our country, to believe them below foreigners in these qualifications. I may be behind the age. I am certainly a plain, unpretending man, and not much addicted to the fashionable progress which marks our day.

To show further the importance of the Clayton proviso, I will read from the speech made by Senator BAYARD, on the evening the bill finally passed the Senate. He said:

"The House bill now before us has embodied in it a provision which makes it essentially different from the bill which passed the Senate, and the question now presented by the amendment offered by the honorable Senator from Maryland [Mr. PEARCE] is, whether the principle involved in that amendment is of sufficient relative importance to induce those who are otherwise in favor of the bill, to hazard its rejection, or even to vote against it, if that amendment be not adopted.

"So great, Mr. President, in my opinion, is the importance of the amendment, that though I shall be unwilling to vote against the bill, from deference to the opinions of the many Senators, for whose judgment I entertain the most profound respect, and with whose views I am happy to find my own generally accord, and also because I cordially concur in support of the principles upon which the bill is based; yet, with my convictions, I cannot record my vote in favor of any bill which sanctions a principle so objectionable as that which will be disavowed and disapproved of by the adoption of this amendment.

"It is very evident that the relative importance, in his estimation, of the principles involved in the bill, and that which arises under the proposed amendment, must determine the vote of every

33D CONG....2d Sess.

of more importance for the consideration of a statesman than this very amendment.

"Sir, the Territories to which this amendment is to be applied, are not like any other Territories over which we ever undertook to extend our laws. They are computed to embrace within their limits more than five hundred thousand square miles. Both together form a territory capable of holding the population of an immense empire, larger in area than twelve such States as New York. The principles which Congress shall establish for that Territory in the incipient stages of the governments there formed, will, probably, nay, almost certainly, be perpetuated; at least, we may expect they will last for ages to come. Whatever may be the principle adopted now on the subject of the suffrage of aliens; rely upon it, that same principle will govern in the establishment of a constitution both for Kansas and Nebraska, because, if aliens be allowed to vote under the -erritorial governments, they will assist in the formation of the constitution, and, of course, will provide for the votes of aliens under the State governments."

The distinguished Senator then goes on to state that it is unconstitutional to admit a State into the Union with a clause in her constitution allowing aliens to vote, and proceeds to prove it; before doing so, however, he speaks of the immense immigration to this country, and urges that as another reason which made the amendment one of vast importance. He stated that in one day, "within the last week," twelve thousand four hundred foreign immigrants were landed in the city of New York, that within ten days twenty thousand arrived at that single port, and that in one month, more entered the city of New York than the whole foreign immigration amounted to for any one year past. He then goes on:

*

"Do

"The computation in the statement to which I have referred is, that such is the extent of immigration, that during the current year, in all the ports of the United States, it will exceed seven hundred and fifty thousand, comprehending, if we are to adopt the principle of the bill as it comes from the House of Representatives, some two hundred thousand alien voters.' you not see from these facts how important is the question upon which the Senate is called upon to decide? It is a question upon the decision of which, the happiness and the prosperity of countless millions in ages to come may depend. It is a question, perhaps, upon the decision of which the very stability and safety of our Union may depend. It is a question whose bearings and relations are greater and more extensive than I will attempt to depict or describe. Every intellectual and patriotic citizen may feel them, and understand them, without my dwelling upon them."

"I ought to remind the Senate in this connection, that the right to vote is the right to govern, and that the utter fallacy of the boast so often made by the friends of this bill, that it confers on our people the right of self-government, is demonstrated by the very statement of the fact that aliens who will have no interest in the soil, and who may have just escaped from the prisons of Europe, or who do not understand the first principles of our Government, will have the power to vote, and by reason of that, the power to govern American citizens who may remove to that region. Of all the rights known to a true American, the right to vote is regarded as the most important to him as a freeman. He would forfeit his life rather than fail to defend and protect it. This is the true right of self-government in our Republic. Here is the fountain from which our current runs, or bears no life.' But if a stranger who has no interest here, and is utterly incapable of understanding our intitutions when he first lands on our soil, is to be allowed to neutralize all the influence of an intelligent and true American citizen by killing his vote,' as the phrase is, the rights of that citizen are as effectually invaded, as if power was given to that foreigner to deprive him of his vote.'

of an alien in one State or Territory, that act is unconstitutional because it is not uniform throughout the United States. I read again, Congress

circumstances under which Michigan made her application to be admitted into the Union as a State in 1836, and the positions taken by distinguished statesmen with regard to it. Michigan" cannot, by a direct law, allow an alien to vote in had in her constitution a clause, allowing aliens to vote, and objection was made to her limits as defined for herself. It was necessary that her constitution should be revised by her convention; and Mr. Wright introduced a proposition, allow-|| ing in general terms, "the people" to vote in the election of delegates for that purpose. To that proposition, Mr. Porter, of Louisiana, who was pronounced "one of the first jurist of the country at that time," Mr. Clay, Mr. Calhoun, and other distinguished statesmen, objected. A debate sprung up, in which those distinguished statesmen participated, and from which I desire to read, before I conclude; but before doing so, I propose to state the argument of Mr. CLAYTON, as to the true construction of the Constitution of the United States upon this subject of alien suffrage. He first defines alien and citizen. He said:

"A citizen is not an alien, and an alien is not a citizen. A citizen may be defined to be any person residing in any State or Territory of the United States, who enjoys all the rights, privileges, and immunities of a man of full age, born and resident in those States or Territories. What is naturalization? It is sufficient for my purpose to define it as that process by which the Congress of the United States removes the disabilities of alienage. Now, what are the disabilities of alienage? In the first place, an alien cannot vote unless the power is specially conferred on him. In the next place, an alien is not entitled to, and cannot demand, protection from the Government. He is under no obligations to it, and he may make war upon it, without incurring the penalties of treason. These are all known and acknowledged disabilities of alienage. The disqualification of an alien to vote, does not arise merely from an act of Congress, or an act of a State Legislature. It exists as an incident to alienage here and everywhere. It must be removed by competent authority, and by positive enactment, before an alien can exercise the right of suffrage. It is inherent in the very nature of alienage that it cannot exercise a right by which it may govern others. There can be no just ideas of popular rights and national sovereignty, or national independence, where the notion prevails that an alien ought to vote. Give this right to foreigners, as is proposed by this bill, and you surrender all that distinguishes him from an American. Nay, you give these rights to strangers, with whom you may be at war to-morrow, while you refuse to your own citizens in one State, the right to vote in another. For, by the law of nearly every State in this Union, some qualification is required for a voter besides naturalization; and generally, among others, residence for a stated period is an indispensable prerequisite. But, by the provisions of this bill, any alien may vote in these Territories without previous residence, or paying a cent of tax to support the Government, which he is to control by his vote.

"Now, sir, naturalization being nothing more or less than the removal of the disabilities of alien

་

age, Congress can pass a law for that purpose, provided it be uniform,' either for the removal of the whole of these disabilities in our law, or for the removal of any one, two, or three, or any other number, in separate bills or laws. That influence flows irresistibly from the previous position. Congress, therefore, has the power, under the Constitution of the United States, to provide that aliens may vote in all the States and Territories, subject in the States to such restrictions as a State may impose in the exercise of its reserved powers, on all voters. That would be naturalization pro tanto; that is, to that extent, it would remove the disability of alienage, and it would be constitutional, because it would be uniform."

uralize or create a citizen for one State or Territory and refuse to the same person the rights and privileges of citizenship in another State or Territory. And if it attempts to remove any of the disabilities

Virginia, and deny him the right to vote in Delaware. If this does follow, as I think it clearly does, then I undertake to say that Congress cannot grant exemption from any disability in Nebraska, and refuse it in the other Territories, and in the States of the Union, without violating that clause in the Constitution of the Union, which declares that Congress shall have power to make uniform ' laws of naturalization. A law removing all the disabilities of alienage, and thus making them citizens in Nebraska, and yet, not extending that provision to the other Territories and States would be, I suppose, by every body, admitted to be unconstitutional. Then, is it not a fair and irresistable consequence, that if Congress only remove a part of the disabilities of alienage, or if it proceed but partially on pro tanto, to naturalize the aliens in Nebraska without extending the same privilege to other sections of the United States, it is decidedly and clearly unconstitutional."

I desire now to make some short extracts from the speech of Mr. CALHOUN, made in the debate to which I have before alluded, on the application of Michigan to be admitted into the Union as a State. A motion was made to recommit the bill to a committee, on account of objectionable features in it relating to suffrage and the boundaries of the proposed State. Mr. Wright moved to amend by allowing" the people" to vote for delegates to her convention. Mr. Clay moved to amend the amendment, so as to restrict the right of suffrage to "male citizens of the United States of twentyone years of age." Mr. CALHOUN sustained Mr. Clay's amendment, and among other things said:

"The Constitution confers on Congress the authority to pass uniform laws of naturalization. This will not be questioned, nor will it be that the effect of naturalization is to remove alienage." "To remove alienage is simply to put the foreigner in the condition of a native-born. To this extent the act of naturalization goes, and no further."

*

"The next position I assume is no less certain, that where Congress has exercised its authority by passing a uniform law of naturalization, (as it has) it excludes the right of exercising a similar authority on the part of the State. To suppose that the States could pass naturalization acts of their own, after Congress had passed a uniform law of naturalization, would be to make the provision in the Constitution nugatory. I do not deem it necessary to dwell on this point, as I understand my colleague as acquiescing in its cor

rectness."

I propose to take one more extract from Mr. Calhoun's speech, which I think is conclusive, and has direct application to the constitutionality of the Nebraska and Kansas bill, as it passed Congress. If the position taken by that distinguished statesman is true, the bill as it now is on our statute-book, with the clause in it allowing aliens to vote, is unconstitutional. We have naturalization laws. They require five years residence. Until they are repealed, any other law making the residence longer or shorter, would be unconstitutional, and when repealed, any law which is not uniform throughout the United States would be equally unconstitutional. Mr. CALHOUN said:

"If it be meant by the people of Michigan, the qualified voters under her incipient constitution, (as stated by the Senator from New York,) then are we sanctioning the right of aliens to vote. Michigan has attempted to confer this right on that portion of her inhabitants. She has no authority to confer such right under the Constitution. I have conclusively shown that a State does not possess it, much less a Territory, which possesses no power, except, such as is conferred by Congress. Congress has conferred no such power on Michigan, nor indeed could confer it, as it has no authority under the Constitution over the subject, except to pass uniform laws of naturalization."

So I think I have clearly stated and fully shown, from authority of great weight, that the clause in

33D CONG....2D SESS.

the Nebraska and Kansas bill allowing foreigners to vote, is not only against the spirit, but against the letter of the Constitution. Whenever Congress acts upon the subject of making citizens out of foreigners, its action must be uniform throughout the United States, and the United States, unquestionably, embraces the Territories as well as the States. With regard to suffrage there is but one difference between the States and the Territories. The States may require some further qualifications for the exercise of suffrage besides citizenship-they may require a residence for a period of time, paying taxes, &c. But the Territories can require no such additional qualifications. They can have no power over the subject except that which is given to them by Congress; and Congress cannot grant them a power which is not extended to all the States, because the Constitution requires the action of Congress upon the subject of naturalization to be uniform throughout the United States. Apart from the question of constitutionality, I might discuss this question further as one of policy. Suppose North Carolina could and were to allow foreigners to vote; in case of war what would be our condition? We might have in our midst persons exercising the right of suffrage who owed no allegiance to our country, but to the country with which we were at war, whose property would be liable to confiscation, and who had resting upon them none of the obligations of citizens. I will read one extract further from Mr. CLAYTON's speech. He said:

"Mr. President, there is another clause in the same section of this bill, which, after the first election at which aliens are to vote, allows the local Legislature, whose constituents are called here the squatter sovereigns, to regulate the qualifications of all voters at future elections. Thus the power of naturalizing foreigners in these Territories in the same way, is transferred to a Territorial Legislature, when all confess that no State Legislature can exercise such a power."

I might produce additional authority from the speeches and writings of the most distinguished jurists, statesmen, and patriots of which our country can boast, to sustain my position against alien suffrage, including a great many of both political parties, but it would occupy too much time.

have

I propose now to consider two other objections to the bill, of less importance, as I conceive, than the first; but still of grave consideration-and being taken in connection with alien suffrage-of such overwhelming influence as to control my action in opposing a large majority from my own section of country. I will consider squatter sovereignty. It is difficult to disconnect squatter Sovereignty, and alien suffrage, of which spoken at length, because the aliens may be a portion of those who are designated squatter sovereigns, and, I think, the most objectionable portion. I propose, however, to speak of the principle. A large and respectable party in this country has ever contended that Congress has no constitutional power to legislate upon the subject of slavery in the Territories. I believe that the most of my constituents once held that opinion. Whether Congress has such constitutional power or not, I will not argue. If Congress has not, the Nebraska and Kansas bill is clearly unconstitutional. It is admitted on all hands, that neither the people of the Territories, nor their Territorial Legislatures, have any political power which is not derived from Congress. In fact, they have no political existence until they are invested with it by Congress. That political existence, and all the powers attaching to it, must have their origin in a grant from Congress, which grant may be in language expressly or impliedly giving the power to act. Remember, I am speaking of political, and not civil rights.

Then, when we hear it said that the people of these Territories are left to act as they please while living under a territorial government, either to establish or prohibit slavery within their territorial limits, the meaning is nothing more nor less, nor can be anything more nor less, than that the people of the Territories are invested with such political authority, as to enable their Legislatures to act. That authority may be granted in express or implied terms. A mere declaration of the opinion of Congress, one way or another, will not con

Nebraska and Kansas, &c.-Mr. Rogers.

fer such authority. The declaration must embrace in it a grant of power. Congress cannot delegate or grant an authority which it has not got, and cannot exercise itself. If the Territorial Legislatures for Kansas and Nebraska can exclude or establish slavery within their limits, where did they get their authority? Unquestionably, from Congress. Now, what follows from this? Either the Nebraska and Kansas bill is unconstitutional, or that large and respectable party-and among them a great many of my constituents-have been wrong in asserting the doctrine that Congress has no power to legislate upon the subject of slavery in the Territories. And another thing follows too, if the Missouri compromise was unconstitutional, so is the Nebraska and Kansas bill; for the only difference between them is this: In the case of the Missouri compromise, Congress exercised its power directly by its own act, while in the case of the Kansas and Nebraska bill, it delegated the power to act to the people of the Territories through their respective Legislatures.

My view of the subject is this: Whether Congress has the constitutional power to establish or exclude slavery from the Territories or not, it ought never to exercise such a power, neither ought; it to delegate, or attempt to delegate, such power to any subordinate legislative assembly. The Territories belong to all the States of this Union; citizens of North Carolina have the same right to migrate to the Territories with their property as the citizens of Maine, and in the absence of legislation, I am well satisfied that the courts for the Territories, organized under the Constitution, would be bound to protect the citizen from North Carolina in his right to hold his property, whether that property be in slaves or not, just as much as they are bound to protect the citizen from Maine in his right to hold his property. The Constitution recognizes property in slaves; the courts can neither create property, nor abolish property; they can only determine the rights concerning it, under the Constitution and laws that exist.

Let the rights of persons in the Territories to hold their property, of what kind soever, be dependent, and rest solely upon their rights under the Constitution. The people of North Carolina, in my opinion are willing to rely upon the protection which is given them by that instrument, whether they remain at home or move to the Territories. They ask nothing more, and that much they have a right to demand. During the progress of the discussion upon the Nebraska and Kansas bill, it was insisted by many Southern gentlemen that squatter sovereignty was not recognized in the bill, and that the question of slavery could not be determined by the people of the Territory until they formed their constitution, with the view of being admitted into the Union as a State. It is now conceded on all hands that such is not the fact. Mr. Cass, on the night the bill passed, congratulated the Senate and the country that the doctrine of his Nicholson letter had triumphed, and that the so much abused and despised principle, styled squatter sovereignty, had been sanctioned by an American Senate, with unparalleled unanimity. Can any man who heard the discussions, or read the newspapers in North Carolina, and, in fact, throughout the whole South, during the canvass of 1848, ever forget with what bitterness this doctrine was denounced? It was insisted by a great many of General Cass's friends that no such doctrine was contained in this famous letter, and his political friends and enemies denounced the doctrine itself. Yet, strange to say, those who now oppose this doctrine, who act consistently with their former action, who act consistently with the former action of almost the entire South, and I may say a large majority of the whole country, are denounced in almost as unmeasured terms as the doctrine itself then was.

During the pendency of the measures of 1850, this doctrine was discussed in connection with the Nicholson letter, and was condemned, I think, by every southern Senator who spoke upon the subject. Among those distinguished statesmen were the best men of both political parties. In that discussion Mr. CASS said:

"Mr. President, a letter of mine, which seems to have become somewhat historical, has been so often referred to in this discussion, and so many

HO. OF REPS.

constructions have been put upon it, that I feel called upon to read a portion of it, that it may speak for itself." * "My friend from Louisiana [Mr. Downs] has remarked that the Senate has already been confounded with a number of explanations of that letter. Sir, I repeat again, what I said emphatically upon a former occasion, that, if any man misunderstands that letter, the fault is his, not mine."

"Speaking of the rights to establish territorial government, I say:

"But certain it is that the principle of interference should not be carried beyond the necessary implication which produces it. It should be limited to the creation of proper governments for new countries acquired or settled, and to the necessary provision for their eventual admission into the Union, leaving, in the mean time, to the people inhabiting them to regulate their internal concerns in their own way.'

"Is there one man on this floor who has now any doubt as to the true interpretation of this letter? Now, that the excitement of an election has passed away, and we can all look coolly to things as they are, is there any man here, or elsewhere, who can put any other construction upon this letter, than that which its words plainly import, that, in the 'mean time,' during the pendency of the territorial governments, they should be allowed to manage their own concerns in their own way?' Does not slavery come within this category?"

This was the doctrine of the Nicholson letter as clearly announced in 1850. Was it so understood in 1848, in North Carolina, or in the South, while General Cass was up for the Presidency? I think not. But let us follow up this debate a little further. In that debate Mr. WEBSTER stated:

"But the whole question in this case, I understand to be just this: whether the establishment or exclusion of slavery shall be left to the people in the Territories to decide when they come to form a State government. Now, it is agreed on all hands that it is a matter of municipal law. We know that if slavery were introduced into the Territories, the moment the people formed a State government they could abolish it. On the other hand, if it were prohibited, the moment they formed a State government they could introduce it, if they saw fit. Nevertheless it is not upon that ground that I proceed, though I think it is a very proper ground. I conceive that the proper mode of proceeding is to leave this matter to State legislation, after the Territories shall have become States."

I give this extract from Mr. Webster's speech to show his view, as I understand it, upon this subject of squatter sovereignty. From this extract

it

appears that he was in favor of true non-intersubject of slavery in the Territories, neither should vention. Congress should not legislate upon the it delegate such power to the Territorial Legislature. It might be properly insisted, that, when the constitution upon which admission into the Union was asked, was submitted to Congress, the question of slavery should be determined by that constitution, because the Territory was then about to be invested with sovereignty. But that was not the best mode of proceeding, according to his view. Let Congress be silent upon the subject of slavery in the Territories; let the Territorial Legislature be silent upon the subject, because it could only speak what it had been authorized to speak through Congress; and let the constitution, to be submitted to Congress by the Territory when she proposes to become a State, be silent upon the subject. If this could be so, all pretense for sectional agitation would be effectually removed from the Halls of Congress, and from the Territories also. Then the rights of persons and of property in the Territories would be determined by the courts authorized under the Constitution.

And, as I understand it, that is the true doctrine of non-intervention. The Territorial Legislature the intervention of Congress. And all persons, on can legislate upon no subject, unless it be through all sides, admit such to be the case, except those who hold that the people of the Territories have an inherent and inalienable right to suffrage, and consequently the power to legislate; which tends, as I have shown in a former part of my remarks, directly to denationalization.

To understand this matter more thoroughly, and to see the positions assumed by parties and

33D CONG....2d Sess.

men in 1850, with regard to the extent of authority which should be given to the people of the Territories over the subject of slavery during the pendency of their territorial existence, I beg leave to call attention more particularly to the measures proposed by the compromise committee of thirteen, the amendments proposed to those measures, the debate thereon, and the votes as recorded in the Senate Journal. The extracts which I have read from speeches made by Mr. Webster and General Cass are parts of the same debate.

The tenth section of the compromise bill, relating to Utah, as reported by the select committee of thirteen, is as follows:

"And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil, nor in respect to African slavery," &c.

The twenty-seventh section of the same bill, having reference to the Territory of New Mexico, is in the same words. I will read a portion of that part of the report of the committee submitted to the Senate by Mr. CLAY, which has reference to these sections:

*

"The bill for the establishment of the two Territories, it will be observed, omits the Wilmot proviso on the one hand, and, on the other, makes no provision for the introduction of slavery into any part of the new Territories. That proviso has been the fruitful source of distraction and agitation." * "It is high time that the wounds which it has inflicted should be healed up and closed; and that, to avoid in all future time the agitations which must be produced by the conflict of opinion on the slavery question, existing, as this institution does, in some of the States, and prohibited, as it is, in others, the true principle which ought to regulate the action of Congress in forming territorial governments for each newly acquired domain is, to refrain from all legislation on the subject in the Territory acquired so long as it retains the territorial form of government, leaving it to the people of such Territory, when they have attained to a condition which entitles them to admission as a State, to decide for themselves the question of the allowance or prohibition of domestic slavery. The committee believe that they express the anxious desire of an immense majority of the people of the United States, when they declare that it is high time that good feeling, harmony, and fraternal sentiments should be again revived, and that the Government should be able once more to proceed in its great operations to promote the happiness and prosperity of the country undisturbed by this distracting cause.

I propose now to read some amendments which were proposed and discussed, which will show clearly the position taken by the South, in 1850, upon this important question; and which shows that, whether I was right or wrong in voting against this Nebraska and Kansas bill, incumbered as it was with squatter sovereignty and alien suffrage, my position was sustained in 1850 by every southern Senator in Congress but one, both in the debates which took place then, and in the votes which were recorded to evidence their conclusions. I will first read the amendment offered by Mr. PRATT, as modified and adopted by Mr. Davis, the present Secretary of War, to the sections of the compromise bill which I have before read:

"Strike out the words in respect to,' and insert 'to introduce or exclude,' and after the word 'slavery,' to insert the following proviso:

"Provided, That nothing herein contained shall be construed to prevent said Territorial Legislature passing such laws as may be necessary for the protection of the rights of property of any kind which may have been, or may be hereafter, conformably to the Constitution and laws of the United States, held in, or introduced into, said Territory." Upon this amendment, Mr. CLAY said: "Mr. President, the amendment proposed by the Senator from Mississippi is, that the restraining clause upon the power of the Legislature shall not be so exercised as to prohibit the protection necessary to any property in the Territory, according to the Constitution and laws of the United States. I believe I state substantially the effect of the amendment, although I am not prepared to give the words.

"Mr. Davis, of Mississippi. Yes, that is it.

"Mr. CLAY. I have no particular objection to that amendment, because, if there be a local law abolishing slavery, and there be in the Constitution and laws of the United States authority given to carry slaves into the Territory, then those laws and that Constitution abrogate the local law. It is, in fact, a legislative assertion of what would result without any legislative enactment; for, if you were silent upon the subject of legislation either way, in point of fact, the provision in the Constitution and laws of the United States which authorizes the introduction of slaves into the ceded Territory, would, without any declaration in the bill, have the effect which I have stated, of abrogating the local law which forbids it."**" Nor do I see, sir, that by implication, as has been asserted, it may be concluded that this amendment of the Senator from Mississippi will authorize, under the Constitution and laws of the United States, the I do not think that there is any such implication. introduction of slavery into the ceded Territory. I repeat, I think that it is adding nothing more

than that which would result without the enactment of the provision offered by the Senator from Mississippi."

Mr. DAVIS's amendment was opposed by northern Senators, and, in reply to them, he said: "It has very strangely been my fortune, through every modification of this amendment-and I have tried to modify it so as to meet the views of those who are willing to give us our constitutional rights-it has very strangely been my fortune, I say, when claiming that the territorial legislation shall not be restricted from giving to slave property the protection it is allowed to give to other property, to be constantly regarded as though I sought from Congress a declaration of what our rights are. I have not sought it; I would not take it. I never yet have consented, and never will, to allow Congress to measure the constitutional rights of the South. Why, sir, it would border upon fatuity, if one representing the minority of this Union should come forward to ask the exercise of such an authority here.

At this point I desire to say one thing. In the bill for Kansas and Nebraska, Congress did not declare what the constitutional rights of the South should be in those Territories; but it assumed the power to do so, and, by virtue of that power, delegated to the Territorial Legislature the authority to declare what they shall be, within their limits, for all time to come. If Congress has not the power to say what our constitutional rights are in the Territories, unquestionably it has not power to authorize the Territorial Legislature or the people of the Territories, to do so. Mr. DAVIS further said:

"A word now to the Senator from Illinois, [Mr. DOUGLAS] It is to his argument that I address myself. The difference between the Senator and myself consists in who are a people. The Senator says that the inhabitants of a Territory have a right to decide what their institutions shall be. When? By what authority? How many of them? Does the Senator tell me, as he said once before, from the authority of God? Then one man goes into a Territory and establishes the fundamental law for all time to come. It would then be, unquestionably, the unanimous opinion of what that law should be; and are the citizens of the United States, joint owners of that Territory, to be excluded because one man chooses to exclude all others who might come there? That is the doctrine, carried out to its full extent. I claim that a people having Sovereignty over a Territory have power to decide what their institutions shall be. That is the Democratic doctrine, as I have always understood it; and, under our Constitution, the inhabitants of the Territories acquire that right whenever the United States surrender the sovereignty to them by consenting that they shall become States of the Union, and they have no such right before. The difference, then, between the Senator from Illinois and myself is, the point at which the people do possess and may assert this right. It is not the inhabitants of the Territory, but the people as a political body, the people organized, who have the right; and, on becoming a State, by the authority of the United States, exercising sovereignty over the Territory, they may establish a fundamental law for all time to come.

HO. OF REPS.

"Then, again, the Senator states what, during the last presidential canvass, was his position in relation to the doctrine of non-intervention. I am sorry to hear him state it as he has."

Speaking of the amendment offered by Mr. Davis, Mr. DOUGLAS uses this language:

"I am satisfied, sir, it gives no strength to the bill; I am satisfied even if it did give strength to it, that it ought not to be there, because it is a violation of principle-a violation of that principle upon which we have all rested our defense of the course we have taken upon this question. 1 do not see which we have taken, (that of non-interference,) how those of us, who have taken the position and have argued in favor of the right of the people to legislate for themselves on this question, can support such a provision without abandoning all the arguments which we urged in the presidential that letter, which is known as the Nicholson forth by the honorable Senator from Michigan in campaign in the year 1848, and the principles set

letter.'

What I read from Mr. Davis's speech a moment ago, is what he said in reply to the remarks of Mr. DOUGLAS, from which I have just finished reading. Again, Mr. Davis said:

"I am glad to have the Senator in a more tangible position than when he resorted to Divine power for authority; he now locates it in Congress; and he now establishes the point at which the people of the Territories begin to assume to exercise these powers of legislation to be when they receive the power from Congress. Then the question comes back at once, what is the authority of Congress? Over what subjects can we legislate or confer authority on the people of the Territories to legislate? If Congress have power to decide what shall be property, to lay down the bounds and limits within which a certain species of property shall be held, beyond which it shall never pass, then, perhaps, it can confer the authority on the people of the Territory which is claimed, not otherwise."

At this point, I desire to make one suggestion, although it would properly come in later in my remarks. It has been said, time and again, and by those who hold the same construction of the Constitution upon this subject as Mr. Davis, that the Nebraska and Kansas bill should have been voted for, if for no other reason, because it repealed the Missouri restriction, which was unconstitutional. Now, if his positions are true, that Congress has no power to establish or exclude slavery from the Territories, nor any power to authorize the Territorial Legislature to legislate to that extent until they shall be invested with sovereignty as a State, is it not clear that the Nebraska and Kansas bill is unconstitutional also? for no one claims that the Territories by that bill are invested with sovereignty as a State. During their territorial existence they can exercise only such powers as Congress could exercise during the same condition of things upon matters involving the constitutional rights of the people of all the States, who own jointly these Territories. It is said that the Missouri compromise was unconstitutional, because it prohibited slavery north of 36° 30', in that Congress had no power to impose such a restriction, or to legislate upon the subject of slavery at all in the Territories, either to establish it or to exclude it. If Congress has not the power to impose such a restriction, unquestionably it has no power to delegate such authority to the people of the Territory as to enable them to impose such a restriction. I know it is said that Congress has not delegated such authority, but it has been silent upon the subject, and left the people of the Territory to manage their own concerns in their own way. That explanation will not do. It never has been insisted by any body that the Territorial Legislatures or the people of the Territories derived any power from but two sources-from Divine authority, and from Congress. No one that I know now claims that they derive any from the former, and if they do the preceding part of my remarks, I think, shows how utterly untenable such a doctrine is; and, as to the latter, if Congress does not grant the power, expressly or impliedly, it cannot be exercised. It matters not what the language is, unless it comprehends a grant of power none can be exercised. In my opinion, without arguing the constitutional question at all, the true doctrine