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a government in which they were not rep- | votes in the Senate have the States any resented, and which would become their influence in the matter. Senators, in natural enemy. Had there been a power the performance of their duty, defend ful aristocracy,—had there been many free the rights of their several State governcommercial cities,--had there been a great ments, but it may well be asked, what good national church, holding political power ;- they hope to effect by using a lanit would have been necessary to the peace guage that implies for the representation of the nation, that these powers be repre- of States, in the Senate, a power which sented in Congress. But, as it happened, belongs to them only in conjunction with there was no aristocracy, there was no the House and the Executive ? powerful church, there were no independ And here, in the midst of other matter ent cities,—there were only two recognized for question, we stumble upon a new docpowers, first, the body of the nation, peers, trine offered by Mr. Calhoun,—that slave speaking one language, and forming that property, “ the only species of property equal band of freemen who fought the recognized,” says he, by the Constitubattle of the revolution,-and, second, the tion, (!)—was also“ the only one that entergoverning bodies of the States. These ed into its formation as a political power,” (!) latter demanded representation, and re -“ and this is the only one that is put ceived it in the SENATE.
under the express guarantee of the ConIn a government composed in this man stitution,” he adds. And this is offered as ner of all the elements of national power, a member of an argument limiting the an authority less than imperial cannot be power of Congress over slavery in the supposed to exist, nor would it require a territory! labored argument to show, that the author To this the reply is simple,-first, that ity thus constituted is as great as the na the word “slave' is not used in the Contion can require, in any exigent of peace or stitution at all, and that it is not literally
true that the Constitution recognizes slave Containing, in the House, the authority property. The Constitution assumed no derived from the consent of all the citi- power over slavery in the States, and zens; in the Senate, that which is derived would neither recognize, nor not recognize, from the governing bodies of the States ; it. But when it came to apportion repreand in the Executive, an union of both ; sentation by population, it was obliged to and all limited, and strictly subordinated, reckon in all descriptions of persons, withby a Constitution, anterior and superior to out naming them." Democracy professes it, this government stands superior in rank to believe that a property representation and in kind, to that of any one of the is a false and unjust representation. It is, States.
therefore, necessary for Democracy to exAfter such a view, the old idea of the plain this slave representation by another federation, that Congress is the creature theory; and to say that not property, and tool of the State Governments, falls but the life and safety of the slave and his quite to the ground.
master, taken together as one family, or Though it be unquestionably true, then, system, was looked to in the apportionas the Senator declares, “ that the States ment. are constituent parts of the common fed After touching upon the foregoing, Mr. eral government of the Union, and as such | Calhoun then repeats the question. “But if are equals in all respects both in dignity it cannot be found in either—if it exists at and rights," " this relation in which they all, the power must be looked for in the tasnd to each other furnishes a strong pre-compact which binds these States together sumption,” not only that they have no in a federal Union. Does that instrument combined or separate authority over the contain any provision which gives the territory which extends to the prohibition of North the power to exclude the South slave property ; but farther, that the States, from a free admission into the territories of separately or in combination, have no the United States with its peculiar proppower whatever over the territories; since erty, and to monopolize them for its own this power lodges properly in Congress exclusive use ?" To which we reply as beand the Executive; and only by their fore, that the Constitution does not know of
any such power as the North, or the South, of royal charters, to the independent or the East, or the West. These are very colonies, or to the powers of Europe. loose terms, and mean much or little accord- They became the property of the nation, ing to the mood we are in. It is, therefore, after the Revolution, by acts of cession on necessary to substitute for the above ques- the part of Connecticut, Maryland, Virgintion, the following:
ia, New York, and other States, and by Has the Government of the United States purchase from France and Spain. The the power to declare the importation of charters of the lands of several of the slave property contraband in its own terri- States extended indefinitely westward, and tory ?
the lines of these lands crossed each other, Mr. Calhoun several times repeats the so that it had become impossible to make question, “where is this absolute power of a fair adjustment of the separate elaims. the North to exclude the South to be Those States that possessed no territory, found ?” To which we reply again, no- having made common cause in a war which where, and repeat, as before, that North secured their sister sovereignties in quiet and South are not recognized powers in possession, thought it unjust that they the government or in the nation. Again, themselves should have no share. The he argues on the passage concerning controversies on this subject were finally “ rules and regulations :
set at rest by acts of cession on the part “Now, I undertake to affirm, and maintain of several States, by which their private beyond the possibility of doubt, that, so far and separate claims to property and jurisfrom conferring absolute power to govern the diction were vested in the nation. New territories, it confers no governmental power York was the first to set the example of whatever; no, not a particle. It refers exclu- moderation, and other States followed it at sively to territory regarded simply as public intervals. Out of the territory thus aclands. Every word relates to it in that characquired by the people of the United States, ter, and is wholly inapplicable to it, considered in any other character but as property. Take Illinois, and others, and the territory west
were formed the States of Ohio, Indiana, the expression dispose of,' with which it begins. It is easily understood what it means
of these. North Carolina ceded the terwhen applied to lands, and is the proper and ritory that is now the State of Tennessee. natural expression regarding the territory in The cession of her own territory by that characier when the object is to confer the Georgia, in 1802, concluded this difficult right to sell or make other disposition of it. series of transactions, by which, more But who ever heard the expression applied to than by any other acts of the States, the government, and what possible meaning can it have when so applied ? Take the next ex
nationality of all was settled and confirmed pression, 'to make all needful rules and
forever. lations.' These regarded separately might
While the territories remain uninhabitindeed be applicable to government in a loose ed, or are in process of occupation by emisense ; but they are never so applied in the grants, the people of the United States, constitution. In every case where they are used in it they refer to property, to things
, and right in them.
as a nation, possess a three-fold interest or some process, such as the rules of the court, or of the House of Congress, for the govern
1. First, as the imperial control over all ment of their proceedings, but never to govern- national affairs has been acquired by the ment, wbich implies persons* to be governed. act of union or nationalization, which conBut, if there should be any doubt in this case, fers upon the general government the the words immediately following, which restrict powers enumerated and implied by the them to making 'rules and regulations respect- Constitution. ing the territory and other property of the
2. As particular States or foreign soveUnited States,' must effectually expel it. They restrict their meaning beyond the possibility of reigns have ceded their chartered or ledoubt to territory regarded as property." gitimate sovereignty over their several ter
ritories. By these acts of cession, all the The lands which pass under the general powers of a king or a sovereign state over title of “Territories belonging to the Uni- its territory were necessarily transferred ted States," belonged originally, by virtue to the people or nation of the United
States, * See page 112 (2).
3. As owners of the soil, so far
as it has not become the property of But the peace of society, and the liberty individuals, the people, by their Con- and prosperity of citizens, which governgress, exercise certain rights, limited only ments are intended to maintain, is not esby the common rules of ownership, and tablished by the sole power of isolated and of purchase and sale.
independent States. Single States, whether It appears by this examination, that the free or despotic, standing alone, exist only authority of the government of this nation in a condition of perpetual war, or perpetis perfect, over the territory which they ual alarm. have acquired, within the guarantees of For the same reason, therefore, that it the Constitution ; for it includes the three- is necessary for individuals to combine and fold power of imperial control, of state form States, it is necessary for States sovereignty, and of ownership.
to combine and form EMPIRES. The These three powers of imperial control, perfection of any empire, or imperial of state sovereignty, and of ownership, government, is when the separate free as they were vested in the nation by a States or kingdoms maintain their liberprocess of law, and are made good by the ties, without detriment to the Constituprinciples that lie at the foundation of all tion under which they live, be that governments, may, by the same principles, free or a despotic Constitution. The be transferred to other powers; the prin- lives of the great lawgivers have been ciples of law and the rule of salutis populi spent in efforts to devise the most perfect presiding over such transactions in as strict, systems of union, for groups of independthough in a nobler sense, than over those ent states or kingdoms. of individuals.
So far, the form of empires and of Thus, if the Congress see fit by treaty state unions is one and the same, be the to cede the imperial control over any por- systems of their government monarchical tion of their unoccupied territory to an- or free. But in their internal organizations other republic, they can do so; for as they we find them affected by various and acquired, so they may dispose of the right. posite principles.
Or if government think best to sell the In monarchical empires, as in that of the territory which they have in trust for the East under Justinian, founded originally nation, they can do so without diminution upon force, all power was supposed to of their imperial and state rights.
flow from the monarch, and his will, under And when a certain portion of the na the form of a decree, became and constitional territory is settled by emigrants, able tuted the law. to constitute a government, they can recog The reason of this derivation is not hard nize in such persons, and acknowledge by to find; for in the formation of despotic charter or by grant of a constitution, certain states we observe that the law of conquest rights of franchise and jurisdiction constitu- lies at the root of the Constitution; rights ting a territorial government, with or with and franchises are but allowed, and can out representation in Congress, and limited be resumed, at the pleasure of the imperial in such a manner as may seem best ; but will. never with such conditions or limitations In free empires, on the contrary, or as affixed, as shall violate rights guaranteed they are usually styled, United Provinces, by the Constitution.
States, or Leagues, the rights of each Finally, if it be shown to Congress that State are supposed to be inherent and those in whom they did recognize certain inviolable. In our own system, beginning rights by granting them franchise and ju- with the individual, we concede to all citirisdiction, have so organized their society zens a necessary and inherent liberty; just as as to be fully able to protect the inherent in other Leagues and Unions, or constituted liberty of individuals among themselves, to Empires, an inherent and inviolable sovermaintain public and private credit, and to eignty and liberty has been conceded to the administer justice with the requisite author- separate States or members of the league. ity, Congress may then cede to them in full, The imperial system of the Union was that sovereignty which was formerly ceded established on a singular, and hitherto unto the nation, and so constitute them, in known principle; namely, the inherent every sense of the word, a STATE.
liberty of the individual, and his inviola
bility by any power not flowing out of the In conclusion, we are obliged distinctly
properties, and liberties of citizens, the South; that “there is no part of the spirit of our system requires that such world where agricultural, mechanical, and person be not allowed his liberty. And if other descriptions of labor, are more a territory petition to become a free sover- respected than in the South, with the exeignty, and it be shown, that the petition- ception of two descriptions of employ, ers are not powerful or numerous enough, ment—that of menial and body servants.” or sufficiently trained and organized, to To this we reply, that it does not affect maintain credit and justice, a Constitution the question. The facts are that freemen cannot justly be granted them ; for the will not work on farms, or any employment, power of the Union was established for the in company with slaves. And that is the maintenance of order and liberty, and it reason why it is necessary that territories cannot resign or cede its power into incom- adapted to free labor be guarded. If
slavery will not naturally extend itself For, while the Declaration and the Con-above 36° 40', then the South will be stitution are founded on the general idea no loser by that exclusion; but as it of an inherent right to liberty in every in- has extended itself much farther, and dividual, and of an inherent right to might, for aught that is known to the consovereignty in every freely organized body trary, take strong root in regions farther of citizens, living under a regular form of north to the ruin of territories unfitted by law; necessity, and the nature of things nature (like Kentucky) for its existence, -necessity for maintaining liberty and it was a measure of safeguard to propose justice in the whole, and the imperfect na a line of division. As this question can ture of man, which often disables him from never be "settled," but by the greatest using and enjoying his equal and inherent forbearance on both sides,—and, as Mr. rights as man—require that great caution Calhoun argues, that if it be not settled and reserve be used, in recognizing these once for all, ruin must ensue; let us then, ideal rights; and that in no case they be in some equitable way, make a good endadmitted in practice, until their reality and ing of the business, and leave each side capability appears in fact; for by acknowl- to work out its own destiny undisturbed edging rights merely ideal, we do but force by jealousy of the other. nature, and destroy that necessary order Mr. Calhoun's next argument in order and gradation by which society is main- is derived from the clause granting “extained.
clusive legislation ” to Congress over the No territory, therefore, can be made a dockyards, arsenals, &c., and other prosovereignty until it be proved capable, and perty belonging to the United States ;" notwithstanding all demonstration of inhe- which clause he says does not confer what rent rights, no liberties can be conceded; he calls “ governmental powers”-a new for, indeed, the inherent rights of all are phrase, and here used in a peculiar sense, to be considered, and the greater necessity in fact, starting a new distinction of powers. extinguishes the less, according to a maxim “ Congress," says the Constitution, shall -Salus, et libertas, Populi suprema lex. exercise exclusive legislation, in all cases
Whether, therefore, the Constitution whatsoever, over the District, &c., and over specify or not that the nation shall have all places purchased, &c.” But says the power over its own territory, is a question Senator, Congress may not exercise “ govof subordinate interest. Such power is ernmental powers over places so purinherent in the nature of all government, chased or ceded. Now of the powers of and, in this particular instance, there is no government there are three kinds, legislalimit imposed upon it by the Constitution. tive, executive, judicial; they are neces
sarily exercised together: for the legislative the nature of things, and the nature of all is the first and necessitates the others; honestly acquired power; and in this argubut of any class of powers called govern- ment we set aside as useless and exploded, mental we find no record or description. the ancient doctrine of “right acquired
In regard to the District of Columbia, by conquest;" though if we chose to resort some doubt still rests in the minds of con to that doctrine, it would reduce the ques. scientious legislators whether Congress tion to a point that the narrowest underhas full power over it. “But the case standing might grasp at once. is very different in reference to territories,” We now come to the very heart of this says Mr. C., “ lying as they do beyond the subject, to the very policy against which limits and jurisdiction of all the States. the Senator from South Carolina has opThe United States possess not simply the posed this broken chain of suggestion, right of ownership over them, but that of which he is pleased to regard as a demonexclusive dominion and sovereignty.” A stration. By an ordinance of the Confedfearful admission ! but then on a sudden eration in 1787, slavery was excluded from the Senator recovers his former ground, the territory ceded by Virginia. The orand starts a new distinction. “It may be dinance, said Mr. Madison, had no constiproper to remark,” says he, “in this con tutional authority; it serves, therefore, nection, that the power of exclusive only as a landmark to show the opinion of legislation conferred in these cases must the Congress at that time. It established not be confounded with the power of a precedent for policy only, and not for absolute legislation. Absolute power of legal decisions." We regard it only as legislation is always, indeed, exclusive, but the first step in the line of a particular it does not follow that exclusive legislation policy. By that first step, slavery was is always absolute. Congress has exclusive excluded from the temperate climates of power of legislation as far as this govern- Ohio, Indiana, Illinois, Michigan, and Wisment is concerned, and the State legisla- consin, and the territory north-west. That tures as far as their respective governments exclusion was the result of the first step of are concerned, but we all know that both a certain line of policy. It was a comproare subject to many and important restric- mise, says Mr. Calhoun, conditioning for tions and conditions, which the nature of the delivery of fugitive slaves, as a set-off absolute power excludes.” Which places against the freedom of the territory; and the governments of the States and of the yet he somewhat unguardedly quotes Mr. Union upon the same footing, as far as Madison to prove it valueless ; by which “absolute” power is concerned; the idea procedure he does the slaveholder material of absolute power being thus very justly injury in removing one of the ancient landexcluded from that of republican govern- marks of his rights. The history of the ment in any shape; but this does not transaction does not much help or hinder touch the question whether the nation the arguments on either side. We therefore may not abolish slavery from its territory. pass He adds, for all that, that the On the contrary, if the States have this South acquiesced in the ordinance and obpower in their dominions, though they be served it strictly; which is a strong proof not “absolute," much more should the of its expediency; and now, at this late general government, which, though not day, a South Carolina Senator condemns it. absolute in any case, being, like the State Now follows the Missouri Compromise. governments, under the Constitution, is The entrance of Missouri as a State was yet vested with the twofold power of State severely contested through the years 1819– sovereignty and of imperial control over 20, when Henry Clay ended the war by its territory; and in such a view of the moving the compromise. It was observed matter, Mr. Calhoun's third distinction, of this statesman, by John Quincy Adams, like his first and second, falls useless to that in negotiation, and in all difficult afthe ground. He has not yet proved that fairs where opposite interests and rights the Constitution, either directly or by were involved, he discovered a peculiar close construction, forbids the general and almost infallible tact: his remedy was government to exercise those powers which always the best that offered. By this it has acquired over its territory, both by compromise he reconciled the two interests