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FOR DECEMBER, 1849.
LETTER TO THE HON. H. S. FOOTE, OF THE U. S. SENATE.
THE following letter communicated for publication by a gentleman of Louisiana, presents the argument from precedents, for the power of Congress over the territories, in so able a manner, we have no hesitation in placing it before our readers for its own sake. We had, indeed, entertained a hope, that this distressing and absurd controversy had come to an end-that Mr. Calhoun and his followers had given up their position as an untenable one, which exposed them to contempt. It was, therefore, with feelings of the strongest indignation and sorrow-indignation at their audacity, and sorrow for the consequences which must fall upon the constituency of such a desperate faction, that we learned from good authority that it is the intention of Mr. Calhoun to resist the admission of California as a State, with a restriction of slavery as a part of its organic law.
It is to be argued, that after the admission of California, she shall be at liberty to exclude slavery, (a right, indeed, not to be gainsayed,) but that the Senate shall not suffer a constitution to pass under its seal which excludes slavery from a state. It is farther said, that a territorial people have no right to form a state government without the assent of Congress, and that they can pass no laws inconsistent with the "rights" of the slave-holding portion of the Union. That as the sovereignty belongs to every citizen, and must be exer
VOL. IV. NO. VI. NEW SERIES.
cised by their representatives in Congress, therefore, the people of California have no more right to exclude slavery than Congress has.
That Mr. Calhoun will argue in this strain does not seem improbable, or that much more astonishing feats of logic should be performed by him. Our hope was, that the occasion would not arise, that a spirit of compromise and conciliation would by this time have arisen in the South, powerful enough to dash the projects, and check the mad career, of this assiduous Destroyer. The friends of the constitution must once more buckle on the armor of defence, and meet the enemy at his own weapons, the weapons of argument. If argument cannot save, argument will destroy the Union, for the mischief has been done hitherto, on earth, as it was in heaven, by argument.
A State, we are to be told, must not form itself upon the territory of the nation, until Congress has authorized it to do so. So great is the majesty and power of Congress, a body of free citizens numbering many thousands on a far removed tract of land, and mingled together with a much larger population of foreign adventurers, shall have no power to organize a government for themselves, in the absence of all other efficient government.
So poor, again, and feeble is the authority of Congress, it must not interfere
with the affairs of that people to regulate or control them; it must not, nay, cannot enact such laws as may be deemed salutary and necessary for their prosperity.
So powerful is any one citizen of the United States, he may, notwithstanding any enactment of Congress, move into the distant territory with his slaves.
So weak are a vast number of such citizens assembled together upon the soil of the distant territory, and making there a nation, they have not the power, unless permitted to do so by Congress, to exclude any citizen bringing slaves among them, no matter how injurious they may esteem it to be to themselves as a people.
ample, may revolt from the State of which they were members, and re-establish slavery as an organic and unchangeable part of their domestic constitution, and may then be admitted to the Union.
And, a people, those of California, for example, have no liberty to establish for themselves a constitution which excludes slavery: or, if they do so, they cannot be admitted into the Union.
It is indeed to be hoped that no such absurd and disgraceful contradictions as these will be heard in the Senate chamber this winter; and yet, such is the madness of the faction, and such the confidence of their leaders, the event is greatly to be
Again a people, the Texans, for ex-feared.
BATON ROUGE, July 4, 1849.
The address of the Southern delegates in Congress is now before me-in speaking of which, you have thought fit to say: "Every statement of which is true beyond contradiction-every argument of which is irresistible cogency-every sentence and line of which are marked with high toned patriotism and devout regard for the Union."
Taking your opinion as conclusive evidence in support of the orthodoxy of the address the address itself contains three premises which it is my present purpose to notice.
First. "Ours is a Federal Government, a Government in which, not individuals, but states, as distinct sovereign communities are constituents-to them as members of the Federal Union the territories belong, and they are hence declared to be territories belonging to the United States." Second. The states then are the joint Owners "of the territories," therefore the conclusion that the Federal Government has no right to extend or restrict slavery "in the territories—no more than to establish or abolish it."
Third. "That with few exceptions of no great importance, the south had no cause to complain prior to the year 1819," of the manner the territories were ruled
and regulated by the Federal Government relative to the extension or restriction of slavery therein.
From these premises, an argument is deduced, that the Federal Government is now, without power and authority to impose any restrictions whatever on "individuals" who may be disposed to migrate with slave property into territories belonging to the United States as joint owners. The first premise, for the purpose of this argument will be assumed as true. this concession necessarily carries with it an admission, that the words " We the people of the United States," were inappropriately used in the preamble to the Constitution; therefore without a purpose or meaning, and Gen. Washington meant nothing when saying in his farewell address
"The unity of Government which constitutes you one people is now dear to you."
Again, in admitting the Federal Government to be a compact between the thirteen original states, and the states to be established, as "distinct sovereign communities," and not a Governent of the "people of the United States," and the states were to be the constituents of the Federal Government, and not "individuals," I must leave it for you to assign, by what authority the states invested the Federal
Government with power to interfere with or legislate respecting the personal rights of "individuals," either in the states or territories.
The address dared not assert, that all and every original inherent power over states' sovereignty did not abide exclusively with, and was derived from the people, and that states are anything more than creatures of their will; yet according to the address, the states had the power to stipulate what the Federal Government should or should not do respecting individual rights; otherwise the states representing themselves as "distinct sovereign communities" in the formation of the Federal Government, and not as representatives of the people, assumed to confer on the Federal Government a power over individuals which they, the states, could not respectively exercise.
If the states did not derive directly, and expressly from the people, power to form the Federal Government,-the "states as distinct sovereign communities," having the right so to do-and individuals, as well as the states, were not to be constituents of the Federal Government-why was it said that power which the Federal Government should not exercise, because not expressly conferred, and which the states could not respectively exercise, should be reserved to the "people?" How can the people of the United States exercise any of their collective rights, or powers, but through the Federal Government? A Government, of which they are not constituents!
If this was so, why was it expressed, that the Federal Government might or might not, as it pleased, impose a tax of ten dollars on such persons as the states might think fit to admit by migration or importation, as citizens or otherwise, until the year 1808; after that date, such persons to be subjected to the absolute will and control of the Federal Government?
On such an hypothesis the term "people" is without meaning in the Constitution, and the words "We, the people of the United States," together with the ninth section of the first article of the Constitution should be stricken therefrom, unless it may be said that the Federal Government may legislate on the rights of individuals, provided the states respectively, and not in
Congress assembled, may think proper to give their consent.
Such conclusions, deduced from the premises assumed, and the cogent arguments advanced by the address, make the Constitution under the Federal Government nothing more than a political syllogism, to be stated thus:
The states, and not individuals, are the constituents of the Federal Government.
The Federal Government cannot affect the rights of individuals without the consent of the states: therefore, any act of Congress not ratified by the states respectively, cannot affect individual rights.
All this may be admitted, with a further concession, that the several states under the Constitution retain and possess a more distinct absolute sovereignty than they had under the confederation; and the interrogatory embraced in the second premise, Has the Federal Government a right to extend or restrict' slavery in the territories?" must be answered in the affirmative if the admission in the address be true-"That with a few exceptions the South had no cause to complain prior to the year 1819."
The exceptions are not stated, but the admission is an affirmation that the manner the Federal Government "ruled and regulated" the territories to the year 1819, was in conformity with the letter and spirit of the Constitution, and in accordance with the will and wishes of its constituents, the several states, as "distinct sovereign com
The territories belonging to the United States as joint owners, and as distinct sovereign communities," are held by them, either in perfect or imperfect ownership. This question I will leave with you to determine, and I will cheerfully abide your decision.
If the territories are held by the states in perfect ownership, the Federal Government can declare they shall never be occupied; or the states can partition the territories among themselves in kind, and each state dispose of its own portion at its pleasure. If the territories are held by the states in imperfect ownership, hence for the use and benefit of the United States collectively, to be disposed of to the citizens of the several states, who may think fit to migrate thither and to be governed
by rules and regulations adopted by the Congress until they are ready to be admitted as sovereign states into the Union, then the question, "Has the Federal Government a right to extend or restrict slavery in the territories"-must be determined by the Constitution and the manner the Federal Government carried that compact into practical effect, with the assent of the states as the parties thereto. For I hold that if the Federal Government, from its organization in the year 1789 to the year 1819, governed the territories with rules and regulations to the satisfaction of the states as joint owners, the acts of the Federal Government, must, by an acknowledged legitimate rule of interpretation, be taken as a true exposition of that part of the Constitution, and full proof of the assent of the joint owners. Nay, this is the fundamental rule-the fixed political principle-the political axiom, and will thus remain, so long as the words "Governments are established among men, deriving their just powers from the consent of the governed," are found in the Declaration of Independence, and are not expunged therefrom by the pen of the political experimenter or the sword of a tyrant or despot.
The Constitution went into practical operation without either North Carolina or Rhode Island being a member of the Union, with the provision, "that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States."
The eighth act passed by Congress was entitled, "An Act to provide for the Government of the territory north west of the river Ohio"-the preamble declaring that, "Whereas, in order that the ordinance of the United States in Congress assembled, for the government of the territory north west of the river Ohio, may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the Constitution of the United States. The territory north west of the river Ohio, was ceded to the United States while existing under the confederation. On the 13th July, 1787, the confederated Congress passed the ordinance referred to in the preamble, as rules and regulations for the government of the territory, the
sixth article being founded on a resolution of Congress adopted 16th March, 1785, as a "fundamental principle," between the thirteen original states and the states to be formed out of the territory north west of the river Ohio, and out of any other territory to be ceded by individual states to the United States, that there shall be neither slavery nor involuntary servitude in any of the states, &c.
When on the 7th August, 1789, Congress, under the Constitution, adopted the ordinance of the 13th July, 1787, as a needful rule and regulation for the territory, with the slavery restrictive clause, it was then considered that the ordinance was
in perfect union and harmony with the Constitution. It may not be out of place to note, that several members of the Congress of 1787, who voted for the ordinance of 13th July, were members of the convention that adopted and approved of the Constitution, and were members of Congress on 7th August, 1789, when the ordinance was so amended as to "adapt the same to the Constitution of the United States."
It may be borne in mind that the ordinance of the 13th July, 1787, was adopted by Congress as containing needful rules and regulations for the territory belonging to the United States, before the ratification by the states of the amendment of the Constitution which provided that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" therefore, unless some rule of interpretation-some fundamental principle be pointed out, whereby the ratification of the amendment necessarily abrogated the act of Congress of the 7th August, 1789, and the powers assumed, if not conferred in that act, were thereby restored to the states respectively, that act of Congress and the ordinance thereby adopted, must stand as clothed with the sanction of the Constitution; and the subsequent acts of Congress predicated on the assumption of conferred power, to regulate slavery in territories, must stand unaffected by the modern doctrine of "reserved rights."
North Carolina had a territorial jurisdiction extending from the Atlantic ocean to the river Mississippi. From the mo
ment the Constitution went into operation | rial presented by the Quakers, that certain without her consent, she was freed from questions relative to slavery were delegaevery restriction placed on her sovereign ted by the Constitution to Congress, but repower by the articles of confederation, and solved "that Congress have no authority was not bound by any of the restrictions to interfere in the emancipation of slaves imposed by the Constitution-free to con- or the treatment of them within any of the tinue and maintain a separate sovereign states." independent position, or adopt the Constitution of the United States.
North Carolina adopted the Constitution, and if the argument of the Address be cogent, the principles of slavery and involuntary servitude recognized by the Constitution, like an ærial fluid, pervaded every part of the state, and Congress was without authority to impose any restriction whatever on the extension or restriction of slavery within the territorial limits of that
The last clause of Section second, fourth Article of the Constitution, provides :
"No person held to service or labor in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due."
This provision, strictly construed, would limit the question to persons held to service in one state escaping into another state; as nothing is expressed respecting persons escaping from a state into a territory, or from one territory into another. No power is delegated to Congress to provide for carrying this provision of the Constitution into effect; and it would seem, in the absence of an express grant of power elsewhere, that it would rest with the comity of the states as "distinct sovereign cummunities" respectively, and not in Congress assembled, to provide adequate laws for securing to individuals, rights guarantied by this provision of the Constitution. But could the states respectively, and not in Congress assembled, pass laws for that purpose so as to reach the exigency, in either the states or territories? No one will say, one state can pass a law to take effect in another, contrary to the laws of that state! Or that any state law can be made to car
North Carolina thought otherwise, for the territory, now the State of Tennessee, was ceded to the United States, with the condition expressed, "that no regulation made or to be made by Congress shall tend to Emancipate Slaves." Without any express power delegated to the United States by the Constitution for that purpose, Congress accepts the territory ceded by North Carolina, and with the exception of the foregoing condition, places the territory under the rules and regulations of the ordinance of 15th July, 1787, drives out the ærial pervading fluid of the Constitution of the United States, abrogates the Constitution and laws of North Carolina, and thirty thousand people, residing in Tennessee in 1790, are disfranchised as citizens of the United States; they cease to be citizens of a sovereign State; and in one breath are reduced to be but inhabit-ry with it power to enforce obedience to its ants of a territory-to be subjected to such rules and regulations as Congress might deem needful.
Is it reasonable to suppose that North Carolina would have exacted from Congress the condition that slavery should not be abolished in Tennessee, then a territory, or that Congress would have stipulated that it should not be done, if both parties had not known that under the Constitution the Federal Government had the power? None but wise men impute folly to the law-maker. In fact at the very moment Congress determined and acted on the power to regulate slavery in territories, they declared, in disposing of the memo
requirements in another state or territory! If each state in the Union should respectively pass exactly the same law, with a view of reaching persons escaping into a territory, how would the law be enforced? Congress holds a negative over all acts passed by a Territorial Legislature, therefore to Congress assembled belongs the exercise of the power.
On the 12th February, 1793, the Federal Government passed an act, embracing territories in the provision of the Constitution relative to slaves escaping from one state into another, conferring ample power on the owner of the slave, whether escaping into a state or territory,