Judge Douglas in Reply to Judge Black.
In Harpers' Magazine for September I published an article on the dividing line between federal and local authority in the Territories of the United States. My sole object was to vindicate a principle to which I had been committed for many years — and in connection with which I had recently been assailed with great bitterness and injustice — by a fair and impartial exposition of the subject, without assailing any person or placing any one in a false position. A few weeks afterwards an anonymous review of my article made its appearance — first in the Washington "Constitution," and subsequently in pamphlet form — under the following caption: "Observations on Senator Douglas' views of popular sovereignty, as expressed in Harpers' Magazine for September, 1859."
Instead of replying to the well-known propositions which I had so often announced and defended in the Senate and before the country, for the last ten years, and which were embodied and expressed in Harpers' Magazine for September, the reviewer deemed it consistent with fair-dealing to ignore my real views as expressed in the article to which he professed to reply, and attribute to me opinions which I had never entertained or expressed on any occasion. When the pamphlet containing this perversion of my opinions was first placed in my hands, I at once pointed out some of the most obvious and palpable of those misrepresentations, and denounced them in emphatic and indignant language, in a speech at Wooster, Ohio.
Here I was content to let the matter rest, and allow the public to form an impartial and unbiassed opinion upon the real positions which I had assumed in Harpers' Magazine, without any reply from me to the legal argument which the writer of the anonymous pamphlet had made in opposition to my alleged views upon a political question.
On the 6th of this month, however, the same newspaper contained an appendix to this pamphlet, in reply to so much of my speech at Wooster as pointed out and denounced the misrepresentations of my views as expressed in Harper, and announced Judge Black, the Attorney General of the United States, as the author of the pamphlet and appendix. Since the Attorney General of the United States has thus avowed the authorship of these assaults upon me, and flooded the country with them with the view, doubtless, of giving all aspirants, expectants, and incumbents of office to understand that he speaks by "authority" of those whose legal adviser he is, and that they are all expected to follow his example and join the crusade, I have concluded to reply to so much of his "Observations" as are calculated to obscure my real position by persistingly attributing to me opinions which I have never expressed, nor for a moment entertained.
"Fighting the Judiciary."
For instance, the first act of injustice which I pointed out at Wooster, and proved to be untrue by undeniable facts, was his representation of me as "fighting the judiciary;" commanding the Democratic party to "assault the Supreme Court of the United States;" not treating the court with "decent respect;" and much more of the same tenor. All of which was calculated to convey to those who might not happen to know the contrary, the idea that, "in Harpers' Magazine for September, 1859," I had assaulted, traduced, and indecently treated the Supreme Court of the United States on account of their decision in the Dred Scott case! It was shown in my speech at Wooster that all these representations were pure inventions; that I had not written nor spoken one word in Harper or elsewhere in disparagement of the court or its decisions; that every reference or allusion to the court and its decision was in respectful terms of unqualified approbation; that in several places in the Harper article I not only endorsed, but largely quoted from the Dred Scott decision in confirmation of my own views; that I had made more speeches in defence of the court in connexion with the Dred Scott case than any living man; that in the Illinois canvass last
2year, when assailed by the combined forces of the Black Republicans and the federal office holders, under the advice of my present assailants, I defended the court in more than one hundred speeches against their enemies and mine; and, in conclusion, I defied the writer of this pamphlet, and all others who are reckless enough to endorse its statements, to produce one word ever spoken or written by me disrespectful of the court or in condemnation, of its decision! Well, Judge Black, for himself and as Attorney General for my confederated assailants, has replied to my Wooster speech in his appendix; and what has he said on this point? What reply has he made to my positive denial of the truth of his allegations, and my demand for the production of the proof? Does he repeat the charge and produce the evidence to sustain its truth; or does he retract the charge and apologize for the injustice he has done me? I had supposed that there was no alternative for a man of honor but to do the one or the other! Judge Black has done neither! Nor is his conduct less exceptionable in respect to his allegation that I advocate the confiscation of private property by the Territorial legislature, or that I have alternately affirmed and denied that the Territories are sovereign political communities or States, or that the Jeffersonian plan of government for the Territories, which I alleged to have been adopted, was in fact "rejected by Congress," or that I was attempting to establish a new school of polities by forcing new articles into the creed, and new tests of Democratic faith, in violation of the Cincinnati platform.
It is to be regretted that all political discussions cannot be conducted upon those elevated principles of fairness and honor which require every gentleman to state his antagonist's position, fairly and truly, and correct any mistake he may have committed inadvertently the moment it is pointed out to him.
That I am or ever have been in favor of the confiscation of private property by the action of a Territorial legislature, or by any other power on earth, is simply untrue and absurd. Nor is there any foundation or excuse for the allegation that I have ever assigned as a reason for such confiscation that the Territories were sovereign political communities.
The Territories, Without Being Sovereign Communities, Have Certain Attributes of Sovereignty.
I have never said or thought that our Territories were sovereign political communities, or even limited sovereignties like the States of the Union. Sovereign States have the right to make their own constitutions and establish their own governments, and alter and change the same at pleasure. I have never claimed these powers for the Territories, nor have I ever failed to resist such claim, when set up by others, as was done by the friends of a State organization in New Mexico and Utah some years ago, and more recently by the supporters of the Topeka and Lecompton movements in Kansas, where they attempted to subvert the authority of the territorial governments established by Congress, without the consent of Congress.
While, therefore, I have always denied that the Territories were independent sovereign communities, it is true, however, that during the last ten years I have often said, and now repeat my firm conviction, that the people of the Territories are entitled to all the rights, privileges, and immunities of self-government, in respect to their internal polity, subject only to the Constitution of the United States. The Attorney General is unable to comprehend how the people of a dependent colony or territory, can have any "attribute of sovereignty about them!" Sometimes a child can be made to comprehend a proposition which he does not understand, by presenting to his mind an example which is familiar to him. The American colonies, prior to the revolution, presented thirteen examples precisely in point. The Attorney General must be presumed to have read the history of the colonies, and to be familiar with these examples. The fact cannot be successfully controverted, and ought to be admitted, that the colonies did claim, possess, and exercise legislative power in their respective provincial legislatures over all rightful subjects of legislation in respect to their domestic concerns and internal polity. They enacted laws for the protection of life, liberty, and property; and in pursuance of those laws they deprived men of life, liberty, and property, when the same became forfeited by their crimes. They exercised these high attributes of sovereign power during the whole period of their colonial dependency; and were willing to remain dependent upon the crown and obedient to the supremacy of Parliament in all matters which affected the general welfare of the empire without
3interfering with the internal polity of the colonies. So with our Territories. They possess legislative power, which is only another form of expression for sovereign power, over all rightful subjects of legislation in respect to their internal polity, subject, of course, to the Constitution of the United States.
The Source of the Power of Self-Government.
But the Attorney General does not perceive the analogy between the colonies and the Territories in this respect; nor does he recognize the propriety of tracing the principles of our government back through the revolution for the purpose of instituting an inquiry into the grounds upon which the colonies separated from the parent country, and the fundamental principles established by the revolution as the basis upon which our entire political system rests. Such an inquiry is decreed mischievous because it is calculated to disturb the repose of those who hold that the Territories "have no attribute of sovereignty about them;" that a "Territory has a superior in the United States government upon whose pleasure it is dependent for its very existence, in whom it lives and moves and has its being; who has made and can unmake it with a breath; that it is only "a public corporation established by Congress to manage the local affairs of the inhabitants, like the government of a city established by a State Legislature;" and that "there is probably no city in the United States whose powers are not larger than those of a federal Territory!" The learned Attorney General, having convinced himself by the study of that "primer of political science," which he claims to have "mastered," and kindly commends to my perusal, that Congress possesses the same sovereign power over the people and governments of the Territories that a sovereign State has over the municipal corporations of all the cities within its limits, or that the British Parliament claimed over the American colonies when it asserted its right to bind them in all cases whatsoever, deprecates all inquiry into the foundation of this right, and especially into the mode in which the claim was met by the colonies when it was attempted to be enforced by George III, and his royal cabinet.
The authority of the King's Attorney General, and the terror which his anathemas were calculated to inspire, when supported by the King and his cabinet, were not sufficient to stifle the inquiry in those days. So long as this right of local self-government was not wantonly outraged, and its actual enjoyment practically obstructed by the action of the imperial government, the colonies were content with the possession and enjoyment of this sovereign power, without inquiry into its origin, or source. But the instant that the British government attempted, both as a matter of right and in fact, to deprive them of the "free and exclusive power of legislation in their several provincial legislatures in all cases of taxation and internal polity," a serious and anxious inquiry was instituted into the origin and source of all legitimate political power. The result of the investigation was the disclosure of a fundamental and irreconcilable difference of opinion between the colonies and the British government in respect, to the origin and source of all rightful political authority, which laid the foundation of our American Theory of government in antagonism to the European Theory. The colonies contended, on the one hand, that the power of self-government was inherent in the people of the several colonies, and could be exercised only by their authority and consent; while the British ministry insisted that the King of England and his government were the fountain and source of all political power and rightful authority in the colonies, which could be delegated to the people or withheld from them at the pleasure of the sovereign. Here we find the first practical assertion on this continent of the American theory that the power of self-government is inherent in and emanates from the people in each State, Territory, or colony, in opposition to the European theory that the King or Monarch is the fountain of justice and the source of all legitimate power. It is to be hoped that the Attorney General will be able to comprehend the distinction between these two antagonistic theories, since our entire republican system rests upon it, and the conduct of our revolutionary fathers can be vindicated and justified only by assuming that the European theory is wrong and the American theory right. So long, I repeat, as the British government did not, in fact, deprive the colonies of the power of self-government in respect to their internal affairs, differences of opinion could be tolerated upon the theoretical question in regard to the source of the power; for the colonies were at liberty to claim, as they did claim, that
4they exercised it of their own inherent right, in conformity with the royal charters, which only prescribed the form of government under which they were to exercise exclusive legislation in all cases affecting their internal polity. While, on the other hand, the British government could contend, as they did contend, that the colonies possessed the power, not in their own right, but as a favor graciously bestowed by the crown. Practically it made no difference, therefore, to the colonies whether the power was inherent or delegated — whether they possessed it in their own right, or as a gracious boon from the crown, so lone as they were not disturbed in its exclusive possession and unrestricted enjoyment. So it is with the people of the Territories. It makes no practical difference with them whether the power of self-government, subject only to the Constitution, is inherent in themselves, and recognized by Congress in the organic act; or whether Congress possesses sovereign power over the Territories for their government, and has delegated it to them. Whichever be the source of the power, the result is the same so long as their right of local self-government is not invaded.
All Legislative Powers Appertain to Sovereignty.
By the terms of the Kansas-Nebraska act, and, indeed, of all the territorial governments now in existence, "the legislative power of the Territory extends to all rightful subjects of legislation consistent with the Constitution of the United States" and the provisions of the organic acts.
In the face of this general grant or recognition of "legislative power" over "all rightful subjects of legislation," the Attorney General tells us that the Territories "have no attribute of sovereignty about them." What does he mean by attribute of sovereignty? "All legislative powers appertain to sovereignty," says Chief Justice Marshall. Every legislative enactment involves an exercise of sovereign power; and every legislative body possesses all the attributes of sovereignty to the extent and within the sphere of its legislative authority. These propositions are recognized by the elementary writers as axiomatic principles which lay at the foundation of all muncipal law, and are affirmed in the decisions of the highest judicial tribunals known to our Constitution.
What, then, does the Attorney General mean when he says that the Territories "have no attribute of sovereignty about them?" Surely he does not wish to be understood as denying that the Kansas-Nebraska act, and the organic act of every other Territory in existence, declares that "the legislative power of the Territory shall extend to all rightful subjects of legislation." Does he mean to be understood as asserting that these several acts of Congress are all unconstitutional and void? If not, the Territories certainly have "legislative powers;" and the courts hold that "all legislative powers appertain to sovereignty."
Slavery Included in the Grant of Legislative Power.
The fact is undeniable that it was the obvious intention of Congress, as manifested by the terms of these several organic acts, to recognize the right of the territorial legislature to exercise those legislative powers which the courts and jurists say appertain to sovereignty, over all rightful subjects of legislation so far as the Constitution will permit; and that slavery was not excepted, nor intended to be excluded from those "rightful subjects of legislation," for the plain and unerring reason that the fourteenth section of the same act provides that it is "the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."
"Slavery," then, was not intended to be excepted from those "rightful subjects of legislation," but was the subject which was especially left to the people of the Territory to decide for themselves. The people of the Territory were not only to "regulate" the institution of slavery to suit themselves, but were to be "left perfectly free to form and regulate their own domestic institutions in their own way." The people were to be left free "to legislate slavery into any Territory," while they remained in a territorial condition, "or to exclude it therefrom," and "to legislate slavery into any State," after their admission into the Union, "or to exclude it therefrom" just as they pleased, without any interference by Congress, and subject to no other limitation or restriction than such as the Constitution of the United States might impose.
The right of legislating upon the subject of slavery in the Territories being
5thus vested exclusively in the legislature thereof, in the same manner, and subject to the same restrictions, as all other municipal regulations, Congress, out of an abundance of caution, imposed a condition which would have existed even if the organic law had been silent in relation to it, to wit that the territorial legislature should make no law upon the subject of slavery, or upon any other rightful subject of legislation, which was not consistent with the Constitution of the United States. This is the only limitation or restriction imposed upon the power of the territorial legislature upon the subject of slavery; and this limitation would have existed in its full force if the organic act had been silent upon the subject, for the reason that the Constitution being the paramount law, no local law could be made in conflict with it. Whether any enactment which the territorial legislature may pass, in respect to slavery or any other subject, is or is not consistent with the Constitution," is a judicial question which the Supreme Court of the United States alone can authoratively determine.
In order to facilitate the decision of all questions arising under the territorial enactments upon the subject of slavery especially, a provision, was inserted in the 10th section of the Kansas-Nebraska bill, that "writs of error and appeals from the final decisions of the said supreme court [of the Territory] shall be allowed, and may be taken to the Supreme Court of the United States," without reference to the usual limitations in respect to the value of the property, "in all cases involving title to slaves," and "upon any writ of habeas corpus, involving the question of personal freedom." This peculiar provision was incorporated into that bill for the avowed and only purpose of enabling every person who might feel aggrieved by the territorial legislation, or the decisions of the territorial courts in respect to slavery, to take an appeal or prosecute a writ of error directly to the Supreme Court of the United States, and there have the validity of the territorial law, under which the case arose, and the respective rights of the parties affected by it, finally determined. Every man who voted for the Kansas-Nebraska bill agreed to abide, as we were all previously bound, by the Constitution, to respect and obey all such decisions when made. In this form the Kansas-Nebraska bill became a law. In pursuance of its provisions, the legislature of Kansas Territory have at different times enacted various laws upon the subject of slavery. They have adopted friendly and unfriendly legislation. They have made laws for the protection of slave property and repealed them. They have provided judicial remedies and abolished them. They have afforded ample opportunities to any man who felt aggrieved by their legislation to present his case to the judicial tribunals, and obtain a decision from the Supreme Court of the United States upon the validity of any part or the whole of this legislation upon the subject of slavery in that Territory. No man has seen proper to present his case to the court. No territorial enactment upon this subject has been brought to the notice of the court. No case has arisen in which the validity of these or any other territorial enactments were involved, even incidentally. There was no one point or fact in the Dred Scott case upon which the validity of a territorial enactment or the power of a territorial legislature upon the subject of slavery could possibly have arisen. In that case, so far as the Territories were concerned, the only question involved was the constitutionality and validity of an act of Congress prohibiting slavery on the public domain where there was no territerial government; and the court in their decision very properly and emphatically repudiated and exploded the doctrine that Congress possesses sovereign power over the subject of slavery in the Territories, as claimed by Mr. Buchanan in his letter to Mr. Sanford, and by the Republicans in their Philadelphia platform. The Dred Scott case, therefore, leaves the question open and undecided in respect to the validity and constitutionality of the various legislative enactments in Kansas and New Mexico, and the other Territories upon the subject of slavery. Whenever a case shall arise under those or any other territorial enactments, affecting slave property or personal freedom in the Territories, and the Supreme Court of the United States shall decide the question, I shall feel myself bound, in honor and duty, to respect and obey the decision, and assist in Carrying it into effect in good faith. But the Attorney General still persists in his objection that the Territories cannot legislate upon the subject of slavery for the reason that such legislation involves the exercise of sovereign power. The Territory of New Mexico exercised sovereign power last year in passing an efficient code for the protection of slave property. Does the Attorney General still insist that it is unconstitutional?
6When he shall institute judicial proceedings to test that question, I doubt not his friend Mr. Lincoln will volunteer his services to assist him in the argument, in return for the valuable services rendered him in the Illinois canvass last year which involved this identical issue. Since I have had some experience in defending the right of the Territories to decide the slavery question for themselves, in opposition to the joint efforts of these distinguished opponents of popular sovereignty, I am not sure that I would not volunteer to maintain in argument before the Supreme Court the constitutionality of the slave code of New Mexico, even against such fearful odds.
But let us see upon what subjects the territorial legislatures are in the constant habit of making laws without objection from the Attorney General or anybody else.
Protection of Life, Liberty, and Property.
The Territories are in the habit of enacting laws for the protection of the life, liberty, and property of the citizen, and, in pursuance of those laws, they are also in the habit of depriving the citizen of life, liberty, and property, whenever the same may become forfeited by crime. The right and propriety of exercising this power by the territorial governments have never been questioned. What higher act of sovereign power can any government on earth perform than to deprive a citizen of life in obedience to a law of his own making? If liberty be deemed more sacred than life, it is only necessary to remark that the Territories do, in like manner, deprive a citizen of liberty by imprisoning him for a term of years or for life, at hard labor or in solitary confinement, in compliance with the territorial law and judicial sentence. Can anything short of sovereign power lawfully deprive a citizen of his liberty, load his limbs with chains, and compel him to labor upon the public highways or within the prison walls for no other offence than violating a territorial law? The property of the citizen is also seized and sold by order of court, and the proceeds paid into the public treasury as a penalty for violating the laws of the Territory. If it be true that the Territories "have no attribute of sovereignty about them," the people of the United States have a right to know from their Attorney General why he, as the highest law officer of the Government, permits, and does not take the requisite steps to put a stop to the exercise of these sovereign powers of depriving men of life, liberty, and property in Kansas, Nebraska, New Mexico, and the other Territories, under no other authority than the assumed sovereignty of a territorial government? It is no answer to this inquiry to say that the sufferers in all these eases had forfeited their rights by their crimes. My point is that it requires sovereign power to determine by law what acts are criminal — what shall be the punishment — the conditions upon which life may be taken, liberty restrained, and property forfeited. This sovereign power in the Territories is vested exclusively in the territorial legislatures — Congress never having assumed the right to enact a criminal code for any organized Territory of the United States.
Power of Taxation for Territorial Purposes.
The territorial governments are also in the habit of imposing and collecting takes on all private property, real and personal, within their limits, to pay the expenses incident to the administration of justice and to raise, revenue for county, town, and city purposes, and to defray such portion of the expenses of the territorial government as are not paid by the United States; and in the event that the owner refuses or fails to pay the assessment, the territorial authorities proceed to sell property therefor, and transfer the title and possession to the purchaser. The only limitation on the power of the territory in this respect is the proviso is the organic law, that "no tax shall be imposed upon the property of the United States; nor shall the lands and other property of non-residents be taxed higher than the lands or other property of residents." This exception and qualification in respect to the property of the United States and of non-residents is conclusive evidence that Congress intended to recognize the right of the territorial government to exercise the sovereign power of taxation in all other cases. Will the Attorney General inform us whether the taxing power is not an attribute of sovereignty? And whether he intends by construction to nullify so much of the organic acts of the several Territories as recognize their rights to exercise the power of raising revenue for territorial purposes. It is important that the citizens of the United States — non-residents as well as
7residents of the Territories — should know whether all of their property in the Territories is exempt from taxation or not. In the classical language of the Attorney General, this "legislative robbery," which can alone proceed front sovereign power, should not be permitted to go on, if it be true that the Territories "have no attribute of sovereignty about them."
Power of Creating Corporations.
The territorial legislatures are also in the habit of creating corporations — municipal, public and private — for counties, cities, and towns, railroads and insurance offices, academies, schools, and bridges. Is not the power to create a corporation an "attribute of sovereignty?" Upon this point Chief Justice Marshall, in delivering the unanimous opinion of the court, once said: "On what foundation does this argument rest? On this alone; that the power of creating a corporation is one appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative powers appertain to sovereignty."
One of Two Conclusions Follows.
Since it can no longer be denied, with any show of reason or authority, that all legislative powers appertain to sovereignty, the Attorney General will be obliged to take shelter behind one of two positions —
Either that the Territories have no legislative powers, and consequently, no right to make laws upon any subject whatever;
Or, that they have sovereign power over all rightful subjects of legislation consistent with the Constitution of the United States, as defined in the organic acts, without excepting slavery.
With all due respect, the first proposition is simply absurd. It contradicts our entire history. It nullifies the most essential provisions of the organic acts of all our Territories. It blots out the legislative department in all our territorial governments. It leaves the people of the Territories without any law, or the power of making any, for the protection of life, liberty, or property, or of any valuable right or privilege pertaining to either; and drives the country, by the necessity of the case, to accept the Philadelphia Republican platform of 1856, "that Congress possesses sovereign power over the Territories of the United States for their government."
The second proposition, however, is in harmony with the genius of our entire political system. It rests upon the fundamental principle of local self-government as laid down by the continental Congress in 1774, and ratified by the people of each of the thirteen colonies in their several provincial legislatures as the basis upon which the revolutionary struggle was conducted.
It preserves the ideas and principles of the revolution as affirmed in the Jeffersonian plan of government for the Territories in 1784, and confirmed by the Constitution of the United States in 1787.
It conforms to the letter and spirit of the compromise measure of 1850, and of the Kansas-Nebraska act of 1854, and of all our territorial governments now in existence.
"It is founded," as Mr. Buchanan said in his letter accepting the presidential nomination, "on principles as ancient as free government itself, and in accordance with them has simply declared that the people of a Territory, like those of a State, shall decide for themselves whether slavery shall, or shall not exist within their limits." "What a happy conception, then, was it for Congress to apply this simple role — that the will of the majority shall govern — to the settlement of the question of domestic slavery in the Territories!" — (Inaugural Address of President Buchanan.)
Is Slavery a Federal or Local Institution.
Since the Attorney General persists in his denial that the Territories can legislate for themselves upon the subject of slavery, there is no alternative left to him but the assumption that Congress possesses sovereign power over that question in the Territories as claimed by the Republicans in their Philadelphia platform and by Mr. Buchanan in his letter to Mr. Sanford. Surely the power to legislate upon that and all other rightful subjects of legislation exists somewhere. Every "right of property, private relation, condition, or status, lawfully existing" in this country, must of necessity be a rightful subject of legislation by some legislative body. Where does this sovereign power of legislation for the Territories reside? It must be in one of two places — either in Congress
8or in the Territories. It can be nowhere else, and must exist somewhere. The Abolitionists insist that Congress possesses sovereign power over the Territories for their government and, therefore, the North, having the majority, should prohibit slavery. The Democrats contend that Congress has no rightful authority to legislate upon this or any other subject affecting the internal polity of the people, and that "the legislative power of the Territories extends to all rightful subjects of legislation consistent with the Constitution." All powers which are federal in their nature are delegated to Congress. Those which are municipal and domestic in their character are "reserved to the States respectively, or to the people" — "to the States" in respect to all their inhabitants, and "to the people" of the Territories prior to their admission as States. To which class of powers does the question of slavery belong? Is it a federal or municipal institution? If federal, it appertains to the federal government, and must be subject to the legislation of Congress. If municipal, it belongs to the several States and Territories, and must be subject to their local legislation. The Constitution of the United States has settled this question. A slave is defined in that instrument to be "a person held to service or labor in one State, under the laws thereof;" not under the laws of the United States; not "by virtue of the Constitution of the United States;" not by force of any federal authority; but "in one State under the laws thereof." So the fugitive slave law of 1793, which was modified and continued in force by Congress in 1850 as one of the compromise measures of that year, recognizes slavery as existing in the Territories under the laws thereof, as follows:
"That when a person held to labor in any of the United States, or in either of the Territories on the north, west, or south of the river Ohio, UNDER THE LAWS THEREOF, shall escape into any other of said States or Territories," &c.
The Supreme Court of the United States have decided that "the state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws." (16 Peters, 611.) Being "a mere municipal regulation," the right to legislate in regard to it would seem to belong to that legislative body which is authorized to legislate upon all rightful subjects of municipal legislation. Can Congress take cognizance of a "mere municipal regulation" in a Territory, which, in the language of the Supreme Court, "is founded upon and limited to the range of territorial laws?" The Republicans, in their Philadelphia platform, say yes! The Democrats, in their Cincinnati platform, say no! What says Judge Black? Where, Mr. Attorney General, does this sovereign power to legislate upon the "municipal regulation" of slavery reside? Is it in Congress or in the Territories? If in Congress, has it not been delegated to the Territory in the organic act under the general grant of "legislative power" over "all rightful subjects of legislation consistent with the Constitution?" If in the Territory, has it not been recognized by Congress in the same act? Whichever be the source of the power, the conclusion is irresistible that the Territories possess the full power, subject, of course, to the Constitution as in all other cases. If, however, slavery exists in the Territories by virtue of the Constitution of the United States, as is contended, it is the imperative duty of Congress to provide for it adequate protection. I can respect the position of those who, so believing, demand federal legislation for the protection of a constitutional right; but what are we to think of those who, while conceding the right, refuse to comply with a constitutional obligation from motives of political expediency? There can be no exception to the rule that a right guaranteed by the Constitution must be protected by law whenever legislation may be essential to its enjoyment.
Have City Corporations Larger Powers than Federal Territories?
Not content with having stripped the Territories of all power to enact laws for the protection of life, liberty, and property, and for the regulation of their internal polity, all of which appertain to sovereignty, the Attorney General dwarfs the territorial governments below the size of ordinary city corporations. He says: "Indeed, there is, probably, no city in the United States whose powers are not larger than those of a federal Territory." What are the powers of an ordinary city corporation? To levy taxes for municipal purposes — to provide for the collection of the revenue — to sell private property for the non-payment of taxes — to execute the title, and transfer the possession to the purchaser, in case of forced sales — to impose fines and penalties, and inflict punishments for the violation of corporation ordinances. These are some of the
9powers usually exercised by city corporations. Are not these powers all attributes of sovereignty? Surely he will not deny that they are, since the whole burden of his argument is, that nothing short of sovereign power can deprive a man of his property. How do these sovereign powers become vested in the city corporations? Probably his answer would be that the several States, within whose jurisdiction these cities are situated, as political sovereignties, have the undoubted right to delegate a portion of their sovereign power to those municipal corporations. The answer is satisfactory thus far; but it must be remembered that some of these cities are situated in the Territories, beyond the jurisdiction of any sovereign State, and that their municipal governments exist solely by virtue of territorial authority. Where do the city corporations in the Territories get the sovereign power to lay out and open streets through private property — to condemn the land and divest the owner of his title without his consent and against his protest? Where do they get the power to impose taxes upon the adjoining lands to pay the cost of grading and paying the streets, and to sell the lands, and transfer the title and possession to the purchaser for the non-payment of taxes? These thing's are being done constantly in Leavenworth, Omaha, Santa Fé, and indeed in all the territorial cities. Where do they get the power? for surely it pertains to sovereignty. From the Territorial governments? We are told that they "have no attributes of sovereignty about them." It is not satisfactory to tell us that these city governments have "larger powers than those of the federal Territories," by whose authority they were created and hold their existence, unless we are informed from what source they derive these "larger powers." Does the creature possess larger powers than the creator? Does the stream rise higher than its source?
Here, again, the Attorney General is taken into a position where he is compelled to abandon his ground, that the Territories "have no attribute of sovereignty about them," and acknowledge that they, have legislative powers, at least to the extent of creating city corporations, and delegating to them the sovereign power of taxation for municipal purposes, and divesting the title to private property for the non-payment of taxes, or pronounce the whole system of territorial legislation unconstitutional and void, and deny their power to make laws upon any subject whatever, and finally to fall bad; on the Abolition platform, and assert that Congress possesses sovereign power over the Territories for their government in all cases whatsoever.
Do the Citizens of the States Forfeit Their Inherent Right of Self-Government by Removing into the Territories of the United States?
Who are the people of the Territories that they "have no attributes of sovereignty about them?" They are emigrants, mostly, from the several States of the Union. It is conceded that the people of each State possess the inherent right of self-government in respect to all of their internal affairs. The question then arises, if citizens of Virginia, possess this inherent right while they remain in that State, whether they forfeit it by removing to a Territory of the United States? They certainly do not forfeit it unless there is something in the Constitution of the United States which divests them of it. Is there anything in the Constitution which deprives the citizens of the several States of their inherent right of self-government the moment they remove to a Territory? The only provision which has any bearing upon this subject is the 10th amendment, which provides that all powers not granted to Congress nor prohibited to the States are "reserved to the States respectively, or to the people." Inasmuch as the right to govern the people of the Territories, in relation to their internal polity, is not delegated to Congress, it necessarily follows that it is "reserved to the people" until they become a State, and from that period to the new State, in the same manner as to the other "States respectively." This right of self-government, being a political right, cannot be exercised by the people until they are formed and organized into a political community. By the Constitution it is the right and duty of Congress to organize the people of the Territories into political communities, and, consequently, the people of the Territories cannot exercise the right of self-government until Congress shall have determined that they have people enough to constitute a political community — that they are capable of self-government — and may safety be intrusted with legislative power over all rightful subjects of legislation consistent with the Constitution. When Congress shall have determined all these
10questions in the affirmative, by organizing the people of a Territory into a political community, with a legislature of their own election, the inherent right of self-government attaches to the people of the Territory in pursuance of the organic act, and "extends to all rightful subjects of legislation consistent with the Constitution." If this conclusion be not correct, it necessarily follows that the people of the States forfeit all their inherent power of self-government the moment they cross the State line and enter a Territory of the United States. By what authority are these inherent rights divested? There can be no other power or paramount authority than the Constitution of the United States. Does that instrument forfeit or divest the right of the people to exercise the inherent power of self-government anywhere, except in the District of Columbia and such other places as are expressly provided for in the Constitution? On the contrary, it expressly recognizes and reserves the right not only "to the States respectively, but to the people." Where, then, is the authority for saying that the people of the several States forfeit and become divested of all their political rights and inherent powers of self-government the moment they cross a State line and enter a Territory of the United States? It certainly cannot be found in the Constitution.
The Jeffersonian Plan of Government for the Territories.
Despairing, however, of being able to make the Attorney General comprehend the distinction between independent sovereign States, which have the power to make their own constitutions and establish their own governments, and dependent colonies or territories, which have the right to govern themselves in respect to their internal polity, in conformity to the organic law by which they were established, I will proceed to notice his contradiction of my positive statement that the Jeffersonian plan of government for the Territories was adopted by the Congress of the Confederation on the 23d day of April, 1784. He has truly a summary mode of disposing of important historical facts when they stand in the way of his line of argument, which is peculiar to himself. Are the people of the United States prepared to believe that their learned Attorney General would be so reckless as to deny a well-known historical fact which appears of record, without even referring to the journal for the day on which I had stated the event to have taken place? However this may be, the truth remains as stated in Harper, that the Jeffersonian plan was adopted by Congress on the 23d day of April, 1784, the assertion of Judge Black to the contrary notwithstanding. By reference to the fourth volume of the printed journals of the Congress of the Confederation, on page 378, will be found the following entry:
"Congress resumed the consideration of the report of a committee on a plan for a temporary government of the Western Territory.
"A motion was made by Mr. Gerry, seconded by Mr. Williamson, to amend the report by inserting after the words ‘but not of voting,’ the following clause:
"That measures not inconsistent with the principles of the confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they shall assume a temporary government as aforesaid, may, from time to time, be taken by the United States in Congress assembled."
The precise language of this amendment should be carefully noted. It confers, and at the same time defines and limits, the only power which it was deemed wise and safe at that day to permit Congress to exercise over the Territories or "New States" as they were then called, to wit: 1st, that they should only exercise such powers as were "necessary for the preservation of peace and good order among the settlers;" and 2d, that even those powers should only be exercised by Congress over the settlers "until they shall assume a temporary government as aforesaid."
So it appears that from the day that the Territory was organized under a temporary government, with a legislature elected by the resident inhabitants, the power of Congress, even "for the preservation of peace and good order among the settlers," ceased; and, the people thereof were left perfectly free to from and regulate their domestic institutions in their own way, subject only to "the principles of the confederation," which conferred on Congress no power over the domestic concerns and internal polity of the people, neither in the States nor in the Territories.
Now let us see whether it be true, as asserted by Judge Black, that this Jeffersonian plan "was rejected by Congress and never afterwards referred to by Mr. Jefferson himself."
On the next page, 379, of the same volume of the journal, will be found the following entry:
"The amendment of Mr. Gerry being adopted, the report as amended was agreed to as follows:" — Here the journal contains the entire Jeffersonian plan, the substance of which was embracied in my article in Harper. On the next page, 380, at the end of the Jeffersonian plan, will be found the following entry: —
"On the question to agree to the foregoing, the yeas and nays being required by Mr. Beresford:
|N. Hampshire||Mr. Foster||Aye.||Aye.|
|Rhode Island||Mr. Ellery||Aye.||Aye.|
|New York||Mr. De Witt||Aye.||Aye.|
|New Jersey||Mr. Beatty||Aye.||Aye.|
|N. Carolina||Mr. Williamson||Aye.||Aye.|
|South Carolina||Mr. Read||No.||No.|
"So it was resolved in the affirmative."
Thus it appears by the journal that the Jeffersonian plan of government for the Territories, instead of having been "rejected by Congress," was actually adopted by the vote of ten States out of the eleven, and by the voice of twenty-two members out of the twenty-four present.
The importance of destroying the authority of this measure, and of the almost unanimous vote of the States and of the members of Congress by which it was adopted, is apparent when we consider that even the Attorney General of the United States would feel some delicacy in charging Thomas Jefferson and his illustrious associates with devising a flagrant scheme of "legislative robbery" — a projet "to license a band of marauders to despoil the emigrants crossing their territory" — a measure for "the confiscation of private property" and seizing it "for purposes of lucre or malice! It will be observed that this error in respect to the rejection of the Jeffersonian plan is not corrected by Judge Black in his appendix.
Confiscation of Private Property — Powers of a Constitutional Convention in a Territory.
In respect to the painful apprehensions which afflict the Attorney General, that if we concede to the Territories all the rights of self-government in respect to their internal polity, they may confiscate all the private property within their limits, and "may order the miners to give up every ounce of gold that has been dug at Pike's Peak," I have only to say that the Supreme Court of the United States, in the Dred Scott ease, have decided that under the Constitution of the United States a man cannot be deprived of life, liberty, or property in a Territory without due process of law; nor can private property be taken for public uses in a Territory without just compensation; and that I approve of the decision.
In regard to his declaration "that no such power is vested in a territorial legislature, and that those who desire to confiscate private property of any kind must wait until they get a constitutional convention, or the machinery of a State government in their hands," I have to say that I am not aware that the people of a Territory, when assembled by their representatives in a "constitutional convention," without the consent of Congress, for the purpose of subverting the territorial government established by Congress, (as was the case with the Topeka and Lecompton conventions,) has any higher or greater power than when assembled in their legislature in pursuance of the constitution and the act of Congress. Judge Black frequently refers to what he calls "a constitutional convention" of a Territory, (which is nothing more nor less than a body of men assembled under the authority of a territorial legislature, without the consent of Congress, to form a constitution to take the place of the organic act passed by Congress,) as having fall and complete sovereign power "over the question of slavery and every other subject pertaining to their internal polity, when he denies the same power to the people and legislature of the Territory by whose authority alone the convention has any legal existence or power. What authority can any such "constitutional convention" have except that which it derives from the legislature which called it into existence, or from the people of the Territory by whom the delegates were elected? If neither the
12people nor the territorial legislature possess any sovereign power, how can they impart sovereignty to a constitutional convention of their own creation? Suppose, then, the people of a Territory shall "wait until they get a constitutional convention or the machinery of a State government into their hands" without the consent of Congress, as they did at Topeka, and again at Lecompton, in Kansas, what power will they have to "confiscate private property," or to decide the slavery question, or to perform any other act of sovereignty, when we are told that the Territories "have no attribute of sovereignty about them?" I can understand how the territorial legislatures can exercise legislative power over ail rightful subjects of legislation in pursuance of the act of Congress and the Constitution; but I confess my inability to comprehend how they can call "a constitutional convention" without the consent of Congress, and subvert the organic law established by Congress, and exercise all the sovereign powers pertaining to a sovereign State, before the Territories become States, and when "they have no attribute of sovereignty about them?"
Does Slavery Exist in the Territories by Virtue of the Constitution?
Judge Black says that "The Constitution certainly does not establish slavery in the Territories, nor anywhere else." It must be admitted that my article in Harpers' Magazine has had the happy effect of drawing from the Attorney General a declaration as unexpected as it is gratifying to the great body of the Democracy, which, if approved and concurred in by "nineteen-twentieths" of the party, as he asserts, will tend in a great measure to restore harmony to its counsels and unity to its action. It is to be presumed that he has not used this language in any equivocal or technical sense, amounting to a mere quibble or play upon words; but that he wishes to be understood as declaring that slavery does not derive its legal existence or validity from the Constitution of the United States, but that the owners of slaves possess the same rights, and no more, under the Constitution, in the several Territories as in each of the States of the Union; and that those rights are not affected by virtue of anything in the Constitution, except the provision for the rendition of fugitive slaves, which is the same in the States and Territories.
With this understanding I do not feel disposed to quarrel with Judge Black for his gratuitous assertion that "nobody ever said or thought" that the Constitution established slavery "in the Territories, nor anywhere else," nor with Mr. Buchanan for his statement in his Lecompton message to Congress that —
"It has been solemnly adjudged by the highest judicial tribunal known to our laws that slavery exists in Kansas by virtue of the Constitution of the United States. Kansas is, therefore, at this moment as much a slave State as Georgia or South Carolina."
I am also willing to accept in the same spirit of harmony the authoritative explanation which the Attorney General has furnished in his appendix, that the President only ment to say that slavery exists in the Territories by virtue of the Constitution in the same sense that "Christianity," Mormonism, Mohammedanism, Paganism, or any other religion, exists in the Territories by virtue of the Constitution; and that therefore Kansas is a slave State in the same sense that Georgia and South Carolina are Christian States, or Mormon States, or Mohammedan States, or Pagan States; that "the Constitution does not establish Christianity," nor Mormonism, nor Mohammedanism, nor Paganism in the Territories; but that "Christianity," and of course Mormonism, and Mohammedanism, and Paganism, "exists there by virtue of the Constitution," because when a Christian, or Mormon, or Mohammedan, or Pagan "moves into a Territory, he cannot be prevented from taking his religion along with him, nor can he afterwards be legally molested for making its principles the rule of his faith and practice."
After this luminous exposition of the distinction between being established by and existing by virtue of the Constitution, I shall, of course, have no more to say upon the subject except to remark that it is beyond my comprehension.
"The Axiomatic Principle of Public Law."
Having repudiated the heresy that the Constitution establishes slavery in the Territories or anywhere else; and demonstrated that the President did not mean anything when he argued in his special message to Congress that Kansas was as much a slave State as Georgia or South Carolina by virtue of the Constitution of the United States, the Attorney General kindly proceeds to expound for my benefit the axiomatic principles of public law as he understands them.
"It is an axiomatic principle of public law that a right of property, a private relation, condition or status, lawfully existing in one State or country, is not changed by the mere removal of the parties to another country, unless the law of that country be in direct conflict with it. For instance: a marriage legally solemnized in France is binding in America; children born in Germany are legitimate here if they are legitimate there; and a merchant who buys goods in New York according to the laws of that State may carry them to Illinois and hold them there under his contract. It is precisely so with the status of a negro carried from one part of the United States to another; the question of his freedom or servitude depends on the law of the place where he came from, and depends on that alone, if there be no conflicting law at the place to which he goes or is taken."
Is it Applicable to the Question of Slavery?
Reserving, for the present, the question how far this "axiomatic principle" is accurately stated, and what limitations have been adjudged to be applicable to it by the Supreme Court of the United States, I will first inquire whether " IT IS PRECISELY so with the status of a negro carried from one part of the United States to another."
Instead of interposing my individual opinion in opposition to that so boldly expressed by the learned Attorney General, I will quote the language of an eminent American jurist, whose authority is everywhere acknowledged. Upon this precise point Judge Story, in his conflict of Laws, p. 159, says:
"But we know that no such general effect has in practice ever been attributed to the state of slavery. There is a uniformity of opinion among foreign jurists and foreign tribunals in giving no effect to the state of slavery of a party, whatever it may have been in the country of his birth or that in which he had been previously domiciled, unless it is also recognised by the laws of the country of his actual domicil, and where he is found, and it is sought to be enforced."
After citing various authorities, Judge Story proceeds: "In Scotland the like doctrine has been solemnly adjudged. The tribunals of France have adopted the same rule, even in relation to slaves coming from and belonging to their own colonies. This is also the undisputed law of England." It is unnecessary to burden these pages with the long list of authorities cited by Judge Story to prove his assertion that "there is a uniformity among foreign jurists and foreign tribunals" that the law is precisely the reverse of what Judge Black states it to be in respect to slavery. But if he attempts to escape the force of this uniform current of foreign authorities I will test his respect for the decisions of the Supreme Court of the United States by citing the case of Prigg vs. The Commonwealth of Pennsylvania, (16 Peters, p. 611,) in which the court says:
"By the laws of nations, no nation is bound to recognize the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does, it is a matter of comity, and not a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of territorial laws."
The same doctrine has been held not only by the highest judicial tribunals in most all of the northern States, by the supreme court of Louisiana, Mississippi, Kentucky, Missouri, North Carolina, and, indeed, nearly, if hot all of the southern States. But I am willing to rest the whole case upon the authority of the Supreme Court of the United States, and to exhort the Attorney General, in his own classical language, only substituting his name for mine, to cease "fighting the judiciary" and treat the courts with "decent respect." "We are called upon to make a contest, at once unnecessary and hopeless, with the judicial authority of the nation. We object to it. We will not obey Judge Black when he commands us to assault the Supreme Court of the United States. We believe the court to be right, and Judge Black wrong."
If, however, the learned Attorney General shall not be turned from the error of his ways by these words of wisdom from his own pen, I will make another effort to save him, by commending to his especial attention the following paragraph from his own pamphlet:
"In former times a question of constitutional law once decided by the Supreme Court was regarded as settled by all, except that little band of ribald infidels who meet periodically at Boston to blaspheme the religion, and plot rebellion against the laws, of the country!"
Can the Laws of One Country Operate in Another Without Its Consent?
Having shown that Judge Black's "axiomatic principle of public law" in respect to the operation of the laws of one State or country within the jurisdiction of another, as defined and expounded by the highest judicial tribunals in
14this country and Europe, has no application to, and does not include, slavery; but that, on the contrary, "the state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws;" and, in the language of the Constitution itself, exists "in one State UNDER THE LAWS THEREOF," and not by virtue of the Constitution of the United States, nor of any federal authority, nor of any foreign law, nor any international law, I will proceed to examine how far Judge Black has accurately stated the "axiomatic principle of public law," or the law of the comity of nations, by which "a right of property, a private relation, condition, or statue lawfully existing in one State or country, is not changed by the mere removal of the parties to another country, unless the law of that other country be in direct conflict with it."
I shall pursue this inquiry out of respect for the great learning displayed by the Attorney General in his philanthropic purpose of enlightening me upon the subject, and not because it has any bearing upon the question at issue, if the decision of the Supreme Court of the United States is to be taken as conclusive evidence, in opposition to the opinion of Judge Black, as to the law of the case. Of course, I express no opinion of my own, since I make it a rule to acquiesce in the decisions of the courts upon all legal questions. In order to have stated the general principle fairly and accurately, Judge Black should have added that whenever the foreign law, or the law of one State is to be enforced in another, it derives its validity from the consent of the State or country where it is to be enforced, and not from the sovereignty of the State or country from which it came.
The brief space allotted to this reply, already too long, will not permit me to cite, much less quote, the long list of authorities, American, English, and Continental, upon this point. It may be safely assumed as an incontrovertible principle, that the laws of one country can have no force in any other country without its content, expressed or implied, and that such consent will be implied, and the tacit adoption of the foreign laws, by the government of the country where they are to be enforced, will be presumed by the courts in all cases where there is no local law to the contrary, and the foreign law does not contravene its own policy. The whole doctrine of the law of comity of nations, as applicable to the question how far the local law of one State of the Union could operate and be enforced beyond the territorial limits of such State, was fully discussed and deliberately determined in the case of the Bank of Augusta vs, Earle, 13 Peters, p. 519, in which Chief Justice Taney, delivering the opinion of the court, said:
"It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, he recognized and executed in another, where the rights of individuals are concerned. The laws of contracts made in foreign countries are familiar examples; and the courts of justice have always expounded and executed them according to the laws of the place in which they were made; provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible when contrary to its policy or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it as a part of the voluntary laws of nations. It is truly said in Story's Conflict of Laws, 37, that ‘in the silence of any positive rule affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interests.’"
Judge Black's Doctrine Equivalent to the Wilmot Proviso.
This is the law of comity applicable to the several States and Territories of this Union, as expounded and defined by the Supreme Court of the United States, Supposing it to be applicable to the question of slavery in the Territories, it would authorize the owner of slaves in Virginia to immigrate to Kansas and carry his slaves with him, and to maintain his legal rights there according to the tenor of the laws of Virginia, by the consent of Kansas, expressed or implied; and "in the silence of any positive rule in Kansas, affirming or denying, or restraining the operation of the laws of Virginia, the courts of justice in Kansas will PRESUME the tacit adoption of them by the government of that Territory, unless the laws of Virginia are repugnant to the policy of the Territory or prejudicial to its interests. According to this doctrine, the Virginia master takes his slaves there subject to the lex loci, and holds them in the Territories "under the laws thereof;" and in the event that the territorial laws are silent upon the subject of slavery, the courts of justice will presume that the territorial government has consented to the existence of slavery, and
15has tacitly adopted the Virginia laws in respect to the rights of the master who came with his slaves from that State. But at this very point Judge Black erects an insuperable barrier to the rights of the owner of the slaves. He argues that the territorial government has no power to act or legislate upon the subject of slavery and consequently is incapable of giving its consent to the operation of the Virginia laws, while the courts of the Territory cannot presume such consent to have been given where it was impossible to give it, nor the Virginia laws to have been tacitly adopted by a government which had no power to adopt them. Therefore, unless the power of the territorial legislature to act upon the subject of slavery in the same manner as any other domestic or municipal regulation be conceded, and consequently its right to give or withhold its consent to the operation or tacit adoption of the laws of the slaveholding States be acknowledged, the conclusion is irresistible that Judge Black's axiomatic principle of public law, as defined by the Supreme Court of the United States, would strip the owner of slaves in the Territories of all those rights which law-fully existed in the States from which they removed as effectually and inevitably as the Wilmot proviso or the Ordinance of 87. But if it shall he conceded, on the contrary, that slavery is a proper subject of legislation, upon which the territorial legislatures may rightfully act within the limitations of the Constitution, it necessarily follows that they may consent to the operation or adoption of the laws of the slaveholding States to the fullest extent necessary to the protection and enjoyment of the owners' rights in slave property.
Suppose the Supreme Court Wrong and Judge Black Right.
Suppose, however, the Supreme Court of the United States to be wrong in holding that the laws of one country can prevail in other countries only by consent or tacit adoption, and Judge Black to be right also in asserting that the State law in respect to slavery follows the master and his slave into the Territory and remains in force and unalterable until the Territory becomes a State, let us see what would be the practical result of such an "axiomatic principle of public law!" It would enable any one citizen of each of the fifteen slaveholding States to remove into a Territory with his slaves and carry with him the law of slavery peculiar to his own State, and thus put into operation in the Territory, without the consent of the legislature or of Congress, fifteen distinct and conflicting systems of law — some recognizing slaves as real property, and others as personal; some prescribing one rule and measure of punishment for offences, and others a different; some prescribing certain, modes and conditions of emancipation, and others different ones; and others still prohibiting emancipation altogether. Fifteen distinct and conflicting systems of law on the same general subject, each deriving its validity from the authority of the State from which the master emigrated, and following the slaves as the individual right of the master, in consequence of his former citizenship of such State, and not by virtue of the Constitution of the United Slates, nor by the assent of the Territory or of Congress, are put in operation in the same Territory, each by the individual act of one man, in opposition to the wishes of the people, and in defiance of the legislative authority of the Territory, and all to remain unalterable, no matter how inconvenient or unsuitable, until the people get a constitutional convention or the machinery of a State government into their hands.
As the law of slavery which the master carries into the Territory with his slave is his individual right, resulting from his former citizenship in another State, some inquisitive persons may inquire how long the right will abide with him? What will become of it when the Kentuckian sells his slave to the Vermonter; under what law will the Vermonter hold the slave; whether under the law of Kentucky, where the new master never resided, or under the law of Vermont, where slavery is prohibited?
The same "axiomatic principle," as interpreted by Judge Black, would enable any one citizen from each of the thirty-eight States and Territories of this Union to put in operation in any other Territory, without their consent, express or implied, thirty-eight separate and conflicting systems of law upon the subject of marriage and the rights of married women: upon the legitimacy of children and their rights of inheritance; upon the relative rights and duties of guardian and ward, master and apprentice, and every "right of property, private relation, condition or status" lawfully existing in the State or Territory from which they came!
The same construction of this axiomatic principle would enable any one person, black or white, who should emigrate from Europe, Asia, or Africa — from North, South, or Central America — or from the Islands of the Sea, wherever they are recognized as civilized people, to go into the Territories of the United States and carry with them and put in operation all the laws of their respective countries, so far as they recognized any "right of property, private relation, condition or status," no matter how revolting to the moral sense of the community without the consent of Congress or of the Territory, and when it was known that such laws were contrary to its policy and prejudicial to its interests!
It is true that, according to Judge Black, these results can follow only where there is no local law in conflict with his axiomatic principle of public law. It should be borne in mind, however, that the Territories "have no attribute of sovereignty about them," and consequently no legislative power upon any subject whatever, it remains for him to show how there can be any such conflicting law in the Territories.
Absurdity of Judge Black's Doctrine Confessed by Himself.
The absurdity of such a doctrine having been exposed, and its folly made manifest and ludicrous in the criticisms of the members of the legal profession upon Judge Black's "Observations," he at length became ashamed of his position, and consequently scouts the idea in his appendix, that he ever dreamed that his "axiomatic principle" would enable the Virginia master to carry with him into the Territories the Virginia law of slavery, and thus furnish judicial remedies and legal protection to his slave property in the Territories. Let us state his position in his own language, as revised and corrected in his appendix:
"We have said, and we repeat, that a man does not forfeit his right of property in a slave by migrating with him to a Territory. The title which the owner acquired in the State from whence he came must be respected in his new domicil as it was in the old, until it is legally and constitutionally divested. The proposition is undeniable. But the absurd inference which some persons have drawn from it is not true, that the master also takes with him the judicial remedies which were furnished him at the place where his title was acquired. Whether the relation of master and slave exists or not is a question which must be determined according to the law of the State in which it was created; but the respective rights and obligations of the parties must be protected and enforced by the law prevailing at the place where they are supposed to be violated. This is also true with respect to rights of every other kind.
So it appears that the Attorney General of the United States aspires to become the champion of the sanctity of private property by writing a pamphlet for the mere purpose of showing that the owner has a right WITHOUT A REMEDY. He seems annoyed that "some persons" should "have drawn the absurd inference" from his pamphlet that the courts of justice could or should afford any protection to slave property in the Territories by the application of those judicial remedies and legal provisions, and police regulations which lawfully existed in the State from which the Virginia master took his slaves, and without which the master can neither hold nor appropriate his property, nor defend his right when assailed. If the owner can derive no benefit from the judicial remedies which lawfully existed in the State from which he removed, and the territorial legislature is incapable of legislating upon the subject of slavery, and therefore can furnish no remedies, what protection can the master possibly have for his slave property in the Territories under Judge Black's exposition of the Constitution and laws? He will not consent that Congress shall enact a code of laws for the protection of slavery in the Territories. He denies the right of a territorial legislature to pass laws upon the subject, either for its protection, regulation, or exclusion, for the reason that the Territories "have no attribute of sovereignty about them;" and he pronounces the inference "absurd" that the courts can apply the "judicial remedies" lawfully existing in other States. Denying all judicial remedies, and insisting upon a construction of the Constitution which renders legislative protection impossible, Judge Black claims the gratitude of the slaveholders for having discovered an "axiomatic principle of public law" under which the owner may be robbed of his property, and still console himself with the assurance that he retains a barren, useless, worthless right, under the laws of a State of which he is no longer a citizen, and whence the slave has been removed.
Political Tribunals Cannot Determine Judicial Questions.
I will here dismiss all of these questions of law, and leave them to the courts of justice as the only tribunals under the Constitution which are competent
17authoritively to determine them. I have discussed them merely because Judge Black has sought the controversy, and thrust them into it; and not because they have anything to do with the political issues now pending before the country. In all that I have said, I have been content to assume the law to be as decided by the Supreme Court of the United States, without presuming that my individual opinion would either strengthen or invalidate their decisions. By the Constitution all legal and judicial questions are confided to the courts, whose final decisions are conclusive upon everybody until reversed. Political, conventions and party platforms can take cognizance, only of political questions. I have never recognized the propriety of any political party appealing from the adjudications of the highest judicial tribunals in the land to political assemblages, with a view of either confirming or impairing the force of their decisions. Some years ago when the common council of the city of Chicago adopted a resolution declaring the fugitive slave law unconstitutional and void, and, released the police from obeying it or rendering any assistance in its execution, I denied the right of the abolitionists to take an appeal from the decision of the Supreme Court of the United States on a great constitutional question to the common council of a municipal corporation, although its powers are said to be "larger than those of a federal Territory." So, too, last year, when I returned to Illinois to canvass the State in behalf of the regular nominees of the Democratic party against the combined assaults of the Black Republicans and federal office holders, I denied their right to appeal from the decision of the Supreme Court in the Dred Scott case to an abolition caucus or opposition meeting with a view of impairing or in any way affecting that decision. Nor do I adroit the right or propriety of the Democratic party appealing from the decisions of the judicial tribunals to public meetings or political conventions for the purpose of revising, approving, or condemning such decisions, or of instructing the courts bow they shall decide in future.
Political parties and conventions should confine themselves to those political issues which may be rightfully determined by the political departments of the government in pursuance of the Constitution. Such is the position of the Democratic party and the character of the Cincinnati platform with reference to the question of slavery in the Territories. By that platform the whole subject of slavery agitation is to be banished, forever from the halls of Congress and left to the people of the Territories to be disposed of in such manner as they may determine for themselves, subject to such limitations only as the Constitution of the United States may have imposed upon their legislative authority and discretion. The Supreme Court of the United States will determine whether a territorial enactment is repugnant to the Constitution, in the same manner as they decide whether the statute of a State or an act of Congress is repugnant to that instrument; and we, as in duty bound, must all sustain and maintain the authority of the court under the Constitution, whenever the case shall, arise and the decision of the court be authoritively announced.
Why, then, attempt to divide the party and produce strife and discord in our ranks, in these perilous times, by forcing a test of political fidelity upon a judicial question which has never been decided, by the courts and cannot be authoritatively determined by any of the political departments of the government, and upon which the faith of the party is irrevocably pledged, that there should never be any proscription because of differences of opinion which were known to exist when the Kansas and Nebraska act was passed and the Cincinnati platform adopted?
If this new test of party fidelity had been made and insisted upon in 1856, when Mr. Buchanan accepted the presidential nomination with the declaration "THAT THE PEOPLE OF A TERRITORY, LIKE THOSE OF A STATE, SHALL DECIDE FOR THEMSELVES WHETHER SLAVERY SHALL NOT EXIST WITHIN THEIR LIMITS" —
When our candidate for the Vice Presidency was understood to affirm the same principle at Lexington and at Tippecanoe —
When the Secretary of State was known to have devoted all the energies of his great intellect to the vindication of the same principle from the day he wrote the Nicholson letter —
When the Secretary of the Treasury was canvassing Pennsylvania and other nothern States, imploring the people to vote for Mr. Buchanan because he was pledged to carry out this great principle of populy sovereignty in the Territories —
When the whole northern Democracy and nearly every southern man who
18canvassed the northern States for the Democratic nominees pledged the whole party, north and south, to the support of the Cincinnati platform, as expounded by Mr. Buchanan in his letter of acceptance —
If I repeat, this new test had then been made and insisted upon, the people of the United States would never have known Judge Black as Attorney General; nor would the power and patronage of a democratic administration have been exhausted is the prosecution of a war of extermination upon all those Democrats whose only political sin consists in unwavering fidelity to those principles upon which these eminent men were elevated to their high places.
Is this new test to be urged only for the purpose of controlling the Charleston Domination, and to be abandoned as soon as the convention shall have adjourned? Or is it intented that the nominee, when elected, shall continue the system of proscription which has been recently inaugurated, as the fixed policy of his Administration, and denounce all Democrats who repudiate the test as unworthy to hold any federal office or even to serve as chairman of committees in Congress? Are those fearless and incorruptible Democrats who, rejecting all tests which have not received the sanction of the national convention of the party, stand firmly by its time-honored principles, to be called upon to fight, the battles and win the victories with the understanding that they shall have no participation in the honors of the triumph! Is the nominee who may become the chosen embodiment of this prescriptive policy to be placed in the proud position of owing his election to the suffrages of those who have already been selected for the sacrifice, and to whose destruction he has become pledged by his nomination? Is it not well that we should understand one another in advance, so that when the day of tribulation comes, if come it must, there shall be no imputation of ingratitude or bad faith?
The Illinois Democracy in Favor of the Cincinnati Platform, and Opposed to All New Tests.
Judge Black, however, with more cunning than fairness, attempts to conceal from public view his own inconsistent positions, by studiously and persistently representing me as endeavoring to found a new school of politics, to force new issues upon the party, and to prescribe new tests of political faith, in violation of the Cincinnati platform. Of course, he produces no proof, well knowing that none could be produced, to sustain the truth of the charge. I will produce the proof to the contrary, however, so satisfactory and conclusive that no honest man will be excusable in repeating the charge. No man living has more uniformly and consistently adhered to the platform, usages, and organization of the Democratic party than I have, under all circumstances, from the period of my earliest manhood. During the whole war of extermination which has been waged upon me with ravage ferocity by the combined forces of Black Republicanism, and the federal administration, I have, on all occasions, avowed ray inflexible purpose to maintain the creed of the party as affirmed in the Cincinnati platform, and to resist by all legitimate means the unauthorized interpolation of new articles therein, and all tests of political fidelity which have not received the sanction of the party in its duly constituted conventions. The Illinois Democracy, when assembled in State convention in April, 1858, under circumstances of extreme provocation, for the purpose of nominating a Democratic ticket in opposition to the unholy alliance which had been formed by and between the Abolitionists, federal office-holders, and Black Republicans, emphatically endorsed the Cincinnati platform as follows:
"Colonel McClernand, from the committee to prepare resolutions for the consideration of the convention, made the following report: which was read, and on motion each resolution was separately read and unanimously adopted:
"1. Resolved, That the Democratic party of the State of Illinois, through their delegates in general convention assembled, do reassert and declare the principles avowed by them as when, on former occasions, they have presented their candidates for popular suffrage.
"2. Resolved, That they are unalterably attached to, and will maintain involiate, the principles declared by the national convention at Cincinnati, in June, 1856.
"3. Resolved, That they avow with renewed energy their devotion to the federal union of the United States, their earnest desire to avert sectional strife, their determination to maintain the sovereignty of the States, and to protect every State, and the people thereof, in all their constitutional rights.
"4. Resolved, That the platform of principles established by the National Democratic Convention at Cincinnati is the only authoratative exposition of Democratic doctrine, and that they deny the right of any power on earth, except a like body, to change or interpolate that platform, or to prescribe new and different tests; THAT THEY WILL NEITHER DO IT THEMSELVES, nor permit it to be done by others, BUT WILL RECOGNIZE ALL MEN AS DEMOCRATS WHO STAND BY AND UPHOLD DEMOCRATIC PRINICIPLES."
These resolutions were introduced into the Senate by me, on the 29th day of April, 1858, a few days after their adoption by the Illinois State convention, with this emphatic endorsement:
"I will furnish to the reporter the whole series, as furnishing the platform upon which the Illinois Democracy stand, AND BY WHICH I INTEND TO ABIDE."
Thus it appears from the record made up at the time, that the real issue between the federal administration, as the allies of the Black Republicans of Illinois on the one hand, and the Illinois Democracy on the other, in that memorable struggle, was that the administration claimed the right to "change and interpolate the Cincinnati platform, and prescribe new and different tests;" while the gallant Democracy of that noble State denied "the right of any power on earth, except a like body," to change the Cincinnati platform or prescribe new tests; and declared that "they will neither do it themselves, nor permit it to be done by others, BUT WILL RECOGNIZE ALL MEN AS DEMOCRATS WHO STAND BY AND UPHOLD DEMOCRATIC PRINICIPLES."
We were assailed and proscribed because we did stand by the Cincinnati platform; because we would not recognize the right of any power on earth, except a regularly constituted convention of the party to change the platform and interpolate new articles into the creed; because we would not sanction the new issues and submit to the new tests; because we would not proscribe any Democrat nor permit the proscription of Democrats in consequence of difference of opinion upon questions which had arisen subsequently to the adoption of the platform; and because we recognized all men as Democrats who supported the nominees and upheld the principles of the party as defined by the last national convention. It was upon this issue and for these reasons that the power and patronage of the Federal Government were wielded in concert with the Black Republicans for the election of their candidates in preference to the regular nominees of the Democratic party. This system of proscription still continues in Illinois, and is being extended throughout the Union, with the view of controlling the Charleston nomination. Fidelity to the Cincinnati platform and opposition to the new issues and tests prescribed by men in power, in direct conflict with the profession upon which they were elected, are deemed disqualifications for office and cause for removal.
The Charleston Convention — Presidential Aspirants.
The reasons for singling me out as the especial object for anathema will be found on the first page of the Attorney General's pamphlet, where he says:
"He [Douglas,] has been for years a working, struggling candidate for the presidency!"
Suppose it were true that I am a presidential aspirant; does that fact justify a combination by a host of other presidential aspirants, each of whom may imagine that his success depends upon my destruction, and the preaching a crusade against me for boldly avowing now the same principles to which they and I were pledged at the last presidential election? Is this a sufficient excuse for devising a new test of political orthodoxy; and, under pretext of fidelity to it, getting up a set of bolting delegates to the Charleston convention in those States where they are unable to control the regular organization? The time is not far distant when the Democracy of the whole Union will be called upon to consider and pronounce judgment upon this question.
What authority has the Attorney General, aside from his fears and hopes, for saving that I am "a working, struggling candidate for the presidency?" My best friends know that I have positively and peremptorily refused to have anything to do with the machinery of the conventions in the several States by which the delegates to the Charleston convention are to be appointed. They know that personally I do not desire the presidency at this time — that I prefer a seat in the Senate for the next six years, with the chance of a re-election, to being President for four years at my period of life. They know that I will take no steps to obtain the Charleston nomination, that I will make no sacrifice of principle, no concealment of opinions, no concession to power for the purpose of getting it. They know, also, that I only consented to the use of my name upon their earnest representations that the good of the Democratic party required it, and even then, upon the express condition that the Democratic party shall determine in the presidential election of 1860, as I have full faith they will, to adhere to the principles embodied in the compromise measures of 1850, and approved by the people in the presidential election of 1852, and incorporated
20into the Kansas-Nebraska act of 1854, and confirmed by the Cincinnati platform and ratified by the people in the presidential election of 1856. Nor can the Attorney General pretend to be ignorant of the fact that the public were informed long since that, "If, on the contrary, it shall become the policy of the Democratic party, which I cannot anticipate, to repudiate these, their time-honored principles, on which we have achieved so many patriotic triumphs, and in lieu of them the convention shall interpolate into the creed of the party such new issues as the revival of the African slave trade, or a congressional slave code for the Territories, or the doctrine that the Constitution of the United States either establishes or prohibits slavery in the Territories beyond the power of the people legally to control it, as other property, it is due to candor to say that in such an event I could not accept the nomination if tendered to me." Is this the language of a man who is working and struggling for the presidency upon whatever terms and by the use of whatever means it could be obtained? Or does this language justify that other charge, that I am making new issues and prescribing new tests in violation of the Cincinnati platform.
While I could have no hesitation in voting for the nominee of my own party, with whom I might differ on certain points, in preference to the candidate of the Black Republican party, whose whole creed is subversive of the Constitution and destructive of the Union, I am under no obligation to become a candidate upon a platform that I would not be willing to carry out in good faith, nor to accept the presidency on the implied pledge to carry into effect certain principles, and then administer the government in direct conflict with them. In other words, I prefer the position of Senator, or even that of a private citizen, where I would be at liberty to defend and maintain the well-defined principles of the Democratic party, to accepting a presidential nomination upon a platform incompatible with the principle of self-government in the Territories, or the reserved rights of the States, or the perpetuity of the Union under the Constitution. In harmony with these views, I said in those very speeches in Ohio, to which Judge Black refers in his appendix, that I was in favor of conducting the great struggle of 1860 upon "the Cincinnati platform without the addition of a word or the subtraction of a letter." Yet, in the face of all these facts, the Attorney General does not hesitate to represent me as attempting to establish a new school of politics, to force new issues upon the party, and prescribe new tests of Democratic faith.
In conclusion, I have only to suggest to Judge Black and his confederates in this crusade, whether it would not be wiser for them, and more consistent with fidelity to the party which placed them in power, to exert their energies and direct all their efforts to the redemption of Pennsylvania from the thraldom of Black Republicanism than to continue their alliance with the Black Republicans in Illinois, with the vain hope of dividing and defeating the Democratic party in the only western or northern State which has never failed to cast her electoral vote for the regular nominee of the Democratic party at any presidential election.
WASHINGTON, October, 1859.
Rejoinder of Judge Douglas to Judge Black.
The Washington "Constitution," the central organ of my assailants, contains the Attorney General's rejoinder. He has lost his temper without sufficient cause. If the lawyers throughout the country are all laughing at him for gravely asserting a series of legal propositions, every one of which has been decided against him by the Supreme Court of the United States, he should remember that it was his own officious conduct that brought him into this unenviable position. The controversy was of his own seeking. I have never commenced or provoked a political controversy with any Democrat; and my invariable rule is to leave all questions of law to the judicial tribunals.
If the Attorney General did not know what the law was he should not have attempted a display of learning which he did not possess. If, on the contrary, he did know that the Supreme Court of the United States, and nearly all the State courts, and all foreign tribunals have decided the law to be precisely the reverse of what he stated it to be, he should congratulate himself and feel grateful for his escape with so lenient a punishment. Here is a specimen of the recklessness with which a man sometimes speaks when he allows his wounded pride and the violence of his passions to stifle the promptings of his conscience. Speaking of my reply, Judge Black says:
"There is scarcely a sentence in this whole pamphlet which does not either pronounce an error or else mangle a truth."
This is a medium sample of the style and character of the Attorney General's rejoinder. Three newspaper columns of disreputable imputations and equivocal disclaimers, nearly every alternate sentence pregnant with offensive inuendoes, and succeeded with apologetic assurances that he did not wish to be understood as saying that the truth had been intentionally mangled or the lay knowingly misstated. Judge Black seems to be under the impression that it is as much a matter of course for an honest man to mangle the truth as for himself to blunder in the law every time he opens his mouth, and that ignorance of both fact and law is sufficient excuse for propounding error and mangling truth. He should remember that neither pompous pretension to great learning in the law beyond what is written in the books, nor the possession of a high office, no matter how worthily or unworthily filled, can justify any gentleman in thrusting himself officiously into a controversy with which he has no connexion, officially or personally, and, without provocation, dealing in wholesale charges and offensive inuendoes, without any specification of the alleged facts, or proof to sustain his unfounded imputations. Had he known me well enough to appreciate the impulses of my heart he would have known that, if he could have pointed out and established any one error of fact or law in my reply, I would have felt more pride and pleasure in making a prompt correction than in persevering in the wrong when convinced of my error.
When I deemed it my duty, in self-defence, at Wooster, to denounce misrepresentations of my position, I accompanied the denunciation with distinct specifications and proof to sustain them so satisfactory and conclusive that, although he has since replied twice, in his appendix and rejoinder, he has net ventured to deny any one fact, or question any one specification, nor attempted to relieve himself from the public conviction of having assailed without provocation, and traduced without justification, a man who had done him so other injury than to find nothing in his previous career particularly worthy of censure or applause. Without further notice, of these petty personal matters, which injure those only who indulge in them, let us see how the main points in controversy now stand.
In my reply to Judge Black I produced and quoted the decisions of the Supreme Court of the United States, in which the following propositions were solemnly and authoritatively established as the law of the land:
1st. That the state of slavery is a mere municipal regulation, founded upon and limited to the range of territorial laws.
2d. That the laws of one State or country can have no force or effect in another without its consent, express or implied.
3d. That in the absence of any positive rule upon the subject, affirming or
22denying or restraining the operation of the foreign laws or laws of one State or country in their application to another, the courts will presume the tacit adoption of them by the government of the place where they are sought to be enforced, unless they are repugnant to its policy or prejudicial to its interests.
The Attorney General neither admits nor denies the correctness of these propositions, nor does he either admit or deny that the courts hare so decided. To admit their correctness would necessarily involve an abandonment of his position and a confession that he had been wrong from the beginning. To deny them would bring him in direct conflict with the authority of the court and expose him to an inevitable conviction by the record. Forced into this dilemma and impaled between these alternatives, either of which is fatal to his reputation as a lawyer, the Attorney General passes in silence by the decisions of the court which I brought to his notice, and reasserts his original position with the unanimous opinion of the Supreme Court of the United States, as delivered by Chief Justice Taney, in the case of the Bank of Augusta vs. Earle, which I have quoted in my reply, with a reference to volume and page, 13th Peters, 519.
Judge Black asserts that "a right of property, a private relation, condition, or status, lawfully existing in one State or country, is not changed by the mere removal of the parties to another country, unless the law of that country be in direct conflict with it;" and that such right "depends on the law of the place where he came from, and depends on that alone."
The doctrine of the court is that the law of one State or country can have no force or effect in another without its consent or tacit adoption, and that its validity depends upon such "consent or tacit adoption," and upon that alone, and not upon the authority of the State or country from which the party removed. Here is a radical, irreconcilable difference of opinion between Judge Black and the Supreme Court of the United States.
I brought this difference of opinion to the notice of Judge Black in my reply, and, in view of it, commended to his consideration, in respectful terms, the following words of wisdom from his own pen:
"In former times a question of constitutional law once decided by the Supreme Court was regarded as settled by all except that little bawl of ribald infidels who meet periodically at Boston to blaspheme the religion and plot rebellion against the laws of the country!"
Judge Black has not attempted to reconcile his opinion, with the decision of the court. No man in his senses can fail to perceive that if the court is right Judge Black is inevitably wrong. Although the whole legal controversy between Judge Black and myself turns on this point, I did not choose, in my reply, to offset my individual opinion against his, or to bring the two into comparison. As the question at issue could only be determined by authority, I said:
"Of course I express no opinion of my own, since I make it a role to acquiesce in the decisions of the courts upon all legal questions."
And again, in concluding what I had to say on the legal points at issue, I added:
"In all that I have said I have been content to assume the law to be as decided by the Supreme Court of the United States, without presuming that my individual opinion would either strengthen or invalidate their decisions."
If Judge Black could reconcile it with his dignity and sense of duty to act on the same assumption, there could be no controversy between him and me in regard to the law of the ease. According to the doctrine of the court, a white man, with a negro wife and mulatto children, under a marriage lawful in Massachusetts, on removal into a Territory, could not maintain that interesting "private relation," under the law of Massachusetts, without the consent or tacit adoption of the Massachusetts law by the territorial government. On the contrary, if Judge Black's view of the axiomatic principle of public law be correct, this disgusting and demoralizing system of amalgation may be introduced and maintained in the Territories under the law of Massachusetts, in defiance of the wishes of the people and in contempt of all territorial authority, until "they get a constitutional convention or the machinery of a State government in their bands." It is true that Judge Black limits this right to those places where there is no law "in direct conflict with it;" but he also says in the same pamphlet that the Territories "have no attribute of sovereignty about them," and, therefore, are incapable of making any law in conflict with this "private relation" which is lawful in Massachusetts.
23According to the doctrine of the court, a Turk, with thirteen wives, under a marriage lawful in his own country, could not move into the Territories of the United States with his family and maintain his marital rights under the laws of Turkey without the consent or tacit adoption of the Turkish law by the territorial government.
In accordance with the Black doctrine, (I use the term for convenience and with entire respect,) polygamy may be introduced into all the Territories, maintained under the laws of Turkey, "until the people of the Territory get a constitutional convention or the machinery of a State government into their hands," with competent authority to make laws in conflict with this "private relation."
According to the doctrine of the court, the peddler with his clocks, the liquor dealer with his whiskies, the merchant with his goods, and the master with his slaves, on removal to a Territory, cannot hold, protect, or sell their property under the laws of the States whence they came, respectively, without the consent or tacit adoption of those laws by the territorial government.
According to the Black doctrine, however, any one person, black or white, from any State of the Union, and from any country upon the Globe, may remove into the Territories of the United States and carry with him the law of the State or country whence he came for the protection of any "right of property, private relation, condition or status, lawfully existing in such State or country," without the consent and in defiance of the authority of the territorial government, and maintain the same "until they get a constitutional convention, or the machinery of a State government into their hands."
This is the distinct issue between Judge Black and the Supreme Court of the United States. It is not an issue between the Attorney General and myself, for in the beginning of the controversy I announced my purpose "to assume the law to be as decided by the court, without presuming that my individual opinion would either strengthen or invalidate their decisions."
This brings me to consider the third proposition established by the court in the cases which I quoted in my reply.
Under the application of this rule to the Territories, it necessarily follows, that "a right of property, a private relation, condition, or status, lawfully existing in one State or country, is not changed by the mere removal of the parties to a [Territory,] unless the law of that [Territory] be in direct conflict with it." If, then, it be true, as asserted by Judge Black, that "IT IS PRECISELY so with the status of a negro carried from one part of the United States to another" — that the master's right to his slaves, under the State whence he came, is governed by the same rule as the right of the Turk to his wives under the law of his country, and the right of a white man to his negro wife under the law of Massachusetts; and, as every other "right of property" and "private, relation," it follows of necessity that, in the absence of any positive rule upon the subject in the Territory, affirming or denying or restraining the operation of these several laws which the immigrants have brought into the Territory with them, the judicial tribunals will presume the tacit adoption of them by the territorial government, unless they are repugnant to its policy or prejudicial to its interests. But still it must be remembered that, when thus "adopted by the territorial government," according to the presumption of the court, their validity in that Territory depends upon such adoption, and upon that alone, and not upon the authority or sovereignty of the State or country where they originated. Herein consists the palpable, fundamental error of Judge Black, which I pointed out to him in my reply, and established it beyond incredulity or cavil by the decisions of the Supreme Court. Is it possible that he could not see the error when pointed out to him? Or does he not consider the Supreme Court of the United State competent authority to determine the role of law upon the subject?
If this doctrine be sound, he cannot escape the conclusion that polygamy, and the amalgamation of the black and white races by marriage, and every other "private relation lawfully existing in any State or country," in or out of Christendom, no matter how revolting or debasing, may be introduced into the Territories in defiance of all territorial authority, and maintained there under the laws of the State or country whence the parties came, until the people of the Territory "get a constitutional convention or the machinery of a State government into their hands." The limitation, and the only one which he admits on this right, to wit: that it exists in every country and place on earth, "unless
24the law of that country be in direct conflict with it," is annulled and swept away in the Territories by his other position, that "they have no attribute of sovereignty about them," and are incapable of enacting any law "in direct conflict with" "a right of property, a private relation, condition, or status, lawfully existing in another State or country." To show that there is no possibility of my misunderstanding him or misrepresenting him in this respect, it is only necessary to remind the reader that Judge Black illustrates his proposition by referring to the fact that marriages lawful in the country where they occurred are deemed lawful in all others: and that children who were legitimate where born are deemed legitimate wherever they go; and then adds, that "it is precisely so with the status of a negro carried from one part of the United States to another." He places the question of slavery in the same category with marriage and every other "private relation," and insists that they all depend upon the same rule: that whatever may be the rights of the one in, the Territories, "it is precisely so" in respect to the others, and that all of them are alike beyond the reach and control of the territorial government, and must remain unchanged under the laws of the State or country whence the parties came until the people of the Territories, are permitted by Congress to assume the functions of sovereign States. Therefore his denial of the right of a territorial legislature to enact a law in direct conflict with the law of slavery in the State whence the master came with his slave involves a like denial of the right of the territorial legislature to pass a law in conflict with the law of marriage in Massachusetts or in Turkey, whence the white man emigrated with his black wife and mulatto children, or the Turk with his dozen wives and as many children by each. The ground upon which he places his denial of the right of a territorial legislature to make laws upon the subject of slavery, marriage, and every "right of property, private relation, condition, or status, lawfully existing in another State or country," if tenable, precludes the possibility of making laws upon any rightful subject of legislation whatsoever. He places it upon the ground that to legislate upon the subjects involves the exercise of sovereign power, and asserts that the Territories "have no attributes of sovereignty about them." I have never doubled that it did require the exercise of sovereign power to legislate upon the subjects referred to, or upon any other subject. I went so far in my "reply" as to quote from the opinion of the Supreme Court by Chief Justice Marshall, that "all legislative powers appertain to sovereignty." Since Judge Black insists that the Territories "have no attribute of sovereignty," and, consequently, no legislative powers, no man who endorses his position can for an instant contend that the territorial legislature can make any law to conflict with polygamy, or the amalgamation of the black and white races by marriage, or any other "private relation lawfully existing in another State or country," whence the parties came to the Territory. The conclusion, therefore, is inevitable that, according to the doctrine of Judge Black, and all who agree with him, slavery, polygamy, amalgamation of the black and white races by marriage, every "right of property, private relation, condition, or status, lawfully existing in another State or country," all stand on the same footing, and are governed by the same rules, and may be introduced into the Territories of the United States in defiance of all territorial authority, and maintained there under the laws of the State or country whence the parties came, respectively, "until the people of the Territories shall get a constitutional convention or the machinery of a State government into their hands."
Having ascertained how he establishes all of these institutions, rights, and private relations in the Territories, in opposition to the wishes of the people, and beyond the power of the territorial government to restrain, regulate, or control the same, let us next inquire how and by what means he proposes to protect the rights which he asserts to exist? It is worse than mockery to congratulate a man upon the possession of a right while you deny him the remedies which are essential to its enjoyment, A right without a remedy is a burden — a useless, worthless thing. Judge Black denies, in his rejoinder, that he ever said that the people of the Territories had a right to their property without a remedy. Hear him:
"I never said that an immigrant to a Territory had a right to his property without a remedy; bill I admit that be must look for his remedy to the law of his new domicil."
A technical denial, with a mental reservation, for the purpose of making the public believe, without exactly saying it, what is not true, is unworthy of the
25Attorney General of the United States. He probably never did say, in those precise words, "that an immigrant to a Territory had a right to his property without a remedy," but he has promulgated a doctrine, and labored hard to sustain it, which, if true, leads inevitably to that precise result. Is it not so? It will be recollected that in his "Appendix" he indignantly repudiates the "absurd inference," which the public had drawn from his pamphlet, that the courts could or should afford any protection to slave property in the Territories by the application of those judicial remedies which lawfully existed in the States whence the master removed. Repudiating the doctrine that Congress shall or can intervene for the protection of slaves or any other property in the Territories, denying that the Territories have any power to legislate upon the subject for the reason that "they have no attribute of sovereignty about them," and rejecting the "absurd inference" that any judicial remedies lawfully existing in another State or country can be lawfully or properly employed for the protection of property in the Territories, what possible REMEDY is there, what remedy can there be, for the violation of this right of property? If there be a remedy it is to be presumed that the Attorney General of the United States, as the highest law officer in the government, is able to tell us what it is, where it is to be found, and how it is to be applied. Having employed two months of his valuable time, to the entire exclusion of less important although official duties, in the preparation of three pamphlets for the purpose of establishing this important "right," and having, unluckily, used such arguments and enforced such rules of law in support of the right as preclude the possibility of there being any lawful remedy for the violation of such right, I took the liberty, in my "reply," of calling the attention of the Attorney General to the fact that, if his doctrine was sound, he had established "A RIGHT WITHOUT A REMEDY." In his rejoinder he denies that HE ever said so! Is this such an answer as the public have a right to expect from the Attorney General to an objection urged in good faith, and which, if well taken, is fatal to his entire position? Can any doctrine be sound which establishes a legal right, and, at the same time, precludes the possibility of a legal remedy for its violation? He says further:
"If it shall ever come to that, Mr. Douglas may rest assured that a remedy will be found. No government can possibly exist which will allow the right of property to go unprotected; much less can it suffer such a right to be exposed to unfriendly legislation."
I am asked to have faith in the word of the Attorney General "that a remedy will be found!" If he is unable to tell where its remedy is, upon whom shall we rely to find it? If the Attorney General of the United States does not know of any lawful remedy, what authority has he for the assurance that one will be found? If he does not know, is he not bound, as a patriotic citizen and a high public functionary, to tell, when he assures us that "no government can possibly exist which will allow the right of property to go unprotected?" So it seems that the very existence of the government depends upon the discovery of a remedy for the protection of property in the Territories, which, we are told, Congress cannot furnish, which the territorial legislature cannot enact, which the "axiomatic principle of public law" does not supply, and which the judicial tribunals cannot supply in pursuance of any known law, but which, thanks to the Attorney General for the consoling assurance, will certainly be found! It is fairly possible that the polygamist with his multiplicity of wives, and the amalgamationist with his hybrid family, and all others who hold similar "private relations," would be able to enjoy and maintain their domestic rights in the Territories without any "judicial remedies," inasmuch as their rights are all founded on a voluntary arrangement, which was entered into by the free consent of all the parties, and is supposed to be cemented and consecrated by mutual affection. But it is entirely different with the right of a master to his slave, which is founded upon an involuntary arrangement, and can only be enforced by municipal law subjecting the will of the slave to the authority of the roaster, and compelling implicit obedience to his lawful commands. For this reason it has been held by the Supreme Court of the United States that "the state of slavery is a mere municipal regulation, founded upon and limited to the range of territorial laws." How, then, can slave property be protected in the Territories? According to the doctrine of Judge Black it is not possible to furnish it any legal protection, either by the action of Congress, or by territorial legislation, or by the application of "judicial remedies" from other States, or in any other mode known to any law which the Attorney General has yet been able to discover, notwithstanding his assurance that a remedy will be found.
By the doctrine of the Supreme Court, however, as I understand it, the laws of other States and countries may prevail and be enforced in the Territories by the consent of the territorial government, express or implied; and the territorial legislature may pass all laws and provide all remedies necessary to the fall enjoyment and protection of slave property, and every other "right of property, private relation, condition, or status," as thoroughly and completely as any State legislature. In the organic act of each of our Territories, Congress has recognized the right of the legislature to exercise "legislative power" over "all rightful subjects of legislation," as fully and completely as the legislature of any State can exercise the same powers, and subject to no other limitations and restrictions than that imposed on all the States, to wit: that their legislation must be "consistent with the Constitution of the United States."
But if it be true, as contended by Judge Black, that the Territories cannot legislate upon the subject of slavery, or any other right of property, private relation, condition, or status, lawfully existing in another State or country, it necessarily results that the territorial legislature cannot adopt the laws of other States or countries for the protection of such rights and institutions, and consequently that the courts cannot presume the tacit adoption of such laws by the territorial government in the absence of any power to adopt them. Here, again, we see that the doctrine of Judge Black, if it does not conclusively establish a right without the possibility of a remedy, is certainly equivalent to the Wilmot Proviso in its practical results, so far as the institution of slavery is concerned. I demonstrated this proposition to him in my "reply" so conclusively that he did not venture to deny it, much less attempt to answer the argument in his "rejoinder."
I do not deem it necessary to notice in detail the many strange and unaccountable misrepresentations in his "rejoinder" of the matters of fact and law set forth in my "reply," to which he was professing to respond. One or two instances will suffice as specimens of the manner in which the Attorney General is in the habit of disposing of authorities which stand as insuperable obstacles in the path of his argument. In my "reply" I quoted the following paragraph from Judge Story's Conflict of Laws to show that he, at least, thought the law was precisely the reverse of what Judge Black supposed it to be:
"There is a uniformity of opinion among foreign jurists and foreign tribunals in giving no effect to the state of slavery of a party, whatever it may have been in the country of his birth, or that in which he had been previously domiciled, unless it is also recognized by the laws of the country of his actual domicile, and where he is found, and it is sought to be enforced. [After citing various authorities, Judge Story proceeds:] In Scotland the like doctrine has been solemnly adjudged. The tribunals of France have adopted the same rule, even to relation to slaves coming from and belonging to their own colonies. This is also the undisputed law of England."
Now for Judge Black's reply to these passages from Judge Story:
"These passages (will the reader believe it?) merely show that a slave becomes free when taken to a country where slavery is NOT TOLERATED by law!"
Substituting the words "not tolerated by law" for the words "unless it is also recognised by law." Judge Black reverses Judge Story's meaning, and makes that learned jurist declare the law to be precisely the reverse of what Judge Story stated it to be! "Will the reader believe it?" Not content with changing the language and reversing the meaning, and citing it, in its altered form as evidence that I had misapplied the quotation, the Attorney General has the audacity to exclaim in parenthesis, for the purpose of giving greater emphasis to his allegation, "will the reader believe it?" Judge Black cannot avoid the responsibility which justly attaches to such conduct by the pretence that slavery was prohibited by law in Scotland, England, and France, for the reason that the reports of the cases show that the laws of those countries were silent upon the subject, and that the decisions were made upon the distinct ground that there was no law recognizing slavery, and not upon the ground that it was prohibited by law. Nor can Judge Black's mode of treating the quotation which I made from the opinion of the Supreme Court of the United States in the case of Prigg vs. the Commonwealth of Pennsylvania, upon the direct and precise point in issue, be considered scarcely less reprehensible in the eyes of all honorable men. What he says, and all he says, in regard to that decision is as follows:
"The quotation from the opinion of the Supreme Court, in Priggs vs. Pennsylvania, is made with the same rashness and with no nearer approach to the point. The public will doubtless
be somewhat surprised by Judge Douglas's unique mode of dealing with books. For myself I am inexpressibly amazed at it. I have no right to suppose that he intended to insult the intelligence of his readers, or to impose upon their ignorance, by making a parade of learning and research, which he did not possess. But how shall we account for quotations like those? I am obliged to leave the riddle unread."
My "mode of dealing with books," by quoting them truthfully, without changing the language or perverting the meaning, is "unique" in the estimation of Judge Black. He thinks "the public will doubtless be somewhat surprised," and for himself says "I am inexpressibly amazed at it!"
This confession will doubtless explain the reasons of his mode of dealing with books and quotations. I sincerely wish that I could conscientiously say of him what he has said of me in the following sentence:
"I have no right to suppose that he intended to insult the intelligence of his readers, or to impose upon their ignorance, by making a parade of learning and research, which he did not possess." Unluckily for himself, he has not left "the riddle unread."
I will now devote a few words to a more pleasing and agreeable duty, by presenting to the public some of the beneficial results of this discussion. The Attorney General has been forced, by the exigencies of the controversy, step by step and with extreme reluctance, to make several important confessions, which necessarily involve an abandonment, on the part of his clients, of various pernicious heresies with which the country has been threatened for the last two years.
From the day that Mr. Buchanan sent to Congress his Lecompton message until the day when my article was published in Harpers' Magazine for September last, every Democrat has been branded as a political heretic, proscribed, excommunicated, and outlawed, who would not acknowledge that slavery exists in the Territories by virtue of the Constitution of the United States. In that article, without assailing any one or impugning any man's motives, I demonstrated beyond the possibility of cavil or dispute by any fairminded man, that if the proposition were true, as contended by Mr. Buchanan, that slavery exists in the Territories by virtue of the Constitution, the conclusion is inevitable and irresistable, that it is the imperative duty of Congress to pass all laws necessary for its protection; that there is and can be no exception to the rule that a right guaranteed by the Constitution must be protected by law in all cases where legislation is essential to its enjoyment; that all who conscientiously believe that slavery exists in the Territories by virtue of the Constitution, are bound by their consciences and their oaths of fidelity to the Constitution to support a congressional slave code for the Territories; and that no considerations of political expediency can relieve an honest man, who so believes, from the faithful and prompt performance of this imperative duty.
I also demonstrated, in the same paper, that the Constitution, being uniform throughout the United States, is the same in the States as in the Territories, is the same in Pennsylvania as in Kansas; and, consequently, if slavery exists in Kansas by virtue of the Constitution of the United States, it must of necessity exist in Pennsylvania by virtue of the same instrument; and if it be the duty of the federal government to force the people of the Territories to sustain the institution of slavery whether they want it or not, merely because it exists there by virtue of the Constitution, it becomes the duty of the federal government to do the same thing in all the States for the same reason.
This exposition of the question produced consternation and dismay in the camp of my assailants. Their hope was to secure the confidence and favor of the South by conceding their right to plant slavery in the Territories in opposition to the wishes of the people and in defiance of the territorial authorities; and, at the same time, satisfy the North by withholding all legislative protection and judicial remedies, without which the right becomes a naked, useless, worthless thing. My exposure opened their eyes to the dangers of their perilous position, and made it obvious, even to their comprehension, that they could no longer successfully maintain the ground they then occupied. Afraid to advance and pursue their doctrines to their logical consequences; and ashamed to retreat and return to the impregnable position of popular sovereignty, which they had so recently abandoned, they began to look about for some new expedient to relieve themselves from the awkward dilemma into which they had
28been driven by one short article in Harpers' Magazine. Just at this critical moment, however, a suggestion was made which it was supposed would relieve them from the necessity of adopting either alternative, and, at the same time, produce the same results which they had vainly anticipated from their former plan. It was suggested that a very promising young lawyer in Georgia, a younger brother of the Secretary of the Treasury, had employed his leisure time, during the intervals between his cases in court, in writing a book on slavery, in which he had exploded the doctrine that the state of slavery was a mere municipal regulation, founded upon and limited to the range of territorial laws," as erroneously decided by the Supreme Court of the United States, and by the highest judicial tribunals in most of the States of the Union, and in Great Britain and upon the continent; and in lieu of this old-fashioned doctrine, had demonstrated that the axiomatic principles of public law would enable the owner of a slave to remove from one country to another and carry with him the law of his former domicil and, under its sanction, hold his slaves in his new domicil without the consent and in defiance of the authority of the country to which he had removed with his slaves. "What a happy conception," as a substitute for the dreaded doctrine of a congressional slave code on the one hand, and on the other the deserted doctrine that "the people of a Territory, like those of a State, shall decide for themselves whether slavery shall or shall not exist within their limits."
Of course, the new theory was instantly adopted and a copy of "Cobb on Slavery" immediately procured, and the duty assigned to Judge Black, as the highest law officer of the government, to prepare an essay illustrative of the beauties of the new system, with authority to deny in the boldest terms that anybody "on this side of China" ever thought or said that the Constitution of the United States established slavery in the Territories or anywhere else.
Hence we find on the second page of Judge Black's pamphlet these emphatic words:
"THE CONSTITUTION CERTAINLY DOES NOT ESTABLISH SLAVERY IN THE TERRITORIES OR ANYWHERE ELSE. NOBODY IN THIS COUNTRY EVER THOUGHT OR SAID SO."
This confession is ample reward for all the labor that the article in Harper's Magazine cost me, protesting, however, that I am acquainted with no rule of Christian morality which justifies gentlemen in saving that "nobody in this country ever thought or said so," in the face of Mr. Buchanan's Silliman letter and Lecompton message. This confession is presumed to have the sanction of the President and his cabinet, and therefore may be justly regarded as an official and authoritative abandonment of the pernicious heresy with which the country has been irritated for the last two years, THAT SLAVERY EXISTS IN THE TERRITORIES BY VIRTUE OF THE CONSTITUTION OF THE UNITED STATES. It is true that, for the purpose of covering their retreat and concealing their discrepancies, they have resorted to an expedient no less absurd, but entirely harmless, because in direct conflict with the well established principles of public law, as expounded by all the judicial tribunals in Christendom. It is however, but an act of simple justice to Mr. Thomas R. R. Cobb, whose book bears marks of great ability and research, (although in direct conflict, on some points, with the most eminent jurists and tribunals in this country and Europe,) to say that his book does not justify the "absurd inferences" drawn from it by Judge Black.
Another political heresy, which is in substance, although not in terms, abandoned in Judge Black's rejoinder, is —
"THAT THE TERRITORIES HAVE NO ATTRIBUTE OF SOVEREIGNTY ABOUT THEM."
It will be recollected that in my Harper article I drew the parallel between our Territories and the American colonies, and showed that each possessed the exclusive power of legislation in respect to their internal polity; that, according to our American theory, in contradistinction to the European theory, this right of self-government was not derived from the monarch or government, but was inherent in the people; and that under our American system "every distinct political community loyal to the Constitution and the Union is entitled to all the rights, privileges, and immunities of self-government in respect to their internal polity, subject only to the Constitution of the United States."
In reply, Judge Black argued that this claim involved the possession of sovereignty by the people of the Territories; that "they have no attribute of sovereignty about them;" that "they are public corporations established by
29Congress to manage the local affairs of the inhabitants, like the government of a city established by a State Legislature;" that "there is probably no city in the United States whose powers are not larger than those of a Federal Territory;" and, in fact, adopting the Tory doctrine of the revolution, that all political power is derived from the crown or government, and not inherent in the people.
In my reply I showed that the people of the Territories do pass laws for the protection of life, liberty and property, and, in pursuance of those laws, do deprive the citizen of life, liberty, and property whenever the same become forfeited by crime; that they exercise the sovereign power of taxation over all private property within their limits, and divest the title for non-payment of taxes; that they exercise the sovereign power of creating corporations, municipal, public and private; that they possess "legislative power" over "all rightful subjects of legislation consistent with the Constitution and the organic act;" and I quoted the language of Chief Justice Marshall, in delivering the unanimous opinion of the Supreme Court, that "all legislative powers appertain to sovereignty.
Now let us see with what bad grace and worse manner, and yet how completely the Attorney General backs down from his main position, that the Territories "have no attribute of sovereignty about them."
"Every half-grown boy in the country who has given the usual amount of study to the English tongue, or who has occasionally looked into a dictionary, knows that the sovereignty of a government consists in its incontrollable right to exercise the highest power. But Mr. Douglas tries to clothe the Territories with the ‘attributes of sovereignty,’ not by proving the supremacy of their jurisdiction in any matter or thing whatsoever, but merely by showing that they may be, and some of them have been, authorized to legislate within certain limits, to exercise the right of eminent domain, to lay and collect taxes for territorial purposes, to deprive a citizen of life, liberty, or property, as a punishment for crime, and to create corporations. All this is true enough, but it does by no means follow that the provisional government of a Territory is, therefore, a sovereign in any sense of the word."
So he surrenders at last. This discussion furnishes a signal example of what perseverance can accomplish. It has taken a long time to drive the Attorney General into the admission that the people of a Territory are clothed with the LAW-MAKING POWER; with the right "to legislate within certain limits;" (that is to say, upon "all rightful subjects of legislation consistent with the Constitution;") with "the right of eminent domain, to lay and collect taxes for territorial purposes, to deprive a citizen of life, liberty, and property as a punishment for crime, and to create corporations." I am not quite sure that "every half-grown boy in the country who has given the usual amount of study to the English tongue, or has occasionally looked into a dictionary," does not know that these powers are all "attributes of sovereignty;" but I am very confident that no respectable court, jurist, or lawyer, "on this side of China," (Judge Black alone excepted,) ever exposed their ignorance by questioning it, much less had the audacity to deny it. Since the fact is admitted that the Territories do possess and may rightfully exercise those "legislative powers" which are recognized throughout the civilized world as the very highest attributes of sovereignty — the power over life, liberty, and property — I shall not waste time in disputing with the Attorney General about the name by which he chooses to call them. It is sufficient for my purpose that I have at last forced him into the admission that the law-making power over all rightful subjects of legislation appertaining to life, liberty, and property, resides in, and may be rightfully exercised by the Territories, subject only to the limitations of the Constitution.
This brings to my notice another important confession in Judge Black's rejoinder, intimately connected with the preceding, which is: THAT IT IS AN INSULT TO THE AMERICAN PEOPLE TO SUPPOSE THAT THE PEOPLE OF ANY ORGANIZED TERRITORY WOULD ABUSE THE RIGHT OF SELF-GOVERNMENT IF IT WERE CONCEDED TO THEM.
This last confession, taken in connexion with the previous admission of the power removes the last vistige of any substantial objection to the doctrine of popular sovereignty in the Territories. Unable to make any plausible argument against it in theory and upon principle, as explained in Harper's Magazine, Judge Black expended all the powers and energies of his intellect in his first pamphlet to render the doctrine odious and detestable upon the presumption of its probable practical results. He argued that it might result in legislative robbery;" that "they may take every kind of property in mere caprice, or for any purpose of lucre or malice, without process of law, and without providing for compensation; that they "may order the miners to give up every
30ounce of gold that has been dug at Pike's Peak;" that, they may "license a band of marauders to despoil the emigrants crossing the Territory."
These were the arguments employed by the Attorney General, in the beginning of this controversy, to render the doctrine of popular sovereignty odious and detestable in the eyes of all honest men, and to prepare the mind's of the people for the favorable reception of his new doctrine, that property in the Territories must be protected under the laws of the State whence the owner removed. Very soon, however, the lawyers began to amuse themselves and the public by exposing the folly and absurdity of the pretence that the territorial courts could apply the judicial remedies prescribed by the legislature of Kentucky or of any other State. Becoming ashamed of his position Judge Black wrote an appendix to his pamphlet, in which he declared that while the "title which the owner acquired in the State" from whence he removed must be restricted in the Territory, "THE ABSURD INFERENCE which some persons have drawn from it is not true, that the master also takes with him the JUDICIAL REMEDIES which were furnished him at the place where his title was acquired," and that "the respective rights and obligations of the parties must be protected and enforced by the law prevailing at the place where they are supposed to be violated."
By this time it was my turn to reply, when I showed that his doctrine, if true, established a RIGHT WITHOUT A REMEDY, and if the people of the Territories could not be trusted in the management of their own affairs and in the protection of life, liberty, and property, they could not be relied upon to provide the remedies! This reply was made in good faith, and believed to be pertinent to the issue and fatal to his position. Instead of receiving it in good temper, and obviating the force of it by fair argument, if it were possible for him to do so, he flies into a rage and denies that he "said that an immigrant to a Territory had a right to his property without a remedy," and that "it is an insult to the American people to suppose that any community can be organised within the limits of our Union who will tolerate such a state of things!" Listen to his patriotic indignation at the bare suggestion that the people of the Territories cannot be trusted to guard and protect the rights of property and provide the remedies:
"I never said, that an immigrant to a Territory had a right to his property without a remedy; but I admit that he must look for his remedy to the law of his new domicil. It is true that he takes his life, his limbs, his reputation, and his property, and with them he takes nothing but his naked right to keep them and enjoy them. He leaves the judicial remedies of his previous domicil behind him. It is also true, that in a Territory just beginning to be settled, he may need remedies for the vindication of his rights above all things else. In his new home there may be bands of base marauders, without conscience or the fear of God before their eves, who are ready to rob and murder, and spare nothing that man or woman holds dear. In such a time it is quite possible to imagine an abolition legislature whose members owe their seats to Sharp's rifles and the money of the Emigration Aid Society. Very possibly a legislature so chosen might employ itself in passing laws unfriendly to the rights of honest men and friendly to the business of the robber and the murderer. I concede this, and Mr. Douglas is entitled to all the comfort it affords him. But it is an insult to the American people to suppose, that any community can be organized within the limits of our Union, who will tolerate such a state of things."
Why did Judge Black insult the American people by supposing and assuming that they would do these things if left free to regulate their own internal polity and domestic affairs in their own way? It was deemed a necessary expedient in order to render popular sovereignty and its advocates odious and detestable. Why then did he in the course of the same discussion turn round and say that it was an insult to the American people to suppose that the people of the Territories would do these things when allowed to regulate their own affairs in their own way? This too was in turn deemed a necessary expedient in order to avoid the horn of the dilemma into which he had been fairly driven, and escape the odium of an attempt to deceive the southern people, of which he had been fairly convicted of advocating a "right without a remedy."
To what desperate shifts will men resort or be driven when they deliberately abandon principle FOR expediency? No more striking or humiliating illustration of this truth was ever given than this controversy presents. Each change of ground, every shifting of position has been done as an expedient to avoid what at the time was deemed a worse alternative. The ground on which Mr. Buchanan was elected, that "the people of a Territory, like those of a State, shall decide for themselves whether slavery shall or shall not exist within their limits," was changed, and in lieu of it the position assumed that "slavery exists in the Territories by virtue of the Constitution," as an expedient to obtain the
31support of certain southern ultras and fire-eaters who had always opposed popular sovereignty on the supposition that without such support Mr. Buchanan administration would be in a minority in the two Houses of Congress. The confession that "the Constitution certainly does not establish slavery in the Territories nor anywhere else," was made, and the position that slavery may be protected in the Territories under the laws of other States assumed, as an expedient to avoid the necessity of supporting a congressional slave code. The confession that the people of the Territories may exercise legislative powers over all rightful subjects of legislation pertaining to life, liberty, and property, was made as an expedient to avoid the odium of advocating a right without a remedy, by showing that the Territorial legislatures might lawfully and rightfully pass all laws and prescribe all judicial remedies necessary for the protection of property of every description, slavery included. The declaration that it is an insult to the American people to suppose that the people of the Territories, when left free to manage their own affairs in their own way, would be guilty of "legislative robbery," would confiscate private property, seize it in mere spite, &c., was deemed a necessary expedient for the purpose of proving that the people might safely be trusted to furnish the protection and provide the remedies without which slaves could not be held and slave property protected in the Territories under the laws of other States.
I shall not reopen the discussion of the Dred Scott decision, but rest that part of the ease upon a few extracts from a pamphlet recently published by the Hon. Reverdy Johnson. It will be remembered that Mr. Johnson was the leading counsel in the argument (on what is sometimes called the southern side) of the Dred Scott case, and that his argument became the basis upon which the opinion of the court rests. It may be presumed, therefore, that he has some knowledge of the points argued and decided in that case. Although Mr. Johnson's pamphlet was published, circulated, and for sale in this city some days before the publication of Judge Black's rejoinder, he has not ventured to take any other notice of it than a scurrilous attack in his organ, where he is known to be in the habit of praising himself and his own productions, and assailing and belittling his adversaries.
With these extracts from Mr. Johnson's unanswerable argument I shall close all I have to say for the present in relation to Judge Black:
"It has, however, been thought, and this too by gentlemen of unquestionable ability, that the Supreme Court, in the case so often referred to, (the Dred Scott case,) has decided that such power does not reside in a territorial government. This, it is submitted, is a misconception of the decision. The single question before the court in this connexion was, whether Congress possesses the power to prohibit the introduction of slave property into a Territory? In ruling it adversely the court does not say or intimate that such property in a Territory has other safeguards, or that the owner is entitled to any further protection in its enjoyment, than exists in regard to other kinds of property. A sentence or two from the opinion of the Chief Justice will, it is believed, make this plain." * * * * * * *
"This being obviously the doctrine of the court, it necessarily follows that whatever a constitutional government can do in regard to any other kind of property, it can do in regard to this. If any other kind may be excluded, this may be excluded; if any other hind may be more or less or not at all protected by legislation, the same is true as to this. If any other, after its legal introduction, can be, upon public grounds, excluded or abolished, it is also the case as to this. It is but sameness, indentity of title, and protection, which the court maintains, not inferior or paramount — that all stand on the same footing, liable alike to the same restrictions and limitations, and entitled to the same guarantees. What is there in this species of property to exempt it from territorial legislative power? What is there to make it the peculiar and single duty of such a power to legislate for its admission or protection? If it be but property, and as such only embraced by constitutional guarantees, it must share the condition of all other property, and, therefore, "be subject to the legislative power. If this is not true, the territorial state would be almost without laws — be one of nature. The peace arid prosperity of the people depend upon laws defining and regulating property. Without such a power property itself would be in a great degree out of the pale of protection. But if the power exists, it must depend upon those who possess it; how they will, in any particular case, exert it, or whether they will exert it at all. These most rest with their intelligence and sense of duty; Congress has no power but to recognize the territorial government, a power which is theirs for the same reason that proves the power in the first instance to create it. Nor can it be property said that the authority thus contended for exists upon the assumption that sovereignty ‘resides with such a people.’ If by sovereignty is here meant an absolute and paramount power over all other power, it certainly is not possessed. But if it is used in a restricted sense as involving only the power to do the things supposed, when legislative power is granted to them in relation to their own internal concerns, subject to the prohibition to be found m the Constitution and which, in the language of the court in another passage of the opinion, in some instances ‘it would be more advisable to commit’ to them, as being the most ‘competent to determine what was best for their own interests,’ then certainly such sovereignty is theirs. And this, and this only, is the sovereignty contended for by Judge Douglas in his article in Harper."* * * * * *
"As has been seen, this doctrine is not only not inconsistent with the opinion of the Supreme Court, but maintained by its principles."
Turning from Judge Black to Dr. Gwin, it is but respectful to say a few words upon his letter, which illuminated the columns of the central organ of my assailants the day previous to Judge Black's rejoinder. The identity of language, thought, and style, which pervades the two productions, while rejecting the idea that they could have been written with the same pen, furnishes conclusive evidence that great men will think alike when in the same pen. For example — Dr. Gwin says:
"The difference BETWEEN MR. DOUGLAS AND THE DEMOCRATIC PARTY, sustained by this decision of the Supreme Court of the United States, is this, &c., &c.
Judge Black says:
"The whole dispute (as far as it is a doctrinal dispute) BETWEEN MR. DOUGLAS AND THE DEMOCRATIC PARTY lies substantially in these two propositions" &c., &c.
This coincidence, without wearying the reader with other examples, will suffice to show the unity of purpose and harmony of design with which my assailants pursue me. To separate "Mr. Douglas" from the "Democratic party" seems to be the patriotic end to which they all aim. They may as well make up their minds to believe, if they have not already been convinced of the fact by the bitter experience of the last two years, that the thing cannot be done. I gave them notice, at the initial point of this crusade, that no man or set of men on earth, save one, could separate me from the Democratic party; and as I was that one, and the only one who had the power, I did not intend to do it myself nor permit it to be done by others?
Note by Judge Douglas.
WASHINGTON, November 16, 1859.
On Monday, November 7, I devoted the greater portion of my time, as I had done for the two or three proceeding days, to preparing a rejoinder to that of Judge Black, then just published. During that time I had been suffering intensely with inflammatory rheumatism, which had confined me to my couch and rendered me incapable of moving. Suddenly, however, my disease changed into a regular attack of bilious fever, from which moment I have not been able to write a line or to read or revise a word I had previously written. Being now satisfied, after the lapse of ten days, that I will not be able within a reasonable period to complete my rejoinder, I have determined to authorize my friend, Mr. Sheridan, to publish the foregoing unfinished pages, without revision, alteration, or the omission of a word.
I had particularly desired to refer to the record in the case of Chase's amendment for the purpose of showing conclusively that, if Dr. Gwin had published the entire record, instead of omitting half of it, he would have conveyed to the public an impression directly the reverse of that he attempted to produce by publishing one-half and suppressing the other. In regard to the amendment of Mr. Trumbull, cited also by Dr. Gwin, the same proposition is true, and would have been proven by the record. I am too feeble, however, to add more. Here let the controversy close for the present, and perhaps forever.