The national era. [volume] (Washington [D.C.]) 1847-1860, 1856-05-01

the opinions of the Judiciary on which the dec
larations of the President and of Congress arr
| based. For if these laws were in fact unconsti
tutonal, it would be strange if none of the courts
of the country, State National, in all the com
| plicated adjudication that has arisen since 1889
have had occasion to pronounce them void. The
| President pronounces these laws unconstitutional
| Senators say they were unconstitutional. Congress
| repealed the Missouri Compromise because it wa;
| unconstitutional; and all who opposed this repeal
| are denounced as enemies to the Constitution
And yet the courts the only constitutional tribunals
| on earth that have the right to adjudicate such
| questions have never, believe, even intimated
| such an opinion
If am in error in this, let old and experienced
| Senators here whose knowledge must be perfect
| on this subject, correct me. Does no one answer
| hear no reply. Then | infer there no such
decisions well authenticated, of any court of the
country, State or National. Then, sir, what be-
comes of these charges of treason against the
Constitution and the Union" SO literally fulmi
mated against the opponents of Slavery in Kansas
| Before am condemned as an enemy of my coun'
try, as political traitor to her fundamental law
desire to know that some court of competent
Jurisdiction has decided that my opinions are in
conflict with the Constitution.
l will not detain the Senate with the presenta-
ton of judicial opinions sustaining the constitu-
tionality of the uniform legislation of Congress
| which have cited The honorable Senator from
Illinois Mr.. TRUMBULL] discussed this point to
some extent few days since. 1t is not necessary
for my argument; for the entire absence of any
judicial opinion, State National, in conflict with
the constitutonaly of these laws in all the adju-
dication that has arisen during nearly seventy
years, amounts to negative pregnant, as potent
in its convincing efficacy as the most elaborate
adjudication.
In the next place, argue the existence Of power
in the Congress of the United States to legislate
on the subject of Slavery in the Territories, from
the relation which they sustain to the Govern
ment
In each of the States of the Union, the power
of the General Government is restricted. Here
the sovereignty is divided between the State and
the United States. The powers of the United
States are all derived from the State; but the
powers of Congress in the Territories are not thus
derived from local Government-the order is
reversed and the Territorial Government derives
all its powers from the Government of the United
States.
The Government of the United States acquired
all her rights in the Northwest Territory, not by
grant of all the old thirteen States through the
Constitution, but by deed from Virginia; in the
Territory of Tennessee, from North Carolina
in the Southwest Territory, including Mississippi
and Alabama, from Georgia and Great Britain
in the Floridas from Spain; in the Louisiana
Territory, from France. The United States wa:
the successor of each of these; and it is a we'll
settled principle of national law, that whatever
the original sovereign of each of these might
have done within its limits, while part of his
dominions, might be done by his successor.
Prior to the year 1903, suppose, full, COM
plete, and exclusive sovereignty in the Louisiana
Territory (ncluding Kansas and Nebraska) was
vested in France. The Government of the United
States, by direct purchase, succeeded to all the
1lxv nv
the grantOr; and hence became the actual, full
complete, and exclusive sovereign Of the Terri
tory. suppose no one of the old thirteen States
ever had any right, title, claim or interest, in OF
to any part of the Louisiana Territory. No one
of them had ever exercised any jurisdiction over
it. 1t was part of the dominions of France
| she was its absolute sovereign. Hence the Gov
eminent of the United States must have sue
ceeded to the same unrestricted rights, and may
hold, exercise, and enjoy them, until she chooses
to confer them another sovereignty IfFrance
previous to the cession, could have excluded
Slavery from Kansas and Nebraska, this Govern
ment may do so now, subject only to the pro-
vision in the Constitution which says that Congress
may make all needful rules and regulations re-
specting the Territories. The necessity of every
rule and regulation is fit subject for legislative
discretion, for the exercise of which Congress is
| responsible to the people of the whole country
and not to the people of any individual State.
| i will not here stop to argue the question OF
the constitutional right of the United States to
acquire foreign territory Mr.. Jefferson and others
have doubted the existence of this power under
the Constitution. But with the power to acquire
must follow the right 10 govern.
| argue the power of Congress to exclude
Slavery from the common Territories, from the
undisputed right to pass the Kansas-N Nebraska
act, comforting the people " the right to regu-
late their own domestic institutions in their own
way"
If Congress had no power under the Consttu-
ton to regulate the domestic institutions of Kan
sas-to regulate the rights of person and OF
property-it could not confer this right the
people of the Territory. The grantor cannot
convey rights and prerogatives which he never
possessed The grantee can never take more than
the grantor himself held. 1t is absurd to suppose
Congress capable of transferring to the people OF
| Kansas rights, and privileges and prerogatives
| which Congress never possessed. The grant
is worthless, if the original holder had no title
| Hence the advocates of "squatter sovereignty "
driven to admit that all the rights and privi-
oges and power, of the Territorial Legislature OF
Kansas, previously vested in the Govern
ment of the United States. But if this Govern
originally possessed the right to legisate for
this Territory and has since ntrusted its exercise
to local Legislature, she is still responsible The
principal is responsible for the acts of the agent
within the limits of his instructions. What a
man does by an agent, he does by himself. Hence
what this Government does by another, she does
by herself. What she does by the spurious y
Legislature of Kansas, is her opn act. The real
sovereign can never avoid the responsibility OF
governing, by interposing subordinate. Hence,
these Kansas laws, enacted by her Rump y
Legislature, establishing Slavery, appointing Off
GERS for period of from two to five years, abridg-
ing " freedom Of speech and of the press" and
making it penal offence to deny the validity OF
such laws, are the lars Of Congress BY recog-
nising them and suffering the President to enforce
them, you make them your own.
This conclusion can only be avoided by sup
posing Congress to have transferred this sover-
eighty to the people of the Territory, without
reservation-,cithoa the right of repie,c and repeal
But if this right to make all local laws regulating
the relations of husband and wife, parent and
| child, guardian and ward, master and slave as
well as the rights of person and property, was
transferred absolutely, and irrevocably vested in
the people of the Territories of Kansas and Ne
braska by the law of 1854, Congress IN that act
created tTo States. Something less then a SOW
ereign might interpret and apply lar, something
less than a sovereign might enforce its provisions
! but nothing less than "the supreme power in a
State can make a law. If, then, the people OF
Kansas have power, under the Constitution OF
the United States, to legislate all fit subjects
of legislation, as perfectly as Virginia, or Iowa
or New York, independent of Congress- SHE is
NOW STATE and she became State the mo-
ment this supreme power to make all needful
laws conferred.
1t may be said, however, that these organic
laws do not confer power on the Territorial Legs-
latures that they merely declaratory of great
principles of government; that the right to
govern is inherent in the people that it is no,
the subject of transfer that it is an inalienable