The national era. [volume] (Washington [D.C.]) 1847-1860, 1857-01-29
THE NATIONAL ERA: WASHINGTON, D. c. JANUARY 49, 1857

CnSdSOu III tue iST0lgH slave Lrafnc. The Inn
ltation of the ninth section of the first article
of the Constitution had not expired, and Con
gress was thereby restrained from prohibiting
the importation of slaves, and the retention 81
them as slaves within the original States but
Congress did, nevertheless, claim and exercise
the power by these two enactments to exclude
this foreign traffic in slaves from the Terrific.
ries of Mississippi and Orleans; and from the
latter, the domestic slave trade also.
That the power thus exercised by Congress
over the Territories is constitutional and unre.
strained, either by popular sovereignty or State
sovereignty, has been solemnly adiudged by
the Supreme Court; yet we are asked, with
mock gravity, a" Will you abide by the decision
Of the Supreme Court, if it shall hereafter de-
eide that Congress has not the power thus to
legislator" To those who put this question, l
reply, why did you not abide the decision of
that tribunal, made IN the purer and better
days of the Republic, when Marshall's splendid
and brilliant intellect full orbed, illumed its de-
eisions?
The great question before the court, in the
ease to which refer, was the power of Congress
to legslate over the Territories, and the extent
Of that power. This will become manifest by
the statement of the case, as set forth in the
opinion of the court.
The plaintiffs brought their action to recover
certain goods which had been sold pursuant to
decree of Territorial court of Florida The
competency of this Territorial court to make
the decree was denied. This court had been
established pursuant to the act of Congress of
1923, which authorized its erection, and which
also conferred and defined its jurisdiction. The
1 cdliduy of this Congressional act was denied,
and upon its validity the whole case depended.
The court, in the opinion pronounced by Mar
shall, c. j., says:
"The course which the argument has taken
will require that, in deciding this question,
the court shall take into view the relation in
which Florida sta hds to the United States"
After reciting the treaty of purchase, the
court proceeds to say that the people of the
Florida Territory " do not participate in politi-
cal power; they do not share in the Govern
ment till Florida shall become State. In
the mean time, Florida continues to be a
Territory of the United States, gocerned by
virtue of that clause in the Constitution which
empowers Congress to make all needful rules
and regulations respecting the Territory or
other property belonging to the United States. "
The Court adds, that :" the right to govern may
be the inevitable consequence of the right to
acquire territory. Whichever may be the
source whence the power is derived, the posses,
SION Of 1t as unQuestioned."
The Court finally decides the very point
courts in these words:
"They are legislative courts, created in vir-
tue Of the general right of sovereignty which
exists in the Government, or in virtue of
that clause which enables Congress to make
all needfu rules and regulations respecting
the territory belonging to the United States"
ain legslating for them, the Territories,
Congress exercises the combined powers of the
General and of State Government"
The competency of the Territorial court was
therefore sustained, and the rule made pur.
suant to its decree held valid. 1t is little
amusing to hear partisans say that this is mere
dictum so far rs it affirms the power of Con-
gress over the Territories; or that other evasion,
that the court only decides that Congress,
when providing Territorial courts, employs the
combined power of General and State Gov
eminent" because of the unlimited and ercl,s-
sipe jurisdiction ofhe United States in admit
raty The plain words of Chief Justice Mar
shall leave no room for this evasion, and ex-
clude any such conclusion. He says:
=" These courts the Territorial courts are
not constitutional courts, in which the judi
cial power conferred by the Constitution can
be deposited. They are incapable of recev-
ing it,"
He decides that they are Legislative courts,
created in virtue of the general right Of sorer
eighty" in Congress to govern the Territories.
Whatever special pleading may be set up to
evade the force of this decision, one thing is
clear, that in the Judgment of the Supreme
Court the people of the Territories, during the
Territorial organization, do not share in the
! Government that the exclusive iyht to govern
them is in Congress- and that Congress, in
legislating fer them, for all purposes, exercises
s the combined power of the General and of a
: State Governmental American Insurance
! eG1 \
Is not the combined power of the I" General
and of State Government" competent to en-
cude Slavery from and emancipate slaves
within Territory? North Carolina and the
Congress of 1890 were of that opinion hence
the limitation ca the power of Congress in the
deed of cession to which have referred.
Beyond all question, the sovereignty over the
Territories is vested in Congress every act for
their government, from the act of 1889 to the
act of 1854, proves this: legislation is sover.
eighty.
l have already shown that the Constitution
provides for the admission of new States, and
that the provision was purposely so framed as
not to compel their admission upon the same
terms with the original States, but to enable
Congress to subject them to other terms and
conditions, and to admit or reject them at
pleasure. Congress has repeatedly exercised
I this power, and in such a way as to put an en-
tinguisher upon the asserted imprescriptibe
right of equality of the several States"
The act to enable the people of Ohio to form
q Constitution, and for their admission into the
Union, passed April 80, 1902, and approved by
Jefferson, provides that the people may form
Constitution and State Government, provided
the same shall be republican, and NOT REPUG-
NANr to the Ordinance of July Is, ISL Uni
ted States Statutes, vol. 2, p. ia, sec. 81
| Whanoo did tho Conpresa of 1902 derive the
power to impose this restriction upon the peo-
pie of Ohio, as a condition precedent to their
organization into State, and their admission
into the Union Not from the Ordinance of
1881; for that was superseded by the Constitu
ton, and ceased to be law or the source of au-
thority upon the adoption of the Constitution.
The power was and could be derived only from
the Constitution, to impose this restriction.
What was the effect of this restriction? Mani
testify, to impose upon Ohio, as State, terms,
conditions, and restrictions, to which the origin
al States were not subjected.
Those terms, conditions, and restrictions,
were, that, by her Constitution and Govern
ment, Ohio should forever exclude Slavery
from her territory, except as punishment for
crime, on due conviction that no man should,
within her limits, be deprived of life, liberty,
or properly, but by the judgment of his peers
and the law of the land and that private prop
erty should not be taken for public use, with
out Just compensation; and that all the inhab
ftants should always enjoy the benefits of
habeas corpus and the triel by jury. If Ohio
had tolerated involuntary slavery by her Con-
stitution, or had denied to any man protection
of life, liberty, property, trial by jury, her
Constitution would have been repngndnt to the
Ordinance, contrary to the enabling act of
1902, violative of the fifth and sixth amend
/ xofs Al e o..