Delaware inquirer. (Wilmington, Del.) 1859-18??, 1859-11-12
POPULAR SOVEREIGNTY,


ie Authority" and the "Observationso on it b
at the Attorney General of the United States, ha,
g. given to the subject renewed and additional ia
4, terest. The public mind is now, probabl,
more than at any preceding period special
= called to consider ii as one which must 500
+ be settled, if the peace of the country is to
o restored and maintained. Participating in thi
impression, the writer of these remarks canno
be esteemed obtrusive if he states his ow
o opinion and, as briefly as perspicuity will per
!. nit the reasons on which it rests. This, toe
e is undertaken in no party spirit, or through
any prejudice, of which he is aware, to partie
or persons. The question itself of so mucl
u interest, is so closely connected with the con
y tinuing quiet and prosperity of the country
that it would be almost Dissertation to dea
with it with other than national and patriot,
motives. 1t is hoped that this will be remem
i bered and regarded throughout the discussion
/; Such certainly is the wish and design of the
, writer Nor will he refer, in regard to it, tc
any Inconsistencies into which our statesmen
past or present, may have fallen. These prove
nothing in support either of the opinion dis
carded or adopted. They only serve to sub
tract from each whatever of authority may be-
long to the name of its author. Nor do they
impeach his integrity. Public virtue by no
means consists of uniform consistency. "The
wise man sometimes changes his opinion, the
fool never" Time and reflection are generally
but misapplied, if they fail to discern past err
rors; and honesty does not exist, if, when dis
covered, they are not corrected There are
few, either constitutional or merely political
questions of general importance, upon which
our statesmen have not entertained, and at diff
ferent times acted upon, different opinions
The constitutionality and expediency of pro-
tectye tariff, the authority to legislative over
Internal improvements, the power to establish
a national bank, to prohibit slavery in the ter
ritories, the propriety and policy of bringing
executive influence to bear upon elections, Fed
eral or State, the removal from office of faith
full officers, for conscientiously maintaining
their own political opinions, and the more
modern doctrine of rotation in Office that per-
tsonal friends and dependents may be specially
provided for, (both not only pernicious TO the
public service, but productive of deep and en-
during hostility to the executive himselfl are
all of them instances in which living states
men, high, too, in public confidence and sta
ton, have, at various periods of their career,
ayowed and been governed by antagonistic
views Charity, at least, should persuade us
that, however mistaken, patriotic, not selfish
motives, must have induced the change. The
fact certainly is fixed historical one, but, how
ever it diminishes faith in the Judgment of such
| men, and may seriously affect the authority
and fame Of their names, the honor of tho
country, which in some measure is bound up
| in their own, it would be unjust to wound by
attributing the vascillation to corrupt motives.
Nor is 1t his purpose to examine with any I'M
kindness, much less asperity of criticism, the
observations" of the Attorney General
These, as well as the articles which called
them forth, are characterized by great ability,
and, by the friends of the writer's and of the
school to which they now severaly belong, |
seem to be considered unanswerable. Substan- |
TALLY agreeing with Judge Douglas,no particu- |
lar reference will be made TO his paper. Nor |
will the other be especially noticed, except as
may be necessary to explain the writer's own |
opinion and the reasons on which it is found |
ed and this will be done in a manner consis-
tent with the respect for the Attorney General, |
which all who know him even as slightly as
the writer entertain for his talents, and his
private and public character. II is however,
no departure, he thinks, from this voluntary
and agreeable restraint to say, that in this
controversy he has illustrated the philosophic
truth, that the science of the law does less to
open and liberalize the mind, then TO yuicken
and invigorate the understanding and has also
exhibited rather the feelings of partizan, and
personal friend of the President, than the at
tributes of the accomplished lawyer Nor is
this latter weakness to be much wondered at
or reproved. 1t leans, indeed, to virtues side.
Private attachment, founded in mutual graft
tude, is, no doubt, its cause and when Just, as
in this case it must be, is rather, even in ex-
cess, to be honored than condemned Nor can
these remarks receive any other consideration
than may belong to their intrinsic Value
They will be left to stand or fall by their own
strength or weakness. Whatever adyenttious
importance, in the Judgment of few, might
possibly be impaired to them, if the name of
the writer was given, they will want. 1t is
reason, and not the authority, slight as that
would be in this instance, of an humble name,
to which alone he desires to appeal With
these preliminary observations he proceeds to
his task.
The question to be considered is, the power
of Congress to legislate in regard to slave pro-
perty within Territory of the United States,
to whose people they have granted territori-
al government clothed with legislative power.
Can they, in advance of such a grant, prohibit
or establish slavery within the Territory, or,
after such grant, can they do either,or protect,
by legislation such property if found there,
against the will Of the local government; and
il not, can such government do all or either
These propositions can be best examined sepa-
rately.
1.-The power of Congress to prohibit sla- Z
very, previous to its awarding a territorial gov
This question should not be esteem
ed as TN open one, as it was judicially settled
against the power, by the Supreme Court OF
the United States, in the bred Scott case. The ,
question was there directly and fully present.
ed Such was the view taken by the minority
Of the Court, as well as by the majority. The =
former as well as the latter and properly
considered it. The case might ]
have been made to turn on some of the other T
questions, but there were no others more clearly
before the Court than this. Few cases ever !
arise in which there are notfound propositions = =
equally conclusive as to the judgment, ut,gen-
orally, no Court performs its duty, if it fails to
dispose of them all. This lis necessary, to avoid !
subsequent controversy, not only in the partic-
llar instance where it might we'll occur, but in
cases that might thereafter arise. To be GER
tain, so desirable in every system Of jurispru-
lence, the law should be made known when
The occasion is fairly offered, and the Court
hat fails in this particular, not only omits
clear duty, but does great injustice to the pub
lie, as we'll as to the individual sutors. The |
question then being before the Supreme Court, 4
ind decided binds, constitutionally binds every =
citizen, as long as that decision remains unre- 4
gersed That the opinion of the Court was as I
ltated, is clear from the subjoined extract. AZ
Ter, as is almost universally admitted, an able o
treatment of the very question, and answering
III the grounds upon which the power was .
placed at the bar, the Chief Justice concludes
n these words: "Upon these considerations, it Z
s the opinion of Court, that the act of Con-
,ress, which prohibited Il citizen from holding
md owning property of this kind, (slave prop
,rty) in the territory of the United States,
iorth of the line therein mentioned, is not v
by the Constitution, and is therefore