The national era. [volume] (Washington [D.C.]) 1847-1860, 1860-01-26


should have power to legislate for them. The
people who purchase the Territories, who pay
for the Territories, who if necessary, fight for
the Territories; the people who own them, and
expect to settle in them, or send their children
there; who pay the expenses of the Legislatures,
the judges, and the Governors of the Terrific
ries-they are the people who are rightfully SOW
ereign in the Territories of the United States,
and not the first band of settlers who happen to
go there, whether from one State or from an
other. 1t is the people and States of the whole
United States represented in Congress who are
sovereign there until the Territories are grown
up to sovereignty, when the power of Congress
over them should cease, and they be admitted
into the sisterhood of States.
Again, sir: all must concede that Congress
has power to pass an organic act. What is
that but law for the Territory-the funda-
mental law, controlling all other Territorial
laws? 1t is equally certain that Congress can
repeal or amend the organic act. From this con-
sideration alone, Mr.. Buchanan was right when
he said the inference as irresistible that Congress
has the poWer TO legiSlate for the Territories
But, Mr.. President, to return once more to this
bred Scott decision We are always bound
to respect the final decision of any court, so
far as the particular case is concerned, for the
parties to it compelled to acquiesce in the
decision, where the court have Jurisdiction; but
of the judges in making that decision, feel COM
PEELED to say, frankly, they do not command my
respect. This may be, perhaps, the first time
when it is alleged that the precise question has
arisen before the Supreme Court of the United
States as to the power of Congress to legislate
on the subject of slavery in the Territories, but
it is by no means the first time the question has
arisen before that court as to the general power,
or the source of the constitutional power of Con-
he hat Ina
been presented to the court in four five differ
ent cases, running through period OF almost
fifty years. The first of these cases. that of Sere
as. Pilot, arose in 1910, and is reported in 8
Cranch, 33G. The Supreme Court of the United
States, without any dissenting opinion, and in
the most explicit language, then declared:
The power governing and legisIatug for Territory
inevitable consequence of the right acquire and hold
territory. Could this position be contested the Constitution
that Congress shall have power TO dispose of and
make all needu rules and regulations respecting the terri
tory other property belonging TO the United states
cordgy, we find Congress possessing and exercising the
absolute and undsputed power governing and egsatng
for the Territory OF Orleans"
Sir, can any court, in stating the power which
Congress exercises over the Territories of the
United States use any broader language than
when it declares that Congress possesses and
exercises the absolute and undisputed right of
governing and legislating for Territory?
Again, in l828-eighteen years afterwards
Canter's case which is reported in l Peters, 5ll,
came before the Supreme Court, and then the
Court declared:
In the time Florida continues to be Territory Of
the United States governed by that clause
ton which empowers Congress TO make all needfu rules
belonging to the United States Perhaps the power of gov
ernng Territory belonging the United States, which has
not by becoming State acquired the of govern
ment, result necessarily from the facts that is not
within the jurisdiction OF any particular State and is within
the power jurisdiction the United States The right
O %
acquire territory Whichever may be the whence
the power may be derived the possession Of it is unques
toned"
That was the language of the Supreme Court,
with no dissenting voice. 1t was not the opinion
of a bare majority, where the whole world knows
that the court is divided according to its political
opinions upon question presented before it, but
the unanimous opinion of the whole court, de-
claring the power which Congress possesses and
exercises over the Territories of the Union.
Again, in the case of McCulloch as. Maryland,
Wheaton, 3l6; and again, in l84O in the case
of the United States u.s. Gratiot, 16 Peters, 537,
the court, in delivering its opinion, without
dissenting voice. referred to this clause of the
Constitution as the true and undoubted source
of the power over the Territories. And what is
remarkable fact, which the country ought to
know, in the judicial history of this Govern
ment, is, that late the December term,
1853, very few weeks before the introduction
of the Nebraska bill, and the proposition to
repeal the Missouri compromise, the Supreme
Court of the United States, in opinion de-
livered by Judge Wayne, with the unanimous
appreciation of the court, consisting Of the same
judges that pronounced the bred Scott opinion,
speaking of the Territory of California, said:
" The Territory had been ceded conquest, and
be preserved and governed such until the sovereignty
which II had passed had egsltod for it, That sovereignty
was the United States under the Constitution by which
had been given Congress to dispose OF aud make
all neediu rules and regulations respecting the territory
other property belonging to the United States eros
HarisOnS, 1G Holodrd 1893
Here we have the unanimous opinion of the
Supreme Court on cases arising at five different
periods in its history beginning in 1919, and
coming down to 1853, when the judges, by no
divided opinions based upon political opinions
or otherwise, did as our fathers did, as Washing
ton, Jefferson, Madison, Monroe, and Jackson
did, maintain and declare the right of Congress
to exercise the undisputed power of legisating
for the Territories of the United States.
But let now see upon what grounds they
avoid the effect of these decisions They now take
the ground, among others, that that clause of
the Constitution of the United States does not
refer to any territory acquired since the Consti-
tuition was formed that it only referred to the
territory then belonging to the United States
That is one of the grounds on which they place
it; and yet, the case coming up from Florida was
case coming up irons Orleans was in relation to
territory acquired in 1903 and the last, in rela-
ton to California, acquired by the Mexican war
or treaty of peace-all of it territory acquired
since the Constitution took effect. Do not the
majority of that court plant themselves upon n
very narrow ground, to avoid the effect of its
former decisions
Mr. President, when I am told by gentlemen
that must respect the decision of the Supreme
A. ind, holo
its opinion, ask you which opinion2 An opin-
ion delivered by divided court in the midst of
intense excitement, upon question of all others
the ground of political strife, and made in accord
ance with preconceived political opinions and
party associations? Shall bow my judgment
before that opinion, or shall hold in reverence
the opinion of that court pronounced unanimous
ly by its judges, through period of near forty
years, in which they maintain, and declare again
and again and again, the unquestionable and
unquestioned power of Congress to legislate over
the Territories of the United States
To the gentlemen upon the other side of the
Chamber would say, in all frankness, do not
doubt your sincerity nor question your integrity
when you tell me that the South has changed its
ground on this question but when concede TO
you that you must concede the same to me, and
those who act with me on this side of the Cham
ber | believe that every Administration of the
Government, from the beginning to lS47, has Off
cially asserted and exercised this power |, also,
believe that not only the Supreme Court of every
free State, but the Supreme Court of every slave
State in this Union, that ever gave an opinion on
the question previous to l847, has always main
tanned that slavery rests upon local law, and
local law alone that the Constitution is not a
general charter to carry slavery all over the Ter
ritories of the Union. No case, believe, previ-
GUS to ls47, can be found when the Supreme
Court of any State, North or South, has taken
a. 4hof tho Constitution of he TTnifnd