Year: 1859

opened, by the DEBATE tnat sprung up IN the
Senate of the United States, on the 23d of
February, upon Mr.. Hale's motion to repeal
the provision in the "English" bill which
makes the admission of Kansas dependent
upon the amount of her population.


We confess that we know no subject that
presents more intrinsic difficulties than those
included in the questions agtated in this de-
bate. We profess to be free from all sec
tional prejudices; we are Californian to the
core; we have buried our dead in the land
of our adoption, and we expect to find rest
for our bones in her bosom. We have en-
deavored to forget the place of our nativity,
interests, wishes and feelings Of the friends
from whom we are separated, and to come
to the consideration of this question, if that
be possible, in the spirit Of calmness and
philosophy.


The Wimot Proviso was the origin Of the
doctrine Of the Black Republican party.
That doctrine was, and is, that the Congress
of the United States possess the constitution
al power to exclude slavery from the terri
tories, and that justice and policy demand
that they should exercise it. In opposition
to these views, it was claimed by the Dem
ocratic party that slavery was domestic in
stitution, and that State applying for ad-
mission into the Union, should be left free
to dispose of the subject as she pleased
This latter doctrine was established and enun-
cated in the Cincinnati Platform, and in the
Nebraska Kansas bill. But back of this lies
another and distinct question, which all OBJ
servant men noticed hanging like dark
cloud over the political horizon, that, to the
common mind, seemed clear and serene after
the passage of the Kansas Act. This un-
settled question was as to the power of the
Territorial Legislature over the subject in
termediate its organization and the applica
ton for admission. Some of the members
of the Senate, Mr.. Hunter amongst them,
if we remember correctly, demanded that
this question be settled in the Nebraska
Kansas bill; but the subject was studiousy
avoided, and by none more determinedly
than by Mr.. Douglas, At length the ques-
ton has arisen, and exhibits its most formid
able aspect The South was at first content
to claim that the Territorial Legislature
could legislae neither for or against slavery,
and that to Congress it was a tabooed sub
iect. But subsequent reflection taught that
inaction upon the part of the Legislature
would be as fatal to the existence of slavery
as actual prohibition. Slaves are persons as
we'll as property; and they are peculiar per-
sons; so that whilst general laws of property
might apply to them as property, the insti-
tuition requires peculiar legislation as to per
sons. This was, no doubt, the sober second
thought of the South, and it is emphatcally
true. The South, or, at least, some South
ern men, claim that until Territory acquires
the dignity of sovereign by being admit
ted into the Union, it is but the common
property of all the States, open alike to the
establishment Of the institutions Of all.


This is undoubtedly very embarrassing
question, None csn deny that there is great
seem to be bv the exercise of sovereign pow
er alone that an institution recognized by the
Constitution of the United States could be
excluded from what must he admitted to be
the common property of ALL The difficulty
is to determine when this sovereignty accrues.
Some urge that it arises upon the institution
of Territorial Government, and here we are
completely at fault.


We think it is now pretty generally agreed
that the subject of Territorial Government
is cosus omissus in the Constitution. Judge
Marshall and some of his successors have at
tempted, by forced construction, to find the
power in that clause of the Constitution that
authorizes Congress to make all neecful rules
and regulations, for the disposal ofthe terrific
ry and other property of the United States.
But it is apparent that this clause refers TO
te, ritory in its original sense, and is synony
nous with realty: the clause, thel efore, as
is now admitted, only authorizes Congress
to manage the real and personal property of
the Government. The power to establish
Territorial Governments has been deduced
from the power to acquire by conquest or
purchase But this affords us no clue in
determining the eatent of the power, be-
cause, if it is derived from this power, it is,
like its parent, omnipotent. When we re-
member that the question that is disturbing
the public mind is, what power belongs to
Territorial Legislature, and when we re-
member that the Territorial Legislature is
the creature OF Congress, it becomes absol-
utely necessary to the determination of the
question, to determine the powers of Con-
gress over these territorial organizations.
But if the power of Congress is not limited;
if they may institute governments in terri
tories, and abolish them, at pleasure; if they
may confer upon them what powers they
please, then there is nothing improper or
unconstitutional in the South demanding
protection for her institutions and her prop
erty, within the territory purchased with the
common blood and common treasure; de-
manding it, not Of the Territorial Legisla-
ture, the creature, but of Congress, the crea-
for And if CONGRESS pOssesS the power at