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OBSERVATIONS
ON
NENIT OR DOUGLAS'S
VIEWS OF
POPU L All SOVREIGNTY,
AS EXPRESSED IN
HARPERS' MAGAZINE, FOR SEPT., 1559.
PREFATORY NOTE.
The writer of these "Observations" waited a few
days alter the appearance ot Harpers' Magazine tor
September, in the confluent expectation that some
body with more leisure and greater ability, would
fully express the almost universal dissent of the
public mind Irom the views contained in Mr. Doug
lass article. He yielded to "the request ot triends"
or.lv when he saw what he supposed to be a gene
ra! wish for a discussion more extended than could
be given of such a subject in newspaper paragraphs.
Wliv not put the writer's name to it '! Because the
truth or falsehood of what is written does not de
pend on the name or character of him who wrote it.
Ho libelhim ! Let it go forth, and find what enter
tainment it can.
Washington, Sept. 7, 1559.
Every one knows thai Mr. Douglas, the Sen
ator lrom Illinois, has written and printed an
elaborate essay, comprising tnirtv-eight columns
of Harpers' Magazine, in which he has under
taken to point out the "dividing line between
federal and local authority.'' Very many per
sons have glanced over its paragraphs to catch
(lie leading ideas without loss of time, and some
few have probably read it with care.
Those who dissent from the doctrines ot this
paper owe to its author, if not to his arguments,
a most lespectful answer. &r. Douglas is not j
the man to be treated with a disdainful silence.
His ability is a fact unquestioned ; his public
career, in the face of man* disadvantages, has
been uncommonly successful ; and he has been
lor many years a working, struggling candidate
for the Presidency.. He is, moreover, the Co-'
rypheus of his political sect—the founder 01 a
new school—and his disciples naturally believe
in the infallible verity of his words as a part of j
their tilth.
The stvie o( the article is, in some respects, j
highly commendable. It i.-> entirely tree from ,
liie vulgar clap-trap of the stump; and has no !
vain adornment ol classical scholarship ; hut it j
siious no sign of the eloquent Senator ; it is e- j
ven without the logic ol the great debater.
Many jxwtions ot it are very obscure. It seeins
to be an unsuccessful effort at legal precision ,
like the writing of a judge, who is trying in
vain to give good reasons for a wrong decision
on a question of law which he lias not quite
mastered.
With the help of Messrs. Seward and Lin
coln, he has defined accurately enough the plat
form of the so-called Republican party ; and he
does not attempt to conceal his conviction that
their doctrines are, in the last degree, danger
ous. They are, most assuredly, lull ot evil
and saturated with mischief. The "irrepressi
ble conflicts" which they speak ot with so
much pleasure between the "opposing and en
during forces' of the Northern and Southern
States" will be fatal, not merely to the peace ot
the country, but to the existence of the Govern
ment itself. Mr. Douglas knows this, and he i
knows, also, that the Democratic party is the
only jiower which is, or can be, organized to
resist the Republican forces or oppose their hos
tile inarch upon the capital. He who divides
aud weakens the it lends ol the country at such
a crisis in her fortunes, assumes a very grave
responsibility.
Mr. Douglas separates the Democratic party
into three classes, and describes them as fol
lows :
"First, Those who believe that the Constitution
of the United States neither establishes or prohibits
slavery in the States or Territories beyond the pow
er ol' the people legally to control it, but, "leaves
the people thereof perfectly tree to lorm and regu
late their domestic institutions in their own way,
subject only to the Constitution of the United
States."
"Second; Those who believe that the Constitution
establishes siavery in the Territories, and withholds
lrom Congress and the Territorial Legislature the
jower to control it, and who insist that, in the e
vent the Territorial Legislature fails to enact the
requisite laws for its protection, it becomes the im
perative duty of Congress to interpose its authority
and furnish such protection.
"Third, Those who,wnile professing to believe
that the Constitution establishes slavery in the ler
ntcries beyond the power of Congress or the lerri
torial Legislature to control it, at the same tune
protest against the duty ol Congress to interfere for
its protection ; but insist that it is the duty ol the
ludieiary to maintain slavery in the Territories
without any law upon the subject."
We give Mr. Douglas the lull benefit of his
own statement. This is his mode ol expressing
those differences, which, he says, disturb the
harmony, and threaten the integrity, of the A
tnerican Democracy. These passages should,
therefore, be most carefully considered.
The first class is the one to which he himself
belongs, and to both the others he is equally
opposed. He has no right to come between
the second and third class. If the difference
which he speaks ol does exist among his oppo
nents, it is their business, not his, to settle it or
fight it out. We shall therefore confine our
selves to the dispute between Mr. Douglas and
bis followers on the one hand, and the rest of
the Democratic party 011 the other, presuming
ILat be will be willing to observe the princi-
I pie of non-interventton in all matters with
j which he has no concern.
. We will invert the order ir which he lias
discussed the subject, and endeavor to show—
1. 1 hat he has not correctly stated the doc
trine held by his opponents ; and
2. Fhat his own opinions, as given by him
self, are altogether unsound.
1. He says that a certain portion of the Dem
ocratic party believe, or profess to believe, that
the Constitution establishes shivery in the Ter
ritories, and insist that it is the duty of the ju
diciary to maintain it theie without any law on
the subject. We do not charge him with any
intention to be unfair : hut we assert, that he
has in fact done wrong to, probably, nineteen
fwentietfis of the party, by attempting to put
them on grounds which they never chose lor
themselves.
The Constitution certainly does not establish
slavery in the Territories, nor anywhere else.
Nobody in this country ever thought or said so.
But the Constitution regards as sacred and invi
olable all the rights which a citizen may legally
acquire in a State. It a man acquires proper
ty ol any kind in a State, and goes with it into
a territory, he is not for that reason to be strip
ped of it. Our simple and plain proposition is,
that the iegal owner of a slave or other chattel
may go with it into a Federal Territory without
forfeiting his title.
Who denies the truth ot this, and upon what
ground can it be controvertnd 1 The reasons
which support it are very obvious and very con
clusive. As a jurist and a statesman, Mr. Dou
glas ought to be familiar with them, and there
was a time when he was supposed to understand
them very well. We will briefly give him a
few ot them.
It is an axiomatic principle of public law, '
that a right of property, a private relation, con- I
dition or status, lawfully existing in one State \
or country, is not changed by the mere remo- j
val ol (lie parties to another country, unless the
law ot that other country be in direct conflict j
with it. For instance : A marriage legally
solemnized in France is binding in America;
children born in Germany are legitimate here j
if they are legitimate there; and a merchant j
who buys goods in New York according to the j
laws ol that State may carry them to Illinois
and hold them there under his contract. It is
precisely so with the status of a negro carried
irom one part ofthe United States to another ;
j the question of his freedom or servitude depends
on the Jaw ofthe place where he came fiom,
and depends on that alone, if there be no con
flicting law at the place to which he goes or is
taken. The Federal constitution therefore re
cognizes slaveiy as a legal condition wherever
'he Lo"' "iWemrr..'."- -I _ !„l
stand unabolished, and regards it as ilfegal
wherever the laws of the place have forbidden
it. A slave being property in Virginia, re
mains pioperty ; and his master ha? all the
rights of a Virginia master wherever he may go
so that he go not to any place where the local la-v
j comes in conflict with his right. It will not be
| pretended that the Constitution itself furnishes
iio the Territories a conyicting law. It con
tains no provision that can be tortured into any
semblance ola prohibition.
2. The dispute on the question whether sla
very or freedom is local or general, is a mere
war of words. Tiie black race in this country
i.s neither bond nor free by virtue of any gene
ral law. That portion ot it which is tree is so by
virtue of some local regulation, and the slave
owes service for a similar reason. The Con
stitution and laws ofthe United States simply
declare that everything done in the premises bv
the State governments is right, and triey shall
be protected in carrying it out. But Iree ne
groes and slaves may both find themselves out
side of any State jurisdiction, and in a Terri
tory where no regulation has yet been made on
the subject. There the Constitution is equally
impartial. It neither frees the slave nor en
slaves tbe freeman. It requires both to remain
in statu quo until t lie status already iinpiessed
upon them by the law of their previous domicil
shall be changed by some competent local au
thority. What is competent local authority in
a Territory will be elsewhere considered.
3. The Federal Constitution carefully guards
the rights of private property against the Fed
era! Government itself, by declaring that it
shall not he taken for public use without com
pensation, nor without due process of law.—
Slaves are private property, and every man
who has taken an oath ot fidelity to the consti
tution is religiously, morally and politically
bound to regard them as such. Does anybody
suppose that a Constitution which acknowl
edges the sacredness of private property so ful
ly would wantonly destroy that right, not by
any words that are found in it, but by mere
implication from its general principles 1 It
might as well be asserted that the geneiai prin
ciples of the Constitution gave Lane and Mont
gomery a license to steal horses in the valley of
the Osage.
4. The Supreme Court of the United States
has decided the question. After solemn argu
ment and careful consideration, that august tri
bunal has announced its opinion to be that a
slaveholder, by going into a Federal Territory
does not lose the title he had to his negro in the
State from which he came. In former times, a
question of constitutional law once decided by
the Supreme Court was regarded as settled by
all, except that little band ot ribald infidels,
who meet periodically at Boston to blaspheme
the religion and plot rebellion against the laws
of the country. The leaders of the so-called
Republican party have lately been treading
close on the heels of their abolition brethren ;
but it is devoutly to be hoped that Mr. Doug
las has no intention to follow their example.—
In case he is elected President, he must see the
laws faithfully executed. Does he think he
can keep that oath by fighting the judicia
ry "
5. The legislative history ot the country
shows that all the great statesmen of former
times entertained the same opinion, and held il
BEDFORD, PA, FRIDAY MORNING, SEPTEMBER 23, 1859.
so firmly that they did not even think ot any
olher. Jt was universally taken for granted that
a slave remained a slave, and a freeman a free
man, in the new Territories, until a change j
was made in their condition by some positive
enactment. Nobody believed that a slave
might not have been taken to and kept in the
Northwest Territory, if the ordinance of 1787
or some other regulation had not been made to
prohibit it. The Missouri restriction ot 1820
was imposed solely because it was understood
(probably by every member of that Congress)
that, in the absence of a restriction, slave prop
erty would be as lawtul in the eye of the Con- ;
stitution above 36 deg. 30 min. as below ; and j
all agreed, that the mere absence ot a restric
tion did, in tact, make it lawful below the com- j
promise line.
6. It is right to learn wisdom from our ene
mies. The Republicans do not point to anv
express provision ot the Constitution, nor to any
j general principle embraced in it, nor to any es
tablished rule ot law, which sustains their
views. The ablest men among them are driv
en by stress ot necessity to hunt for arguments
in a code unrevealed, unwritten, ami undefined '
which they put above the Constitution or the
Bible, and call it "higher law." The ultra ab- 1
olitionists ot New hingland do not deny that j
the Constitution is rightly interpreted by the >
Democrats, as not interfering against slave rv in i
the 'territories : but they disdain to obev what
ttiey pronounce to be "an agreement with death j
and a covenant with hell."
7. What did Mr. Djuglas mean when he I
proposed and voted for the Kansas-Nebraska bill j
repealing the Missouri restriction ? Did he in- '
tend to tell southern men that notwithstanding j
the repeal of the prohibition, they were exclu- j
ded from those Territories as much as ever ? !
Or did he not regard the right ot a master to his t
slave perfectly good whenever he got lid of the
prohibition ? Did he, or anybody else at that
time, dream that it was necessary to make a
positive law in favor ol the slaveholder before
he could go there with safety ? To ask these
questions is to answer thein I The Kansas-Ne
braska bill was not meant as a delusion or a 1
mare. It was well understood that the repeal <
alone of the restriction against slavery would i i
throw the country open to everything which j
the Constitution recognized as property.
We have thus given what we believe to be
the opinions held by the great body of the Dem- \
ocratic party : namely, that the Federal Con- i
stitution does not establish slavery anywhere in |
the Union ; that it permits a black man to be
either held in servitude or made tree as the iocal i
law shall decide ; and that in a Territory where ;
no local law on the subject bas been enacted, it !
• '** • - vl. c j
status already impressed (hem, until it !
shall be changed by competent local authority, j
We have seen, that this is sustained by the rea- ; i
son of the thing, by a great principle of public i :
law, by tbe words of the whole course of our j
legislation, by the concession of our political op- i
ponents, and, finally, by the most important act j
in the public life ol Mr. Douglas himself.
Mr. Douglas imputes another absurdity to i
his opponents when he charges them with insis
ting "that it is the duty of the judiciary to pro- j
tect and maintain slavery in the Territories
without any law upon the subject ." The judge j
who acts without law acts against law . and j
surely no sentiment so atrocious as this was ev- '
er entertained by any portion of the Democrat- :
ic party. The right of a master to the servi
ces ot his slave in a Teiritory is not against law ;
nor without law, but in full accordance with
law. If the law be against it we are all against
it. Has not the emigrant to Nebraska a iegal
right to the ox team, which he bought in Ohio
to haul him over the plains 1 Is not his title j
as good to it in the Territory, as it was in the j
Stale where lie got :t? And what should he !
said ola judge who tells him that he is not pro- :
tected, or that he is maintained in the posession i
of his property "without any iaw upon the sub- j
ject V*
11. We had a right to expect from Mr.
Douglas at least a clear and intelligible defini
tion ol his own doctrine. We are disappoin
ted. It is hardly possible to conceive anything
ihore ditiicult to comprehend. We will tran
scribe it again, and do what can be done to a
nalyze it.
"Those who believe that the Constitution of the
Uniteit States neither establishes nor prohibits sla- '
very in the States or Territories beyond the power ;
of the people legally to control it, but "leaves the peo
ple thereof perfectly free to lorm and regulate their j
domestic institutions in their own way, subject ou
ly to the Constitution of the United States.' "
The Constitution neither establishes nor pro
hibits slavery in the States or Territories: If it
be meant by this that the Constitution does not
propria vi>rore, either emancipate any man's
slave, or create the condition of slavery, and
impose it on free negroes, but leaves the" ques
tion ot every black man's status, in the Terri
tories as well as in the States, to be determined
by the local law, then we admit it, for it is the
very same proposition which we have been try
ing to prove. But it, on the contrary, it is to
be understood as an assertion that the Constitu
tion does not permit a master to keep his slave,
or a free negro to have his liberty, in all parts
of the Union where the local law does not in
terfere to prevent it, then the error is not only
a very grave one, but it is also absurd and self
contradictory.
" The Constitution neither establishes norjpro
hibits slavery in the States or Territoriesbevond
i the power of the people legally to control it."-
This is sailing to Point-No-Point again. Of
course a subject, which is legally controlled,
cannot be beyond the power that controls it.
• But the question is, what constitutes legal con
trol, and when the people of a State or Territo
i ry are in a condition to exercise it.
; "The Constitution of the United States * *
* * * leaves the people perfectly free,
***** and subject only 'to the
t Constitution of the United States." This car
• ries us round a full circle, and drops us precise
t Jy at the place ol beginning. That the Const i-
Freedom of Thought and Opinion.
| tution, leaves every body subject to tbe Comsti- j
tution, is most true. We are far from denying
it. We narer heard it doubted, and expect we ;
; never will. But the statement of it proves no
thing, definrs nothing, and explains nothing, i
It merely darkens the subject, as words with
out meaning always do.
But notwithstanding all this circuity of ex- j
pression and consequent opaqueness of meaning
in the magazine article of Mr. Douglas, we
think we can guess what his opinions are or will
be when he comes to reconsider the subject.— j
He will aimit (at least be will not undertake to i
uenv) that the status of a negro, whether of
servitude or freedom, accompanies him where- j
ver he goes, and adheres to him in every 1
part of the Union until he meets some lo
cal law which changes it.
It will also be agreed that the people of a
State, through their Legislature, and the people
of a Territory, in the constitution which they
may frame preparatory to their admission as a
State, can regulate and control the subject black i
race within their respective jurisdictions, so as |
to make them bond or free.
But here we come to the point at which o- j
pinions diverge. Some insist that no citizen !
can be deprived ot his property in slaves, or in ;
anything else, except by the provision of a State
constitution or by the act of a State Legislature;
while others contend that an unlimited contiol
over private rights may be exercised by a Ter
ritorial Legislature as soon as the earliest settle
ments are made.
So strong are the sentiments of Mr. Douglas
in favor of the latter doctrine, that if it be not j
established he threatens us with Mr. Seward's |
"irrepressibleconflict," which shall end only
with the universal abolition or the universal j
dominion of slavery. On the other hand, the I
President, the Judges ol the Supreme Court,
nearly aii-'.he Democratic members ot Congress,
the whole of the party South, and a very large
majority North, are penetrated with a convic
tion, that no such power is vested in a Territo
rial Legislature, and that those who desire to
confiscate private property of any kind must
wait until they get a constitutional convention :
or the machinery ot a State government into
their hands. We venture to give the following !
reasons[lor believing that Mr. Douglas is in error ; i
The Supreme Court has decided that a Ter- :
ritorial Legislature has not the jwwer which
he claims lor it. That alone ought to be suffi- I
cient. Tbere can be no law, order, or securi
ty tor any man's rights, unless the judicial ,
authority of the country be upheld. Mr. j
Douglas may do what he pleases with political
conventions and party platforms, but we trust i
M.V'I Supreme Cqutf i
Republicans have yet witheld.
The right of property is sacred, and the first I
object of all human government is to make it
secure. Life is always unsafe where property |
is not fully protected. This is the experience '
of every people on earth, ancient and modern. |
To secure private property was a principal j
object of .Magna Chart a. Charles the 1. i
afterwards attempted to violate it, but the peo- j
pie rose upon him, dragged him to the block. I
and severed his head from his body. At a still
later period another monarch for a kindled
offence was driven out of the country, and died
a fugitive and an outcast. Our own Bevolu
ti on was provoked by that slight invasion upon
the right of the property which consisted in the
exaction of a trifling tax. There is no govern
ment in the world, however absolute, which j
would not be disg iced and endangered by [
wantonly sacrificing private property even to
a small extent. For centuries past such j
outrages have ceased to be committed in times ,
of peace among civilized nations.
Slaves are regarded as property in the South- ;
ern States. The people of that section buy !
and sell, and carry on their business, provide !
for their families, and mage their wills and di- '
vide their inheritance on that assumption. It ;
is manifest to all who know them, that no j
doubts ever cross their minds about tbe rightful
ness of holding such property. They believe
they have a direct warrant for it, not only in
the examples of the best men that ever lived,
but in the precepts ol Divine Revelation itselt ; j
and tbey are thoroughly satisfied that the rela- j
tion ol master and slave is the only one which j
can possibly exist there between the white and
the black race without ruining both. The peo- j
pie of the North may differ from their fellow- !
I citizens of the South on the whole subject, but;
| knowing, as we all do, that these sentiments j
| are sincerely and honestly entertained, we J
cannot wonder that they leel the most un-j
! speakable indignation when any attempt is 1
; made to interfere with their rights. This
| sentiment results uaturally and necessarily |
| from their education and habits of thinking.
i They cannot help it, any more than an honest
j man in the North can avoid abhorring a thief
i or housebreaker.
The jurists, legislators, and people ot the
Northern States, have always sacredly respec
ted the right of property in slaves held by their
own citizens within their own jurisdiction. It
is a remarkable fact, very well worth noticing,
that r.o Northern State ever passed any law to
take a negro from his master. All laws for
the abolition of slavery have operated only on
the unborn descendants of the negro race, and
the vested rights of masters have not been
disturbed in tbe North more than in the South.
In every nation under heaven, civilized,
semi-barbarous, or savage, where slavery has
existedjin any iorm at all analogous to ours, the
rights of the masters to the control of their
slaves as property have been respected and on
no occasion has any government struck at those
rights, except as it would strike at other proper
ty. Even the British Parliament, when it
emancipated the West India slaves, though it
was legislating for a people three thousand
miles away, and not represented, never de
nied either the legal or the natural right ot
j the slave owner. Staves were admitted to be
I property, and the Covernrneut acknowledged
[ it by paying their masters one hundred millions
j of dollars lor the privilege of setting them free.
Here, then, is a species ol property which
is oftranscendent importance to the material
i interests of the South—which the people ol
that region think it light and meritorious in
■ the eyes of God and good men to hold—which
! is sanctioned by the general sense of all man
kind among whom it has existed—which was
legal only a short time ago in all the States
of the Union, and was then treated as sacred
! by every one of them—which is guaranteed
to the owner as much as any other property is
guaranteed by the Constitution ; —and Mr.
[ Douglas thinks that a Territorial Legislature
iis competent to take it away. We say, No ;
the supreme legislative power of a sovereign
State alone can deprive a man of his property.
This proposition is so plain, so well estaolish
ed, and so universally acknowledged, that any
argument in its favor would be a mere waste
!of words. Mr. Douglas does not deny it, and
it did not require the thousandth part of his
sagacity to see that it was undeniable. He
claims for the Territorial governments the right
ot confiscating private property on the ground
that those governments ARE sovereign —have
an uncontrollable and independent'power over
all their internal affairs. That "is the point
which he thinks is to split the Democracy and
impale the nation. But it is so entirely erro
neous, that it must vanish into thin air as soon
as it comes to be examined.
A Territorial government is merely pro
visional and temporary. It :s created by Con
gress tor the necessary preservation of order
and the purposes of police. The powers con
ferred upon it are expressed in the organic act,
which is the charter of its existence, and
which may be changed or repealed at the pleas
ure of Cougress. Inmost of those acts the
power has been expressly reserved to Congress
of revising the Territorial laws, and the power
to repeal them exists without such reservation.
This was asserted in the case of Kansas by the
most distinguished Senators in the Congress of
18.%'. The President appoints the Governor,
judges, and all other officers whose appoint
ment is not otherwise provided for, directly or
indirectly, by Congress. Even the expenses ol
the Territorial government are paid out of the
federal treasury. The truth is, tbey have no
attribute of sovereignty about them. The es
sence ol sovereignty consists in having no
superior. But a Territorial gov .nment has a
superior in the United Stats Government,
U[n whose pleasure it is depe.. -nt for its very
existence—in whom it lives, and moves, and
has its being.—who has made, and can unmake
it a breath.
prive'men of their £7' *' , ' h P r ' lV to de "
1 7 *ronr-rtV come 11 On ; Thi J
transcendent power, wificb even I s
cautious about using, and which a constitutional
monarch never exercises—how does it get into
a Territorial Legislature ? Surely it does not
drop from the clouds : it will not he contended,
that it accompanies the settlers, or exists in
the Territory before its organization. Indeed
it is not to the people, but to the government
of a Territory, that Mr. Douglas says it be
longs. Then Congress must give the power at
the same time that it gives the Territorial gov
ernment. But not a word of the kind is to be
found in any organic act that ever was framed.
It is thus that Mr. Douglas argument runs it
self out into nothing.
But it Congress would, passja statute expressly
to give this sort of power to the Territorial
governments, they still would not have it ; tor
the Federal Government itselt does not possess
any control over men's property in the Territo
ries. That such power does not exist in the
Federal Government needs no proof : Mr.
Douglas admits it fully and freely. It is, be
sides, established by the solemn decision of
Congress, by the assent of the Executive, and
by the direct ratification of the people acting in
their primary capacity at the polls. In addi
tion to all this, the Supreme Court have delib
erately adjudged it lobe an unalterable rule ol
constitutional law.
This acknowledgment that Congress has no
power, authority,oi jurisdiction over the subject,
literally obliges Mr. Douglas to give up his doc
trine, or else to maintain it by asserting that a
power which the Federal Government does not
possess may be given by Congress to the
Territorial government. The right to abolish
African slavery in a Territory is not granted
by the Constitution to Congress ; ius withheld,
! aud therefore the same as if expressly prohibit
t ed. Yet Mr. Douglas declares that Congress
' mav give it to the Territories. Nay ;he goes
| further, and says that the want of the power in
Congress is the very reason why it can dele-
I gate it—the general rule, in his opinion, being
that Congress cannot delegate the powers it
' possesses, but may delegate such, "and only I
; such, as Congress cannot exercise under the!
Constitution !" By turning to page 520 and i
I 521, the reader will see that this astounding
j proposition actually made, not in jest or irony,
' but solemnly, seriously, and, no doubt in per
| iect good faith. On this principle, as Congress
! cannot exercise the power to make an ex
post J'ado law, or a law impairing the obligation
; of contracts, therefore it may authorize such
i laws to be made by tbe town conncils of
j Washington city, or the levy court of the dis
! trict. II Congress passps an act to hangja man
! without trial, it is void, and the judges will not
i allow it to be executed ; but the power to do
| this prohibited thing can be constitutionally
! given by Congress to a Territorial Legislaiure!
j We admit that there are certain powers
bestowed upon the General Government which
are in their nature judicial or executive. With
them Congress can do nothing, except to see
that they are executed by the proper kind of
officers. It is also true that Congress has cer
tain legislative powers which cannot be
! delegated. But Mr. Douglas should have kown
that he was not talking about powers which
j belonged to either of these classes, but about a
legislative jurisdiction lotallyforbidden ( to the
WHOM: ivrmtKß
federal Government, and incapable of being
delegated, for the simple reason that it does no!
constitutionally exist.
Will anybody say that such a power
as a matter of policy, or for reason of public
safely, to be held by the provisional governments
ofthe Territories ? Undoubtedly no true patriot
nor friend of justice and order, can de
liberately reflect on the probable consequences
without deprecating them.
f his power over property is the one which
in all governments has been most carefully
j guarded, because the temptation to abuse it is
always greater than any other. It is there that
the subjects of a limited monarchy watch their
king wilb the greatest jealousy. No republic
j has ever failed to impose strict limitations upon it.
[All free people know, that if they would remain
| free, they must compel the government to keep
its hands off their private property ;.aadthis can
be done only by tying them up w'.th careful
restrictions. our Federal Con
stitution declares thai "no person shall be
deprived of his property except by due process
of law," and that "private .property shall not
be taken for public use without just compensa
tion." It is universally agreed that this ap
plies only to the exercise of the power by the
Government of the United States. We are
also protected against the State governments
by a similar provision in the State constitutions.
Legislative jobbery is therefore a crime which
cannot be committed either by Congress or by
any State Legislature, unless It be done in flat
rebellion to the fundamental law of the land.
But it the Territorial governments have this
power, then they have it without any limita
tion whatsoever, and in all the fullness of
absolute despotism. They are omnipotent in
regard to all their internal affairs, for they are
sovereign, without a constitution to hold them
in check. And this omnipotent sovereignty is
to be wielded by a few men suddenly drawn
together from all part of America and' Europe,
unacquainted with one another, and ignorant
of their relative rights. But if Mr. Douglas is
right, those governments have all the absolute
power of the Russian Autocrat. They may
take every kind of property in mere caprice,
or lor any purpose of lucre or malice, without
process of law, and without providing for com
pensation. The Legislature of Kansas, sitting
at Lecompton or Lawrence, may order the
miners to give up every ounce of gold that has
been dug at Pike's Peak. IfcUkTiiGthorities
ot Utah should license a band of marauders
to despoil the emigrants crossing the Territory,
their sovereign right to so cannot be questioned.
A new Territory may be organized, which
Southern men think should be devoted to the
IMJu r:':r "• L ' u tho people of the T*,o ia *
are equally certain <— j s
r r "r — Ktwinoce h* cArrwu on tnere. 1/ one
party, bv accident, by force, or by'fraud, has a
majority in the Legislature, the negroes are
taken trom the planters ; and if the other set
gams a political victory, it is followed by a
statute to plunder the graziers ot their cattle.
Such things cannot be done by the Federal
Government, nor by the governments of the
States ; but, if Mr. Douglas is not mistaken,
they can be done by the Territorial govern
ments. Is it not every way better to wait until
the new inhabitants know themselves and one
another ; until the policy ot the Territory is
settled by some experience : and, above all,
until the great powers of a sovereign State are
regularly conferred upon them and properly
limited, so as to prevent the gross abuses which
always accompany unrestricted power in
human hands I
There is another consideration, which Mr.
Douglas should have been the last man to'over
look. The present Administration of the
Federal Government, and the whole Democrat
ic party throughout the country, including Mr.
Douglas, thought that, in the' case of Kansas,
the question of retaining or abolishing slavery
should not be determined by any representative
body without giving to the whole mass ot the
people an opportunity ot voting on it. Mr.
Douglas carried it further, and warmly opposed
the constitution, denying even its validity, be
cause other and undisputed parts of it had not
also been submitted to a popular vote. Now
he is willing that the whole slavery dispute in
any Territory, and all questions that can arise
concerning the right of the people to that or
other property, shall be decided at once by a
Territorial Legislature, without any submission
at all. Popular sovereignty in the last Congress
meant the freedom of the people from alt the
restraints of law and order now it means a
government which shall rule them with a rod of
iron. It swings like a pendulum from one side
clear over to the other.
Mr. Douglas's opinions on this subject of
sovereign Territoiial governments are very
singular; but the reasons he has produced to
support them are iufinitely more curious still.—
For instance, he shows that Jefferson once
introduced into theold Congress of the Con
federation a plan for the government ot the
Territories, calling them bv the name of "New
States," but not making them anything like
sovereign or independent States ; and though this
was a mere experimental projet, which was re
jected by Congress, and never afterwards refer
red to by Jefferson himself, yet Mr. Douglas
argues upon it as if it had somehow become a
part of our fundamental law.
Again: He says that the States gave to the
Federal Government the same powers which as
colonies they had been willing to concede to the
British Government, and kept those which as
colonies they had claimed for themselves. If
tie will read a common-school history ofthe
Revolution, and then look at Ait. I,sec.B, ol the
Constitution, he will find the two following facts
fully established :1. That the Federal Govern
ment has "power to lay and collect taxes, duties,
imposts, and excises and, 2. That the colo
nies, before the Revolution, utterly refused to be
taxed by Great Brittan .and so far from conce
ding the power, foutght against it lor seven long
I years.
VOL. 3, NO. 8.