What says Judge Burnett, of Cincinnati, himself a squatter sovereign, of the first territorial legislature of the North-west territory? He says:
"In choosing members to the first Territorial Legislature, the people in almost every instance, selected their strongest and best men in their respective counties. Party influence was scarcely felt; and it may be said with confidence, that no legislature has been chosen under the State government which contained a larger proportion of aged, intelligent men, than were found in that body. Many of them, it is true, were unacquainted with the forms and practical duties of legislation; but they were strong-minded, sensible men, acquainted with the condition and wants of the country, and could form correct opinions of the operation of any measure proposed for their consideration." He further adds, "several members of that assembly were men of the first order of talents; and, with scarcely an exception, they would all be now estimated as well qualified for State legislation." Away then with the idea that there are not in the manly form, the courageous and generous heart, the clear and self-reliant, though, perhaps, untutored mind of the pioneer of the forest and prairie, "native countryman," though he may be, equally with "the exile from foreign lands," or the residents of towns and cities, the inherent right of self-government, and the elements that lay broad and deep the foundations of free and sovereign States! As for me, I had rather trust the interests of American liberty and the destiny of American institutions to the keeping of the men, who in the encounter of hardships that make men heroes, have opened in the wilderness the pathway of civilization, and made its waste places to blossom like the rose, than to trust these priceless treasures to the keeping of many of the merchant princes of our eastern cities, whose warehouses and whose homes are palaces, "whose ledger is their Bible and whose gold is their God"; or to the still worse keeping of such Federal administrations as that of James Buchanan--a man in whose veins, according to his own boast, never flowed a drop of democratic blood.
It is not to such men I would commit the welfare of the territories of the United States. Rather let freeborn white men govern them _in their own way_, unawed by Federal armies sustaining Lecompton Constitutions, and I have no fear of the domestic institutions that will be formed in the territories, nor any fears for the Union and the Constitution.
To sum up what I have said on this part of my argument, the proposition is simply this: The Constitution, considered as a whole, and interpreted as it should be, as the act of a moral person, made for great moral and political ends, and not by the mere technical rules which lawyers or impracticable theorists would apply to it, requires that the people of a territory or inchoate State of the United States, preparatory to their admission to the rank of a full grown State within the Union, shall have as full power, through a legislature of their own choosing, to deal with the subject of domestic slavery, and with other subjects of domestic concern, as is possessed by the people of States in the Union. In other words, I say, that whatever may be the right and duty of Congress under the Constitution to guard and protect the territories from internal or foreign violence, and to maintain their allegiance to the Union, it is neither the right nor duty of Congress, under the Constitution, to interfere with the question of slavery or any other domestic question, so long as the people of the territories are faithful to their allegiance to the Constitution and the Federal Republic.
I now proceed to state and confirm by brief historic evidence a proposition already implied in what I have said upon the compromise character of the Constitution and the ordinance of 1787. It is this: The action of the Federal government on the subject of slavery has been essentially compromise action. It recognizes the principle of the co-existence and extension of Free States and Slave States, under and within the confederacy, leaving the ultimate of the question of abolition or extension, not with the Congress, but with the people of the several States. Congress has never rightfully taken sides on this question; for while on the one hand slavery has been forbidden in some territories, it has been permitted in others. Slave territory and free territory have alike been acquired by treaty, and Slave States and Free States alike admitted to the Union. The action of Congress is therefore no precedent for absolute slavery prohibition or indefinite slavery extension. Having never been exercised but by way of compromise it commits the government to neither extreme and is not a conclusive precedent for the constitutional power of Congress over the subject.
I shall briefly notice the facts of history bearing on this proposition.
The territory now covered by the States of Tennessee, Alabama, and Mississippi, was ceded to the United States by North Carolina and Georgia prior to 1803, and accepted by the United States, on the condition that Congress should extend over it a government, and ultimately divide it into States, on the principles of the ordinance of 1787, _except as to slavery_, and territorial governments were afterwards organized over it as slave territory. While, therefore, Congress had in 1787 assumed, by a compact of the original States, to prohibit slavery north-west of the Ohio River, it had also within twelve years after the adoption of the ordinance of 1787 and the Constitution, by express contract agreed not to prohibit it in all territory south of the Ohio, and by the admission of Kentucky and Tennessee as Slave States prior to 1800, could not prohibit it there.
Up then to the time of the purchase of Louisiana in 1803, the Ohio River was the compromise line between free and slave territory--_a line of agreement_, rather than arbitrary legislation.
Louisiana was all slave territory, and by the 3d article of the treaty for its acquisition, its inhabitants were to come into the Union as soon as possible on equal terms with other citizens, and in the meantime their rights of religion, liberty and property were to be maintained and protected.
In this territory, the boundaries of which were subsequently defined by treaties with Spain and Great Britain, were included the present States of Louisiana, Arkansas, Missouri, Iowa, Minnesota, Oregon, and the territories of Kansas, Nebraska, &c.
Soon after this acquisition, territorial governments were organized over the southern portion of the territory, without prohibition of slavery.
In 1812, Louisiana was admitted as a Slave State, and Arkansas and Missouri were subsequently organized as territories without prohibition of slavery.
In 1819, Florida was acquired by treaty with Spain, with the same stipulation, as in the treaty in regard to Louisiana, that the inhabitants were to have the rights and privileges of citizens of the United States and be admitted into the Union; and soon after the territory of Florida was organized without prohibition of slavery.
From 1787 until the Missouri question came up, no successful attempt was made by Congress to prohibit slavery in any territory of the United States. In 1817, Missouri applied for admission to the Union. Her admission as a Slave State was strenuously contested, and to the act authorizing her to form a State Constitution was appended a provision applying the 6th or anti-slavery section of the ordinance of 1787 to all the territory ceded by Louisiana, outside of the limits of Missouri, and north of 36 deg. 30 min. north latitude, or the southern boundary of Missouri. The adoption of this act, fixing a geographical line between Free States and Slave States, has been called a compromise. The proposition was beyond doubt made in the spirit of compromise, and received the support of compromise men, but the North who insisted upon the exclusion of Missouri with a slave constitution, generally voted against the act in its final passage, and the South, for the sake of getting Missouri in with a slave constitution, as generally voted for it. The compromise was not acceptable to either side, and when Missouri presented her Constitution in 1821 for the approval of Congress, her admission was again opposed by Northern men, and made conditional upon her declaration by solemn act of her legislature, that a clause of her Constitution relating to free negroes and mulattoes, should not be construed to authorize any law violating the privileges and immunities of any citizen of either of the States of the Union, under the Constitution of the United States. Missouri made the declaration required, and by proclamation of the President, became a State on August 10th, 1821. The resolution of Congress of 2d March, 1821, was beyond doubt the real condition or compromise upon which Missouri was admitted, and it was in this compromise and not in that of 1820, that Henry Clay took part. Strange as it may seem; it is nevertheless true, that notwithstanding the alleged compromise of 1820, an attempt was made in 1821 by Northern men in Congress to override that compromise,--that "sacred compact," that "plighted faith," that "landmark of freedom,"--and to keep Missouri out of the Union, because she had adopted in her Constitution a provision to prevent free negroes or mulattoes from coming to or settling in the State--a provision which is contained in the present Constitutions of Indiana and Illinois, and has been enforced in Constitutions or legislation of other Northern States, and was sanctioned by the people of Indiana in 1851, when submitted to them as a distinct proposition, by a vote of 100,976 for it, to 21,066 against it. By that vote, Indiana as late as 1851 affirmed that Missouri was right and Congress wrong in the great conflict of 1821.
The high and sacred character of a national compact has been claimed for the Missouri act of 6th March, 1820. No man who will calmly and intelligently and without prejudice examine its history, can fail to see that however expedient it might have been at the time, there is no compact--no sacred character about it. Looking on the whole question as one of constitutional power and policy, I am free to say I think the South and not the North were in the right in the Missouri controversy.
What are the plain facts? In 1803 the territory embracing Missouri had been acquired as slave territory. It had been organized by Congress in 1804 as slave territory. The inhabitants under the foreign and territorial law had acquired and held slaves, as rightfully as they were held in any State. No prohibition of slavery had been extended over the territory. By the treaty with France and the settled policy of the Federal government, the territory of Missouri, when it had attained a sufficient population, was entitled to admission as a State on an equal footing with the original States. In 1817 Missouri asked of Congress authority to form a State Constitution, preparatory to her admission to the Union. Her case was in all its cardinal and essential features precisely parallel to that of Kentucky, Tennessee, Mississippi and Louisiana, which had already been admitted as Slave States without question, and how was she met? Northern men in Congress, in effect said to her, if you choose to come into the Union as a Free State, we will let you in; if not, we will keep you out, and under our arbitrary power of government, until you get rid of your slaves. We don't believe in slavery, and don't mean to have any more barbarian slaveholders in our company. Northern men in Congress, in violation of the spirit and policy of the Constitution, which recognized slavery as a purely local institution, endeavored to compel a full grown sovereign State to abolish slavery. That is the whole point of the case. It is not surprising that this position and attempt of the North should have awakened a spirit of resistance in the South that shook the Union to its very center. Whatever might be the opinion of Northern men as to the power of Congress over slavery in the territories, or as to the expediency of prohibiting it, it was too late to apply their doctrine to Missouri. She was ripe for admission to the Union as a State, with domestic institutions formed to suit her people, and formed, too, under the eye and sanction of Congress, and Congress had no right to make her State sovereignty dependent on the carrying out _as to other territory_, of the Northern idea of prohibiting slavery. The case of Missouri should have been decided on its own merits.
In view of all the facts, and of its proposed restraint upon the constitutional power of new States besides Missouri, I fully believe the Supreme Court of the United States correctly laid down the law in the Dred Scott decision, declaring the 8th section of the act of 6th March, 1820, being the prohibition of slavery, to be unconstitutional and void, for the simple reason that it was the right _of the people_ of those new States to make a constitution or laws for or against slavery as they saw fit, and not the right of the Congress, which has no power under its own Constitution to make State Constitutions.
The principle of compromise embraced in the Missouri line, whether legal or not, calmed the agitation of the question of slavery, which had, during the Missouri struggle, assumed a dangerous form. It shut out slavery in the vast region north of 36 deg. 30 min., not adapted to slave labor, and permitted it south of that line where slavery had taken or was likely to take root. Therefore when Arkansas applied in 1836 for admission as a Slave State, she came in without serious controversy, though northern opposition in Congress was not even then silent.
Between the establishment of Texan independence in 1836 and her annexation to the United States in 1845, in view of the latter event, the question of slavery extension became one of absorbing interest to the nation. The Democratic party recognized it in the 7th article of their platform in their National Convention of 1840, taking the true ground of non-intervention by Congress. In 1843 the Liberty party, so called, organized upon the distinct ground of opposition to slavery. In 1844 the Democratic party reaffirmed their platform of 1840, and declared in favor of annexing Texas, and its candidates were sustained by the people. In 1845 the Congressional agitation was resumed on the question of annexing Texas. It resulted in the annexation, upon the compromise of extending the Missouri compromise line of 36 deg. 30 min.
across the Texan territory, leaving a disputed boundary north of that line, which was adjusted in 1850 by making 36 deg. 30 min. the north boundary of Texas.
In 1846 the question of prohibition again came up in Congress on the bill to organize a territorial government for Oregon, and was kept in agitation until Oregon was forced, for self-protection to form a provisional government; and after a proposition of Mr. Douglas, sustained by the Senate, to extend the Missouri compromise line to the Pacific, had been voted down in the House by northern votes, the Oregon bill was finally passed in 1848, with the proviso of the ordinance of 1787 against slavery, the South voting in a body against its passage--not because they expected slavery to go there, but because they wanted the Missouri line of compromise extended to the Pacific.
In 1846 and 1847 the slavery agitation raged fiercely in the nation and in Congress upon the question of applying a slavery prohibition in the form known as the Wilmot proviso to all the territory to be acquired from Mexico under the treaty, the negotiations for which were then pending. The Wilmot proviso was voted down, and the treaty was consummated Feb. 2, 1848, and Mexican territory, embracing California, Utah and New Mexico was acquired without prohibition of slavery, but the territory was free under the Mexican law, and all Mexican inhabitants who should elect to become citizens of the United States, were entitled to become so at the proper time to be judged of by Congress, and to be incorporated into the Federal Union according to the principles of the Constitution.
At the commencement of the session of the XXXIst Congress in 1849, the slavery agitation had reached a degree of intensity before unknown. The territory acquired from Mexico, in consequence of this agitation had been left without civil government. California, full of northern emigrants in search of gold, had in the absence of any action of Congress, exercised her inherent right of self-government and formed a State Constitution prohibiting slavery, and was asking admission to the Union. Utah and New Mexico were ripe for territorial governments. The Texan boundary was unsettled. The South was opposing the admission of California as a Free State and insisting on its division, and demanding the distinct legalization of slavery in the territories south of the Missouri line of 36 deg. 30 min., and the extension of that line to the Pacific, and demanding also a more stringent fugitive slave law, and the North was demanding the admission of California and the establishment of the Wilmot proviso over all the territory to be organized, and demanding also the immediate abolition of slavery in the District of Columbia.
The contest for speaker in the House continued from the 3d to the 22d December, 1849, resulting in the election of Howell Cobb over R. C.
Winthrop. So ominous of trouble were the signs of the political sky, that President Taylor, in his annual message, took occasion to caution the Congress against the introduction of topics of a sectional character, and to repeat the solemn warning of Washington against furnishing any ground for characterizing parties by geographical discriminations.
The history of the legislation of 1850 is too well known to need detail here. It resulted in another compromise, by which six important measures all involving the slavery question were adopted. These were
1. The admission of California as a free State.
2. The settlement of the Texas boundary, limiting its northern line to 36 deg. 30 min.
3. The formation of territorial government for Utah, and
4. The like for New Mexico.
5. The abolition of the slave trade in the District of Columbia, and
6. The Fugitive slave law.
California, Utah, New Mexico and Texas all embraced territory on both sides of the Missouri Compromise line. California was the first State south of that line that had ever asked for admission to the Union with a Constitution excluding slavery.
The cardinal feature of the Compromise of 1850 was the abandonment of a geographical line to separate free and slave territory, and the distinct recognition of the principle of non-intervention by Congress with slavery. The compromise in terms recognized the right of the people of the territories to be admitted to the Union with or without slavery as they might desire--that was its very essence as distinguished from the Compromise of 1820.
The principle of non-intervention in the territories had been logically involved, in the national platforms of the democratic party since 1840, but it had never until 1850 received the direct sanction of the Congress.
The legislation of 1850 must be regarded as one of the most memorable events in our constitutional and political history. It received the aid and sanction of some of the ablest and wisest statesmen the nation has ever known.--There were men in the Senate taking part in the controversy that resulted in the compromise, whose political lives had commenced when the fathers of the Republic were ruling its affairs. Clay, Benton, Webster and Calhoun were there, and the South and the North alike were represented by their ablest men. It had become their high duty to settle by an enduring principle the future policy of the nation as to the organization of territorial government for the national domain, and as to the admission of new States. The antagonisms of the North and South, fostered on the one hand by the spirit of abolition, and on the other by the spirit of slavery extension; and still more fostered by the long continued and unconstitutional attempts of Congress to deal with the question, by splitting the difference between the contending sections, could no longer be reconciled by a boundary line. With every fresh acquisition of national territory, the zeal of the contending power overleaped the congressional boundary, and demanded more for its own sectional policy.
In the Congress of 1850 the Northern or Free soil party insisted on the absolute prohibition of slavery in all the new territory acquired from Mexico. They were able as they had been before when Mr. Douglas proposed, and the South voted for it, to vote down the project of extending the Missouri Compromise line to the Pacific. The South with such Northern men as were opposed to the Wilmot proviso, were able to defeat that. Neither the Missouri Compromise nor the Wilmot proviso could be carried.--The "irrepressible conflict," long encouraged by selfish political schemers or over-zealous, if not fanatical theorists, had reached a crisis, and the nation looked on in fear.
Then it was that the great and patriotic men who carried the compromise of 1850, said to the South and to the North, we will henceforth make no line over the national domain to mark out the boundary between Free States and Slave States. Before the law of the Constitution, both Free States and Slave States are equal. The territory of which we are the trustees belongs neither to Northern institutions, nor to Southern institutions. We will not interfere, for we have no right to interfere, to give it exclusively to either. It is now free territory by the Mexican law. We will not extend slavery over it, nor will we exclude slavery from it; but we open the territory to citizens of all the States alike. It is their common property. The land is all before them where to choose; let them go in with their wives and their children, their men servants and their maid servants, their goods and their cattle, and the stranger that is within their gates, and form such domestic institutions as may suit their wants and desires, consistent with republican government and the Federal Constitution, which is for them, as for us, the supreme law. Let _the people_, who are to constitute States in all that wide domain, decide for themselves, for they will best know, what fundamental or temporary laws they want, and the Federal government will protect them in their free choice. When they come to us matured, as California now is, into republican States, we will admit them to our common Union on an equal footing with the original States in all respects whatsoever, "with or without slavery, as their Constitution may prescribe at the time of their admission."
Here at last was found the true solution of the question of slavery in its relations to the Federal government, and it was adopted by the Congress and accepted by the nation; for both the Democratic and Whig parties, then the great dividing political parties, united upon it as common ground in the presidential canvass of 1852. One party, however, styling itself the _Free Soil Democracy_, the remnant of the party that had in 1848 supported Martin Van Buren for the presidency upon the Buffalo platform of "_no more Slave States--no more Slave Territory_,"
did meet in convention, at Pittsburgh, on 11th August, 1852, to denounce in no measured language the compromise of 1850 and slavery in general. I notice this party now only to refer you at your leisure to its platform, and to ask you to note that the President of the Convention was Henry Wilson of Massachusetts, and its nominees for President and Vice-President were John P. Hale of New Hampshire, and George W. Julian of Indiana. Two of these gentlemen are now Republican Senators in Congress, and the third, Mr. Julian, a member elect from Indiana to the House of Representatives in Congress. These gentlemen were known in 1852 as _Free Soil Abolitionists_, in 1860 they are known by the more fashionable and pleasant-sounding name of Republicans.
The principle of non-intervention, on which the compromise of 1850 was based, was in itself so simple, so just, so consistent with the Constitution and the democratic theory of our institutions, that it could not but prevail. Out of 3,143,679 votes cast for President in 1852, Mr. Hale received 155,825, leaving 2,987,854 as the popular vote in favor of the compromise of 1850.
I rejoice to know that in that great struggle to establish sound and enduring constitutional principle, to rule the Federal government on the question of slavery, the Whig party and its noble old leaders, were as they had ever been, on the side of the Union and the Constitution. The compromise of 1850 was with Webster and Clay the crowning achievement of illustrious lives, and having accomplished this great work, they soon--
"Sustained and soothed by an unfaltering trust, Drew around them the drapery of the couch of death, And laid down to pleasant dreams,"
full of years and full of honors.
The compromise of 1850 touched the true principle of dealing with slavery, but it was not a perfect work. It left upon the statute book of the nation, legislation still operating over United States territory, directly opposed to the principle of non-intervention, which the nation had almost unanimously approved. The principle of the compromise of 1850, and the principle of permission or prohibition involved in a geographical line to divide Free and Slave States, were directly inconsistent with each other, and sooner or later this inconsistency had to be met and removed. For the Congress to say, as they did in the compromise of 1850, that the people of Texas, Utah and New Mexico, should be admitted to the Union as Free States or as Slave States, as they might choose, and at the same time to affirm as they did by retaining, or at least not formally erasing, the Missouri compromise line and the Oregon prohibition, that the people of Kansas, Nebraska and Oregon, and all the north-west territories should come into the Union as Free States or not at all, was a glaring inconsistency, and discrimination, not in favor of the North, but in favor of the South.
Men in Oregon wanting domestic slaves could not have them. Men in Utah and New Mexico wanting slaves could have them or not, as they pleased.
One man in the nation was found able enough, and brave enough, and patriotic enough to grapple with this question and bring it to the test, and carry out to its logical results the doctrine of the compromise of 1850; and that he bore himself bravely and well through the trying ordeal, and against fearful odds, even his bitterest foes must admit.
Stephen A. Douglas, of Illinois, was but 37 years of age when he stood in the United States Senate, one of the ablest of the supporters of the compromise of 1850. His own hand had drawn the bills to admit California as a Free State, and to organize Utah and New Mexico. Among the venerable princes of the Senate, he was their equal, and Henry Clay, the noblest Roman of them all, moved by Mr. Douglas' magnanimity on that occasion, pronounced him to be "the most generous man living."
In 1854 Mr. Douglas carried through the Congress of the United States and through a parliamentary warfare, in which no other man than he could have triumphed, the bill to organize the territories of Kansas and Nebraska, declaring inoperative and void the Missouri geographical compromise line, and affirming the true intent and meaning of the Kansas and Nebraska act to be, "_to leave the people of any State or territory perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States_."
In this short "_stump speech in the belly of the bill_," as Thomas H.
Benton and Republican orators after him have, by way of ridicule, been pleased to call it, is the key to the law which must ever govern its true interpretation, and it puts to the rout all the arguments that have been made to prove that non-intervention and popular or territorial sovereignty are not in the Kansas and Nebraska bill, except in small fractions.
A measure so radical and far-reaching as the formal annulling of the Missouri compromise line, could not fail to meet at first with terrific opposition. It broke in on old habits and ways of thinking--it stirred up men's opinions to the roots--it took thought from the surface and forms of things to their substance--it brought democracy to the test. It put to the nation the pregnant questions: Are the rights of white men and black men, the claims of freedom and humanity to be trusted to the white men of the American territories, as well as American States, or are they not? Are free white American citizens in American territories, as well as American States, competent to decide the question of African slavery or not? Are they competent to govern themselves or not? It did more than this; it laid the ax of Anglo-Saxon democracy at the root of the tree of African slavery.
No man was more sincerely opposed to the annulling of the Missouri compromise line than myself; but I am free to say, that with my prejudices in favor of freedom and Free States, and the reputed sacredness of the Missouri line, I did not look on both sides of the question. I condemned Mr. Douglas and I condemned him unheard. I have endeavored to retrieve that error by a more thorough examination, and I am now convinced that he was in the right and his opponents were in the wrong, and to that conviction will the nation come at last.
The defeat of Fremont and the condemnation of the Republican or Philadelphia platform of 1856 by a majority upon the popular vote of 1,371,430 votes, was an unequivocal endorsement by the people, not only of the compromise of 1850, but of the Kansas and Nebraska bill in its erasure of the Missouri line. Had James Buchanan been a wise statesman and a patriot, as I fear he is not; had he carried in his veins "a single drop of democratic blood," Kansas under the operation of the principle of non-intervention by Congress, and intervention by its own people with the question of slavery, would now have been a Free State within the American Union, the first trophy of legitimate popular sovereignty, and a great national party with Stephen A. Douglas at its head would have been existing and triumphant, standing upon firm constitutional ground, knowing no North and no South, but regarding and protecting equally the constitutional rights of all the States.