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Page 10
If the form is somewhat objectionable, I think the substance is still
more so. The amendment is to strike out the words "which was superseded
by," and to insert a provision that the act of 1820 is inconsistent
with the principle of congressional non-intervention, and is therefore
inoperative and void. I do not quite understand how much is conveyed
in this language. The Missouri restriction of 1820, it is said, is
inconsistent with the principle of the legislation of 1850. If anything
more is meant by "the principle" of the legislation of 1850, than the
measures which were adopted at that time in reference to the territories
of New Mexico and Utah--for I may assume that those are the legislative
measures referred to--if anything more is meant than that a certain
measure was adopted, and enacted in reference to those territories, I
take issue on that point. I do not know that it could be proved that,
even in reference to those territories, a principle was enacted at all.
A certain measure, or, if you please, a course of measures, was enacted
in reference to the Territories of New Mexico and Utah; but I do not
know that you can call this enacting a principle. It is certainly
not enacting a principle which is to carry with it a rule for other
Territories lying in other parts of the country, and in a different
legal position. As to the principle of non-intervention on the part
of Congress in the question of slavery, I do not find that, either as
principle or as measure, it was enacted in those territorial bills of
1850. I do not, unless I have greatly misread them, find that there is
anything at all which comes up to that. Every legislative act of those
territorial governments must come before Congress for allowance or
disallowance, and under those bills without repealing them, without
departing from them in the slightest degree, it would be competent for
Congress to-morrow to pass any law on that subject.
How then can it be said that the principle of non-intervention on the
part of Congress in the subject of slavery was enacted and established
by the compromise measures of 1850? But, whether that be so or not, how
can you find, in a simple measure applying in terms to these individual
Territories, and to them alone, a rule which is to govern all other
Territories with a retrospective and with a prospective action? Is
it not a mere begging of the question to say that those compromise
measures, adopted in this specific case, amount to such a general rule?
But, let us try it in a parallel case. In the earlier land legislation
of the United States, it was customary, without exception, when a
Territory became a State, to require that there should be a stipulation
in their State constitution that the public lands sold within their
borders should be exempted from taxation for five years after the sale.
This, I believe, continued to be the uniform practice down to the year
1820, when the State of Missouri was admitted. She was admitted under
the stipulation. If I mistake not, the next State which was admitted
into the Union--but it is not important whether it was the next or
not--came in without that stipulation, and they were left free to tax
the public lands the moment when they were sold. Here was a principle;
as much a principle as it is contended was established in the Utah and
New Mexico territorial bill; but did any one suppose that it acted upon
the other Territories? I believe the whole system is now abolished under
the operation of general laws, and the influence of that example may
have led to the change. But, until it was made by legislation, the mere
fact that public lands sold in Arkansas were immediately subject to
taxation, could not alter the law in regard to the public lands sold in
Missouri, or in any other to where they were they were exempt.
There is a case equally analogous to the very matter we are now
considering--the prohibition or permission of slavery. The ordinance of
1787 prohibited slavery in the territory northwest of the Ohio. In 1790
Congress passed an act accepting the cession which the State of North
Carolina had made of the western part of her territory, with the
proviso, that in reference to the territory thus ceded Congress should
pass no laws "tending to the emancipation of the slaves." Here was a
precisely parallel case. Here was a territory in which, in 1787, slavery
was prohibited. Here was a territory ceded by North Carolina, which
became the territory of the United States south of the Ohio, in
reference to which it was stipulated with North Carolina, that Congress
should pass no laws tending to the emancipation of slaves. But I believe
it never occurred to any one that the legislation of 1790 acted back
upon the ordinance of 1787, or furnished a rule by which any effect
could be produced upon the state of things existing under that
ordinance, in the territory to which it applied.
I certainly intend to do the distinguished chairman of the committee
no injustice; and I am not sure that I fully comprehend his argument in
this respect; but I think his report sustains the view which I now take
of the subject: that is, that the legislation of 1850 did not establish
a principle which was designed to have any such effect as he intimates.
That report states how matters stood in those new Mexican territories.
It was alleged on the one hand that by the Mexican _lex loci_ slavery
was prohibited. On the other hand that was denied, and it was maintained
that the Constitution of the United States secures to every citizen the
right to go there and take with him any property recognized as such
by any of the States of the Union. The report considers that a similar
state of things now exists in Nebraska--that the validity of the eighth
section of the Missouri Act, by which slavery is prohibited in that
Territory, is doubtful, and that it is maintained by many distinguished
statesmen that Congress has no power to legislate on the subject.
Then, in this state of the controversy, the report maintains that
the legislation of Congress in 1850 did not undertake to decide these
questions. Surely, if they did not undertake to decide them, they could
not settle the principle which is at stake in them; and, unless they did
decide them, the measures then adopted must be considered as specific
measures, relating only to those case and not establishing a principle
of general operation. This seems to me to be as direct and conclusive as
anything can be.
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