These things prepare us to comprehend the true character of the change with regard to the Territories. In 1787 all existing national domain was promptly and unanimously dedicated to Freedom, without opposition or criticism. The interdict of Slavery then covered every inch of soil belonging to the National Government. Louisiana, an immense region beyond the bounds of the original States, was subsequently acquired, and in 1820, after a vehement struggle which shook the whole land, discomfited Freedom was compelled, by a dividing line, to a partition with Slavery. This arrangement, which, in its very terms, was exclusively applicable to a particular territory purchased from France, has been accepted as final down to the present session of Congress; but now, Sir, here in 1854, Freedom is suddenly summoned to surrender even her hard-won moiety. Here are the three stages: at the first, all consecrated to Freedom; at the second, only half; at the third, all grasped by Slavery. The original policy of the Government is absolutely reversed. Slavery, which at the beginning was a sectional institution, with no foothold anywhere on the National Territory, is now exalted as national, and all our broad domain is threatened by its blighting shadow.
Thus much for what I have to say, at this time, of the original policy, consecrated by the lives, opinions, and acts of our fathers. Certain reasons are adduced for the proposed departure from their great example, which, though of little validity, I would not pass in silence.
The Prohibition of Slavery in the Territories is assailed, as beyond the power of Congress, and an infringement of local sovereignty. On this account, at this late day, it is pronounced unconstitutional. Now, without considering minutely the sources from which the power of Congress over the national domain is derived,—whether from express grant in the Constitution to make rules and regulations for the government of the Territory, or from power, necessarily implied, to govern territory acquired by conquest or purchase,—it seems to me impossible to deny its existence, without invalidating a large portion of the legislation of the country, from the adoption of the Constitution down to the present day. This power was asserted before the Constitution. It was not denied or prohibited by the Constitution itself. Exercised from the first existence of the Government, it has been recognized by the three departments, Executive, Legislative, and Judicial. Precedents of every kind are thick in its support. Indeed, the very bill now before us assumes a control of the Territory clearly inconsistent with those principles of sovereignty which are said to be violated by Congressional prohibition of Slavery.
Here are provisions determining the main features of the Government, the distribution of powers in the Executive, Legislative, and Judicial departments, and the manner in which they shall be respectively constituted,—securing to the President, with the consent of the Senate, the appointment of Governor, Secretary, and Judges, and to the people only the election of the Legislature,—and even ordaining the qualifications of voters, the salaries of the public officers, and the daily compensation of the members of the Legislature. Surely, if Congress may establish these provisions, without interference with the rights of territorial sovereignty, it is absurd to say that it may not also prohibit Slavery.
In this very bill there is an express prohibition on the Territory, borrowed from the Ordinance of 1787, and repeated in every Act organizing a Territory, or even a new State, down to the present time, where it is expressly declared that "no tax shall be imposed upon the property of the United States." Now here is a clear and unquestionable restriction upon the Territories and States. The public lands of the United States, situated within an organized Territory or State, cannot be regarded as the instruments and means necessary and proper to execute the sovereign powers of the nation, like fortifications, arsenals, and navy-yards. They are strictly in the nature of private property of the nation, and as such, unless exempted by the foregoing prohibition, would clearly be within the scope of local taxation, liable, like the lands of other proprietors, to all customary burdens and incidents. Mr. Justice Woodbury has declared, in a well-considered judgment, that, "where the United States own land situated within the limits of particular States, and over which they have no cession of jurisdiction, for objects either special or general, little doubt exists that the rights and remedies in relation to it are usually such as apply to other land-owners within the State."[59] I assume, then, that without this prohibition these lands would be liable to taxation. Does any one question this? Nobody. The conclusion, then, follows, that by this prohibition you propose to deprive the present Territory, as you have deprived other Territories,—ay, and States,—of an essential portion of its sovereignty.
And these, Sir, are not vain words. The Supreme Court of the United States has given great prominence to the sovereign right of taxation in the States. In the case of Providence Bank v. Billings and Pittman, 4 Peters, 561, they declare,—
"That the taxing power is of vital importance; that it is essential to the existence of Government; that the relinquishment of such a power is never to be assumed."
And again, in the case of Dobbins v. Commissioners of Erie County, 16 Peters, 447, they say:—