"It is with extreme reluctance that I say a word on this subject so unhappily sprung up on the appropriation bill, of which I stand here as the guardian, a very insufficient one, as it seems; but the course of the debate has made it necessary for me, in my own vindication, to say a word or two in regard to this Nebraska-Kansas act.
"I differ from the senator from Illinois in regard to the bill, the history of its inception, and what was intended by it. As I understand it, we stood in this position: the southern senators, I believe, almost without an exception, who spoke upon that question—I know I did for one, as I have always done from the time I first made my appearance on this floor—maintained that the South had the right, under the Constitution, of protection of this property in the Territories; on the other hand, senators from the free States denied that right. None of them would vote to give it to us; but there were a portion of the northern democracy who were willing to do this; they were willing to repeal the Missouri restriction, and establish a territorial government there. A bill was immediately drawn which left this right to the territories to legislate for the prohibition of slavery in abeyance. It neither affirmed nor disaffirmed the power of the territorial legislature to legislate upon this subject of slavery; but it provided very carefully and cautiously that any question arising out of it might be referred to the judiciary....
The case then stood thus: whilst the southern men maintained on one side (and I was amongst them) that they had the right to the protection of their property under the Constitution, those from the free States maintained the opposite opinion. There could have been no accord between them on that point; but the southern men, with some objection and reluctance, in order to harmonize, did agree, as the only mode of getting the Missouri Compromise repealed, if the territorial legislature attempted to exercise the power, that the court should decide; and this they could do with perfect consistency, because they provided that whatever powers were delegated to the territorial legislature should be exercised under the Constitution. In their opinion, the Constitution not only prohibited Congress from delegating a power to abolish slavery to the territories, but from exercising it itself. Whilst they maintained that Congress had the power to govern in the territories, they maintained that there was an obligation on Congress, imposed by the equality of the States, that they should not prohibit the institutions of one State while they allowed those of another; and that was the mode in which it was passed. The bill in itself was, in my opinion, a compromise in which neither sacrificed principles, but left the whole question in abeyance to be decided by the courts without taking from Congress the power to resume jurisdiction, if they should choose to do so afterward. They retained as much good as they could without raising those questions upon which there could have been no accord of opinion.
"Now, sir, I say it never was understood, so far as I had anything to do with the bill, by the southern men who maintained the class of opinions of which I am speaking, that they were conferring on the territorial legislature the absolute power to deal with this subject. They did not; but they were secured to vote for a bill which would organize a territorial Legislature which should leave this question in abeyance, and this bill decided nothing, but only provided that the question should go to the courts, to be decided under that jurisdiction.
"Nor did the bill—although everybody consented to strike out the phrase to which the senator from Illinois alludes—nor did the bill ever mean to say that Congress absolutely gave up jurisdiction over the subject. Inasmuch as it was a common point which accomplished good, which repealed what all the branches of the Democracy thought unconstitutional—the Missouri Compromise—they passed a bill which did that, without deciding absolutely on other differences of opinion, but merely providing a tribunal to decide them when they should come up."
That Senator Hunter stated the truth in reference to himself is evident from the subjoined quotation from a speech of his, delivered during the discussion of the Kansas-Nebraska act in 1854:
"But it has been often said by those who admit that Congress has the power of governing the territories, that it is a power to be exercised, not in reference to the rights of the States, but in reference to the good and welfare of the people of the territories. Now, if in exercising this power we are to be confined to the single consideration of the good and welfare of the people of the territories, then, I say, the whole subject of government ought to be left to the people of the territories. That is the true American principle. If the only consideration which is to apply to their government be the good and welfare of the people of the territories, then they ought to determine all questions in regard to their domestic institutions and laws. But, in my opinion, the government of these territories ought to be administered with the double object of securing the rights of the States as well as those of the people of the territories, and to these last should be given all the rights of self-government which are consistent with the limitation, that they shall not interfere with the equal rights of the States, or violate the provisions of the Constitution. With those limitations, all the power that could possibly be given to the people of that territory, ought to be given to them. All that portion of the power which is to be exercised with a view to their interests, ought to be exercised as they wish it. That, in my opinion, is the true principle.
"I know we have most high, distinguished, and respectable authority for the opinion that the people of the territories have a sort of natural right to exercise all power within those territories. It is not my purpose to raise an issue upon that question. I do not mean to argue it. I do not wish to raise an issue with the friends of this bill, with those whom I am assisting, and who are assisting me, to pass this measure. Nor will I do it unless it should be absolutely necessary, which is not now the case. For, happily, the bill is so framed that it can be maintained, not only by those who entertain such opinions as I have referred to, but by those, also, who entertain opinions like my own. The bill provides that the legislatures of these territories shall have the power to legislate over all rightful subjects of legislation, consistently with the Constitution. And if they should assume powers which are thought to be inconsistent with the Constitution, the courts will decide that question, whenever it may be raised. There is a difference of opinion amongst the friends of this measure, as to the extent of the limits which the Constitution imposes upon the territorial legislatures. This bill proposes to leave these differences to the decision of the courts. To that tribunal I am willing to leave this decision, as it was once before proposed to be left, by the celebrated compromise of the senator from Delaware (Mr. Clayton), a measure which, according to my understanding, was the best compromise which was offered upon this subject of slavery. I say, then, that I am willing to leave this point, upon which the friends of this bill are at difference, to the decision of the courts."
This position cannot be misunderstood. It is that the Supreme Court may overturn the action of territorial legislatures. But does Senator Hunter advocate, as Governor Wise does, Congressional intervention to enforce the decisions of the Supreme Court? Upon this point he is silent; though, from the language he uses, it is evident enough that as a matter of right he would claim the interference of Congress for this purpose—but, considering the fact that there is not the slightest chance that Congress could ever be brought to vote such protection, he may as a matter of policy relinquish the demand.