"But the senator says territorial laws can only be set aside by an appeal to the Supreme Court of the United States. If so, then they have a power not derived from Congress; they are not the instruments of Congress. But in the course of the senator's remarks, and quite inconsistent with this position, he announced that they possessed no power save that which they derived from the organic act and the Constitution. They can derive no power from the Constitution save as territories of the United States, over which the States have given the power of a trustee to the Congress; and being the delegate of the Congress, they have such powers as Congress has thought proper to give, provided they do not exceed such powers as the Congress possesses. How, then, does the Senator claim that they have a power to legislate which Congress cannot revise; and yet no power to legislate at all save that which they derive from their organic act?
"My friend from Alabama presented a question to the senator from Illinois, which he did not answer. It was, whether a law pronounced unconstitutional by the Supreme Court was still to remain in force within the territory, Congress failing to provide any remedy which would restore the right violated by that unconstitutional act? The senator answers me from his seat, 'clearly not.' Then I ask him, what is the remedy? The law is pronounced unconstitutional, and yet the right which it has violated is not restored; the protection which is required is not granted; the law which deprived him of the protection, though it may be declared unconstitutional, is not replaced by any which will give him the adequate protection to hold his property. Then what is the benefit he derives from the decision of the Supreme Court? The decision of the Supreme Court is binding upon the Congress; but this squatter-sovereignty legislation, seeming to be outside of the Constitution, outside of the legislation of the Federal Government, erects itself into an attitude that seems to me quite inappropriate.
"I concede to the Congress the power, through the instrumentality of a territorial legislature, to legislate upon such subjects as Congress itself has the right to make laws for; no more than that. More than that the senator cannot claim, unless he can show to us that philosophical problem of getting more out of a tub than it contains; its contents being measured, to find something more which can be taken out of it. If he will not—and I suppose he will not—contend that Congress can delegate more power than it possesses, how does he get the power in the territorial legislature to pass laws which will interfere with the rights of a citizen choosing to migrate to a territory? It is the common property of the people of the States. Every citizen has a right to go there, and to carry with him whatever property is recognized by the Constitution; the common law of the States forming the Union. Congress has no power to prohibit it; is bound to see that it is fully enjoyed. Then, I ask the senator, where does he derive the power for the territorial legislature to do it? for he has planted himself now on the ground that they derive their authority from the organic act."
At a subsequent stage of the debate, the subjoined colloquy occurred between Mr. Pugh, of Ohio, who had the floor, and Mr. Davis:
"Mr. Davis.—With the permission of the senator from Ohio, I will ask him whether he understood the senator from Virginia to assert that the Constitution of the United States would give the right to carry this property into the limits of a State where it is prohibited?
"Mr. Pugh.—No, sir; but I say that this proposition is nothing, unless it goes to that extent.
"Mr. Davis.—In the absence of my friend from Virginia, I would say that his theory, I believe, agrees with mine; and certainly does not go to that extent. It is that the Constitution makes it property throughout the United States. It can, therefore, be taken and held wherever the sovereign power of a State has not prohibited it. When it reaches the territory of a sovereign State where its introduction is inhibited, it there stops; except for the reserved right to recover a fugitive, and for the right of transit, which belongs to every citizen of the United States. That is the decision of the Supreme Court.
"Mr. Pugh.—I repeat my assertion: if the Constitution of the United States gives this form of property its peculiar protection, as gentlemen assert, and the right to carry it, it is carried into every State over the constitution and laws of the State; for the Constitution of the United States is supreme above the constitutions and laws of the States; and it means that, or it means nothing. There is no distinction; there can be none made; and my colleague put the very question which proved the fallacy of the whole proposition. But senators say there is no sovereignty in the territories. I agree to that; but why do we deceive ourselves about words? There is no such language as sovereignty in the Constitution of the United States. Senators say it requires a power of sovereignty to exclude slavery, and the senator from Mississippi has just now spoken of the sovereignty of the State which excludes slavery. He says it requires sovereign power to exclude slavery. Well, how is that sovereignty to be expressed?
"Mr. Davis.—When a State, being a sovereign, by its organic law excludes that species of property, the act is final. There is no sovereignty in the Constitution, as the senator states, and why? Because the Constitution is a compact between sovereigns creating an agent with delegated powers; and sovereignty is an indivisible thing. They gave functions of sovereignty from their plenary power. Sovereignty remained with the people of the States.
"Mr. Pugh.—Then I understand the senator that the sovereignty can only speak through a constitution, and that it is in the constitution of a State only that the power to admit or exclude slavery is to be exercised. Why, sir, until the year 1820 not a State of this Union, in her constitution, either admitted or excluded slavery, and I do not believe Virginia did until 1850 or 1851. None of the States did it until Missouri when she came into the Union, and she put it into her constitution, not upon the idea that that was peculiarly the place, but for the express purpose of disarming her legislature. It was an ordinary legislative power, nothing else in the world; known and recognized as such and admitted as such by every State in the Union. New York abolished slavery by law, Pennsylvania abolished slavery by law, and in the States where the institution continued, it was fostered, protected, and recognized by ordinary acts of legislation.