The Life of Jefferson Davis

by Frank H. Alfriend

The Senator from Illinois assumes that the congressional acts of 1850 meant no legislation in relation to slave property; while, in the face of that declaration, stand the laws enacted in that year, and the promise of another, which has not been enacted—laws directed to the question of slavery and slave property; one even declaring, in certain contingencies, as a penalty on the owner, the emancipation of his slave in the District of Columbia. If no action upon the question was the prevailing opinion, what does the legislation mean? Was it non-action in the District of Columbia? Be it remembered, the resolution of the Cincinnati platform says, “Non-interference, by Congress, with slavery in State and Territory, or in the District of Columbia.” They are all upon the same footing.

Again, he said that the Badger amendment was a declaration of no protection to slave property. The Badger amendment declares that the repeal of the Missouri Compromise shall not revive the laws or usages which preëxisted that compromise; and the history of the times, so far as I understand it, is, that it intended to assure those gentlemen who feared that the laws of France would be revived in the Territories of Kansas and Nebraska, by the repeal of the act of 1820, and that they would be held responsible for having, by congressional act, established slavery. The Southern men did not desire Congress to establish slavery. It has been our uniform declaration that we denied the power of the Federal Government either to establish or prohibit it; that we claimed for it protection as property recognized by the Constitution, and we claimed the right for it, as property, to go, and to receive federal protection wherever the jurisdiction of the United States is exclusive. We claim that the Constitution of the United States, in recognizing this property, making it the basis of representation, put it, not upon the footing which it holds between foreign nations, but upon the basis of the compact or union of the States; that, under the delegated grant to regulate commerce between the States, it did not belong to a State; therefore, without breach of contract, they can not, by any regulation, prohibit transit, and the compact provided that they should not change the character of master and slave in the case of a fugitive. Could Congress surrender, for the States and their citizens, the claim and protection for those or other constitutional rights, against invasion by a State? If not, surely it can not be done in the case of a Territory, a possession of the States. The word “protecting,” in that amendment, referred to laws which preëxisted—laws which it was not designed, by the Democrats, to revive when they declared the repeal of the Missouri Compromise; and, therefore, I think, did not affect the question of constitutional right and of federal power and duty.

In all these territorial bills we have the language “subject to the Constitution;” that is to say, that the inhabitants are to manage their local affairs in their own way, subject to the Constitution; which, I suppose, might be rendered thus: “In their own way, provided their own way shall be somebody else’s way;” for “subject to the Constitution” means, in accordance with an instrument with which the territorial inhabitants had nothing to do; with the construction of which they were not concerned; in the adoption of which they had no part, and in relation to which it has sometimes been questioned whether they had any responsibility. My own views, as the Senator is aware from previous discussions, (and it is needless to repeat,) are that the Constitution is co-extensive with the United States; that the designation includes the Territories, that they are necessarily subject to the Constitution. But if they be subject to the Constitution, and subject to the organic act, that is the language used; that organic act being the law of Congress, that Constitution being the compact of the States—the territorial inhabitants having no lot or part in one or the other, save as they are imposed upon them—where is their claim to sovereignty? Where is their right to do as they please? The States have a compact, and the agent of the States gives to the Territories a species of constitution in the organic act, which endures and binds them until they throw off what the Senator on another occasion termed the minority condition, and assume the majority condition as a State. The remark to which I refer was on the bill to admit Iowa and Florida into the Union. The Senator then said:

“The father may bind the son during his minority, but the moment that he (the son) attains his majority, his fetters are severed, and he is free to regulate his own conduct. So, sir, with the Territories; they are subject to the jurisdiction and control of Congress during infancy, their minority; but when they attain their majority, and obtain admission into the Union, they are free from all restraints and restrictions, except such as the Constitution of the United States imposes upon each and all of the States.”

This was the doctrine of territorial sovereignty—perhaps that is the phrase—at that period. At a later period, in March, 1856, the Senator said:

“The sovereignty of a Territory remains in abeyance, suspended in the United States in trust for the people, until they shall be admitted into the Union as a State. In the meantime, they are admitted to enjoy and exercise all the rights and privileges of self-government, in subordination to the Constitution of the United States, and in obedience to the organic law passed by Congress in pursuance of that instrument.”

If it be admitted—and I believe there is no issue between the Senator and myself on that point—that the Congress of the United States have no right to pass a law excluding slaves from a Territory, or determining in the Territory the relation of master and slave, of parent and child, of guardian and ward; that they have no right anywhere to decide what is property, but are only bound to protect such rights as preëxisted the formation of the Union—to perform such functions as are intrusted to them as the agent of the States—then how can Congress, thus fettered, confer upon a corporation of its creation—upon a territorial legislature, by an organic act, a power to determine what shall be property within the limits of such Territory?

But, again, if it were admitted that the territorial inhabitants did possess this sovereignty: that they had the right to do as they pleased on all subjects, then would arise the question, if they were authorized, through their representatives, thus to act, whence came the opposition to what was called the Lecompton Constitution? How did Congress, under this state of facts, get the right to inquire whether those representatives in that case really expressed the will of the people. Still more; how did Congress get the right to decide that those representatives must submit their action to a popular vote in a manner not prescribed by the people of the Territory, however eminently it may have been advisable, convenient, and proper in the judgment of the Congress of the United States? What revisory function had we, if they, through their representatives, had full power to act on all such subjects whatsoever?

I have necessarily, in answering the Senator, gone somewhat into the argumentum ad hominem. Though it is not entirely exhausted, I think enough has been said to show the Senate in what the difference between us consists. If it be necessary further to illustrate it, I might ask how did he propose to annul the organic act for Utah, if the recognition by the Congress of a sufficient number of inhabitants to justify the organization of a territorial government transferred the sovereignty to the inhabitants of the Territory? If sovereignty passed by the recognition of the fact, how did he propose, by congressional act, to annul the territorial existence of Utah?

It is this confusion of ideas, it is this confounding of terms, this changing of language, this applying of new meanings to words, out of which, I think, a large portion of the dispute arises. For instance, it is claimed that President Pierce, in using the phrase “existing and incipient States,” meant to include all Territories, and thus that he had bound me to a doctrine which precluded my strictures on what I termed squatter sovereignty. This all arises from the misuse of language. An incipient State, according to my idea, is the territorial condition at the moment it changes into that of a State. It is when the people assemble in convention to form a constitution as a State, that they are in the condition of an incipient State. Various names were applied to the Territories at an earlier period. Sometimes they were called “new States,” because they were expected to be States; sometimes they were called “States in embryo,” and it requires a determination of the language that is employed before it is possible to arrive at any conclusion as to the differences of understanding between gentlemen. Therefore, it was, and, I think, very properly, (but not, as the Senator supposed, to catechise him,) that I asked him what he meant by non-intervention, before I commenced these remarks.