Statute 1819, chapter 21, authorized the President to provide for the safe-keeping of slaves imported from Africa, and for their removal to their home in that land. Under this law, the President might have established a depot for slaves within the limits of our territories, on the gulf, or on the Mississippi.
By statute 1820, chapter 22, § 8, Congress established what has been called the Missouri compromise line, thereby expressly legislating on the subject of slavery. So of Texas. See Jo. Res. March 1, 1851.
By statute 1819, chapter 93, statute 1821, chapter 39, § 2, and statute 1822, chapter 13, § 9, Congress legislated on the subject of slavery in the Territory of Florida.
Does it not seem almost incredible that a defender and champion of slavery should deny the power of Congress to legislate on the subject of slavery in the territories? If Congress has no such power, by what right can a master recapture a fugitive slave escaping into a territory? The constitution says, “No person held to service, or labor, in one state, escaping into another,”—that is, another state,—“shall be discharged from such service, or labor,” &c. The act of 1793, chapter 7, § 3, provides that when a person held to labor, &c., “shall escape into any other of the said states, or territory,” he may be taken. By what other law than this can a runaway slave be retaken in a territory? If Congress has no power to legislate on the subject of slavery in any territory, then, surely, it cannot legislate for the capture of a fugitive slave in a territory. The argument cuts both ways. The knife wounds him who would use it to wound his fellow.
Further than this. If slavery is claimed to be one of the common subjects of legislation, then any legislation by Congress for the territories, on any of the common subjects of legislation, is a precedent, going to prove its right to legislate on slavery itself. If Congress may legislate on one subject belonging to a class, then it may legislate on any other subject belonging to the same class. Now, Congress has legislated for the territories on almost the whole circle of subjects belonging to common legislation. It has legislated on the elective franchise, on the pecuniary qualifications and residence of candidates for office, on the militia, on oaths, on the per diem and mileage of members, &c., &c. By statute 1811, chapter 21, § 3, authorizing the Territory of Orleans to form a constitution, it was provided that all legislative proceedings and judicial records should be kept and promulgated in the English language. Cannot Congress make provision for the rights of the people, as well as for the language in which the laws and records defining those rights shall be expressed? Any language is sweet to the ears of man which gives him the right of trial by jury, of habeas corpus, of religious freedom, and of life, limb, and liberty; but accursed is that language, and fit only for the realms below, which deprives an immortal being of the rights of intelligence and of freedom; of the right to himself, and the dearer rights of family.
But all this is by no means the strongest part of the evidence with which our statutes and judicial decisions abound, showing the power of Congress to legislate over territories. From the beginning, Congress has not only legislated over the territories, but it has appointed and controlled the agents of legislation.
The general structure of the legislature in several of the earlier territorial governments was this: It consisted of a governor and of two houses,—an upper and a lower. Without an exception, where a governor has been appointed, Congress has always reserved his appointment to itself, or to the President. The governor so appointed has always had a veto power over the two houses; and Congress has always reserved to itself, or to the President, a veto power, not only over him, but over him and both the houses besides. Congress has often interfered also with the appointment of the upper house, leaving only the lower house to be chosen exclusively by the people of the territory; and it has determined even for the lower house the qualifications both of electors and of elected. Further still: the power of removing the governor, at pleasure, has always been reserved to Congress, or to the President.
Look at this: Congress determines for the territory the qualifications of electors and elected,—at least in the first instance. No law of the territorial legislature is valid until approved by the governor. Though approved by the governor, it may be annulled by Congress, or by the President; and the governor is appointed, and may be removed at pleasure, by Congress or by the President.
To be more specific, I give the following outline of some of the territorial governments:—
Ohio Territory, statute 1789, chapter 8.—A governor for four years, nominated by the President, approved by the Senate, with power to appoint all subordinate civil and military officers.