From the terms of this act, and especially of the second section, it is seen that the Spanish system of government was continued in the ceded territory after it became the property of the United States, and that the military, the civil, and judicial powers of the Spanish Intendants (for France never took possession of the country except to deliver it to the United States), were transferred by law to such persons as the President should appoint. The powers of the Spanish Intendants, as all know, were an emanation of the despotic power of the kings of Spain, and wholly incompatible with our constitution—a very clear declaration of Congress that the constitution did not extend to the territory, and that its inhabitants could claim no rights under it: and this declaration was in consonance with all the previous acts for the government of territories, all of which were inconsistent with the constitution.
[4] The practice of pronouncing eulogiums on deceased members, adjourning the two houses, and attending the funeral in procession, had not then been adopted. A mourning for thirty days (which was the length of time which the children of Israel wept for the death of Moses in the Valley of Moab), was the simple and expressive sign of respect.
[5] The following is the act:
That the act of Congress passed on the fourth of April, one thousand eight hundred, entitled “An act to establish a uniform system of Bankruptcy throughout the United States,” shall be, and the same is hereby, repealed: Provided, nevertheless, That the repeal of the said act shall in no wise affect the execution of any commission of bankruptcy which may have been issued prior to the passing of this act, but every such commission may and shall be proceeded on and fully executed as though this act had not passed.
[6] This act, as passed, asserted full power in Congress to legislate upon slavery in the Territories without regard to the constitution, or any of its provisions in relation to the States, or the rights of the States within themselves, or between each other. Thus: 1. It prohibited the foreign importation of slaves into the Territory at once, which, with respect to a State, could not be done before 1808. 2. It prohibited the domestic importation of any slave into the Territory which had been imported from abroad since the year 1798. 3. It prohibited the carrying of any slave whatever into the Territory, except by a citizen of the United States removing into it for actual settlement, and being at the time the bona fide owner of such slave. These were three provisions which could not be adopted towards the States; and for their violation a fine was incurred by the importer, and freedom attached to the slave—penalties which Congress could prescribe within no State.
The following is the section containing these prohibitions and penalties:
“Sec. 10. It shall not be lawful for any person or persons to import or bring into the said Territory, from any port or place without the limits of the United States, or cause or procure to be so imported or brought, or knowingly to aid or assist in importing or bringing any slave or slaves. And every person so offending, and being thereof convicted before any court within said Territory, having competent jurisdiction, shall forfeit and pay for each and every slave so imported or brought, the sum of three hundred dollars; one moiety for the use of the United States, and the other moiety for the use of the person or persons who shall sue for the same; and every slave so imported or brought, shall thereupon become entitled to and receive his or her freedom. It shall not be lawful for any person or persons to import or bring into the said Territory, from any port or place within the limits of the United States, or to cause or procure to be so imported or brought, or knowingly to aid or assist in so importing or bringing any slave or slaves, which shall have been imported since the first day of May, one thousand seven hundred and ninety-eight, into any port or place within the limits of the United States, or which may hereafter be so imported from any port or place without the limits of the United States; and every person so offending and being thereof convicted before any court within said Territory, having competent jurisdiction, shall forfeit and pay for each and every slave so imported or brought from without the United States, the sum of three hundred dollars, one moiety for the use of the United States, and the other moiety for the use of the person or persons who shall sue for the same; and no slave or slaves shall directly or indirectly be introduced into said Territory, except by a citizen of the United States removing into said Territory for actual settlement, and being at the time of such removal bona fide owner of such slave or slaves; and every slave imported or brought into the said Territory, contrary to the provisions of this act, shall thereupon be entitled to, and receive his or her freedom.”
This section applied to Lower Louisiana, called the Territory of Orleans. No provision on the subject of slavery was made in the act for the government of Upper Louisiana, afterwards called the Territory of Missouri. And thus, by legislating fully on the subject in one Territory, and not at all in the other, Congress asserted its right to do as it pleased with slavery in such places, uncontrolled by any power but its own will.
[7] At the time of passing the second bankrupt act in 1841—that is to say, after the lapse of forty years—it was shown that there was still property of bankrupts in the hands of assignees, the estate being so administered as to pay expenses, yielding nothing to the creditors, and leaving nothing to the debtors.
[8] There are three grades of Territorial government, all based upon the idea of pupillage in the Territory, and of sovereignty and guardianship in the Federal Government. The first grade, as in the case of mere children, allowed the inhabitants no voice in their own government: a Governor and Judges, appointed by the Federal Government, adopted laws from the codes of the States, and executed them. The second grade, as in the case of children advancing towards the years of discretion, (to whom a father allows some latitude of will,) admitted the inhabitants to some share in their government, by giving them a Council composed of their own citizens, (but appointed by the President,) to act with the Judges in adopting the laws. The third grade, as in the case of children arrived at the years of discretion, but not yet of full age, allowed them a Territorial Legislature, consisting of a House of Representatives, elected by themselves, a Council appointed by the President, and liberty to originate and enact laws; but all their acts as in those of the two other grades, subject to the approbation of Congress. From this grade the Territory, on attaining the population which would give a right to one Representative in Congress, would pass into the class of States, on an equal footing in all respects with the other States, and entitled of right to all the benefits of the federal constitution. Before this transition, the Territories had no rights under the constitution. They were governed independently of the constitution, and contrary to it. They had no benefits from it, except such as Congress, in its discretion, chose to extend to them. They were governed as property: the soil, as a sovereign owner would govern his property; the inhabitants, as a father would take care of his children, looking to their ultimate equality with himself, and preparing them to enjoy that equality as soon as prepared for it. It was this graduated form of Territorial government, in its three regular degrees, to which Mr. Macon was so much attached. It was devised by the “Old Congress,” as he called it—the Congress of the confederation—and received its features from the organizing mind of Mr. Jefferson when he was a member of that Congress in 1784. Neither under the Articles of the Confederation, nor under the Federal Constitution, had the Territories had any rights: they were governed as property according to the will of Congress, uncontrolled by any authority, except the limitations and conditions expressed in the deeds of cession from the States, or in the treaties with foreign powers by which they were ceded. All this is abundantly evident in all the legislation of Congress upon the subject, and in none more so than in the government of Lower Louisiana.