A "Territory," viewed in connection with the political system of the United States, must be confessed to be a somewhat erratic and embarrassing member. Few or no specific provisions are made for it in the Organic Law, which applies primarily, and quite exclusively, to "States." The word is mentioned there but once,—in the clause empowering Congress to "make all needful rules and regulations respecting the territory or other property belonging to the United States,"—and here it occurs in a somewhat doubtful sense. Judging by the mere letter or obvious import of the Constitution, the right of acquiring and governing territory would seem to be a casus omissus, or a power overlooked. Accordingly, Mr. Webster went so far as to assert that the framers of it never contemplated its extension beyond the original limits of the country;[A] but this we can scarcely believe of men so far-seeing and sagacious. It were a better opinion, which Mr. Benton has recently urged, that the acquisition and control of territories are necessary incidents of the sovereign and proprietary character of the government created by the Constitution.[B] But be this as it may, whatever the theoretic origin of the right to acquire territory,—whatever the origin of the right to govern it,—whether the former be derived from the war-making power, which implies conquest, or from the treaty-making power, which implies purchase,—and whether the latter be derived from an express grant or is involved as necessary to the execution of other grants, both questions were definitively settled by long and universally accepted practice. Under the actual legislation of Congress, running over a period of sixty years,—a legislation sanctioned by all administrations, by all departments of the government, by all the authorities of the individual States, by all statesmen of all parties, and by frequent popular recognitions,—prescription has taken the force of law, and that which might once be theoretically doubtful became forever practically valid and legitimate.
[Footnote A: Works, Vol. V. p. 306.]
[Footnote B: See his late pamphlet on the Dred Scott decision, which we may say, without adopting its conclusions, every statesman ought to read.]
It was not till within the last few years that the right of Congress over the Territories was questioned. Certain classes of politicians then discovered that the whole of our past statesmanship had been a mistake, and that the time had come to propound a new doctrine. No! they said, it is not Congress, not the Federal Government, which is entitled to govern the Territories, but the Territories themselves,—which means the handful of their original occupants. The real sovereignty resides in the squatters, and Squatter Sovereignty is the charm which dispels all difficulties. Alas! it was rather like the ingredients mingled by Macbeth's hags, only "a charm of powerful trouble." Overlooking the fact that the Territories were Territories precisely because they were not States, this absurd theory proposed to confer the highest character of an organized political existence upon a society wholly inchoate. As land, the Territories were the property of the United States, to be disposed of and regulated by the will of Congress; as collections of men, they were yet immature communities, having in reality no social being, and in that light also wisely and benevolently subjected to the will of Congress; but Squatter Sovereignty elevated them, willy nilly, to an independent self-subsistence. They were declared full-formed and fledged before they were out of the shell. A mere conglomeration of emigrants, Indian traders, and half-breeds was invested with all the functions of a mature and ripened civilization. Long ere there were people enough in any Territory to furnish the officers of a regular government,—before they possessed any of the apparatus of court-houses, jails, legislative chambers, etc., essential to a regular government,—before they lived near enough to each other, in fact, to constitute a respectable town-meeting,—before they could pay the expenses or gather the means of their own defence from the Indians, these wonderful entities were held to be endowed with the right of entering into the most complicated relations and of forming the most important institutions for themselves,—and not only for themselves, but for their posterity.
This puerile dogma was asserted ostensibly in the interest of Slavery, in order to get rid of the power of Congress over that subject; but the real source of it was the cowardice of those invertebrate and timorous politicians who desired to evade the responsibility of expressing opinions concerning this power. General Cass was the putative father of it, and it might well have come from one of his pliancy and calibre; but as Slavery itself, embodied in the person of Calhoun, scouted the feeble bantling, there was soon no one so mean as to confess the paternity. Abandoned of its begetters, Squatter Sovereignty wandered the streets like a squalid and orphaned outcast, begging anybody and everybody to take it in, and finding no creditable welcome anywhere.
Calhoun and his friends, no less anxious than Cass and his friends to rescue Slavery from the discretion of Congress, though for other reasons, contrived to find a more respectable excuse for such a policy. As California and New Mexico—both free soil—had lately been acquired, they contended that the moment new territories attached to the United States, the same moment the Constitution attached to them; and inasmuch as the Constitution guarantied the existence of Slavery, presto, Slavery must be regarded as existing under it in the Territories! This, we say, was more respectable ground than Squatter Sovereignty, because it met the question more fairly in the face; yet, considered either as dialectics or history, it was not one whit less absurd. We do not wonder that Webster, and all the other sound lawyers of the nation, heard such an announcement of Constitutional hermeneutics with utter surprise and astonishment. It was enough to astound even the veriest tyro in the law. The Constitution—and especially by all the premises of the State-Rights school—is a mere compact between the States; it confers no powers but delegated and enumerated powers, and such as are indispensable to the execution of these; and nowhere is there a clause or letter in it extending its operation beyond the States. Even in respect to acknowledged powers, these are inoperative until carried into effect by a special act of Congress; they have no vitality in themselves,—they are only dead provisions or forms till Congress has breathed into them the breath of life; and thence to argue that of their own energy they may leap into or embrace the Territories is to argue that a corpse may on its own motion rise and walk.
But granting this caoutchouc property, this migratory power, in the Constitution, the inference that it would take Slavery with it is a still more monstrous error than the original premises. Slavery as such is not recognized or guarantied by the Federal Constitution. Whatever the five slave-holding judges of the Supreme Court may seek to maintain, they cannot upset the universal logic of the law, nor extinguish the fundamental principles of our political system. Slavery exists only by the local or municipal usage of the States in which it exists; it is there universally defined as a right of property in man; whereas the Constitution of the United States, in all its prohibitions and provisions, designates and acts upon human beings only as persons. Whatever their characters or relations under the laws of the States, they are, under the Federal Constitution, MEN. Nowhere in that immortal paper is there an iota or tittle which gives countenance to the idea that human beings may be held as property. It speaks of "persons held to service or labor," as apprentices, for instance,—and of persons other than free, i.e. not politically citizens, as Indians and some negroes; but it does not speak of Slaves or of Slavery; on the contrary, in every part, it legislates for men solely as men. The laws of each State, and the relations of the various inhabitants of each State, it of course recognizes as valid within each State; but it recognizes them as resting exclusively on the municipal authority of the State, and not on its own authority. Against nothing did the framers of the Constitution more strenuously contend than against the admission of any phrase sanctioning the tenure of man as property. They refused even to allow of the use of the word servitude, so much did they hate the thing; and Madison expressed their almost unanimous sentiment when he exclaimed, "We intend this Constitution to be THE GREAT CHARTER OF HUMAN LIBERTY to the unborn millions who shall yet enjoy its protection, and who should not see that such an institution as Slavery was ever known in our midst." In that spirit was the instrument framed, and in that spirit was it administered, while its framers lived.
Nevertheless, under the twofold pretence we have cited,—the one reconciling the conscience with the cowardice of the North, and the other conceding the arrogant pretensions of the South,—the negation of the power of the central government over Slavery was carried into effect. By a legislative hocus-pocus, known as the Compromise Measures of 1850, Congress, contrary to the uniform tendency of bodies entrusted with a discretion, vacated instead of enlarging its powers. Its sovereign function of territorial legislation was abdicated, in favor of that wretched and ragged pretender, Squatter Sovereignty; and silly or misguided people everywhere, who professed to regard as dangerous that political excitement and agitation which are the life of republics, hailed the accession of King Log as a glorious triumph of legitimacy. In the remanding of a delicate question from the central to a local jurisdiction, in the conversion of a general into a topical inflammation, they affected to see an end of the difficulty, a cure to the disease. But no expectation could have been less wise. It was a transfer, and a possible postponement, but not a settlement of the trouble. Had they looked deeper, they would have discerned that the dispute in regard to Slavery is involved in the very structure of our government, which links two incompatible civilizations under the same head, which compels a struggle for political power between the diverse elements by the terms and conditions of their union, and which, if the contest is suppressed at one time or place, forces it to break out at another, and will force it to break out incessantly, until either Freedom or Slavery has achieved a decisive triumph.
The principle of the non-interference of Congress with the Territories once secured, there yet stood in the way of its universal application the time-honored agreement called the Missouri Compromise. Down to the year 1820, Congress had legislated to keep Slavery out of the Territories; but at that disastrous era, a weak dread of civil convulsion led to the surrender of a single State (Missouri) to this evil,—under a solemn stipulation and warrant, however, that it should never again be introduced north of a certain line. Originating with the Slave-holders, and sustained by the Slave-holders, this compact was sacredly respected by them for thirty-three years; it was respected until they had got out of it all the advantages they could, and until Freedom was about to reap her advantages,—when they began to denounce it as unconstitutional and void. A Northern Senator—whose conduct then we shall not characterize, as he seems now to be growing weary of the hard service into which he entered—was made the instrument of its overthrow. That hallowed landmark, which had lifted its awful front against the spread of Slavery for more than an entire generation, was obliterated by a quibble, and the morning sun of the 22d of May, 1854, rose for the last time "on the guarantied and certain liberties of all the unsettled and unorganized region of the American Continent." Everything there was of honor, of justice, of the love of truth and liberty, in the heart of the nation, was smitten by this painful blow; the common sense of security felt the wound; the consoling consciousness that the faith of men might be relied upon was removed by it; and to the general imagination, in fact, it seemed as if some mighty charm, which had stayed the issue of untold calamities, were suddenly and wantonly broken.
Thus, after the Constitution had been perverted in its fundamental character,—after Congress had been despoiled of one of its most important functions,—after a compact, made sacred by the faith, the feelings, and the hopes of the third of a century, was torn in pieces,—the road was clear for the organization of the Kansas and Nebraska Territories. It was given out, amid jubilations which could not have been louder, if they had been the spontaneous greetings of some real triumph of principle, that henceforth and forever the inhabitants of the Territories would be called to determine their "domestic institutions" for themselves. Under this theory, and amid these shouts, Kansas was opened for settlement; and it was scarcely opened, before it became, as might have been expected, the battleground for the opposing civilizations of the Union, to renew and fight out their long quarrel upon. From every quarter of the land settlers rushed thither, to take part in the wager of battle. They rushed thither, as individuals and as associations, as Yankees and as Corn-crackers, as Blue Lodges and as Emigrant Aid Societies; and most of them went, not only as it was their right, but as it was their duty to do. Congress had invited them in; it had abandoned legitimate legislation in order to substitute for it a scramble between the first comers; and it had said to every man who knew that Slavery was more than a simple local interest, that it was in fact an element of the general political power, "Come and decide the issue here!"