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John A. (John Adams) Dix.

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the United States and Yucatan, — in the prosperity and
tranquillity of the one, and in the disorder and desola-
tion of the other. The law presides here in her majesty,
spreading her broad shield over all. Industry and the arts,
helpless infancy, decrepit age, life, liberty, property, all that
men possess, and cherish, and hold dear, are protected by
the power of a moral opinion, which lies at the foundation



308 SPEECHES IN THE SENATE.

of the established order of government and society, and up-
holds both. If we turn to our Central American neighbor,
the whole picture is reversed : law, order, tranquillity, the
friendly association of classes and castes, all have per-
ished; the moral and physical ties which render life desir-
able and human possessions secure have been forcibly rent
asunder ; towns and villages have been given to the flames,
and their wretched inhabitants to the sword; plantations
have been ravaged ; farm-houses sacked, demolished, burnt ;
property plundered where it could be carried away, and
destroyed where it could not ; men, women, and children,
driven from their homes, (if, indeed, they are so fortunate
as to escape the fury of their remorseless pursuers,) rush
to the sea, in the hope of finding some passing vessel which
may take them from the blackened and desolated land.

" Incendia fumant.

Muris nulla fides. Sqnalent populatibus agri,
Et medio spes sola mari." ....

Sir, this is a mere outline of the picture of devasta-
tion which Yucatan presents. I would not, if I could,
undertake to fill it up with its loathsome and revolting
details. I do not draw this sketch, imperfect as it is, for
the purpose of making an appeal to the sympathy of the
Senate. I only present it for the purpose of adding a final
remark.

If honorable Senators shall think with me that it is
our right and our duty to interpose ; if they shall con-
sent to act in the mode proposed by the bill, or in some
other mode, which may seem to them more free from objec-
tion ; if the effect of our interposition shall be to put an end
to this unnatural warfare, to restore peace to Yucatan, to
giv^e back her desolated fields and plains to industry and
order, and the dominion of law ; it will constitute, in the sight
of civilization and humanity, a far more ennobling triumph
than a dozen victories won for the extension of empire at
the point of the bayonet and the cannon's mouth.



A TERRITORIAL GOVERNMENT IN OREGON.

The bill establishing a territorial government in Oregon excluded
slavery, by declai'Ing to be valid and operative all laws then existing
in the territory. One of these laws expressly prohibited slavery and
involuntary servitude, otherwise than for the punishment of crimes
whereof the party should be duly convicted. Mr. Davis of Mississippi
had, before Mr. Dix's speech was delivered, offered an amendment pro-
viding that there should be no prohibition of domestic slavery while the
territory remained " in the condition of a territory of the United States."
Mr. Dix's speech was delivered on the 26th June, 1848, and the bill
was passed on the 12th of August ensuing, with the restrictions and
prohibitions of the ordinance of 1787, one of which was an express
exclusion of slavery.

Mr. President: During- the present session of Congress,
propositions have been repeatedly introduced into the Senate
involving the question of slavery. I have abstained from
all participation in the discussions to which they have given
rise, because I considered them as abstract propositions hav-
ing no direct practical bearing or effect. The measure before
us is of a different character. It contemplates an act of
legislation ; it proposes a law containing provisions to be
enforced and to control the inhabitants of a district of coun-
try more than two hundred thousand square miles in extent.
By this act we are literally laying- the foundations of a future
empire. It is a subject eminently practical ; and therefore
I speak.

The questions, to which the discussion of the bill has given
rise, are of the highest moment. They concern the power
of Congress over the territory belonging to the United
States, and especially in respect to slavery in such territory.
Nor is this all. They involve not only the authority of Con-



310 SPEECHES IN THE SENATE.

gress, under the Constitution, to regulate the domestic con-
cerns of the persons inhabiting or occupying the pubUc
domain beyond the hmits of the States, but they may affect
for an indefinite period the social and political condition of
entire communities. They may vitally concern the prosper-
ity of the future millions who are to fill the valleys and cover
the hills of Oregon ; and it is due to the magnitude of the
subject that it should be discussed with calmness and with-
out asperity either of feeling or of language. Conducted
in such a spirit, discussion, even if it were unnecessary,
could not do harm, however widely we may differ, or how-
ever delicate the questions with which it has to deal. Indeed,
it is always possible the very conflict of opinion may strike
out light and truth, and furnish a basis for an amicable
adjustment of differences, which would otherwise have been
irreconcilable. It may be a vain hope to expect to harmon-
ize those who are now so Avide apart ; but if it prove a
delusion, it may nevertheless be profitable to indulge it. It
may, at least, serve to moderate the tone of discussion.

In the course of the debate on this and other kindred
topics, various propositions have been advanced ; and they
have been sustained with distinguished ability. Some of
these propositions are repetitions of the same general assump-
tion under different phases. For instance, it has been as-
sumed that the citizens of any State in the Union have a
right to go into any territory belonging to the United States,
and take with them whatever is recognized as property by
the local law of the State from which they migrate. It is
also assumed that the inhabitants of a territory cannot, by
any legislative enactment, prevent the citizens of any State in
the Union from coming into the territory with whatever the
local law of such State recognizes as property. These are
little else than verbal modifications of the same proposition ;
or, at least, the one is a necessary consequence of the other.
On the other hand, it is contended that the inhabitants of a
territory belonging to the United States have an inherent



A TERRITORIAL GOVERNMENT IN OREGON. 31 1

riglit to regulate their own domestic concerns for themselves,
wherever the jurisdiction of the soil they inhabit may reside,
and without being overruled by the sovereign political power
to which they are subordinate.

There is a question which lies beyond all these proposi-
tions, and which, if it can be satisfactorily answered, must
be decisive of them all, because it includes them all. Has
Congress the right, under the Constitution, to legislate for
the territory of the United States, organize governments for
the inhabitants residing in such territory, and regulate within
it all matters of local and domestic concern 1 I believe this
question can be satisfactorily answered in the affirmative ;
that the power, to this unlimited extent, can be sustained:
1st, by contemporaneous exposition of the meaning of the
Constitution and the intention of its framers ; 2d, by judi-
cial interpretation ; and 8d, by the whole practice of the
government, from its foundation to the present day.

This is the fundamental question I propose first to discuss.
I shall lay aside all consideration of subordinate propositions.
These necessarily fall, if the other can be established. My
purpose is, to attempt to establish it ; and in all I have to
say I shall endeavor to be strictly argumentative.

The power of regulating all matters concerning the public
domain I think may fairly be considered a necessary incident
to the power of acquiring territory ; and this not only in
respect to the disposition which may be made of the naked
soil, as it has been denominated, but in respect to the classes
of persons who are permitted to occupy it, and the conditions
of the occupation. I consider this unrestricted power as an
inseparable incident of sovereignty, to be exercised by the
supreme authority of the organized community or state in
which it resides. The power of acquisition is itself unre-
stricted by the terms of our social compact, so far as the
objects of acquisition are concerned. It is incidental also.
It is derived from the power of making war and treaties ;
and the hmits to the exercise of these powers are to be found



312 SPEECHES IN THE SENATE.

in fundamental rules and principles applicable to all organized
societies.

But I do not, for the purposes of my argument, place the
power on this ground. I assign to it an origin less likely, I
think, to be questioned. I place it on that provision of the
Constitution which gives Congress " power to dispose of and
make all needful rules and regulations respecting the terri-
tory or other property belonging to the United States."

I am aware that this clause of the Constitution has recently
received a construction which confines the action of the
government in respect to the public domain to the narrowest
possible limits, — a construction which leaves to Congress the
mere right to regulate the mode in which the public land
shall be surveyed, brought into market, and sold, without
any power to regulate the political or municipal affairs of
those who settle upon it, while they are acquiring the requi-
sites usually exacted as conditions of their admission into
the Union. This construction is subversive of every idea
of sovereignty in the state (I use the word in its largest
sense) as the owner of the soil. It reduces the government
of the United States to the condition of a mere individual
proprietor of land, without a single attribute of political
power. Such a consequence could never have been contem-
plated by the framers of the Constitution as likely to be
drawn from the clause in question. On the contrary, I am
satisfied they regarded it as conferring a power of the most
plenary nature. I shall endeavor to make this apparent to
the Senate ; and in doing so it will be necessary to look at
the history of the clause of the Constitution referred to.

On the 18th of August, 1787, Mr. Madison introduced
into the Federal convention, then engaged in framing the
Constitution, a series of propositions, in order to be referred
to the Committee of Detail. Among them were these : To
authorize Confjress

" To dispose of the unappropriated lands of the United States.

" To institute temporary governments for new states arising therein."



A TERRITORIAL GOVERmiENT IN OREGON. $13

On the 22d of August, Mr. Rutledge, from the Com-
mittee of Detail, made a partial report on Mr. Madison's
propositions, and on others submitted by Mr. Pinekney on
the 20th. Mr. Madison's propositions, above quoted, pro-
viding for the disposal of the unappropriated lands and the
institution of temporary governments for new states aris-
ing therein, were not reported by the committee. But,
on the 30th of August, Mr. Gouverneur Morris introduced
the clause respecting the territory belonging to the United
States, which, with a few immaterial verbal alterations, is
now a part of the Constitution. After Mr. Luther Martin
had offered an amendment, which was rejected, the clause
was adopted, Maryland alone dissenting.

It may not distinctly appear at first glance what Mr.
Madison designed by the institution of temporary govern-
ments for " new states arising within " the unappropriated
lands. It might be supposed that he intended to provide
for their temporary government as states after their erection
or formation. But those who are familiar with the parlia-
mentary phraseology of that day, will have no doubt that
the term states was used as we now employ the term terri-
tories.

But be this so or not, it is certainly not fair to say, as has
been said, that it shared the fate of the proposition to confer
upon Congress the power to grant charters of incorporation,
to establish a university, and to construct canals, &c. These
propositions were distinctly presented to Congress, and for-
mally and decisively negatived by a direct recorded vote, as
may be seen by referring to the proceedings of the con-
vention on the l^th of September.

It was not so with Mr. Madison's proposition in respect
to the unappropriated lands of the United States. The most
that can be said is, that the committee were not in favor of
it in its original form. There was no vote on it in that form
in convention — no rejection. The proposition of Mr. Mor-
ris, which is now a part of the Constitution, was manifestly,

40



314 SPEECHES IN THE SENATE.

from its terms as well as the circumstances and the subject-
matter, intended as a substitute for it. It was adopted al-
most without opposition. The power it is construed to
confer has been exercised from the earliest period in our his-
tory. The attention of the convention was distinctly drawn
to the subject by Mr. Madison ; and it is difficult to believe
that an authority so general as that of making "all needful
rules and regulations" respecting the territory belonging to
the United States (the term regulations being used at that
time much as we now use the term laws) could have been
confeiied, without question, if it had been intended to with-
hold the power of providing for the government of the
individuals inhabiting it until they were admitted into the
Union.

On the 13th of July preceding, the Congress of the
Confederation had passed the celebrated ordinance of 1787?
in relation to the territory northwest of the Ohio river.
This fact could hardly have been unknown to the members
of the convention. Congress, it is true, was sitting in
New York, while the convention sat in Philadelphia. I
believe the proceedings of both were with closed doors ; but
the members of the latter were doubtless made acquainted
with the proceedings of the other. This fact — the coin-
cidence in point of time — may have some slight bearing
upon the intention of the clause giving Congress power
to dispose of and make needful rules and regulations respect-
ing the territory belonging to the United States.

The opinion of Mr. Madison has been quoted to prove
the illegality of the ordinance of 1787- This being con-
ceded, it cannot by any supposed consequence or analogy
have any bearing on the power of legislation by Congress,
under the Constitution, in respect to the prohibition of
slavery in the territories of the United States. The ordi-
nance, as we know, was passed by Congress under the
articles of confederation, though it was ratified by the first
Congress which assembled under the Constitution. Any



A TERRITORIAL GOVERNMENT IN OREGON. 315

inference from the proceedings of the one, so far as the ques-
tion of power is concerned, would be wholly inapplicable to
the other. But I hold, and shall endeavor to show, that the
very argument in which Mr. Madison denied the authority
of Congress, under the articles of confederation, to pass the
ordinance of 1787, had for its object to prove the necessity
of such a power in Congress under the Constitution, and that
it proceeded upon the supposed existence of the power.

The usual reference to prove the illegality of the ordinance
is to the opinion of Mr. Madison, in the S8th number of
the " Federalist," which was written by him. I will read
an extract from it referring to the Western territory.

" We may calculate, therefore, that a rich and fertile country, of an
area equal to the inhabited extent of the United States, will soon
become a national stock. They have begun to render it productive.
Congress have undertaken to do more : they have proceeded to form
new vStates ; to erect temporary governments ; to appoint officers for
them ; and to prescribe the conditions on which such States shall be
admitted into the Confederacy. All this has been done, and done with-
out the least color of constitutional authority."

What was the object of this reference 1 Was it to pass
a useless comment upon the conduct of Congress in exceed-
ing its powers ^ By no means. He adds : —

" I mean not by anything here said to throw censure on the measures
pursued by Congress. I am sensible they could not have done other-
wise. The public interest, the necessity of the case, imposed upon them
the task of overleaping their constitutional limits. But is not the fact
an alarming proof of the danger resulting from a government which
does not possess regular powers commensurate to its objects ? "

The whole article, taken together, and not judged by a
single extract, appears to me to lead almost irresistibly to
the conclusion that Mr. Madison regarded the new system
of government, the Constitution, as supplying defects which
had led to abuse and usurpation under the old, the Confed-
eration ; that he considered the former as remedying the very
defects which had imposed on Congress the necessity of
overleaping the constitutional limits of their power ; that he



316 SPEECHES IN THE SENATE.

viewed the provision of the Constitution authorizing Con-
gress " to dispose of, and make all needful rules and reg-
ulations respecting, the territory " of the United States, as
conferring the power which, in his opinion, Congress had
usurped, and as giving legality, under the Constitution, to
proceedings which he condemned, under the Confederation,
as void of constitutional authority.

Happily, sir, we are not left to mere inference in respect
to the opinions of Mr. Madison on this point. If we turn
to the 4Sd number of the " Federalist," also written by him,
we shall find a direct reference to the clause in the Consti-
tution concerning the territory of the United States. If
there were any doubt before, I think this would dissipate it.
He is speaking of certain powers conferred on Congress by
the Constitution. He says : " The eventual establishment
of new states seems to have been overlooked by the com-
pilers of that instrument [Articles of Confederation]. We
have seen the inconvenience of this omission, and the as-
sumption of power into which Congress have been led by
it. With great propriety, therefore, has the new system
supplied the defect."

He next quotes the clause giving Congress " power to
dispose of, and make all needful rules and regulations re-
specting, the territory " of the United States ; and adds,
" This is a power of very great importance, and required
by considerations similar to those which show the propriety
of the former." By the former, is meant the power of
admitting new states into the Union, — a power which he
had adverted to as supplying a defect in the Articles of Con-
federation, and as avoiding the evil of usurping the exercise
of an indispensable authority. Would he have denominated
it a " power of very great importance," if he had regarded
it as limited to a mere sale of the public lands 1 Would
he have said that it was " required by considerations similar
to those which show the propriety of the former," — the
admission of new states, — unless he had considered it as



A TERRITORIAL GOVERNMENT IN OREGON. Sl'T

having- " supplied a defect," as in the other case to which
he had referred, and empowered Congress to do what it had
done in respect to the Northwestern territory without au-
thority 1 There were other territories beside that northwest
of the Ohio to be provided for. South Carolina had at that
very time ceded to the United States her interest in the
territory east of the Mississippi, now comprised in the
States of Mississippi and Alabama; North Carolina and
Georgia were expected to cede what now constitutes Ten-
nessee, and the residue of Mississippi and Alabama. Mr.
Madison, in the 38th number of the " Federalist," written a
year after the ordinance of 1787 was adopted, obviously
alludes to those two last cessions as reasonably to be ex-
pected. How were these territories, and that which South
Carolina had ceded, to be provided for ; how were tempo-
rary governments to be erected ; how were officers to be
appointed for them ; how was the authority of the United
States to be extended over them 1 Was it not under the
clause of the Constitution authorizing " all needful rules and
regulations " to be made 1 Was it not in contemplation of
these organic arrangements for the communities which were
to arise within the territory then acquired, and expected to
be acquired, that Mr. Madison pronounced that clause as
conferring " a power of very great importance " ?

The reasonings contained in these two numbers of the
" Federalist," (the 38th and the 43d,) are directly connected
by Mr. Madison himself; and when considered in conjunction
with his subsequent participation in legislative acts, by which
the ordinance of 1787 was enforced and similar provisions
applied to other portions of the public domain, his interpreta-
tion of the Constitution, in respect to the powers of Congress
over the territory of the United States, cannot well be
doubted. But if any lingering doubt should remain in re-
spect to Mr. Madison's opinion as to the right of Congress
to regulate municipal concerns of the persons residing upon
the territory belonging to the United States, it will be re-



318 SPEECHES IN THE SENATE.

moved by his declaration in Congress in 1790, that, though
Congress was restricted by the Constitution from taking
measures to abohsh the slave-trade, yet there was a variety
of ways in which it could countenance abolition, "and regu-
lations might be made in relation to the introduction of them
[slaves] into the new States to be formed out of the western
territory."

I have been thus particular in explaining Mr. Madison's
opinion, not only on account of the high authority which it
carries with it, but because, from the manner in which it
has been cited, it might seem to support conclusions which,
in my judgment, derive no strength from it whatever.

Let me now call the attention of the Senate to the acts
of Congress by which this construction of the Constitution
is supported, for the purpose of exhibiting the force it de-
rives from legislative precedents.

I. The ordinance of 1787 was recognized by chapter 8,
1st session. 1st Congress. The preamble recites that " it is
requisite certain provisions should be made," &c., in order
that the said ordinance " may continue to have full effect."
There was no division in either House upon its passage.
There seems to have been no objectioh to it. Mr. Madison's
name occurs on the Journal of the proceedings of the day
on which the bill passed the House, of which he was a
member. He was doubtless present, and concurred in the
measure.

This first precedent which I cite, has all the force of con-
temporaneous exposition. It is coeval with the birth of the
new government. It may almost be denominated the work
of the framers of the Constitution. It is recorded among
the earliest acts by which that instrument was put in opera-
tion. It is one of the first footsteps by which the movement
of the new government is to be traced out of the darkness
in which its dawn was enveloped, into the clear, broad sun-
light of its stability and strength. The act was signed by
General Washington.



A TERRITORIAL GOVERmiENT IN OREGON. 31 9

That the ordinance was not deemed hy its framers, or by
the Congress which continued it in force, incompatible with
any degree of freedom from restraint, which may be justly
claimed as essential to political liberty, is apparent from the
terms of the instrument itself. The articles, of which the
sixth and last prohibited slavery, were expressly declared
to be adopted, " for extending the fundamental principles of
civil and religious liberty, which form the basis whereon
these republics, their laws and constitutions, are erected ;
to fix and establish those principles as the basis of all laws,
constitutions, and governments, which forever hereafter shall
be formed in the said Territory ; to provide also for the
establishment of States, and permanent government therein,
and for their admission to a share in the Federal councils
on an equal footing with the original States, at as early
periods as may be consistent with the general interest."

Several considerations suggest themselves in connection
with this subject.

1. Neither the framers of the ordinance nor the first
Congress considered the perpetual prohibition of slavery in
the Northwestern territory inconsistent with the admission



Online LibraryJohn A. (John Adams) DixSpeeches and occasional addresses (Volume 1) → online text (page 28 of 40)