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would be entitled to great weight in its construction. The truly
exalted sentiment expressed by the founders of the government
in regard to slavery, and their unremitted efforts to bring its exist-
ence in the United States, as far as practicable, into harmony with
the spirit of the .Revolution, have been justly described in the
admirable Address of the recent Democratic State Convention. As
there was no practicable way to remove it altogether, they endeav-
ored to accomplish their object by measures which secured the
amelioration of its condition, and the prevention of its increase
by importation and its spread into territories which it had not yet
reached. In these patriotic and philanthropic efforts, the truth of
history attests that the statesmen of the South were, as it was
obviously proper that they should be, the most efficient ; and
among them those of Virginia were pre-eminently so. Nor is it
by any means a forced inference that the very extraordinary
political precedence which has ever since been awarded to the
statesmen of Virginia, not only by their contemporaries of the
South, but of the whole Union, is in no small degree to be at-
tributed to their early, able, enlightened, and consistent advocacy
of this noble project. We might fill a volume with the exhibi-
tions of these feelings on their part, but we have only space for
a few.

The Father of his Country, who was President of the Conven-
tion, in a letter to Kobert Morris, says :

1 ' I can only say there is not a man living who wishes more sincerely
than I do to see a plan adopted for the abolition of it [slavery]. But there
is only one proper and effectual mode by which it can be accomplished,
and that is by the legislative authority; and this, so far as my suffrage
will go, shall not be wanting."

Mr. Jefferson, although not a member of the Convention,
exerted at the time an influence over public opinion scarcely
second to that of Washington, and like that statesman, though a
planter and a slaveholder, never forgot that he was a philanthropist
and patriot. In his original draft of the Declaration of Independ-
ence, when denouncing the King of Great Britain for the encour-
agement he had given the slave-trade, Mr. Jefferson, among other
equally severe invectives, charges him with having " waged a cruel
war against human nature itself, violating its most sacred rights of
life and liberty in the persons of a distant people who never offended
him." "This piratical warfare/' he said, "the opprobrium of in-
fidel Powers, is the warfare of the Christian King of Great Britain,
determined to keep up a market where men should be bought and



1848.] THE FIRST GUN FOR FREE SOIL. 549

sold ; he has prostituted his negative for suppressing any legisla-
tive attempt to restrain this execrable traffic."
Patrick Henry said :

"I believe a time will come when an opportunity will be offered to
abolish this lamentable evil. Everything we can do is to improve it if it
happens in our day ; if not, let us transmit to our descendants, together
with our slaves, a pity for their unhappy lot and our abhorrence of slavery."

Mr. Madison, speaking in one of the numbers of the " Federalist >3
of the restriction upon the power of Congress, says :



u



It were doubtless to be wished that the power to prohibit the impor-
tation of slaves had not been postponed until 1808, or rather that it had
been suffered to have immediate operation. But it is not difficult to
account either for the restriction on the General Government, or for the
manner in which the whole clause was expressed. It ought, however, to
be considered a great point gained in favor of humanity that a period of
twenty years may terminate forever within these States a traffic which has
so long and so loudly upbraided the barbarism of modern policy ; that
within that period it will receive a considerable discouragement from the
Federal Government."

Mr. Monroe said :



" We have found that this evil has preyed upon the very vitals of the
Union, and has been prejudicial to all the States in which it has existed."



George Mason, speaking of the slave-trade, said in the Virginia
Convention :

"Under the Royal Government this evil was looked upon as a great
oppression, and many attempts were made to prevent it ; but the interests
of the African merchants prevented its prohibition. No sooner did the
Revolution take place than it was thought of. It was one of the great
causes of our separation from Great Britain. Its exclusion has been a
principal object of this State, and most of the States of the Union. . . .
As much as I value the Union of the States, I would not admit the Southern
States into this Union unless they agreed to the discontinuance of this
disgraceful trade, because it would bring weakness, and not strength, into
the Union."

It was under the prevalence of such feeling at the South, and
with but one sentiment on the part of the Northern members as
well in Congress as the Convention, with the venerable Franklin
at the head, that the exclusion of slaves, in the language of Mr.
Jefferson's particular friend and confidant, George Mason, was
immediately "thought of at the close of the Revolution." The
cession of their unsettled lands to the Federal Government by



550 THE WORKS OF SAMUEL J. TILDE 'N. [1848.

the States was soon in progress, and the exclusion of slaves from
them the first action that was sought for in regard to them. The
cession by Virginia of the Northwestern Territory, out of which
the States of Ohio, Michigan, Indiana, Illinois, and Wisconsin
have since been formed, was no sooner made than Mr. Jefferson,
in connection with Messrs. Chase and Howell, introduced into
the old Congress of the Confederation his celebrated resolution
applicable to the States to be formed out of said territory in these
words :

"Resolved, That after the year 1800 of the Christian era there shall be
neither slavery nor involuntary servitude in any of the said States, other-
wise than in punishment of crime, whereof the party shall have been duly
convicted to have been personally guilty."

The initiative thus taken, the matter went forward until the pas-
sage of the ordinance of July, 1787, by which the introduction of
slavery was forever excluded from all the territories then in the
undisputed possession of the United States, by far the greater part
of which had been ceded by a Slave State. The Convention to
form a Federal Constitution had commenced its sitting in May
preceding, and was then in session at the same place. Seeing what
Congress had enacted in respect to the territories then owned by
the United States, the Convention promptly forwarded the good
work by giving its direct sanction to a prohibition of the introduc-
tion of slaves into the States of the Confederacy from abroad after
a day named. Nor was this all that it did in furtherance of the
great object which Congress and the people had in view in regard
to the institution of slavery. The articles of Confederation did
not contain authority for the progressive admission of new States
into the Union, and its authority over territories was at best im-
perfect. It was consequently questioned whether a ratification of
the ordinance of 1787 by Congress, under the new Constitution,
was not necessary to its validity. Such ratification it received at
its first session. This circumstance served also to remind the
Convention of the necessity of remedying the defect in the articles
of the Confederation by authorizing an indefinite admission of
new States, and giving to Congress general power to legislate for
the territories out of which they might be formed. The first was
accomplished by providing that " new States may be admitted by
the Congress into the Union," and the second by declaring in the
next clause in the section that " the Congress shall have power to
dispose of and make all needful rules and regulations respecting
the territories or other property of the United States."



1848.] THE FIRST GUN FOR FREE SOIL. 551

This authority, it will be recollected, is given to Congress. Had
it been intrusted to the executive or judicial department of the
government, questions might have arisen as to the manner of its
exercise. But Congress is vested with the legislative power of
the government only. It acts by the passage of laws. Authority
to it to prescribe "rules and regulations" respecting the territo-
ries, therefore, if there could be a doubt in any case of the signifi-
cation of the terms, is necessarily a power to legislate for them ;
and the character of the legislation intended is distinctly pointed
out by the use of terms always employed to describe laws touch-
ing particular and private interests, in their minutest details, as
well as comprehending government itself. Never was the power
of language in the hands of those who are masters of the art more
strikingly displayed than by the framers of the Constitution.
Mr. Madison and Mr. Morris are well understood to have contrib-
uted their full share to the triumph of the Convention in this
regard. The terms "rules and regulations/' used in regard to
territories, were employed in the distribution and investment of
legislative power when the power to be conferred was intended
to be general and paramount. Power was given to Congress to
regulate commerce with foreign nations ; to make rules concern-
ing captures, etc. ; to make rules for the government and regulation
of the land and naval forces ; to alter State regulations in respect
to the time, place, and manner of holding elections ; to coin money
and regulate the value thereof. They were forbidden to give pref-
erence, by any regulation of commerce, to the ports of one State
over another, and the appellate jurisdiction of the Supreme Court
in certain cases was made subject to such regulation as Congress
should make. It is not necessary to say that the intention was,
and that the uniform practice under the Constitution has been, to
carry out all these powers by the legislation of Congress. So, in
like manner, Congress were to have power to dispose of, and make
all necessary rules and regulations respecting, the territory or other
property belonging to the United States. To give the widest
scope to the legislative power of Congress over the territories,
both terms are used ; namely, "rules " and " regulations." In respect
to the seat of government, forts, magazines, arsenals, etc., the power
of exclusive legislation was given in terms, because it was neces-
sary to divest and exclude an existing power of State legislation.
No such necessity existed in regard to the territories, and hence
the use of the general terms employed in other parts of the Con-
stitution to confer legislative power. Those used in regard to
territorial legislation were not only the most general, extending



552 THE WORKS OF SAMUEL J. TILDEN. [1848.

to everything that was needful and respected the territory, but, as
appears on the face of the Constitution itself, the term "regula-
tions " was used by the Convention as synonymous with " laws "
and for the purpose of describing laws in regard to slavery. In
the section immediately preceding it is declared that " no person
held to service or labor in one State, under the laws thereof, escap-
ing into another, shall, in consequence of any law or regulation
therein, be discharged," etc., thus directly referring to the laws
of the State against slavery, under the description of State
regulations.

In addition to the plain sense of the Convention, in the use of
the terms "rules" and "regulations" apparent upon the face of
the Constitution, its history and the whole current of proceeding
under it may be referred to as establishing the same position.
Mr. Madison, as will be seen by a reference to the thirty-eighth
number of the "Federalist," was among those who doubted the
power of Congress, under the Articles of Confederation, to legis-
late for the territories as was done by the ordinance of 1787, and
in No. 43 will be found his full recognition of the fact that all
necessary power to this end had been vested in Congress by the
Constitution. The Journals of the Convention show the agency
he had in securing that object. On the 18th of August, 1787, he
submitted, in order to be referred to the Committee of Detail, the
following powers as proper to be added, with others, to those of
the General Legislature, namely :

" First, to dispose of the unappropriated lands of the United States.
" Second, to institute temporary governments for new States arising
therein."

And they were referred accordingly.

The Committee of Detail, in their Report, made provision for
the admission of new States, but not for the disposition of the
public lands or the establishment of territorial governments. In
the subsequent proceedings of the Convention on their Report,
Mr. Morris moved that "the Legislature shall have power to
dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States,"
a motion which Avas agreed to. The whole subject was then re-
ferred to a committee of style and revision, of which Mr. Morris
and Mr. Madison were members ; and the article as it stands in the
Constitution was reported by that committee and finally adopted.
Mr. Morris showed his own understanding of the term "regulation "
by applying it only two -days before to the clause of the Constitu-



1848.] THE FIRST GUN FOR FREE SOIL. 553

tion prohibiting the States from laying imposts, etc. A very brief
reference to the proceedings of Congress at the time, and for years
afterwards, will show that those who took part in the Convention,
as also their contemporaries, invariably spoke of the power con-
ferred by these terms as that of legislation, and what is still
stronger of legislation upon the subject of slavery. In the
cession from North Carolina to the United States, the term is
thus used in the Act of Cession, from which the following is an
extract :

" Fourthly, that the territory so ceded shall be laid out and formed into
a State or States containing a suitable extent of territory, the inhabitants
of which shall enjoy all the privileges, benefits, and advantages set forth in
the ordinance of the late Congress for the government of the western ter-
ritory of the United States ; that is to say, - - whenever the Congress of
the United States shall cause to be officially transmitted to the executive
authority of this State an authenticated copy of the Act to be passed by
the Congress of the United States accepting the cession of territory made
by virtue of this Act, under the express conditions hereby specified, the said
Congress shall at the same time assume the government of the said ceded
territory, which they shall execute in a manner similar to that which they
support in the territory west of the Ohio, shall protect the inhabitants
against enemies, and shall never bar or deprive them of any privileges
which the people in the territory west of the Ohio enjoy. Provided al-
ways that no regulation made or to be made by Congress shall tend to
emancipate slaves."

Luther Martin, in his celebrated Eeport to the Legislature of
Maryland of the proceedings of the Convention, which is so fre-
quently referred t^ for explanation of its intentions, speaks of the
enactments made and demanded upon the subject of slavery, and
describes them as " regulations."

In July, 1790, petitions upon the subject of slavery and the
slave trade were presented to Congress by the Quakers of Phila-
delphia and Xew York, and by Dr. Franklin, who was himself a
prominent member of the Convention and president of a Pennsyl-
vania society for the promotion of abolition. In the debate which
took place in regard to their reference, the opposers and supporters
of it thus referred to legislative provisions on the subject.

Mr. Stone, of North Carolina, said he had not approved of the
interference of Congress in this business. He thought that persons
who were not interested ought not to interfere. Such interfer-
ences savored very strongly of an intolerant spirit, and he could
not suppose that any one of the States had a right to interfere in
the internal regulations of another. States were not accountable
to each other for their moral conduct.



554 THE WORKS OF SAMUEL J. TILDEN. [1848.

Mr. Smith, of South Carolina, said he applied these principles
to the case in question, and asked whether the Constitution had in
express terms vested the Congress with the powers of manumis-
sion, or whether it restrained the States from exercising that
power, or whether there was any authority given to the Union
with which the exercise of this right by any State would be incon-
sistent ? If these questions were answered in the negative, it
followed that Congress had not an exclusive right to the power of
manumission. Had it a concurrent right with the States ? Xo
gentleman would assert it, because the absurdity was obvious.
For a State regulation might differ from a Federal regulation, and
one or the other must give way. As the laws of the United States
were paramount to those of individual States, the Federal regula-
tions would abrogate those of the States ; consequently the States
would be divested of a power which it was evident they never had
yielded, and might exercise whenever they thought proper.

Roger Sherman desired the reference "because [referring to the
State laws] several States had already made some ' regulations '
upon the subject ; ?: ' and in the Eeport made upon the petitions a
Report which, being made exclusively by Northern men, and hav-
ing received the deliberate sanction of the House, for a long time
relieved all apprehension in the Slave States in regard to inter-
ference there occurs this language,

" Secondly, that Congress have no power to interfere in the emancipa-
tion of slaves, or in the treatment of them within any of the States; it
remaining with the several States alone to provide any ' regulation ' therein
which humanity and true policy might require.

" Thirdly, that Congress have authority to restrain the citizens of the
United States from carrying on the slave-trade for the purpose of supply-
ing foreigners with slaves, and of providing, by proper ' regulations,' for
the humane treatment during their passage of slaves imported by the said
citizens into the States admitting such importation."



But the proceedings upon these petitions are of far greater im-
portance, as affording us a solemn, full, and explicit declaration of
Mr. Madison, who had first introduced the subject of legislation
for the territories into the Convention, and was a prominent mem-
ber of the committee which reported the clause of the Constitution
upon which the present question has at this late day been raised.
The reference of the petition was opposed upon the ground that
as Congress were prohibited from interfering with the slave-trade
before 1808, they could do nothing in the matter. The subject
occupied the attention of Congress for several daj's. Mr. Madison
from the first advised a silent acquiescence in the reference. On



1848.] THE FIRST GUN FOR FREE SOIL. 555

the second day he felt himself obliged to come out and be more
explicit ; and in reply to the allegation that Congress could do
nothing in the matter, he said he admitted that Congress was re-
stricted from taking measures to abolish the slave-trade, yet there
were a variety of ways by which they could countenance the abo-
lition of it, and thus might make some regulations respecting the
introduction of slaves into the new States to be formed out of the
western territories, different from what they could in the old
settled States. He thought the subject worthy of consideration.
Another reporter gives Mr. Madison's remarks thus :

" He (Mr. Madison) adverted to the western country and to the cession
of Georgia, in which Congress have certainly power to ' regulate ' the sub-
ject of slavery, which shows that gentlemen are mistaken in supposing
that Congress cannot constitutionally interfere in the business in any
degree whatever. He was in favor of committing the petitions, and justi-
fied the measure by repeated precedents in the proceedings of the House."

This was the deliberate opinion of Mr. Madison, pronounced in
the hearing of several of his associates in the committee from the
Slaveholding States, at the second session of Congress after the
adoption of the Constitution. It would be a waste of time to
enlarge upon the weight which is pre-eminently due to the opinion
of such a man, and more particularly upon such a question. In
Virginia certainly it would be superfluous, as long, at least, as
his celebrated Report upon the Alien and Sedition Acts constitutes
their text-book on constitutional questions.

The views of the framers of the Constitution thus cited are con-
firmed by a reference to the expositions of approved commentators
on the Constitution.

Rawle on the Constitution, p. 237, says :

"In these [Admiralty Jurisdiction Cases] the subjects are limited; but
a general jurisdiction appertains to the United States over ceded territories
or districts."

Story on the Constitution, pp. 195, 198 :

" No one has ever doubted the authority of Congress to erect territorial
governments within the territories of the United States under the general
language of the clause ' to make all needful rules and regulations.' Indeed
with the ordinance of 1787 in the very view of the framers, as well as of
the people of the States, it is impossible to doubt that such a power was
deemed indispensable to the purposes of the cessions made by the States.

u The power of Congress over the public territory is clearly exclusive and
universal, and their legislation is subject to no control, but is absolute and
unlimited, unless so far as it is affected by stipulations in cessions, or by
the ordinance of 1787, under which every part of it has been settled."



556 THE WORKS OF SAMUEL J. TILDEN. [1848.

Not only, therefore, was this power of legislation given to Con-
gress by the framers of the Constitution deliberately, designedly,
and explicitly, - - not only has its existence been distinctly avowed
by the most distinguished among the fathers of the Constitution,
Mr. Madison, and set forth as clear and indisputable by our most
able writers upon public law, but its validity has also been
solemnly confirmed by the decisions of our own Court of Last
Resort and by the Supreme Court of the United States. The
language of our State Court of Errors in the case of Williams vs.
The Bank of Michigan (7 Wendell E. 554) is,

" All power possessed by the Government of Michigan was derived from
the act of Congress. Territories have no reserved power, as in the case of
States admitted into the Union; the authority of Congress is supreme and
unlimited, unless made otherwise by the cessions of lands composing those
territories."

In the case of McCullock vs. The State of Maryland, decided in
1819 (4 Wheaton 422), Chief Justice Marshall, who delivered the
opinion of the Court, commenting 011 the authority of Congress to
make laws for executing granted powers, refers in illustration to
"the universal acquiescence in the construction which has been
uniformly put on the third section of the fourth article of the
Constitution," and says : "The power to 'make all needful rules
and regulations respecting the territory or other property belong-
ing to the United States ' is not more comprehensive than the
power to make all laws which shall be necessary and proper for
carrying into execution ' the powers of government; 7 }*et all admit
the constitutionality of a territorial government."

In the case of The American Insurance Company vs. Canter,
decided in 1828 (1 Peters, 542), Chief Justice Marshall, who deliv-
ered the opinion of the Court, commenting on the sixth article of
the treaty ceding Florida to the United States, and declaring that
its inhabitants are to be " admitted to the enjoyment of the privi-
leges, rights, and immunities of the citizens of the United States,"
says : " It is unnecessary to inquire whether this is not their con-
dition, independent of stipulation. They do not, however, partici-
pate in political power ; they do not share in the government till
Florida shall become a State. In the mean time Florida continues
to be a territory of the United States, governed by virtue of that
clause in the Constitution which empowers Congress to make all
needful rules and regulations respecting the territory or other
property belonging to the United States."



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