CHAPTER XVII

Effects of defeat in 1848-Increased confidence of the people in the political views of Gen, Cass-He is re-elected to the Senate-First session of the thirtyfirst Congress-Importance of the questions before it-The feeling of the south -Course of ultra politicians-Efforts of Compromise-Propositions of Messrs. Clay and Bell-Mr. Foote's Resolution-Gen. Cass' remarks-Remarks in reply to Mr. Berrien-Report and Bill of committee of thirteen-Amendments to the bill-Opposition to the admission of California-Remarks of Gen. CassThe "Fugitive Slave" bill--Suggestions of Gen. Cass in relation to it-Compromise measures-Their effects-Efforts of Gen. Cass and other eminent men to create a sound state of feeling in regard to slavery-His remarks at a public meeting in the city of New York-Extract from his letter to the Democratic Union festival, at Baltimore-His action on the slavery question approved by the people-Repeal of Resolutions of Instruction by the Legislature of Michiigan-Unanimous re-election of Gen. Cass by the Legislature of Michigan, in February, 1851.

The defeat of the democratic party, in 1848, was the means of causing a salutary change in the views of many prominent and influential men, who, in that contest, had either supported with indifference or openly opposed the majority of their political friends. An examination of the real position of the democratic candidate, tested by cool and dispassionate reason, and confirmed by results, convinced them, that the standard he had raised was the right one for the safety and interests of the country. Investigation produced conviction, and conviction confidence in the purity of the national doctrine, upon which Gen. Cass had staked his reputation as a statesman, and his success as a candidate for the Presidency. This confidence was exhibited by the general wish of the democratic party that Gen. Cass should be re-elected to the Senate to fill the unexpired portion of his original term of six years. The legislature of Michigan, of 1849, obeyed the voice of their constituents, and their political friends elsewhere, and Gen. Cass resumed his seat in the Senate of the United States.

The first session of the thirty-first Congress, in 1849 and 1850, was peculiar for the exciting and important character of the propositions brought before it. The south had for years complained of infringement by the north upon their rights as members of the

Union-not only in commercial matters, but in the more domestic and peculiar institutions existing among them. The course pursued by ultra politicians of both north and south, had its effect in fomenting a state of feeling, which daily increased in bitterness and exasperation. The wise statesmen of the land endeavored to avert the evil which they foresaw would inevitably befall the Union, if the discord and dissension between the north and the south were not removed. Eminent men, from both sections, united in devising measures calculated to allay the irritation. Several methods of compromise were brought forward, and debated most ably and arduously, through a session of eight months. Messrs. Clay, Foote and Bell severally proposed terms of compromise and adjustment of the questions in controversy between the free and slave States, connected with the subject of slavery. The propositions of Messrs. Clay and Bell, were embraced in a series of resolutions which elicited much discussion. Mr. Foote simply introduced a resolution to the effect, that it was the duty of Congress, at that session, to establish suitable territorial governments, for California, Deseret, and New Mexico. Gen. Cass supported this resolution, and, as Mr. Hale, of New Hampshire, had intimated that he should move the application of the Wilmot Proviso to the resolution, thus bringing up again that vexed point for discussion, Gen. Cass availed himself of the opportunity to express his views upon its constitutionality and expediency. Opening his argument with a preliminary remark upon the abstract character of the resolution, and arguing that Congress had not unlimited power of legislation over the territories; and drawing a distinction between the right to institute governments for territories, and the right to legislate over their internal concerns, he said :—

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There is no clause in the constitution which gives to Congress express power to pass any law respecting slavery in the territories. The authority is deduced from various sources, which I propose to examine by-and-by. But every construction which would give to a foreign legislature jurisdiction over this subject of slavery-by foreign I mean not elected by the people to be affected by its acts, nor responsible to them-would equally give it jurisdiction over every other department of life, social and political, in the territories over the relations of husband and wife, of parent and child, of guardian and ward, as well as over the relations of master and servant; and embracing, within the sphere of its operations, the

whole circle of human rights, personal and political-life, liberty, and property in all their various modes of enjoyment. I say "the power of Congress over slavery;" for, if we have power to abolish it, or to exclude it, we have power to institute it. We possess complete jurisdiction over the subject; for there is no intellect, however acute, which can so limit the legislative right of action, if it exist at all, as to apply it to the exclusion of slavery, and withhold it from its institution. If any one doubts this proposition, let him turn to the Constitution and show the limitation. Before I can believe that such a power was granted, so remote from the objects of the government which the framers of the constitution sought to establish, belonging exclusively to the local questions affecting the different communities into which we are divided, I must abandon many of the illusions I have cherished respecting the wisdom of the statesmen who composed the Convention of 1787.

Reverting to the proposition that Congress has unlimited power of legislation over the territories, the first reflection which strikes the inquirer, is, that if this power were intended to be granted, nothing was more easy than for the Convention to place the subject beyond doubt by a plain expression of the object. Instead, then, of five or six clauses of the constitution, some with remote relation to the subject, and some with none at all, which are in succession relied upon as the foundation of this power, we should have had a clear authority for the exercise of one of the highest attributes of government; the highest, indeed, the right of unlimited legislation. The clause most frequently quoted in support of this right is that which provides that "Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States." But I have no hesitation in saying, that if general jurisdiction over life and liberty was intended to be granted by this provision, its phrase ology is little creditable to the person who prepared it or to the body which adopted it. Heretofore the universal judgment of our country has pronounced that the Constitution of the United States is not less admirable for the force and perspicuity of its language than for the principles it establishes and the government it instituted. Proper words in proper places have been till now the characteristic feature of its mode of expression. But if the power to make needful rules and regulations for the property of the United States -for this is the grant, and all the grant-conveys full legislative authority over this property and over all persons living in the same region of country, making man the mere incident of property, certainly never were words more unhappily chosen, nor a reputation for clearness and certainty more unjustly acquired. That the convention, when they intended to grant full legislative power, knew what terms to employ, is manifest from the phraseology of the provision for the government of the Federal District, and of places ceded "for the erection of forts, magazines, arsenals, dock-yards, and

other needful buildings." Here the right to exercise exclusive legislation is given in express terms, admitting no doubt, and the very words are employed which are best adapted to convey the power intended to be granted, and no other power. When, therefore, a construction is put upon the authority to make needful rules and regulations for property, which carries it far beyond the obvious import of the words, those assuming this ground are bound to explain why similar language was not used to grant similar powers, and by what just rule of implication a phrase so limited is made to convey a power so unlimited. How is it that, in the same instrument, to exercise exclusive legislation and to regulate property convey equally a general jurisdiction over all the objects of human concern? No man has done this. No man has attempted to do it; and it is an obstacle, in limine, which, till removed, is insuperable.

I have looked over the discussions on this subject with a view to ascertain whence this power is derived by the various speakers or writers who have taken part in this controversy, and it is not a little curious to analyze the different opinions, and to find what diversity of sentiment prevails respecting the true ground of Congressional interposition. There seems to be a sort of consentaneous admission that the power exists, but then comes the diversity of views when seeking to justify its exercise by the provisions of the Constitution.

The principal reliance, till recently, for the support of this general power of legislation has been upon that clause of the Constitution already quoted, which authorizes Congress to "dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States." More recently, however, as the subject has been investigated, this clause has found less favor, and other provisions have in succession been brought forward as justifying Congressional interposition.

Much of the confusion which accompanies this subject has obviously arisen from the use we now make of the word " territory," applying it to those political communities which are organized under the name of Territorial Governments, and considering it as so applied in the Constitution. Indeed, so prevalent is this notion that, in an address of the Democratic members of the Legislature of New York, dated in April, 1848, this clause is quoted as though it read territories or "other property belonging to the United States;" thus fixing upon the word its acquired political signification. And this example has been followed in the House of Representatives, where one of the most intelligent members says, Constitution speaks of territories belonging to the United States." This use came by time, for the ordinance of 1787 obviously employed the word territory as descriptive of a region of country belonging to the United States, and which had been ceded to them by the members of the Confederacy. The "western territory"

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was its popular designation, and it is thus called in an act of the old Congress passed May 20, 1785, entitled "An ordinance for ascertaining the mode of disposing of lands in the western territory." The meaning is here geographical, and not political; for no government was established there till more than two years after this period. And the proceedings of the old Congress abound with its use in that signification, proofs of which will be found in an act of April 13, 1785, in another of May 9, 1787, and yet another of May 12, of the same year, all before the passage of the ordinance for the government of the northwestern territory. Then came that ordinance providing for the government of this region of country, this territory, or land, or domain, as it is indiscriminately called in the legislative and other official acts of that period. Its more appropriate political designation seems to have been "district," for the ordinance commences by declaring "that the said territory, [or region of country,] for the purposes of government, shall be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient." And these districts were each to constitute a government, with a governor and judges to "reside in the district," who are to adopt and publish laws in the district," and eventually, with a partially elective legislature, having authority" to make laws in all cases for the good government of the district," &c.

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The territory or region of country is thus organized into a political district; and had these local communities, which we now call Territories, preserved this term district as descriptive of their political organization, or been known as Colonies, the English designation for remote possessions, we should probably never have heard of the extended construction now given to this power of making needful rules for territory or land, and other property. As in the Ordinance, so in the Constitution, both adopted in the same year, the word territory retains its geographical signification, and it was only by time and custom that it sometimes came to mean political communities, distinct from the geographical region where these are established. But this use of the term, I repeat, was unknown at the time of the adoption of the Constitution.

What, then, is the true import of this constitutional power, to make needful rules and regulations for the public property? If this were a question of the first impression, and a construction were now to be put upon this clause unembarrassed by practice or precedent, it is so clear in its phraseology and objects, that it is not probable there would be any diversity of opinion upon the subject. It would be conceded that it gave to Congress power to dispose of, use, and preserve the public property, wherever situated, and to exercise any power fairly "needful" to attain these objects. The slightest analysis establishes this construction. It is property alone which is the subject of the grant; and its disposition, and in connection with that, its use and preservation, are the objects. The frame of the sentence places this beyond doubt. The phrase