Chapter VI (3)

Here allow me to say, in all sincerity, that I dislike thus to speak about conventions; it does not belong to the duties of the Senate; we did not assemble here to make a President, except in the single contingency of a failure by the people and by the House of Representatives to elect. When that contingency arrives, the question will be before us. I am sorry that it should have been prematurely introduced. But since the action of the recent convention at Charleston is presented as the basis of argument, it may be as well to refer to it, and see what it is. The majority report, presented by seventeen States of the Union, and those the States most reliable to give Democratic votes--the States counted so certain to give Democratic votes that they have been regarded as a fixed basis, a nucleus to which others were to be attracted--these seventeen States reported to the convention a series of resolutions, one of which asserted the right to protection. A minority of States reported another series, excluding the avowal of the right--not exactly denying it, but not avowing it--and a second minority report was submitted, being the Cincinnati platform, pure and simple. It is true that a majority of delegates adopted the minority report, but not a majority of States, nor does it appear, by an analysis of the votes, and the best evidence I have been able to obtain, that it was by a majority of delegates, if each had been left to his own choice; but that, by one of those ingenious arrangements--one of those incidents which, among jurists, is described as the favor the vigilant receives from the law--it so happened that, in certain States, the delegates were instructed to vote as a unit; in other States they were not; so that, wherever they were instructed to vote as a unit, the vote must so be cast, and wherever they were not, they might disintegrate. Thus minorities were bound in one instance, and released in another; and, by a comparison made by those who had an opportunity to know, it appears that the minority report could not have got a majority of the delegates, if each delegate had been permitted to cast his own vote in the Convention. Neither could it have obtained, as appears by the action of the committee, in a majority of the States, if they had been spoken as such. So that this vaunt as to the effect of the adoption of the platform by a majority, seems to have very little of substance in it. Again, I find that, after this adoption of a platform, a delegate from Tennessee offered a resolution:

"That all the citizens of the United States have an equal right to
settle, with their property, in the Territories of the United States;
and that, under the decision of the Supreme Court of the United
States, which we recognize as a correct exposition of the Constitution
of the United States, neither their rights of person or property can
be destroyed or impaired by congressional or territorial legislation."

It does not appear that a vote was taken on it. There is a current belief that it would have been adopted. If it had been, it would have been an acknowledgment by the Democracy, in convention assembled, that the question had been settled by the decisions of the Supreme Court. But in the progress of the convention, when they came to balloting, it appears, by an analysis of the vote for candidates, that the Senator from Illinois received from seventeen undoubted Democratic States of the Union, casting one hundred and twenty-seven electoral votes, but eleven votes. It is not such a great triumph, then, in the Democratic view, as is claimed. It does not suffice to add up the number of votes where they do not avail. It is not fair to bring the votes of Vermont, where I believe nobody expects we shall be successful, and count them for a particular candidate. The electoral votes--and these alone, tell upon the result; and it appears that in those States which have been counted certain to cast their electoral votes for the candidate who might have been nominated at that convention, the Senator received but eleven. This is but meagre claim to bind us to his car as the successful champion of the majority. This is but small basis for the boast that his hopes were gratified, that he would not receive the nomination unless sustained by a majority of the party, and that his opinions had received the indorsement of the Democracy.

My devotion to the party is life-long. If the assertion be allowable, it may be said that I inherited my political principles. I derive them from a revolutionary father--one of the earnest friends of Mr. Jefferson; who, after the revolution which achieved our independence, bore his full part in the civil revolution of 1800, which emancipated us from federal usurpation and consolidation. I therefore have all that devotion to party which belongs to habitual reverence and confidence. But, sir, that devotion to party rests on the assumption that it is to maintain sound principles; that it is to strive hereafter, as heretofore, to carry out the great cardinal creed in which the Democratic party was founded. When the resolutions of 1798 and 1799 are discarded; when we fly from the extreme of monarchy to land in the danger to republics, anarchy, and the Democratic party says its arm is paralyzed--can not be raised to maintain constitutional rights, my devotion to its organization is at an end. It fails thenceforward in the purposes for which it was established; and if there be a constitutional party in the land which, in the language of Mr. Jefferson, would find in the vigor of the Federal Government the best hope for our liberty and security, to that party I should attach myself whenever that sad contingency arose.

The resolutions of 1798 and 1799, though directed against usurpation, were equally directed against the dangers of anarchy. Their principles are alike applicable to both. Their cardinal creed was a Federal Government, according to the grants conferred upon it, and these righteously administered. It is not fair to the men who taught us the lessons of Democracy that they should be held responsible for a theory which leaves the Federal Government, as one who has abdicated all authority, to stand at the mercy of local usurpations. Least of all does their teaching maintain that this Government has no power over the Territories; that this Government has no obligation to protect the rights of person and property in the Territories; for, among the first acts under the Constitution, was one which both asserted and exercised the power.

After the adoption of the Constitution, in 1789, an act was passed, to which reference is frequently made as being a confirmation of the ordinance of 1787; and this has been repeated so often that it has received general belief. There was a constitutional provision which required all obligations and engagements under the confederation to hold good under the Constitution. If there was an obligation or an engagement growing out of the ordinance of 1787, out of the deed of cession by Virginia, it was transmitted to the Government established under the Constitution; but that Congress under the Constitution gave it no vitality--that they added no force to it, is apparent from the fact which is so often relied upon as authority. It was in view of this fact, in full remembrance of this and of other facts connected with it, that Mr. Madison said, in relation to passing regulations for the Territories, that "Congress did not regard the interdiction of slavery among the needful regulations contemplated by the Constitution, since, in none of the territorial governments created by them, was such an interdict found." I am aware that Justice McLean has viewed this as an historical error of Mr. Madison. I shall not assume to decide between such high authorities. The act is as follows:

"_An Act to provide for the government of the Territory north-west of
the Ohio River._

"WHEREAS, In order that the ordinance of the United States in Congress
assembled, for the government of the territory north-west of the river
Ohio, may continue to have full effect, it is requisite that certain
provisions should be made so as to adapt the same to the present
Constitution of the United States.

"SECTION 1. _Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled_, That, in all
cases in which, by the said ordinance, any information is to be given,
or communication made, by the governor of the said Territory to the
United States in Congress assembled, or to any of their officers, it
shall be the duty of the said governor to give such information, and
to make such communication, to the President of the United States; and
the President shall nominate, and, by and with the advice and consent
of the Senate, shall appoint all officers which, by the said
ordinance, were to have been appointed by the United States in
Congress assembled; and all officers so appointed shall be
commissioned by him; and in all cases where the United States in
Congress assembled might, by the said ordinance, make any commission,
or remove from any office, the President is hereby declared to have
the same powers to revocation and removal.

"SEC. 2. _And be it further enacted_, That in the case of the death,
removal, resignation, or necessary absence of the governor of the said
Territory, the secretary thereof shall be, and he is hereby authorized
and required to execute all the powers and perform all the duties of
the governor during the vacancy occasioned by the removal,
resignation, or necessary absence of the said governor.

"Approved August 7, 1789."

All that is to be found in this act which favors the supposition and frequent assertion that, under the Constitution, the ordinance of 1787 was ratified and confirmed is to be found in the preamble, and that preamble so vaguely alludes to it that the idea is refuted by reference to an act which followed soon afterwards--the act of 1793--from which I will read a single section:

"SEC. 3. _And be it further enacted_, That when a person held to labor
in any of the United States, or in either of the Territories on the
north-west or south of the river Ohio, under the laws thereof, shall
escape into any other of the said States or Territories, the person to
whom such service or labor may be due, his agent, or attorney, is
hereby empowered to seize or arrest such fugitive from labor," etc.

Is it not apparent that, when the Congress legislated in 1793, they recognized the existence of slavery and protected that kind of property in the territory north-west of the river Ohio, and is it not conclusive that they did not intend, by the act of 1789, to confirm, ratify, and give effect to the ordinance of 1787, which would have excluded it?

This doctrine of protection, then, is not new. It goes back to the foundation of the Government. It is traceable down through all the early controversies; and they arose at least as early as 1790. It is found in the messages of Mr. Jefferson and Mr. Madison, and in the legislation of Congress; and also in the messages of the elder Adams. There was not one of the first four Presidents of the United States who did not recognize this obligation of protection, who did not assert this power on the part of the Federal Government; and not one of them ever attempted to pervert it to a power to destroy. If division in the Democratic party is to arise now, because of this doctrine, it is not from the change by those who assert it, but of those who deny it. It is not from the introduction of a new feature in the theory of our Government, but from the denial of that which was recognized in its very beginning.

As I understood the main argument of the Senator, it was based upon the general postulate that the Democratic Convention of 1848 recognized a new doctrine, a doctrine which inhibited the General Government from interfering in any way, either for the protection of property or otherwise, with the local affairs of a Territory; he held the party responsible for all the opinions entertained by the candidate in 1848, because the party had nominated him, and he quoted the record to show what States, by voting for him, had committed themselves to the doctrine of the "Nicholson letter." He even quoted South Carolina, represented by that man who became famous for a single act, and, as South Carolinians said, without authority at home to sustain it. But this was cited as pledging the faith of South Carolina to the doctrine of the "Nicholson letter;" and, worse than all, the Senator did this, though he knew that the doctrine of the "Nicholson letter" was the subject of controversy for years subsequently; that, what was the true construction of that letter, entered into the canvass in the Southern States; that the construction which Mr. Cass himself placed upon it at a subsequent period was there denied; and the Senator might have remembered, if he had chosen to recollect so unimportant a thing, that I once had to explain to him, ten years ago, the fact that I repudiated the doctrine of that letter at the time it was published, and that the Democracy of Mississippi had well-nigh crucified me for the construction which I placed upon it; there were men mean enough to suspect that the construction I gave to the Nicholson letter was prompted by the confidence and affection I felt for General Taylor. At a subsequent period, however, Mr. Cass thoroughly reviewed it. He uttered, for him, very harsh language against all who had doubted the true construction of his letter, and he construed it just as I had done during the canvass of 1848. It remains only to add that I supported Mr. Cass, not because of the doctrine of the Nicholson letter, but in despite of it; because I believed a Democratic President, with a Democratic cabinet and Democratic counselors in the two houses of Congress, and he as honest a man as I believed Mr. Cass to be, would be a safer reliance than his opponent, who personally possessed my confidence as much as any man living, but who was of and must draw his advisers from a party, the tenets of which I believed to be opposed to the interests of the country as they were to all my political convictions.

I little thought at that time that my advocacy of Mr. Cass, upon such grounds as these, or his support by the State of which I am a citizen, would at any future day be quoted as an indorsement of the opinions contained in the Nicholson letter, as those opinions were afterwards defined. But it is not only upon this letter, but equally upon the resolutions of the convention as constructive of that letter, that he rested his argument. I will here say to the Senator that if, at any time, I do him the least injustice, speaking as I do from such notes as I could take while he progressed, I will thank him to correct me.

But this letter entered into the canvass; there was a doubt about its construction; there were men who asserted that they had positive authority for saying that it meant that the people of a Territory could only exclude slavery when the Territory should form a constitution and be admitted as a State. This doubt continued to hang over the construction, and it was that doubt alone which secured Mr. Cass the vote of Mississippi. If the true construction had been certainly known he would have had no chance to get it. Our majority went down from thousands to hundreds, as it was. In Alabama the decrease was greater. It was not that the doctrine was countenanced, but the doubt as to the true meaning of the letter, and the constantly reiterated assertion that it only meant the Territories when they should be admitted as States, enabled him to carry those States.

But if I mistook the Senator there, I think probably I did not on another point: that he claimed the support of certain Southern men for Mr. Richardson as Speaker of the House to be by them an acknowledgment of the doctrine of squatter sovereignty.

I suppose those Southern men who voted for Mr. Richardson voted for him as I did for Mr. Cass, in despite of his opinions on that question, because they preferred Mr. Richardson to Mr. Banks, even with squatter sovereignty. They considered that the latter was carrying an amount of heresies which greatly exceeded the value of squatter sovereignty. It was a choice of evils--not an indorsement of his opinions. Neither did they this year indorse the opinions on that point of Mr. McClernand when they voted for him. According to the Senator's argument I could show him that Illinois was committed to the doctrine of federal protection to property in the Territories and the remedy of secession as a State right; committed irrevocably, unmistakably, with no right to plead any ignorance of the political creed of the individual, or the meaning of his words.

In 1852--I refer to it with pride--Illinois did me the honor to vote consistently for me for the Vice-Presidency, up to the time of adjournment; though in 1850, and in 1851, I had done all these acts which have been spoken of, and the Senator has admitted my consistency, in opinions which were avowed with at least such perspicuity as left nobody in doubt as to my opinion. Did Illinois then adopt my theory of protection in the Territories, or of the right of State secession? No, sir. I hold them to no such consequences. Some of the old inhabitants of Illinois may have remembered me when their northern frontier was a wilderness, when they and I had kind relations in the face of hostile Indians. Some of them may have remembered me, and, I believe, kindly, as associated with them, at a later period, on the fields of Mexico. The Senator himself, I know, remembered kindly his association with me in the halls of Congress. It was these bonds which gave me the confidence of the State of Illinois. I never misconstrued it. I never pretended to put them in the attitude of adopting all my opinions. Never required it, never desired it, save as in so far as wishing all men would agree with me, confidently believing my position to be true. At a later period, and when these questions were more important in the public mind, when public attention has been more directed to them, when public opinion has been more matured, at the very time when the Senator claims that his doctrine culminated, the State of Illinois voted for a gentleman for Vice-President at Cincinnati who held the same opinions with myself, or, if there was a difference, held them to a greater extreme--I mean General Quitman.

MR. DOUGLAS. We made no test on any one.

MR. DAVIS. Then, how did the South become responsible for the doctrine of General Cass, by consenting to his nomination in 1848, and supporting his election? But at a later period, down to the present session, what is the position in which the Senator places his friends--those sterling Democrats, uncompromising Anti-Know-Nothings; men who give no quarter to the American party, and yet who voted this year for Mr. Smith, of North Carolina, to be Speaker of the House of Representatives. Is the Senator answered? Does he not see that there is no justice in assuming a vote for an individual to be the entire adoption of his opinions?

He cited, in this connection, a resolution of 1848, as having been framed to cover the doctrines of the Nicholson letter; and he claimed thus to have shown that the convention not only understood it, but adopted it, and made it the party creed, and that we were bound to it from that period forward. He even had that resolution of 1848 read, in order that there should be, at no future time, any question as to the principle which the party then avowed; that it should be fixed as a starting point in all the future progress of Democracy. I was surprised at the importance the Senator attached to that resolution of 1848, because it was not new; it was not framed to meet the opinions of the Nicholson letter, but came down from a period as remote as 1840; was copied into the platform of 1844, and again into that of 1848, being the expression which the condition of the country in 1840 had induced--a declaration of opinion growing out of the agitation in the two houses of Congress at that day, and the fearful strides which antislavery was making, and which Mr. Calhoun had labored to check by the declaration of constitutional truths, as set forth in his Senate resolutions of 1837-'8.

That there may be no mistake on this point, and particularly as the Senator attached special importance to it, I will turn to the platform of 1840, and read from it, so that it shall be found to be--

MR. DOUGLAS. It is conceded.

MR. DAVIS. The Senator concedes the fact, that the resolution of 1848 was a copy of that of 1840, and with the concession falls his argument. The platforms of 1840 and 1844 were re-affirmed in 1848; and, consequently, the resolution of '48 being identical with that of '40, was not a construction of the letter written in 1847.

True to its instincts and to its practices, the Democratic party, from time to time, continued to add to their "platform" whatever was needful for action by the Government in the condition of the country. Thus, in 1844, they re-asserted the platform of 1840; and they added thereto, because of a question then pending, that--

"The re-annexation of Texas, at the earliest practicable period, is a
great American measure, which the convention recommend to the cordial
support of the Democracy of the Union."

In 1848 they re-adopted the resolutions of 1844; and were not a little laughed at for keeping up the question of Texas after it had been annexed. In 1852 a new question had arisen; the measures of 1850 had presented, with great force to the public mind, the necessity for some expression of opinion upon the disturbing questions which the measures of 1850 had been designed to quiet. Therefore, in 1852, the party, true to its obligation to announce its principles, and to meet issues as they arise, said:

"_Resolved_, That the foregoing proposition (referring to the
resolution of 1848) covers, and was intended to embrace, the whole
subject of slavery agitation in Congress; and, therefore, the
Democratic party in the Union, standing on this national platform,
will abide by and adhere to a faithful execution of the act known as
the compromise measure, settled by the last Congress, the act for
reclaiming fugitives from labor included; which act, being designed to
carry out an express provision of the Constitution, can not, with
fidelity thereto, be repealed, or so changed as to destroy or impair
its efficacy.

"_Resolved_, That the Democratic party will restrain all attempts at
renewing, in Congress or out of it, the agitation of the slave
question, under whatever shape or color the attempt may be made."

This was the addition made in 1852, and it was made because of the agitation which then prevailed through the country against the fugitive slave act, and it was because the fugitive slave act, and that alone, was assailed, that the Democratic convention met the issue on that measure specifically, and for the same reason it received the approbation of the Southern States. Had this been considered as the indorsement of the slave trade bill for the District of Columbia, it would not have received their approval. The agitation was in relation to recovering fugitive slaves, and the Democratic party boldly and truly met the living issue, and declared its position upon it.

In 1856 other questions had arisen. It was necessary to meet them. The convention did meet them, and met them in a manner which was satisfactory, because it was believed to be full. I will not weary the Senate by reading the resolutions of 1856; they are familiar to every body. I only quote a portion of them:

"The American Democracy recognize and adopt the principles contained
in the organic laws establishing the Territories of Kansas and
Nebraska as embodying the only sound and safe solution of the 'slavery
question' upon which the great national idea of the people of this
whole country can repose in its determined conservatism of the
Union--non-interference by Congress with slavery in State and
Territory, or in the District of Columbia.

"That, by the uniform application of this Democratic principle to the
organization of Territories, and to the admission of new States, with
or without domestic slavery, as they may elect, the equal rights of
all States will be preserved intact, the original compacts of the
Constitution maintained inviolate, and the perpetuity and expansion of
this Union insured to its utmost capacity of embracing, in peace and
harmony, every future American State that may be constituted or
annexed with a republican form of government."

Pray, what can this mean? Squatter sovereignty? Incapacity of the Federal Government to enact any law for the protection of slave property anywhere? Could that be in the face of a struggle that we were constantly carrying on against the opponents of the fugitive slave law? Could that be, in the face of the fact that a majority had trodden down our constitutional rights in the District of Columbia, by legislating in relation to that particular character of property, and that they had failed to redeem a promise they had sacredly made to pass a law for the protection of slave property, so as to punish any one who should seduce, or entice, or abduct it from an owner in this District?

With all these things fresh in mind, what did they mean? They meant that Congress should not decide the question, whether that institution should exist within a Territory or not. They did not mean to withdraw from the inhabitants of the District of Columbia that protection to which they were entitled, and which is almost annually given by legislation; and yet States and Territories and the District of Columbia are all grouped together, as the points upon which this idea rests, and to which it is directed. It meant that Congress was not to legislate to interfere with the rights of property anywhere; not to attempt to decide what should be the institutions maintained anywhere; but surely not to disclaim the right to protect property, whether on sea or on land, wherever the Federal Government had jurisdiction and power. But some stress has been laid upon the resolution, which says that this principle should be applied to

"The organization of the Territories, and to the admission of new
States, with or without domestic slavery, as they may elect."

What does "may elect" mean? Does it refer to organization of the Territory? Who may elect? Congress organizes the Territories. Did it mean that the Territories were to elect? It does not say so. What does it say?

"That by the uniform application of this Democratic principle to the
organization of Territories, and to the admission of new States, with
or without domestic slavery, as they may elect."

And here it met a question which had disturbed the peace of the country, and well-nigh destroyed the Union--the right of a State holding slaves to be admitted into the Union. It was declared here that the State so admitted should elect whether it would or would not have slaves. There is nothing in that which logically applies to the organization of a Territory. But if this be in doubt, let us come to the last resolution, which says:

"We recognize the right of the people of all the Territories,
including Kansas and Nebraska, acting through the legally and
fairly-expressed will of a majority of actual residents--"

Does it stop there? No--

"and whenever the number of their inhabitants justifies it, to form a
constitution, with or without domestic slavery, and be admitted into
the Union upon terms of perfect equality with the other States."

If there had been any doubt before as to what "may elect" referred to, this resolution certainly removed it. It is clear they meant, that when a Territory had a sufficient number of inhabitants, and came to form a constitution, then it might decide the question as it pleased. From that doctrine, I know no Democrat who now dissents.

I have thus, because of the assertion that this was a new idea attempted to be interjected into the Democratic creed, gone over some portion of its history. Important by its connection with the existing agitation, and last in the series, is an act with the ushering in of which the Senator is more familiar than myself, and on which he made remarks, to which, it is probable, some of those who acted with him, will reply. I wish merely to say, in relation to the Kansas-Nebraska act, that there are expressions in it which seem to me not of doubtful meaning, such as, "in all cases involving title to slaves, or involving the question of personal freedom," there should be a trial before the courts, and without reference to the amount involved, an appeal to the Supreme Court of the Territory, and from thence to the Supreme Court of the United States. If there was no right of property there; if we had no right to recognize it there; if some sovereign was to determine whether it existed or not, why did we say that the Supreme Court of the United States, in the last resort, should decide the question? If it was an admitted thing, by that bill, that the Territorial Legislature should decide it, why did we provide for taking the case to the Supreme Court? If it had been believed then, as it is asserted now, that a Territory possessed all the power of a State; that the inhabitants of a Territory could meet in convention and decide the question as the people of a State might do, there was nothing to be carried to the Supreme Court. You can not appeal from the decision of a constitutional convention of a State to the Supreme Court of the United States, to decide whether slave property shall be prohibited or admitted within the limits of a State; and if they rest on the same footing, what is the meaning of that clause of the bill?

But this organic law further provides, just as the resolution of the convention had done, that when a legal majority of the residents of either Territory formed a constitution, then, at their will, they might recognize or exclude slavery, and come into the Union as co-equal States. This fixes the period, defines the time at which the territorial inhabitants may perform this act, and clearly forbids the idea that it was intended, by those who enacted the law, to acknowledge that power to be existent in the inhabitants of a Territory during their territorial condition. If I am mistaken in this; if there was a contemporaneous construction of it differing from this, the Senators who sit around me and who were then members of the body, will not fail to remember it.

The Senator asserts that, in relation to this point, those who acted with him have changed, and claims for himself to have been consistent. If this be so, it proves nothing as to the present, and only individual opinions as to the past. I do not regard consistency as a very high virtue; neither, it appears, does he; for he told us that if it could be shown to him that he was in error on any point, he would change his opinion. How could that be? Who would undertake to show the Senator that he was in error? Who would undertake to measure the altitude of the Colossus who bestrides the world, and announces for, and of, and by himself, "We, the Democracy," as though, in his person, all that remained of the party was now concentrated! Other men are permitted to change, because other men may be mistaken; and if they are honest, when convicted of their error, they must change, but how can one expect to convince the Senator, who, where all is change, stands changeless still?

In the course of his reply to me--if indeed it may be called such; it seemed to be rather a review of every thing except what I had said--he set me the bad example of going into the canvass in my own State. It is the first, I trust it will be the last time, I shall follow his example; and now only to the extent of the occasion, where criticism was invited by unusual publicity. In the canvass which the Senator had with his opponent, Mr. Lincoln, and the debates of which have been published in a book, we find much which, if it be consistent with his course as I had known it, only proves to me how little able I was to understand his meaning in former times.

The Kansas-Nebraska Bill having agreed the right for which I contend to be the subject of judicial decision; it having specially provided the mode and facilitated the process by which that right should be brought to the courts and finally decided; not allowing any check to be interposed because of amount, that bill having continued the provision which had been introduced into the New Mexico Bill, how are we to understand the Senator's declarations, that, let the Supreme Court decide as they may, the inhabitants of a Territory may lawfully admit or exclude slavery as they please? What a hollow promise was given to us in the provision referring this vexed question to judicial decision, in order that we might reach a point on which we might peacefully rest, if the inhabitants of the Territories for which Congress had legislated could still decide the question and set aside any decision of the Supreme Court, and do this lawfully. I ask, was it not to give us a stone, when he promised us bread; to incorporate a provision in the organic act securing the right of appeal to the courts, if, as now stated, those courts were known to be powerless to grant a remedy?

Here there is a very broad distinction to be drawn between the power of the inhabitants of a Territory, or of any local community, lawfully to do a thing, and forcibly to do it. If the Senator had said, that whatever might be the decision of the Supreme Court, whatever might be the laws of Congress, whatever might be the laws of the Territories, in the face of an infuriated mob, such as he described on another occasion, it would be impossible for a man to hold a slave against their will, he would but have avowed the truism that in our country the law waits upon public opinion. But he says that they can do it lawfully. If his position had been such as I have just stated, it would have struck me as the opinion I had always supposed him to entertain. More than that, it would have struck me as the opinion which no one could gainsay; which, at any time, I would have been ready to admit. Nothing is more clear than that no law could prevail in our country, where force, as a governmental mean, is almost unknown, against a pervading sentiment in the community. Every body admits that; and it was in that view of the case that this question has been so often declared to be a mere abstraction. It is an abstraction so far as any one would expect in security to hold against the fixed purpose and all-pervading will of the community, whether territorial or other, a species of property, ambulatory, liable, because it has mind enough to go, to be enticed away whenever freed from physical restraint, and which would be nearly valueless if so restrained. It may be an abstraction as a practical question of pecuniary advantage, but it is not the less dear to those who assert the constitutional right. It would constitute a very good reason why no one should ever say there was an attempt to force slavery on an unwilling people, but no reason why the right should not be recognized by the Federal Government as one belonging to the equal privileges and immunities of every citizen of the United States.

But the main point of the Senator's argument--and it deserved to be so, because it is the main question now in the public mind--was, what is the meaning of non-intervention? He defined it to be synonymous with squatter sovereignty, or with popular sovereignty....

The Senator and myself do not seem to be getting any nearer together; because the very thing which he describes constitutes the only case in which I would admit the necessity, and, consequently, the propriety of the people acting without authority. If men were cast upon a desert island, the sovereignty of which was unknown, over which no jurisdiction was exercised, they would find themselves necessitated to establish rules which should subsist between themselves; and so the people of California, when the Congress failed to give them a government; when it refused to enact a territorial law; when, paralyzed by the power of contending factions, it left the immigrants to work their own unhappy way; they had a right--a right growing out of the necessity of the case--to make rules for the government of their local affairs. But this was not sovereignty. It was the exercise, between man and man, of a social function necessary to preserve peace in the absence of any controlling power--essential to conserve the relations of person and property. The sovereignty, if it existed in any organization or government of the world, remained there still; and whenever that sovereignty extended itself over them, whether shipwrecked mariners, or adventurous Americans--whether cast off by the sea, or whether finding their weary way across the desert plains which lie west of the Mississippi--whenever the hand of the Government holding sovereign jurisdiction was laid upon them, they became subject; their sovereign control of their own affairs ceased. In our case, the directing hand of the Government is laid upon them at the moment of the enactment of an organic law. Therefore, the very point at which the Senator begins his sovereignty, is the point at which the necessity, and, in my view, the claim ceases.

But suppose that a territorial legislature, acting under an organic law, not defining their municipal powers further than has been general in such laws, should pass a law to exclude slave property, would the Senator vote to repeal it?

MR. DOUGLAS. I will answer. I would not, because the Democratic party is pledged to non-intervention; because, furthermore, whether such an act is constitutional or not is a judicial question. If it is unconstitutional, the court will so decide, and it will be null and void without repeal. If it is constitutional, the people have a right to pass it. If unconstitutional, it is void, and the court will ascertain the fact; and we pledged our honors to abide the decision....

MR. DAVIS. If it will not embarrass the Senator, I would ask him if, as Chief Executive of the United States, he would sign a bill to protect slave property in State, Territory, or District of Columbia--an act of Congress?

MR. DOUGLAS. It will be time enough for me, or any other man, to say what bills he will sign, when he is in a position to exercise the power.

MR. DAVIS. The Senator has a right to make me that answer. I was only leading on to a fair understanding of the Senator and myself about non-intervention....

I think it now appears that, in the minds of the gentlemen, non-intervention is a shadowy, unsubstantial doctrine, which has its application according to the circumstances of the case. It ceased to apply when it was necessary to annul an act in Kansas in relation to the political rights of the inhabitants. It had no application when it was necessary to declare that the old French laws should not be revived in the Territory of Kansas after the repeal of the Missouri Compromise; but it rose an insurmountable barrier when we proposed to sweep away the Mexican decrees, usages, or laws, and leave the Constitution and laws of the United States unfettered in their operation in the Territory acquired from Mexico. It thus seems to have a constantly varying application, and, as I have not yet reached a good definition, one which quite satisfies me, I must take it as I find it in the Senator's speech, in which he says Alabama asserted the doctrine of non-intervention in 1856. The Alabama resolutions of 1856 asserted the right to protection, and the duty of the Federal Government to give it. So, if he stands upon the resolutions of Alabama in 1856, non-intervention is very good doctrine, and exactly agrees with what I believe--no assumption, by the Federal Government, of any powers over the municipal territorial governments which is not necessary; that the hand of Federal power shall be laid as lightly as possible upon any territorial community; that its laws shall be limited to the necessities of each case; that it shall leave the inhabitants as unfettered in the determination of their local legislation as the rights of the people of the States will permit, and the duty of the General Government will allow. But when non-intervention is pressed to the point of depriving the arm of the Federal Government of its one great function of protection, then it is the doctrine which we denounce--which we call squatter sovereignty; the renunciation by Congress, and the turning over to the inhabitants a sovereignty which, rightfully, it does not belong to the one to grant or the other to claim, and, further and worse, thus to divest the Federal Government of a duty which the Constitution requires it to perform.

To show that this view is not new--that it does not rest singly on the resolutions of Alabama, I will refer to a subject, the action upon which has already been quoted in this debate--the Oregon Bill. During the discussion of the Oregon Bill, I offered in the Senate, June 23, 1848, an amendment which I will read:

"_Provided_, That nothing contained in this act shall be so construed
as to authorize the prohibition of domestic slavery in said Territory,
whilst it remains in the condition of a Territory of the United
States."

Upon this, I will cite the authority of Mr. Calhoun, in his speech on the Oregon Bill, June 27, 1848:

"The twelfth section of this bill is intended to assert and maintain
this demand of the non-slaveholding States, while it remains a
Territory, not openly or directly, but indirectly, by extending the
provisions of the bill for the establishment of the Iowa Territory to
this, and by ratifying the acts of the informal and self-constituted
government of Oregon, which, among others, contains one prohibiting
the introduction of slavery. It thus, in reality, adopts what is
called the Wilmot proviso, not only for Oregon, but, as the Bill now
stands, for New Mexico and California. The amendment, on the contrary,
moved by the Senator from Mississippi, near me [Mr. Davis], is
intended to assert and maintain the position of the slave-holding
States. It leaves the Territory free and open to all the citizens of
the United States, and would overrule, if adopted, the act of the
self-constituted Territory of Oregon, and the twelfth section, as far
as it relates to the subject under consideration. We have thus fairly
presented the grounds taken by the non-slave-holding and the
slave-holding States, or as I shall call them, for the sake of
brevity, the Northern and Southern States, in their whole extent, for
discussion."--_Appendix to Congressional Globe, Thirtieth Congress,
first Session_, p. 868.

I will quote also one of the speeches which he made near the close of his life, at a time when he was so far wasted by disease that it was necessary for him to ask the Senator from Virginia, who sits before me [Mr. Mason], to read the speech which his tameless spirit impelled him to compose, but which he was physically unable to deliver; and once again he came to the Senate chamber, when standing yet more nearly on the confines of death; he rose, his heart failing in its functions, his voice faltered, but his will was so strong that he could not realize that the icy hand was upon him, and he erroneously thought he was oppressed by the weight of his overcoat. True to his devotion to the principles he had always advocated, clinging, to the last hour of his life, to the duty to maintain the rights of his constituents, still he was here, and his honored, though feeble, voice was raised for the maintenance of the great principle to which his life had been devoted. From the speech I read as follows:

"The plan of the administration can not save the Union, because it can
have no effect whatever towards satisfying the States composing the
Southern section of the Union, that they can, consistently with safety
and honor, remain in the Union. It is, in fact, but a modification of
the Wilmot proviso. It proposes to effect the same object--to exclude
the South from all territory acquired by the Mexican treaty. It is
well known that the South is united against the Wilmot proviso, and
has committed itself, by solemn resolutions, to resist should it be
adopted. Its opposition _is not to the name_, but that which it
_proposes to effect_. That, the Southern States hold to be
unconstitutional, unjust, inconsistent with their equality as members
of the common Union, and calculated to destroy irretrievably the
equilibrium between the two sections. These objections equally apply
to what, for brevity, I will call the executive proviso. There is no
difference between it and the Wilmot, except in the mode of effecting
the object; and in that respect, I must say that the latter is much
the least objectionable. It goes to its object openly, boldly, and
distinctly. It claims for Congress unlimited power over the
Territories, and proposes to assert it over the territories acquired
from Mexico by a positive prohibition of slavery. Not so the executive
proviso. It takes an indirect course, and, in order to elude the
Wilmot proviso, and thereby avoid encountering the united and
determined resistance of the South, it denies, by implication, the
authority of Congress to legislate for the Territories, and claims
the right as belonging exclusively to the inhabitants of the
Territories. But to effect the object of excluding the South, it takes
care, in the meantime, to let in immigrants freely from the Northern
States, and all other quarters, except from the South, which it takes
special care to exclude by holding up to them the danger of having
their slaves liberated under the Mexican laws. The necessary
consequence is to exclude the South from the Territories, just as
effectually as would the Wilmot proviso. The only difference, in this
respect, is, that what one proposes to effect directly and openly, the
other proposes to effect indirectly and covertly.

"But the executive proviso is more objectionable than the Wilmot in
another and more important particular. The latter, to effect its
object, inflicts a dangerous wound upon the Constitution, by depriving
the Southern States, as joint partners and owners of the Territories,
of their rights in them; but it inflicts no greater wound than is
absolutely necessary to effect its object. The former, on the
contrary, while it inflicts the same wound, inflicts others equally
great, and, if possible, greater, as I shall next proceed to explain.

"In claiming the right for the inhabitants, instead of Congress, to
legislate for the Territories, the executive proviso assumes that the
sovereignty over the Territories is vested in the former, or, to
express it in the language used in a resolution offered by one of the
Senators from Texas [General Houston, now absent], they 'have the same
inherent right of self-government as the people in the States.' The
assumption is utterly unfounded, unconstitutional, without example,
and contrary to the entire practice of the Government, from its
commencement to the present time, as I shall proceed to
show."--_Calhoun's Works_, vol. 4, p. 562.

MR. DAVIS. I find that I must abridge, by abstaining from the reading of extracts. When this question arose in 1820, Nathaniel Macon, by many considered the wisest man of his day, held the proposed interference to be unauthorized and innovative. In arguing against the Missouri Compromise, as it was called--the attempt by Congress to prescribe where slaves might or might not be held--the exercise, by the Federal Government north of a certain point, of usurped power by an act of inhibition, Mr. Macon said our true policy was that which had thus far guided the country in safety: the policy of non-intervention. By non-intervention he meant the absence of hostile legislation, not the absence of governmental protection. Our doctrine on this point is not new, but that of our opponents is so.

The Senator from Illinois assumes that the congressional acts of 1850 meant no legislation in relation to slave property; while, in the face of that declaration, stand the laws enacted in that year, and the promise of another, which has not been enacted--laws directed to the question of slavery and slave property; one even declaring, in certain contingencies, as a penalty on the owner, the emancipation of his slave in the District of Columbia. If no action upon the question was the prevailing opinion, what does the legislation mean? Was it non-action in the District of Columbia? Be it remembered, the resolution of the Cincinnati platform says, "Non-interference, by Congress, with slavery in State and Territory, or in the District of Columbia." They are all upon the same footing.

Again, he said that the Badger amendment was a declaration of no protection to slave property. The Badger amendment declares that the repeal of the Missouri Compromise shall not revive the laws or usages which preëxisted that compromise; and the history of the times, so far as I understand it, is, that it intended to assure those gentlemen who feared that the laws of France would be revived in the Territories of Kansas and Nebraska, by the repeal of the act of 1820, and that they would be held responsible for having, by congressional act, established slavery. The Southern men did not desire Congress to establish slavery. It has been our uniform declaration that we denied the power of the Federal Government either to establish or prohibit it; that we claimed for it protection as property recognized by the Constitution, and we claimed the right for it, as property, to go, and to receive federal protection wherever the jurisdiction of the United States is exclusive. We claim that the Constitution of the United States, in recognizing this property, making it the basis of representation, put it, not upon the footing which it holds between foreign nations, but upon the basis of the compact or union of the States; that, under the delegated grant to regulate commerce between the States, it did not belong to a State; therefore, without breach of contract, they can not, by any regulation, prohibit transit, and the compact provided that they should not change the character of master and slave in the case of a fugitive. Could Congress surrender, for the States and their citizens, the claim and protection for those or other constitutional rights, against invasion by a State? If not, surely it can not be done in the case of a Territory, a possession of the States. The word "protecting," in that amendment, referred to laws which preëxisted--laws which it was not designed, by the Democrats, to revive when they declared the repeal of the Missouri Compromise; and, therefore, I think, did not affect the question of constitutional right and of federal power and duty.