JK 318 D74p DOUGLAS DIVIDING LINE BETWEEN FEDERAL AND LOCAL AUTHORITY THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES Popular Sovereignty in the Territories. THE DIVIDING LINE BETWEEN FEDEKAL AND LOCAL AUTHOBITY. BY STEPHEN A. DOUGLAS. ft, /A;. NEW YORK: HAEPEK & BROTHERS, PUBLISHERS, FRANKLIN SQUARE. 1859. [Reprinted from Harper's Magazine] THE DIVIDING LINE BETWEEN FEDERAL AND LOCAL AUTHORITY, POPULAR SOVEREIGNTY IN THE TERRITORIES, < -^. UNDER our complex system of government it is the first duty of American statesmen to mark distinctly the dividing line between J Federal and Local Authority. To do this with accuracy involves an 2 inquiry, not only into the powers and duties of the Federal Govern- ment under the Constitution, but also into the rights, privileges, and to immunities of the people of the Territories, as well as of the States ^ composing the Union. The relative powers and functions of the ^Federal and State governments have become well understood and S| clearly defined by their practical operation and harmonious action for SB a long series of years ; while the disputed question involving the right of the people of the Territories to govern themselves in respect H to their local affairs and internal polity remains a fruitful source of g partisan strife and sectional controversy. The political organization which was formed in 1854, and has assumed the name of the Repub- lican Party, is based on the theory that African slavery, as it exists in this country, is an evil of such magnitude social, moral, and polit- ical as to justify and require the exertion of the entire power and influence of the Federal Government to the full extent that the Con- stitution, according to their interpretation, will pejmit for its ultimate extinction. In the platform of principles adopted at Philadelphia by the Republican National Convention in 1856, it is affirmed: "That the Constitution confers upon Congress sovereign power over the Territories of the United States for their government, and that in the exercise of this power it is both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery." According to the theory of the Republican party there is an irre- pressible conflict between freedom and slavery, free labor and slave labor, free States and slave States, which is irreconcilable, and must continue to rage with increasing fury until the one shall become uni- 306595 4 POPULAK SOYEEEIGXTT IX THE TEREITOKIES. versal by the annihilation of the other. In the language of the most eminent and authoritative expounder of their political faith, "It is an irrepressible conflict between opposing and enduring forces ; and it means that the United States must and will, sooner or later, become either entirely a slave- holding nation or entirely a free-labor nation. Either the cotton and rice fields of South Carolina, and the sugar plantations of Louisiana will ultimately be tilled by free labor, and Charleston and New Orleans become marts for legitimate merchan- dise alone, or else the rye fields and wheat fields of Massachusetts and New York must again be'surrendered by their farmers to slave culture and to the production of slaves, and Boston and New York become once more markets for trade in the bodies and souls of men." In the Illinois canvass of 1858 the same proposition was advocated and defended by the distinguished Republican standard-bearer in these words : " In my opinion it [the slavery agitation] will not cease until a crisis shall have been reached and passed. ' A house divided against itself can not stand. ' I believe this government can not endure permanently half slave and half free. I do not ex- pect, the house to fall, but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest the farther spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction, or its advocates will push forward till it shall be- come alike lawful in all the States old as well as new, North as well as South." Thus it will be seen, that under the auspices of a political party, which claims sovereignty in Congress over the subject of slavery, there- can be no peace on the slavery question no truce in the sec- tional strife no fraternity between the North and South, so long as this Union remains as our fathers made it divided into free and slave States, with the right on the part of each to retain slavery so long as it chooses, and to abolish it whenever it pleases. On the other hand, it would be uncandid to deny that, while the Democratic party is a unit in its irreconcilable opposition to the doc- trines and principles of the Republican party, there are radical differ- ences of opinion in respect to the powers and duties of Congress, and the rights and immunities of the people of the Territories under the Federal Constitution, which seriously disturb its harmony and threat- en its integrity. These differences of opinion arise from the different interpretations placed on the Constitution by persons who belong to one of the folio whig classes : First. Those who believe that the Constitution of the United States neither establishes nor prohibits slavery in the States or Ter- ritories beyond the power of the people legally to control it, but " leaves the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitu- tion of the United States." Second. Those who believe that the Constitution establishes slavery in the Territories, and withholds from Congress and the Ter- POPULAR SOVEREIGNTY IN THE TERRITORIES, 5 ritorial Legislature the power to control it ; and who insist that, in the event the Territorial Legislature fails to enact the requisite laws for its protection, it becomes the imperative duty of Congress to in- terpose its authority and furnish such protection. Third, Those who, while professing to believe that the Constitu- tion establishes slavery hi the Territories beyond the power of Con- gress or the Territorial Legislature to control it, at the same time protest against the duty of Congress to interfere for its protection ; but insist that it is the duty of the Judiciary to protect and maintain slavery in the Territories without any law upon the subject. By a careful examination of the second and third propositions, it will be seen that the advocates of each agree on the theoretical ques- tion, that the Constitution establishes slavery in the Territories, and compels them to have it whether they want it or not ; and differ on the practical point, whether a right secured by the Constitution shall be protected by an act of Congress when all other remedies fail. The reason assigned for not protecting by law a right secured by the Constitution is, that it is the duty of the Courts to protect slavery in the Territories without any legislation upon the subject. How the Courts are to afford protection to slaves or any other property, where there is no law providing remedies and imposing penalties and con- ferring jurisdiction upon the Courts to hear and determine the cases as they arise, remains to be explained. The acts of Congress, establishing the several Territories of the United States, provide that : " The jurisdiction of the several Courts herein provided for, both appellate and original, and that of the Pro- bate Courts and Justices of the Peace, shall be as limited by law" meaning such laws as the Territorial Legislatures shall from time to time enact. It will be seen that the judicial tribunals of the Territo- ries have just such jurisdiction, and only such, in respect to the rights of persons and property pertaining to the citizens of the Territory as the Territorial Legislature shall see fit to confer ; and consequently, that the Courts can afford protection to persons and property no further than the Legislature shall, by law, confer the jurisdiction, and prescribe the remedies, penalties, and modes of proceeding. . It is difficult to conceive how any person who believes that the Constitution confers the right of protection hi the enjoyment of slave property in the Territories, regardless of the w^hes of the people and" of the action of the Territorial Legislature, can satisfy his conscience and his oath of fidelity to the Constitution in withholding such Con- gressional legislation as may be essential to the enjoyment of such right under the Constitution. Under this view of the subject it is impossible to resist the conclusion that, if the Constitution does estab- lish slavery in the Territories, beyond the po'wer of the people to 6 POPULAR SOVEREIGNTY IX THE TERRITORIES. control it by law, it is the imperative duty of Congress to supply all the legislation necessary to its protection ; and if this proposition is not true, it necessarily results that the Constitution neither establishes nor prohibits slavery any where, but leaves the people of each State and Territory entirely free to form and regulate their domestic affairs to suit themselves, without the intervention of Congress or of any other power whatsoever. But it is urged with great plausibility by those who have entire faith in the soundness of the proposition, that " a Territory is the mere creature of Congress; that the creature can not be clothed with any powers not possessed by the creator ; and that Congress, not possessing the power to legislate in respect to African slavery in the Territories, can not delegate to a Territorial Legislature any power which it does not itself possess." This proposition is as plausible as it is fallacious. But the reverse of it is true as a general rule. Congress can not delegate to a Terri- torial Legislature, or to 'any other body of men whatsoever, any power which the Constitution has vested in Congress. In other words : Every power conferred on Congress by the Constitution must be exercised by Congress in the mode prescribed in the Constitution. Let us test the correctness of this proposition by reference to the powers of Congress as defined in the Constitution : ' The Congress shall have power ' To lay and collect taxes, duties, imposts, and excises," etc. ; ' To borrow money on the credit of the United States ;" ' To regulate commerce with foreign nations," etc. ; 'To establish a uniform rule of naturalization," etc. ; ' To coin money, and regulate the value thereof ;" ' To establish post-offices and post-roads ;" 'To constitute tribunals inferior to the Supreme Court;" 'To declare war," etc. ; ' To provide and maintain a navy." This list might be extended so as to embrace all the powers con- ferred on Congress by the Constitution ; but enough has been cited to test the principle. Will it be contended that Congress can dele- gate any one of these powers to a Territorial Legislature or to any tribunal whatever ? Can Congress delegate to Kansas the power to " regulate commerce," or to Nebraska the power " to establish uni- form rules of naturalization," or to Illinois the power "to coin money and regulate the value thereof," or to Virginia the power " to estab- lish post-offices and post-roads ?" The mere statement of the question carries with it the emphatic answer, that Congress can not delegate any power which it does pos- sess ; but that every power conferred on Congress by the Constitu- tion must be exercised by Congress in the manner prescribed in that instrument. POPULAR SOVEREIGNTY IN THE TERRITORIES. 7 On the other hand, there are cases in which Congress may estab- lish tribunals and local governments, and invest them with powers which Congress does not possess and can not exercise under the Constitution. For instance, Congress may establish courts inferior to the Supreme Court, and confer upon them the power to hear and determine cases, and render judgments affecting the life, liberty, and property of the citizen, without itself having the power to hear and determine such causes, render judgments, or revise or annul the same. In like manner Congress may institute governments for the Territo- ries, composed of an executive, judicial, and legislative department ; and may confer upon the Governor all the executive powers and functions of the Territory, without having the right to exercise any one of those powers or functions itself. Congress may confer upon the judicial department all the judicial powers and functions of the Territory, without having the right to hear and determine a cause, or render a judgment, or to revise or annul any decision made by the courts so established by Congress. Con- gress may also confer upon.the legislative department of the Territory certain legislative powers which it can not itself exercise, and only such as Congress can not exercise under the Constitution. The powers which Congress may thus confer but can not exercise, are such as relate to the domestic affairs and internal polity of the Ter- ritory, and do not affect the general welfare of the Republic. This dividing line between Federal and Local authority was famil- iar to the framers of the Constitution. It is clearly defined and dis- tinctly marked on every page of history which records the great events of that immortal struggle between the American Colonies and the British Government, which resulted in the establishment of our national independence. In the beginning of that struggle the Col- onies neither contemplated nor desired independence. In all their addresses to the Crown, and to the Parliament, and to the people of Great Britain, as well as to the people of America, they averred that as loyal British subjects they deplored the causes which impelled their separation from the parent country. They were strongly and affectionately attached to the Constitution, civil and political institu- tions and jurisprudence of Great Britain, which they proudly claimed as the birth-right of all Englishmen, and desired to transmit them un- impaired $ls a precious legacy to their posterity. For a long series of years they remonstrated against the violation of their inalienable rights of self-government under the British Constitution, and humbly petitioned for the redress of their grievances. They acknowledged and affirmed their allegiance to the Crown, their affection for the people, and their devotion to the Constitution of Great Britain; and their only complaint was that they were not 8 POPULAR SOVEREIGNLY IN THE TERRITORIES. permitted to enjoy the rights and privileges of self-government, in the management of their internal affairs and domestic concerns, in accordance with the guaranties of that Constitution and of the colo- nial charters granted by the Crown in pursuance of it. They con- ceded the right of the Imperial government to make all laws and perform all acts concerning the Colonies, which were in their nature Imperial and not Colonial which affected the general welfare of the Empire, and did not interfere with the " internal polity" of the Colo- nies. They recognized the right of the Imperial government to de- clare war and make peace ; to coin money and determine its value ; to make treaties and conduct intercourse with foreign nations ; to regulate commerce between the several colonies, and between each colony and the parent country, and with foreign countries ; and in general they recognized the right of the Imperial government of Great Britain to exercise all the powers and authority which, under our Federal Constitution, are delegated by the people of the several States to the Government of the United States. Recognizing and conceding to the Imperial government all these powers including the right to institute governments for the Colonies, by granting charters under which the inhabitants residing within the limits of any specified territory might be organized into a political community, with a government consisting of its appropriate depart- ments, executive, legislative, and judicial ; conceding ah 1 these powers, the Colonies emphatically denied that the Imperial government had any rightful authority to impose taxes upon them without their con- sent, or to interfere with their internal polity ; claiming that it was J the birth-right of aU Englishmen inalienable when formed into a political community to exercise and enjoy all the rights, privileges, and immunities of self-government in respect to ah 1 matters and things which were Local and not General Internal and not Ex- ternal Colonial and not Imperial as fully as if they were inhabit- ants of England, with a fair representation in Parliament. Thus it appears that our fathers of the Revolution were contend- ing, not for Independence in the first instance, but for the inesti- mable right of Local Self-Government under the British Constitution ; the right of every distinct political community dependent Colonies, Territories, and Provinces, as well as sovereign States to make their own local laws, form their own domestic institutions, and manage their own internal affairs in their own way, subject only to the Con- stitution of Great Britain as the paramount law of the Empire. The government of Great Britain had violated this inalienable right of local self-government by a long series of acts on a great variety of subjects. The first serious point of controversy arose on the slavery question as early as 1699, which continued a fruitful source of irrita- POPULAR SOVEREIGNTY IN THE TERRITORIES. tion until the Revolution, and formed one of the causes for the separa- tion of the colonies from the British Crown. For more than forty years the Provincial Legislature of Virginia had passed laws for the protection and encouragement of African slavery within her limits. This policy was steadily pursued until the white inhabitants of Virginia became alarmed for their own safety, in view of the numerous and formidable tribes of Indian savages which surrounded and threatened the feeble white settlements, while ship- loads of African savages were being daily landed in their midst. In order to check and restrain a policy w r bich seemed to threaten the very existence of the colony, the Provincial Legislature enacted a law imposing a tax upon every slave who should be brought into Virginia. The British merchants, who were engaged in the African slave-trade, regarding this legislation as injurious to their interests and in viola- tion of their rights, petitioned the Bang of England and his Majesty's ministers to annul the obnoxious law and protect them in their right to carry their slaves into Virginia and all other British colonies which were the common property of the Empire acquired by the common blood and common treasure and from which a few adventurers who had settled on the Imperial domain by his Majesty's sufferance, had no right to exclude them or discriminate against their property by a mere Provincial enactment. Upon a full consideration of the subject the King graciously granted the prayer of the petitioners ; and ac- cordingly issued peremptory orders to the Royal Governor of Vir- ginia, and to the Governors of all the other British colonies in Amer- ica, forbidding them to sign or approve any Colonial or Provincial enactment injurious to the African Slave-Trade, unless such enactment should contain a clause suspending its operation until his Majesty's pleasure should be made known in the premises. Judge Tucker, in his Appendix to Blackstone, refers to thirty-one acts of the Provincial Legislature of Virginia, passed at various peri- ods from 1662 to 1772, upon the subject of African slavery, showing conclusively that Virginia always considered this as one of the ques- tions affecting her " internal polity," over which she, in common with the other colonies, claimed " the right of exclusive legislation in their Provincial Legislatures" within their respective limits. Some of these acts, particularly those which were enacted prior to the year 1699, were evidently intended to foster and encourage, as weh 1 as to regu- late and control African slavery, as one of the domestic institutions of the colony. The act of 1699, and most of the enactments subse- quent to that date, were as obviously designed to restrain and check the growth of the institution with the view of confining it within the limit of the actual necessities of the community, or its ultimate ex- tinction, as might be deemed most conducive to the public interests, 10 POPHLAK SOVEREIGNTY IN THE TERRITORIES. by a system of unfriendly legislation, such as imposing a tax on all slaves introduced into the colony, which was increased and renewed from time to time, as occasion required, until the period of the Rev- olution. Many of these acts never took effect, in consequence of the King withholding his assent, even after the Governor had approved the enactment, in cases where it contained a clause suspending its operation until his Majesty's pleasure should be made known in the premises. In 1772 the Provincial Legislature of Virginia, after imposing an- other tax of five per cent, on all slaves imported into the colony, pe- titioned the King to remove all those restraints which inhibited his Majesty's Governors assenting to such laws as might check so very pernicious a commerce as slavery. Of this petition Judge Tucker says : "The following extract from a, petition to the Throne, presented from the House of Burgesses of Virginia, April 1st, 1772, will show the sense of the people of Virginia on the subject of slavery at that period : " 'The importation of slaves into the colony from the coast of Africa hath long been considered as a trade of great inhumanity ; and under its present encourage- ment we have too much reason to fear will endanger the very existence of your Majesty's American dominions.' " Mark the ominous words ! Virginia tells the King of England in 1772, four years prior to the Declaration of Independence, that his Majesty's American dominions are in danger : Not because of the Stamp duties not because of the tax on Tea not because of his at- tempts to collect revenue in America ! These have since been deem- ed suflicient to justify rebellion and revolution. But none of these are referred to by Virginia in her address to the Throne there being another wrong which, in magnitude and enormity, so far exceeded these and all other causes of complaint that the very existence of his Majesty's American dominions depended upon it ! That wrong con- sisted in forcing African slavery upon a dependent colony without her consent, and in opposition to the wishes of her own people ! The people of Virginia at that day did not appreciate the force of the argument used by the British merchants, who were engaged in the African slave-trade, and which was afterward indorsed, at least by implication, by the King and his Ministers; that the Colonies were the common property of the Empire acquired by the com- mon blood and treasure and therefore all British subjects had the right to carry their slaves into the Colonies and hold them hi defiance of the local law and in contempt of the wishes and safety of the Colonies. The people of Virginia not being convinced by this process of reasoning, still adhered to the doctrine which they held in common POPULAR SOVEREIGNTY IX THE TERRITORIES. 11 with their sister colonies, that it was the birth-right of all freemen inalienable when formed Into political communities to exercise ex- clusive legislation in respect to all matters pertaining to their in- ternal polity slavery not excepted ; and rather than surrender this great right they were prepared to withdraw their allegiance from the Crown. Again referring to this petition to the King, the same learned Judge adds : "This petition produced no effect, as appears from the first clause of our [Vir- ginia] Constitution, where, among other acts of misrule, the inhuman use of the Royal negative in refusing us [the people of Virginia] permission to exclude slavery from us by law, is enumerated among the reasons for separating from Great Britain." This clause in the Constitution of Virginia, referring to the inhu- man use of the Royal negative, in refusing the Colony of Virginia permission to exclude slavery from her limits by law, as one of the reasons for separating from Great Britain, was adopted on the 12th day of June, 1776, three weeks and one day previous to the Declara- tion of Independence by the Continental Congress; and after remain- ing in force as a part of the Constitution for a period of fifty-four years, was re-adopted, without alteration, by the Convention which framed the new Constitution in 1830, and then ratified by the people as a part of the new Constitution ; and was again re-adopted by the Convention which amended the Constitution in 1850, and again rati- fied by the people as a part of the amended Constitution, and at this day remains a portion of the fundamental law of Virginia proclaim- ing to the world and to posterity that one of the reasons for separa- ting from Great Britain was " the inhuman use of the Royal negative in refusing us [the Colony of Virginia] permission to exclude slavery from us by law !" The legislation of Virginia on this subject may be taken as a fair sample of the legislative enactments of each of the thirteen Colonies, showing conclusively that slavery was regarded by them all as a do- mestic question to be regarded and determined by each colony to suit itself, without the intervention of the British Parliament or "the inhuman use of the Royal negative." Each colony passed a series of enactments, beginning at an early period of its history and running down to the commencement of the Revolution, either protecting, regulating, or restraining African Slavery within its respective limits and in accordance with their wishes and supposed interests. * North and South Carolina, following the example of Virginia, at first en- couraged the introduction of slaves, until the number increased be- yond their wants and necessities, when they attempted to check and restrain the further growth of the institution, by imposing a high rate of taxation upon all slaves which should be brought into those colo- 12 POPULAR SOVEREIGNTY IN" THE TERRITORIES. nies; and finally, in 17G4, South Carolina passed a law imposing a penalty of one hundred pounds (or five hundred dollars) for every negro slave subsequently introduced into that colony. The Colony of Georgia was originally founded on strict anti-slav- ery principles, and rigidly maintained this policy for a series of years, until the inhabitants became convinced by experience, that, with their climate and productions, slave labor, if not essential to their existence, would prove beneficial and useful to their material interests. Mary- land and Delaware protected and regulated African Slavery as one of their domestic institutions. Pennsylvania, under the advice of William Perm, substituted fourteen years' service and perpetual ad- script to the soil for hereditary slavery, and attempted to legislate, not for the total abolition of slavery, but for the sanctity of marriage among slaves, and for their personal security. New Jersey, New York, and Connecticut recognized African Slavery as a domestic in- stitution lawfully existing within their respective limits, and passed the requisite laws for its control and regulation. Rhode Island provided by law that no slave should serve more than ten years, at the end of which time he was to be set free ; and if the master should refuse to let him go free, or sold him elsewhere for a longer period of service, he was subject to a penalty of forty pounds, which was supposed at that period to be nearly double the value of the slave. Massachusetts imposed heavy taxes upon all slaves broughj into the colony, and provided in some instances for sending the slaves back to their native land ; and finally prohibited the introduction of any more slaves into the colony under any circumstances. When New Hampshire passed laws which were designed to pre- vent the introduction of any more slaves, the British Cabinet issued the following order to Governor Wentworth : " You are not to give your assent to, or pass any law imposing duties upon Negroes im- ported into New Hampshire." While the legislation of the several colonies exhibits dissimilarity of views, founded on a diversity of interests, on the merits and policy of slavery, it shows conclusively that they all regarded it as a domes- tic question affecting their internal polity in respect to which they were entitled to a full and exclusive power of legislation in the sev- eral provincial Legislatures. For a few years immediately preceding the American Revolution the African Slave-Trade was encouraged and stimulated by the British Government and carried on with more vigor by the English merchants than at any other period in the his- tory of the Colonies ; and this fact, taken in connection with the ex- traordinary claim asserted in the memorable Preamble to the act re- pealing the Stamp duties, that " Parliament possessed the right to POPULAR SOVEREIGNTY IN THE TERRITORIES. 13 bind the Colonies in all cases whatever," not only in respect to all matters affecting the general welfare of the empire, but also in regard to the domestic relations and internal polity of the Colonies pro- duced a powerful impression upon the minds of the colonists, and im- parted peculiar prominence to the principle involved in the controversy. Hence the enactments by the several colonial Legislatures calculated and designed to restrain and prevent the increase of slaves ; and, on the other hand, the orders issued by the Crown instructing the co- lonial Governors not to sign or permit any legislative enactment preju- dicial or injurious to the African Slave-Trade, unless such enactment should contain a clause suspending its operation until the royal pleas- ure should be made known in the premises ; or, in other words, un- til the King should have an opportunity of annulling the acts of the colonial Legislatures by the " inhuman use of the Royal negative." Thus the policy of the Colonies on the slavery question had as- sumed a direct antagonism to that of the British Government ; and this antagonism not only added to the importance of the principle of local self-government in the Colonies, but produced a general concur- rence of opinion and action in respect to the question of slavery in the proceedings of the Continental Congress, which assembled at Philadelphia for the first time on the 5th of September, 1774. On the 14th of October the Congress adopted a Bill of Rights for the Colonies, in the form of a series of resolutions, in which, after con- ceding to the British Government the power .to regulate commerce and do such other things as affected the general welfare of the em- pire without interfering with the internal polity of the Colonies, they declared "That they are entitled to a. free and exclusive power in their several provincial Legislatures, where their right of representa- tion can alone be preserved, in all cases of taxation and internal polity." Having thus defined the principle for which they were con- tending, the Congress proceeded to adopt the following " Peaceful Measures," which they still hoped would be sufficient to induce com- pliance with their just and reasonable demands. These "Peaceful Measures" consisted of addresses to the King, to the Parliament, and to the people of Great Britain, together with an Association of Non- Intercourse to be observed and maintained so long as their grievances should remain unredressed. The second article of this Association, which was adopted without opposition and signed by the Delegates from all the Colonies v was in these words : "That we will neither import nor purchase any slave imported after the first day of December next ; after which time we will wholly discontinue the Slave-Trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are engaged in it. " 14 POPTJLAB SOVEREIGNTY IN THE TERRITORIES. This Bill of Rights, together with these articles of association, were subsequently submitted to and adopted by each of the thirteen Colo- nies in their respective provincial Legislatures. Thus was distinctly formed between the Colonies and the parent country that issue .upon which the Declaration of Independence was founded and the battles of the Revolution were fought. It involved the specific claim on the part of the Colonies denied by the King and Parliament to the exclusive right of legislation touching all local and internal concerns, slavery included. This being the princi- ple involved in the contest, a majority of the Colonies refused to per- mit their Delegates to sign the Declaration of Independence except upon the distinct condition and express reservation to each colony of the exclusive right to manage and control its local concerns and poh'ce regulations without the intervention of any general Congress which might be established for the United Colonies. Let us cite one of these reservations as a specimen of all, showing conclusively that they were fighting for the inalienable right of local self-government, with the clear understanding that when they had succeeded in throwing off the despotism of the British Parliament, no Congressional despotism was to be substituted for it : "We, the Delegates of Maryland, in convention assembled, do declare that the King of Great Britain has violated his compact with this people, and that they owe no allegiance to him. We have therefore thought it just and necessary to empower our Deputies in Congress to join with a majority of the United Colonies in declaring them free and independent States, in framing such further confederation between them, in making foreign alliances, and in adopting such other measures as shall be judged necessary for the preservation of their liberties : " Provided, the. sole and exclusive right of regulating the internal polity and gov- ernment of this Colony be reserved to the people thereof. "We have also thought proper to call a new convention for the purpose of estab- lishing a, government in this Colony. "No ambitious views, no desire of independence, induced the people of Maryland to form an union with the other colonies. T^o procure an exemption from Parlia- mentary taxation, and to continue to the Legislatures of these Colonies the sole and exclusive right of regulating their Internal Polity, was our original and only motive. To maintain inviolate our liberties, and to transmit them unimpaired to posterity, was our duty and first wish ; our next, to continue connected with and dependent on Great Britain. For the truth of these assertions we appeal to that Almighty Being who is emphatically styled the Searcher of hearts, and from whose omniscience none is concealed. Relying on his Divine protection and assistance, and trusting to the justice of our cause, we exhoi't and conjure every virtuous citizen to join cordially in defense of our common rights, and in maintenance of the freedom of this and her sister colonies." The first Plan of Federal Government adopted for the United States was formed during the Revolution, and is usually known as " The Articles of Confederation." By these Articles it was provided that "Each State retains its Sovereignty, Freedom, and Independ- POPULAR SOVEREIGNTY IN THE TERRITORIES. 15 ence, and every power, jurisdiction, and right which' is not by this Confederation expressly delegated to the United States in Congress assembled." At the time the Articles of Confederation were adopted July 9, 1778 the United States held no lands or territory in common. The entire country including all the waste and unappropriated lauds embraced within or pertaining to the Confederacy, belonged to and was the property of the several States within whose limits the same was situated. On the 6th day of September, 1780, Congress "recommended to the several States in the Union having claims to waste and unap- propriated lands in the Western country, a liberal cession to the United States of a portion of their respective claims for the common benefit of the Union." On the 20th day of October, 1783, the Legislature of Virginia pass- ed an act authorizing the Delegates in Congress from that State to convey to the United States " the territory or tract of country with- in the limits of the Virginia Charter, lying and bearing to the north- west of the River Ohio" which grant was to be made upon the " condition that the territory so ceded shall be laid out and formed into States ;" and that " the States so formed shall be distinct repub- lican States, and admitted members of the Federal Union, having the same rights of Sovereignty, Freedom, and Independence as the other States." On the 1st day of March, 1784, Thomas Jefferson and his colleagues in Congress executed the deed of cession in pursuance of the act of the Virginia Legislature, which was accepted and ordered to "be recorded and enrolled among the acts of the United States in Con- gress assembled." This was the first territory ever acquired, held, or owned by the United States. On the same day of the deed of cession Mr. Jefferson, as chairman of a committee which had been appointed, consisting of Mr. Jefferson of Virginia, Mr. Chase of Mary- land, and Mr. Ho well of Rhode Island, submitted to Congress " a plan for the temporary government of the territory ceded or to be ceded by the individual States to the United States." It is important that this Jeffersonian Plan of government for the Territories should be carefully considered for many obvious reasons. It was the first plan of government for the Territories ever adopted in the United States. It was drawn by the author of the Declara- tion of Independence, and revised and adopted by those who shaped the issues which produced the Revolution, and formed the founda- tions upon which our whole American system of governments rests. It was not intended to be either local or temporary in its character, but was designed to apply to all " territory ceded or to be ceded," 16 POPULAR SOVEREIGNTY IN THE TERRITORIES. and to be universal in its application and eternal in its duration, wherever and Avhenever we might have territory requiring a govern- ment. It ignored the right of Congress to legislate for the people of the Territories without their consent, and recognized the inalien- able right of the people of the Territories, when organized into polit- ical communities, to govern themselves in respect to their local con- cerns , and internal polity. It was adopted by the Congress of the Confederation on the 23d day of April, 1784, and stood upon the Statute Book as a general and permanent plan for the government of all territory which we v then owned or should subsequently acquire, with a provision declaring it to be a "Charter of Compact," and that its provisions should " stand as fundamental conditions between the thirteen original States and those newly described, unalterable but by the joint consent of the United States in Congress assembled, and of the particular State within which such alteration is proposed to be made." Thus this Jeffersonian Plan for the government of the Territories thjs " Charter of Compact" " these fundamental condi- tions," which were declared to be " unalterable" without the consent of the people of " the particular State [territory] within which such alteration is proposed to be made," stood on the Statute Book when the Convention assembled at Philadelphia in 1787 and proceeded to form the Constitution of the United States. Now let us examine the main provisions of the JefferSonian Plan : First. "That the territory ceded or to be ceded by the individual States to the United States, whenever the same shall have been purchased of the Indian inhabit- ants and offered for sale by the United States, shall be formed into additional States," etc., etc. The Plan proceeds to designate the boundaries and territorial ex- tent of the proposed " additional States," and then provides : Second. "That the settlers within the territory so to be purchased and offered for sale shall, either on their own petition or on the order of Congress, receive au- thority from them, with appointments of time and place, for their free males of full age to meet together for the purpose of establishing a temporary government to adopt the Constitution and laws of any one of these States [the original States], so that such laws nevertheless shall be subject to alteration by their ordinary Legislature ; and to erect, subject to like alteration, counties or townships for the election of members for their Legislature." Having thus provided a mode by which the first inhabitants or settlers of the territory may assemble together and choose for them- selves the Constitution and laws of some one of the original thirteen States, and declare the same in force for the government of their ter- ritory temporarily, with the right on the part of the people to change the same, through their local Legislature, as they may see proper, the Plan then proceeds to point out the mode in which they may POPULAR SOVEREIGNTY IX THE TERRITORIES. 17 establish for themselves " a permanent Constitution and government," whenever they shall have twenty thousand inhabitants, as follows : Third. "That such temporary government only shall continue in force in any State until it shall have acquired twenty thousand free inhabitants, when, giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a Convention of Kepresentatives to establish a permanent Constitution and government for themselves. " Having thus provided for the first settlers " a temporary govern- ment" in these " additional States," and for " a permanent Constitu- tion and government" when they shall have acquired twenty thou- sand inhabitants, the Plan contemplates that they shall continue to govern themselves as States, having, as provided in the Virginia deed of cession, " the same rights of sovereignty, freedom, and independ- ence," in respect to their domestic affairs and internal polity, " as the other States," until they shall have a population equal to the least numerous of the original thirteen States ; and in the mean time shall keep a sitting member in Congress, with a right of debating but not of voting^ when they shall be admitted into the Union on an equal footing with the other States, as follows : Fourth. "That whenever any of the said States shall have of free inhabitants as many as shall then be in any one of the least numerous of the thirteen original States, such State shall be admitted by its delegates into the Congress of the United States on an equal footing with the said original States." .... And "Until such admission by their delegates into Congress any of the said States, after the establishment of their temporary government, shall have authority to keep a sitting member in Congress, with the right of debating, but not of voting." Attached to the provision which appears in this paper under the " third" head is a proviso, containing five propositions, which, when agreed to and accepted by the people of said additional States, were to "be formed into a charter of compact," and to remain forever " unalterable," except by the consent of such States as well as of the United States to wit : "Provided that both the temporary and permanent governments be established on these principles as their basis :" 1st. "That they shall forever remain a part of the United States of America." 2d. "That in their persons, property, and territory they shall be subject to 'the government of the United States in Congress assembled, and to the Articles of Con- federation in all those cases in which the original States shall be so subject." 3d. "That they shall be subject to pay a part of the federal debts contracted, or to be contracted to be apportioned on them by Congress according to the same com- mon-rule and measure by which apportionments thereof shall be made on the other States." 4