The Law of the Territories

Philadelphia: C. Sherman & Son.
THE author of the two able essays contained in this volume will be remembered by many of our readers under his assumed name of “ Cecil.” The second, as he himself tells us, on “ Popular Sovereignty in the Territories,” was published, as one of a series of essays on Southern politics, in the Philadelphia North American and I ’UniteaStates Gazette. The first, we believe, has never been published before.
Our author, whom we may designate, without violating any confidence, as Mr. George Sidney Fishier, devotes an elaborate preface, which is itself a third essay, to discussing the invasion of Virginia by John Brown and the Southern threats of secession, drawing from the foray of Harper’s Ferry a conclusion very different from that of the disunionists. In his own words,—
“ Disunion is a word of fear. Is it not strange that it should have been as yet pronounced only by the South? The danger of insurrection and servile war belongs to the nature of slavery. It is, perhaps, not too much to assert that the safety and tranquillity of Southern society depend on the fact that the Northern people are close at hand to aid in case of need.— that the power of the General Government is ever ready for the same purpose. Four millions of barbarians, growing with tropical vigor, and soon to be eight millions, with tropical passions boiling in their blood, endowed with native courage, with sinews strong by toil, and stimulated by the hope of liberty and unbounded license, are not to be trifled with. Take away from them the idea of an irresistible power in the North, ready at any moment to be invoked by their masters, or let them expect in the North, not enemies, but friends and supporters, which even now they are told every day by these masters they may expect, — and how soon might a flame be lighted which no power in the South could extinguish ! ”
Mr. Fisher treats of the “Law of the Territories” in two essays,— the first considering more particularly “ The Territories and the Constitution,” the second, “ Popular Sovereignty in the Territories.” The first commences with a quotation so happy that it has all the effect of original wit: —
“ The wily and witty Talleyrand was once asked the meaning of the word ‘ non-intervention,’ so often used in European diplomacy. ‘It is a word,’ he replied, ‘ metaphysical and political, not accurately defined, but which means — much the same thing as intervention!’ The same word has been frequently employed, of late years, in our politics, with the same difference between its professed and its practical signification. It was introduced for the first time in reference to the government of the Territories, when it became an object for the South to gain Kansas as a Slave State. Two obstacles were to be overcome. One was the Missouri Compromise, which was a solemn compact between North and South to settle a disturbing and dangerous question; the other was a possible majority in Congress, that, it was feared, might prohibit slavery in the new Territory. Southern politicians had at the time control of the government; and they got rid of both difficulties by repealing the Missouri Compromise in the Kansas and Nebraska Bill. By necessary implication, arising from the relation of the Territories to the rest of the nation, by the language of the Constitution, and by the uniform construction of it and practice under it from the earliest period of our history, the Territories had been subjected to the absolute control of the General Government. By the Kansas and Nebraska Bill they were withdrawn from that control. The principle of Popular Sovereignty, it was said, applied to them as well as to the States; and this bill declared that the people of the Territories should be perfectly free to choose their own domestic institutions and regulate their own affairs in their own way;”
The means employed to carry out this plan and the ultimate failure of the plan itself are sketched with a boldness and vigor that our limits, much to our regret, forbid our reproducing. Mr. Fisher, however, fails to notice the wretched plea put forth by the Democratic managers, in favor of the recognition by Congress of the Lecompton Constitution,—that it had been officially authenticated. All might be wrong, but the official record pronounced it right; and behind that record Congress had no authority to go. And this plea was advanced in the face of overwhelming evidence tending to show that the officials, for whose record so inviolable a sanctity was claimed, were appointed for the express purpose of falsifying that record ! If confirmation be wanted, we need go no farther than the fate of Robert J. Walker, who was eager to make Kansas a Slave State, but was so false to every principle of Democratic integrity as to confine himself to legitimate means to bring about that result,— a remissness for which he was promptly removed by President Buchanan! Mr. Fisher pertinently says,— “ Two great facts were plainly visible through the flimsy web of attorney logic and quibbling technicality, not very ingeniously woven to conceal them. One of these facts was, that the people of Kansas were heartily and almost unanimously averse to slavery; the other was, that the Government was trying by every means in its power to impose slavery upon them,”
After describing the contemptuous rejection by the people of Kansas of the pro-slavery constitution, Mr. Fisher proceeds with an analysis of the Kansas-Nebraska fraud, so clear and so masterly that we must again quote his own language, with an occasional condensation or omission.
“ It was clear, therefore, that the principle of Popular Sovereignty, introduced by the Kansas and Nebraska Bill, a principle before unknown to the law and practice of our government, would not suit the South. It appeared too probable that not only the people to inhabit all the territory north of 36° 30/, but also much territory south of it, would, like the people of Kansas, reject slavery, if left to regulate their domestic institutions in their own way. What, then, were Southern politicians to do? Invoke the ancient and long exercised, but now denied and derided power of Congress over the Territories? This might prove a dangerous weapon in the hands of possible future Northern majorities. It was obviously necessary to withdraw slavery alike from the control of Congress and of the people of a Territory. Some ingenuity was required for this. The doctrine that the Constitution extends to the Territories (a doctrine broached before by Mr. Calhoun, but always defeated on the ground that the Constitution, by its language and the practice under it, was made for States only, and that the Territories were subject to the supreme control of Congress, *— a control frequently exercised, not only independently of the Constitution, but in a manner incompatible with it) was introduced, with other innovations, into the Kansas and Nebraska Bill. The Dred Scott decision of the Supreme Court followed, by which the Constitution recognizes slavery as a national institution. It recognizes slaves as mere property, differing iu no respect from other merchandise. The Territories belong to the nation. Every citizen has equal rights to them and in them. Why, therefore, may not a Southern man, as well as a Northern man, go into them with his property ? What right has Congress to place the South under an ignominious bar of restriction? The Constitution declares that slaves are property; that all the States and the people have equal rights. The Territories belong to all. Therefore, under the Constitution, they should be enjoyed by all.
“ By this ingenious logic the Kansas and Nebraska Bill is made to contradict itself, it first declares that the Constitution extends to the Territories; in other words, slavery exists there by force of the Constitution, without reference to the will of the people. It then says that the people of the Territories shall be ‘perfectly free to form and regulate their domestic institutions in their own way.’
“The contradictions, duplicity, and absurdity of the law are obvious at once. The first sentence announces a change in the settled principles and policy of the Government; else why declare that the Constitution ‘ shall ’ extend to Nebraska, if it already extended there? Then comes the repeal of the Missouri Compromise. The reason given for this is, that it is inconsistent with the non-intervention by Congress with slavery, recognized in the Compromise of 1680. But that law declares positively that Congress does not intervene, because it is ' inexpedient' to do so ; and gives the reason why it is inexpedient. The power o Congress was asserted by Mr. Clay, who made the law, and the terms of it were chosen for the very purpose of preventing any inference being drawn from it against that power.
“ It is remarkable, too, that the Bill, whilst declaring the perfect freedom of the Territories, should still have left them subject to the power of the President, who, as before, is permitted to appoint their Governor, Judges, and Marshals, officers who are his agents, and without whose sanction the acts of the Territorial Legislature can neither become laws, nor be construed and applied, nor executed. So that the will of the people may be defeated, should it happen to be opposed to the will of the President: as was seen in the case of Kansas.
“Why,” Mr. Fisher asks, “is the anomalous monster of Popular Sovereignty to be introduced with reference to slavery ? Is it because slaves are ‘mere property ’ ? Why, then, not subject all property, land included, to popular control ? Is it because the subject of slavery is an exciting topic, a theme for dangerous agitation, to be checked only by placing the subject beyond the power of Congress? The answer is, that Congress cannot abdicate its power on the ground of expediency. If it may give up one power, it may give up all. Nor can Congress delegate its power for the same reason. Trust power, from its very nature, cannot be delegated. To break down great principles, to set aside ancient usage, to abandon legal authority, in order to appease the contests of parties, is too great a sacrifice. No true peace can come of it; only suppressed and adjourned war.”
The natural inference from the extracts we have given would bo that Mr. Fisher was a member of the Republican party. But such is not the fact: Mr. Fisher rests his hope upon a party “yet to be organized.” “ The extreme Northern, or Freesoil, or Abolition party is only less guilty than the extreme Southern and Democratic party.” Which ? Does Mr. Fisher mean that “Northern,” “Free-soil,” and “Abolition ” are synonymous terms ? And does any or do all of them mean the Republican party ? Or, finally, does Mr. Fisher shrink from the conclusions presented by his logic, and is his vaguely convenient linking together of different words intended to leave his position gracefully doubtful ? And in that case, do the Baltimore nominations, with their innocent unconsciousness, supply his political needs ? It is not easy to answer these questions. We begin now upon the views of a Pennsylvania Oppositionist: and quicksilver defied not more utterly the skill of Raymond Lullius than the doctrines of the Philadelphia school perplex the inquiries of sharply defined Now England minds. The rudimentary state of Republican principles may nowhere else be so clearly seen as in Pennsylvania. Four years of the Democratic administration of her “ favorite son” have done much to make her less favored sons into good Republicans ; but the State needs another Democratic President. Mr. Fisher appears to much more advantage in pulling down than in building up. We have hitherto seen only the keen, fearless dissector of fraud and hypocrisy ; we are now to contemplate a circumspect alarmist, who dreads to call things by their right names for fear of unpleasant consequences. He is such a master of English, so judicious in the use of middle terms,— so shrewd a fencer altogether, — that even his timidity cannot make him other than a formidable opponent.
Mr. Fisher, believing that slavery receives ample protection from a fair interpretation of the Constitution, holds that
“ Congress has plenary power over the Territories, often exercised on this subject of slavery. It may be said that Congress has on various occasions prohibited slavery in the Territories. True; but with the consent, and coöperation of the Southern States. The people of all the States have equal right in the Territories. To exclude the people of the Slave States, therefore, without their consent, would be unequal and opposed to the spirit of the Constitution.”
Certainly it would. Who proposes to do it? No living man, woman, or child. It is worth noticing, by the way, that the Republican party is not committed to the doctrine of carrying out the principle of the Wilmot Proviso. But supposing it were, Mr. Fisher’s argument has no force or direction, unless he can establish his suppressed premise,—that the exclusion of slavery from the Territories is the exclusion of “the people of the Slave States” from the Territories. And to make that good, all Mr. Fisher’s skill and ingenuity will be required. Why so many Northern politicians should have weakly surrendered this point is a mystery. Because the slaveholders (who are not, Mr. Fisher,
“ the people of the Slave States,” by any means, hut a small portion of them) are at home a privileged aristocracy, have they any claim to the same position abroad ? If so, on what does it rest ? The laws of the Southern States? They are now beyond their jurisdiction. The common law ? To that wise and beneficent law slavery is a thing unknown. The Constitution ? It is silent. There is no exclusion of the Southerners even proposed. Let them come : but when they claim to carry with them the right to hold a certain class of men as property because they are recognized as property by certain local regulations elsewhere prevailing, they must not complain, if such a claim be disallowed. The Southerner's complaint, that be is accustomed to the institution of slavery, is fairly met by the Northerner’s retort, that he is accustomed to the institution of freedom.
Now, which voice shall prevail ? Neither party has any more right than the other; and neither party has any right at all. The Territories are in a state of wardship ; and Congress is to decide as it thinks best for their welfare, present and future ; and if Congress thinks that a nation prospers with free institutions and droops under slavery, then let Congress admit the Territory as a Free State. True, there is some inconvenience to the slaveholder ; hut from so abnormal a relation as slavery some inconvenience must result. When admitted to be a necessary evil, it is barely tolerable : when boastingly proclaimed to be a sovereign good, it is fairly intolerable. And it is both criminal and foolish to try to make good all the evils inseparable from slavery by systematic injustice to other interests.
“Slavery has changed. When Southern men consented to its prohibition, they hoped and believed that the time would come when it could be abolished altogether. They have as much right to these as to their former opinions, and to have them represented in the Government.”
Here Mr. Fisher hints at, rather than fully states, the grand retort of the Southerners,— “ Our fathers, you say, were opposed to slavery : very good; but we are not: why should we be bound by their opinions?” A mere misapprehension of the force of the argument. The Southerner of I860 is not bound by the opinions of Madison and Jefferson ; but the North may fairly adduce the opinions of those men, who were framers of the Constitution, not as binding upon their descendants, but as serving to explain the meaning of disputed provisions in that Constitution. The Constitution binds us all, North and South: then recurs the question, What is the meaning of its provisions ? and then the contemporaneous opinions of its framers come legitimately into play as an argument.
Of the Missouri Compromise Mr. Fisher says, —
“It may be said that this law was a violation of the equal rights of the Southern people, by excluding them from a largo portion of the national domain. The answer is, not merely that this was done with their consent, their representatives having approved the law, but that the law did recognize their rights, by dividing between them and the Northern people all the territory then possessed by the Government.”
We are surprised that upon his own presentation of the case this simple question does not occur to Mr. Fisher: Supposing the South and the North to have had equal and conflicting rights in the national domain, and supposing that there was need of some arbiter, and remembering that Congress undertook the duties of arbiter and decided that the division under the Missouri Compromise gave each section its rightful share, — then, with what propriety can the South, after occupying its own share, call for a portion in the share allotted to the North?
The second essay, on “Popular Sovereignty in the Territories,” presents comparatively few salient points. A very spirited and just history of the working of the Administration schemes in Kansas, a restating of some of the arguments against the Kansas-Nebraska Act set forth in the preceding essay, and a remonstrance against the headstrong course of Southern politicians are its most noticeable features.
“ The Union, the Constitution, and the friendship of the North: these are the pillars on which rest the peace, the safety, the independence of the South. The extraordinary thing is, that for some years past the South has been, and now is, sedulously employed in undermining this triple foundation of its power and safety. Its extravagant pretensions, its excesses, its crimes, are rapidly cooling the friendship of the North, — converting it, indeed, into positive enmity. Its leading politicians are ever plotting and threatening disunion. The time may come when disunion will be proffered to them from the North, not as a vague and passionate threat, but as a positive and well-considered plan, backed by a force of public opinion which nothing can resist. Ere long, the South is likely to be left with no other defence than the Union it has weakened and the Constitution it has mutilated and defaced.
“ The makers of the Kansas and Nebraska, law were clumsy workmen. They forgot to provide for the case of an anti-slavery President. They will, perhaps, learn wisdom by experience.
' To wilful men
The injuries that they themselves procure
Must be their schoolmasters.’
Those who framed the Constitution and laid the foundation of this Union understood their business better. That Constitution was intended to protect the South, and has protected it. Southern politicians cannot improve it. For their own sakes they had better let it alone.”
We have given enough to show that in discussing Mr. Fisher we are dealing with two different men. The field is now clear for the great political contest of 1860. Mr. Fisher may have allied himself before this with the Republicans, or may look to have his anticipations fulfilled by that third party who are as unconscious of wrong as powerless to rectify it, “ the world-forgetting, by the world forgot.” We wish him well through his troubles.