by which it was established. The people of Missouri do not claim to be admitted according to the principles of either; but they demand admission according to the terms of the treaty and the principles of the present constitution.

This ordinance was the act of the old confederation; and whatever power they may have had to acquire the ceded territory, it is admitted, on all hands, that they possessed no authority to establish a territorial form of government, or to admit new states, without the consent of nine of the states composing the old confederacy. The territory northwest of the Ohio, to which the ordinance was applied, was ceded by Virginia; it was, at the time of its cession, uninhabited, excepting by a few French and Canadian settlers, who held slaves; after its acquisition by the old confederacy, it was discovered that they had no power to govern it, without the consent of the state by whom it was ceded; they therefore framed the ordinance of '87, providing for its erection into states, and for the prohibition of involuntary servitude. This ordinance was to be in the nature of a compact, between the states ceding it, the United States, and the people of the territories; it became necessary, therefore, to obtain the consent of the state of Virginia to the ordinance, which she gave by her act passed the 30th of December, 1788; and in this manner the ordinance of '87 may be considered as forming the terms of the cession by the state of Virginia. The French and Canadian inhabitants there, at the time of the cession, were not affected by the ordinance: they continued to hold their slaves, the issue of which are held by their posterity to the present day. This o dinance was considered doubtful, until the adoption of the present constitution, by the first clause of the sixth article of which it was supposed to be confirmed.

But this confirmation shows it to be in the nature of a compact, and not of a law; a compact voluntarily entered into by all the parties connected with it; not incorporated in the present constitution as a grant of power, or explanatory of its principles; but merely

sanctioned by a simple clause, providing for the validity of contracts. It was a contract made by the party ceding the territory; it did not propose to affect the rights of persons residing there; it was to operate as a contract upon those who should subsequently remove thither; such persons, therefore, went under this ordinance; they voluntarily became parties to it; and such only settled there as were willing to live without slaves, and subject to the terms of the compact. In this manner the country became settled by a non-slave-holding population, and when they came to make their constitution and state governments, they voluntarily framed them according to their own feelings and habits. Beyond this, I deny that there was any binding force in this ordinance. It was not competent for it to take away the right of altering the constitution, though it is a right existing in theory merely, as the interests of the people will no doubt always prevent any alteration in this respect. If the same policy had been pursued by Congress in respect to the territory of Louisiana, from the date of its acquisition, a similar effect would have been produced, and all the unpleasant convulsions to which the present attempt to usurp power is likely to give rise, would have been prevented.

So far, then, as this famous ordinance is good for any thing, it is good only in the nature of a contract; it is so treated by every gentleman who has noticed it in debate; and a contract made before the present constitution, and applicable to a particular territory, by the consent of the power ceding it. It has, then, clearly performed its office; it is functus officio; it applies to no other territory either in fact or principle. It does not follow, that, because the old confederation concluded a contract, which the people of the United · States subsequently confirmed, that therefore the present Congress can make a similar contract, enlarging their own powers, without the same sanction of the people of the United States, who have yet delegated no such authority.

But here the people of Missouri have a contract al

so, though it is one of a very different nature from that of the ordinance of '87. Their contract stipulates for their admission to the enjoyment of equal rights, immunities, and advantages of citizens of the United States, and the restriction proposed can only be enforced by compact, independent of the constitution. We say to them, that, unless they will agree to tack the ordinance of '87 to the treaty, whose provisions will thereby be entirely varied, we will violate its terms or disregard them. What would have been said, if we had insisted upon similar concessions by the states formed out of the territory ceded by North Carolina, which were, also, admitted according to the terms of the contract of cession? We have as little right to insist upon them in regard to the people of Missouri as we had to dictate them to these states. It is in both cases a violation of good faith. Under this treaty, we accepted a territory in which slavery existed, and rights of property recognized by the government ceding it. We stipulated to protect the enjoyment of that property. We have encouraged emigration of the free citizens of the United States thither by our whole course of policy. We have, in no instance, attempted to interdict the transportation of slaves there, excepting by a law which lived but a year and was then repealed; this law prevented their introduction there for sale merely; it permitted, and thereby encouraged, their introduction by persons removing into the territory to settle. In this way, under our own auspices, this species of property has been acquired, and we now attempt, in the face of our own acts, and in defiance of the treaty, not only to force the people of Missouri to give up their right to form their constitution, in regard to the future introduction of slaves by persons going there to live, but also to annihilate all the rights already acquired: we force them to do what we never thought it prudent ourselves to attempt, even when we had the power!

No little reliance has also been placed, by the honorable mover, upon the clause in the constitution, vest

ing in Congress a power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States.

I do not propose to enter minutely into the inquiry whether the power of Congress to establish a territorial government, is derived from this clause. I incline to the opinion that it is not. The power, here conferred, is a power to dispose of, and make needful rules respecting, the property of the United States. It was designed, I think, to authorize the sale of the land for purposes of the revenue, and all regulations which might be deemed necessary for its proper disposition; or to convert it to other public objects, disconnected with sale or revenue; to retain this power even after the territory had assumed a state government, and perhaps to divest from the state government the right of taxing it, as it would do the property of individuals. It is silent as to the people; and their slaves are the property of their owners, and not of the government. The right to govern a territory is clearly incident to the right of acquiring it. It would be absurd to say, that any government might purchase a territory with a population, and not have the power to give them laws; but from whatever source the power is derivable, I admit it to be plenary, so long as it remains in a condition of territorial dependence, but no longer. I am willing, at any time, to exercise this power. I regret that it has not been done sooner. But, though Congress can give laws to a territory, it cannot prescribe them to a state. The condition of the people of a territory is to be governed by others; of a state to govern themselves. This is the great favor we permit them to enjoy when we exalt them to the character of a state. The instant we authorize them to form their constitution, the territorial disabilities, and the powers of Congress over them, crumble together in the dust. A new being, and a new relation spring up; the state authority, derived from the just powers of the people, takes its place; every feature of the territorial authority becomes effaced, and the federal powers of Con

gress, encircling a state, commence their operation. There is nothing of territorial disability on the one hand, or territorial authority on the other, which passes into the new order of things; if they did, the state would be incomplete.

[It had been very confidently asserted, by some of the advocates of the proposed amendment, that Congress were invested with the power of prohibiting the removal of slaves from one state of the union to another, by the ninth section of the first article of the constitution, which provides, that "the migration or importation of such persons, as any of the states, now existing, shall think proper to admit, shall not be prohibited by Congress, prior to the year 1808; but a tax, or duty, may be imposed on such importation, not exceeding ten dollars for each person." After replying to the arguments which had been advanced in support of this position, Mr. M'Lane proceeded.]

Mr. Chairman, having consumed so much of the time of the committee in the constitutional question, I have not the power, if I possessed the inclination, to enter into a consideration of the expediency of this amendment. It is sufficient for me to know, that the constitution forbids me to adopt it, though I am free to acknowledge that the establishment of a precedent for interfering in the formation of state constitutions is of a very dangerous character. But, surely, sir, our right ought to be very clear before we pursue it in a case like the present. It involves consequences of too serious a nature to be hazarded upon a doubtful power. It is worse than an attempt to legislate in a case in which your power was ambiguous, and in which your authority could be examined, and sustained, or overruled, by the judicial tribunals of the nation, which are the common arbiters of us all. It forces an odious measure upon an unwilling people, in a form which leaves them no redress in any pacific course. If they do not tamely submit to the restriction, you must either ignominiously abandon, or impose it by force! Impose it. sir? No! But make the hazardous at