having "supplied a defect," as in the other case to which he had referred, and empowered Congress to do what it had done in respect to the Northwestern territory without authority? There were other territories beside that northwest of the Ohio to be provided for. South Carolina had at that very time ceded to the United States her interest in the territory east of the Mississippi, now comprised in the States of Mississippi and Alabama; North Carolina and Georgia were expected to cede what now constitutes Tennessee, and the residue of Mississippi and Alabama. Mr. Madison, in the 38th number of the "Federalist," written a year after the ordinance of 1787 was adopted, obviously alludes to those two last cessions as reasonably to be expected. How were these territories, and that which South Carolina had ceded, to be provided for; how were temporary governments to be erected; how were officers to be appointed for them; how was the States to be extended over them? clause of the Constitution authorizing "all needful rules and regulations" to be made? to be made? Was it not in contemplation of these organic arrangements for the communities which were to arise within the territory then acquired, and expected to be acquired, that Mr. Madison pronounced that clause as conferring "a power of very great importance"?

authority of the United Was it not under the

The reasonings contained in these two numbers of the "Federalist," (the 38th and the 43d,) are directly connected by Mr. Madison himself; and when considered in conjunction with his subsequent participation in legislative acts, by which the ordinance of 1787 was enforced and similar provisions applied to other portions of the public domain, his interpretation of the Constitution, in respect to the powers of Congress over the territory of the United States, cannot well be doubted. But if any lingering doubt should remain in respect to Mr. Madison's opinion as to the right of Congress to regulate municipal concerns of the persons residing upon the territory belonging to the United States, it will be re

moved by his declaration in Congress in 1790, that, though Congress was restricted by the Constitution from taking measures to abolish the slave-trade, yet there was a variety of ways in which it could countenance abolition, "and regulations might be made in relation to the introduction of them [slaves] into the new States to be formed out of the western territory."

I have been thus particular in explaining Mr. Madison's opinion, not only on account of the high authority which it carries with it, but because, from the manner in which it has been cited, it might seem to support conclusions which, in my judgment, derive no strength from it whatever.

Let me now call the attention of the Senate to the acts of Congress by which this construction of the Constitution is supported, for the purpose of exhibiting the force it derives from legislative precedents.

I. The ordinance of 1787 was recognized by chapter 8, 1st session, 1st Congress. The preamble recites that “it is requisite certain provisions should be made," &c., in order that the said ordinance "may continue to have full effect.” There was no division in either House upon its passage. There seems to have been no objection to it. Mr. Madison's name occurs on the Journal of the proceedings of the day on which the bill passed the House, of which he was a member. He was doubtless present, and concurred in the

measure.

This first precedent which I cite, has all the force of contemporaneous exposition. It is coeval with the birth of the new government. It may almost be denominated the work of the framers of the Constitution. It is recorded among the earliest acts by which that instrument was put in operation. It is one of the first footsteps by which the movement of the new government is to be traced out of the darkness in which its dawn was enveloped, into the clear, broad sunlight of its stability and strength. The act was signed by General Washington.

That the ordinance was not deemed by its framers, or by the Congress which continued it in force, incompatible with any degree of freedom from restraint, which may be justly claimed as essential to political liberty, is apparent from the terms of the instrument itself. The articles, of which the sixth and last prohibited slavery, were expressly declared to be adopted, "for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said Territory; to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the Federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest."

Several considerations suggest themselves in connection with this subject.

1. Neither the framers of the ordinance nor the first Congress considered the perpetual prohibition of slavery in the Northwestern territory inconsistent with the admission of the States to be formed out of it into the Union on "an equal footing with the original States." Neither the actual tenure of slaves, nor the right to hold them, could have been considered essential to the full fruition of the political liberty which the States possessed as members of the Union.

2. The prohibition was not considered inconsistent with the terms of cession of the territory by Virginia in 1784, which required that the States to be formed out of it should be "republican States, and admitted members of the Federal Union, having the same rights of sovereignty, freedom, and independence." These rights of sovereignty, freedom, and independence, therefore, which the members of the Federal Union enjoyed, were by the Congress of the Confederation, and the first Congress, deemed fully possessed, although the right to hold slaves was prohibited. Virginia

concurred in passing the ordinance in the Congress of the Confederation in 1787, and in continuing it in force in the first Congress under the Constitution in 1789.

Whatever doubt there may be as to the original validity of the ordinance, I believe, its authority has always been respected by responsible tribunals. I will read a decision from the Supreme Court of Louisiana, in the case of Merry v. Chexnaider, 8 Martin's Reports, (new series,) 699:

"On appeal from the Court of the First District, Porter, J., delivered the opinion of the court. The plaintiff sues in this action to recover his freedom, and from the evidence on record is clearly entitled to it. He was born in the Northwestern Territory since the enactment of Congress, in 1787, of the ordinance for the government of that country, according to the 6th article of which there could be therein neither slavery nor involuntary servitude. This ordinance fixed forever the character of the population in the region over which it is extended, and takes away all foundation from the claim set up in this instance by the defendant. The act of cession by Virginia did not deprive Congress of the power to make such a regulation.

"It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs."

This decision was pronounced in 1830, and it fully sustains the view of the subject I have taken.

II. On the 7th of April, 1798, an act was passed for an amicable settlement of limits with the State of Georgia, and authorizing the establishment of a government in the Mississippi territory. This act authorized the President to establish therein a government in all respects similar to that in the territory northwest of the Ohio river, excepting the sixth article of the ordinance of 1787. It then prohibited the importation of slaves into the Territory from any place without the limits of the United States. This act was passed ten years (less a few months) before Congress was authorized by the Constitution to prohibit the importation of slaves into the States which were originally parties to the Federal compact. This provision of the Constitution applied only to the then existing States. It did

not extend to the States thereafter to be formed, or to the territories of the United States, a fact of the highest importance, if it is to be regarded as a limitation of a vested power. The exercise by Congress of the power of prohibiting the introduction of slaves into the Mississippi Territory from foreign countries appears to have passed without opposition. I find no division in either House on that clause of the bill. This fact shows the undisputed interpretation put at that day on the Constitution of the United States in respect to the powers of Congress over every matter of domestic concern in the territory belonging to the United States, and especially over the subject of slavery, the most delicate of all. There was a direct exercise by Congress, in respect to the territories, of a power which was positively prohibited in respect to the States existing at the adoption of the Constitution. This act passed under the administration of the elder Adams.

III. At the first session of the 6th Congress, chap. 41, laws of 1800, an act was passed to divide the territory belonging to the United States northwest of the Ohio river into two separate governments. This act created a territorial government for Indiana in all respects similar to that provided by the ordinance of 1787 for the government of the Northwest territory. This precedent reaffirms the principles contained in the ordinance. The act was signed by

the elder Adams.

IV. On the 26th of March, 1804, an act was passed dividing Louisiana into two territories, and providing for the temporary government thereof. All that part of the territory south of the 33d parallel of latitude, now the southern boundary of Arkansas, was erected into the territory of Orleans.

The 10th section of the act had three provisions in respect to slavery in the Territory: 1. The importation of slaves, from any place without the limits of the United States, was prohibited; 2. The importation, from any place within the