and observed by the future people of those three or five States. But Congress now limiting their action and assumed power within the transitory condition of a Territory, and meaning not to anticipate nor bind the will of the settlers in regard to their permanent government, it plainly appears that the exclusion of Slavery,—it being positive, and intended to last forever afterwards,-is a manifest contradiction to the professed object of organizing a temporary government.

But the alleged ordinance cannot be a precedent for Congress, because it took place at a time when the Constitution had not yet been formed and adopted,-two years before this Government was organized and commenced proceedings according to its prescriptions. As the present Congress, therefore, have been created by the Constitution, and act by its authority, so it is only by this instrument they must measure their powers, and not by what has been done by the former Congress, which, though Federal, was not the Congress of the government organized and put in motion by the Constitution.

Now, the Constitution makes no allusion to the ordinance of 1787; and if we could be supposed to have alluded to it in the above recited clause, still, by the words therein made use of, we should be understood to have revoked, and denied Congress, those powers which that ordinance might lead one to imagine were implied in it. We give them power merely to regulate, and dispose of, the Territory as property; and this power never can be so stretched as to comprehend also the persons who settle in the Territory, even to the effect of giving them a government and excluding Slavery from it, to the utter destruction of those rights which are inherent, and, what is more, expressly recognized in the States and every citizen.

If, in order to occupy a distant Territory, the Federal Government sent thither a number of citizens to settle, as was the case with other communities, both in ancient and modern times, Congress might then, indeed, legislate for or against Slavery in it, and prescribe to the settlers such form

of government as they thought proper. But, then, the settlement should be looked upon as a colony dependent on the Government who plants it; nor could it ever aspire to having a constitution of its own, and be as independent a State as any in the Union. But this does not conform with our institutions, whose principle it is that the people themselves must frame their own laws and give shape to that community in which they intend to live together.

Those who settle in the Territory, go thither on their own motion, and not because the Government sends them. They settle and stay there in the persuasion that, when there shall be of them a sufficient number, they may mould the form of their own community and enact such laws as they judge to be the best for themselves to be ruled by. And they are sure that, on entering the confederation, they are entitled to be considered in it as a sovereign, independent State, like the others. This being our case, it is inconsistent with both reason and justice to say that Congress have the power to organize for them even a temporary government, or legislate for or against Slavery among them. This, in reality, would be to give them in advance a permanent constitution in disguise.

Not to mention that both the form of government, except that it must be republican, and the exclusion or permission of Slavery, are things so much depending on local circumstances, of which the people themselves on the spot are the best judges, that it were alike improvident, dangerous, and unjust, to leave it to Congress to do it for them on hearsay; even though the information should come from persons otherwise veracious and credible, or from commissioners despatched thither for that purpose.

This supposed power of Congress, if not of legislating on Slavery, at least of giving the people of the Territory a temporary government, is derived by some, not from the clause before spoken of, but from that provision in the Constitution which says: "New States may be admitted by the Congress into this Union." The Committee on Territories,

in a report for Kansas, submitted to the Senate on the 12th of March, 1856, say, "The right of Congress to pass the organic Act for the temporary government, is clearly included in the provision which authorizes the admission of new States;" and again: "So far as the organization of a Territory may be necessary and proper as a means of carrying into effect the provision of the Constitution for the admission of new States, when exercised only with reference to that end, the power of Congress is clear and explicit." The principle is true that, where the end is granted, there is granted also the use of the means necessary to that end; but the application is far from being so. For, it is its practical application to the circumstances of particular cases, and its just correspondence with them each time, that proclaim the truth of a general principle.

That Congress may admit a new State into the Union means no more than that, when a State, who is not in the confederacy, wishes to be one of its members, Congress, who represent the Union, have the power to admit her into it. This presupposes that the new State is already existing by herself before admission. It does not include the idea that she has been formed or prepared by Congress. So were all those colonies who did not enter the Union at its first forming, but have petitioned and been admitted into it afterward. The same must be said of any State that may be admitted in future.

There can be no doubt that it is the State who must ask for admission. When this is done, it belongs to Congress to see what she is, and then determine whether the petition is to be granted or denied. Congress, therefore, are merely passive in this business. They have power to admit the new State, if she asks for it; but can they make her come into the Union? So that the power to admit new States does literally and necessarily exclude any previous action of Congress for her formation.

Nor is the matter changed in regard to Territories. Such an important distinction, in so weighty a matter,

should result from express words in the Constitution. It cannot be induced from supposition, nor be the effect of interpretation; though even this could not work it out in the present instance. In order to be justified in saying that Congress are empowered to give the settlement a temporary government, to the end of preparing it to its being admitted as a State into the Union, they should have proved first, among other things, that, when the settlement has the necessary qualifications to be called a State, it must enter into the Union, whether its people will or not. They will indeed ask for admission, if they consult their own interests; but the question here is, whether they must ask for it. It is on this "must" that the power of Congress visibly depends.

Such a necessity appears not to have been demonstrated; and whence does it come? Cannot the settlers live by themselves? The fact is this: they buy the public land, because the Government sells it; they settle in it, because it is their property; they live scattered at distances, if few, or together, in a community, if thickly seated, because they are free: and this they have the right to do when only 50, and when 50,000, or 500,000. The difference in the number makes no difference in the matter. But if their entering the Union is not compulsory, the necessary consequence is, that Congress can have no power to force upon them a temporary government as a preparation to their admission,—wherein the principle invoked by the Committee is with truth retorted on them; namely, that where the end is denied, there the use also of the means conducive to that end is necessarily denied.

BOST.-But they, it seems, must finally enter the Union; this being the destination of any settlement in the Territory. It is for that purpose the public land is surveyed and divided into townships, occupying together a space large enough to be a State, with the view that, when properly filled with inhabitants, these might be regarded as the community of a State to be admitted into the Union as one of

its members. This appears from that resolution of Congress, dated October 10, 1780, wherein it is declared, "That the unappropriated lands that may be ceded or relinquished to the United States by any particular State

shall

be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence, as the other States."

WASH.-Could this be admitted, it would say something to the purpose; but not enough, or it were too much; for then it would follow that Congress may impose on the settlement, not only a temporary government, while it remains in a territorial condition, but also a permanent one when it becomes a State: whereas you confess that in the latter case its people must be the authors of their own laws and form of government. The resolution whose words you have just quoted makes no distinction between those two conditions. Nay, it expresses only the final one by saying that all the settlements "shall be formed into distinct republican States, which shall become members of the Union."

But, not to enter into any details, suffice it to say, that those who settle in the Territory under the Constitution are not bound by that resolution; because the Congress who enacted it was not the present Congress, whose power is here inquired into. And had this Congress been the author of that resolution, what would the consequence be? That in forcing a settlement to be one of the United States, they would arrogate to themselves the exercise of a power which has not been given to them by the Constitution. It is not the exercise of the power that must here be ascertained, but the right to exercise it: it being self-evident that Congress must have the right before they can use it. And in order to affirm that they have the right to exercise a power in any instance, it is necessary to prove first that the alleged power has been expressly granted to them by the Constitution, or is indispensable to the exercise of the power expressly granted.