First Debate with Stephen A. Douglas

at Ottawa, Illinois

August 21, 1858

MR. DOUGLAS’ SPEECH.

Ladies and gentlemen: I appear before you to-day for the purpose of discussing the leading political topics which now agitate the public mind. By an arrangement between Mr. Lincoln and myself, we are present here to-day for the purpose of having a joint discussion, as the representatives of the two great political parties of the State and Union, upon the principles in issue between those parties and this vast concourse of people, shows the deep feeling which pervades the public mind in regard to the questions dividing us.

Prior to 1854 this country was divided into two great political parties, known as the Whig and Democratic parties. Both were national and patriotic, advocating principles that were universal in their application. An old line Whig could proclaim his principles in Louisiana and Massachusetts alike. Whig principles had no boundary sectional line, they were not limited by the Ohio river, nor by the Potomac, nor by the line of the free and slave States, but applied and were proclaimed wherever the Constitution ruled or the American flag waved over the American soil. (Hear him, and three cheers.) So it was, and so it is with the great Democratic party, which, from the days of Jefferson until this period, has proven itself to be the historic party of this nation. While the Whig and Democratic parties differed in regard to a bank, the tariff, distribution, the specie circular and the sub-treasury, they agreed on the great slavery question which now agitates the Union. I say that the Whig party and the Democratic party agreed on this slavery question, while they differed on those matters of expediency to which I have referred. The Whig party and the Democratic party jointly adopted the Compromise measures of 1850 as the basis of a proper and just solution of this slavery question in all its forms. Clay was the great leader, with Webster on his right and Cass on his left, and sustained by the patriots in the Whig and Democratic ranks, who had devised and enacted the Compromise measures of 1850.

In 1851, the Whig party and the Democratic party united in Illinois in adopting resolutions indorsing and approving the principles of the Compromise measures of 1850, as the proper adjustment of that question. In 1852, when the Whig party assembled in Convention at Baltimore for the purpose of nominating a candidate for the Presidency, the first thing it did was to declare the Compromise measures of 1850, in substance and in principle, a suitable adjustment of that question. (Here the speaker was interrupted by loud and long continued applause.) My friends, silence will be more acceptable to me in the discussion of these questions than applause. I desire to address myself to your judgment, your understanding, and your consciences, and not to your passions or your enthusiasm. When the Democratic Convention assembled in Baltimore in the same year, for the purpose of nominating a Democratic candidate for the Presidency, it also adopted the compromise measures of 1850 as the basis of Democratic action. Thus you see that up to 1853-’54, the Whig party and the Democratic party both stood on the same platform with regard to the slavery question. That platform was the right of the people of each State and each Territory to decide their local and domestic institutions for themselves, subject only to the federal constitution.

During the session of Congress of 1853-’54, I introduced into the Senate of the United States a bill to organize the Territories of Kansas and Nebraska on that principle which had been adopted in the compromise measures of 1850, approved by the Whig party and the Democratic party in Illinois in 1851, and endorsed by the Whig party and the Democratic party in national convention in 1852. In order that there might be no misunderstanding in relation to the principle involved in the Kansas and Nebraska bill, I put forth the true intent and meaning of the act in these words: “It is the true intent and meaning of this act not to legislate slavery into any State or Territory, or to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the federal constitution.” Thus, you see, that up to 1854, when the Kansas and Nebraska bill was brought into Congress for the purpose of carrying out the principles which both parties had up to that time endorsed and approved, there had been no division in this country in regard to that principle except the opposition of the abolitionists. In the House of Representatives of the Illinois Legislature, upon a resolution asserting that principle, every Whig and every Democrat in the House voted in the affirmative, and only four men voted against it, and those four were old line Abolitionists. (Cheers.)

In 1854, Mr. Abraham Lincoln and Mr. Trumbull entered into an arrangement, one with the other, and each with his respective friends, to dissolve the old Whig party on the one hand, and to dissolve the old Democratic party on the other, and to connect the members of both into an Abolition party under the name and disguise of a Republican party. (Laughter and cheers, hurrah for Douglas.) The terms of that arrangement between Mr. Lincoln and Mr. Trumbull have been published to the world by Mr. Lincoln’s special friend, James H. Matheny, Esq., and they were, that Lincoln should have Shields’s place in the U. S. Senate, which was then about to become vacant, and that Trumbull should have my seat when my term expired. (Great Laughter.) Lincoln went to work to abolitionize the Old Whig party all over the State, pretending that he was then as good a Whig as ever; (laughter) and Trumbull went to work in his part of the State preaching Abolitionism in its milder and lighter form, and trying to abolitionize the Democratic party, and bring old Democrats handcuffed and bound hand and foot into the Abolition camp. (“Good,” “hurrah for Douglas,” and cheers.) In pursuance of the arrangement, the parties met at Springfield in October, 1854, and proclaimed their new platform. Lincoln was to bring into the Abolition camp the old line Whigs, and transfer them over to Giddings, Chase, Fred Douglass, and Parson Lovejoy, who were ready to receive them and christen them in their new faith. (Laughter and cheers.) They laid down on that occasion a platform for their new Republican party, which was to be thus constructed. I have the resolutions of their State Convention then held, which was the first mass State Convention ever held in Illinois by the Black Republican party, and I now hold them in my hands and will read a part of them, and cause the others to be printed. Here are the most important and material resolutions of this Abolition platform:

1. Resolved, That we believe this truth to be self-evident, that when parties become subversive of the ends for which they are established, or incapable of restoring the government to the true principles of the constitution, it is the right and duty of the people to dissolve the political bands by which they may have been connected therewith, and to organize new parties upon such principles and with such views as the circumstances and exigencies of the nation may demand.

2. Resolved, That the times imperatively demand the reorganization of parties, and repudiating all previous party attachments, names and predilections, we unite ourselves together in defense of the liberty and constitution of the country, and will hereafter co-operate as the Republican party, pledged to the accomplishment of the following purposes: to bring the administration of the government back to the control of first principles; to restore Nebraska and Kansas to the position of free Territories; that, as the constitution of the United States, vests in the States, and not in Congress, the power to legislate for the extradition of fugitives from labor, to repeal and entirely abrogate the fugitive slave law; to restrict slavery to those States in which it exists; to prohibit the admission of any more slave States into the Union; to abolish slavery in the District of Columbia; to exclude slavery from all the territories over which the general government has exclusive jurisdiction; and to resist the acquirements of any more Territories unless the practice of slavery therein forever shall have been prohibited.

3. Resolved, That in furtherance of these principles we will use such constitutional and lawful means as shall seem best adapted to their accomplishment, and that we will support no man for office, under the general or State Government, who is not positively and fully committed to the support of these principles, and whose personal character and conduct is not a guaranty that he is reliable, and who shall not have abjured old party allegiance and ties.

(The resolutions, as they were read, were cheered throughout.)

Now, gentlemen, your Black Republicans have cheered every one of those propositions, (“good and cheers, “) and yet I venture to say that you cannot get Mr. Lincoln to come out and say that he is now in favor of each one of them. (Laughter and applause. “Hit him again.) That these propositions, one and all, constitute the platform of the Black Republican party of this day, I have no doubt; (“good”) and when you were not aware for what purpose I was reading them, your Black Republicans cheered them as good Black Republican doctrines. (“That’s it,” etc.) My object in reading these resolutions, was to put the question to Abraham Lincoln this day, whether he now stands and will stand by each article in that creed and carry it out. (“Good.” “Hit him again.”) I desire to know whether Mr. Lincoln today stands as he did in 1854, in favor of the unconditional repeal of the fugitive slave law. I desire him to answer whether he stands pledged to-day, as he did in 1854, against the admission of any more slave States into the Union, even if the people want them. I want to know whether he stands pledged against the admission of a new State into the Union with such a Constitution as the people of that State may see fit to make. (“That’s ot;” “put it at him.”) I want to know whether he stands today pledged to the abolition of slavery in the District of Columbia. I desire him to answer whether he stands pledged to the prohibition of the slave trade between the different States. (“He does.”) I desire to know whether he stands pledged to prohibit slavery in all the territories of the United States, North as well as South of the Missouri Compromise line, (“Kansas too.”) I desire him to answer whether he is opposed to the acquisition of any more territory unless slavery is prohibited therein. I want his answer to these questions. Your affirmative cheers in favor of this Abolition platform is not satisfactory. I ask Abraham Lincoln to answer these questions, in order that when I trot him down to lower Egypt, I may put the same questions to him. (Enthusiastic applause.) My principles are the same everywhere. (Cheers and “hark.”) I can proclaim them alike in the North, the South, the East, and the West. My principles will apply wherever the Constitution prevails and the American flag waves. (“Good” and applause.) I desire to know whether Mr. Lincoln’s principles will bear transplanting from Ottawa to Jonesboro? I put these questions to him to-day distinctly, and ask an answer. I have a right to an answer, for I quote from the platform of the Republican party, made by himself and others at the time that party was formed, and the bargain made by Lincoln to dissolve and kill the old Whig party, and transfer its members, bound hand and foot, to the Abolition party, under the direction of Giddings and Fred Douglass. (Cheers.) In the remarks I have made on this platform, and the position of Mr. Lincoln upon it, I mean nothing personally disrespectful or unkind to that gentleman. I have known him for nearly twenty-five years. There were many points of sympathy between us when we first got acquainted. We were both comparatively boys, and both struggling with poverty in a strange land. I was a school-teacher in the town of Winchester, and he a flourishing grocery-keeper in the town of Salem. (Applause and laughter.) He was more successful in his occupation than I was in mine, and hence more fortunate in this world’s goods. Lincoln is one of those peculiar men who perform with admirable skill everything which they undertake. I made as good a schoolteacher as I could, and when a cabinet maker I made a good bedstead and tables, although my old boss said I succeeded better with bureaus and secretaries than with anything else; (cheers,) but I believe that Lincoln was always more successful in business than I, for his business enabled him to get into the Legislature. I met him there, however, and had sympathy with him, because of the up-hill struggle we both had in life. He was then just as good at telling an anecdote as now. (“No doubt.”) He could beat any of the boys wrestling, or running a foot-race, in pitching quoits or tossing a copper; could ruin more liquor than all the boys of the town together, (uproarious laughter,) and the dignity and impartiality with which he presided at a horse-race or fist-fight, excited the admiration and won the praise of everybody that was present and participated. (Renewed laughter.) I symphathised with him, because he was struggling with difficulties, and so was I. Mr. Lincoln served with me in the Legislature in 1836, when we both retired, and he subsided, or became submerged, and he was lost sight of as a public man for some years. In 1846, when Wilmot introduced his celebrated proviso, and the Abolition tornado swept over the country; Lincoln again turned up as a member of Congress from the Sangamon district. I was then in the Senate of the United States, and was glad to welcome my old friend and companion. Whilst in Congress, he distinguished himself by his opposition to the Mexican war, taking the side of the common enemy against his own country; (“that’s true,”) and when he returned home he found that the indignation of the people followed him everywhere, and he was again submerged or obliged to retire into private life, forgotten by his former friends. (“And will be again.”) He came up again in 1854, just in time to make this Abolition or Black Republican platform, in company with Giddings, Lovejoy, Chase and Fred Douglass, for the Republican party to sand upon. (Laughter, “Hit him again,” &c.)Trumbull, too, was one of our own contemporaries. He was born and raised in old Connecticut, was bred a Federalist, but removing to Georgia, turned Nullifier, when nullification was popular, and as soon as he disposed of his clocks and wound up his business, migrated to Illinois, (laughter,) turned politician and lawyer here, and made his appearance in 1841, as a member of the Legislature. He became noted as the author of the scheme to repudiate a large portion of the State debt of Illinois, which, if successful, would have brought infamy and disgrace upon the fair escutcheon of our glorious State. The odium attached to that measure consigned him to oblivion for a time. I helped to do it. I walked into a public meeting in the hall of the House of Representatives, and replied to his repudiating speeches, and resolutions were carried over his head denouncing repudiation, and asserting the moral and legal obligation of Illinois to pay every dollar of the debt she owed and every bond that bore her seal. (“Good,” and cheers.) Trumbull’s malignity has followed me since I thus defeated his infamous scheme.

These two men having formed this combination to abolitionize the old Whig party and the old Democratic party, and put themselves into the Senate of the Untied States, in pursuance of their bargain, are now carrying out that arrangement. Matheny states that Trumbull broke faith; that the bargain was that Lincoln should be the Senator in Shields’s place, and Trumbull was to wait for mine; (laughter and cheers,) and the story goes, that Trumbull cheated Lincoln, having control of four or five abolitionized Democrats who were holding over in the Senate; he would not let them vote for Lincoln, and which obliged the rest of the Abolitionists to support him in order to secure an Abolition Senator. There are a number of authorities for the truth of this besides Matheny, and I suppose that even Mr. Lincoln will not deny it. (Applause and laughter.)

Mr. Lincoln demands that he shall have the place intended for Trumbull, as Trumbull cheated him and got his, and Trumbull is stumping the State traducing me for the purpose of securing the position for Lincoln, in order to quiet him. (“Lincoln can never get it, &c.”) It was in consequence of this arrangement that the Republican Convention was impanneled to instruct for Lincoln and nobody else, and it was on this account that they passed resolutions that he was their first, their last, and their only choice. Archy Williams was nowhere, Browning was nobody, Wentworth was not to be considered; they had no man in the Republican party for the place except Lincoln, for the reason that he demanded that they should carry out the arrangement. (“Hit him again.”)

Having formed this new party for the benefit of deserters from Whiggery, and deserters from Democracy, and having laid down the Abolition platform which I have read, Lincoln now takes his stand and proclaims his Abolition doctrines. Let me read a part of them. In his speech at Springfield to the Convention, which nominated him for the Senate, he said:

“In my opinion it will not cease until a crisis shall have been reached and passed. ‘A house divided against itself cannot stand.’ I believe this government cannot endure permanently half Slave and half Free. I do not expect the Union to be dissolved-I do not expect 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 further 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 it forward till it shall became alike lawful in all the States-old as well as new, North as well as South.”

(“Good,” “good,” and cheers.)

I am delighted to hear you Black Republicans say “good.” (Laughter and cheers.) I have no doubt that doctrine expresses your sentiments (“hit them again,” “that’s it,”) and I will prove to you now, if you will listen to me, that it is revolutionary and destructive of the existence of this Government. (“Hurrah for Douglas,” “good,” and cheers.) Mr. Lincoln, in the extract from which I have read, says that this Government cannot endure permanently in the same condition in which it was made by its framers-divided into free and slave States. He says that it has existed for about seventy years thus divided, and yet he tells you that it cannot endure permanently on the same principles and in the same relative condition in which our fathers made it. Why can it not exist divided into free and slave States? Washington, Jefferson, Franklin, Madison, Hamilton, Jay, and the great men of that day, made this Government divided into free States and slave States, and left each State perfectly free to do as it pleased on the subject of slavery. (“Right, right.”) Why can it not exist on the same principles on which our fathers made it? (“It can.”)The knew when they framed the Constitution that in a country as wide and broad as this, with such a variety of climate, production and interest, the people necessarily required different laws and institutions in different localities. They knew that the laws and regulations which would suit the granite hills of New Hampshire would be unsuited to the rice plantations of South Carolina, (“right, right,”) and they, therefore, provided that each State should retain its own Legislature and its own sovereignty, with the full and complete power to do as it pleased within its own limits, in all that was local and not national. (Applause.) One of the reserved rights of the States, was the right to regulate the relations between Master and Servant, on the slavery question. At the time the Constitution was framed, there were thirteen States in the Union, twelve of which were slaveholding States and one free State. Suppose this doctrine of uniformity preached by Mr. Lincoln, that the States should all be free or all be slave had prevailed, and what would have been the result? Of course, the twelve slaveholding States would have overruled the one free State, and slavery would have been fastened by a Constitutional provision on every inch of the American Republic, instead of being left as our fathers wisely left it, to each State to decide for itself. (“Good, good,” and three cheers for Douglas.) Here I assert that uniformity in the local laws and institutions of the different States in neither possible or desirable. If uniformity had been adopted when the Government was established, it must inevitably have been the uniformity of slavery everywhere, or else the uniformity of negro citizenship and negro equality everywhere.

We are told by Lincoln that he is utterly opposed to the Dred Scott decision, and will not submit to it, for the reason that he says it deprives the negro of the rights and privileges of citizenship. (Laughter and applause.) That is the first and main reason which he assigns for his warfare on the Supreme Court of the United Sates and its decision. I ask you, are you in favor of conferring upon the negro the rights and privileges of citizenship? (“No, no.”) Do you desire to strike out of our State Constitution that clause which keeps slaves and free negroes out of the State, and allow the free negroes to flow in, (“never,”) and cover your prairies with black settlements? Do you desire to turn this beautiful State into a free negro colony, (“no, no,”) in order that when Missouri abolishes slavery she can send one hundred thousand emancipated slaves into Illinois, to become citizens and voters, on an equality with yourselves? (“Never,” “no.”) If you desire negro citizenship, if you desire to allow them to come into the State and settle with the white man, if you desire them to vote on an equality with yourselves, and to make them eligible to office, to serve on juries, and to adjudge your rights, then support Mr. Lincoln and the Black Republican party, who are in favor of the citizenship of the negro. (“Never, never.”) For one, I am opposed to negro citizenship in any and every form. (Cheers.) I believe this Government was made on the white basis. (“Good.”) I believe it was made by white men for the benefit of white men and their posterity for ever, and I am in favor of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians, and other inferior races. (“Good for you.” “Douglas forever.”)

Mr. Lincoln, following the example and lead of all the little Abolition orators, who go around and lecture in the basements of schools and churches, reads from the Declaration of Independence, that all men were created equal, and then asks, how can you deprive a negro of that equality which God and the Declaration of Independence awards to him? He and they maintain that negro equality is guarantied by the laws of God, and that it is asserted in the Declaration of Independence. If they think so, of course they have a right to say so, and so vote. I do not question Mr. Lincoln’s conscientious belief that the negro was made his equal, and hence is his brother, (laughter,) but for my own part, I do not regard the negro as my equal, and positively deny that he is my brother or any kin to me whatever. (“Never.” “Hit him again,” and cheers.) Lincoln has evidently learned by heart Parson Lovejoy’s catechism. (Laughter and applause.) He can repeat it as well as Farnsworth, and he is worthy of a medal from Father Giddings and Fred Douglass for his Abolitionism. (Laughter.) He holds that the negro was born his equal and yours, and that he was endowed with equality by the Almighty, and that no human law can deprive him of these rights which were guarantied to him by the Supreme ruler of the Universe. Now, I do not believe that the Almighty ever intended the negro to be the equal of the white man. (“Never, never.”) If he did, he has been a long time demonstrating the fact. (Cheers.) For thousands of years the negro has been a race upon the earth, and during all that time, in all latitudes and climates, wherever he has wandered or been taken, he has been inferior to the race which he has there met. He belongs to an inferior race, and must always occupy an inferior position. (“Good,” “that’s so,” &c.) I do not hold that because the negro is our inferior that therefore he ought to be a slave. By no means can such a conclusion be drawn from what I have said. On the contrary, I hold that humanity and Christianity both require that the negro shall have and enjoy every right, every privilege, and every immunity consistent with the safety of the society in which he lives. (That’s so.) On that point, I presume, there can be no diversity of opinion. You and I are bound to extend to our inferior and dependent beings every right, every privilege, every facility and immunity consistent with the public good. The question then arises, what rights and privileges are consistent with the public good? This is a question which each State and each Territory must decide for itself-Illinois has decided it for herself. We have provided that the negro shall not be a slave, and we have also provided that he shall not be a citizen, but protect him in his civil rights, in his life, his person and his property, only depriving him of all political rights whatsoever, and refusing to put him on an equality with the white man. (“Good.”) That policy of Illinois is satisfactory to the Democratic party and to me, and if it were to the Republicans, there would then be no question upon the subject; but the Republicans say that he ought to be made a citizen, and when he becomes a citizen he becomes your equal, with all your rights and privileges. (“He never shall.”) They assert the Dred Scott decision to be monstrous because it denies that the negro is or can be a citizen under the Constitution. Now, I hold that Illinois had a right to abolish and prohibit slavery as she did, and I hold that Kentucky has the same right to continue and protect slavery that Illinois had to abolish it. I hold that New York had as much right to abolish slavery as Virginia has to continue it, and that each and every State of this Union is a sovereign power, with the right to do as it pleases upon this question of slavery, and upon all its domestic institutions. Slavery is not the only question which comes up in this controversy. There is a far more important one to you, and that is, what shall be done with the free negro? We have settled the slavery question as far as we are concerned; we have prohibited it in Illinois forever, and in doing so, I think we have done wisely, and there is no man in the State who would be more strenuous in his opposition to the introduction of slavery than I would; (cheers) but when we settled it for ourselves, we exhausted all our power over that subject. We have done our whole duty, and can do no more. We must leave each and every other State to decide for itself the same question. In relation to the policy to be pursued toward the free negroes, we have said that they shall not vote; whilst Maine, on the other hand, has said that they shall vote. Maine is a sovereign State, and has the power to regulate the qualifications of voters within her limits. I would never consent to confer the right of voting and of citizenship upon a negro, but still I am not going to quarrel with Maine for differing from me in opinion. Let Maine take care of her own negroes and fix the qualifications of her own voters to suit herself, without interfering with Illinois, and Illinois will not interfere with Maine. So with the State of New York. She allows the negro to vote provided he owns two hundred and fifty dollars’ worth of property, but not otherwise. While I would not make any distinction whatever between a negro who held property and one who did not; yet if the sovereign State of New York chooses to make that distinction it is her business and not mine, and I will not quarrel with her for it. She can do as she pleases on this question if she minds her own business, and we will do the same thing. Now, my friends, if we will only act conscientiously and rigidly upon this great principle of popular sovereignty, which guaranties to each State and Territory the right to do as it pleases on all things, local and domestic, instead of Congress interfering, we will continue at peace one with another. Why should Illinois be at war with Missouri, or Kentucky with Ohio, or Virginia with New York, merely because their institutions differ? Our fathers intended that our institutions should differ. They knew that the North and the South, having different climates, productions and interests, required different institutions. This doctrine of Mr. Lincoln, of uniformity among the institutions of the different States, is a new doctrine, never dreamed of by Washington, Madison, or the framers of this Government. Mr. Lincoln and the Republican party set themselves up as wiser than these men who made this Government, which has flourished for seventy years under the principle of popular sovereignty, recognizing the right of each State to do as it pleased. Under that principle, we have grown from a nation of three or four millions to a nation of about thirty millions of people; we have crossed the Allegheny mountains and filled up the whole North-west, turning the prairie into a garden, and building up churches and schools, thus spreading civilization and Christianity where before there was nothing but savage barbarism. Under that principle we have become, from a feeble nation, the most powerful on the face of the earth, and if we only adhere to that principle, we can go forward increasing in territory, in power, in strength and in glory until the Republic of America shall be the North Star that shall guide the friends of freedom throughout the civilized world. (“Long may you live,” and great applause.) And why can we not adhere to the great principle of self-government, upon which our institutions were originally based. (“We can.”) I believe that this new doctrine preached by Mr. Lincoln and his party will dissolve the Union if it succeeds. They are trying to array all the Northern States in one body against the South, to excite a sectional war between the free States and the slave States, in order that the one or the other may be driven to the wall.

I am told that my time is out. Mr. Lincoln will now address you for an hour and a half, and I will then occupy an half hour in replying to him.

MR. LINCOLN’S REPLY.

Mr. Lincoln then came forward and was greeted with loud and protracted cheers from fully two-thirds of the audience. This was admitted by the Douglas men on the platform. It was some minutes before he could make himself heard, even by those on the stand. At last he said:

MY FELLOW-CITIZENS: When a man hears himself somewhat misrepresented, it provokes him-at least, I find it so with myself; but when misrepresentation becomes very gross and palpable, it is more apt to amuse him. The first thing I see fit to notice, is the fact that Judge Douglas alleges, after running through the history of the old Democratic and the old Whig parties, that Judge Trumbull and myself made an arrangement in 1854, by which I was to have the place of Gen. Shields in the United States Senate, and Judge Trumbull was to have the place of Judge Douglas. Now, all I have to say upon that subject is, that I think no man-not even Judge Douglas-can prove it, because it is not true. [Cheers.] I have no doubt he is “conscientious” in saying it. [Laughter.] As to those resolutions that he took such a length of time to read, as being the platform of the Republican party in 1854, I say I never had anything to do with them, and I think Trumbull never had. [Renewed laughter.] Judge Douglas cannot show that either of us ever did have anything to do with them. I believe this is true about those resolutions: There was a call for a Convention to form a Republican party at Springfield, and I think that my friend, Mr. Lovejoy, who is here upon this stand, had a hand in it. I think this is true, and I think if he will remember accurately, he will be able to recollect that he tried to get me into it, and I would not go in. [Cheers and laughter.] I believe it is also true that I went away from Springfield when the Convention was in session, to attend court in Tazewell county. It is true they did place my name, though without authority, upon the committee, and afterward wrote me to attend the meeting of the committee, but I refused to do so, and I never had anything to do with that organization. This is the plain truth about all that matter of the resolutions.

Now, about this story that Judge Douglas tells of Trumbull bargaining to sell out the old Democratic party, and Lincoln agreeing to sell out the old Whig party, I have the means of knowing about that; Judge Douglas cannot have; and I know there is no substance to it whatever. Yet I have no doubt he is “conscientious” about it. I know that after Mr. Lovejoy got into the Legislature that winter, he complained of me that I had told all the old Whigs of his district that the old Whig party was good enough for them, and some of them voted against him because I told them so. Now, I have no means of totally disproving such charges as this which the Judge makes. A man cannot prove a negative, but he has a right to claim that when a man makes an affirmative charge, he must offer some proof to show the truth of what he says. I certainly cannot introduce testimony to show the negative about things, but I have a right to claim that if a man says he knows a thing, then he must show how he knows it. I always have a right to claim this, and it is not satisfactory to me that he may be “conscientious” on the subject. [Cheers and Laughter.]

Now, gentlemen, I hate to waste my time on such things, but in regard to that general Abolition tilt that Judge Douglas makes, when he says that I was engaged at that time in selling out and abolitionizing the old Whig party-I hope you will permit me to read a part of a printed speech that I made then at Peoria, which will show altogether a different view of the position I took in that contest of 1854.

VOICE-“Put on your specs.”

MR. LINCOLN-Yes, sir, I am obliged to do so. I am no longer a young man. [Laughter.]

“This is the repeal of the Missouri Compromise. The foregoing history may not be precisely accurate in every particular; but I am sure it is sufficiently so for all the uses I shall attempt to make of it, and in it we have before us, the chief materials enabling us to correctly judge whether the repeal of the Missouri Compromise is right or wrong.

“I think, and shall try to show, that it is wrong; wrong in its direct effect, letting slavery into Kansas and Nebraska-and wrong in its prospective principle, allowing it to spread to every other part of the wide world, where men can be found inclined to take it.

“This declared indifference, but, as I must think, covert real zeal for the spread of slavery, I cannot but hate. I hate it because of the monstrous injustice of slavery itself. I hate it because it deprives our republican example of its just influence in the world-enables the enemies of free institutions, with plausibility, to taunt us as hypocrites-causes the real friends of freedom to doubt our sincerity, and especially because it forces so many really good men amongst ourselves into an open war with the very fundamental principles of civil liberty-criticizing the Declaration of Independence, and insisting that there is no right principle of action but self-interest.

“Before proceeding, let me say I think I have no prejudice against the Southern people. They are just what we would be in their situation. If slavery did not now exist among them, they would not introduce it. If it did now exist amongst us, we should not instantly give it up. This I believe of the masses North and South. Doubtless there are individuals on both sides, who would not hold slaves under any circumstances; and others who would gladly introduce slavery anew, if it were out of existence. We know that some Southern men do free their slaves, go North, and become tiptop Abolitionists; while some Northern ones go South, and become most cruel slave-masters.

“When Southern people tell us they are no more responsible for the origin of slavery than we, I acknowledge the fact. When it is said that the institution exists, and that it is very difficult to get rid of it, in any satisfactory way, I can understand and appreciate the saying. I surely will not blame them for not doing what I should not know how to do myself. If all earthly power were given me, I should not know what to do, as to the existing institution. My first impulse would be to free all the slaves, and send them to Liberia,-to their own native land. But a moment’s reflection would convince me, that whatever of high hope, (as I think there is) there may be in this, in the long run, its sudden execution is impossible. If they were all landed there in a day, they would all perish in the next ten days; and there are not surplus shipping and surplus money enough in the world to carry them there in many times ten days. What then? Free them all, and keep them among us as underlings? Is it quite certain that this betters their condition? I think I would not hold one in slavery at any rate; yet the point is not clear enough to me to denounce people upon. What next? Free them, and make them politically and socially our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not. Whether this feeling accords with justice and sound judgment, is not the sole question, if, indeed, it is any part of it. A universal feeling, whether well or ill-founded, cannot be safely disregarded. We cannot, then, make them equals. It does seem to me that systems of gradual emancipation might be adopted; but for their tardiness in this, I will not undertake to judge our brethren of the South.

“When they remind us of their constitutional rights, I acknowledge them, not grudgingly, but fully and fairly; and I would give them any legislation for the reclaiming of their fugitives, which should not, in its stringency, be more likely to carry a free man into slavery, than our ordinary criminal laws are to hang an innocent one.

“But all this, to my judgment, furnishes no more excuse for permitting slavery to go into our own free territory, than it would for reviving the African slave-trade by law. The law which forbids the bringing of slaves from Africa, and that which has so long forbid the taking of them to Nebraska, can hardly be distinguished on any moral principle; and the repeal of the former could find quite as plausible excuses as that of the latter.”

I have reason to know that Judge Douglas knows that I said this. I think he has the answer here to one of the questions he put to me. I do not mean to allow him to catechise me unless he pays back for it in kind. I will not answer questions one after another, unless he reciprocates; but as he has made this inquiry, and I have answered it before, he has got it without my getting anything in return. He has got my answer on the Fugitive Slave law.

Now, gentlemen, I don’t want to read at any greater length, but this is the true complexion of all I have ever said in regard to the institution of slavery and the black race. This is the whole of it, and anything that argues me into his idea of perfect social and political equality with the negro, is but a specious and fantastic arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse. [Laughter.] I will say here, while upon this subject, that I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which, in my judgment, will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong having the superior position. I have never said anything to the contrary, but I hold that, notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. [Loud cheers.] I hold that he is as much entitled to these as the white man. I agree with Judge Douglas he is not my equal in many respects-certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without the leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man. [Great applause.]

Now I pass on to consider one or two more of these little follies. The Judge is wofully at fault about his early friend Lincoln being a “grocery keeper.” [Laughter.] I don’t know as it would be a great sin, if I had been; but he is mistaken. Lincoln never kept a grocery anywhere in the world. [Laughter.] It is true that Lincoln did work the latter part of one winter in a little still house, up at the head of a hollow. [Roars of laughter.] And so I think my friend, the Judge, is equally at fault when he charges me at the time when I was in Congress of having opposed our soldiers who were fighting in the Mexican war. The Judge did not make his charge very distinctly, but I can tell you what he can prove, by referring to the record. You remember I was an old Whig, and whenever the Democratic party tried to get me to vote that the war had been righteously begun by the President, I would not do it. But whenever they asked for any money, or land-warrants, or anything to pay the soldiers there, during all that time, I gave the same vote that Judge Douglas did. [Loud applause.] You can think as you please as to whether that was consistent. Such is the truth; and the Judge has the right to make all he can out of it. But when he, by a general charge, conveys the idea that I withheld supplies from the soldiers who were fighting in the Mexican war, or did anything else to hinder the soldiers, he is, to say the least, grossly and altogether mistaken, as a consultation of the records will prove to him.

As I have not used up so much of my time as I had supposed, I will dwell a little longer upon one or two of these minor topics upon which the Judge has spoken. He has read from my speech in Springfield, in which I say that “a house divided against itself cannot stand.” Does the Judge say it can stand? [Laughter.] I don’t know whether he does or not. The Judge does not seem to be attending to me just now, but I would like to know if it is his opinion that a house divided against itself can stand. If he does, then there is a question of veracity, not between him and me, but between the Judge and an authority of a somewhat higher character. [Laughter and applause.]

Now, my friends, I ask your attention to this matter for the purpose of saying something seriously. I know that the Judge may readily enough agree with me that the maxim which was put forth by the Saviour is true, but he may allege that I misapply it; and the Judge has a right to urge that, in my application, I do misapply it, and then I have a right to show that I do not misapply it. When he undertakes to say that because I think this nation, so far as the question of slavery is concerned, will all become one thing or all the other, I am in favor of bringing about a dead uniformity in the various States, in all their institutions, he argues erroneously. The great variety of the local institutions in the States, springing from differences in the soil, differences in the face of the country, and in the climate, are bonds of Union. They do not make “a house divided against itself,” but they make a house united. If they produce in one section of the country what is called for by the wants of another section, and this other section can supply the wants of the first, they are not matters of discord but bonds of union, true bonds of union. But can this question of slavery be considered as among thesevarieties in the institutions of the country? I leave it to you to say whether, in the history of our Government, this institution of slavery has not always failed to be a bond of union, and, on the contrary, been an apple of discord, and an element of division in the house. [Cries of “Yes, yes,” and applause.] I ask you to consider whether, so long as the moral constitution of men’s minds shall continue to be the same, after this generation and assemblage shall sink into the grave, and another race shall arise, with the same moral and intellectual development we have-whether, if that institution is standing in the same irritating position in which it now is, it will not continue an element of division? [Cries of “Yes, yes.”] If so, then I have a right to say that, in regard to this question, the Union is a house divided against itself; and when the Judge reminds me that I have often said to him that the institution of slavery has existed for eighty years in some States, and yet it does not exist in some others, I agree to the fact, and I account for it by looking at the position in which our fathers originally placed it-restricting it from the new Territories where it had not gone, and legislating to cut off its source by the abrogation of the slave-trade thus putting the seal of legislation against its spread. The public mind did rest in the belief that it was in the course of ultimate extinction. [Cries of “Yes, yes,”] But lately, I think-and in this I charge nothing on the Judge’s motives-lately, I think, that he, and those acting with him, have placed that institution on a new basis, which looks to the perpetuity and nationalization of slavery. [Loud cheers.] And while it is placed upon this new basis, I say, and I have said, that I believe we shall not have peace upon the question until the opponents of slavery arrest the further 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, on the other hand, that its advocates will push it forward until it shall become alike lawful in all the States, old as well as new, North as well as South. Now, I believe if we could arrest the spread, and place it where Washington, and Jefferson, and Madison placed it, it would be in the course of ultimate extinction, and the public mind would, as for eighty years past, believe that it was in the course of ultimate extinction. The crisis would be past and the institution might be let alone for a hundred years, if it should live so long, in the States where it exists, yet it would be going out of existence in the way best for both the black and the white races. [Great cheering.]

A VOICE- “Then do you repudiate Popular Sovereignty?”

MR. LINCOLN-Well, then, let us talk about Popular Sovereignty! [Laughter.] What is Popular Sovereignty? [Cries of “A humbug,” “a humbug.”] Is it the right of the people to have Slavery or not have it, as they see fit, in the territories? I will state-and I have an able man to watch me-my understanding is that Popular Sovereignty, as now applied to the question of slavery, does allow the people of a Territory to have slavery if they want to, but does not allow them not to have it if they do not want it. [Applause and laughter.] I do not mean that if this vast concourse of people were in a Territory of the United States, any one of them would be obliged to have a slave if he did not want one; but I do say that, as I understand the Dred Scott decision, if any one man wants slaves, all the rest have no way of keeping that one man from holding them.

When I made my speech at Springfield, of which the Judge complains, and from which he quotes, I really was not thinking of the things which he ascribes to me at all. I had no thought in the world that I was doing anything to bring about a war between the free and slave States. I had no thought in the world that I was doing anything to bring about a political and social equality of the black and white races. It never occurred to me that I was doing anything or favoring anything to reduce to a dead uniformity all the local institutions of the various States. But I must say, in all fairness to him, if he thinks I am doing something which leads to these bad results, it is none the better that I did not mean it. It is just as fatal to the country, if I have any influence in producing it, whether I intend it or not. But can it be true, that placing this institution upon the original basis-the basis upon which our fathers placed it-can have any tendency to set the Northern and the Southern States at war with one another, or that it can have any tendency to make the people of Vermont raise sugarcane, because they raise it in Louisiana, or that it can compel the people of Illinois to cut pine logs on the Grand Prairie, where they will not grow, because they cut pine logs in Maine, where they do grow? [Laughter.] The Judge says this is a new principle started in regard to this question. Does the Judge claim that he is working on the plan of the founders of Government? I think he says in some of his speeches-indeed, I have one here now-that he saw evidence of a policy to allow slavery to be south of a certain line, while north of it it should be excluded, and he saw an indisposition on the part of the country to stand upon that policy, and therefore he set about studying the subject upon original principles, and upon original principles he got up the Nebraska bill! I am fighting it upon these “original principles”-fighting it in the Jeffersonian, Washingtonian, and Madisonian fashion. [Laughter and applause.]

Now, my friends, I wish you to attend for a little while to one or two other things in that Springfield speech. My main object was to show, so far as my humble ability was capable of showing to the people of this country, what I believed was the truth-that there was a tendency, if not a conspiracy among those who have engineered this slavery question for the last four or five years, to make slavery perpetual and universal in this nation. Having made that speech principally for that object, after arranging the evidences that I thought tended to prove my proposition, I concluded with this bit of comment:

“We cannot absolutely know that these exact adaptations are the result of preconcert, but when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places, and by different workmen-Stephen, Franklin, Roger and James, for instance-and when we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortices exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few -not omitting even the scaffolding-or if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in-in such a case we feel it impossible not to believe that Stephen and Franklin, and Roger and James, all understood one another from the beginning, and all worked upon a common plan or draft drawn before the first blow was struck.” [Great cheers.]

When my friend, Judge Douglas, came to Chicago, on the 9th of July, this speech having been delivered on the 16th of June, he made an harangue there, in which he took hold of this speech of mine, showing that he had carefully read it; and while he paid no attention to this matter at all, but complimented me as being a “kind, amiable and intelligent gentleman,” notwithstanding I had said this, he goes on and eliminates, or draws out, from my speech this tendency of mine to set the States at war with one another, to make all the institutions uniform, and set the niggers and white people to marrying together. [Laughter.] Then, as the Judge had complimented me with these pleasant titles (I must confess to my weakness), I was a little “taken,” [laughter] for it came from a great man. I was not very much accustomed to flattery, and it came the sweeter to me. I was rather like the Hoosier, with the gingerbread, when he said he reckoned he loved it better than any other man, and got less of it. [Roars of laughter.] As the Judge had so flattered me, I could not make up my mind that he meant to deal unfairly with me; so I went to work to show him that he misunderstood the whole scope of my speech, and that I really never intended to set the people at war with one another. As an illustration, the next time I met him, which was at Springfield, I used this expression, that I claimed no right under the Constitution, nor had I any inclination, to enter into the Slave States and interfere with the institutions of slavery. He says upon that: Lincoln will not enter into the Slave States, but will go to the banks of the Ohio, on this side, and shoot over! [Laughter.] He runs on, step by step, in the horse-chestnut style of argument, until in the Springfield speech he says, “Unless he shall be successful in firing his batteries, until he shall have extinguished slavery in all the States, the Union shall be dissolved.” Now I don’t think that was exactly the way to treat “a kind, amiable, intelligent gentleman.” I know if I had asked the Judge to show when or where it was I had said that, if I didn’t succeed in firing into the slave States until slavery should be extinguished, the Union should be dissolved, he could not have shown it. I understand what he would do. He would say, “I don’t mean to quote from you, but this was the result of what you say.” But I have the right to ask, and I do ask now, Did you not put it in such a form that an ordinary reader or listener would take it as an expression from me?[Laughter.]

In a speech at Springfield, on the night of the 17th, I thought I might as well attend to my own business a little, and I recalled his attention as well as I could to this charge of conspiracy to nationalize slavery. I called his attention to the fact that he had acknowledged, in my hearing twice, that he had carefully read the speech, and, in the language of the lawyers, as he had twice read the speech, and still had put in no plea or answer, I took a default on him. I insisted that I had a right then to renew that charge of conspiracy. Ten days afterward I met the Judge at Clinton-that is to say, I was on the ground, but not in the discussion-and heard him make a speech. Then he comes in with his plea to this charge, for the first time, and his plea when put in, as well as I can recollect it, amounted to this: that he never had any talk with Judge Taney or the President of the United States with regard to the Dred Scott decision before it was made. I (Lincoln) ought to know that the man who makes a charge without knowing it to be true, falsifies as much as he who knowingly tells a falsehood; and lastly, that he would pronounce the whole thing a falsehood; but he would make no personal application of the charge of falsehood, not because of any regard for the “kind, amiable, intelligent gentleman,” but because of his own personal self-respect! [Roars of Laughter.] I have understood since then (but [turning to Judge Douglas] will not hold the Judge to it if he is not willing) that he has broken through the “self-respect,” and has got to saying the thing out. The Judge nods to me that it is so. [Laughter.] It is fortunate for me that I can keep as good-humored as I do, when the Judge acknowledges that he has been trying to make a question of veracity with me. I know the Judge is a great man, while I am only a small man, but I feel that I have got him. [Tremendous cheering.] I demur to that plea. I waive all objections that it was not filed till after default was taken, and demur to it upon the merits. What if Judge Douglas never did talk with Chief Justice Taney and the President, before the Dred Scott decision was made, does it follow that he could not have had as perfect an understanding without talking as with it? I am not disposed to stand upon my legal advantage. I am disposed to take his denial as being like an answer in chancery, that he neither had any knowledge, information or belief in the existence of such a conspiracy. I am disposed to take his answer as being as broad as though he had put it in these words. And now, I ask, even if he had done so, have not I a right to prove it on him, and to offer the evidence of more than two witnesses, by whom to prove it; and if the evidence proves the existence of the conspiracy, does his broad answer denying all knowledge, information, or belief, disturb the fact? It can only show that he was used by conspirators, and was not a leader of them. [Vociferous cheering.]

Now, in regard to his reminding me of the moral rule that persons who tell what they do not know to be true, falsify as much as those who knowingly tell falsehoods. I remember the rule, and it must be borne in mind that in what I have read to you, I do not say that I know such a conspiracy to exist. To that I reply, I believe it. If the Judge says that I do not believe it, then he says what he does not know, and falls within his own rule, that he who asserts a thing which he does not know to be true, falsifies as much as he who knowingly tells a falsehood. I want to call your attention to a little discussion on that branch of the case, and the evidence which brought my mind to the conclusion which I expressed as my belief. If, in arraying that evidence, I had stated anything which was false or erroneous, it needed but that Judge Douglas should point it out, and I would have taken it back with all the kindness in the world. I do not deal in that way. If I have brought forward anything not a fact, if he will point it out, it will not even ruffle me to take it back. But if he will not point out anything erroneous in the evidence, is it not rather for him to show, by a comparison of the evidence, that I have reasoned falsely, than to call the “kind, amiable, intelligent gentleman” a liar? [Cheers and laughter.] If I have reasoned to a false conclusion, it is the vocation of an able debater to show by argument that I have wandered to an erroneous conclusion. I want to ask your attention to a portion of the Nebraska bill, which Judge Douglas has quoted: “It being the true intent and meaning of this act, not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.” Thereupon Judge Douglas and others began to argue in favor of “Popular Sovereignty” -the right of the people to have slaves if they wanted them, and to exclude slavery if they did not want them. “But,” said, in substance, a Senator from Ohio (Mr. Chase, I believe), “we more than suspect that you do not mean to allow the people to exclude slavery if they wish to, and if you do mean it, accept an amendment which I propose expressly authorizing the people to exclude slavery.” I believe I have the amendment here before me, which was offered, and under which the people of the Territory, through their proper representatives, might, if they saw fit, prohibit the existence of slavery therein. And now I state it as a fact, to be taken back if there is any mistake about it, that Judge Douglas and those acting with him voted that amendment down. [Tremendous applause.] I now think that those men who voted it down, had a real reason for doing so. They know what that reason was. It looks to us, since we have seen the Dred Scott decision pronounced, holding that, “under the Constitution,” the people cannot exclude slavery-I say it looks to outsiders, poor, simple, “amiable, intelligent gentlemen,” as though the niche was left as a place to put that Dred Scott decision in – [laughter and cheers] – a niche which would have been spoiled by adopting the amendment. And now, I say again, if this was not the reason, it will avail the Judge much more to calmly and good-humoredly point out to these people what that other reason was for voting the amendment down, than, swelling himself up, to vociferate that he may be provoked to call somebody a liar. [Tremendous applause.]

Again: there is in that same quotation from the Nebraska bill this clause- “It being the true intent and meaning of this bill not to legislate slavery into any Territory or State.” I have always been puzzled to know what business the word “State” had in that connection, Judge Douglas knows. He put it there. He knows what he put it there for. We outsiders cannot say what he put it there for. The law they were passing was not about States, and was not making provisions for States. What was it placed there for? After seeing the Dred Scott decision, which holds that the people cannot exclude slavery from a Territory, if another Dred Scott decision shall come, holding that they cannot exclude it from a State, we shall discover that when the word was originally put there, it was in view of something which was to come in due time, we shall see that it was the other half of something. [Applause.] I now say again, if there is any different reason for putting it there, Judge Douglas, in a good humored way, without calling anybody a liar, can tell what the reason was. [Renewed cheers.]

When the Judge spoke at Clinton, he came very near making a charge of falsehood against me. He used, as I found it printed in a newspaper, which, I remember, was very nearly like the real speech, the following language:

“I did not answer the charge [of conspiracy] before, for the reason that I did not suppose there was a man in America with a heart so corrupt as to believe such a charge could be true. I have too much respect for Mr. Lincoln to suppose he is serious in making the charge.”

I confess this is rather a curious view, that out of respect for me he should consider I was making what I deemed rather a grave charge in fun. [Laughter.] I confess it strikes me rather strangely. But I let it pass. As the Judge did not for a moment believe that there was a man in America whose heart was so “corrupt” as to make such a charge, and as he places me among the “men in America” who have hearts base enough to make such a charge, I hope he will excuse me if I hunt out another charge very like this; and if it should turn out that in hunting I should find that other, and it should turn out to be Judge Douglas himself who made it, I hope he will reconsider this question of the deep corruption of heart he has thought fit to ascribe to me. [Great applause and laughter.] In Judge Douglas’s speech of March 22d, 1858, which I hold in my hand, he says:

“In this connection there is another topic to which I desire to allude. I seldom refer to the course of newspapers, or notice the articles which they publish in regard to myself; but the course of the Washington Union has been so extraordinary, for the last two or three months, that I think it well enough to make some allusion to it. It has read me out of the Democratic party every other day, at least for two or three months, and keeps reading me out, (laughter;) and, as if it had not succeeded, still continues to read me out, using such terms as “traitor,” “renegade,” “deserter,” and other kind and polite epithets of that nature. Sir, I have no vindication to make of my Democracy against the Washington Union, or any other newspapers. I am willing to allow my history and action for the last twenty years to speak for themselves as to my political principles, and my fidelity to political obligations. The Washington Union has a personal grievance. When its editor was nominated for public printer I declined to vote for him, and stated that at some time I might give my reasons for doing so. Since I declined to give that vote, this scurrilous abuse, these vindictive and constant attacks have been repeated almost daily on me. Will my friend from Michigan read the article to which I allude?”

This is a part of the speech. You must excuse me from reading the entire article of the Washington Union, as Mr. Stuart read it for Mr. Douglas. The Judge goes on and sums up, as I think, correctly:

“Mr. President, you here find several distinct propositions advanced boldly by the Washington Union editorially, and apparently authoritatively, and any man who questions any of them is denounced as an Abolitionist, a Freesoiler, a fanatic. The propositions are, first, that the primary object of all government at its original institution is the protection of person and property; second, that the Constitution of the United States declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and that, therefore, thirdly, all State laws, whether organic or otherwise, which prohibit the citizens of one State from settling in another with their slave property, and especially declaring it forfeited, are direct violations of the original intention of the Government and Constitution of the United States; and, fourth, that the emancipation of the slaves of the Northern States was a gross outrage on the rights of property, inasmuch as it was involuntarily done on the part of the owner.

“Remember that this article was published in the Union on the 17th of November, and on the 18th appeared the first article giving the adhesion of the Union to the Lecompton Constitution. It was in these words:

“KANSAS AND HER CONSTITUTION-The vexed question is settled. The problem is solved. The dead point of danger is passed. All serious trouble to Kansas affairs is over and gone’-

“And a column, nearly, of the same sort. Then, when you come to look into the Lecompton Constitution, you find the same doctrine incorporated in it which was put forth editorially in the Union. What is it?

” `ARTICLE 7, Section 1. The right of property is before and higher than any Constitutional sanction; and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever.’

“Then in the schedule is a provision that the Constitution may be amended after 1864 by a two-thirds vote.

“`But no alteration shall be made to affect the right of property in the ownership of slaves.’

“It will be seen by these clauses in the Lecompton Constitution, that they are identical in spirit with the authoritative article in the Washington Union of the day previous to its indorsement of this Constitution.”

I pass over some portions of the speech, and I hope that any one who feels interested in this matter will read the entire section of the speech, and see whether I do the Judge injustice. He proceeds: “When I saw that article in the Union of the 17th of November, followed by the glorification of the Lecompton Constitution on the 18th of November, and this clause in the Constitution asserting the doctrine that a State has no right to prohibit slavery within its limits, I saw that there was a fatal blow being struck at the sovereignty of the States of this Union.”

I stop the quotation there, again requesting that it may all be read. I have read all of the portion I desire to comment upon. What is this charge that the Judge thinks I must have a very corrupt heart to make? It was a purpose on the part of certain high functionaries to make it impossible for the people of one State to prohibit the people of any other State from entering it with their “property,” so called, and making it a slave State. In other words, it was a charge implying a design to make the institution of slavery national. And now I ask your attention to what Judge Douglas has himself done here. I know he made that part of the speech as a reason why he had refused to vote for a certain man for public printer, but when we get at it, the charge itself is the very one I made against him, that he thinks I am so corrupt for uttering. Now, whom does he make that charge against? Does he make it against that newspaper editor merely? No; he says it is identical in spirit with the Lecompton Constitution, and so the framers of that Constitution are brought in with the editor of the newspaper in that “fatal blow being struck.” He did not call it a “conspiracy.” In his language it is a “fatal blow being struck.” And if the words carry the meaning better when changed from a “conspiracy” into a “fatal blow being struck,” I will change my expression and call it “fatal blow being struck.” We see the charge made not merely against the editor of the Union, but all the framers of the Lecompton Constitution; and not only so, but the article was an authoritative article. By whose authority? Is there any question but he means it was by the authority of the President and his Cabinet-the Administration?

Is there any sort of question but he means to make that charge? Then there are the editors of the Union, the framers of the Lecompton Constitution, the President of the United States and his Cabinet, and all the supporters of the Lecompton Constitution, in Congress and out of Congress, who are all involved in this “fatal blow being struck.” I commend to Judge Douglas’s consideration the question of how corrupt a man’s heart must be to make such a charge! [Vociferous cheering.]

Now, my friends, I have but one branch of the subject, in the little time I have left, to which to call your attention, and as I shall come to a close at the end of that branch, it is probable that I shall not occupy quite all the time allotted to me. Although on these questions I would like to talk twice as long as I have, I could not enter upon another head and discuss it properly without running over my time. I ask the attention of the people here assembled and elsewhere, to the course that Judge Douglas is pursuing every day as bearing upon this question of making slavery national. Not going back to the records, but taking the speeches he makes, the speeches he made yesterday and day before, and makes constantly all over the country-I ask your attention to them. In the first place, what is necessary to make the institution national? Not war. There is no danger that the people of Kentucky will shoulder their muskets, and, with a young nigger stuck on every bayonet, march into Illinois and force them upon us. There is no danger of our going over there and making war upon them. Then what is necessary for the nationalization of slavery? It is simply the next Dred Scott decision. It is merely for the Supreme Court to decide that no State under the Constitution can exclude it, just as they have already decided that under the Constitution neither Congress nor the Territorial Legislature can do it. When that is decided and acquiesced in, the whole thing is done. This being true, and this being the way, as I think, that slavery is to be made national, let us consider what Judge Douglas is doing every day to that end. In the first place, let us see what influence he is exerting on public sentiment. In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed. This must be borne in mind, as also the additional fact that Judge Douglas is a man of vast influence, so great that it is enough for many men to profess to believe anything, when they once find out that Judge Douglas professes to believe it. Consider also the attitude he occupies at the head of a large party-a party which he claims has a majority of all the voters in the country. This man sticks to a decision which forbids the people of a Territory from excluding slavery, and he does so not because he says it is right in itself-he does not give any opinion on that-but because it has been decided by the court, and being decided by court, he is, and you are bound to take it in your political action as law-not that he judges at all of its merits, but because a decision of the court is to him a “Thus saith the Lord.” [Applause.] He places it on that ground alone, and you will bear in mind that, thus committing himself unreservedly to this decision, commits him to the next one just as firmly as to this. He did not commit himself on account of the merit or demerit of the decision, but it is a Thus saith the Lord. The next decision, as much as this, will be a Thus saith the Lord. There is nothing that can divert or turn him away from this decision. It is nothing that I point out to him that his great prototype, Gen. Jackson, did not believe in the binding force of decisions. It is nothing to him that Jefferson did not so believe. I have said that I have often heard him approve of Jackson’s course in disregarding the decision of the Supreme Court pronouncing a National Bank constitutional. He says, I did not hear him say so. He denies the accuracy of my recollection. I say he ought to know better than I, but I will make no question about this thing, though it still seems to me that I heard him say it twenty times. [Applause and laughter.] I will tell him though, that he now claims to stand on the Cincinnati platform, which affirms that Congress cannot charter a National Bank, in the teeth of that old standing decision that Congress can charter a bank. [Loud applause.] And I remind him of another piece of history on the question of respect for judicial decisions, and it is a piece of Illinois history, belonging to a time when the large party to which Judge Douglas belonged, were displeased with a decision of the Supreme Court of Illinois, because they had decided that a Governor could not remove a Secretary of State. You will find the whole story in Ford’s History of Illinois, and I know that Judge Douglas will not deny that he was then in favor of overslaughing that decision by the mode of adding five new Judges, so as to vote down the four old ones. Not only so, but it ended in the Judge’s sitting down on that very bench as one of the five new Judges to break down the four old ones. [Cheers and laughter.] It was in this way precisely that he got his title of Judge. Now, when the Judge tells me that men appointed conditionally to sit as members of a court, will have to be catechised beforehand upon some subject, I say, “You know, Judge; you have tried it.” [Laughter.] When he says a court of this kind will lose the confidence of all men, will be prostituted and disgraced by such a proceeding, I say, “You know best, Judge; you have been through the mill.” But I cannot shake Judge Douglas’s teeth loose from the Dred Scott decision. Like some obstinate animal (I mean no disrespect), that will hang on when he has once got his teeth fixed; you may cut off a leg, or you may tear away an arm, still he will not relax his hold. And so I may point out to the Judge, and say that he is bespattered all over, from the beginning of his political life to the present time, with attacks upon judicial decisions-I may cut off limb after limb of his public record, and strive to wrench him from a single dictum of the court-yet I cannot divert him from it. He hangs, to the last, to the Dred Scott decision. [Loud cheers.] These things show there is a purpose strong as death and eternity for which he adheres to this decision, and for which he will adhere to all other decisions of the same court. [Vociferous applause.]

A HIBERNIAN- “Give us something besides Dred Scott.”

MR. LINCOLN-Yes; no doubt you want to hear something that don’t hurt. [Laughter and applause.] Now, having spoken of the Dred Scott decision, one more word and I am done. Henry Clay, my beau ideal of a statesman, the man for whom I fought all my humble life-Henry Clay once said of a class of men who would repress all tendencies to liberty and ultimate emancipation, that they must, if they would do this, go back to the era of our Independence, and muzzle the cannon which thunders its annual joyous return; they must blow out the moral lights around us; they must penetrate the human soul, and eradicate there the love of liberty; and then, and not till then, could they perpetuate slavery in this country! [Loud cheers.] To my thinking, Judge Douglas is, by his example and vast influence, doing that very thing in this community, [cheers,] when he says that the negro has nothing in the Declaration of Independence. Henry Clay plainly understood the contrary. Judge Douglas is going back to the era of our Revolution, and to the extent of his ability, muzzling the cannon which thunders its annual joyous return. When he invites any people, willing to have slavery, to establish it, he is blowing out the moral lights around us. [Cheers.] When he says he “cares not whether slavery is voted down or voted up”-that it is a sacred right of self-government-he is, in my judgment, penetrating the human soul and eradicating the light of reason and the love of liberty in this American people. [Enthusiastic and continued applause.] And now I will only say that when, by all these means and appliances, Judge Douglas shall succeed in bringing public sentiment to an exact accordance with his own views-when these vast assemblages shall echo back all these sentiments-when they shall come to repeat his views and to avow his principles, and to say all that he says on these mighty questions-then it needs only the formality of the second Dred Scott decision, which he indorses in advance, to make slavery alike lawful in all the States-old as well as new, North as well as South.

My friends, that ends the chapter. The Judge can take his half hour.

MR. DOUGLAS’ REPLY.

MR. DOUGLAS – Fellow citizens: I will now occupy the half hour allotted to me in replying to Mr. Lincoln. The first point to which I will call your attention is, as to what I said about the organization of the Republican party in 1854, and the platform that was formed on the 5th of October, of that year, and I will then put the question to Mr. Lincoln, whether or not, he approves of each article in that platform (“he answered that already”), and ask for a specific answer. (“He has answered.” “You cannot make him answer,” &c.) I did not charge him with being a member of the committee which reported that platform. (“Yes, you did.”) I charged that that platform was the platform of the Republican party adopted by them. The fact that it was the platform of the Republican party is not denied, but Mr. Lincoln now says, that although his name was on the committee which reported it, that he does not think he was there, but thinks he was in Tazewell, holding court. (“He said he was there.”) Gentlemen, I ask your silence, and no interruption. Now, I want to remind Mr. Lincoln that he was at Springfield when that Convention was held and those resolutions adopted. (“You can’t do it.” “He wasn’t there,” &c.)

[MR. GLOVER, chairman of the Republican committee – I hope no Republican will interrupt Mr. Douglas. The masses listened to Mr. Lincoln attentively, and as respectable men we ought now to hear Mr. Douglas, and without interruption.] (“Good.”)

MR. DOUGLAS, resuming – The point I am going to remind Mr. Lincoln of is this: that after I had made my speech in 1854, during the fair, he gave me notice that he was going to reply to me the next day. I was sick at the time, but I staid over in Springfield to hear his reply and to reply to him. On that day this very Convention, the resolutions adopted by which I have read, was to meet in the Senate chamber. He spoke in the hall of the House; and when he got through his speech-my recollection is distinct, and I shall never forget it-Mr. Codding walked in as I took the stand to reply, and gave notice that the Republican State Convention would meet instantly in the Senate chamber, and called upon the Republicans to retire there and go into this very Convention, instead of remaining and listening to me. (Three cheers for Douglas.)

MR. LINCOLN, interrupting, excitedly and angrily – Judge, add that I went along with them. (This interruption was made in a pitifulm, mean, sneaking way, as Lincoln floundered around the stand.)

MR. DOUGLAS-Gentlemen, Mr. Lincoln tells me to add that he went along with them to the Senate chamber. I will not add that, because I do not know whether he did or not.

MR. LINCOLN, again interrupting – I know he did not.

[Two of the Republican committee here seized Mr. Lincoln and by a sudden jerk caused him to disappear from the front of the stand, one of them saying quite audibly, “What are you making such a fuss for. Douglas didn’t interrupt you, and can’t you see that the people don’t like it.”]

MR. DOUGLAS-I do not know whether he knows it or not, that is not the point, and I will yet bring him on to the question.

In the first place – Mr. Lincoln was selected by the very men who made the Republican organization, on that day, to reply to me. He spoke for them and for that party, and he was the leader of the party; and on the very day he made his speech in reply to me, preaching up this same doctrine of negro equality, under the Declaration of Independence, this Republican party met in Convention. (Three cheers for Douglas.) Another evidence that he was acting in concert with them is to be found in the fact that that Convention waited an hour after its time of meeting to hear Lincoln’s speech, and Codding one of their leading men, marched in the moment Lincoln got through, and gave notice that they did not want to hear me, and would proceed with the business of the Convention. Still another fact. I have here a newspaper printed at Springfield, Mr. Lincoln’s own town, in October, 1854, a few days afterward, publishing these resolutions, charging Mr. Lincoln with entertaining these sentiments, and trying to prove that they were also the sentiments of Mr. Yates, then candidate for Congress. This has been published on Mr. Lincoln over and over again, and never before has he denied it. (Three cheers.)

But, my friends, this denial of his that he did not act on the committee, is a miserable quibble to avoid the main issue, (applause.) (“That’s so,”) which is, that this Republican platform declares in favor of the unconditional repeal of the Fugitive Slave law. Has Lincoln answered whether he indorsed that or not? (No, no.) I called his attention to it when I first addressed you, and asked him for an answer, and I then predicted that he would not answer. (Bravo, glourious, and cheers.) How does he answer. Why, that he was not on the committee that wrote the resolutions. (Laughter.) I then repeated the next proposition contained in the resolutions, which was to restrict slavery in those States in which it exists, and asked him whether he indorsed it. Does he answer yes, or no? He says in reply, “I was not on the committee at the time; I was up in Tazewell.” The next question I put to him was, whether he was in favor of prohibiting the admission of any more slave States into the Union. I put the question to him distinctly, whether, if the people of the Territory, when they had sufficient population to make a State, should form their Constitution recognizing slavery, he would vote for or against its admission. (“That’s it.”) He is a candidate for the United States Senate, and it is possible, if he should be elected, that he would have to vote directly on that question. (“He never will.”) I asked him to answer me and you, whether he would vote to admit a State into the Union, with slavery or without it, as its own people might choose. (“Hear him,” “That’s the docntrine,” and applause.) He did not answer that question. (“He never will.”) He dodges that question also, under the cover that he was not on the Committee at the time, that he was not present when the platform was made. I want to know if he should happen to be in the Senate when a State applied for admission, with a Constitution acceptable to her own people, he would vote to admit that State, if slavery was one of its institutions. (That’s the question.) He avoids the answer.

MR. LINCOLN-interrupting a third time excitedly, No, Judge – (Mr. Lincoln again disappeared suddenly aided by a pull from behind.)

MR. DOUGLAS. It is true he gives the Abolitionists to understand by a hint that he would not vote to admit such a State. And why? He goes on to say that the man who would talk about giving each State the right to have slavery, or not, as it pleased, was akin to the man who would muzzle the guns which thundered forth the annual joyous return of the day of our independence. (Great laughter.) He says that that kind of talk is casting a blight on the glory of this country. What is the meaning of that? That he is not in favor of each State to have the right of doing as it pleases on the slavery question? (“Stick it to him,” “don’t spare him,” and applause.) I will put the question to him again and again, and I intend to force it out of him. (Immense applause.)

Then again, this platform which was made at Springfield by his own party, when he was its acknowledged head, provides that Republicans will insist on the abolition of slavery in the District of Columbia, and I asked Lincoln specifically whether he agreed with them in that? Did you get an answer? (“No, no.”) He is afraid to answer it. (“We will not vote for him.”) He knows I will trot him down to Egypt. (Laughter and cheers.) I intend to make him answer there, (“that’s right,”) or I will show the people of Illinois that he does not intend to answer these questions. (“Keep him to the point,” “give us more,” etc.) The convention to which I have been alluding goes a little further, and pledges itself to exclude slavery from all the Territories over which the General Government has exclusive jurisdiction north of 36 deg. 30 min., as well as South. Now I want to know whether he approves that provision. (He’ll never answer and cheers.) I want him to answer, and when he does, I want to know his opinion on another point, which is, whether he will redeem the pledge of this platform and resist the acquirement of any more territory unless slavery therein shall be forever prohibited. I want him to answer this last question. Each of the questions I have put to him are practical questions-questions based upon the fundamental principles of the Black Republican party, and I want to know whether he is the first, last, and only choice of a party with whom he does not agree in principle. (“Great applause,”) (“Rake him down.”) He does not deny but that that principle was unanimously adopted by the Republican party; he does not deny that the whole Republican party is pledged to it; he does not deny that a man who is not faithful to it is faithless to the Republican party; and now I want to know whether that party is unanimously in favor of a man who does not adopt that creed and agree with them in their principles: I want to know whether the man who does not agree with them, and who is afraid to avow his differences, and who dodges the issue, is the first, last, and only choice of the Republican party. (Cheers.) A VOICE, how about this conspiracy?

MR. DOUGLAS, never mind, I will come to that soon enough. (Bravo, Judge, hurra, three cheers for Douglas.) But the platform which I have read to you not only lays down these principles, but it adds:

Resolved, That in furtherance of these principles we will use such constitutional and lawful means as shall seem best adapted to their accomplishment, and that we will support no man for office, under the general or state government, who is not positively and fully committed to the support of these principles, and whose personal character and conduct is not a guaranty that he is reliable, and who shall not have abjured old party allegiance and ties.

(“Good,” “you have him,” &c.)

The Black Republican party stands pledged that they will never support Lincoln until he has pledged himself to that platform, (tremendous applause, men throwing up their hats, and shouting, “you’ve got him,”) but he cannot devise his answer; he has not made up his mind whether he will or not. (Great laughter.) He talked about everything else he could think of to occupy his hour and a half, and when he could not think of anything more to say, without an excuse for refusing to answer these questions, he sat down long before his time was out. (Cheers.)

In relation to Mr. Lincoln’s charge of conspiracy against me, I have a word to say. In his speech today he quotes a playful part of his speech at Springfield, about Stephen, and James, and Franklin, and Roger, and says that I did not take exception to it. I did not answer it, and he repeats it again. I did not take exception to this figure of his. He has a right to be as playful as he pleases in throwing his arguments together, and I will not object; but I did take objection to his second Springfield speech, in which he stated that he intended his first speech as a charge of corruption or conspiracy against the Supreme Court of the United States, President Pierce, President Buchanan, and myself. That gave the offensive character to the charge. He then said that when he made it he did not know whether it was true or not (laughter), but inasmuch as Judge Douglas had not denied it, although he had replied to the other parts of his speech three times, he repeated it as a charge of conspiracy against me, thus charging me with moral turpitude. When he put it in that form I did say that inasmuch as he repeated the charge simply because I had not denied it, I would deprive him of the opportunity of ever repeating it again, by declaring that it was in all its bearings an infamous lie. (Three cheers for Douglas.) He says he will repeat it until I answer his folly and nonsense, about Stephen, and Franklin, and Roger, and Bob, and James.

He studied that out, prepared that one sentence with the greatest care, committed it to memory, and put it in his first Springfield speech, and now he carries that speech around and reads that sentence to show how pretty it is. (Laughter.) His vanity is wounded because I will not go into that beautiful figure of his about the building of a house. (Renewed laughter.) All I have to say is, that I am not green enough to let him make a charge which he acknowledges he does not know to be true, and then take up my time in answering it, when I know it to be false and nobody else knows it to be true. (Cheers.)

I have not brought a charge of moral turpitude against him. When he, or any other man, brings one against me, instead of disproving it I will say that it is a lie, and let him prove it if he can. (Enthusiastic applause.)

I have lived twenty-five years in Illinois. I have served you with all the fidelity and ability which I possess, (“That’s so,” “good.” and cheers,) and Mr. Lincoln is at liberty to attack my public action, my votes, and my conduct; but when he dares to attack my moral integrity, by a charge of conspiracy between myself, Chief Justice Taney and the Supreme Court, and two Presidents of the United States, I will repel it. (“Three cheers for Douglas.”)

Mr. Lincoln has not character enough for integrity and truth, merely on his own ipse dixit to arraign President Buchanan, President Pierce, and nine judges of the Supreme Court, not one of whom would be complimented by being put on an equality with him. (“Hit him again, three cheers” &c.) There is an unpardonable presumption in a man putting himself up before thousands of people, and pretending that his ipse dixit, without proof, without fact and without truth, is enough to bring down and destroy the purest and best of living men. (“Hear him,” “Three cheers.”)

Fellow-citizens, my time is fast expiring; I must pass on. Mr. Lincoln wants to know why I voted against Mr. Chase’s amendment to the Nebraska bill. I will tell him. In the first place, the bill already conferred all the power which Congress had, by giving the people the whole power over the subject. Chase offered a proviso that they might abolish slavery, which by implication would convey the idea that they could prohibit by not introducing that institution. Gen. Cass asked him to modify his amendment, so as to provide that the people might either prohibit or introduce slavery, and thus make it fair and equal. Chase refused to so modify his proviso, and then Gen. Cass and all the rest of us, voted it down. (Immense cheering.) These facts appear on the journals and debates of Congress, where Mr. Lincoln found the charge, and if he had told the whole truth, there would have been no necessity for me to occupy your time in explaining the matter.

Mr. Lincoln wants to know why the word “state,” as well as “territory,” was put into the Nebraska Bill! I will tell him. It was put there to meet just such false arguments as he has been adducing. (Laughter.) That first, not only the people of the Territories should do as they pleased, but that when they come to be admitted as States, they should come into the Union with or without slavery, as the people determined. I meant to knock in the head this Abolition doctrine of Mr. Lincoln’s, that there shall be no more slave States, even if the people want them. (Tremendous applause.) And it does not do for him to say, or for any other Black Republican to say, that there is nobody in favor of the doctrine of no more slave States, and that nobody wants to interfere with the right of the people to do as they please. What was the origin of the Missouri difficulty and the Missouri compromise? The people of Missouri formed a constitution as a slave State, and asked admission into the Union, but the Free Soil party of the North being in a majority, refused to admit her because she had slavery as one of her institutions. Hence this first slavery agitation arose upon a State and not upon a Territory, and yet Mr. Lincoln does not know why the word State was placed in the Kansas-Nebraska bill. (Great laughter and applause.) The whole Abolition agitation arose on that doctrine of prohibiting a State from coming in with Slavery or not, as it pleased, and that same doctrine is here in this Republican platform of 1854; it has never been repealed; and every Black Republican stands pledged by that platform, never to vote for any man who is not in favor of it. Yet Mr. Lincoln does not know that there is a man in the world who is in favor of preventing a State from coming in as it pleases, notwithstanding. The Springfield platform says that they, the Republican party, will not allow a State to come in under such circumstances. He is an ignorant man. (Cheers.)

Now you see that upon these very points I am as far from bringing Mr. Lincoln up to the line as I ever was before. He does not want to avow his principles. I do want to avow mine, as clear as sunlight in mid-day. (Cheers and applause.) Democracy is founded upon the eternal principle of right. (That is the talk.) The plainer these principles are avowed before the people, the stronger will be the support which they will receive. I only wish I had the power to make them so clear that they would shine in the heavens for every man, woman, and child to read. (Loud cheering.) The first of those principles that I would proclaim would be in opposition to Mr. Lincoln’s doctrine of uniformity between the different States, and I would declare instead the sovereign right of each State to decide the slavery question as well as all other domestic questions for themselves, without interference from any other State or power whatsoever. (Hurrah for Douglas.)

When that principle is recognized, you will have peace and harmony and fraternal feeling between all the States of this Union; until you do recognize that doctrine, there will be sectional warfare agitating and distracting the country. What does Mr. Lincoln propose? He says that the Union cannot exist divided into free and slave States. If it cannot endure thus divided, then he must strive to make them all free or all slave, which will inevitably bring about a dissolution of the Union. (Cries of “he can’t do it.”)

Gentlemen, I am told that my time is out, and I am obliged to stop. (Three times three cheers were here given for Senator Douglas.)

In January 1854, Senator Stephen Douglas introduced a bill that divided the land west of Missouri into two territories, Kansas and Nebraska. He argued for popular sovereignty, which would allow the settlers of the new territories to decide if slavery would be legal there. Antislavery supporters were outraged because, under the terms of the Missouri Compromise of 1820, slavery would have been outlawed in both territories.

After months of debate, the Kansas-Nebraska Act passed on May 30, 1854. Pro-slavery and anti-slavery settlers rushed to Kansas, each side hoping to determine the results of the first election held after the law went into effect. The conflict turned violent, aggravating the split between North and South until reconciliation was virtually impossible.

Opponents of the Kansas-Nebraska Act helped found the Republican Party, which opposed the spread of slavery into the territories. As a result of the Kansas-Nebraska Act, the United States moved closer to Civil War.

An Act to Organize the Territories of Nebraska and Kansas.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all that part of the territory of the United States included within the following limits, except such portions thereof as are hereinafter expressly exempted from the operations of this act, to wit: beginning at a point in the Missouri River where the fortieth parallel of north latitude crosses the same; then west on said parallel to the east boundary of the Territory of Utah, the summit of the Rocky Mountains; thence on said summit northwest to the forty-ninth parallel of north latitude; thence east on said parallel to the western boundary of the territory of Minnesota; thence southward on said boundary to the Missouri River; thence down the main channel of said river to the place of beginning, be, and the same is hereby, created into a temporary government by the name of the Territory Nebraska; and when admitted as a State or States, the said Territory or any portion of the same, shall be received into the Union with without slavery, as their constitution may prescribe at the time of the admission: Provided, That nothing in this act contained shall be construed to inhibit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such tin as Congress shall deem convenient and proper, or from attaching a portion of said Territory to any other State or Territory of the United States: Provided further, That nothing in this act contained shall construed to impair the rights of person or property now pertaining the Indians in said Territory’ so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or include any territory which, by treaty with any Indian tribe, is not, without the consent of said tribe, to be included within the territorial line or jurisdiction of any State or Territory; but all such territory shall excepted out of the boundaries, and constitute no part of the Territory of Nebraska, until said tribe shall signify their assent to the President of the United States to be included within the said Territory of Nebraska. or to affect the authority of the government of the United States make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed.

SEC. 2. And Be it further enacted, That the executive power and authority in and over said Territory of Nebraska shall be vested in a Governor who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The Governor shall reside within said Territory, and shall be commander-in-chief of the militia thereof. He may grant pardons and respites for offences against the laws of said Territory, and reprieves for offences against the laws of the United States, until the decision of the President can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of the aid Territory, and shall take care that the laws be faithfully executed.

SEC. 3. And Be it further enacted, That there shall be a Secretary of said Territory, who shall reside therein, and hold his office for five years, unless sooner removed by the President of the United States; he shall record and preserve all the laws and proceedings of the Legislative Assembly hereinafter constituted, and all the acts and proceedings of the Governor in his executive department; he shall transmit one copy of the laws and journals of the Legislative Assembly within thirty days after the end of each session, and one copy of the executive proceedings and official correspondence semi-annually, on the first days of January and July in each year to the President of the United States, and two copies of the laws to the President of the Senate and to the Speaker of the House of Representatives, to be deposited in the libraries of Congress, and in or case of the death, removal, resignation, or absence of the Governor from the Territory, the Secretary shall be, and he is hereby, authorized and required to execute and perform all the powers and duties of the Governor during such vacancy or absence, or until another Governor shall be duly appointed and qualified to fill such vacancy.

SEC 4. And be it further enacted, That the legislative power and authority of said Territory shall be vested in the Governor and a Legislative Assembly. The Legislative Assembly shall consist of a Council and House of Representatives. The Council shall consist of thirteen members, having the qualifications of voters, as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall, at its first session, consist of twenty-six members, possessing the same qualifications as prescribed for members of the Council, and whose term of service shall continue one year. The number of representatives may be increased by the Legislative Assembly, from time to time, in proportion to the increase of qualified voters: Provided, That the whole number shall never exceed thirty-nine. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the council and representatives, giving to each section of the Territory representation in the ratio of its qualified voters as nearly as may be. And the members of the Council and of the House of Representatives shall reside in, and be inhabitants of, the district or county, or counties for which they may be elected, respectively. Previous to the first election, the Governor shall cause a census, or enumeration of the inhabitants and qualified voters of the several counties and districts of the Territory, to be taken by such persons and in such mode as the Governor shall designate and appoint; and the persons so appointed shall receive a reasonable compensation therefor. And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct; and he shall at the same time declare the number of members of the Council and House of Representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each of said council districts for members of the Council, shall be declared by the Governor to be duly elected to the Council; and the persons having the highest number of legal votes for the House of Representatives, shall be declared by the Governor to be duly elected members of said house: Provided, That in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the Legislative Assembly, the Governor shall order a new election; and the persons thus elected to the Legislative Assembly shall meet at such place and on such day as the Governor shall appoint; but thereafter, the time, place, and manner of holding and conducting all elections by the people, and the apportioning the representation in the several counties or districts to the Council and House of Representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the Legislative Assembly: Provided, That no session in any one year shall exceed the term of forty days, except the first session, which may continue sixty days.

SEC. 5. And be it further enacted, That every free white male inhabitant above the age of twenty-one years who shall be an actual resident of said Territory, and shall possess the qualifications hereinafter prescribed, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters, and of holding office, at all subsequent elections, shall be such as shall be prescribed by the Legislative Assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States and those who shall have declared on oath their intention to become such, and shall have taken an oath to support the Constitution of the United States and the provisions of this act: And provided further, That no officer, soldier, seaman, or marine, or other person in the army or navy of the United States, or attached to troops in the service of the United States, shall be allowed to vote or hold office in said Territory, by reason of being on service therein.

SEC. 6. And Be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. Every bill which shall have passed the Council and House of Representatives of the said Territory shall, before it become a law, be presented to the Governor of the Territory; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, to be entered on the journal of each house respectively. If any bill shall not be returned by the Governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Assembly, by adjournment, prevents its return, in which case it shall not be a law.

SEC. 7. And be it further enacted, That all township, district, and county officers, not herein otherwise provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the Governor and Legislative Assembly of the Territory of Nebraska. The Governor shall nominate, and, by and with the advice and consent of the Legislative Council, appoint all officers not herein otherwise provided for; and in the first instance the Governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the Legislative Assembly; and shall lay off the necessary districts for members of the Council and House of Representatives, and all other officers.

SEC. 8. And be it further enacted, That no member of the Legislative Assembly shall hold, or be appointed to, any office which shall have been created, or the salary or emoluments of which shall have been increased, while he was a member, during the term for which he was elected, and for one year after the expiration of such term; but this restriction shall not be applicable to members of the first Legislative Assembly; and no person holding a commission or appointment under the United States, except Postmasters, shall be a member of the Legislative Assembly, or hold any office under the government of said Territory.

SEC. 9. And be it further enacted, That the judicial power of said Territory shall be vested in a Supreme Court, District Courts, Probate Courts, and in Justices of the Peace. The Supreme Court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said Territory annually, and they shall hold their offices during the period of four years, and until their successor shall be appointed and qualified. The said Territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the Supreme Court, at such times and places as may be prescribed by of law; and the said judges shall, after their appointments, respectively, reside in the districts which shall be assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and districts courts, respectively, shall possess chancery as well as common law jurisdiction. Each District Court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may, be held. Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by law; but in no case removed to the Supreme Court shall trial by jury be allowed in said court. The Supreme Court, or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of the court for which he shall have been appointed. Writs of error, and appeals from the final decisions of said Supreme Court, shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed one thousand dollars; except only that in all cases involving title to slaves, the said writs of error, or appeals shall be allowed and decided by the said Supreme Court, without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall also be allowed to the Supreme Court of the United States, from the decision of the said Supreme Court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of personal freedom: Provided, that nothing herein contained shall be construed to apply to or affect the provisions to the ” act respecting fugitives from justice, and persons escaping from the service of their masters,” approved February twelfth, seventeen hundred and ninety-three, and the ” act to amend and supplementary to the aforesaid act,” approved September eighteen, eighteen hundred and fifty; and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and Laws of the United States as is vested in the Circuit and District Courts of the United States; and the said Supreme and District Courts of the said Territory, and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the same are granted by the judges of the United States in the District of Columbia; and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said constitution and laws, and writs of error and appeal in all such cases shall be made to the Supreme Court of said Territory, the same as in other cases. The said clerk shall receive in all such cases the same fees which the clerks of the district courts of Utah Territory now receive for similar services.

SEC. 10. And Be it further enacted, That the provisions of an act entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters,” approved February twelve, seventeen hundred and ninety-three, and the provisions of the act entitled ” An act to amend, and supplementary to, the aforesaid act,” approved September eighteen, eighteen hundred and fifty, be, and the same are hereby, declared to extend to and be in full force within the limits of said Territory of Nebraska.

SEC. 11. And be it further enacted, That there shall be appointed an Attorney for said Territory, who shall continue in office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall receive the same fees and salary I as the Attorney of the United States for the present Territory of Utah. There shall also be a Marshal for the Territory appointed, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall execute all processes issuing from the said courts when exercising their jurisdiction as Circuit and District Courts of the United States; he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees, as the Marshal of the District Court of the United States for the present Territory of Utah, and shall, in addition, be paid two hundred dollars annually as a compensation for extra services.

SEC. 12. And be it further enacted, That the Governor, Secretary, Chief Justice, and Associate Justices, Attorney and Marshal, shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of the United States. The Governor and a Secretary to be appointed as aforesaid, shall, before they act as such, respectively take an oath or affirmation before the District Judge or some Justice of the Peace in the limits of said Territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or before the Chief Justice, or some Associate Justice of the Supreme Court of the United States, to support the Constitution of the United States, and faithfully to discharge the duties of their respective offices, which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken; and such certificates shall be received and recorded by the said Secretary among the Executive proceedings; and the Chief Justice and Associate Justices, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation before the said Governor or Secretary, or some Judge or Justice of the Peace of the Territory, who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted by the person taking the same to the Secretary, to be by him recorded as aforesaid; and, afterwards, the like oath or affirmation shall be taken, certified, and recorded, in such manner and form as may be prescribed by law. The Governor shall receive an annual salary of two thousand five hundred dollars. The Chief Justice and Associate Justices shall each receive an annual salary of two thousand dollars. The Secretary shall receive an annual salary of two thousand dollars. The said salaries shall be paid quarter-yearly, from the dates of the respective appointments, at the Treasury of the United States; but no such payment shall be made until said officers shall have entered upon the duties of their respective appointments. The members of the Legislative Assembly shall be entitled to receive three dollars each per day during their attendance at the sessions thereof, and three dollars each for every twenty miles’ travel in going to and returning from the said sessions, estimated according to the nearest usually travelled route; and an additional allowance of three dollars shall be paid to the presiding officer of each house for each day he shall so preside. And a chief clerk, one assistant clerk, a sergeant-at-arms, and doorkeeper, may be chosen for each house; and the chief clerk shall receive four dollars per day, and the said other officers three dollars per day, during the session of the Legislative Assembly; but no other officers shall be paid by the United States: Provided, That there shall be but one session of the legislature annually, unless, on an extraordinary occasion, the Governor shall think proper to call the legislature together. There shall be appropriated, annually, the usual sum, to be expended by the Governor, to defray the contingent expenses of the Territory, including the salary of a clerk of the Executive Department; and there shall also be appropriated, annually, a sufficient sum, to be expended by the Secretary of the Territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the Legislative Assembly, the printing of the laws, and other incidental expenses; and the Governor and Secretary of the Territory shall, in the disbursement of all moneys intrusted to them, be governed solely by the instructions of the Secretary of the Treasury of the United States, and shall, semi-annually, account to the said Secretary for the manner in which the aforesaid moneys shall have been expended; and no expenditure shall be made by said Legislative Assembly for objects not specially authorized by the acts of Congress, making the appropriations, nor beyond the sums thus appropriated for such objects.

SEC. 13. And be it further enacted, That the Legislative Assembly of the Territory of Nebraska shall hold its first session at such time and place in said Territory as the Governor thereof shall appoint and direct; and at said first session, or as soon thereafter as they shall deem expedient, the Governor and Legislative Assembly shall proceed to locate and establish the seat of government for said Territory at such place as they may deem eligible; which place, however, shall thereafter be subject to be changed by the said Governor and Legislative Assembly.

SEC. 14. And be it further enacted, That a delegate to the House of Representatives of the United States, to serve for the term of two years, who shall be a citizen of the United States, may be elected by the voters qualified to elect members of the Legislative Assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other Territories of the United States to the said House of Representatives, but the delegate first elected shall hold his seat only during the term of the Congress to which he shall be elected. The first election shall be held at such time and places, and be conducted in such manner, as the Governor shall appoint and direct; and at all subsequent elections the times, places, and manner of holding the elections, shall be prescribed by law. The person having the greatest number of votes shall be declared by the Governor to be duly elected; and a certificate thereof shall be given accordingly. That the Constitution, and all Laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union approved March sixth, eighteen hundred and twenty, which, being inconsistent with the principle of non-intervention by Congress with slaves in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form an regulate their domestic institutions in their own way, subject only to the Constitution of the United States: Provided, That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of sixth March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery.

SEC. 15. And Be it further enacted, That there shall hereafter be appropriated, as has been customary for the Territorial governments, sufficient amount, to be expended under the direction of the said Governor of the Territory of Nebraska, not exceeding the sums heretofore appropriated for similar objects, for the erection of suitable public buildings at the seat of government, and for the purchase of a library, to be kept at the seat of government for the use of the Governor, Legislative Assembly, Judges of the Supreme Court, Secretary, Marshal, and Attorney of said Territory, and such other persons, and under such regulations as shall be prescribed by law.

SEC. 16. And be it further enacted, That when the lands in the said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, section; numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same.

SEC. 17. And be it further enacted, That, until otherwise provided by law, the Governor of said Territory may define the Judicial Districts of said Territory, and assign the judges who may be appointed for said Territory to the several districts; and also appoint the times and places for holding courts in the several counties or subdivisions in each of said Judicial Districts by proclamation, to be issued by him; but the Legislative Assembly, at their first or any subsequent session, may organize, alter, or modify such Judicial Districts, and assign the judges, and alter the times and places of holding the courts, as to them shall seem proper and convenient.

SEC. 18. And be it further enacted, That all officers to be appointed by the President, by and with the advice and consent of the Senate, for the Territory of Nebraska, who, by virtue of the provisions of any law now existing, or which may be enacted during the present Congress, are required to give security for moneys that may be intrusted with them for disbursement, shall give such security, at such time and place, and in such manner, as the Secretary of the Treasury may prescribe.

SEC. 19. And be it further enacted, That all that part of the Territory of the United States included within the following limits, except such portions thereof as are hereinafter expressly exempted from the operations of this act, to wit, beginning at a point on the western boundary of the State of Missouri, where the thirty-seventh parallel of north latitude crosses the same; thence west on said parallel to the eastern boundary of New Mexico; thence north on said boundary to latitude thirty-eight; thence following said boundary westward to the east boundary of the Territory of Utah, on the summit of the Rocky Mountains; thence northward on said summit to the fortieth parallel of latitude, thence east on said parallel to the western boundary of the State of Missouri; thence south with the western boundary of said State to the place of beginning, be, and the same is hereby, created into a temporary government by the name of the Territory of Kansas; and when admitted as a State or States, the said Territory, or any portion of the same, shall be received into the Union with or without slavery, as their Constitution may prescribe at the time of their admission: Provided, That nothing in this act contained shall be construed to inhibit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such times as Congress shall deem convenient and proper, or from attaching any portion of said Territory to any other State or Territory of the United States: Provided further, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with any Indian tribe, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any State or Territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the Territory of Kansas, until said tribe shall signify their assent to the President of the United States to be included within the said Territory of Kansas, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed.

SEC. 20. And be it further enacted, That the executive power and authority in and over said Territory of Kansas shall be vested in a Governor, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The Governor shall reside within said Territory, and shall be commander-in-chief of the militia thereof. He may grant pardons and respites for offences against the laws of said Territory, and reprieves for offences against the laws of the United States, until the decision of the President can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of the said Territory, and shall take care that the laws be faithfully executed.

SEC. 21. And be it further enacted, That there shall be a Secretary of said Territory, who shall reside therein, and hold his office for five years, unless sooner removed by the President of the United States; he shall record and preserve all the laws and proceedings of the Legislative Assembly hereinafter constituted, and all the acts and proceedings of the Governor in his Executive Department; he shall transmit one copy of the laws and journals of the Legislative Assembly within thirty days after the end of each session, and one copy of the executive proceedings and official correspondence semi-annually, on the first days of January and July in each year, to the President of the United States, and two copies of the laws to the President of the Senate and to the Speaker of the House of Representatives, to be deposited in the libraries of Congress; and, in case of the death, removal, resignation, or absence of the Governor from the Territory, the Secretary shall be, and he is hereby, authorized and required to execute and perform all the powers and duties of the Governor during such vacancy or absence, or until another Governor shall be duly appointed and qualified to fill such vacancy.

SEC. 22. And be it further enacted, That the legislative power and authority of said Territory shall be vested in the Governor and a Legislative Assembly. The Legislative Assembly shall consist of a Council and House of Representatives. The Council shall consist of thirteen members, having the qualifications of voters, as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall, at its first session, consist of twenty-six members possessing the same qualifications as prescribed for members of the Council, and whose term of service shall continue one year. The number of representatives may be increased by the Legislative Assembly, from time to time, in proportion to the increase of qualified voters: Provided, That the whole number shall never exceed thirty-nine. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the Council and Representatives, giving to each section of the Territory representation in the ratio of its qualified voters as nearly as may be. And the members of the Council and of the House of Representatives shall reside in, and be inhabitants of, the district or county, or counties, for which they may be elected, respectively. Previous to the first election, the Governor shall cause a census, or enumeration of the inhabitants and qualified voters of the several counties and districts of the Territory, to be taken by such persons and in such mode as the Governor shall designate and appoint; and the persons so appointed shall receive a reasonable compensation therefor. And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct; and he shall at the same time declare the number of members of the Council and House of Representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each of said Council Districts for members of the Council, shall be declared by the Governor to be duly elected to the Council; and the persons having the highest number of legal votes for the House of Representatives, shall be declared by the Governor to be duly elected members of said house: Provided, That in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the Legislative Assembly, the Governor shall order a new election; and the persons thus elected to the Legislative Assembly shall meet at such place and on such day as the Governor shall appoint; but thereafter, the time, place, and manner of holding and conducting all elections by the people, and the apportioning the representation in the several counties or districts to the Council and House of Representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the Legislative Assembly: Provided, That no session in any one year shall exceed the term of forty days, except the first session, which may continue sixty days.

SEC. 23. And be it further enacted, That every free white male inhabitant above the age of twenty-one years, who shall be an actual resident of said Territory, and shall possess the qualifications hereinafter prescribed, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters, and of holding office, at all subsequent elections, shall be such as shall be prescribed by the Legislative Assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States, and those who shall have declared, on oath, their intention to become such, and shall have taken an oath to support the Constitution of the United States and the provisions of this act: And, provided further, That no officer, soldier, seaman, or marine, or other person in the army or navy of the United States, or attached to troops in the service of the United States, shall be allowed to vote or hold office in said Territory by reason of being on service therein.

SEC. 24. And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other properly of residents. Every bill which shall have passed the Council and House of Representatives of the said Territory shall, before it become a law, be presented to the Governor of the Territory; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which, it shall likewise be reconsidered, and, if approved by two thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, to be entered on the journal of each house, respectively. If any bill shall not be returned by the Governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Assembly, by adjournment, prevent its return, in which case it shall not be a law.

SEC. 25. And be it further enacted, That all township, district, and; county officers, not herein otherwise provided for, shall be appointed or elected as the case may be, in such manner as shall be provided by the Governor and Legislative Assembly of the Territory of Kansas. The Governor shall nominate, and, by and with the advice and consent of the Legislative Council, appoint all officers not herein otherwise provided for; and, in the first instance, the Governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the Legislative Assembly; and shall lay off the necessary districts for members of the Council and House of Representatives, and all other officers.

SEC. 26. And be it further enacted, That no member of the Legislative Assembly shall hold, or be appointed to, any office which shall have been created, or the salary or emoluments of which shall have been increased, while he was a member, during the term for which he was elected, and for one year after the expiration of such term; but this restriction shall not be applicable to members of the first Legislative Assembly; and no person holding a commission or appointment under the United States, except postmasters, shall be a member of the Legislative Assembly, or shall hold any office under the government of said Territory.

SEC. 27. And be it further enacted, That the judicial power of said Territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The Supreme Court shall Consist of chief justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said Territory annually; and they shall hold their offices during the period of four years, and until their successors shall be appointed and qualified. The said Territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the Supreme Court, at such times and places as may be prescribed by law; and the said judges shall, after their appointments, respectively, reside in the districts which shall be assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction. Said District Court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by law; but in no case removed to the Supreme Court shall trial by jury be allowed in said court. The Supreme Court, or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of the court for which he shall have been appointed. Writs of error, and appeals from the final decisions of said supreme court, shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness, shall exceed one thousand dollars; except only that in all cases involving title to slaves, the said writ of error or appeals shall be allowed and decided by said supreme court, without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall also be allowed to the Supreme Court of the United States, from the decision of the said supreme court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of personal freedom: Provided, That nothing herein contained shall be construed to apply to or affect the provisions of the “act respecting fugitives from justice, and persons escaping from the service of their masters,” approved February twelfth, – seventeen hundred and ninety-three, and the act to amend and supplementary to the aforesaid act,” approved September eighteenth, eighteen hundred and fifty; and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the Circuit and District Courts of the United States; and the said supreme and district courts of the said Territory, and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the same are granted by the judges of the United States in the District of Columbia; and the first six days of every term of said courts, or so much thereof as may be necessary, shall be appropriated to the trial of causes arising under the said Constitution and laws, and writs of error and appeal in all such cases shall-be made to the Supreme Court of said Territory, the same as in other cases. The said clerk shall receive the same fees in all such cases, which the clerks of the district courts of Utah Territory now receive for similar services.

SEC. 28. And be it further enacted, That the provisions of the act entitled “An act respecting fugitives from justice, and persons escaping from, the service of their masters,” approved February twelfth, seventeen hundred and ninety-three, and the provisions of the act entitled “An act to amend, and supplementary to, the aforesaid act,” approved September eighteenth, eighteen hundred and fifty, be, and the same are hereby, declared to extend to and be in full force within the limits of the said Territory of Kansas.

SEC. 29. And be it further enacted, That there shall be appointed an attorney for said Territory, who shall continue in office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall receive the same fees and salary as the Attorney of the United States for the present Territory of Utah. There shall also be a marshal for the Territory appointed, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall execute all processes issuing from the said courts where exercising their jurisdiction as Circuit and District Courts of the United States; he shall perform the duties, be subject to the same regulations and penalties, and be entitled to the same fees, as the Marshal of the District Court of the United States for the present Territory of Utah, and shall, in addition, be paid two hundred dollars annually as a compensation for extra services.

SEC. 30. And be it further enacted, That the Governor, Secretary, Chief Justice, and Associate Justices, Attorney, and Marshal, shall be nominated, and, by and with the advice and consent of the Senate, appointed by the President of the United States. The Governor and Secretary to be appointed as aforesaid shall, before they act as such, respectively take an oath or affirmation before the district judge or some justice of the peace in the limits of said Territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or before the Chief Justice or some Associate Justice of the Supreme Court of the United States, to support the Constitution of the United States, and faithfully to discharge the duties of their respective offices, which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken; and such certificates shall be received and recorded by the said secretary among the executive proceedings; and the Chief Justice and Associate Justices, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation before the said Governor or Secretary, or some Judge or Justice of the Peace of the Territory who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted by the person taking the same to the Secretary, to be by him recorded as aforesaid; and, afterwards, the like oath or affirmation shall be taken, certified, and recorded, in such manner and form as may be prescribed by law. The Governor shall receive an annual salary of two thousand five hundred dollars. The Chief Justice and Associate Justices shall receive As an annual salary of two thousand dollars. The Secretary shall receive an annual salary of two thousand dollars. The said salaries shall be paid quarter-yearly, from the dates of the respective appointments, at the Treasury of the United States; but no such payment shall be made until said officers shall have entered upon the duties of their respective appointments. The members of the Legislative Assembly shall be entitled to receive three dollars each per day during their attendance at the sessions thereof, and three dollars each for every twenty miles’ travel in going to and returning from the said sessions, estimated according to the nearest usually travelled route; and an additional allowance of three dollars shall be paid to the presiding officer of each house for each day he shall so preside. And a chief clerk, one assistant clerk, a sergeant at-arms, and door-keeper, may be chosen for each house; and the chief clerk shall receive four dollars per day, and the said other officers three dollars per day, during the session of the Legislative Assembly; but no to other officers shall be paid by the United States: Provided, That there shall be but one session of the Legislature annually, unless, on an extraordinary occasion, the Governor shall think proper to call the Legislature together. There shall be appropriated, annually, the usual sum, to be expended by the Governor, to defray the contingent expenses of the Territory, including the salary of a clerk of the Executive Department and there shall also be appropriated, annually, a sufficient sum, to be expended by the Secretary of the Territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the Legislative Assembly, the printing of the laws, and other incidental expenses; and the Governor and Secretary of the Territory shall, in the disbursement of all moneys intrusted to them, be governed solely by the instructions of the secretary of the Treasury of the United States, and shall, semi-annually, account to the said secretary for lit the manner in which the aforesaid moneys shall have been expended; and no expenditure shall be made by said Legislative Assembly for objects not specially authorized by the acts of Congress making the appropriations, nor beyond the sums thus appropriated for such objects.

SEC. 31. And be it further enacted, That the seat of government of said Territory is hereby located temporarily at Fort Leavenworth; and that such portions of the public buildings as may not be actually used and needed for military purposes, may be occupied and used, under the direction of the Governor and Legislative Assembly, for such public purposes as may be required under the provisions of this act.

SEC. 32. And be it further enacted, That a delegate to the House of Representatives of the United States, to serve for the term of two years, who shall be a citizen of the United States, may be elected by the voters qualified to elect members of the Legislative Assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other Territories of the United States to the said House of Representatives, but the delegate first elected shall hold his seat only during the term of the Congress to which he shall be elected. The first election shall be held at such time and places, and be conducted in such manner, as the Governor shall appoint and direct; and at all subsequent elections, the times, places, and manner of holding the elections shall be prescribed by law. The person having the greatest number of votes shall be declared by the Governor to be duly elected, and a certificate thereof shall be given accordingly. That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Kansas as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which, being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States: Provided, That nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of sixth of March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery.

SEC. 33. And be it further enacted; That there shall hereafter be appropriated, as has been customary for the territorial governments, a sufficient amount, to be expended under the direction of the said Governor of the Territory of Kansas, not exceeding the sums heretofore appropriated for similar objects, for the erection of suitable public buildings at the seat of government, and for the purchase of a library, to be kept at the seat of government for the use of the Governor, Legislative Assembly, Judges of the Supreme Court, Secretary, Marshal, and Attorney of said Territory, and such other persons, and under such regulations, as shall be prescribed by law.

SEC. 34. And be it further enacted, That when the lands in the said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same.

SEC. 35. And be it further enacted, That, until otherwise provided by law, the Governor of said Territory may define the Judicial Districts of said Territory, and assign the judges who may be appointed for said Territory to the several districts; and also appoint the times and places forholding courts in the several counties or subdivisions in each of said judicial districts by proclamation, to be issued by him; but the Legislative Assembly, at their first or any subsequent session, may organize, alter, or modify such judicial districts, and assign the judges, and alter the times and places of holding the courts as to them shall seem proper and convenient.

SEC. 36. And be it further enacted, That all officers to be appointed by the President, by and with the advice and consent of the Senate, for the Territory of Kansas, who, by virtue of the provisions of any law now existing, or which may be enacted during the present Congress, are required to give security for moneys that may be intrusted with them for disbursement, shall give such security, at such time and place, and in such manner as the Secretary of the Treasury may prescribe.

SEC. 37. And be it further enacted, That all treaties, laws, and other, engagements made by the government of the United States with the Indian tribes inhabiting the territories embraced within this act, shall be faithfully and rigidly observed, notwithstanding any thing contained in this act; and that the existing agencies and superintendencies of said Indians be continued with the same powers and duties which are now prescribed by law, except that the President of the United States may, at his discretion, change the location of the office of superintendent.

Approved, May 30, 1854.

Concluded November 19, 1794; ratification advised by the senate with amendment June 24, 1795; ratified by the President; ratifications exchanged October 28, 1795; proclaimed February 29, 1796.

His Britannic Majesty and the United States of America, being desirous, by a treaty of amity, commerce and navigation, to terminate their difference in such a manner, as, without reference to the merits of their respective complaints and pretentions, may be the best calculated to produce mutual satisfaction and good understanding; and also to regulate the commerce and navigation between their respective countries, territories and people, in such a manner as to render the same reciprocally beneficial and satisfactory; they have, respectively, named their Plenipotentiaries, and given them full powers to treat of, and conclude the said treaty, that is to say:

His Britannic Majesty has named for his Plenipotentiary, the Right Honorable William Wyndham Baron Grenville of Wotton, one of His Majesty’s Privy Council, and His Majesty’s Principal Secretary of State for Foreign Affairs; and the President of the said United States, by and with the advice and consent of the Senate thereof, hath appointed for their Plenipotentiary, the Honorable John Jay, Chief Justice of the said United States, and their Envoy Extraordinary to His Majesty; Who have agreed on and concluded the following articles:

ARTICLE I.

There shall be a firm, inviolable and universal peace, and a true and sincere friendship between His Britannic Majesty, his heirs and successors, and the United States of America; and between their respective countries, territories, cities, towns and people of every degree, without exception of persons or places.

ARTICLE II.

His Majesty will withdraw all his troops and garrisons from all posts and places within the boundary lines assigned by the treaty of peace to the United States. This evacuation shall take place on or before the first day of June, one thousand seven hundred and ninetysix, and all the proper measures shall in the interval be taken by concert between the Government of the United States and His Majesty’s Governor-General in America for settling the previous arrangements which may be necessary respecting the delivery of the said posts:

The United States in the mean time, at their discretion, extending their settlements to any part within the said boundary line, except within the precincts or jurisdiction of any of the said posts. All settlers and traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their effects; and it shall also be free to them to sell their lands, houses or effects, or to retain the property thereof, at their discretion; such of them as shall continue to reside within the said boundary lines, shall not be compelled to become citizens of the United States, or to take any oath of allegiance to the Government thereof; but they shall be at full liberty so to do if they think proper, and they shall make and declare their election within one year after the evacuation aforesaid. And all persons who shall continue there after the expiration of the said year, without having declared their intention of remaining subjects of His Britannic Majesty, shall be considered as having elected to become citizens of the United States.

ARTICLE III.

It is agreed that it shall at all times be free to His Majesty’s subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America, (the country within the limits of the Hudson’s Bay Company only excepted.) and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce with each other. But it is understood that this article does not extend to the admission of vessels of the United States into the seaports, harbours, bays or creeks of His Majesty’s said territories; nor into such parts of the rivers in His Majesty’s said territories as are between the mouth thereof, and the highest port of entry from the sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any frauds in this respect. Nor to the admission of British vessels from the sea into the rivers of the United States, beyond the highest ports of entry for foreign vessels from the sea.

The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties; and it is further agreed, that all the ports and places on its eastern side, to whichsoever of the parties belonging, may freely be resorted to and used by both parties, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of His Majesty in Great Britain All goods and merchandize whose importation into His Majesty’s said territories in America shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same in the manner aforesaid, by the citizens of the United States, and such goods and merchandize shall be subject to no higher or other duties than would be payable by His Majesty’s subjects on the importation of the same from Europe into the said territories.

And in like manner all goods and merchandize whose importation into the United States shall not be wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by His Majesty’s subjects, and such goods and merchandize shall be subject to no higher or other duties than would be payable by the citizens of the United States on the importation of the same in American vessels into the Atlantic ports of the said States.

And all goods not prohibited to be exported from the said territories respectively, may in like manner be carried out of the same by the two parties respectively, paying duty as aforesaid. No duty of entry shall ever be levied by either party on peltries brought by land or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever.

But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians.

No higher or other tolls or rates of ferriage than what are or shall be payable by natives, shall be demanded on either side; and no duties shall be payable on any goods which shall merely be carried over any of the portages or carrying places on either side, for the purpose of being immediately reembarked and carried to some other place or places.

But as by this stipulation it is only meant to secure to each party a free passage across the portages on both sides, it is agreed that this exemption from duty shall extend only to such goods as are carried in the usual and direct road across the portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper regulations may be established to prevent the possibility of any frauds in this respect.

As this article is intended to render in a great degree the local advantages of each party common to both, and thereby to promote a disposition favorable to friendship and good neighborhood, it is agreed that the respective Governments will mutually promote this amicable intercourse, by causing speedy and impartial justice to be done, and necessary protection to be extended to all who may be concerned therein.

ARTICLE IV.

Whereas it is uncertain whether the river Mississippi extends so far to the northward as to be intersected by a line to be drawn due west from the Lake of the Woods, in the manner mentioned in the treaty of peace between His Majesty and the United States:

it is agreed that measures shall be taken in concert between His Majesty’s Government in America and the Government of the United States, for making a joint survey of the said river from one degree of latitude below the falls of St. Anthony, to the principal source or sources of the said river, and also of the parts adjacent thereto; and that if, on the result of such survey, it should appear that the said river would not be intersected by such a line as is above mentioned, the two parties will thereupon proceed, by amicable negotiation, to regulate the boundary line in that quarter, as well as all other points to be adjusted between the said parties, according to justice and mutual convenience, and in conformity to the intent of the said treaty.

ARTICLE V.

Whereas doubts have arisen what river was truly intended under the name of the river St. Croix, mentioned in the said treaty of peace, and forming a part of the boundary therein described; that question shall be referred to the final decision of commissioners to be appointed in the following manner. viz.:

One commissioner shall be named by His Majesty, and one by the President of the United States, by and with the advice and consent of the Senate thereof, and the said two commissioners shall agree on the choice of a third; or if they cannot so agree, they shall each propose one person, and of the two names so proposed, one shall be drawn by lot in the presence of the two original Commissioners.

And the three Commissioners so appointed shall be sworn, impartially to examine and decide the said question, according to such evidence as shall respectively be laid before them on the part of the British Government and of the United States. The said Commissioners shall meet at Halifax, and shall have power to adjourn to such other place or places as they shall think fit.

They shall have power to appoint a Secretary, and to employ such surveyors or other persons as they shall judge necessary. The said Commissioners shall, by a declaration, under their hands and seals, decide what river is the river St. Croix, intended by the treaty.

The said declaration shall contain a description of the said river, and shall particularize the latitude and longitude of its mouth and of its source.

Duplicates of this declaration and of the statements of their accounts, and of the journal of their proceedings, shall be delivered by them to the agent of His Majesty, and to the agent of the United States, who may be respectively appointed and authorized to manage the business on behalf of the respective Governments. And both parties agree to consider such decision as final and conclusive, so as that the same shall never thereafter be called into question, or made the subject of dispute or difference between them.

ARTICLE VI.

Whereas it is alleged by divers British merchants and others His Majesty’s subjects, that debts, to a considerable amount, which were bona fide contracted before the peace, still remain owing to them by citizens or inhabitants of the United States, and that by the operation of various lawful impediments since the peace, not only the full recovery of the said debts has been delayed, but also the value and security thereof have been, in several instances, impaired and lessened, so that, by the ordinary course of judicial proceedings, the British creditors cannot now obtain, and actually have and receive full and adequate compensation for the losses and damages which they have thereby sustained: It is agreed, that in all such cases, where full compensation for such losses and damages cannot, for whatever reason, be actually obtained, had and received by the said creditors in the ordinary course of justice, the United States will make full and complete compensation for the same to the said creditors: But it is distinctly understood, that this provision is to extend to such losses only as have been occasioned by the lawful impediments aforesaid, and is not to extend to losses occasioned by such insolvency of the debtors or other causes as would equally have operated to produce such loss, if the said impediments had not existed; nor to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.

For the purpose of ascertaining the amount of any such losses and damages, five Commissioners shall be appointed and authorized to meet and act in manner following, viz.: Two of them shall be appointed by His Majesty, two of them by the President of the United States by and with the advice and consent of the Senate thereof, and the fifth by the unanimous voice of the other four; and if they should not agree in such choice, then the Commissioners named by the two parties shall respectively propose one person, and of the two names so proposed, one shall be drawn by lot, in the presence of the four original Commissioners. When the five Commissioners thus appointed shall first meet, they shall, before they proceed to act, respectively take the following oath, or affirmation, in the presence of each other; which oath, or affirmation, being so taken and duly attested, shall be entered on the record of their proceedings, viz.:

I, A.B., one of the Commissioners appointed in pursuance of the sixth article of the Treaty of Amity, Commerce and Navigation, between His Britannic Majesty and the United States of America, do solemnly swear (or affirm) that I will honestly, diligently, impartially and carefully examine, and to the best of my judgment, according to justice and equity, decide all such complaints, as under the said article shall be preferred to the said Commissioners: and that I will forbear to act as a Commissioner, in any case in which I may be personally interested.

Three of the said Commissioners shall constitute a board, and shall have power to do any act appertaining to the said Commission, provided that one of the Commissioners named on each side, and the fifth Commissioner shall be present, and all decisions shall be made by the majority of the voices of the Commissioners than present.

Eighteen months from the day on which the said Commissioners shall form a board, and be ready to proceed to business, are assigned for receiving complaints and applications; but they are nevertheless authorized, in any particular cases in which it shall appear to them to be reasonable and just, to extend the said term of eighteen months for any term not exceeding six months, after the expiration thereof.

The said Commissioners shall first meet at Philadelphia, but they shall have power to adjourn from place to place as they shall see cause.

The said Commissioners in examining the complaints and applications so preferred to them, are empowered and required in pursuance of the true intent and meaning of this article to take into their consideration all claims, whether of principal or interest, or balances of principal and interest and to determine the same respectively, according to the merits of the several cases, due regard being had to all the circumstances thereof, and as equity and justice shall appear to them to require.

And the said Commissioners shall have power to examine all such persons as shall come before them on oath or affirmation, touching the premises; and also to receive in evidence, according as they may think most consistent with equity and justice, all written depositions, or books, or papers, or copies, or extracts thereof, every such deposition, book, or paper, or copy, or extract, being duly authenticated either according to the legal form now respectively existing in the two countries, or in such other manner as the said Commissioners shall see cause to require or allow.

The award of the said Commissioners, or of any three of them as aforesaid, shall in all cases be final and conclusive both as to the justice of the claim, and to the amount of the sum to be paid to the creditor or claimant; and the United States undertake to cause the sum so awarded to be paid in specie to such creditor or claimant without deduction; and at such time or times and at such place or places, as shall be awarded by the said Commissioners; and on condition of such releases or assignments to be given by the creditor or claimant, as by the said Commissioners may be directed: Provided always, that no such payment shall be fixed by the said Commissioners to take place sooner than twelve months from the day of the exchange of the ratifications of this treaty.

ARTICLE VII.

Whereas complaints have been made by divers merchants and others, citizens of the United States, that during the course of the war in which His Majesty is now engaged, they have sustained considerable losses and damage, by reason of irregular or illegal captures or condemnations of their vessels and other property, under color of authority or commissions from His Majesty, and that from various circumstances belonging to the said cases, adequate compensation for the losses and damages so sustained cannot now be actually obtained, had, and received by the ordinary course of judicial proceedings; it is agreed, that in all such cases, where adequate compensation cannot, for whatever reason, be now actually obtained, had, and received by the said merchants and others, in the ordinary course of justice, full and complete compensation for the same will be made by the British Government to the said complainants.

But it is distinctly understood that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.

That for the purpose of ascertaining the amount of any such losses and damages, five Commissioners shall be appointed and authorized to act in London, exactly in the manner directed with respect to those mentioned in the preceding article, and after having taken the same oath or affirmation, (mutatis mutandis,) the same term of eighteen months is also assigned for the reception of claims, and they are in like manner authorized to extend the same in particular cases.

They shall receive testimony, books, papers and evidence in the same latitude, and exercise the like discretion and powers respecting that subject; and shall decide the claims in question according to the merits of the several cases, and to justice, equity and the laws of nations.

The award of the said Commissioners, or any such three of them as aforesaid, shall in all cases be final and conclusive, both as to the justice of the claim, and the amount of the sum to be paid to the claimant; and His Britannic Majesty undertakes to cause the same to be paid to such claimant in specie, without any deduction, at such place or places, and at such time or times, as shall be awarded by the said Commissioners, and on condition of such releases or assignments to be given by the claimant, as by the said Commissioners may be directed.

And whereas certain merchants and others, His Majesty s subjects, complain that, in the course of the war, they have sustained loss and damage by reason of the capture of their vessels and merchandise, taken within the limits and jurisdiction of the States and brought into the ports of the same, or taken by vessels originally armed in ports of the said States:
It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793, a copy of which is annexed to this treaty; the complaints of the parties shall be and hereby are referred to the Commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as to the other cases committed to them; and the United States undertake to pay to the complainants or claimants in specie, without deduction, the amount of such sums as shall be awarded to them respectively by the said Commissioners, and at the times and places which in such awards shall be specified; and on condition of such releases or assignments to be given by the claimants as in the said awards may be directed: And it is further agreed, that not only the now existing cases of both descriptions, but also all such as shall exist at the time of exchanging the ratifications of this treaty, shall be considered as being within the provisions, intent and meaning of this article.

ARTICLE VIII.

It is further agreed that the Commissioners mentioned in this and in the two preceding articles shall be respectively paid in such manner as shall be agreed between the two parties such agreement being to be settled at the time of the exchange of the ratifications of this treaty.

And all other expenses attending the said Commissions shall be defrayed jointly by the two parties, the same being previously ascertained and allowed by the majority of the Commissioners.

And in the case of death, sickness or necessary absence, the place of every such Commissioner respectively shall be supplied in the same manner as such Commissioner was first appointed, and the new Commissioners shall take the same oath or affirmation and do the same duties.

ARTICLE IX.

It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please, in like manner as if they were natives and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.

ARTICLE X.

Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor monies, which they may have in the public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other and in their respective Governments, should ever be destroyed or impaired by national authority on account of national differences and discontents.

ARTICLE XI.

It is agreed between His Majesty and the United States of America, that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between their respective people, in the manner, under the limitations, and on the conditions specified in the following articles.

ARTICLE XII.

His Majesty consents that it shall and may be lawful, during the time hereinafter limited, for the citizens of the United States to carry to any of His Majesty’s islands and ports in the West Indies from the United States, in their own vessels, not being above the burthen of seventy tons, any goods or merchandizes, being of the growth, manufacture or produce of the said States, which it is or may be lawful to carry to the said islands or ports from the said States in British vessels; and that the said American vessels shall be subject there to no other or higher tonnage duties or charges than shall be payable by British vessels in the ports of the United States; and that the cargoes of the said American vessels shall be subject there to no other or higher duties or charges than shall be payable on the like articles if imported there from the said States in British vessels.

And His Majesty also consents that it shall be lawful for the said American citizens to purchase, load and carry away in their said vessels to the United States, from the said islands and ports, all such articles, being of the growth, manufacture or produce of the said islands, as may now by law be carried from thence to the said States in British vessels, and subject only to the same duties and charges on exportation, to which British vessels and their cargoes are or shall be subject in similar circumstances.

Provided always, that the said American vessels do carry and land their cargoes in the United States only, it being expressly agreed and declared that, during the continuance of this article, the United States will prohibit and restrain the carrying any molasses, sugar, coffee, cocoa or cotton in American vessels, either from His Majesty’s islands or from the United States to any part of the world except the United States, reasonable seastores excepted. Provided, also, that it shall and may be lawful, during the same period, for British vessels to import from the said islands into the United States, and to export from the United States to the said islands, all articles whatever, being of the growth, produce or manufacture of the said islands, or of the United States respectively, which now may, by the laws of the said States, be so imported and exported.

And that the cargoes of the said British vessels shall be subject to no other or higher duties or charges, than shall be payable on the same articles if so imported or exported in American vessels. It is agreed that this article, and every matter and thing therein contained, shall continue to be in force during the continuance of the war in which His Majesty is now engaged; and also for two years from and after the date of the signature of the preliminary or other articles of peace, by which the same may be terminated. And it is further agreed that, at the expiration of the said term, the two contracting parties will endeavour further to regulate their commerce in this respect, according to the situation in which His Majesty may then find himself with respect to the West Indies, and with a view to such arrangements as may best conduce to the mutual advantage and extension of commerce.

And the said parties will then also renew their discussions, and endeavour to agree, whether in any and what cases, neutral vessels shall protect enemy’s property; and in what cases provisions and other articles, not generally contraband, may become such.

But in the mean time, their conduct towards each other in these respects shall be regulated by the articles hereinafter inserted on those subjects.

ARTICLE XIII.

His Majesty consents that the vessels belonging to the citizens of the United States of America shall be admitted and hospitably received in all the seaports and harbors of the British territories in the East Indies.

And that the citizens of the said United States may freely carry on a trade between the said territories and the said United States, in all articles of which the importation or exportation respectively, to or from the said territories, shall not be entirely prohibited. Provided only, that it shall not be lawful for them in any time of war between the British Government and any other Power or State whatever, to export from the said territories, without the special permission of the British Government there, any military stores, or naval stores, or rice.

The citizens of the United States shall pay for their vessels when admitted into the said ports no other or higher tonnage duty than shall be payable on British vessels when admitted into the ports of the United States. And they shall pay no other or higher duties or charges, on the importation or exportation of the cargoes of the said vessels, than shall be payable on the same articles when imported or exported in British vessels. But it is expressly agreed that the vessels of the United States shall not carry any of the articles exported by them from the said British territories to any port or place, except to some port or place in America, where the same shall be unladen and such regulations shall be adopted by both parties as shall from time to time be found necessary to enforce the due and faithful observance of this stipulation.

It is also understood that the permission granted by this article is not to extend to allow the vessels of the United States to carry on any part of the coasting trade of the said British territories; but vessels going with their original cargoes, or part thereof, from one port of discharge to another, are not to be considered as carrying on the coasting trade. Neither is this article to be construed to allow the citizens of the said States to settle or reside within the said territories, or to go into the interior parts thereof, without the permission of the British Government established there; and if any transgression should be attempted against the regulations of the British Government in this respect, the observance of the same shall and may be enforced against the citizens of America in the same manner as against British subjects or others transgressing the same rule. And the citizens of the United States, whenever they arrive in any port or harbour in the said territories, or if they should be permitted, in manner aforesaid, to go to any other place therein, shall always be subject to the laws, government and jurisdiction of what nature established in such harbor, port pr place, according as the same may be.

The citizens of the United States may also touch for refreshment at the island of St. Helena, but subject in all respects to such regulations as the British Government may from time to time establish there.

ARTICLE XIV.

There shall be between all the dominions of His Majesty in Europe and the territories of the United States a reciprocal and perfect liberty of commerce and navigation.

The people and inhabitants of the two countries, respectively, shall have liberty freely and securely, and without hindrance and molestation, to come with their ships and cargoes to the lands, countries, cities, ports, places and rivers within the dominions and territories aforesaid, to enter into the same, to resort there, and to remain and reside there, without any limitation of time.

Also to hire and possess houses and warehouses for the purposes of their commerce, and generally the merchants and traders on each side shall enjoy the most complete protection and security for their commerce; but subject always as to what respects this article to the laws and statutes of the two countries respectively. It is agreed that no other or high duties shall be paid by the ships or merchandise of the one party in the ports of the other than such as are paid by the like vessels or merchandize of all other nations.

Nor shall any other or higher duty be imposed in one country on the importation of any articles the growth, produce or manufacture of the other, than are or shall be payable on the importation of the like articles being of the growth, produce or manufacture of any other foreign country.

Nor shall any prohibition be imposed on the exportation or importation of any articles to or from the territories of the two parties respectively, which shall not equally extend to all other nations. But the British Government reserves to itself the right of imposing on American vessels entering into the British ports in Europe a tonnage duty equal to that which shall be payable by British vessels in the ports of America; and also such duty as may be adequate to countervail the difference of duty now payable on the importation of European and Asiatic goods, when imported into the United States in British or in American vessels The two parties agree to treat for the more exact equalization of the duties on the respective navigation of their subjects and people, in such manner as may be most beneficial to the two countries.

The arrangements for this purpose shall be made at the same time with those mentioned at the conclusion of the twelfth article of this treaty, and are to be considered as a part thereof. In the interval it is agreed that the United States will not impose any new or additional tonnage duties on British vessels, nor increase the nowsubsisting difference between the duties payable on the importation of any articles in British or in American vessels.

ARTICLE XV.

It is agreed that no other or high duties shall be paid by the ships or merchandise of the one party in the ports of the other than such as are paid by the like vessels or merchandize of all other nations. Nor shall any other or higher duty be imposed in one country on the importation of any articles the growth, produce or manufacture of the other, than are or shall be payable on the importation of the like articles being of the growth, produce or manufacture of any other foreign country. Nor shall any prohibition be imposed on the exportation or importation of any articles to or from the territories of the two parties respectively, which shall not equally extend to all other nations.

But the British Government reserves to itself the right of imposing on American vessels entering into the British ports in Europe a tonnage duty equal to that which shall be payable by British vessels in the ports of America; and also such duty as may be adequate to countervail the difference of duty now payable on the importation of European and Asiatic goods, when imported into the United States in British or in American vessels The two parties agree to treat for the more exact equalization of the duties on the respective navigation of their subjects and people, in such manner as may be most beneficial to the two countries.

The arrangements for this purpose shall be made at the same time with those mentioned at the conclusion of the twelfth article of this treaty, and are to be considered as a part thereof. In the interval it is agreed that the United States will not impose any new or additional tonnage duties on British vessels, nor increase the nowsubsisting difference between the duties payable on the importation of any articles in British or in American vessels.

ARTICLE XVI.

It shall be free for the two contracting parties, respectively, to appoint Consuls for the protection of trade, to reside in the dominions and territories aforesaid; and the said Consuls shall enjoy those liberties and rights which belong to them by reason of their function.

But before any Consul shall act as such, he shall be in the usual forms approved and admitted by the party to whom he is sent; and it is hereby declared to be lawful and proper that, in case of illegal or improper conduct towards the laws or Government, a Consul may either be punished according to law, if the laws will reach the case, or be dismissed, or even sent back, the offended Government assigning to the other their reasons for the same. Either of the parties may except from the residence of Consuls such particular places as such party shall judge proper to be so excepted.

ARTICLE XVII.

It is agreed that in all cases where vessels shall be captured or detained on just suspicion of having on board enemy’s property, or of carrying to the enemy any of the articles which are contraband of war, the said vessels shall be brought to the nearest or most convenient port; and if any property of an enemy should be found on board such vessel, that part only which belongs to the enemy shall be made prize, and the vessel shall be at liberty to proceed with the remainder without any impediment. And it is agreed that all proper measures shall be taken to prevent delay in deciding the cases of ships or cargoes so brought in for adjudication, and in the payment or recovery of any indemnification, adjudged or agreed to be paid to the masters or owners of such ships.

ARTICLE XVIII.

In order to regulate what is in future to be esteemed contraband of war, it is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musketrests, bandoliers, gunpowder, match, saltpetre, ball, pikes, swords, headpieces, cuirasses, halberts, lances, javelins, horsefurniture, holsters, belts, and generally all other implements of war, as also timber for shipbuilding, tar or rozin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted, and all the above articles are hereby declared to be just objects of confiscation whenever they are attempted to be carried to an enemy.

And whereas the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise:
It is further agreed that whenever any such articles so becoming contraband, according to the existing laws of nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the captors, or, in their default, the Government under whose authority they act, shall pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention.

And whereas it frequently happens that vessels sail for a port or place belonging to an enemy without knowing that the same is either besieged, blockaded or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place; but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter, but she shall be permitted to go to any other port or place she may think proper; nor shall any vessel or goods of either party that may have entered into such port or place before the same was besieged, blockaded, or invested by the other, and be found thereinafter the reduction or surrender of such place, be liable to confiscation, but shall be restored to the owners or proprietors there.

ARTICLE XIX.

And that more abundant care may be taken for the security of the respective subjects and citizens of the contracting parties, and to prevent their suffering injuries by the menofwar, or privateers of either party, all commanders of ships of war and privateers, and all others the said subjects and citizens, shall forbear doing any damage to those of the other party or committing any outrage against them, and if they act to the contrary they shall be punished, and shall also be bound in their persons and estates to make satisfaction and reparation for all damages, and the interest thereof, of whatever nature the said damages may be.

For this cause, all commanders of privateers, before they receive their commissions, shall hereafter be obliged to give, before a competent judge, sufficient security by at least two responsible sureties, who have no interest in the said privateer, each of whom, together with the said commander, shall be jointly and severally bound in the sum of fifteen hundred pounds sterling, or, if such ships be provided with above one hundred and fifty seamen or soldiers, in the sum of three thousand pounds sterling, to satisfy all damages and injuries which the said privateer, or her officers or men, or any of them, may do or commit during their cruise contrary to the tenor of this treaty, or to the laws and instructions for regulating their conduct; and further, that in all cases of aggressions the said commissions shall be revoked and annulled. It is also agreed that whenever a judge of a court of admiralty of either of the parties shall pronounce sentence against any vessel or goods or property belonging to the subjects or citizens of the other party, a formal and duly authenticated copy of all the proceedings in the cause, and of the said sentence, shall, if required, be delivered to the commander of the said vessel, without the smallest delay, he paying all legal fees and demands for the same.

ARTICLE XX.

It is further agreed that both the said contracting parties shall not only refuse to receive any pirates into any of their ports, havens or towns, or permit any of their inhabitants to receive, protect, harbor, conceal or assist them in any manner, but will bring to condign punishment all such inhabitants as shall be guilty of such acts or offences. And all their ships, with the goods or merchandizes taken by them and brought into the port of either of the said parties, shall be seized as far as they can be discovered, and shall be restored to the owners, or their factors or agents, duly deputed and authorized in writing by them (proper evidence being first given in the court of admiralty for proving the property) even in case such effects should have passed into other hands by sale, if it be proved that the buyers knew or had good reason to believe or suspect that they had been piratically taken.

ARTICLE XXI.

It is likewise agreed that the subjects and citizens of the two nations shall not do any acts of hostility or violence against each other, nor accept commissions or instructions so to act from any foreign Prince or State, enemies to the other party; nor shall the enemies of one of the parties be permitted to invite, or endeavor to enlist in their military service, any of the subjects or citizens of the other party; and the laws against all such offences and aggressions shall be punctually executed.

And if any subject or citizen of the said parties respectively shall accept any foreign commission or letters of marque for arming any vessel to act as a privateer against the other party, and be taken by the other party, it is hereby declared to be lawful for the said party to treat and punish the said subject or citizen having such commission or letters of marque as a pirate.

ARTICLE XXII.

It is expressly stipulated that neither of the said contracting parties will order or authorize any acts of reprisal against the other, on complaints of injuries or damages, until the said party shall first have presented to the other a statement thereof, verified by competent proof and evidence, and demanded justice and satisfaction, and the same shall either have been refused or unreasonably delayed.

ARTICLE XXIII.

The ships of war of each of the contracting parties shall, at all times, be hospitably received in the ports of the other, their officers and crews paying due respect to the laws and Government of the country. The officers shall be treated with that respect which is due to the commissions which they bear, and if any insult should be offered to them by any of the inhabitants, all offenders in this respect shall be punished as disturbers of the peace and amity between the two countries.

And His Majesty consents that in case an American vessel should, by stress of weather, danger from enemies, or other misfortune, be reduced to the necessity of seeking shelter in any of His Majesty’s ports, into which such vessel could not in ordinary cases claim to be admitted, she shall, on manifesting that necessity to the satisfaction of the Government of the place, be hospitably received, and be permitted to refit and to purchase at the market price such necessaries as she may stand in need of, conformably to such orders and regulations at the Government of the place, having respect to the circumstances of each case, shall prescribe.

She shall not be allowed to break bulk or unload her cargo, unless the same should be bona fide necessary to her being refitted. Nor shall be permitted to sell any part of her cargo, unless so much only as may be necessary to defray her expences, and then not without the express permission of the Government of the place. Nor shall she be obliged to pay any duties whatever, except only on such articles as she may be permitted to sell for the purpose aforesaid.

ARTICLE XXIV.

It shall not be lawful for any foreign privateers (not being subjects or citizens of either of the said parties) who have commissions from any other Prince or State in enmity with either nation to arm their ships in the ports of either of the said parties, nor to sell what they have taken, nor in any other manner to exchange the same; nor shall they be allowed to purchase more provisions than shall be necessary for their going to the nearest port of that Prince or State from whom they obtained their commissions.

ARTICLE XXV.

It shall be lawful for the ships of war and privateers belonging to the said parties respectively to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any fee to the officers of the admiralty, or to any judges whatever; nor shall the said prizes, when they arrive at and enter the ports of the said parties, be detained or seized, neither shall the searchers or other officers of those places visit such prizes, (except for the purpose of preventing the carrying of any of the cargo thereof on shore in any manner contrary to the established laws of revenue, navigation, or commerce,) nor shall such officers take cognizance of the validity of such prizes; but they shall be at liberty to hoist sail and depart as speedily as may be, and carry their said prizes to the place mentioned in their commissions or patents, which the commanders of the said ships of war or privateers shall be obliged to show.

No shelter or refuge shall be given in their ports to such as have made a prize upon the subjects or citizens of either of the said parties; but if forced by stress of weather, or the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible. Nothing in this treaty contained shall, however, be construed or operate contrary to former and existing public treaties with other sovereigns or States. But the two parties agree that while they continue in amity neither of them will in future make any treaty that shall be inconsistent with this or the preceding article.

Neither of the said parties shall permit the ships or goods belonging to the subjects or citizens of the other to be taken within cannon shot of the coast, nor in any of the bays, ports or rivers of their territories, by ships of war or others having commission from any Prince, Republic or State whatever. But in case it should so happen, the party whose territorial rights shall thus have been violated shall use his utmost endeavors to obtain from the offending party full and ample satisfaction for the vessel or vessels so taken, whether the same be vessels of war or merchant vessels.

ARTICLE XXVI.

If at any time a rupture should take place (which God forbid) between His Majesty and the United States, and merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they behave peaceably and commit no offence against the laws; and in case their conduct should render them suspected, and the respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects and property, but this favor shall not be extended to those who shall act contrary to the established laws; and for greater certainty, it is declared that such rupture shall not be deemed to exist while negociations for accommodating differences shall be depending, nor until the respective Ambassadors or Ministers, if such there shall be, shall be recalled or sent home on account of such differences, and not on account of personal misconduct, according to the nature and degrees of which both parties retain their rights, either to request the recall, or immediately to send home the Ambassador or Minister of the other, and that without prejudice to their mutual friendship and good understanding.

ARTICLE XXVII.

It is further agreed that His Majesty and the United States, on mutual requisitions, by them respectively, or by their respective Ministers or officers authorized to make the same, will deliver up to justice all persons who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on such evidence of criminality as, according to the laws of the place, where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. The expence of such apprehension and delivery shall be borne and defrayed by those who made the requisition and receive the fugitive.

ARTICLE XXVIII.

It is agreed that the first ten articles of this treaty shall be permanent, and that the subsequent articles, except the twelfth, shall be limited in their duration to twelve years, to be computed from the day on which the ratifications of this treaty shall be exchanged, but subject to this condition. That whereas the said twelfth article will expire by the limitation therein contained, at the end of two years from the signing of the preliminary or other articles of peace, which shall terminate the present war in which His Majesty is engaged, it is agreed that proper measures shall by concert be taken for bringing the subject of that article into amicable treaty and discussion, so early before the expiration of the said term as that new arrangements on that head may by that time be perfected and ready to take place.

But if it should unfortunately happen that His Majesty and the United States should not be able to agree on such new arrangements, in that case all the articles of this treaty, except the first ten, shall then cease and expire together.

Lastly.

This treaty, when the same shall have been ratified by His Majesty and by the President of the United States, by and with the advice and consent of their Senate, and the respective ratifications mutually exchanged, shall be binding and obligatory on His Majesty and on the said States, and shall be by them respectively executed and observed with punctuality and the most sincere regard to good faith; and whereas it will be expedient, in order the better to facilitate intercourse and obviate difficulties, that other articles be proposed and added to this treaty, which articles, from want of time and other circumstances, cannot now be perfected, it is agreed that the said parties will, from time to time, readily treat of and concerning such articles, and will sincerely endeavor so to form them as that they may conduce to mutual convenience and tend to promote mutual satisfaction and friendship; and that the said articles, after having been duly ratified, shall be added to and make a part of this treaty.

In faith whereof we, the undersigned Ministers Plenipotentiary of His Majesty the King of Great Britain and the United States of America, have singed this present treaty, and have caused to be affixed thereto the seal of our arms.

Done at London this nineteenth day of November, one thousand seven hundred and ninety four.

(SEAL.) GRENVILLE.
(SEAL.) JOHN JAY.

Letter from Thomas Jefferson to George Hammond.

PHILADELPHIA, September 5, 1793.

Sir:

I am honored with yours of August 30.

Mine of the 7th of that month assured you that measures were taken for excluding from all further asylum in our ports vessels armed in them to cruise on nations with which we are at peace, and for the restoration of the prizes the Lovely Lass, Prince William Henry, and the Jane of Dublin; and that should the measures for restitution fail in their effect, the President considered it as incumbent on the United States to make compensation for the vessels. We are bound by our treaties with three of the belligerent nations, by all the means in our power, to protect and defend their vessels and effects in our ports, or waters, or on the seas near our shores, and to recover and restore the same to the right owners when taken from them.

If all the means in our power are used, and fail in their effect, we are not bound by our treaties with those nations to make compensation. Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use towards that nation the same rule which, under this article, was to govern us with the other nations; and even to extend it to captures made on the high seas and brought into our ports f done by vessels which had been armed within them.

Having, for particular reasons, forbore to use all the means in our power for the restitution of the three vessels mentioned in my letter of August 7th, the President thought it incumbent on the United States to make compensation for them; and though nothing was said in that letter of other vessels taken under like circumstances, and brought in after the 5th of June, and before the date of that letter, yet when the same forbearance had taken place, it was and is his opinion, that compensation would be equally due.

As to prizes made under the same circumstances, and brought in after the date of that letter, the President determined that all the means in our power should be used for their restitution. If these fail, as we should not be bound by our treaties to make compensation to the other Powers in the analogous case, he did not mean to give an opinion that it ought to be done to Great Britain. But still, if any cases shall arise subsequent to that date, the circumstances of which shall place them on similar ground with those before it, the President would think compensation equally incumbent on the United States.

Instructions are given to the Governors of the different States to use all the means in their power for restoring prizes of this last description found within their ports.

Though they will, of course, take measures to be infomed of them, and the General Government has given them the aid of the customhouse officers for this purpose, yet you will be sensible of the importance of multiplying the channels of their infomation as far as shall depend on yourself, or any person under your direction, or order that the Governors may use the means in their power for making restitution.

Without knowledge of the capture they cannot restore it. It will always be best to give the notice to them directly; but any infomation which you shall be pleased to send to me also, at any time, shall be forwarded to them as quickly as distance will permit. Hence you will perceive, sir, that the President contemplates restitution or compensation in the case before the 7th of August; and after that date, restitution if it can be effected by any means in our power.

And that it will be important that you should substantiate the fact that such prizes are in our ports or waters. Your list of the privateers illicitly armed in our ports is, I believe, correct. With respect to losses by detention, waste, spoilation sustained by vessels taken as before mentioned, between the dates of June 5th and August 7th, it is proposed as a provisional measure that the Collector of the Customs of the district, and the British Consul, or any other person you please, shall appoint persons to establish the value of the vessel and cargo at the time of her capture and of her arrival in the port into which she is brought, according to their value in that port.

If this shall be agreeable to you, and you will be pleased to signify it to me, with the names of the prizes understood to be of this description, instructions will be given accordingly to the Collector of the Customs where the respective vessels are.

I have the honor to be, &c.,
TH: JEFFERSON.
GEO: HAMMOND, Esq.

ADDITIONAL ARTICLE.

It is further agreed, between the said contracting parties, that the operation of so much of the twelfth article of the said treaty as respects the trade which his said Majesty thereby consents may be carried on between the United States and his islands in the West Indies, in the manner and on the terms and conditions therein specified, shall be suspended.

Source: Treaty of Amity, Commerce, and Navigation, between His Britannic Majesty and the United States of America.
Published by Neale and Kammerer,
Philadelphia, 1795.

Interstate Commerce Act (1887)

In 1887 Congress passed the Interstate Commerce Act, making the railroads the first industry subject to Federal regulation. Congress passed the law largely in response to public demand that railroad operations be regulated. The act also established a five-member enforcement board known as the Interstate Commerce Commission. In the years following the Civil War, railroads were privately owned and entirely unregulated. The railroad companies held a natural monopoly in the areas that only they serviced.

Monopolies are generally viewed as harmful because they obstruct the free competition that determines the price and quality of products and services offered to the public. The railroad monopolies had the power to set prices, exclude competitors, and control the market in several geographic areas. Although there was competition among railroads for long-haul routes, there was none for short-haul runs. Railroads discriminated in the prices they charged to passengers and shippers in different localities by providing rebates to large shippers or buyers. These practices were especially harmful to American farmers, who lacked the shipment volume necessary to obtain more favorable rates.

Early political action against these railroad monopolies came in the 1870s from “Granger” controlled state legislatures in the West and South. The Granger Movement had started in the 1860s providing various benefits to isolated rural communities. State controls of railroad monopolies were upheld by the Supreme Court in Munn v. Illinois (1877). State regulations and commissions, however, proved to be ineffective, incompetent, and even corrupt. In the 1886 Wabash case, the Supreme Court struck down an Illinois law outlawing long-and-short haul discrimination. Nevertheless, an important result of Wabash was that the Court clearly established the exclusive power of Congress to regulate interstate commerce. (See Gibbons v. Ogden.)

The Interstate Commerce Act addressed the problem of railroad monopolies by setting guidelines for how the railroads could do business. The act became law with the support of both major political parties and pressure groups from all regions of the country. Applying only to railroads, the law required “just and reasonable” rate changes; prohibited special rates or rebates for individual shippers; prohibited “preference” in rates for any particular localities, shippers, or products; forbade long-haul/short-haul discrimination; prohibited pooling of traffic or markets; and most important, established a five-member Interstate Commerce Commission (ICC).

The law’s terms often contradicted one another. Some provisions were designed to stimulate competition and others to penalize it. In practice, the law was not very effective. The most successful provisions of the law were the requirement that railroads submit annual reports to the ICC and the ban on special rates the railroads would arrange among themselves, although determining which rates were discriminatory was technically and politically difficult. Years later the ICC would become the model for many other regulatory agencies, but in 1887 it was unique. The Interstate Commerce Act challenged the philosophy of laissez-faire economics by clearly providing the right of Congress to regulate private corporations engaged in interstate commerce. The act, with its provision for the ICC, remains one of America’s most important documents serving as a model for future government regulation of private business.

Transcript of Interstate Commerce Act (1887)

Forty-Ninth Congress of the United States of America;
At the Second Session,
Begun and held at the City of Washington on Monday, the sixth day of December, one thousand eight hundred and eighty-six

An act to regulate Commerce.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management, or arrangement, for a continuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of trans-shipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country: Provided, however, That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid.

The term “railroad” as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term “transportation” shall include all instrumentalities of shipment or carriage.

All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful.

Sec. 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.

Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

Every common carrier subject to the provisions of this act shall according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connection therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.

Sec. 4. That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance: Provided, however, That upon application to the Commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act.

Sec. 5. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense.

Sec. 6. That every common carrier subject to the provisions of this act shall print and keep for public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its railroad, as defined by the first section of this act. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force upon such railroad, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, of at least the size of ordinary pica, and copies for the use of the public shall be kept in every depot or station upon any such railroad, in such places and in such form that they can be conveniently inspected.

Any common carrier subject to the provisions of this act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep for public inspection, at every depot where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a foreign country into the United States, the through rate on which shall not have been made public as required by this act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production; and any law in conflict with this section is hereby repealed.

No advance shall be made in the rates, fares, and charges which have been established and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days’ public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept for public inspection. Reductions in such published rates, fares, or charges may be made without previous public notice; but whenever any such reduction is made, notice of the same shall immediately be publicly posted and the changes made shall immediately be made public by printing new schedules, or shall immediately be plainly indicated upon the schedules at the time in force and kept for public inspection.

And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force.

Every common carrier subject to the provisions of this act shall file with the Commission hereinafter provided for copies of its schedules of rates, fares, and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said Commission of all changes made in the same. Every such common carrier shall also file with said Commission copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this act to which it may be a party. And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said Commission. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid shall be made public by such common carriers when directed by said Commission, in so far as may, in the judgment of the Commission, be deemed practicable; and said Commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carriers to publish, and the places in which they shall be published; but no common carrier party to any such joint tariff shall be liable for the failure of any other common carrier party thereto to observe and adhere to the rates, fares, or charges thus made and published.

If any such common carrier shall neglect or refuse to file or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be subject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial district wherein the principal office of said common carrier is situated or wherein such offense may be committed, and if such common carrier be a foreign corporation, in the judicial circuit wherein such common carrier accepts traffic and has an agent to perform such service, to compel compliance with the aforesaid provisions of this section; and such writ shall issue in the name of the people of the United States, at the relation of the Commissioners appointed under the provisions of this act; and failure to comply with its requirements shall be punishable as and for a contempt; and the said Commissioners, as complainants, may also apply, in any such circuit of the United States, for a writ of injunction against such common carrier, to restrain such common carrier from receiving or transporting property among the several States and Territories of the United States, or between the United States and adjacent foreign countries, or between ports of transshipment and of entry and the several States and Territories of the United States, as mentioned in the first section of this act, until such common carrier shall have complied with the aforesaid provisions of this section of this act.

Sec. 7. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this act.

Sec. 8. That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.

Sec. 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or company defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.

Sec. 10. That any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense.

Sec. 11. That a Commission is hereby created and established to be known as the Inter-State Commerce Commission, which shall be composed of five Commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. The Commissioners first appointed under this act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, anno Domini eighteen hundred and eighty-seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the Commissioner whom he shall succeed. Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Not more than three of the Commissioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this act, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold such office. Said Commissioners shall not engage in any other business, vocation, or employment. No vacancy in the Commission shall impair the right of the remaining Commissioners to exercise all the powers of the Commission.

Sec. 12. That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and for the purposes of this act the Commission shall have power to require the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation, and to that end may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section.

And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.

Sec. 13. That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of anything done or omitted to be done by any common carrier subject to the provisions of this act in contravention of the provisions thereof, may apply to said Commission by petition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the Commission. If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.

Said Commission shall in like manner investigate any complaint forwarded by the railroad commissioner or railroad commission of any State or Territory, at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made.

No complaint shall at any time be dismissed because of the absence of direct damage to the complainant.

Sec. 14. That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the Commission are based, together with its recommendation as to what reparation, if any, should be made by the common carrier to any party or parties who may be found to have been injured; and such findings so made shall thereafter, in all judicial proceedings, be deemed prima facie evidence as to each and every fact found.

All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier that may have been complained of.

Sec. 15. That if in any case in which an investigation shall be made by said Commission it shall be made to appear to the satisfaction of the Commission, either by the testimony of witnesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cognizable by said Commission, by any common carrier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the Commission to forth with cause a copy of its report in respect thereto to be delivered to such common carrier, together with a notice to said common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specified by the Commission; and if, within the time specified, it shall be made to appear to the Commission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the Commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the Commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law.

Sec. 16. That whenever any common carrier, as defined in and subject to the provisions of this act, shall violate or refuse or neglect to obey any lawful order or requirement of the Commission in this act named, it shall be the duty of the Commission, and lawful for any company or person interested in such order or requirement, to apply, in a summary way, by petition, to the circuit court of the United States sitting in equity in the judicial district in which the common carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or disobedience, as the case may be; and the said court shall have power to hear and determine the matter, on such short notice to the common carrier complained of as the court shall deem reasonable; and such notice may be served on such common carrier, his or its officers, agents, or servants, in such manner as the court shall direct; and said court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises; and to this end such court shall have power, if it think fit, to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition; and on such hearing the report of said Commission shall be prima facie evidence of the matters therein stated; and if it be made to appear to such court, on such hearing or on report of any such person or persons, that the lawful order or requirement of said Commission drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation or disobedience of such order or requirement of said Commission, and enjoining obedience to the same; and in case of any disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process of said court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier, and if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction or other proper process, mandatory or otherwise; and said court may, if it shall think fit, make an order directing such common carrier or other person so disobeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money not exceeding for each carrier or person in default the sum of five hundred dollars for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such moneys shall be payable as the court shall direct, either to the party complaining, or into court to abide the ultimate decision of the court, or into the Treasury; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by a final decree in personam in such court. When the subject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of security for such appeal; but such appeal shall not operate to stay or supersede the order of the court or the execution of any writ or process thereon; and such court may, in every such matter, order the payment of such costs and counsel fees as shall be deemed reasonable. Whenever any such petition shall be filed or presented by the Commission it shall be the duty of the district attorney, under the direction of the Attorney-General of the United States, to prosecute the same; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. For the purposes of this act, excepting its penal provisions, the circuit courts of the United States shall be deemed to be always in session.

Sec. 17. That the Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the Commission shall constitute a quorum for the transaction of business, but no Commissioner shall participate in any hearing or proceeding in which he has any pecuniary interest. Said Commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said Commission and be heard, in person or by attorney. Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. Said Commission shall have an official seal, which shall be judicially noticed. Either of the members of the Commission may administer oaths and affirmations.

Sec. 18. That each Commissioner shall receive an annual salary of seven thousand five hundred dollars, payable in the same manner as the salaries of judges of the courts of the United States. The Commission shall appoint a secretary, who shall receive an annual salary of three thousand five hundred dollars, payable in like manner. The Commission shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper performance of its duties, subject to the approval of the Secretary of the Interior.

The Commission shall be furnished by the Secretary of the Interior with suitable offices and all necessary office supplies. Witnesses summoned before the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.

All of the expenses of the Commission, including all necessary expenses for transportation incurred by the Commissioners, or by their employees under their orders, in making any investigation in any other places than in the city of Washington, shall be allowed and paid, on the presentation of itemized vouchers therefor approved by the chairman of the Commission and the Secretary of the Interior.

Sec. 19. That the principal office of the Commission shall be in the city of Washington, where its general sessions shall be held; but whenever the convenience of the public or of the parties may be promoted or delay or expense prevented thereby, the Commission may hold special sessions in any part of the United States. It may, by one or more of the Commissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of this act.

Sec. 20. That the Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this act, to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the Commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and floating debts and the interest paid thereon; the cost and value of the carrier’s property, franchises, and equipment; the number of employees and the salaries paid each class; the amounts expended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the balances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual balance sheet. Such reports shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts with other common carriers, as the Commission may require; and the said Commission may, within its discretion, for the purpose of enabling it the better to carry out the purposes of this act, prescribe (if in the opinion of the Commission it is practicable to prescribe such uniformity and methods of keeping accounts) a period of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept.

Sec. 21. That the Commission shall, on or before the first day of December in each year, make a report to the Secretary of the Interior, which shall be by him transmitted to Congress, and copies of which shall be distributed as are the other reports issued from the Interior Department. This report shall contain such information and data collected by the Commission as may be considered of value in the determination of questions connected with the regulation of commerce, together with such recommendations as to additional legislation relating thereto as the Commission may deem necessary.

Sec. 22. That nothing in this act shall apply to the carriage, storage, or handling of property free or at reduced rates for the United States, State, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the issuance of mileage, excursion, or commutation passenger tickets; nothing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion; nothing in this act shall be construed to prevent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employees; and nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies: Provided, That no pending litigation shall in any way be affected by this act.

Sec. 23. That the sum of one hundred thousand dollars is hereby appropriated for the use and purposes of this act for the fiscal year ending June thirtieth, anno Domini eighteen hundred and eighty-eight, and the intervening time anterior thereto.

Sec. 24. That the provisions of sections eleven and eighteen of this act, relating to the appointment and organization of the Commission herein provided for, shall take effect immediately, and the remaining provisions of this act shall take effect sixty days after its passage.

Approved, February 4, 1887.

Helvering vs. Davis- 1937

CUDOZO J. The Social Security Act is challenged once again….
In this case Titles VIII and II are the subject of attack. Title VIII lays a special incorne tax upon employees to be deducted irom their waves and paid by the employees. Title II provides for the payment of Old Age Benefits, and supplies the motive and occasion, in the view of the assailants of
the statute, for the levy of the taxes imposed by title VIII….
Second: The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment.
Congress may spend money in aid of the “genral welfare.” Constitution, Art. I, section 8; United States v. Batter, 297 U. S. 1, 65; Steward Machine Co. v. Davis. There Five been great statesmen in our history who have stood for other views. We will not resurat the contest. It is now settled by decision. Suited States v. Butler. The conception of the spending power advocated by Hamilton sad strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law. “When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress.” United States v. Butler, sapra, p. 67. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.
The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from state to state, the hinterland now settled that in pioneer days gave an avenue of escape. Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co. has set the doubt at rest. But the ill is all one or at least not
greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.
Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President’s Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory groups. Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance. A great mass of evidence was brought together supporting the policy which finds expression in the act. Among the relevant facts are these: The number of persons in the United States 65 years of age or over is increasing proportionately as well as absolutely. What is even more important the number of such persons unable to take care of themselves is growing at a threatening pace. More and more our population is becoming urban and industrial instead of rural and agricultural. The evidence is impressive that among industrial workers the younger men and women are preferred over the older. In time of retrenchment the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for re employment. Statistics are in the brief. A few illustrations will be chosen from many there collected. In 1930, out of 224 American factories investigated, 71, or almost one third, had fixed maximum hiring age limits; in 4 plants the limit was under 40; in 41 it was under 46. In the other 153 plants there were no fixed limits, but in practice few were hired if they were over 50 years of age. With the loss of savings inevitable in periods of idleness, the fate of workers over 65, when thrown out of work, is little less than desperate. A recent study of the Social Security Board informs us that “one fifth of the aged in the United States were receiving old age assistance, emergency relief,
institutional care, employment under the works program, or some other form of aid from public or private funds; two fifths to one-half were dependent on friends and relatives, one eighth had some income from earnings; and possibly one-sixth had some savings or property. Approximately three out of four persons 65 or over were probably dependent wholly or partially on others for support.” We summarize in the margin the results of other studies by state and national commissions. They point the same way.
The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. Apart from the failure of resources states and local governments are at tithes reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation. Steward Machine Co. v. DaGis. A system of old age pensions has special dangers of its own, if put in force in one slate and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.
Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here as often is with power, not with wisdom. Counsel for respondent has recalled to us the virtues of self reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with
equal reason whether the system of protective s is to be set aside at will in one state another whenever local policy prefers the b of laisses faire. The issue is a closed one. was fought out long ago. When money is nt to promote the general welfare, the cept of welfare or the opposite is shaped Confess, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.
Ordered accordingly.

Mr. Justice MuREYNoLDs and Mr. Justice BUTLER are of opinion that the provisions of the Act here challenged are repugnant to the Tenth Amendment, and that the decree of the Circuit Court of Appeals should be affirmed.

Case Name: HELVERING V. DAVIS, 301 U.S. 619

NO. 910. ARGUED MAY 5, 1937. – DECIDED MAY 24, 1937. – 89 F.(2D) 393, REVERSED.

1. THE COURT ABSTAINS FROM DISMISSING, SUA SPONTE, AS NOT PROPERLY WITHIN EQUITY JURISDICTION, A BILL BY A SHAREHOLDER TO RESTRAIN HIS CORPORATION FROM MAKING THE TAX PAYMENTS AND THE DEDUCTIONS FROM WAGES REQUIRED BY TITLE VIII OF THE SOCIAL SECURITY ACT OF AUGUST 14, 1935, THE BILL ALLEGING THAT THE EXACTIONS ARE VOID AND THAT COMPLIANCE WILL SUBJECT THE CORPORATION AND ITS SHAREHOLDERS TO IRREPARABLE DAMAGE. P. 639.

THE CORPORATION ACQUIESCED. THE COLLECTOR AND COMMISSIONER OF INTERNAL REVENUE INTERVENED IN THE COURT BELOW, DEFENDED ON THE MERITS, BROUGHT THE CASE TO THIS COURT BY CERTIORARI, AND HERE EXPRESSLY WAIVED A DEFENSE UNDER R.S. SEC. 3224 AND ANY OBJECTION UPON THE GROUND OF ADEQUATE LEGAL REMEDY, AND URGED THAT THE VALIDITY OF THE TAXES BE DETERMINED.

2. THE SCHEME OF “FEDERAL OLD-AGE BENEFITS” SET UP BY TITLE II OF THE SOCIAL SECURITY ACT DOES NOT CONTRAVENE THE LIMITATIONS OF THE TENTH AMENDMENT. P. 640.

3. CONGRESS MAY SPEND MONEY IN AID OF THE “GENERAL WELFARE.” P. 640.

4. IN DRAWING THE LINE BETWEEN WHAT IS “GENERAL” WELFARE, AND WHAT IS PARTICULAR, THE DETERMINATION OF CONGRESS MUST BE RESPECTED BY THE COURTS, UNLESS IT BE PLAINLY ARBITRARY. P. 640.

5. THE CONCEPT OF “GENERAL WELFARE” IS NOT STATIC BUT ADAPTS ITSELF TO THE CRISES AND NECESSITIES OF THE TIMES. P. 641.

6. THE PROBLEM OF SECURITY FOR THE AGED, LIKE THE GENERAL PROBLEM OF UNEMPLOYMENT, IS NATIONAL AS WELL AS LOCAL. CF. STEWARD MACHINE CO. V. DAVIS, ANTE P. 548. P. 644.

THERE IS GROUND TO BELIEVE THAT LAWS AND RESOURCES OF THE SEPARATE STATES UNAIDED, CAN NOT DEAL WITH THIS PROBLEM EFFECTIVELY. STATE GOVERNMENTS ARE RELUCTANT TO PLACE SUCH HEAVY BURDENS UPON THEIR RESIDENTS LEST THEY INCUR ECONOMIC DISADVANTAGES AS COMPARED WITH NEIGHBORS OR COMPETITORS; AND A SYSTEM OF OLD AGE PENSIONS ESTABLISHED IN ONE STATE ENCOURAGES IMMIGRATION OF NEEDY PERSONS FROM OTHER STATES WHICH HAVE REJECTED SUCH SYSTEMS. P. 644.

7. WHEN MONEY IS SPENT TO PROMOTE THE GENERAL WELFARE, THE CONCEPT OF WELFARE OR THE OPPOSITE IS SHAPED BY CONGRESS, NOT THE STATES. P. 645.

8. TITLE II OF THE SOCIAL SECURITY ACT PROVIDES FOR “FEDERAL OLD-AGE BENEFITS” FOR PERSONS WHO HAVE ATTAINED THE AGE OF 65. IT CREATES AN “OLD-AGE RESERVE ACCOUNT” IN THE TREASURY AND AUTHORIZES FUTURE APPROPRIATIONS TO PROVIDE FOR THE REQUIRED OLD-AGE PAYMENTS, BUT IN ITSELF NEITHER APPROPRIATES MONEY NOR BRINGS ANY MONEY INTO THE TREASURY. TITLE VIII IMPOSES AN “EXCISE” TAX ON EMPLOYERS, TO BE PAID “WITH RESPECT TO HAVING INDIVIDUALS IN THEIR EMPLOY,” MEASURED ON THE WAGES, AND AN “INCOME TAX ON EMPLOYEES,” MEASURED ON THEIR WAGES, TO BE COLLECTED BY THEIR EMPLOYERS BY DEDUCTION FROM WAGES. THESE TAXES ARE NOT APPLICABLE TO CERTAIN KINDS OF EMPLOYMENT, INCLUDING AGRICULTURAL LABOR, DOMESTIC SERVICE, SERVICE FOR THE NATIONAL OR STATE GOVERNMENTS, AND SERVICE PERFORMED BY PERSONS WHO HAVE ATTAINED THE AGE OF 65 YEARS. HELD:

(1) TITLE II BEING VALID, THERE IS NO OCCASION TO INQUIRE WHETHER TITLE VIII MUST FALL IF TITLE II WERE VOID. P. 645.

(2) THE TAX UPON EMPLOYERS IS A VALID EXCISE OR DUTY UPON THE RELATION OF EMPLOYMENT. STEWARD MACHINE CO. V. DAVIS, ANTE P. 548. P. 645.

(3) THE TAX IS NOT INVALID AS A RESULT OF ITS EXEMPTIONS. STEWARD MACHINE CO. V. DAVIS, ANTE, P. 548. P. 646.

HELVERING, COMMISSIONER OF INTERNAL REVENUE, ET AL. V. DAVIS.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

CERTIORARI, POST, P. 674, TO REVIEW THE REVERSAL OF A DECREE OF THE DISTRICT COURT DENYING AN INJUNCTION AND DISMISSING THE BILL IN A SUIT BY DAVIS, A SHAREHOLDER OF THE EDISON ELECTRIC ILLUMINATING COMPANY OF BOSTON, TO ENJOIN THE CORPORATION FROM COMPLYING WITH TAX REQUIREMENTS OF TITLE VIII OF THE SOCIAL SECURITY ACT.

SINCE THE EMPLOYER IS MERELY A WITHHOLDING AGENT WITH RESPECT TO THE EMPLOYEE TAX, NEITHER CORPORATION NOR STOCKHOLDER MAY ASK FOR RELIEF FROM IT.

BOTH THE EMPLOYEE TAX (A SPECIAL INCOME TAX, UNITED STATES V. HUDSON, 299 U.S. 498) AND THE EMPLOYER TAX (AN EXCISE) COMPLY WITH THE REQUIREMENT OF UNIFORMITY.

THESE ARE TRUE TAXES, THEIR PURPOSE BEING SIMPLY TO RAISE REVENUE. NO COMPLIANCE WITH ANY SCHEME OF FEDERAL REGULATION IS INVOLVED. THE PROCEEDS ARE PAID UNRESTRICTED INTO THE TREASURY AS INTERNAL REVENUE COLLECTIONS, AVAILABLE FOR THE GENERAL SUPPORT OF THE GOVERNMENT. ALTHOUGH CONGRESS MAY HAVE ANTICIPATED THAT OVER A PERIOD OF YEARS THE TAXES WOULD ROUGHLY OFFSET THE DRAIN UPON THE TREASURY TO BE OCCASIONED BY THE WHOLLY INDEPENDENT APPROPRIATIONS AUTHORIZED UNDER TITLE II, SUCH ROUGH BUDGETARY EQUIVALENCE IS NOT SUFFICIENT TO DEPRIVE TITLE VIII OF ITS QUALITY AS A TRUE TAXING MEASURE.

THE CIRCUIT COURT OF APPEALS ERRED IN UNDERTAKING TO PASS UPON THE VALIDITY OF TITLE II. FROTHINGHAM V. MELLON, 262 U.S. 447. A TAXPAYER HAS NO STANDING TO QUESTION THE PROPRIETY OF ANY EXPENDITURES FROM THE FEDERAL TREASURY. THAT RULE HAS BEEN RELAXED ONLY WHERE THE TAX AVAILS ARE EARMARKED FOR A SPECIFIC PURPOSE.

THE EMPLOYEE TAX IS A WITHHOLDING AT THE SOURCE, THE EMPLOYER BEING A COLLECTING AGENT OR STAKEHOLDER. THE WITHHOLDING PROVISIONS THEMSELVES ARE NOT CHALLENGED, NOR COULD THEY BE SUCCESSFULLY ATTACKED. BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 21; PIERCE OIL CORP. V. HOPKINS, 264 U.S. 137; BELL’S GAP R. CO. V. PENNSYLVANIA, 134 U.S. 232, 239. THE EMPLOYER, AS STAKEHOLDER, HAS NO LOCUS STANDI TO CHALLENGE THIS TAX. UNITED STATES V. AMERICAN EXCHANGE CO., 43 F.(2D) 829; UNITED STATES V. FIRST CAPITAL BANK, 98 F.(2D) 116; MIAMI VALLEY FRUIT CO. V. UNITED STATES, 45 F.(2D) 303; UNITED STATES V. ERB, 8 F.SUPP. 947.

THE CORPORATION CAN COMPLAIN ONLY OF THE INFRINGEMENT OF ITS OWN CONSTITUTIONAL IMMUNITY. VIRGINIAN RY. CO. V. SYSTEM FEDERATION, 300 U.S. 515. NO EMPLOYEE IS COMPLAINING. JEFFREY MFG. CO. V. BLAGG, 235 U.S. 571, 576. SEE ERIE R. CO. V. WILLIAMS, 233 U.S. 685, 697; RAIL COAL CO. V. OHIO INDUSTRIAL COMM’N, 236 U.S. 338, 349; HAWKINS V. BLEAKLY, 243 U.S. 210, 214. THE STANDING OF THE STOCKHOLDER CANNOT BE ANY BETTER THAN THAT OF HIS CORPORATION.

THE POWER TO APPROPRIATE FOR THE GENERAL WELFARE GRANTED BY ART. I, SEC. 8, CL. 1, IS NOT LIMITED BY OR TO THE OTHER ENUMERATED POWERS OF CONGRESS. UNITED STATES V. BUTLER, 297 U.S. 1. WHETHER ANY PARTICULAR EXPENDITURE IS FOR THE GENERAL WELFARE IS A MATTER COMPLETELY WITHIN THE DETERMINATION OF CONGRESS. UNITED STATES V. TELLER, 107 U.S. 64, 68. THE DECISION OF CONGRESS IS NOT REVIEWABLE BY THE COURTS IF BY ANY “REASONABLE POSSIBILITY IT IS FOR THE GENERAL WELFARE.” UNITED STATES V. BUTLER, 297 U.S. 1, 65.

THE EXPENDITURES IN THE PRESENT CASE ARE CLEARLY WELL WITHIN THE LIMITS OF THE POWER OF CONGRESS. THE NUMBER OF AGED PERSONS IN THIS COUNTRY IS RAPIDLY INCREASING; WORKERS IN URBAN INDUSTRIALIZED CIVILIZATION USUALLY ARRIVE AT OLD AGE WITHOUT ADEQUATE MEANS FOR SELF SUPPORT, AS IS DEMONSTRATED NOT ONLY BY THEIR EARNING POWERS DURING THEIR WORKING LIFETIME BUT BY VARIOUS STUDIES WHICH HAVE BEEN MADE OF THE EXTENT OF DEPENDENCY OF PEOPLE OVER 65 YEARS OF AGE. THOSE WHO ARE ABLE TO CALL UPON THEIR CHILDREN FOR SUPPORT ONLY AGGRAVATE THE EVIL BY DEPRIVING THE YOUNGER MEMBERS OF THE FAMILY OF THE RESOURCES WHICH THEY NEED. VOLUNTARY INDUSTRIAL PENSION PLANS COVER BUT A FEW. PRIVATE CHARITY IS INADEQUATE TO COPE WITH THE PROBLEM. EVEN STATE OLD AGE BENEFIT LAWS PRESENT GRAVE ADMINISTRATIVE AND FINANCIAL PROBLEMS.

THEREFORE, THE EXPENDITURES CONTEMPLATED BY TITLE II ARE FOR THE GENERAL WELFARE OF THE UNITED STATES. MOREOVER, THE FORM OF THE EXPENDITURES IS SOUNDLY DESIGNED TO PROMOTE GENERAL WELFARE. THE STATUTE EXCLUDES EMPLOYED AGED PERSONS, THEREBY PROVIDING A SIMPLE AND EASILY ADMINISTERED MEANS TEST WHICH IS LEGALLY SUFFICIENT. MOUNTAIN TIMBER CO. V. WASHINGTON, 243 U.S. 219, 230. THE PAYMENTS THEMSELVES ARE GRADUATED BOTH BY WAGES AND LENGTH OF EMPLOYMENT, SO AS TO PROVIDE AN INCENTIVE TO WORK AND AT THE SAME TIME ROUGHLY TO RELATE BENEFITS TO PAST STANDARDS OF LIVING. THE INCIDENTAL LUMP SUM PAYMENTS UNDER SECS. 203 AND 204 ACCORD WITH THE GENERAL PURPOSE OF THE PLAN AND ALSO SERVE TO SIMPLIFY ITS ADMINISTRATION. THE EXCLUSIONS FROM BENEFITS ARE BASED UPON SOUND ADMINISTRATIVE AND ECONOMIC REASONS.

SINCE TITLES II AND VIII SEVERALLY CONSTITUTE VALID EXERCISES OF CONGRESSIONAL POWER, THEY CANNOT BE INVALID WHEN CONSIDERED JOINTLY. IF IT BE SAID THAT THE AVAILS OF THE TAXES ARE EARMARKED, THAT FACT DOES NOT DEPRIVE THE TAXES OF THEIR QUALITY AS TRUE TAXES, EVEN THOUGH THE PROCEEDS BE EARMARKED FOR THE PAYMENT OF BENEFITS TO A PARTICULAR GROUP. IF THE PAYMENT OF BENEFITS UNDER TITLE II IS AN EXPENDITURE FOR THE GENERAL WELFARE, THEN A LEVY FOR THE PURPOSE OF PROVIDING FUNDS FOR SUCH EXPENDITURE MUST BE A TAX WITHIN THE MEANING OF THE CONSTITUTION. TO DETERMINE THAT THE EXPENDITURES ARE FOR THE GENERAL WELFARE IS TO DETERMINE THAT THEY ARE FOR THE BENEFIT OF THE TAXPAYERS AS WELL AS FOR THE BENEFIT OF THE DIRECT RECIPIENTS OF THE EXPENDITURES. A TAX DOES NOT CEASE TO BE ONE FOR THE GENERAL WELFARE BECAUSE THE IMMEDIATE APPLICATION OF THE PROCEEDS IS TO ONE GROUP OF THE POPULATION. CLARK V. POOR, 274 U.S. 554; GILLUM V. JOHNSON, 62 P.(2D) 1037, 1044; BEELAND WHOLESALE GROCERY CO. V. KAUFMAN (ALA.), 174 SO. 516. “THE CONSTITUTIONAL POWER TO LEVY TAXES DOES NOT DEPEND UPON THE ENJOYMENT BY THE TAXPAYER OF ANY SPECIAL BENEFIT FROM THE USE OF THE PROCEEDS RAISED BY TAXATION.” NASHVILLE, C. & ST. L. RY. V. WALLACE, 288 U.S. 249, 268; CARLEY & HAMILTON V. SNOOK, 281 U.S. 66; KNIGHTS V. JACKSON, 260 U.S. 12, 15.

TITLES II AND VIII DO NOT, WHEN CONSIDERED TOGETHER, CONSTITUTE A REGULATORY SCHEME. THE ACT DOES NOT REQUIRE RETIREMENT FROM EMPLOYMENT AND HAS NO TENDENCY TO INDUCE IT. IT DOES NOT CONSTITUTE A PLAN FOR COMPULSORY INSURANCE WITHIN THE ACCEPTED MEANING OF THE TERM “INSURANCE.” CF. LYNCH V. UNITED STATES, 292 U.S. 571, 576-577. WHETHER THE PLAN OF THE ACT MAY PROPERLY BE DESIGNATED AS OLD-AGE INSURANCE IS IMMATERIAL SINCE IT INVOLVES ONLY A VALID EXERCISE OF THE TAXING POWER AND VALID EXPENDITURES FOR THE GENERAL WELFARE WITHOUT REGULATORY INCIDENTS. CF. MCCULLOCH V. MARYLAND, 4 WHEAT. 315. THERE IS NO ENFORCED ADDITION TO WAGES, AND CONSEQUENTLY THE ACT DOES NOT CONSTITUTE A REGULATION OF THE WAGE RELATIONSHIP. THE TENTH AMENDMENT HAS NO APPLICATION, SINCE CONGRESS HAS ONLY EXERCISED ITS GRANTED POWERS. ASHWANDER V. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288, 330. THE TAX AND EXPENDITURES ARE NOT FORBIDDEN TO THE FEDERAL GOVERNMENT MERELY BECAUSE THE STATES THEMSELVES MIGHT LEGITIMATELY LAY SIMILAR TAXES AND MAKE SIMILAR EXPENDITURES. HOKE V. UNITED STATES, 227 U.S. 308, 322. UNITED STATES V. BUTLER, 297 U.S. 1, AND RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330, DISTINGUISHED.

THE TAXES DO NOT VIOLATE THE FIFTH AMENDMENT. NOT ONLY ARE THE VARIOUS SELECTIONS OF EMPLOYMENTS FOR TAXATION WELL WITHIN THE POWER OF CONGRESS (SONZINSKY V. UNITED STATES, 300 U.S. 506), BUT THEY ARE OF THE TYPE LONG SANCTIONED.

THE PROVISION LIMITING THE AMOUNT OF TAXABLE WAGES TO $3,000 IS LIKEWISE VALID. CONGRESS HAS AS FULL DISCRETION IN DETERMINING HOW FAR IT WILL EXERCISE THE TAXING POWER AS IT HAS IN SELECTING THE SUBJECTS FOR TAXATION. THIS PROVISION WILL BE FOUND JUSTIFIED BY PRECEDENT AS WELL AS BY ITS REASONABLE TENDENCY TO AVOID DOUBLE TAXATION.

TITLE VIII IS A VALID EXERCISE OF THE POWER “TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS AND EXCISES, TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENCE AND GENERAL WELFARE OF THE UNITED STATES.” CONST., ART. I, SEC. 8. THE AUTHORITY SO CONFERRED “IS EXHAUSTIVE AND EMBRACES EVERY CONCEIVABLE POWER OF TAXATION.” BRUSHABER V. UNION PAC. R. CO., 240 U.S. 1, 12.

1. THE TITLE OF AN ACT AND ITS WHOLE CONTENT MAY BE EXAMINED TO SEE THAT CONGRESS INTENDED THE IMPOSITION TO BE FOR A PARTICULAR PURPOSE, AND NOT MERELY TO PRODUCE GENERAL REVENUE FOR THE UNITED STATES. HILL V. WALLACE, 259 U.S. 44; CHILD LABOR TAX CASE, 259 U.S. 20; CARTER V. CARTER COAL CO., 298 U.S. 238(SEMBLE); UNITED STATES V. CONSTANTINE, 296 U.S. 287, 294(SEMBLE); GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233; TRUSLER V. CROOKS, 269 U.S. 475; AND UNITED STATES V. BUTLER, 297 U.S. 1.

2. THE IMPOSITION IS NOT AN “EXCISE” WITHIN THE MEANING OF THAT WORD AS USED IN THE ONLY CLAUSE OF THE CONSTITUTION WHICH EMPOWERS THE CONGRESS TO LEVY TAXES. SEE DAVIS V. BOSTON & MAINE R.R., 89 F.(2D) 368.

“EXCISE,” IN ENGLAND AND IN THE COLONIES, FOR AT LEAST ONE HUNDRED AND FORTY YEARS BEFORE IT WAS USED IN THE CONSTITUTION, MEANT AN INLAND LEVY ON SELECTED TANGIBLE PROPERTY, OR UPON THE OWNERS OF IT, BECAUSE OF THE ACTIVITY IN WHICH THE PROPERTY WAS MOVING, AS IN THE MANUFACTURE, IN INTERMEDIATE SALE, OR IN THE ULTIMATE SALE COMMONLY AMOUNTING TO CONSUMPTION. THE ANTITHESIS WAS THE DIRECT TAX UPON PROPERTY IN GENERAL, CERTAINLY LAND, WHEN TAXED ON A RATE FIXED BY ITS STATIC APPRAISED CAPITAL VALUE, POSSIBLY WHEN MEASURED BY ITS ANNUAL UNWROUGHT RETURN IN RENT, INCOME, OR PRODUCTS, AND, DEBATABLY, UPON PERSONAL PROPERTY SO APPRAISED OR JUDGED. BOTH THE DIRECT TAX AND THE EXCISE WERE PREEMINENTLY PROPERTY TAXES, – ONE REGARDLESS OF ITS ACTIVITY OR INACTIVITY, AND THE OTHER TAKING THAT ACTIVITY INTO CONSIDERATION. IN 1766 DR. JOHNSON DEFINED “EXCISE” AS “A HATEFUL TAX LEVIED UPON COMMODITIES, AND ADJUDGED NOT BY THE COMMON JUDGES OF PROPERTY.” DICT. (3D ED., 1766). HE DEFINED “COMMODITY” AS “INTEREST, ADVANTAGE, PROFIT, CONVENIENCE OF TIME OR PLACE, WARES, MERCHANDISE.” ID. “COMMODITY” SUGGESTS, AS THE PRINCIPAL THOUGHT, MERCHANDISE. IN 1776 ADAM SMITH IN HIS “THE WEALTH OF NATIONS” SAID, “THE DUTIES OF EXCISE ARE IMPOSED CHIEFLY UPON GOODS OF HOME PRODUCE DESTINED FOR HOME CONSUMPTION. THEY ARE IMPOSED ONLY UPON A FEW SORTS OF GOODS OF THE MOST GENERAL USE.” IN 1780 THE MASSACHUSETTS CONSTITUTION INDICATED DIRECT TAXES TO BE THE NORMAL SOURCE OF REVENUE, BUT GAVE THE LEGISLATURE AUTHORITY TO IMPOSE “REASONABLE DUTIES AND EXCISES, UPON ANY PRODUCE, GOODS, WARES, MERCHANDISE, AND COMMODITIES, WHATSOEVER.” IN 1788 THE CONSTITUTIONAL CONVENTION OF NEW YORK URGED AN AMENDMENT TO THE CONSTITUTION “THAT THE CONGRESS DO NOT IMPOSE ANY EXCISE ON ANY ARTICLE (ARDENT SPIRITS EXCEPTED) OF THE GROWTH, PRODUCTION, OR MANUFACTURE OF THE UNITED STATES, OR ANY OF THEM.” 1 ELLIOT’S DEBATES 72; LUTHER MARTIN SAID “BY THE POWER TO LAY EXCISES, – A POWER VERY ODIOUS IN ITS NATURE, SINCE IT AUTHORIZES OFFICERS TO GO INTO YOUR HOUSES, YOUR KITCHENS, YOUR CELLARS, AND TO EXAMINE INTO YOUR PRIVATE CONCERNS, – THE CONGRESS MAY IMPOSE DUTIES ON EVERY ARTICLE OF USE OR CONSUMPTION, ON THE FOOD THAT WE EAT, ON THE LIQUORS THAT WE DRINK, ON THE CLOTHES THAT WE WEAR, THE GLASS WHICH ENLIGHTENS OUR HOUSES, OR THE HEARTHS NECESSARY FOR OUR WARMTH AND COMFORT.” CF. CHANCELLOR LIVINGSTON IN THE NEW YORK CONVENTION, 2 ID. 341; NICHOLAS IN THE VIRGINIA CONVENTION, 3 ID. 243; ALSO 5 ID. 40; HAMILTON, FEDERALIST, NO. 21, P. 182; ELLSWORTH, CONNECTICUT CONVENTION, 2 ELLIOT 192; WRITINGS OF GALLATIN, P. 73.

SEE ALSO: HIST. OF ENGLAND, 5 HUME, ED. 1861, P. 269; CLARENDON, THE HIST. OF REBELLION IN ENGLAND, VOL. II, P. 453; 1 BLACKSTONE COMM. 308; AND ENCY. BRIT. THIRD ED. 1797; BRITISH EXCISE ACT, MARCH 28, 1643; JANUARY, 1644. THE TAX LAID BY THE REVENUE ACT OF 1777(17 GEO. III, C. 39) OF ONE SHILLING PER ANNUM FOR EVERY MALE SERVANT OF THE KINDS DESCRIBED WAS A LUXURY TAX LIKE THE WINDOW TAX.

EXCISES IN NEW YORK BEFORE 1788: SEE “THE COLONIAL LAWS OF NEW YORK FROM THE YEAR 1644 TO THE REVOLUTION, TRANSMITTED TO THE LEGISLATURE BY THE COMMISSIONERS OF STATUTORY REVISION, PURSUANT TO CHAPTER 125 OF THE LAWS OF 1891,” VOL. I, PP. 248, 789; VOL. IV, ID. 1, 105; LAWS OF NEW YORK, 1775 TO 1788, VOL. I, PP. 109, 660. IN PENNSYLVANIA: IX STAT. AT L. 1776-1799, P. 55. IN MASSACHUSETTS: 1646, PLYMOUTH COLONY LAW, 1836, P. 85; JUNE 24, 1692, ACTS AND RESOLVES OF THE PROVINCE OF MASSACHUSETTS BAY, VOL. 1, C. 5, P. 32; I. ID. 57, 272, 391, 475, 527, 662, 738; II. ID. 203, 849; III. ID. 495, 568, 750; IV. ID. 219; ACTS OF NOV. 1, 1781, C. 17, I. LAWS OF MASS. 60; 1782, 1783; I. ID. 62, 78, 85; LAWS AND RESOLVES OF 1782, C. 33, P. 92.

HISTORICALLY, AN EXCISE WAS IN CHARACTER AN INLAND DUTY OR IMPOST ON A TANGIBLE COMMODITY IN MANUFACTURE OR IN SALE EITHER IN THE COURSE OF TRADE OR FOR CONSUMPTION. IT WAS NOT “CUT OUT” OF THE ACTIVITY, BUT OUT OF THE GOODS. IT IS INCONCEIVABLE THAT THE PEOPLE OF THE THIRTEEN STATES COULD HAVE UNDERSTOOD THAT THE WORD “EXCISE” INCLUDED AN IMPOSITION ON THE STATE OF BEING OF EXERCISING THE UNIVERSAL NATURAL RIGHT TO EMPLOY, FOR WAGES, OTHER MEN WHO CONSENTED TO THAT EMPLOYMENT, IN A MANNER NOT INJURIOUS TO THE PUBLIC GOOD.

SUPPORTERS OF THIS TAX HAVE URGED THAT IT IS A TAX UPON PRIVILEGE. THERE IS NO PRIVILEGE. THE STATE OF BEING ON WHICH THE IMPOSITION IS MADE IS NOT DERIVED FROM GOVERNMENT OR FROM PUBLIC AUTHORITY IN ANY MANNER. PRIVILEGE CONTRASTS WITH COMMON NATURAL OPPORTUNITY. CONTRAST THE PRIVILEGE TO DO BUSINESS WITHOUT LIABILITY FOR DEBTS, AS IN CORPORATE FORM. ANY DICTIONARY OF THE COMMON MEANINGS WILL SHOW THAT “PRIVILEGE” AS USED IN THIS CONTEXT MEANS SOMETHING NOT OF COMMON RIGHT.

UNDOUBTEDLY PROPERTIES OF MODERN TIMES – AS, FOR EXAMPLE, AUTOMOBILES – NEVER THOUGHT OF IN 1788, MAY COME WITHIN THE MEANING OF THE WORD “EXCISE” IN 1788. BUT, IF THE STATE OF BEING, OF HAVING INDIVIDUALS IN A MAN’S EMPLOY, – A THING OF CHARACTER WHICH EXISTED IN 1788, – DID NOT THEN COME WITHIN THE MEANING OF THE WORD, IT IS NOT THERE NOW.

AN ATTEMPTED ACT MAY BE CLEARLY WITHOUT THE POWERS OF THE CONGRESS, AND A PARTICULAR LITIGANT NEVERTHELESS MAY HAVE NO RIGHT TO INVOKE THE JUDGMENT OF THIS COURT. MASSACHUSETTS V. MELLON, 262 U.S. 447; FLORIDA V. MELLON, 273 U.S. 12. CONSEQUENTLY, THE FACT THAT THE VALIDITY OF APPROPRIATION OF THE MONEY OF THE UNITED STATES IN QUESTIONABLE WAYS HAS NOT BEEN QUESTIONED BEFORE THIS COURT, CARRIES NO IMPLICATION THAT THE APPROPRIATIONS WERE LAWFUL, OR APPROVED BY THE PEOPLE.

IT IS ONLY IN THE LAST TWENTY YEARS THAT INLAND TAXES OF THE UNITED STATES HAVE BECOME SO BURDENSOME THAT IT HAS BEEN WORTH THE EXTENSIVE EFFORT OF MANY PEOPLE TO PREVENT UNLAWFUL APPROPRIATIONS.

A PERSON IN TERMS OBLIGED BY AN ATTEMPTED INVALID ACT TO PAY MONEY TO GO INTO THE TREASURY OF THE UNITED STATES, HAS A RIGHT TO A DECISION. UNITED STATES V. BUTLER, 297 U.S. 1.

AN IMPOSITION ON A PARTICULAR CLASS OF TANGIBLE PROPERTY, IN MANUFACTURE, USE, GIFT, BEQUEST, OR SALE, MAY BE SUSTAINED AS AN EXCISE IF IT MEETS THE OTHER CONSTITUTIONAL REQUIREMENTS, INCLUDING THAT THE END IS TO PROVIDE REVENUE FOR THE GENERAL WELFARE OF THE FEDERAL GOVERNMENT AND THAT THE SELECTION IS NOT CAPRICIOUS OR VIOLATIVE OF THE RULE OF UNIFORMITY. MAGNANO V. HAMILTON, 292 U.S. 40; BROMLEY V. MCCAUGHN, 280 U.S. 124; N.Y. TRUST CO. V. EISNER, 256 U.S. 345; BILLINGS V. UNITED STATES, 232 U.S. 261; MCCRAY V. UNITED STATES, 195 U.S. 27; THOMAS V. UNITED STATES, 192 U.S. 363; CORNELL V. COYNE, 192 U.S. 418; SPRECKELS SUGAR CO. V. MCCLAIN, 192 U.S. 397; PATTON V. BRADY, 184 U.S. 608; TREAT V. WHITE, 181 U.S. 264; KNOWLTON V. MOORE, 178 U.S. 41, 84; NICOL V. AMES, 173 U.S. 609; SPRINGER V. UNITED STATES, 102 U.S. 586; RAILROAD CO. V. COLLECTOR, 100 U.S. 595; SCHOLEY V. REW, 23 WALL. 331; VEAZIE BANK V. FENNO, 8 WALL. 533; PACIFIC INS. CO. V. SOULE, 7 WALL. 433; LICENSE CASES, 5 WALL. 462; HYLTON V. UNITED STATES, 3 DALL. 171. IMPORTANT DOCUMENTS, AND PAPER, PARTICULARLY COMMERCIAL PAPER, ARE TANGIBLE AND VALUABLE BECAUSE OF THAT FACT. PATTON V. BRADY, 184 U.S. 608, 617; COOK V. PENNSYLVANIA, 97 U.S. 566. IN AT LEAST ONE CASE THIS COURT HAS HELD THAT A FRANCHISE IS A SUFFICIENTLY PALPABLE KIND OF PROPERTY TO PERMIT AN EXCISE IN RESPECT OF IT, FLINT V. STONE TRACY CO., 220 U.S. 107, 155, 162; BUT IT HAS NEVER HELD THAT THE NATURAL, HARMLESS, STATE OF BEING, OR NATURAL, HARMLESS CONDUCT PRIVILEGED OR UNPRIVILEGED, IS SUBJECT TO EXCISE.

SEE: OPINIONS OF THE JUSTICES, 282 MASS. 219; 266 MASS. 592, 595; 196 MASS. 624.

PROPERTY MAY NOT BE TAKEN BY GOVERNMENT FROM ONE FOR ANOTHER, EVEN FOR PUBLIC ADVANTAGE OR WELFARE, WITHOUT JUST COMPENSATION, LOUISVILLE BANK V. RADFORD, 295 U.S. 555, 601, 602; UNITED STATES V. BUTLER, 297 U.S. 1; RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330; AND IT MAKES NO DIFFERENCE THAT IT IS DONE UNDER THE GUISE OF A TAX OR IS THE PRODUCT OF A TAX, LOAN ASSOCIATION V. TOPEKA, 20 WALL. 655; CALDER V. BULL, 3 DALL. 386; MILES PLANTING CO. V. CARLISLE, 5 APP. D.C. 138, 146.

EVEN IF A TAX IS LEVIED EXPRESSLY FOR THE PURPOSE OF OBTAINING GENERAL REVENUE, WHEN IT APPEARS, “IN THE LIGHT OF ITS HISTORY AND OF ITS PRESENT SETTING,” THAT IT IS FOR A PURPOSE WHICH THE CONSTITUTION DOES NOT PERMIT THE LAWMAKING BODY TO ACCOMPLISH, THE TAX IS INVALID. GROSJEAN V. AMERICAN PRESS CO., INC., 297 U.S. 233, 250. DISTINGUISHING SPRECKELS SUGAR REF. CO. V. MCCLAIN, 192 U.S. 397.

3. IN TESTING THE VALIDITY OF THE LEVY ATTEMPTED IN SECS. 804 AND 802, AN UNCHANGING DECISION MUST BE MADE FOR ALL PURPOSES, AS TO WHETHER THE LEVY IS FOR GENERAL REVENUE ONLY OR IS FOR OLD AGE BENEFITS SUCH AS ARE DESCRIBED IN TITLE II. THE LEVY SHOULD NOT BE DEEMED TO BE FOR SUCH BENEFITS AT ONE STAGE OF ARGUMENT IN ORDER TO MEET THE CHARGE OF CAPRICIOUSNESS, AND FOR GENERAL REVENUE AT ANOTHER STAGE IN ORDER TO MEET THE CHARGE OF ABSENCE OF FEDERAL PURPOSE.

4. WHETHER FOR GENERAL REVENUE OR NOT, THE ATTEMPTED LEVY IS SO CAPRICIOUS AND SO LACKING IN UNIFORMITY AS NOT TO BE IN CHARACTER A TAX. IF THE PURPOSE IS GENERAL REVENUE, THERE IS NO BASIS IN REASON FOR SELECTING CERTAIN FAULTLESS EMPLOYERS TO BEAR THE ENTIRE BURDEN AND THEREBY RELIEVE WEALTH GENERALLY FROM TAXATION TO FURNISH THE REVENUE. IF THE PURPOSE IS OLD-AGE BENEFITS, THERE IS NO MORE REASON FOR SHIFTING THE BURDEN OF A TAX ON WEALTH TO THE SHOULDERS OF POSSIBLY POOR EMPLOYERS WHO ARE NOT THE CAUSE OF THE OLD AGE. THERE IS NO ATTEMPT TO COVER ALL IN THE SAME CLASS. IF MEN OVER SIXTY-FIVE YEARS OF AGE OUGHT TO HAVE AN ANNUITY OR OLD-AGE BENEFIT, IT SHOULD BE ON ACCOUNT OF THAT FACT, NOT BECAUSE OF THE TYPE OF EMPLOYMENT IN WHICH THEY HAVE BEEN ENGAGED, AND IF EMPLOYERS OUGHT TO PAY AN EXCISE FOR THE STATE OF BEING OF HAVING EMPLOYEES, THEY OUGHT TO PAY IT WHEN THEY HAVE THAT STATE OF BEING. IT IS THE KNOWN FACT THAT IMPOSITION UPON NON AGRICULTURAL LABOR IS EQUIVALENT TO CONFINING THE IMPOSITION TO CERTAIN STATES TO THE APPROXIMATELY COMPLETE EXCLUSION OF OTHER STATES. IT IS CAPRICIOUS TO DENY THE “OVER-SIXTY-FIVE” BENEFITS TO FARM LABORERS, AND TO RELIEVE THEIR EMPLOYERS FROM AN IMPOSITION PLACED ON OTHER EMPLOYERS.

ONLY 56%, OR LESS, OF THE GAINFUL WORKERS IN THE UNITED STATES ARE POTENTIALLY TO BE BENEFITED. THE EMPLOYERS OF ONLY THIS 56%, (OR LESS), ARE SUBJECTED TO THE IMPOSITION.

THE EMPLOYERS OF THE 56% BEAR NOT ONLY THE BURDEN OF CARING BY SO MUCH FOR THE AGED AMONG THE 56%, BUT ALSO THE BURDEN OF THEIR SHARE OF TAXES TO MEET THE PUBLIC EXPENSE FOR POOR RELIEF AND ASSISTANCE TO THE REMAINING 44%, AND OF THE UNPROVIDED FOR BALANCE OF THE 56%.

SENATE REPORT NO. 628, (74TH CONGRESS, 1ST SESS. 1935) INDICATES THAT WHEN THE IMPOSITIONS UNDER TITLES VIII AND IX ARE IN FULL SWAY, SO THAT 9% ON THE PAY ROLLS MUST BE PAID, THE IMPOSITION IS EQUIVALENT TO A GENERAL SALES TAX OF 3%. AS THE TAX IS ON EMPLOYERS IN TRADE AS WELL AS IN INDUSTRY, (EXCEPT IN THE CASE OF IMPORTED MERCHANDISE SOLD), THEY ARE TAXED TWICE. THE EMPLOYERS IN THE PRODUCTION AND TRADE IN DOMESTIC INDUSTRY IN THIS WAY PAY TWO TAXES INEVITABLY; AND WHERE THE PRODUCTS PASS THROUGH BOTH WHOLESALE AND RETAIL TRADE, THREE TAXES. WHAT PASSES FROM WHOLESALE TRADE INTO THE HANDS OF THE MANUFACTURERS, AS THE RAW MATERIAL OF THOSE MANUFACTURERS, CALLS FOR ANOTHER PAYMENT. IT IS BEYOND THE POSSIBILITY OF ACCURATE MATHEMATICAL STATEMENT. IN MANY CASES THE LEVY CANNOT BE PASSED ON WITHOUT THE DESTRUCTION OF THE TRADE; AND IF NOT PASSED ON, THE EMPLOYER INEVITABLY MEETS FINANCIAL RUIN WHEN SUBJECTED TO SUCH A HUGE TAX.

IF GAINFUL WORKERS OUGHT TO HAVE AN ANNUITY AFTER AGE SIXTY-FIVE, SO SHOULD ALL OTHER PERSONS. THERE IS NO REASON FOR FAVORING THOSE WHO HAVE BEEN ABLE TO GET AND PERFORM WORK, TO THE EXCLUSION OF THOSE WHO HAVE NOT. THE NUMBER OF WORKERS POTENTIALLY TO BENEFIT AND PREFERENTIALLY TREATED IS LESS THAN 22% OF THE POPULATION.

CAPRICIOUS SELECTION OF CLASS OF PROPERTY, CLASS OF PERSONS, OR RATE GRADATION, CONVERTS AN ATTEMPTED EXCISE INTO A NONUNIFORM CONFISCATION, WITHOUT TAX CHARACTER. GROSJEAN V. AMERICAN PRESS CO., 297 U.S. 233, 251; COLGATE V. HARVEY, 296 U.S. 404, 422, 424; CONCORDIA FIRE INS. CO. V. ILLINOIS, 292 U.S. 535; STEBBINS V. RILEY, 268 U.S. 137; LOUISVILLE GAS CO. V. COLEMAN, 277 U.S. 32; SCHLESINGER V. WISCONSIN, 270 U.S. 230; BROMLEY V. MCCAUGHN, 280 U.S. 124, 139; MAYFLOWER FARMS V. TEN EYCK, 297 U.S. 266, 272(SEMBLE) OF A REGULATION; IN RE OPINION OF THE JUSTICES, 85 N.H. 562, (SEMBLE). CF. BRUSHABER V. UNION PACIFIC R. CO., 240 U.S. 1, 24.

5. TO PROVIDE OLD AGE BENEFITS SUCH AS ARE DESCRIBED IN TITLE II IS NOT A PURPOSE FOR WHICH THE CONGRESS HAS POWER TO TAX. SUCH A PURPOSE IS NOT FOR THE COMMON DEFENSE, OR TO PAY THE DEBTS OF, OR TO PROVIDE FOR THE GENERAL WELFARE OF, THE GOVERNMENT.

APART FROM TAXES TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE OF THE GOVERNMENT, NO TAX BY CONGRESS IS AUTHORIZED UNLESS IT IS TO PROVIDE FOR THE GENERAL WELFARE OF THE GOVERNMENT OF THE UNITED STATES. THE LIMITS UPON THE TAXING POWER ARE NOT SET BY “WELFARE” ONLY, BUT BY THE LIMITS UPON THE KIND OF WELFARE FOR WHICH THE TAX MAY BE LEVIED. IT MUST BE THE LIMITED KIND OF WELFARE WHICH IS “GENERAL,” AND IT MUST BE THE LIMITED KIND OF WELFARE WHICH IS “OF THE UNITED STATES.” IN THIS LIMITATION, “OF THE UNITED STATES” EVIDENTLY IS USED IN THE SENSE OF GOVERNMENT OF THE UNITED STATES. IT IS NOT TO BE SUPPOSED THAT A CONSTITUTION WOULD GRANT TO CONGRESS A POWER TO TAX TO PROVIDE REVENUE FOR THE GENERAL WELFARE OF THE TERRITORY OF THE UNITED STATES WHEN THAT CONGRESS HAD BEEN GIVEN NO POWER TO LEGISLATE FOR THE GENERAL WELFARE OF THAT TERRITORY. THE WORDS “GENERAL” AND “OF THE UNITED STATES” ARE WORDS OF RESTRICTION UPON THE KIND OF WELFARE TO PROVIDE REVENUE FOR WHICH CONGRESS MAY LEVY A TAX. THEY STAND OPPOSITE TO THE RESTRICTIONS OF “STATE” OR “LOCAL” IN DEFINING THE WELFARE FOR WHICH A STATE MAY LEVY A TAX.

AS FAR AS IT MAY BE DONE BY LEGISLATION, THE CONTROL OF THE RELATION BETWEEN EMPLOYER AND EMPLOYEE, THE RATE OF WAGES, THE WITHHOLDING OF WAGES TO BUILD RESERVES, THE INSURANCE AGAINST ACCIDENTS, THE MAKING OF RESERVES FOR THE EMPLOYEE WHEN HE NO LONGER, OR NOT FOR A TIME, CAN EARN WAGES, IS FOR THE LEGISLATURE OF THE STATE.

THE SUPPORT OF MEN AND WOMEN WHO HAVE COME TO BE SIXTY-FIVE YEARS OLD IN THE RESPECTIVE STATES, OR WHO CANNOT GET EMPLOYMENT, IS NO MORE FOR THE GENERAL WELFARE OF THE GOVERNMENT OF THE UNITED STATES THAN IS THE KEEPING OF THE CITIZENRY OF THE UNITED STATES FROM BECOMING DRUG ADDICTS, AND THEREBY LIKELY TO BE UNABLE TO EARN A LIVING OR TO FIGHT FOR THE UNITED STATES, OR TO VOTE INTELLIGENTLY FOR A PRESIDENT OR SENATORS AND REPRESENTATIVES. CF. LINDER V. UNITED STATES, 268 U.S. 5, 17; UNITED STATES V. DOREMUS, 249 U.S. 86, 95; UNITED STATES V. JIN FUEY MOY, 241 U.S. 394, 401. LOCAL COMMERCIAL ACTIVITIES AND EMPLOYMENT RELATIONS COMPLETED WHOLLY WITHIN A STATE, HOWSOEVER COMMON THEY MAY BE IN EVERY STATE, ARE NOT A PART OF THE GENERAL WELFARE OF THE GOVERNMENT OF THE UNITED STATES. SCHECHTER POULTRY CORP. V. UNITED STATES, 295 U.S. 495; UNITED STATES V. BUTLER, 297 U.S. 1; RAILROAD RETIREMENT BOARD V. ALTON R. CO., 295 U.S. 330(A FORTIORI); CHILD LABOR TAX CASE, 259 U.S. 20; HILL V. WALLACE, 259 U.S. 44; HAMMER V. DAGENHART, 247 U.S. 251. CF. REMARKS OF HUGHES, C.J., IN CARTER V. CARTER COAL CO., 298 U.S. 238, 317.

THE STATE WHERE THIS LOCAL EMPLOYMENT OCCURS MAY DEEM IT WISER TO REGULATE THE RELATION IN A DIFFERENT WAY, TO PROVIDE A SMALLER ANNUITY WITH A SMALLER COMPULSORY CONTRIBUTION, OR NONE AT ALL. THE SAME THING CANNOT BE DONE BY CONGRESS AND BY THE STATE LEGISLATURE. IF IT IS A SUBJECT FOR LEGISLATIVE REGULATION AT ALL, THE TENTH AMENDMENT SAYS THAT IT IS TO BE REGULATED BY THE STATE LEGISLATURE, AND NOT BY CONGRESS. CF. CHAMBERLIN V. ANDREWS, 299 U.S. 515; COLLECTOR V. DAY, 11 WALL. 113.

IMPOSITIONS FOR OLD-AGE BENEFITS DO NOT DIFFER IN THIS RESPECT FROM THOSE FOR UNEMPLOYMENT BENEFITS. THE PARTICULAR LIMIT TO “GENERAL WELFARE,” AS TO WHICH HAMILTON AND MADISON DIFFERED, AND MONROE VACILLATED, IS NOT INVOLVED. NONE OF THEM SUGGESTED THAT ANY SUCH REGULATIONS OF EMPLOYMENT OBLIGATIONS AND RELATIONS WITHIN A STATE COME WITHIN THIS PHRASE. NONE OF THEM, IT SEEMS, WOULD HAVE SUPPORTED A POWER IN CONGRESS TO COMPEL EMPLOYERS AND EMPLOYEES IN PURELY LOCAL EMPLOYMENT TO CONTRIBUTE TO A FUND FOR OLD-AGE ANNUITIES FOR OTHERS. CF. VETO MESSAGES OF PRESIDENTS JACKSON, MAY 27, 1830, 2 RICHARDSON, 483, 492, 639; BUCHANAN, FEBRUARY 24, 1859, 5 ID. 547; CLEVELAND IN 1887, 8 ID. 557.

6. IN FACT AND IN LAW, IN THE SECTIONS 804 AND 802 UNDER CONSIDERATION, THIS IS NOT A TAXING STATUTE, BUT AN UNCONSTITUTIONAL ATTEMPT TO REGULATE THE WAGE RELATION WITHIN THE SEVERAL STATES. WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379; ATTORNEY-GENERAL FOR CANADA V. ATTORNEY GENERAL FOR ONTARIO, (1937) A.C. 355, AFFIRMING (1936) CAN. S.C.R. 427.

MR. JUSTICE CARDOZO DELIVERED THE OPINION OF THE COURT.

THE SOCIAL SECURITY ACT (ACT OF AUGUST 14, 1935, C. 531, 49 STAT. 620, 42 U.S.C., C. 7, (SUPP.)) IS CHALLENGED ONCE AGAIN.

IN STEWARD MACHINE CO. V. DAVIS, DECIDED THIS DAY, ANTE, P. 548, WE HAVE UPHELD THE VALIDITY OF TITLE IX OF THE ACT, IMPOSING AN EXCISE UPON EMPLOYERS OF EIGHT OR MORE. IN THIS CASE TITLES VIII AND II ARE THE SUBJECT OF ATTACK. TITLE VIII LAYS ANOTHER EXCISE UPON EMPLOYERS IN ADDITION TO THE ONE IMPOSED BY TITLE IX (THOUGH WITH DIFFERENT EXEMPTIONS). IT LAYS A SPECIAL INCOME TAX UPON EMPLOYEES TO BE DEDUCTED FROM THEIR WAGES AND PAID BY THE EMPLOYERS. TITLE II PROVIDES FOR THE PAYMENT OF OLD AGE BENEFITS, AND SUPPLIES THE MOTIVE AND OCCASION, IN THE VIEW OF THE ASSAILANTS OF THE STATUTE, FOR THE LEVY OF THE TAXES IMPOSED BY TITLE VIII. THE PLAN OF THE TWO TITLES WILL NOW BE SUMMARIZED MORE FULLY. TITLE VIII, AS WE HAVE SAID, LAYS TWO DIFFERENT TYPES OF TAX, AN “INCOME TAX ON EMPLOYEES,” AND “AN EXCISE TAX ON EMPLOYERS.” THE INCOME TAX ON EMPLOYEES IS MEASURED BY WAGES PAID DURING THE CALENDAR YEAR. SEC. 801. THE EXCISE TAX ON THE EMPLOYER IS TO BE PAID “WITH RESPECT TO HAVING INDIVIDUALS IN HIS EMPLOY,” AND, LIKE THE TAX ON EMPLOYEES, IS MEASURED BY WAGES. SEC. 804. NEITHER TAX IS APPLICABLE TO CERTAIN TYPES OF EMPLOYMENT, SUCH AS AGRICULTURAL LABOR, DOMESTIC SERVICE, SERVICE FOR THE NATIONAL OR STATE GOVERNMENTS, AND SERVICE PERFORMED BY PERSONS WHO HAVE ATTAINED THE AGE OF 65 YEARS. SEC. 811(B). THE TWO TAXES ARE AT THE SAME RATE. SECS. 801, 804. FOR THE YEARS 1937 TO 1939, INCLUSIVE, THE RATE FOR EACH TAX IS FIXED AT ONE PER CENT. THEREAFTER THE RATE INCREASES 1/2 OF 1 PER CENT EVERY THREE YEARS, UNTIL AFTER DECEMBER 31, 1948, THE RATE FOR EACH TAX REACHES 3 PER CENT. IBID. IN THE COMPUTATION OF WAGES ALL REMUNERATION IS TO BE INCLUDED EXCEPT SO MUCH AS IS IN EXCESS OF $3,000 DURING THE CALENDAR YEAR AFFECTED. SEC. 811(A). THE INCOME TAX ON EMPLOYEES IS TO BE COLLECTED BY THE EMPLOYER, WHO IS TO DEDUCT THE AMOUNT FROM THE WAGES “AS AND WHEN PAID.” SEC. 802(A). HE IS INDEMNIFIED AGAINST CLAIMS AND DEMANDS OF ANY PERSON BY REASON OF SUCH PAYMENT. IBID. THE PROCEEDS OF BOTH TAXES ARE TO BE PAID INTO THE TREASURY LIKE INTERNAL-REVENUE TAXES GENERALLY, AND ARE NOT EARMARKED IN ANY WAY. SEC. 807(A). THERE ARE PENALTIES FOR NON-PAYMENT. SEC. 807(C).

TITLE II HAS THE CAPTION “FEDERAL OLD-AGE BENEFITS.” THE BENEFITS ARE OF TWO TYPES, FIRST, MONTHLY PENSIONS, AND SECOND, LUMP SUM PAYMENTS, THE PAYMENTS OF THE SECOND CLASS BEING RELATIVELY FEW AND UNIMPORTANT.

THE FIRST SECTION OF THIS TITLE CREATES AN ACCOUNT IN THE UNITED STATES TREASURY TO BE KNOWN AS THE “OLD-AGE RESERVE ACCOUNT.” SEC. 201. NO PRESENT APPROPRIATION, HOWEVER, IS MADE TO THAT ACCOUNT. ALL THAT THE STATUTE DOES IS TO AUTHORIZE APPROPRIATIONS ANNUALLY THEREAFTER, BEGINNING WITH THE FISCAL YEAR WHICH ENDS JUNE 30, 1937. HOW LARGE THEY SHALL BE IS NOT KNOWN IN ADVANCE. THE “AMOUNT SUFFICIENT AS AN ANNUAL PREMIUM” TO PROVIDE FOR THE REQUIRED PAYMENTS IS “TO BE DETERMINED ON A RESERVE BASIS IN ACCORDANCE WITH ACCEPTED ACTUARIAL PRINCIPLES, AND BASED UPON SUCH TABLES OF MORTALITY AS THE SECRETARY OF THE TREASURY SHALL FROM TIME TO TIME ADOPT, AND UPON AN INTEREST RATE OF 3 PER CENTUM PER ANNUM COMPOUNDED ANNUALLY.” SEC. 201(A). NOT A DOLLAR GOES INTO THE ACCOUNT BY FORCE OF THE CHALLENGED ACT ALONE, UNAIDED BY ACTS TO FOLLOW.

PRINCIPAL TYPE IS A MONTHLY PENSION PAYABLE TO A PERSON AFTER HE HAS ATTAINED THE AGE OF 65. THIS BENEFIT IS AVAILABLE ONLY TO ONE WHO HAS WORKED FOR AT LEAST ONE DAY IN EACH OF AT LEAST FIVE SEPARATE YEARS SINCE DECEMBER 31, 1936, WHO HAS EARNED AT LEAST $2,000 SINCE THAT DATE, AND WHO IS NOT THEN RECEIVING WAGES “WITH RESPECT TO REGULAR EMPLOYMENT.” SECS. 202(A), (D), 210(C). THE BENEFITS ARE NOT TO BEGIN BEFORE JANUARY 1, 1942. SEC. 202(A). IN NO EVENT ARE THEY TO EXCEED $85 A MONTH. SEC. 202(B). THEY ARE TO BE MEASURED (SUBJECT TO THAT LIMIT) BY A PERCENTAGE OF THE WAGES, THE PERCENTAGE DECREASING AT STATED INTERVALS AS THE WAGES BECOME HIGHER. SEC. 202(A). IN ADDITION TO THE MONTHLY BENEFITS, PROVISION IS MADE IN CERTAIN CONTINGENCIES FOR “LUMP SUM PAYMENTS” OF SECONDARY IMPORTANCE. A SUMMARY BY THE GOVERNMENT OF THE FOUR SITUATIONS CALLING FOR SUCH PAYMENTS IS PRINTED IN THE MARGIN. FN1

THIS SUIT IS BROUGHT BY A SHAREHOLDER OF THE EDISON ELECTRIC ILLUMINATING COMPANY OF BOSTON, A MASSACHUSETTS CORPORATION, TO RESTRAIN THE CORPORATION FROM MAKING THE PAYMENTS AND DEDUCTIONS CALLED FOR BY THE ACT, WHICH IS STATED TO BE VOID UNDER THE CONSTITUTION OF THE UNITED STATES. THE BILL TELLS US THAT THE CORPORATION HAS DECIDED TO OBEY THE STATUTE, THAT IT HAS REACHED THIS DECISION IN THE FACE OF THE COMPLAINANT’S PROTESTS, AND THAT IT WILL MAKE THE PAYMENTS AND DEDUCTIONS UNLESS RESTRAINED BY A DECREE. THE EXPECTED CONSEQUENCES ARE INDICATED SUBSTANTIALLY AS FOLLOWS: THE DEDUCTIONS FROM THE WAGES OF THE EMPLOYEES WILL PRODUCE UNREST AMONG THEM, AND WILL BE FOLLOWED, IT IS PREDICTED, BY DEMANDS THAT WAGES BE INCREASED. IF THE EXACTIONS SHALL ULTIMATELY BE HELD VOID, THE COMPANY WILL HAVE PARTED WITH MONEYS WHICH AS A PRACTICAL MATTER IT WILL BE IMPOSSIBLE TO RECOVER. NOTHING IS SAID IN THE BILL ABOUT THE PROMISE OF INDEMNITY. THE PREDICTION IS MADE ALSO THAT SERIOUS CONSEQUENCES WILL ENSUE IF THERE IS A SUBMISSION TO THE EXCISE. THE CORPORATION AND ITS SHAREHOLDERS WILL SUFFER IRREPARABLE LOSS, AND MANY THOUSANDS OF DOLLARS WILL BE SUBTRACTED FROM THE VALUE OF THE SHARES. THE PRAYER IS FOR AN INJUNCTION AND FOR A DECLARATION THAT THE ACT IS VOID.

THE CORPORATION APPEARED AND ANSWERED WITHOUT RAISING ANY ISSUE OF FACT. LATER THE UNITED STATES COMMISSIONER OF INTERNAL REVENUE AND THE UNITED STATES COLLECTOR FOR THE DISTRICT OF MASSACHUSETTS, PETITIONERS IN THIS COURT, WERE ALLOWED TO INTERVENE. THEY MOVED TO STRIKE SO MUCH OF THE BILL AS HAS RELATION TO THE TAX ON EMPLOYEES, TAKING THE GROUND THAT THE EMPLOYER, NOT BEING SUBJECT TO TAX UNDER THOSE PROVISIONS, MAY NOT CHALLENGE THEIR VALIDITY, AND THAT THE COMPLAINANT SHAREHOLDER, WHOSE RIGHTS ARE NO GREATER THAN THOSE OF HIS CORPORATION, HAS EVEN LESS STANDING TO BE HEARD ON SUCH A QUESTION. THE INTERVENING DEFENDANTS ALSO FILED AN ANSWER WHICH RESTATED THE POINT RAISED IN THE MOTION TO STRIKE, AND MAINTAINED THE VALIDITY OF TITLE VIII IN ALL ITS PARTS. THE DISTRICT COURT HELD THAT THE TAX UPON EMPLOYEES WAS NOT PROPERLY AT ISSUE, AND THAT THE TAX UPON EMPLOYERS WAS CONSTITUTIONAL. IT THEREUPON DENIED THE PRAYER FOR AN INJUNCTION, AND DISMISSED THE BILL. ON APPEAL TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT, THE DECREE WAS REVERSED, ONE JUDGE DISSENTING. 89 F.(2D) 393. THE COURT HELD THAT TITLE II WAS VOID AS AN INVASION OF POWERS RESERVED BY THE TENTH AMENDMENT TO THE STATES OR TO THE PEOPLE, AND THAT TITLE II IN COLLAPSING CARRIED TITLE VIII ALONG WITH IT. AS AN ADDITIONAL REASON FOR INVALIDATING THE TAX UPON EMPLOYERS, THE COURT HELD THAT IT WAS NOT AN EXCISE AS EXCISES WERE UNDERSTOOD WHEN THE CONSTITUTION WAS ADOPTED. CF. DAVIS V. BOSTON & MAINE R. CO., 89 F.(2D) 368, DECIDED THE SAME DAY.

A PETITION FOR CERTIORARI FOLLOWED. IT WAS FILED BY THE INTERVENING DEFENDANTS, THE COMMISSIONER AND THE COLLECTOR, AND BROUGHT TWO QUESTIONS, AND TWO ONLY, TO OUR NOTICE. WE WERE ASKED TO DETERMINE: (1) “WHETHER THE TAX IMPOSED UPON EMPLOYERS BY SEC. 804 OF THE SOCIAL SECURITY ACT IS WITHIN THE POWER OF CONGRESS UNDER THE CONSTITUTION,” AND (2) “WHETHER THE VALIDITY OF THE TAX IMPOSED UPON EMPLOYEES BY SEC. 801 OF THE SOCIAL SECURITY ACT IS PROPERLY IN ISSUE IN THIS CASE, AND IF IT IS, WHETHER THAT TAX IS WITHIN THE POWER OF CONGRESS UNDER THE CONSTITUTION.” THE DEFENDANT CORPORATION GAVE NOTICE TO THE CLERK THAT IT JOINED IN THE PETITION, BUT IT HAS TAKEN NO PART IN ANY SUBSEQUENT PROCEEDINGS. A WRIT OF CERTIORARI ISSUED.

FIRST. QUESTIONS AS TO THE REMEDY INVOKED BY THE COMPLAINANT CONFRONT US AT THE OUTSET.

WAS THE CONDUCT OF THE COMPANY IN RESOLVING TO PAY THE TAXES A LEGITIMATE EXERCISE OF THE DISCRETION OF THE DIRECTORS? HAS PETITIONER A STANDING TO CHALLENGE THAT RESOLVE IN THE ABSENCE OF AN ADEQUATE SHOWING OF IRREPARABLE INJURY? DOES THE ACQUIESCENCE OF THE COMPANY IN THE EQUITABLE REMEDY AFFECT THE ANSWER TO THOSE QUESTIONS? THOUGH POWER MAY STILL BE OURS TO TAKE SUCH OBJECTIONS FOR OURSELVES, IS ACQUIESCENCE EFFECTIVE TO RID US OF THE DUTY? IS DUTY MODIFIED STILL FURTHER BY THE ATTITUDE OF THE GOVERNMENT, ITS WAIVER OF A DEFENSE UNDER SEC. 3224 OF THE REVISED STATUTES, ITS WAIVER OF A DEFENSE THAT THE LEGAL REMEDY IS ADEQUATE, ITS EARNEST REQUEST THAT WE DETERMINE WHETHER THE LAW SHALL STAND OR FALL? THE WRITER OF THIS OPINION BELIEVES THAT THE REMEDY IS ILL CONCEIVED, THAT IN A CONTROVERSY SUCH AS THIS A COURT MUST REFUSE TO GIVE EQUITABLE RELIEF WHEN A CAUSE OF ACTION IN EQUITY IS NEITHER PLEADED NOR PROVED, AND THAT THE SUIT FOR AN INJUNCTION SHOULD BE DISMISSED UPON THAT GROUND. HE THINKS THIS COURSE SHOULD BE FOLLOWED IN ADHERENCE TO THE GENERAL RULE THAT CONSTITUTIONAL QUESTIONS ARE NOT TO BE DETERMINED IN THE ABSENCE OF STRICT NECESSITY. IN THAT VIEW HE IS SUPPORTED BY MR. JUSTICE BRANDEIS, MR. JUSTICE STONE AND MR. JUSTICE ROBERTS. HOWEVER, A MAJORITY OF THE COURT HAVE REACHED A DIFFERENT CONCLUSION. THEY FIND IN THIS CASE EXTRAORDINARY FEATURES MAKING IT FITTING IN THEIR JUDGMENT TO DETERMINE WHETHER THE BENEFITS AND THE TAXES ARE VALID OR INVALID. THEY DISTINGUISH NORMAN V. CONSOLIDATED GAS CO., 89 F.(2D) 619, RECENTLY DECIDED BY THE COURT OF APPEALS FOR THE SECOND CIRCUIT, ON THE GROUND THAT IN THAT CASE, THE REMEDY WAS CHALLENGED BY THE COMPANY AND THE GOVERNMENT AT EVERY STAGE OF THE PROCEEDING, THUS WITHDRAWING FROM THE COURT ANY MARGINAL DISCRETION. THE RULING OF THE MAJORITY REMOVES FROM THE CASE THE PRELIMINARY OBJECTION AS TO THE NATURE OF THE REMEDY WHICH WE TOOK OF OUR OWN MOTION AT THE BEGINNING OF THE ARGUMENT. UNDER THE COMPULSION OF THAT RULING, THE MERITS ARE NOW HERE.

SECOND. THE SCHEME OF BENEFITS CREATED BY THE PROVISIONS OF TITLE II IS NOT IN CONTRAVENTION OF THE LIMITATIONS OF THE TENTH AMENDMENT.

CONGRESS MAY SPEND MONEY IN AID OF THE “GENERAL WELFARE.” CONSTITUTION, ART. I, SECTION 8; UNITED STATES V. BUTLER, 297 U.S. 1, 65; STEWARD MACHINE CO. V. DAVIS, SUPRA. THERE HAVE BEEN GREAT STATESMEN IN OUR HISTORY WHO HAVE STOOD FOR OTHER VIEWS. WE WILL NOT RESURRECT THE CONTEST. IT IS NOW SETTLED BY DECISION. UNITED STATES V. BUTLER, SUPRA. THE CONCEPTION OF THE SPENDING POWER ADVOCATED BY HAMILTON AND STRONGLY REINFORCED BY STORY HAS PREVAILED OVER THAT OF MADISON, WHICH HAS NOT BEEN LACKING IN ADHERENTS. YET DIFFICULTIES ARE LEFT WHEN THE POWER IS CONCEDED. THE LINE MUST STILL BE DRAWN BETWEEN ONE WELFARE AND ANOTHER, BETWEEN PARTICULAR AND GENERAL. WHERE THIS SHALL BE PLACED CANNOT BE KNOWN THROUGH A FORMULA IN ADVANCE OF THE EVENT. THERE IS A MIDDLE GROUND OR CERTAINLY A PENUMBRA IN WHICH DISCRETION IS AT LARGE. THE DISCRETION, HOWEVER, IS NOT CONFIDED TO THE COURTS. THE DISCRETION BELONGS TO CONGRESS, UNLESS THE CHOICE IS CLEARLY WRONG, A DISPLAY OF ARBITRARY POWER, NOT AN EXERCISE OF JUDGMENT. THIS IS NOW FAMILIAR LAW. “WHEN SUCH A CONTENTION COMES HERE WE NATURALLY REQUIRE A SHOWING THAT BY NO REASONABLE POSSIBILITY CAN THE CHALLENGED LEGISLATION FALL WITHIN THE WIDE RANGE OF DISCRETION PERMITTED TO THE CONGRESS.” UNITED STATES V. BUTLER, SUPRA, P. 67. CF. CINCINNATI SOAP CO. V. UNITED STATES, ANTE, P. 308; UNITED STATES V. REALTY CO., 163 U.S. 427, 440; HEAD MONEY CASES, 112 U.S. 580, 595. NOR IS THE CONCEPT OF THE GENERAL WELFARE STATIC. NEEDS THAT WERE NARROW OR PAROCHIAL A CENTURY AGO MAY BE INTERWOVEN IN OUR DAY WITH THE WELL-BEING OF THE NATION. WHAT IS CRITICAL OR URGENT CHANGES WITH THE TIMES.

THE PURGE OF NATION-WIDE CALAMITY THAT BEGAN IN 1929 HAS TAUGHT US MANY LESSONS. NOT THE LEAST IS THE SOLIDARITY OF INTERESTS THAT MAY ONCE HAVE SEEMED TO BE DIVIDED. UNEMPLOYMENT SPREADS FROM STATE TO STATE, THE HINTERLAND NOW SETTLED THAT IN PIONEER DAYS GAVE AN AVENUE OF ESCAPE. HOME BUILDING & LOAN ASSN. V. BLAISDELL, 290 U.S. 398, 442. SPREADING FROM STATE TO STATE, UNEMPLOYMENT IS AN ILL NOT PARTICULAR BUT GENERAL, WHICH MAY BE CHECKED, IF CONGRESS SO DETERMINES, BY THE RESOURCES OF THE NATION. IF THIS CAN HAVE BEEN DOUBTFUL UNTIL NOW, OUR RULING TODAY IN THE CASE OF THE STEWARD MACHINE CO., SUPRA, HAS SET THE DOUBT AT REST. BUT THE ILL IS ALL ONE, OR AT LEAST NOT GREATLY DIFFERENT, WHETHER MEN ARE THROWN OUT OF WORK BECAUSE THERE IS NO LONGER WORK TO DO OR BECAUSE THE DISABILITIES OF AGE MAKE THEM INCAPABLE OF DOING IT. RESCUE BECOMES NECESSARY IRRESPECTIVE OF THE CAUSE. THE HOPE BEHIND THIS STATUTE IS TO SAVE MEN AND WOMEN FROM THE RIGORS OF THE POOR HOUSE AS WELL AS FROM THE HAUNTING FEAR THAT SUCH A LOT AWAITS THEM WHEN JOURNEY’S END IS NEAR.

CONGRESS DID NOT IMPROVISE A JUDGMENT WHEN IT FOUND THAT THE AWARD OF OLD AGE BENEFITS WOULD BE CONDUCIVE TO THE GENERAL WELFARE. THE PRESIDENT’S COMMITTEE ON ECONOMIC SECURITY MADE AN INVESTIGATION AND REPORT, AIDED BY A RESEARCH STAFF OF GOVERNMENT OFFICERS AND EMPLOYEES, AND BY AN ADVISORY COUNCIL AND SEVEN OTHER ADVISORY GROUPS. FN2 EXTENSIVE HEARINGS FOLLOWED BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS, AND THE SENATE COMMITTEE ON FINANCE. FN3 A GREAT MASS OF EVIDENCE WAS BROUGHT TOGETHER SUPPORTING THE POLICY WHICH FINDS EXPRESSION IN THE ACT. AMONG THE RELEVANT FACTS ARE THESE: THE NUMBER OF PERSONS IN THE UNITED STATES 65 YEARS OF AGE OR OVER IS INCREASING PROPORTIONATELY AS WELL AS ABSOLUTELY. WHAT IS EVEN MORE IMPORTANT THE NUMBER OF SUCH PERSONS UNABLE TO TAKE CARE OF THEMSELVES IS GROWING AT A THREATENING PACE. MORE AND MORE OUR POPULATION IS BECOMING URBAN AND INDUSTRIAL INSTEAD OF RURAL AND AGRICULTURAL. FN4 THE EVIDENCE IS IMPRESSIVE THAT AMONG INDUSTRIAL WORKERS THE YOUNGER MEN AND WOMEN ARE PREFERRED OVER THE OLDER. FN5 IN TIMES OF RETRENCHMENT THE OLDER ARE COMMONLY THE FIRST TO GO, AND EVEN IF RETAINED, THEIR WAGES ARE LIKELY TO BE LOWERED. THE PLIGHT OF MEN AND WOMEN AT SO LOW AN AGE AS 40 IS HARD, ALMOST HOPELESS, WHEN THEY ARE DRIVEN TO SEEK FOR REEMPLOYMENT. STATISTICS ARE IN THE BRIEF. A FEW ILLUSTRATIONS WILL BE CHOSEN FROM MANY THERE COLLECTED. IN 1930, OUT OF 224 AMERICAN FACTORIES INVESTIGATED, 71, OR ALMOST ONE THIRD, HAD FIXED MAXIMUM HIRING AGE LIMITS; IN 4 PLANTS THE LIMIT WAS UNDER 40; IN 41 IT WAS UNDER 46. IN THE OTHER 153 PLANTS THERE WERE NO FIXED LIMITS, BUT IN PRACTICE FEW WERE HIRED IF THEY WERE OVER 50 YEARS OF AGE. FN6 WITH THE LOSS OF SAVINGS INEVITABLE IN PERIODS OF IDLENESS, THE FATE OF WORKERS OVER 65, WHEN THROWN OUT OF WORK, IS LITTLE LESS THAN DESPERATE. A RECENT STUDY OF THE SOCIAL SECURITY BOARD INFORMS US THAT “ONE-FIFTH OF THE AGED IN THE UNITED STATES WERE RECEIVING OLD-AGE ASSISTANCE, EMERGENCY RELIEF, INSTITUTIONAL CARE, EMPLOYMENT UNDER THE WORKS PROGRAM, OR SOME OTHER FORM OF AID FROM PUBLIC OR PRIVATE FUNDS; TWO-FIFTHS TO ONE-HALF WERE DEPENDENT ON FRIENDS AND RELATIVES, ONE-EIGHTH HAD SOME INCOME FROM EARNINGS; AND POSSIBLY ONE-SIXTH HAD SOME SAVINGS OR PROPERTY. APPROXIMATELY THREE OUT OF FOUR PERSONS 65 OR OVER WERE PROBABLY DEPENDENT WHOLLY OR PARTIALLY ON OTHERS FOR SUPPORT.” FN7 WE SUMMARIZE IN THE MARGIN THE RESULTS OF OTHER STUDIES BY STATE AND NATIONAL COMMISSIONS. FN8 THEY POINT THE SAME WAY.

THE PROBLEM IS PLAINLY NATIONAL IN AREA AND DIMENSIONS. MOREOVER, LAWS OF THE SEPARATE STATES CANNOT DEAL WITH IT EFFECTIVELY. CONGRESS, AT LEAST, HAD A BASIS FOR THAT BELIEF. STATES AND LOCAL GOVERNMENTS ARE OFTEN LACKING IN THE RESOURCES THAT ARE NECESSARY TO FINANCE AN ADEQUATE PROGRAM OF SECURITY FOR THE AGED. THIS IS BROUGHT OUT WITH A WEALTH OF ILLUSTRATION IN RECENT STUDIES OF THE PROBLEM. FN9 APART FROM THE FAILURE OF RESOURCES, STATES AND LOCAL GOVERNMENTS ARE AT TIMES RELUCTANT TO INCREASE SO HEAVILY THE BURDEN OF TAXATION TO BE BORNE BY THEIR RESIDENTS FOR FEAR OF PLACING THEMSELVES IN A POSITION OF ECONOMIC DISADVANTAGE AS COMPARED WITH NEIGHBORS OR COMPETITORS. WE HAVE SEEN THIS IN OUR STUDY OF THE PROBLEM OF UNEMPLOYMENT COMPENSATION. STEWARD MACHINE CO. V. DAVIS, SUPRA. A SYSTEM OF OLD AGE PENSIONS HAS SPECIAL DANGERS OF ITS OWN, IF PUT IN FORCE IN ONE STATE AND REJECTED IN ANOTHER. THE EXISTENCE OF SUCH A SYSTEM IS A BAIT TO THE NEEDY AND DEPENDENT ELSEWHERE, ENCOURAGING THEM TO MIGRATE AND SEEK A HAVEN OF REPOSE. ONLY A POWER THAT IS NATIONAL CAN SERVE THE INTERESTS OF ALL.

WHETHER WISDOM OR UNWISDOM RESIDES IN THE SCHEME OF BENEFITS SET FORTH IN TITLE II, IT IS NOT FOR US TO SAY. THE ANSWER TO SUCH INQUIRIES MUST COME FROM CONGRESS, NOT THE COURTS. OUR CONCERN HERE, AS OFTEN, IS WITH POWER, NOT WITH WISDOM. COUNSEL FOR RESPONDENT HAS RECALLED TO US THE VIRTUES OF SELF-RELIANCE AND FRUGALITY. THERE IS A POSSIBILITY, HE SAYS, THAT AID FROM A PATERNAL GOVERNMENT MAY SAP THOSE STURDY VIRTUES AND BREED A RACE OF WEAKLINGS. IF MASSACHUSETTS SO BELIEVES AND SHAPES HER LAWS IN THAT CONVICTION, MUST HER BREED OF SONS BE CHANGED, HE ASKS, BECAUSE SOME OTHER PHILOSOPHY OF GOVERNMENT FINDS FAVOR IN THE HALLS OF CONGRESS? BUT THE ANSWER IS NOT DOUBTFUL. ONE MIGHT ASK WITH EQUAL REASON WHETHER THE SYSTEM OF PROTECTIVE TARIFFS IS TO BE SET ASIDE AT WILL IN ONE STATE OR ANOTHER WHENEVER LOCAL POLICY PREFERS THE RULE OF LAISSEZ FAIRE. THE ISSUE IS A CLOSED ONE. IT WAS FOUGHT OUT LONG AGO. FN10 WHEN MONEY IS SPENT TO PROMOTE THE GENERAL WELFARE, THE CONCEPT OF WELFARE OR THE OPPOSITE IS SHAPED BY CONGRESS, NOT THE STATES. SO THE CONCEPT BE NOT ARBITRARY, THE LOCALITY MUST YIELD. CONSTITUTION, ART. VI, PAR. 2.

THIRD. TITLE II BEING VALID, THERE IS NO OCCASION TO INQUIRE WHETHER TITLE VIII WOULD HAVE TO FALL IF TITLE II WERE SET AT NAUGHT.

THE ARGUMENT FOR THE RESPONDENT IS THAT THE PROVISIONS OF THE TWO TITLES DOVETAIL IN SUCH A WAY AS TO JUSTIFY THE CONCLUSION THAT CONGRESS WOULD HAVE BEEN UNWILLING TO PASS ONE WITHOUT THE OTHER. THE ARGUMENT FOR PETITIONERS IS THAT THE TAX MONEYS ARE NOT EARMARKED, AND THAT CONGRESS IS AT LIBERTY TO SPEND THEM AS IT WILL. THE USUAL SEPARABILITY CLAUSE IS EMBODIED IN THE ACT. SEC. 1103.

WE FIND IT UNNECESSARY TO MAKE A CHOICE BETWEEN THE ARGUMENTS, AND SO LEAVE THE QUESTION OPEN.

FOURTH. THE TAX UPON EMPLOYERS IS A VALID EXCISE OR DUTY UPON THE RELATION OF EMPLOYMENT.

AS TO THIS WE NEED NOT ADD TO OUR OPINION IN STEWARD MACHINE CO. V. DAVIS, SUPRA, WHERE WE CONSIDERED A LIKE QUESTION IN RESPECT OF TITLE IX.

FIFTH. THE TAX IS NOT INVALID AS A RESULT OF ITS EXEMPTIONS.

HERE AGAIN THE OPINION IN STEWARD MACHINE CO. V. DAVIS, SUPRA, SAYS ALL THAT NEED BE SAID.

SIXTH. THE DECREE OF THE COURT OF APPEALS SHOULD BE REVERSED AND THAT OF THE DISTRICT COURT AFFIRMED. REVERSED.

FN1 (1) IF THROUGH AN ADMINISTRATIVE ERROR OR DELAY A PERSON WHO IS RECEIVING A MONTHLY PENSION DIES BEFORE HE RECEIVES THE CORRECT AMOUNT, THE AMOUNT WHICH SHOULD HAVE BEEN PAID TO HIM IS PAID IN A LUMP SUM TO HIS ESTATE (SEC. 203(C)).

(2) IF A PERSON WHO HAS EARNED WAGES IN EACH OF AT LEAST FIVE SEPARATE YEARS SINCE DECEMBER 31, 1936, AND WHO HAS EARNED IN THAT PERIOD MORE THAN $2,000, DIES AFTER ATTAINING THE AGE OF 65, BUT BEFORE HE HAS RECEIVED IN MONTHLY PENSIONS AN AMOUNT EQUAL TO 3 1/2 PERCENT OF THE “WAGES” PAID TO HIM BETWEEN JANUARY 1, 1937, AND THE TIME HE REACHES 65, THEN THERE IS PAID IN A LUMP SUM TO HIS ESTATE THE DIFFERENCE BETWEEN SAID 3 1/2 PERCENT AND THE TOTAL AMOUNT PAID TO HIM DURING HIS LIFE AS MONTHLY PENSIONS (SEC. 203(B)).

(3) IF A PERSON WHO HAS EARNED WAGES SINCE DECEMBER 31, 1936, DIES BEFORE ATTAINING THE AGE OF 65, THEN THERE IS PAID TO HIS ESTATE 3 1/2 PERCENT OF THE “WAGES” PAID TO HIM BETWEEN JANUARY 1, 1937, AND HIS DEATH (SEC. 203(A)).

(4) IF A PERSON HAS, SINCE DECEMBER 31, 1936, EARNED WAGES IN EMPLOYMENT COVERED BY TITLE II, BUT HAS ATTAINED THE AGE OF 65 EITHER WITHOUT WORKING FOR AT LEAST ONE DAY IN EACH OF 5 SEPARATE YEARS SINCE 1936, OR WITHOUT EARNING AT LEAST $2,000 BETWEEN JANUARY 1, 1937, AND THE TIME HE ATTAINS 65, THEN THERE IS PAID TO HIM (OR TO HIS ESTATE, SEC. 204(B)), A LUMP SUM EQUAL TO 3 1/2 PERCENT OF THE “WAGES” PAID TO HIM BETWEEN JANUARY 1, 1937, AND THE TIME HE ATTAINED 65(SEC. 204(A)).

FN2 REPORT TO THE PRESIDENT OF THE COMMITTEE ON ECONOMIC SECURITY, 1935.

FN3 HEARINGS BEFORE THE HOUSE COMMITTEE ON WAYS AND MEANS ON H.R. 4120, 74TH CONGRESS, 1ST SESSION; HEARINGS BEFORE THE SENATE COMMITTEE ON FINANCE ON S. 1130, 74TH CONGRESS, 1ST SESSION.

FN4 SEE REPORT OF THE COMMITTEE ON RECENT SOCIAL TRENDS, 1932, VOL. 1, PP. 8, 502; THOMPSON AND WHELPTON, POPULATION TRENDS IN THE UNITED STATES, PP. 18, 19.

FN5 SEE THE AUTHORITIES COLLECTED AT PP. 54-62 OF THE GOVERNMENT’S BRIEF.

FN6 HIRING AND SEPARATION METHODS IN AMERICAN INDUSTRY, 35 MONTHLY LABOR REVIEW, PP. 1005, 1009.

FN7 ECONOMIC INSECURITY IN OLD AGE (SOCIAL SECURITY BOARD, 1937), P. 15.

FN8 THE SENATE COMMITTEE ESTIMATED, WHEN INVESTIGATING THE PRESENT ACT, THAT OVER ONE HALF OF THE PEOPLE IN THE UNITED STATES OVER 65 YEARS OF AGE ARE DEPENDENT UPON OTHERS FOR SUPPORT. SENATE REPORT, NO. 628, 74TH CONGRESS, 1ST SESSION, P. 4. A SIMILAR ESTIMATE WAS MADE IN THE REPORT TO THE PRESIDENT OF THE COMMITTEE ON ECONOMIC SECURITY, 1935, P. 24.

A REPORT OF THE PENNSYLVANIA COMMISSION ON OLD AGE PENSIONS MADE IN 1919(P. 108) AFTER A STUDY OF 16,281 PERSONS AND INTERVIEWS WITH MORE THAN 3,500 PERSONS 65 YEARS AND OVER SHOWED TWO FIFTHS WITH NO INCOME BUT WAGES AND ONE FOURTH SUPPORTED BY CHILDREN; 1.5 PER CENT HAD SAVINGS AND 11.8 PER CENT HAD PROPERTY.

A REPORT ON OLD AGE PENSIONS BY THE MASSACHUSETTS COMMISSION ON PENSIONS (SENATE NO. 5, 1925, PP. 41, 52) SHOWED THAT IN 1924 TWO THIRDS OF THOSE ABOVE 65 HAD, ALONE OR WITH A SPOUSE, LESS THAN $5,000 OF PROPERTY, AND ONE FOURTH HAD NONE. TWO THIRDS OF THOSE WITH LESS THAN $5,000 AND INCOME OF LESS THAN $1,000 WERE DEPENDENT IN WHOLE OR IN PART ON OTHERS FOR SUPPORT.

A REPORT OF THE NEW YORK STATE COMMISSION MADE IN 1930(LEGIS. DOC. NO. 67, 1930, P. 39) SHOWED A CONDITION OF TOTAL DEPENDENCY AS TO 58 PER CENT OF THOSE 65 AND OVER, AND 62 PER CENT OF THOSE 70 AND OVER.

THE NATIONAL GOVERNMENT HAS FOUND IN CONNECTION WITH GRANTS TO STATES FOR OLD AGE ASSISTANCE UNDER ANOTHER TITLE OF THE SOCIAL SECURITY ACT (TITLE I) THAT IN FEBRUARY, 1937, 38.8 PER CENT OF ALL PERSONS OVER 65 IN COLORADO RECEIVED PUBLIC ASSISTANCE; IN OKLAHOMA THE PERCENTAGE WAS 44.1, AND IN TEXAS 37.5. IN 10 STATES OUT OF 40 WITH PLANS APPROVED BY THE SOCIAL SECURITY BOARD MORE THAN 25 PER CENT OF THOSE OVER 65 COULD MEET THE RESIDENCE REQUIREMENTS AND QUALIFY UNDER A MEANS TEST AND WERE ACTUALLY RECEIVING PUBLIC AID. ECONOMIC INSECURITY IN OLD AGE, SUPRA, P. 15.

FN9 ECONOMIC INSECURITY IN OLD AGE, SUPRA, CHAP. VI, P. 184.

FN10 IV CHANNING, HISTORY OF THE UNITED STATES, P. 404(SOUTH CAROLINA NULLIFICATION); 8 ADAMS, HISTORY OF THE UNITED STATES (NEW ENGLAND NULLIFICATION AND THE HARTFORD CONVENTION).

MR. JUSTICE MCREYNOLDS AND MR. JUSTICE BUTLER ARE OF OPINION THAT THE PROVISIONS OF THE ACT HERE CHALLENGED ARE REPUGNANT TO THE TENTH AMENDMENT, AND THAT THE DECREE OF THE CIRCUIT COURT OF APPEALS SHOULD BE AFFIRMED. ..END :

Title: Freeport Doctrine
Author: Stephen Douglas
Year Published: 1858

LADIES AND GENTLEMEN: The silence with which you have listened to Mr. Lincoln during his hour is creditable to this vast audience, composed of men of various political parties. Nothing is more honorable to any large mass of people assembled for the purpose of a fair discussion, than that kind and respectful attention that is yielded not only to your political friends, but to those who are opposed to you in politics.

I am glad that at last I have brought Mr. Lincoln to the conclusion that he had better define his position on certain political questions to which I called his attention at Ottawa. He there showed no disposition, no inclination, to answer them. I did not present idle questions for him to answer merely for my gratification. I laid the foundation for those interrogatories by showing that they constituted the platform of the party whose nominee he is for the Senate. I did not presume that I had the right to catechise him as I saw proper, unless I showed that his party, or a majority of it, stood upon the platform and were in favor of the propositions upon which my questions were based. I desired simply to know, inasmuch as he had been nominated as the first, last, and only choice of his party, whether he concurred in the platform which that party had adopted for its government. In a few moments I will proceed to review the answers which he has given to these interrogatories; but in order to relieve his anxiety I will first respond to these which he has presented to me. Mark you, he has not presented interrogatories which have ever received the sanction of the party with which I am acting, and hence he has no other foundation for them than his own curiosity.

First, he desires to know if the people of Kansas shall form a Constitution by means entirely proper and unobjectionable and ask admission into the Union as a State, before they have the requisite population for a member of Congress, whether I will vote for that admission. Well, now, I regret exceedingly that he did not answer that interrogatory himself before he put it to me, in order that we might understand, and not be left to infer, on which side he is. Mr. Trumbull, during the last session of Congress, voted from the beginning to the end against the admission of Oregon, although a free State, because she had not the requisite population for a member of Congress. Mr. Trumbull would not consent, under any circumstances, to let a State, free or slave, come into the Union until it had the requisite population. As Mr. Trumbull is in the field, fighting for Mr. Lincoln, I would like to have Mr. Lincoln answer his own question and tell me whether he is fighting Trumbull on that issue or not. But I will answer his question. In reference to Kansas, it is my opinion, that as she has population enough to constitute a slave State, she has people enough for a free State. I will not make Kansas an exceptional case to the other States of the Union. I hold it to be a sound rule of universal application to require a Territory to contain the requisite population for a member of Congress, before it is admitted as a State into the Union. I made that proposition in the Senate in 1856, and I renewed it during the last session, in a bill providing that no Territory of the United States should form a Constitution and apply for admission until it had the requisite population. On another occasion I proposed that neither Kansas, or any other Territory, should be admitted until it had the requisite population. Congress did not adopt any of my propositions containing this general rule, but did make an exception of Kansas. I will stand by that exception. Either Kansas must come in as a free State, with whatever population she may have, or the rule must be applied to all the other Territories alike. I therefore answer at once, that it having been decided that Kansas has people enough for a slave State, I hold that she has enough for a free State. I hope Mr. Lincoln is satisfied with my answer; and now I would like to get his answer to his own interrogatory—whether or not he will vote to admit Kansas before she has the requisite population. I want to know whether he will vote to admit Oregon before that Territory has the requisite population. Mr. Trumbull will not, and the same reason that commits Mr. Trumbull against the admission of Oregon, commits him against Kansas, even if she should apply for admission as a free State. If there is any sincerity, any truth, in the argument of Mr. Trumbull in the Senate, against the admission of Oregon because she had not 93,420 people, although her population was larger than that of Kansas, he stands pledged against the admission of both Oregon and Kansas until they have 93,420 inhabitants. I would like Mr. Lincoln to answer this question. I would like him to take his own medicine. If he differs with Mr. Trumbull, let him answer his argument against the admission of Oregon, instead of poking questions at me.

The next question propounded to me by Mr. Lincoln is, can the people of a Territory in any lawful way, against the wishes of any citizen of the United States, exclude slavery from their limits prior to the formation of a State Constitution? I answer emphatically, as Mr. Lincoln has heard me answer a hundred times from every stump in Illinois, that in my opinion the people of a Territory can, by lawful means, exclude slavery from their limits prior to the formation of a State Constitution. Mr. Lincoln knew that I had answered that question over and over again. He heard me argue the Nebraska bill on that principle all over the State in 1854, in 1855, and in 1856, and he has no excuse for pretending to be in doubt as to my position on that question. It matters not what way the Supreme Court may hereafter decide as to the abstract question whether slavery may or may not go into a Territory under the Constitution, the people have the lawful means to introduce it or exclude it as they please, for the reason that slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations. Those police regulations can only be established by the local legislature, and if the people are opposed to slavery they will elect representatives to that body who will by unfriendly legislation effectually prevent the introduction of it into their midst. If, on the contrary, they are for it, their legislation will favor its extension. Hence, no matter what the decision of the Supreme Court may be on that abstract question, still the right of the people to make a slave Territory or a free Territory is perfect and complete under the Nebraska bill. I hope Mr. Lincoln deems my answer satisfactory on that point.

In this connection, I will notice the charge which he has introduced in relation to Mr. Chase’s amendment. I thought that I had chased that amendment out of Mr. Lincoln’s brain at Ottawa; but it seems that still haunts his imagination, and he is not yet satisfied. I had supposed that he would be ashamed to press that question further. He is a lawyer, and has been a member of Congress, and has occupied his time and amused you by telling you about parliamentary proceedings. He ought to have known better than to try to palm off his miserable impositions upon this intelligent audience. The Nebraska bill provided that the legislative power, and authority of the said Territory, should extend to all rightful subjects of legislation consistent with the organic act and the Constitution of the United States. It did not make any exception as to slavery, but gave all the power that it was possible for Congress to give, without violating the Constitution to the Territorial Legislature, with no exception or limitation on the subject of slavery at all. The language of that bill which I have quoted, gave the full power and the full authority over the subject of slavery, affirmatively and negatively, to introduce it or exclude it, so far as the Constitution of the United States would permit. What more could Mr. Chase give by his amendment? Nothing. He offered his amendment for the identical purpose for which Mr. Lincoln is using it, to enable demagogues in the country to try and deceive the people.

His amendment was to this effect. It provided that the Legislature should have the power to exclude slavery: and General Cass suggested, “why not give the power to introduce as well as exclude?” The answer was, they have the power already in the bill to do both. Chase was afraid his amendment would be adopted if he put the alternative proposition and so make it fair both ways, but would not yield. He offered it for the purpose of having it rejected. He offered it, as he has himself avowed over and over again, simply to make capital out of it for the stump. He expected that it would be capital for small politicians in the country, and that they would make an effort to deceive the people with it, and he was not mistaken, for Lincoln is carrying out the plan admirably. Lincoln knows that the Nebraska bill, without Chase’s amendment, gave all the power which the Constitution would permit. Could Congress confer any more? Could Congress go beyond the Constitution of the country? We gave all a full grant, with no exception in regard to slavery one way or the other. We left that question as we left all others, to be decided by the people for themselves, just as they pleased. I will not occupy my time on this question. I have argued it before all over Illinois. I have argued it in this beautiful city of Freeport; I have argued it in the North, the South, the East, and the West, avowing the same sentiments and the same principles. I have not been afraid to avow my sentiments up here for fear I would be trotted down into Egypt.

The third question which Mr. Lincoln presented is, if the Supreme Court of the United States shall decide that a State of this Union cannot exclude slavery from its own limits, will I submit to it? I am amazed that Lincoln should ask such a question. [“A school-boy knows better.”] Yes, a school-boy does know better. Mr. Lincoln’s object is to cast an imputation upon the Supreme Court. He knows that there never was but one man in America, claiming any degree of intelligence or decency, who ever for a moment pretended such a thing. It is true that the Washington Union, in an article published on the 17th of last December, did put forth that doctrine, and I denounced the article on the floor of the Senate, in a speech which Mr. Lincoln now pretends was against the President. The Union had claimed that slavery had a right to go into the free States, and that any provision in the Constitution or laws of the free States to the contrary were null and void. I denounced it in the Senate, as I said before, and I was the first man who did. Lincoln’s friends, Trumbull, and Seward, and Hale, and Wilson, land the whole Black Republican side of the Senate, were silent.They left it to me to denounce it. And what was the reply made to me on that occasion? Mr. Toombs, of Georgia, got up and undertook to lecture me on the ground that I ought not to have deemed the article worthy of notice, and ought not to have replied to it; that there was not one man, woman or child south of the Potomac, in any slave State, who did not repudiate any such pretension. Mr. Lincoln knows that that reply was made on the spot, and yet now he asks this question. He might as well ask me, suppose Mr. Lincoln should steal a horse, would I sanction it; and it would be as genteel in me to ask him, in the event he stole a horse, what ought to be done with him. He casts an imputation upon the Supreme Court of the United States, by supposing that they would violate the Constitution of the United States. I tell him that such a thing is not possible. It would be an act of moral treason that no man on the bench could ever descend to. Mr. Lincoln himself would never in his partisan feelings so far forget what was right as to be guilty of such an act.

The fourth question of Mr. Lincoln is, are you in favor of acquiring additional territory, in disregard as to how such acquisition may affect the Union on the slavery questions? This question is very ingeniously and cunningly put.

The Black Republican creed lays it down expressly, that under no circumstances shall we acquire any more territory unless slavery is first prohibited in the country. I ask Mr. Lincoln whether he is in favor of that proposition. Are you [addressing Mr. Lincoln] opposed to the acquisition of any more territory, under any circumstances, unless slavery is prohibited in it? That he does not like to answer. When I ask him whether he stands up to that article in the platform of his party, he turns, Yankee-fashion, and without answering it, asks me whether I am in favor of acquiring territory without regard to how it may affect the Union on the slavery question. I answer that whenever it becomes necessary, in our growth and progress, to acquire more territory, that I am in favor of it, without reference to the question of slavery, and when we have acquired it, I will leave the people free to do as they please, either to make it slave or free territory, as they prefer. It is idle to tell me or you that we have territory enough. Our fathers supposed that we had enough when our territory extended to the Mississippi river, but a few years’ growth and expansion satisfied them that we needed more, and the Louisiana territory, from the West branch of the Mississippi to the British possessions, was acquired. Then we acquired Oregon, then California and New Mexico. We have enough now for the present, but this is a young and a growing nation. It swarms as often as a hive of bees, and as new swarms are turned out each year, there must be hives in which they can gather and make their honey. In less than fifteen years, if the same progress that has distinguished this country for the last fifteen years continues, every foot of vacant land between this and the Pacific ocean, owned by the United States, will be occupied.Will you not continue to increase at the end of fifteen years as well as now? I tell you, increase, and multiply, and expand, is the law of this nation’s existence. You cannot limit this great Republic by mere boundary lines, saying, “thus far shalt thou go, and no further.” Any one of you gentlemen might as well say to a son twelve years old that he is big enough, and must not grow any larger, and in order to prevent his growth put a hoop around him to keep him to his present size. What would be the result? Either the hoop must burst and be rent asunder, or the child must die. So it would be with this great nation. With our natural increase, growing with a rapidity unknown in any other part of the globe, with the tide of emigration that is fleeing from despotism in the old world to seek refuge in our own, there is a constant torrent pouring into this country that requires more land, more territory upon which to settle, and just as fast as our interests and our destiny require additional territory in the North, in the South, or on the Islands of the ocean, I am for it, and when we acquire it, will leave the people, according to the Nebraska bill, free to do as they please on the subject of slavery and every other question.

I trust now that Mr. Lincoln will deem himself answered on his four points. He racked his brain so much in devising these four questions that he exhausted himself, and had not strength enough to invent the others. As soon as he is able to hold a council with his advisers, Lovejoy, Farnsworth, and Fred Douglass, he will frame and propound others. [“Good, good.”] You Black Republicans who say good, I have no doubt think that they are all good men. I have reason to recollect that some people in this country think that Fred Douglass is a very good man. The last time I came here to make a speech, while talking from the stand to you, people of Freeport, as I am doing to-day, I saw a carriage, and a magnificent one it was, drive up and take a position on the outside of the crowd; a beautiful young lady was sitting on the box-seat, whilst Fred Douglass and her mother reclined inside, and the owner of the carriage acted as driver. I saw this in your own town. [“What of it?”] All I have to say of it is this, that if you, Black Republicans, think that the negro ought to be on a social equality with your wives and daughters, and ride in a carriage with your wife, whilst you drive the team, you have perfect right to do so. I am told that one of Fred Douglass’s kinsmen, another rich black negro, is now traveling in this part of the State making speeches for his friend Lincoln as the champion of black men. [“What have you to say against it?”] All I have to say on that subject is, that those of you who believe that the negro is your equal and ought to be on an equality with you socially, politically, and legally, have a right to entertain those opinions, and of course will vote for Mr. Lincoln.

I have a word to say on Mr. Lincoln’s answer to the interrogatories contained in my speech at Ottawa, and which he has pretended to reply to here to-day. Mr. Lincoln makes a great parade of the fact that I quoted a platform as having been adopted by the Black Republican party at Springfield in 1854, which, it turns out, was adopted at another place. Mr. Lincoln loses sight of the thing itself in his ecstacies over the mistake I made in stating the place where it was done. He thinks that that platform was not adopted on the right “spot.”

When I put the direct questions to Mr. Lincoln to ascertain whether he now stands pledged to that creed—to the unconditional repeal of the Fugitive Slave law, a refusal to admit any more slave States into the Union even if the people want them, a determination to apply the Wilmot Proviso, not only to all the territory we now have, but all that we may hereafter acquire, he refused to answer, and his followers say, in excuse, that the resolutions upon which I based my interrogatories were not adopted at the “right spot.” Lincoln and his political friends are great on “spots.” In Congress, as a representative of this State, he declared the Mexican war to be unjust and infamous, and would not support it, or acknowledge his own country to be right in the contest, because he said that American blood was not shed on American soil in the “right spot.” And now he cannot answer the questions I put to him at Ottawa because the resolutions I read were not adopted at the “right spot.” It may be possible that I was led into an error as to the spot on which the resolutions I then read were proclaimed, but I was not, and am not in error as to the fact of their forming the basis of the creed of the Republican party when that party was first organized. I will state to you the evidence I had, and upon which I relied for my statement that the resolutions in question were adopted at Springfield on the 5th of October, 1854. Although I was aware that such resolutions had been passed in this district, and nearly all the northern Congressional Districts and County Conventions, I had not noticed whether or not they had been adopted by any State Convention. In 1856, a debate arose in Congress between Major Thomas L. Harris, of the Springfield District, and Mr. Norton, of the Joliet District, on political matters connected with our State, in the course of which, Major Harris quoted those resolutions as having been passed by the first Republican State Convention that ever assembled in Illinois. I knew that Major Harris was remarkable for his accuracy, that he was a very conscientious and sincere man, and I also noticed that Norton did not question the accuracy of this statement.I therefore took it for granted that it was so, and the other day when I concluded to use the resolutions at Ottawa, I wrote to Charles H. Lanphier, editor of the State Register, at Springfield, calling his attention to them, telling him that I had been informed that Major Harris was lying sick at Springfield, and desiring him to call upon him and ascertain all the facts concerning the resolutions, the time and the place where they were adopted. In reply, Mr. Lanphier sent me two copies of his paper, which I have here. The first is a copy of the State Register, published at Springfield, Mr. Lincoln’s own town, on the 16th of October 1854, only eleven days after the adjournment of the Convention, from which I desire to read the following:

“During the late discussions in this city, Lincoln made a speech, to which Judge Douglas replied. In Lincoln’s speech he took the broad ground that, according to the Declaration of Independence, the whites and blacks are equal. From this he drew the conclusion, which he several times repeated, that the white man had no right to pass laws for the government of the black man without the nigger’s consent. This speech of Lincoln’s was heard and applauded by all the Abolitionists assembled in Springfield. So soon as Mr. Lincoln was done speaking, Mr. Codding arose and requested all the delegates to the Black Republican Convention to withdraw into the Senate chamber. They did so, and after long deliberation, they laid down the following Abolition platform as the platform on which they stood. We call the particular attention of all our readers to it.”

Then follows the identical platform, word for word, which I read at Ottawa. Now, that was published in Mr. Lincoln’s own town, eleven days after the Convention was held, and it has remained on record up to this day never contradicted.

When I quoted the resolutions at Ottawa and questioned Mr. Lincoln in relation to them, he said that his name was on the committee that reported them, but he did not serve, nor did he think he served, because he was, or thought he was, in Tazewell county at the time the Convention was in session. He did not deny that the resolutions were passed by the Springfield Convention. He did not know better, and evidently thought that they were, but afterward his friends declared that they had discovered that they varied in some respects from the resolutions passed by that Convention. I have shown you that I had good evidence for believing that the resolutions had been passed at Springfield. Mr. Lincoln ought to have known better; but not a word is said about his ignorance on the subject, whilst I, notwithstanding the circumstances, am accused of forgery.

Now, I will show you that if I have made a mistake as to the place where these resolutions were adopted—and when I get down to Springfield I will investigate the matter and see whether or not I have—that the principles they enunciate were adopted as the Black Republican platform [“white, white”], in the various counties and Congressional Districts throughout the north end of the State in 1854. This platform was adopted in nearly every county that gave a Black Republican majority for the Legislature in that year, and here is a man [pointing to Mr. Denio, who sat on the stand near Deacon Bross] who knows as well as any living man that it was the creed of the Black Republican party at that time. I would be willing to call Denio as a witness, or any other honest man belonging to that party. I will now read the resolutions adopted at the Rockford Convention on the 30th of August, 1854, which nominated Washburne for Congress. You elected him on the following platform:

Resolved, That the continued and increasing aggressions of slavery in our country are destructive of the best rights of a free people, and that such aggressions cannot be successfully resisted without the united political action of all good men.

Resolved, That the citizens of the United States hold in their hands peaceful, constitutional and efficient remedy against the encroachments of the slave power, the ballot-box, and, if that remedy is boldly and wisely applied, the principles of liberty and eternal justice will be established.

Resolved, That we accept this issue forced upon us by the slave power, and, in defense of freedom, will co-operate and be known as Republicans, pledged to the accomplishment of the following purposes:

To bring the Administration of the Government back to the control of first principles; to restore Kansas and Nebraska to the position of free Territories; to repeal and entirely abrogate the Fugitive Slave law; to restrict slavery to those States in which it exists; to prohibit the admission of any more slave States into the Union; to exclude slavery from all the Territories over which the General Government has exclusive jurisdiction, and to resist the acquisition of any more Territories unless the introduction of slavery therein forever shall have been prohibited.

Resolved, That in furtherance of these principles we will use such constitutional and lawful means as shall seem best adapted to their accomplishment, and that we will support no man for office under the General or State Government who is not positively committed to the support of these principles, and whose personal character and conduct is not a guaranty that he is reliable and shall abjure all party allegiance and ties.

Resolved, That we cordially invite persons of all former political parties whatever in favor of the object expressed in the above resolutions to unite with us in carrying them into effect.

Well, you think that is a very good platform, do you not? If you do, if you approve it now, and think it is all right, you will not join with those men who say that I libel you by calling these your principles, will you. Now, Mr. Lincoln complains; Mr. Lincoln charges that I did you and him injustice by saying that this was the platform of your party. I am told that Washburne made a speech in Galena last night, in which he abused me awfully for bringing to light this platform, on which he was elected to Congress. He thought that you had forgotten it, as he and Mr. Lincoln desires to. He did not deny but that you had adopted it, and that he had subscribed to and was pledged by it, but he did not think it was fair to call it up and remind the people that it was their platform.

But I am glad to find you are more honest in your abolitionism than your leaders, by avowing that it is your platform, and right in your opinion.

In the adoption of that platform, you not only declared that you would resist the admission of any more slave States, and work for the repeal of the Fugitive Slave law, but you pledged yourselves not to vote for any man for State or Federal offices who was not committed to these principles. You were thus committed. Similar resolutions to those were adopted in your county Convention here, and now with your admissions that they are your platform and embody your sentiments now as they did then, what do you think of Mr. Lincoln, your candidate for the U. S. Senate, who is attempting to dodge the responsibility of this platform, because it was not adopted in the right spot. I thought that it was adopted in Springfield, but it turns out it was not, that it was adopted at Rockford, and in the various counties which comprise this Congressional District. When I get into the next district, I will show that the same platform was adopted there, and so on through the State, until I nail the responsibility of it upon the back of the Black Republican party throughout the State.

A voice— “Couldn’t you modify and call it brown?”

Mr. Douglas—Not a bit. I thought that you were becoming a little brown when your members in Congress voted for the Crittenden-Montgomery bill, but since you have backed out from that position and gone back to Abolitionism, you are black and not brown.

Gentlemen, I have shown you what your platform was in 1854.You still adhere to it. The same platform was adopted by nearly all the counties where the Black Republican party had a majority in 1854. I wish now to call your attention to the action of your representatives in the Legislature when they assembled together at Springfield. In the first place, you must remember that this was the organization of a new party. It is so declared in the resolutions themselves, which say that you are going to dissolve all old party ties and call the new party Republican. The old Whig party was to have its throat cut from ear to ear, and the Democratic party was to be annihilated and blotted out of existence, whilst in lieu of these parties the Black Republican party was to be organized on this Abolition platform. You know who the chief leaders were in breaking up and destroying these two great parties. Lincoln on the one hand and Trumbull on the other, being disappointed politicians, and having retired or been driven to obscurity by an outraged constituency because of their political sins, formed a scheme to abolitionize the two parties and lead the old line Whigs and old line Democrats captive, bound hand and foot, into the Abolition camp. Giddings, Chase, Fred Douglass and Lovejoy were here to christen them whenever they were brought in. Lincoln went to work to dissolve the old line Whig party. Clay was dead, and although the sod was not yet green on his grave, this man undertook to bring into disrepute those great Compromise measures of 1850, with which Clay and Webster were identified. Up to 1854 the old Whig party and the Democratic party had stood on a common platform so far as this slavery question was concerned. You Whigs and we Democrats differed about the bank, the tariff, distribution, the specie circular and the sub-treasury, but we agreed on this slavery question and the true mode of preserving the peace and harmony of the Union. The Compromise measures of 1850 were introduced by Clay, were defended by Webster, and supported by Cass, and were approved by Fillmore, and sanctioned by the National men of both parties. They constituted a common plank upon which both Whigs and Democrats stood. In 1852 the Whig party, in its last National Convention at Baltimore, indorsed and approved these measures of Clay, and so did the National Convention of the Democratic party, held that same year. Thus the old line Whigs and the old line Democrats stood pledged to the great principle of self-government, which guaranties to the people of each Territory the right to decide the slavery question for themselves. In 1854, after the death of Clay and Webster, Mr. Lincoln, on the part of the Whigs, undertook to Abolitionize the Whig party, by dissolving it, transferring the members into the Abolition camp and making them train under Giddings, Fred Douglass, Lovejoy, Chase, Farnsworth, and other Abolition leaders. Trumbull undertook to dissolve the Democratic party by taking old Democrats into the Abolition camp. Mr. Lincoln was aided in his efforts by many leading Whigs throughout the State. Your member of Congress, Mr. Washburne, being one of the most active. Trumbull was aided by many renegades from the Democratic party, among whom were John Wentworth, Tom Turner, and others, with whom you are familiar.

[Mr. Turner, who was one of the moderators, here interposed and said that he had drawn the resolutions which Senator Douglas had read.]

Mr. Douglas—Yes, and Turner says that he drew these resolutions. [“Hurra for Turner, ” “Hurra for Douglas.”] That is right, give Turner cheers for drawing the resolutions if you approve them. If he drew those resolutions he will not deny that they are the creed of the Black Republican party.

Mr. Turner—” They are our creed exactly.”

Mr. Douglas—And yet Lincoln denies that he stands on them. Mr. Turner says that the creed of the Black Republican party is the admission of no more slave States, and yet Mr. Lincoln declares that he would not like to be placed in a position where he would have to vote for them. All I have to say to friend Lincoln is, that I do not think there is much danger of his being placed in such a position. As Mr. Lincoln would be very sorry to be placed in such an embarrassing position as to be obliged to vote on the admission of any more slave States, I propose, out of mere kindness, to relieve him from any such necessity.

When the bargain between Lincoln and Trumbull was completed for Abolitionizing the Whig and Democratic parties, they “spread” over the State, Lincoln still pretending to be an old line Whig, in order to “rope in” the Whigs, and Trumbull pretending to be as good a Democrat as he ever was, in order to coax the Democrats over into the Abolition ranks. They played the part that “decoy ducks” play down on the Potomac river. In that part of the country they make artificial ducks and put them on the water in places where the wild ducks are to be found, for the purpose of decoying them. Well, Lincoln and Trumbull played the part of these “decoy ducks” and deceived enough old line Whigs and old line Democrats to elect a Black Republican Legislature. When that Legislature met, the first thing it did was to elect as Speaker of the House, the very man who is now boasting that he wrote the Abolition platform on which Lincoln will not stand. I want to know of Mr. Turner whether or not, when he was elected, he was a good embodiment of Republican principles?

Mr. Turner—” I hope I was then and am now.”

Mr. Douglas—He swears that he hopes he was then and is now. He wrote that Black Republican platform, and is satisfied with it now. I admire and acknowledge Turner’s honesty. Every man of you know that what he says about these resolutions being the platform of the Black Republican party is true, and you also know that each one of these men who are shuffling and trying to deny it are only trying to cheat the people out of their votes for the purpose of deceiving them still more after the election. I propose to trace this thing a little further, in order that you can see what additional evidence there is to fasten this revolutionary platform upon the Black Republican party. When the Legislature assembled, there was an United States Senator to elect in the place of Gen. Shields, and before they proceeded to ballot, Lovejoy insisted on laying down certain principles by which to govern the party. It has been published to the world and satisfactorily proven that there was, at the time the alliance was made between Trumbull and Lincoln to Abolitionize the two parties, an agreement that Lincoln should take Shields’s place in the United States Senate, and Trumbull should have mine so soon as they could conveniently get rid of me. When Lincoln was beaten for Shields’s place, in a manner I will refer to in a few minutes, he felt very sore and restive; his friends grumbled, and some of them came out and charged that the most infamous treachery had been practiced against him; that the bargain was that Lincoln was to have had Shields’s place, and Trumbull was to have waited for mine, but that Trumbull having the control of a few Abolitionized Democrats, he prevented them from voting for Lincoln, thus keeping him within a few votes of an election until he succeeded in forcing the party to drop him and elect Trumbull. Well, Trumbull having cheated Lincoln, his friends made a fuss, and in order to keep them and Lincoln quiet, the party were obliged to come forward, in advance, at the last State election, and make a pledge that they would go for Lincoln and nobody else. Lincoln could not be silenced in any other way.

Now, there are a great many Black Republicans of you who do not know this thing was done. [“White, white,” and great clamor.] I wish to remind you that while Mr. Lincoln was speaking there was not a Democrat vulgar and blackguard enough to interrupt him. But I know that the shoe is pinching you. I am clinching Lincoln now, and you are scared to death for the result. I have seen this thing before. I have seen men make appointments for joint discussions, and the moment their man has been heard, try to interrupt and prevent a fair hearing of the other side. I have seen your mobs before, and defy your wrath. [Tremendous applause.] My friends, do not cheer, for I need my whole time. The object of the opposition is to occupy my attention in order to prevent me from giving the whole evidence and nailing this double dealing on the Black Republican party. As I have before said, Lovejoy demanded a declaration of principles on the part of the Black Republicans of the Legislature before going into an election for United States Senator. He offered the following preamble and resolutions which I hold in my hand:

WHEREAS, Human slavery is a violation of the principles of natural and revealed rights; and whereas, the fathers of the Revolution, fully imbued with the spirit of these principles, declared freedom to be the inalienable birthright of all men; and whereas, the preamble to the Constitution of the United States avers that that instrument was ordained to establish justice, and secure the blessings of liberty to ourselves and our posterity; and whereas, in furtherance of the above principles, slavery was forever prohibited in the old North-west Territory, and more recently in all that Territory lying west and north of the State of Missouri, by the act of the Federal Government; and whereas, the repeal of the prohibition last referred to, was contrary to the wishes of the people of Illinois, a violation of an implied compact, long deemed sacred by the citizens of the United States, and a wide departure from the uniform action of the General Government in relation to the extension of slavery; therefore,

Resolved, by the House of Representatives, the Senate concurring therein, That our Senators in Congress be instructed, and our Representatives requested to introduce, if not otherwise introduced, and to vote for a bill to restore such prohibition to the aforesaid Territories, and also to extend a similar prohibition to all territory which now belongs to the United States, or which may hereafter come under their jurisdiction.

Resolved, That our Senators in Congress be instructed, and our Representatives requested, to vote against the admission of any State into the Union, the Constitution of which does not prohibit slavery, whether the territory out of which such State may have been formed shall have been acquired by conquest, treaty, purchase, or from original territory of the United States.

Resolved, That our Senators in Congress be instructed, and our Representatives requested, to introduce and vote for a bill to repeal an act entitled “an act respecting fugitives from justice and persons escaping from the service of their masters;” and, failing in that, for such a modification of it as shall secure the right of habeas corpus and trial by jury before the regularly-constituted authorities of the State, to all persons claimed as owing service or labor.

Those resolutions were introduced by Mr. Lovejoy immediately preceding the election of Senator. They declared first, that the Wilmot Proviso must be applied to all territory north of 36 deg. 30 min. Secondly, that it must be applied to all territory south of 36 deg. 30 min. Thirdly, that it must be applied to all the territory now owned by the United States, and finally, that it must be applied to all territory hereafter to be acquired by the United States. The next resolution declares that no more slave States shall be admitted into this Union under any circumstances whatever, no matter whether they are formed out of territory now owned by us or that we may hereafter acquire, by treaty, by Congress, or in any manner whatever. The next resolution demands the unconditional repeal of the Fugitive Slave law, although its unconditional repeal would leave no provision for carrying out that clause of the Constitution of the United States which guaranties the surrender of fugitives. If they could not get an unconditional repeal, they demanded that that law should be so modified as to make it as nearly useless as possible. Now, I want to show you who voted for these resolutions. When the vote was taken on the first resolution it was decided in the affirmative—yeas 41, nays 32. You will find that this is a strict party vote, between the Democrats on the one hand, and the Black Republicans on the other. [Cries of “White, white,” and clamor.] I know your name, and always call things by their right name. The point I wish to call your attention to, is this: that these resolutions were adopted on the 7th day of February, and that on the 8th they went into an election for a United States Senator, and that day every man who voted for these resolutions, with but two exceptions, voted for Lincoln for the United States Senate. [“Give us their names.”] I will read the names over to you if you want them, but I believe your object is to occupy my time.

On the next resolution the vote stood—yeas 33, nays 40, and on the third resolution—yeas 35, nays 47. I wish to impress it upon you, that every man who voted for those resolutions, with but two exceptions, voted on the next day for Lincoln for U. S. Senator. Bear in mind that the members who thus voted for Lincoln were elected to the Legislature pledged to vote for no man for office under the State or Federal Government who was not committed to this Black Republican platform. They were all so pledged. Mr. Turner, who stands by me, and who then represented you, and who says that he wrote those resolutions, voted for Lincoln, when he was pledged not to do so unless Lincoln was in favor of those resolutions. I now ask Mr. Turner [turning to Mr. Turner], did you violate your pledge in voting for Mr. Lincoln, or did he commit himself to your platform before you cast your vote for him?

I could go through the whole list of names here and show you that all the Black Republicans in the Legislature, who voted for Mr. Lincoln, had voted on the day previous for these resolutions. For instance, here are the names of Sargent and Little of Jo Daviess and Carroll, Thomas J. Turner of Stephenson, Lawrence of Boone and McHenry, Swan of Lake, Pinckney of Ogle county, and Lyman of Winnebago. Thus you see every member from your Congressional District voted for Mr. Lincoln, and they were pledged not to vote for him unless he was committed to the doctrine of no more slave States, the prohibition of slavery in the Territories, and the repeal of the Fugitive Slave law. Mr. Lincoln tells you today that he is not pledged to any such doctrine. Either Mr. Lincoln was then committed to those propositions, or Mr. Turner violated his pledges to you when he voted for him. Either Lincoln was pledged to each one of those propositions, or else every Black Republican Representative from this Congressional District violated his pledge of honor to his constituents by voting for him. I ask you which horn of the dilemma will you take? Will you hold Lincoln up to the platform of his party, or will you accuse every Representative you had in the Legislature of violating his pledge of honor to his constituents? There is no escape for you. Either Mr. Lincoln was committed to those propositions, or your members violated their faith. Take either horn of the dilemma you choose. There is no dodging the question; I want Lincoln’s answer. He says he was not pledged to repeal the Fugitive Slave law, that he does not quite like to do it; he will not introduce a law to repeal it, but thinks there ought to be some law; he does not tell what it ought to be; upon the whole, he is altogether undecided, and don’t know what to think or do. That is the substance of his answer upon the repeal of the Fugitive Slave law. I put the question to him distinctly, whether he indorsed that part of the Black Republican platform which calls for the entire abrogation and repeal of the Fugitive Slave law. He answers no! that he does not indorse that, but he does not tell what he is for, or what he will vote for. His answer is, in fact, no answer at all. Why cannot he speak out and say what he is for and what he will do?

In regard to there being no more slave States, he is not pledged to that. He would not like, he says, to be put in a position where he would have to vote one way or another upon that question. I pray you, do not put him in a position that would embarrass him so much. Gentlemen, if he goes to the Senate, he may be put in that position, and then which way will he vote?

[A Voice—”How will you vote?”]

Mr. Douglas—I will vote for the admission of just such a State as by the form of their Constitution the people show they want; if they want slavery, they shall have it; if they prohibit slavery it shall be prohibited. They can form their institutions to please themselves, subject only to the Constitution; and I for one stand ready to receive them into the Union. Why cannot your Black Republican candidates talk out as plain as that when they are questioned?

I do not want to cheat any man out of his vote. No man is deceived in regard to my principles if I have the power to express myself in terms explicit enough to convey my ideas.

Mr. Lincoln made a speech when he was nominated for the United States Senate which covers all these Abolition platforms. He there lays down a proposition so broad in its abolitionism as to cover the whole ground.

“In my opinion it [the slavery agitation] will not cease until a crisis shall have been reached and passed. ‘A house divided against itself cannot stand.’ I believe this Government cannot endure permanently half slave and half free. I do not expect 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 further 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 it forward till it shall become alike lawful in all the States—old as well as new, North as well as South.”

There you find that Mr. Lincoln lays down the doctrine that this Union cannot endure divided as our fathers made it, with free and slave States. He says they must all become one thing, or all the other; that they must all be free or all slave, or else the Union cannot continue to exist. It being his opinion that to admit any more slave States, to continue to divide the Union into free and slave States, will dissolve it. I want to know of Mr. Lincoln whether he will vote for the admission of another slave State.

He tells you the Union cannot exist unless the States are all free or all slave; he tells you that he is opposed to making them all slave, and hence he is for making them all free, in order that the Union may exist; and yet he will not say that he will not vote against another slave State, knowing that the Union must be dissolved if he votes for it. I ask you if that is fair dealing? The true intent and inevitable conclusion to be drawn from his first Springfield speech is, that he is opposed to the admission of any more slave States under any circumstance. If he is so opposed, why not say so? If he believes this Union cannot endure divided into free and slave States, that they must all become free in order to save the Union, he is bound as an honest man, to vote against any more slave States. If he believes it he is bound to do it. Show me that it is my duty in order to save the Union to do a particular act, and I will do it if the Constitution does not prohibit it. I am not for the dissolution of the Union under any circumstances. I will pursue no course of conduct that will give just cause for the dissolution of the Union. The hope of the friends of freedom throughout the world rests upon the perpetuity of this Union. The down-trodden and oppressed people who are suffering under European despotism all look with hope and anxiety to the American Union as the only resting place and permanent home of freedom and self-government.

Mr. Lincoln says that he believes that this Union cannot continue to endure with slave States in it, and yet he will not tell you distinctly whether he will vote for or against the admission of any more slave States, but says he would not like to be put to the test. I do not think he will be put to the test. I do not think that the people of Illinois desire a man to represent them who would not like to be put to the test on the performance of a high constitutional duty. I will retire in shame from the Senate of the United States when I am not willing to be put to the test in the performance of my duty. I have been put to severe tests. I have stood by my principles in fair weather and in foul, in the sunshine and in the rain. I have defended the great principles of self-government here among you when Northern sentiment ran in a torrent against me, and I have defended that same great principle when Southern sentiment came down like an avalanche upon me. I was not afraid of any test they put to me. I knew I was right—I knew my principles were sound—I knew that the people would see in the end that I had done right, and I knew that the God of Heaven would smile upon me if I was faithful in the performance of my duty.

Mr. Lincoln makes a charge of corruption against the Supreme Court of the United States, and two Presidents of the United States, and attempts to bolster it up by saying that I did the same against the Washington Union. Suppose I did make that charge of corruption against the Washington Union, when it was true, does that justify him in making a false charge against me and others? That is the question I would put. He says that at the time the Nebraska bill was introduced, and before it was passed, there was a conspiracy between the Judges of the Supreme Court, President Pierce, President Buchanan and myself by that bill, and the decision of the court to break down the barrier and establish slavery all over the Union. Does he not know that that charge is historically false as against President Buchanan? He knows that Mr. Buchanan was at that time in England, representing this country with distinguished ability at the Court of St. James, that he was there for a long time before, and did not return for a year or more after. He knows that to be true, and that fact proves his charge to be false as against Mr. Buchanan. Then again, I wish to call his attention to the fact that at the time the Nebraska bill was passed, the Dred Scott case was not before the Supreme Court at all; it was not upon the docket of the Supreme Court; it had not been brought there, and the Judges in all probability knew nothing of it. Thus the history of the country proves the charge to be false as against them. As to President Pierce, his high character as a man of integrity and honor is enough to vindicate him from such a charge; and as to myself, I pronounce the charge an infamous lie, whenever and wherever made, and by whomsoever made. I am willing that Mr. Lincoln should go and rake up every public act of mine, every measure I have introduced, report I have made, speech delivered, and criticise them, but when he charges upon me a corrupt conspiracy for the purpose of perverting the institutions of the country, I brand it as it deserves. I say the history of the country proves it to be false, and that it could not have been possible at the time. But now he tries to protect himself in this charge, because I made a charge against the Washington Union. My speech in the Senate against the Washington Union was made because it advocated a revolutionary doctrine, by declaring that the free States had not the right to prohibit slavery within their own limits. Because I made that charge against the Washington Union, Mr. Lincoln says it was a charge against Mr. Buchanan. Suppose it was; is Mr. Lincoln the peculiar defender of Mr. Buchanan? Is he so interested in the Federal Administration, and so bound to it, that he must jump to the rescue and defend it from every attack that I may make against it? I understand the whole thing. The Washington Union, under that most corrupt of all men, Cornelius Wendell, is advocating Mr. Lincoln’s claim to the Senate. Wendell was the printer of the last Black Republican House of Representatives; he was a candidate before the present Democratic House, but was ignominiously kicked out, and then he took the money which he had made out of the public printing by means of the Black Republicans, bought the Washington Union, and is now publishing it in the name of the Democratic party, and advocating Mr. Lincoln’s election to the Senate. Mr. Lincoln therefore considers an attack upon Wendell and his corrupt gang as a personal attack upon him. This only proves what I have charged, that there is an alliance between Lincoln and his supporters, and the Federal office-holders of this State, and Presidential aspirants out of it, to break me down at home.

Mr. Lincoln feels bound to come in to the rescue of the Washington Union. In that speech which I delivered in answer to the Washington Union, I made it distinctly against the Union, and against the Union alone. I did not choose to go beyond that. If I have occasion to attack the President’s conduct, I will do it in language that will not be misunderstood. When I differed with the President, I spoke out so that you all heard me. That question passed away; it resulted in the triumph of my principle by allowing the people to do as they please, and there is an end of the controversy. Whenever the great principle of self-government—the right of the people to make their own Constitution, and come into the Union with slavery or without it, as they see proper, shall again arise, you will find me standing firm in defense of that principle, and fighting whoever fights it. If Mr. Buchanan stands, as I doubt not he will, by the recommendation contained in his Message, that hereafter all State Constitutions ought to be submitted to the people before the admission of the State into the Union, he will find me standing by him firmly, shoulder to shoulder, in carrying it out. I know Mr. Lincoln’s object; he wants to divide the Democratic party, in order that he may defeat me and get to the Senate.

Mr. Lincoln’s Rejoinder

MY Friends: It will readily occur to you that I cannot, in half an hour, notice all the things that so able a man as Judge Douglas can say in an hour and a half; and I hope, therefore, if there be any thing that he has said upon which you would like to hear something from me, but which I omit to comment upon, you will bear in mind that it would be expecting an impossibility for me to go over his whole ground. I can but take up some of the points that he has dwelt upon, and employed my half-hour specially on them.

The first thing I have to say to you is a word in regard to Judge Douglas’s declaration about the “vulgarity and blackguardism” in the audience—that no such thing, as he says, was shown by any Democrat while I was speaking. Now, I only wish, by way of reply on this subject, to say that while I was speaking, I used no “vulgarity or blackguardism” toward any Democrat.

Now, my friends, I come to all this long portion of the Judge’s speech—perhaps half of it—which he has devoted to the various resolutions and platforms that have been adopted in the different counties in the different Congressional Districts, and in the Illinois Legislature—which he supposes are at variance with the positions I have assumed before you to-day. It is true that many of these resolutions are at variance with the positions I have here assumed. All I have to ask is that we talk reasonably and rationally about it. I happen to know, the Judge’s opinion to the contrary notwithstanding, that I have never tried to conceal my opinions, nor tried to deceive any one in reference to them. He may go and examine all the members who voted for me for United States Senator in 1855, after the election of 1854. They were pledged to certain things here at home, and were determined to have pledges from me, and if he will find any of these persons who will tell him any thing inconsistent with what I say now, I will resign, or rather retire from the race, and give him no more trouble. The plain truth is this: At the introduction of the Nebraska policy, we believed there was a new era being introduced in the history of the Republic, which tended to the spread and perpetuation of slavery.But in our opposition to that measure we did not agree with one another in every thing. The people in the north end of the State were for stronger measures of opposition than we of the central and Southern portions of the State, but we were all opposed to the Nebraska doctrine. We had that one feeling and that one sentiment in common. You at the north end met in your Conventions and passed your resolutions. We in the middle of the State and further south did not hold such Conventions and pass the same resolutions, although we had in general a common view and a common sentiment. So that these meetings which the Judge has alluded to, and the resolutions he has read from, were local, and did not spread over the whole State. We at last met together in 1856, from all parts of the State, and we agreed upon a common platform. You, who held more extreme notions, either yielded those notions, or if not wholly yielding them, agreed to yield them practically, for the sake of embodying the opposition to the measures which the opposite party were pushing forward at that time. We met you then, and if there was any thing yielded, it was for practical purposes. We agreed then upon a platform for the party throughout the entire State of Illinois, and now we are all bound as a party, to that platform. And I say here to you, if any one expects of me—in the case of my election—that I will do any thing not signified by our Republican platform and my answers here to-day, I tell you very frankly that person will be deceived. I do not ask for the vote of any one who supposes that I have secret purposes or pledges that I dare not speak out. Cannot the Judge be satisfied? If he fears, in the unfortunate case of my election, that my going to Washington will enable me to advocate sentiments contrary to those which I expressed when you voted for and elected me, I assure him that his fears are wholly needless and groundless. Is the Judge really afraid of any such thing? I’ll tell you what he is afraid of. He is afraid we’ll all pull together. This is what alarms him more than any thing else. For my part, I do hope that all of us, entertaining a common sentiment in opposition to what appears to us a design to nationalize and perpetuate slavery, will waive minor differences on questions which either belong to the dead pastor the distant future, and all pull together in this struggle. What are your sentiments? If it be true, that on the ground which I occupy—ground which I occupy as frankly and boldly as Judge Douglas does his—my views, though partly coinciding with yours, are not as perfectly in accordance with your feelings as his are, I do say to you in all candor, go for him and not for me. I hope to deal in all things fairly with Judge Douglas, and with the people of the State, in this contest. And if I should never be elected to any office, I trust I may go down with no stain of falsehood upon my reputation—notwithstanding the hard opinions Judge Douglas chooses to entertain of me.

The Judge has again addressed himself to the abolition tendencies of a speech of mine, made at Springfield in June last. I have so often tried to answer what he is always saying on that melancholy theme, that I almost turn with disgust from the discussion – from the repetition of an answer to it. I trust that nearly all of this intelligent audience have read that speech. If you have, I may venture to leave it to you to inspect it closely, and see whether it contains any of those “bugaboos” which frighten Judge Douglas.

The Judge complains that I did not fully answer his questions. If I have the sense to comprehend and answer those questions, I have done so fairly. If it can be pointed out to me how I can more fully and fairly answer him, I aver I have not the sense to see how it is to be done. He says I do not declare I would in any event vote for the admission of a slave State into the Union. If I have been fairly reported he will see that I did give an explicit answer to his interrogatories, I did not merely say that I would dislike to be put to the test; but I said clearly, if I were put to the test, and a Territory from which slavery had been excluded should present herself with a State Constitution sanctioning slavery—a most extraordinary thing and wholly unlikely to happen—I did not see how I could avoid voting for her admission. But he refuses to understand that I said so, and he wants this audience to understand that I did not say so. Yet it will be so reported in the printed speech that he cannot help seeing it.

He says if I should vote for the admission of a slave State I would be voting for a dissolution of the Union, because I hold that the Union cannot permanently exist half slave and half free. I repeat that I do not believe this Government can endure permanently half slave and half free, yet I do not admit, nor does it at all follow, that the admission of a single slave State will permanently fix the character and establish this as a universal slave nation. The Judge is very happy indeed at working up these quibbles. Before leaving the subject of answering questions I aver as my confident belief, when you come to see our speeches in print, that you will find every question which he has asked me more fairly and boldly and fully answered than he has answered those which I put to him. Is not that so? The two speeches may be placed side by side; and I will venture to leave it to impartial judges whether his questions have not been more directly and circumstantially answered than mine.

Judge Douglas says he made a charge upon the editor of the Washington Union, alone, of entertaining a purpose to rob the States of their power to exclude slavery from their limits. I undertake to say, and I make the direct issue, that he did not make his charge against the editor of the Union alone. I will undertake to prove by the record here, that he made that charge against more and higher dignitaries than the editor of the Washington Union. I am quite aware that he was shirking and dodging around the form in which he put it, but I can make it manifest that he leveled his “fatal blow” against more persons than this Washington editor. Will he dodge it now by alleging that I am trying to defend Mr. Buchanan against the charge? Not at all. Am I not making the same charge myself? I am trying to show that you, Judge Douglas, are a witness on my side. I am not defending Buchanan, and I will tell Judge Douglas that in my opinion, when he made that charge, he had an eye farther north than he was to-day. He was then fighting against people who called him a Black Republican and an Abolitionist. It is mixed all through his speech, and it is tolerably manifest that his eye was a great deal farther north than it is to-day. The Judge says that though he made this charge, Toombs got up and declared there was not a man in the United States, except the editor of the Union, who was in favor of the doctrines put forth in that article. And thereupon, I understand that the Judge withdrew the charge. Although he had taken extracts from the newspaper, and then from the Lecompton Constitution, to show the existence of a conspiracy to bring about a “fatal blow,” by which the States were to be deprived of the right of excluding slavery, it all went to pot as soon as Toombs got up and told him it was not true. It reminds me of the story that John Phoenix, the California railroad surveyor, tells. He says they started out from the Plaza to the Mission of Dolores. They had two ways of determining distances. One was by a chain and pins taken over the ground. The other was by a “go-it-ometer”—an invention of his own—a three-legged instrument, with which he computed a series of triangles between the points. At night he turned to the chain-man to ascertain what distance they had come, and found that by some mistake he had merely dragged the chain over the ground without keeping any record. By the “go-it-ometer” he found he had made ten miles. Being skeptical about this, he asked a drayman who was passing how far it was to the plaza. The drayman replied it was just half a mile, and the surveyor put it down in his book—just as Judge Douglas says, after he had made his calculations and computations, he took Toombs’s statement. I have no doubt that after Judge Douglas had made his charge, he was as easily satisfied about its truth as the surveyor was of the drayman’s statement of the distance to the plaza. Yet it is a fact that the man who put forth all that matter which Douglas deemed a “fatal blow” at State sovereignty, was elected by the Democrats as public printer.

Now, gentlemen, you may take Judge Douglas’s speech of March 22d, 1858, beginning about the middle of page 21, and reading to the bottom of page 24, and you will find the evidence on which I say that he did not make his charge against the editor of the Union alone. I cannot stop to read it, but I will give it to the reporters. Judge Douglas said:

“Mr. President, you here find several distinct propositions advanced boldly by the Washington Union editorially and apparently authoritatively, and every man who questions any of them is denounced as an Abolitionist, a Freesoiler, a fanatic. The propositions are, first, that the primary object of all government at its original institution is the protection of persons and property; second, that the Constitution of the United States declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and that, therefore, thirdly, all State laws, whether organic or otherwise, which prohibit the citizens of one State from settling in another with their slave property, and especially declaring it forfeited, are direct violations of the original intention of the Government and Constitution of the United States; and fourth, that the emancipation of the slaves of the Northern States was a gross outrage on the rights of property, inasmuch as it was involuntarily done on the part of the owner.”

“Remember that this article was published in the Union on the 17th of November, and on the 18th appeared the first article giving the adhesion of the Union to the Lecompton Constitution. It was in these words:

” `KANSAS AND HER CONSTITUTION.—The vexed question is settled. The problem is solved. The dead point of danger is passed. All serious trouble to Kansas affairs is over and gone’—

“And a column, nearly, of the same sort. Then, when you come to look into the Lecompton Constitution, you find the same doctrine incorporated in it which was put forth editorially in the Union. What is it?

” `ARTICLE 7, Section 1. The right of property is before and higher than any constitutional sanction; and the right of the owner of a slave to such slave and its increase is the same and as invariable as the right of the owner of any property whatever.’

“Then in the schedule is a provision that the Constitution may be amended after 1864 by a two-thirds vote.

” `But no alteration shall be made to affect the right of property in the ownership of slaves.’

“It will be seen by these clauses in the Lecompton Constitution that they are identical in spirit with this authoritative article in the Washington Union of the day previous to its indorsement of this Constitution.

“When I saw that article in the Union of the 17th of November, followed by the glorification of the Lecompton Constitution on the 18th of November, and this clause in the Constitution asserting the doctrine that a State has no right to prohibit slavery within its limits, I saw that there was a fatal blow being struck at the sovereignty of the States of this Union.”

Here he says, “Mr. President, you here find several distinct propositions advanced boldly, and apparently authoritatively.” By whose authority, Judge Douglas? Again, he says in another place, “It will be seen by these clauses in the Lecompton Constitution, that they are identical in spirit with this authoritative article.” By whose authority? Who do you mean to say authorized the publication of these articles? He knows that the Washington Union is considered the organ of the Administration. I demand of Judge Douglas by whose authority he meant to say those articles were published, if not by the authority of the President of the United States and his Cabinet? I defy him to show whom he referred to, if not to these high functionaries in the Federal Government. More than this, he says the articles in that paper and the provisions of the Lecompton Constitution are “identical,” and being identical, he argues that the authors are co-operating and conspiring together. He does not use the word “conspiring,” but what other construction can you put upon it? He winds up with this:

“When I saw that article in the Union of the 17th of November, followed by the glorification of the Lecompton Constitution on the 18th of November, and this clause in the Constitution asserting the doctrine that a State has no right to prohibit slavery within its limits, I saw that there was a fatal blow being struck at the sovereignty of the States of this Union.”

I ask him if all this fuss was made over the editor of this newspaper. It would be a terribly “fatal blow” indeed which a single man could strike, when no President, no Cabinet officer, no member of Congress, was giving strength and efficiency to the moment. Out of respect to Judge Douglas’s good sense I must believe he didn’t manufacture his idea of the “fatal” character of that blow out of such a miserable scapegrace as he represents that editor to be. But the Judge’s eye is farther south now. Then, it was very peculiarly and decidedly north. His hope rested on the idea of visiting the great “Black Republican” party, and making it the tail of his new kite. He knows he was then expecting from day to day to turn Republican and place himself at the head of our organization. He has found that these despised “Black Republicans” estimate him by a standard which he has taught them none too well. Hence he is crawling back into his old camp, and you will find him eventually installed in full fellowship among those whom he was then battling, and with whom he now pretends to be at such fearful variance. [Loud applause and cries of “go on, go on.”] I cannot, gentlemen, my time has expired.

Transcript of Federal Judiciary Act (1789)

The founders of the new nation believed that the establishment of a national judiciary was one of their most important tasks. Yet Article III of the Constitution of the United States, the provision that deals with the judiciary branch of government, is markedly smaller than Articles I and II, which created the legislative and executive branches.

The generality of Article III of the Constitution raised questions that Congress had to address in the Judiciary Act of 1789. These questions had no easy answers, and the solutions to them were achieved politically. The First Congress decided that it could regulate the jurisdiction of all Federal courts, and in the Judiciary Act of 1789, Congress established with great particularity a limited jurisdiction for the district and circuit courts, gave the Supreme Court the original jurisdiction provided for in the Constitution, and granted the Court appellate jurisdiction in cases from the Federal circuit courts and from the state courts where those courts rulings had rejected Federal claims. The decision to grant Federal courts a jurisdiction more restrictive than that allowed by the Constitution represented a recognition by the Congress that the people of the United States would not find a full-blown Federal court system palatable at that time.

For nearly all of the next century the judicial system remained essentially as established by the Judiciary Act of 1789. Only after the country had expanded across a continent and had been torn apart by civil war were major changes made. A separate tier of appellate circuit courts created in 1891 removed the burden of circuit riding from the shoulders of the Supreme Court justices, but otherwise left intact the judicial structure.

With minor adjustments, it is the same system we have today. Congress has continued to build on the interpretation of the drafters of the first judiciary act in exercising a discretionary power to expand or restrict Federal court jurisdiction. While opinions as to what constitutes the proper balance of Federal and state concerns vary no less today than they did two centuries ago, the fact that today’s Federal court system closely resembles the one created in 1789 suggests that the First Congress performed its job admirably.

Congress of the United States,
begun and held at the City of New York on Wednesday the fourth of March one thousand seven hundred and eighty nine.

CHAP. XX.–An Act to establish the Judicial Courts of the United States.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August. That the associate justices shall have precedence according to the date of their commissions, or when the commissions of two or more of them bear date on the same day, according to their respective ages.

SEC. 2. And be it further enacted, That the United States shall be, and they hereby are divided into thirteen districts, to be limited and called as follows, to wit: one to consist of that part of the State of Massachusetts which lies easterly of the State of New Hampshire, and to be called Maine District; one to consist of the State of New Hampshire, and to be called New Hampshire District; one to consist of the remaining part of the State of Massachusetts, and to be called Massachusetts district; one to consist of the State of Connecticut, and to be called Connecticut District; one to consist of the State of New York, and to be called New York District; one to consist of the State of New Jersey, and to be called New Jersey District; one to consist of the State of Pennsylvania, and to be called Pennsylvania District; one to consist of the State of Delaware, and to be called Delaware District; one to consist of the State of Maryland, and to be called Maryland District; one to consist of the State of Virginia, except that part called the District of Kentucky, and to be called Virginia District; one to consist of the remaining part of the State of Virginia, and to be called Kentucky District; one to consist of the State of South Carolina, and to be called South Carolina District; and one to consist of the State of Georgia, and to be called Georgia District.

SEC. 3. And be it further enacted, That there be a court called a District Court, in each of the afore mentioned districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge, and shall hold annually four sessions, the first of which to commence as follows, to wit: in the districts of New York and of New Jersey on the first, in the district of Pennsylvania on the second, in the district of Connecticut on the third, and in the district of Delaware on the fourth, Tuesdays of November next; in the districts of Massachusetts, of Maine, and of Maryland, on the first, in the district of Georgia on the second, and in the districts of New Hampshire, of Virginia, and of Kentucky, on the third Tuesdays of December next; and the other three sessions progressively in the respective districts on the like Tuesdays of every third calendar month afterwards, and in the district of South Carolina, on the third Monday in March and September, the first Monday in July, and the second Monday in December of each and every year, commencing in December next; and that the District Judge shall have power to hold special courts at his discretion. That the stated District Court shall be held at the places following, to wit: in the district of Maine, at Portland and Pownalsborough alternately, beginning at the first; in the district of New Hampshire, at Exeter and Portsmouth alternately, beginning at the first; in the district of Massachusetts, at Boston and Salem alternately, beginning at the first; in the district of Connecticut, alternately at Hartford and New Haven, beginning at the first; in the district of New York, at New York; in the district of New Jersey, alternately at New Brunswick and Burlington, beginning at the first; in the district of Pennsylvania, at Philadelphia and York Town alternately, beginning at the first; in the district of Delaware, alternately at Newcastle and Dover, beginning at the first; in the district of Maryland, alternately at Baltimore and Easton, beginning at the first; in the district of Virginia, alternately at Richmond and Williamsburgh, beginning at the first; in the district of Kentucky, at Harrodsburgh; in the district of South Carolina, at Charleston; and in the district of Georgia, alternately at Savannah and Augusta, beginning at the first; and that the special courts shall be held at the same place in each district as the stated courts, or in districts that have two, at either of them, in the discretion of the judge, or at such other place in the district, as the nature of the business and his discretion shall direct. And that in the districts that have but one place for holding the District Court, the records thereof shall be kept at that place; and in districts that have two, at that place in each district which the judge shall appoint.

SEC. 4. And be it further enacted, That the before mentioned districts, except those of Maine and Kentucky, shall be divided into three circuits, and be called the eastern, the middle, and the southern circuit. That the eastern circuit shall consist of the districts of New Hampshire, Massachusetts, Connecticut and New York; that the middle circuit shall consist of the districts of New Jersey, Pennsylvania, Delaware, Maryland and Virginia; and that the southern circuit shall consist of the districts of South Carolina and Georgia, and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court, and the district judge of such districts, any two of whom shall constitute a quorum: Provided, That no district judge shall give a vote in any case of appeal or error from his own decision; but may assign the reasons of such his decision.

SEC. 5. And be it further enacted, That the first session of the said circuit court in the several districts shall commence at the times following, to wit: in New Jersey on the second, in New York on the fourth, in Pennsylvania on the eleventh, in Connecticut on the twenty-second, and in Delaware on the twenty-seventh, days of April next; in Massachusetts on the third, in Maryland on the seventh, in South Carolina on the twelfth, in New Hampshire on the twentieth, in Virginia on the twenty-second, and in Georgia on the twenty-eighth, days of May next, and the subsequent sessions in the respective districts on the like days of every sixth calendar month afterwards, except in South Carolina, where the session of the said court shall commence on the first, and in Georgia where it shall commence on the seventeenth day of October, and except when any of those days shall happen on a Sunday, and then the session shall commence on the next day following. And the sessions of the said circuit court shall be held in the district of New Hampshire, at Portsmouth and Exeter alternately, beginning at the first; in the district of Massachusetts, at Boston; in the district of Connecticut, alternately at Hartford and New Haven, beginning at the last; in the district of New York, alternately at New York and Albany, beginning at the first; in the district of New Jersey, at Trenton; in the district of Pennsylvania, alternately at Philadelphia and Yorktown, beginning at the first; in the district of Delaware, alternately at New Castle and Dover, beginning at the first; in the district of Maryland, alternately at Annapolis and Easton, beginning at the first; in the district of Virginia, alternately at Charlottesville and Williamsburgh, beginning at the first; in the district of South Carolina, alternately at Columbia and Charleston, beginning at the first; and in the district of Georgia, alternately at Savannah and Augusta, beginning at the first. And the circuit courts shall have power to hold special sessions for the trial of criminal causes at any other time at their discretion, or at the discretion of the Supreme Court.

SEC. 6. And be it further enacted, That the Supreme Court may, by any one or more of its justices being present, be adjourned from day to day until a quorum be convened; and that a circuit court may also be adjourned from day to day by any one of its judges, or if none are present, by the marshal of the district until a quorum be convened; and that a district court, in case of the inability of the judge to attend at the commencement of a session, may by virtue of a written order from the said judge, directed to the marshal of the district, be adjourned by the said marshal to such day, antecedent to the next stated session of the said court, as in the said order shall be appointed; and in case of the death of the said judge, and his vacancy not being supplied, all process, pleadings and proceedings of what nature soever, pending before the said court, shall be continued of course until the next stated session after the appointment and acceptance of the office by his successor.

SEC. 7. And be it [further] enacted, That the Supreme Court, and the district courts shall have power to appoint clerks for their respective courts, and that the clerk for each district court shall be clerk also of the circuit court in such district, and each of the said clerks shall, before he enters upon the execution of his office, take the following oath or affirmation, to wit: “I, A. B., being appointed clerk of , do solemnly swear, or affirm, that I will truly and faithfully enter and record all the orders, decrees, judgments and proceedings of the said court, and that I will faithfully and impartially discharge and perform all the duties of my said office, according to the best of my abilities and understanding. So help me God.” Which words, so help me God, shall be omitted in all cases where an affirmation is admitted instead of an oath. And the said clerks shall also severally give bond, with sufficient sureties, (to be approved of by the Supreme and district courts respectively) to the United States, in the sum of two thousand dollars, faithfully to discharge the duties of his office, and seasonably to record the decrees, judgments and determinations of the court of which he is clerk.

SEC. 8. And be it further enacted, That the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath or affirmation, to wit: “I, A. B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States. So help me God.”

SEC. 9. And be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.

SEC. 10. And be it further enacted, That the district court in Kentucky district shall, besides the jurisdiction aforesaid, have jurisdiction of all other causes, except of appeals and writs of error, hereinafter made cognizable in a circuit court, and shall proceed therein in the same manner as a circuit court, and writs of error and appeals shall lie from decisions therein to the Supreme Court in the same causes, as from a circuit court to the Supreme Court, and under the same regulations. And the district court in Maine district shall, besides the jurisdiction herein before granted, have jurisdiction of all causes, except of appeals and writs of error herein after made cognizable in a circuit court, and shall proceed therein in the same manner as a circuit court: And writs of error shall lie from decisions therein to the circuit court in the district of Massachusetts in the same manner as from other district courts to their respective circuit courts.

SEC. 11. And be it further enacted, That the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State. And shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ, nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions herein after provided.

SEC. 12. And be it further enacted, That if a suit be commenced in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court; and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court, to be held in the district where the suit is pending, or if in the district of Maine to the district court next to be holden therein, or if in Kentucky district to the district court next to be holden therein, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause, and any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid, in such court of the United States, the cause shall there proceed in the same manner as if it had been brought there by original process. And any attachment of the goods or estate of the defendant by the original process, shall hold the goods or estate so attached, to answer the final judgment in the same manner as by the laws of such state they would have been holden to answer final judgment, had it been rendered by the court in which the suit commenced. And if in any action commenced in a state court, the title of land be concerned, and the parties are citizens of the same state, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, shall state to the court and make affidavit if they require it, that he claims and shall rely upon a right or title to the land, under a grant from a state other than that in which the suit is pending, and produce the original grant or an exemplification of it, except where the loss of public records shall put it out of his power, and shall move that the adverse party inform the court, whether he claims a right or title to the land under a grant from the state in which the suit is pending; the said adverse [party] shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial, and if he informs that he does claim under such grant, the party claiming under the grant first mentioned may then, on motion, remove the cause for trial to the next circuit court to be holden in such district, or if in the district of Maine, to the court next to be holden therein; or if in Kentucky district, to the district court next to be holden therein; but if he is the defendant, shall do it under the same regulations as in the before-mentioned case of the removal of a cause into such court by an alien; and neither party removing the cause, shall be allowed to plead or give evidence of any other title than that by him stated as aforesaid, as the ground of his claim; and the trial of issues in fact in the circuit courts shall, in all suits, except those of equity, and of admiralty, and maritime jurisdiction, be by jury.

SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

SEC. 14. And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.——Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

SEC. 15. And be it further enacted, That all the said courts of the United States, shall have power in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order, to produce books or writings, it shall be lawful for the courts respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit; and if a defendant shall fail to comply with such order, to produce books or writings, it shall be lawful for the courts respectively on motion as aforesaid, to give judgment against him or her by default.

SEC. 16. And be it further enacted, That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law.

SEC. 17. And be it further enacted, That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.

SEC. 18. And be it further enacted, That when in a circuit court, judgment upon a verdict in a civil action shall be entered, execution may on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as they may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk’s office of said court, a petition for a new trial. And if such petition be there filed within said term of forty-two days, with a certificate thereon from either of the judges of such court, that he allows the same to be filed, which certificate he may make or refuse at his discretion, execution shall of course be further stayed to the next session of said court. And if a new trial be granted, the former judgment shall be thereby rendered void.

SEC . 19. And be it further enacted, That it shall be the duty of circuit courts, in causes in equity and of admiralty and maritime jurisdiction, to cause the facts on which they found their sentence or decree, fully to appear upon the record either from the pleadings and decree itself, or a state of the case agreed by the parties, or their counsel, or if they disagree by a stating of the case by the court.

SEC. 20. And be it further enacted, That where in a circuit court, a plaintiff in an action, originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, or a libellant, upon his own appeal, less than the sum or value of three hundred dollars, he shall not be allowed, but at the discretion of the court, may be adjudged to pay costs.

SEC. 21. And be it further enacted, That from final decrees in a district court in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeds the sum or value of three hundred dollars, exclusive of costs, an appeal shall be allowed to the next circuit court, to be held in such district. Provided nevertheless, That all such appeals from final decrees as aforesaid, from the district court of Maine, shall be made to the circuit court, next to be holden after each appeal in the district of Massachusetts.

SEC. 22. And be it further enacted, That final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be reexamined, and reversed or affirmed in a circuit court, holden in the same district, upon a writ of error, whereto shall be annexed and returned therewith at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court, or a justice of the Supreme Court, the adverse party having at least twenty days’ notice. And upon a like process, may final judgments and decrees in civil actions, and suits in equity in a circuit court, brought there by original process, or removed there from courts of the several States, or removed there by appeal from a district court where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, be re-examined and reversed or affirmed in the Supreme Court, the citation being in such case signed by a judge of such circuit court, or justice of the Supreme Court, and the adverse party having at least thirty days’ notice. But there shall be no reversal in either court on such writ of error for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability. And every justice or judge signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good.

SEC. 23. And be it further enacted, That a writ of error as aforesaid shall be a supersedeas and stay execution in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk’s office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of. Until the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas; and whereupon such writ of error the Supreme or a circuit court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion.

SEC. 24. And be it further enacted, That when a judgment or decree shall be reversed in a circuit court, such court shall proceed to render such judgment or pass such decree as the district court should have rendered or passed; and the Supreme Court shall do the same on reversals therein, except where the reversal is in favour of the plaintiff, or petitioner in the original suit, and the damages to be assessed, or matter to be decreed, are uncertain, in which case they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in causes that are removed before them by writs of error, but shall send a special mandate to the circuit court to award execution thereupon.

SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

SEC. 26. And be it further enacted, That in all causes brought before either of the courts of the United States to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other speciality, where the forfeiture, breach or non-performance shall appear, by the default or confession of the defendant, or upon demurrer, the court before whom the action is, shall render judgment therein for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury.

SEC. 27. And be it further enacted, That a marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be to attend the district and circuit courts when sitting therein, and also the Supreme Court in the District in which that court shall sit. And to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint as there shall be occasion, one or more deputies, who shall be removable from office by the judge of the district court, or the circuit court sitting within the district, at the pleasure of either; and before he enters on the duties of his office, he shall become bound for the faithful performance of the same, by himself and by his deputies before the judge of the district court to the United States, jointly and severally, with two good and sufficient sureties, inhabitants and freeholders of such district, to be approved by the district judge, in the sum of twenty thousand dollars, and shall take before said judge, as shall also his deputies, before they enter on the duties of their appointment, the following oath of office: “I, A. B., do solemnly swear or affirm, that I will faithfully execute all lawful precepts directed to the marshal of the district of

under the authority of the United States, and true returns make, and in all things well and truly, and without malice or partiality, perform the duties of the office of marshal (or marshal’s deputy, as the case may be) of the district of , during my continuance in said office, and take only my lawful fees. So help me God.”

SEC. 28. And be it further enacted, That in all causes wherein the marshal or his deputy shall be a party, the writs and precepts therein shall be directed to such disinterested person as the court, or any justice or judge thereof may appoint, and the person so appointed, is hereby authorized to execute and return the same. And in case of the death of any marshal, his deputy or deputies shall continue in office, unless otherwise specially removed; and shall execute the same in the name of the deceased, until another marshal shall be appointed and sworn: And the defaults or misfeasances in office of such deputy or deputies in the mean time, as well as before, shall be adjudged a breach of the condition of the bond given, as before directed, by the marshal who appointed them; and the executor or administrator of the deceased marshal shall have like remedy for the defaults and misfeasances in office of such deputy or deputies during such interval, as they would be entitled to if the marshal had continued in life and in the exercise of his said office, until his successor was appointed, and sworn or affirmed: And every marshal or his deputy when removed from office, or when the term for which the marshal is appointed shall expire, shall have power notwithstanding to execute all such precepts as may be in their hands respectively at the time of such removal or expiration of office; and the marshal shall be held answerable for the delivery to his successor of all prisoners which may be in his custody at the time of his removal, or when the term for which he is appointed shall expire, and for that purpose may retain such prisoners in his custody until his successor shall be appointed and qualified as the law directs.

SEC. 29. And be it further enacted, That in cases punishable with death, the trial shall be had in the county where the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence. And jurors in all cases to serve in the courts of the United States shall be designated by lot or otherwise in each State respectively according to the mode of forming juries therein now practised, so far as the laws of the same shall render such designation practicable by the courts or marshals of the United States; and the jurors shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State, and shall be returned as there shall be occasion for them, from such parts of the district from time to time as the court shall direct, so as shall be most favourable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of any part of the district with such services. And writs of venire facias when directed by the court shall issue from the clerk’s office, and shall be served and returned by the marshal in his proper person, or by his deputy, or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the court shall specially appoint for that purpose, to whom they shall administer an oath or affirmation that he will truly and impartially serve and return such writ. And when from challenges or otherwise there shall not be a jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of jurors shall happen, return jurymen de talibus circumstantibus sufficient to complete the pannel; and when the marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested person as the court shall appoint.

SEC. 30. And be it further enacted, That the mode of proof by oral testimony and examination of witnesses in open court shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction, as of actions at common law. And when the testimony of any person shall be necessary in any civil cause depending in any district in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene esse before any justice or judge of any of the courts of the United States, or before any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party or his attorney as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime jurisdiction, or other cases of seizure when a libel shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the depositions so taken shall be retained by such magistrate until he deliver the same with his own hand into the court for which they are taken, or shall , together with a certificate of the reasons as aforesaid of their being taken, and of the notice if any given to the adverse party, be by him the said magistrate sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court that probably it will not be in his power to produce the witnesses there testifying before the circuit court should an appeal be had, and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, that the witnesses are then dead or gone out of the United States, or to a greater distance than as aforesaid from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they are unable to travel and appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, That nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice, which power they shall severally possess, nor to extend to depositions taken in perpetuam rei memoriam, which if they relate to matters that may be cognizable in any court of the United States, a circuit court on application thereto made as a court of equity, may, according to the usages in chancery direct to be taken.

SEC. 31. And be it [further] enacted, That where any suit shall be depending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party who was plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment; and the defendant or defendants are hereby obliged to answer thereto accordingly; and the court before whom such cause may be depending, is hereby empowered and directed to hear and determine the same, and to render judgment for or against the executor or administrator, as the case may require. And if such executor or administrator having been duly served with a scire facias from the office of the clerk of the court where such suit is depending, twenty days beforehand, shall neglect or refuse to become a party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party to the suit. And the executor or administrator who shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a continuance of the same until the next term of the said court. And if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.

SEC. 32. And be it further enacted, That no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes in any of the courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially sit down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects and wants of form, other than those only which the party demurring shall express as aforesaid, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion, and by their rules prescribe.

SEC. 33. And be it further enacted, That for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offence. And copies of the process shall be returned as speedily as may be into the clerk’s office of such court, together with the recognizances of the witnesses for their appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender, and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and the usages of law. And if a person committed by a justice of the supreme or a judge of a district court for an offence not punishable with death, shall afterwards procure bail, and there be no judge of the United States in the district to take the same, it may be taken by any judge of the supreme or superior court of law of such state.

SEC. 34. And be it further enacted, That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.

SEC. 35. And be it further enacted, That in all courts of the United States, the parties may plead and manage their own causes personally or by assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein. And there shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that court shall be holden. And he shall receive as compensation for his services such fees as shall be taxed therefor in the respective courts before which the suits or prosecutions shall be. And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided.

Frederick Augustus Muhlenberg, Speaker of the House of Representatives
John Adams, Vice-President of the United States, and President of the Senate

APPROVED, September the Twenty fourth, 1789.

George Washington, President of the United States

In 1846 a slave named Dred Scott and his wife, Harriet, sued for their freedom in a St. Louis city court. The odds were in their favor. They had lived with their owner, an army surgeon, at Fort Snelling, then in the free Territory of Wisconsin. The Scotts’ freedom could be established on the grounds that they had been held in bondage for extended periods in a free territory and were then returned to a slave state. Courts had ruled this way in the past. However, what appeared to be a straightforward lawsuit between two private parties became an 11-year legal struggle that culminated in one of the most notorious decisions ever issued by the United States Supreme Court.

On its way to the Supreme Court, the Dred Scott case grew in scope and significance as slavery became the single most explosive issue in American politics. By the time the case reached the high court, it had come to have enormous political implications for the entire nation.

On March 6, 1857, Chief Justice Roger B. Taney read the majority opinion of the Court, which stated that slaves were not citizens of the United States and, therefore, could not expect any protection from the Federal Government or the courts. The opinion also stated that Congress had no authority to ban slavery from a Federal territory. This decision moved the nation a step closer to Civil War.

The decision of Scott v. Sanford, considered by legal scholars to be the worst ever rendered by the Supreme Court, was overturned by the 13th and 14th amendments to the Constitution, which abolished slavery and declared all persons born in the United States to be citizens of the United States.

Transcript of Dred Scott v. Sanford (1857)

DECEMBER TERM, 1856.

DRED SCOTT
versus
JOHN F. A. SANDFORD.

Dred Scott, Plaintiff In Error, v. John F. A. Sandford.

I.

• 1. Upon a writ of error to a Circuit Court of the United States, the transcript of the record of all the proceedings in the case is brought before this court, and is open to its inspection and revision.
• 2. When a plea to the jurisdiction, in abatement, is overruled by the court upon demurrer, and the defendant pleads in bar, and upon these pleas the final judgment of the court is in his favor–if the plaintiff brings a writ of error, the judgment of the court upon the plea in abatement is before this court, although it was in favor of the plaintiff–and if the court erred in overruling it, the judgment must be reversed, and a mandate issued to the Circuit Court to dismiss the case for want of jurisdiction.
• 3. In the Circuit Courts of the United States, the record must show that the case is one in which by the Constitution and laws of the United States, the court had jurisdiction–and if this does not appear, and the court gives judgment either for plaintiff or defendant, it is error, and the judgment must be reversed by this court–and the parties cannot by consent waive the objection to the jurisdiction of the Circuit Court.
• 4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.
• 5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were nut numbered among its “people or citizen.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.
• 6. The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.
• 7. Since the adoption of the Constitution of the United States, no state can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.
• 8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens, as to all the rights and privileges enjoyed by them within its dominion, and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.
• 9. The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construct and administered now according to its true meaning and intention when it was formed and adopted.
• 10. The plaintiff having admitted, by his demurrer to the plea in abatement, that his ancestors were imported from Africa and sold as slaves, he is not a citizen of the Slate of Missouri according to the Constitution of the United States, and was not entitled to sue in that character in the Circuit Court.
• 11. This being the case, the judgment of the court below, in favor of the plaintiff of the plea in abatement, was erroneous.

II.

• 1. But if the plea in abatement is not brought up by this writ of error, the objection to the citizenship of the plaintiff is still apparent on the record, as he himself, in making oct his case, states that he is of African descent, was born a slave, and claims that he and his family became entitled to freed in by being taken by their owner to reside in a territory where slavery is prohibited by act of Congress–and that, in addition to this claim, he himself became entitled to freedom being taken to Rock Island, in the State of Illinois–and being free when he was brought back to Missouri, he was by the laws of that State a citizen.
• 2. If, therefore, the facts he states do not give him or his family a right to freedom, the plaintiff is still a slave, and not entitled in sue as a “citizen,” and the judgment of the Circuit Court was erroneous on that ground also, without any reference to the plea in abatement.
• 3. The Circuit Court can give no judgment for plaintiff or defendant in a case where it has not jurisdiction, no matter whether there be a plea in abatement or not. And unless it appears upon the face of the record, when brought here by writ of error, that the Circuit Court had jurisdiction, the judgment must be reversed.The case of Capron v. Van Noorden (2 Cranch, 126) examined, and the principles thereby decided, reaffirmed.
• 4. When the record, as brought here by writ of error, does not show that the Circuit Court had jurisdiction, this court has jurisdiction to revise and correct the error, like any other error in the court below. It does not and cannot dismiss the case for want of jurisdiction here; for that would leave the erroneous judgment of the court below in full force, and the party injured without remedy. But it must reverse the judgment, and, as in any other case of reversal, send a mandate to the Circuit Court to conform its judgment to the opinion of this court.
• 5. The difference of the jurisdiction in this court in the cases of writs of error to State courts and to Circuit Courts of the United States, pointed out; and the mistakes made as to the jurisdiction of this court in the latter case, by confounding it with its limited jurisdiction in the former.
• 6. If the court reverses a judgment upon the ground that it appears by a particular port of the record that the Circuit Court had not jurisdiction, it does not take away the jurisdiction of this court to examine into and correct, by a reversal of the judgement, any other errors, either as to the jurisdiction or any other matter, where it appears from other parts of the tenor that the Circuit Court had fallen into error. On the contrary, it is the daily and familiar practice of this court to reverse on several grounds, where more than one error appears to have been committed. And the error of a Circuit Court in its jurisdiction stands on the same ground, and is to be treated in the same manner as any other error upon which its judgment is founded.
• 7. The decision, therefore, that the judgment of the Circuit Court upon the plea in abatement is erroneous, is no reason why the alleged error apparent in the exception should not also be examined, and the judgment reversed on that ground also, if it disclosed a want of jurisdiction in the Circuit Court. It is often the duty of this court, after having decided that a particular decision of the Circuit Court was erroneous, to examine into other alleged errors, and to correct them if they are found to exist. And this has been uniformly done by this court, when the questions are in any degree connected with the controversy, and the silence of the court might cremate doubts which would lead to further and useless litigation.

III.

• 1. The facts upon which the plaintiff relies did not give him his freedom, and make him a citizen of Missouri.
• 2. The clause in the Constitution authorising Congress to make all needful rules and regulations for the government of the territory and other property of the United States, applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States, in the treaty of peace. It does not apply to territory acquired by the present Federal Government, by treaty or conquest, from a foreign nation.The case of the American and Ocean Insurance Companies v. Canter (1 Peters, 511) referred to and examined, showing that the decision in this case is not in conflict with that opinion, and that the court did not, in the case referred to, decide upon the construction of the clause of the Constitution above mentioned, because the case before them did not make it necessary to decide the question.
• 3. The United States, under the present Constitution, cannot acquire territory to be held as a colony to be governed at its will and pleasure. But it may acquire territory which, at the time, has not a population that fits it to become a State, and still govern it as a Territory until it has a population which, in the judgment of Congress, entitles it to be admitted as a State of the Union.
• 4. During the tine it remains a Territory, Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United State–and may establish a Territorial Government–and the form of this local Government must be regulated by the discretion of Congress, but with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States, in respect to their rights of persons or rights of property.

IV.

• 1. The territory thus acquired, is acquired by the people of the United States for their common and equal benefit, through their agent and trustee, the Federal Government. Congress can exercise no power over the rights of persons or property of a citizen in the Territory which is prohibited by the Constitution. The Government and the citizen, whenever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution.
• 2. Congress have no right to prohibit the citizens of any particular State or States from taking up their home there, while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. The territory is acquired for their equal and common benefit–and if open to any, it must be open to all upon equal and the same terms.
• 3. Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognises as property.
• 4. The Constitution of the United States recognises slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.
• 5. The act of Congress, therefore, prohibiting a citizen of the United States from taking with him his slaves when he removes to the Territory in question to reside, is an exercise of authority over private property which is not warranted by the Constitution–and the removal of the plaintiff, by his owner, to that Territory, gave him no title to freedom.

V.

• 1. The plaintiff himself acquired no title to freedom by being taken, by his owner, to Rock Island, in Illinois, and brought back to Missouri. This court has heretofore decided that the status or condition of a person of African descent depended on the laws of the State in which he resided.
• 2. It has been settled by the decisions of the highest court in Missouri, that by the laws of that State, a slave does not become entitled to his freedom, where the owner takes him to reside in a State where slavery is not permitted, and afterwards brings him back to Missouri. Conclusion. It follows that it is apparent upon the record that the court below erred in its judgment on the plea in abatement and also erred in giving judgment for the defendant, when the exception shows that the plaintiff was not a citizen of the United States. And as the Circuit Court had no jurisdiction, either in the case stated in the plea in abatement, or in the one stated in the exception, its judgment in favor of the defendant is erroneous, and must be reversed.

This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri.

It was an action of trespass vi et armis instituted in the Circuit Court by Scott against Sandford.

Prior to the institution of the present suit, an action was brought by Scott for his freedom in the Circuit Court of St. Louis county, (State court,) where there was a verdict and judgment in his favor. On a writ of error to the Supreme Court of the State, the judgment below was reversed, and the case remanded to the Circuit Court, where it was constituted to await the decision of the case now in question.

The declaration of Scott contained three counts: one, that Sandford had assaulted the plaintiff; one that he had assaulted Harriet Scott, his wife; and one, that he had assaulted Eliza Scott and Lizzie Scott, his children.

Sandford appeared, and filed the following plea:

Dred Scott v. John F. A. Sandford.   Plea to the Jurisdiction of the Court.

April Term, 1854.

And the said John F. A. Sandford, in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action, and each and every of them, (if any such have accrued to the said Dred Scott,) accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to wit; the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify. Wherefore he prays judgment whether this court can or will take farther cognizance of the action aforesaid.

John F. A. Sandford.

To this plea there was a demurrer in the usual form, which was argued in April, 1854, when the court gave judgment that the demurrer should be sustained.

In May, 1854, the defendant, in pursuance of an agreement between counsel, and with the leave of the court, pleaded in bar of the action:

• 1. Not guilty.
• 2. That the plaintiff was a negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the descendant had a right to do.
• 3. That with respect to the wife and daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them, only acted in the same manner, and in virtue of the same legal right.

In the first of these pleas, the plaintiff joined issue; and to the second and third filed replications alleging that the defendant, of his own wrong and without the cause in his second and third pleas alleged, committed the trespasses, &c.

The counsel then filed the following agreed statement of facts, viz:

In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island in the State of Illinois, and held him there as a slave until the month of April or May, 1836, At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Lousiana, acquired by the United States of France, and situated north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet who is named in the second count of the plaintiff’s declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and said Harriet, at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff’s declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.

Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

At the times mentioned in the plaintiff’s declaration, the defendant claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.

Further proof may be given on the trial for either party.

It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court, the judgment below was reversed, and the same remanded to the Circuit Court, where is has been continued to await the decision of this case.

In May 1854, the cause went before a jury. who found the following verdict, viz: “As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, &c., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, &c., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful properly of the defendant.”

Whereupon the court gave judgment for the defendant.

After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions.

On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts, (see agreement above.) No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instruction, viz:

“That upon the facts agreed to by the parties, they ought to find for the plantiff. The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted.”

The court then gave the following instruction to the jury, on motion of the defendant:

“The jury are instructed, that upon the facts In this case, the law is with the defendant” The plaintiff excepted to this instruction.

Upon these exceptions, the case came up to this court.

It was argued at December term, 1855, and ordered to be reargued at the present term.

It was now argued by Mr. Blair and Mr. G. F. Curtis for the plaintiff in error, and by Mr. Geyer and Mr. Johnson for the defendant in error.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case has been twice argued. After the argument of the last term, differences of opinion were found to exist among the members of the court; and as the questions in controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case, and direct a reargument on some of the points, in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion.

There are two leading questions presented by the record:

• 1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And
• 2. If it had jurisdiction, is the judgment it has given erroneous or not?

The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the defendant, in the state of Missouri; and he brought this action in the circuit court of the United States for that district, to assert the title of himself and his family to freedom.

The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the court jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of New York.

The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.

To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, and gave judgment that the defendant should answer over. And he therefore put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error.

Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement.

That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.

If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous and must be reversed.

It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defeats by pleading over, and thereby admitted the jurisdiction of the court.

But in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been adverted to. This peculiar and limited jurisdiction has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England, and in the different states of the Union which have adopted the common-law rules.

In these last-mentioned courts, where their character and rank are analagous to that of a Circuit Court of the United States; in other words, where they are what the law terms courts of general jurisdiction; they are presumed to have jurisdiction, unless the contrary appears. No averment in the pleadings of the plaintiff is necessary, in order to give jurisdiction. If the defendant objects to it, he must plead it specially, and unless the fact On which he relics is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction Cannot be disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of that description a party who pleads over in bar, when a plea to the jurisdiction has been ruled against him, does or does not waive his plea; nor whether upon a judgment in his favor on the pleas in bar, and a writ of error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by common-law pleaders, can have no influence in the decision in this court. Because, under the Constitution and laws of the United States, the rules which govern the pleadings in its courts, in questions of jurisdiction, stand on different principles and are regulated by different laws.

This difference arises, as we have said, from the peculiar character of the Government of the United States. For although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it; and neither the legislative, executive, nor judicial departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined; and they are not authorized to take cognizance of any case which does not come within the description therein specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should show, in his pleadings, that the suit he briars is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any oversight of the Circuit Court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed, as in the case of a common-law English or State court, unless the contrary appeared. But the record, when it comes before the appellate court, must show, affirmatively, that the inferior court had authority, under the Constitution, to hear and determine the case. And if the plaintiff claims a right to sue in a Circuit Court of the United States, under that provision of the Constitution which gives jurisdiction in controversies between citizens of discreet States, he must distinctly aver in his pleadings that they are citizens of different States; add he cannot maintain his suit without showing that fact in the pleadings.

This point was decided in the case of Bingham v. Cabot, (in 3 Dall., 382), and ever since adhered to by the court. And in Jackson v. Ashton (8 Pet., 148), it was held that the objection to which it was open could not be waived by the opposite party, because consent of parties could not give jurisdiction.

It is needless to accumulate cases on this subject. Those already referred to, and the cases of Capron v. Van Noorden, (in 2 Cr, 126), and Montalet v. Murray; (4 Cr., 46), are sufficient to show the rule of which we have spoken. The case of Capron v. Van Noorden strikingly illutrates the difference between a common-law court and a court of the United States.

If, however, the fact of citizenship is averred in the declaration, and the defendant does not deny it, and put it in issue by pica in abatement, he cannot offer evidence at the trial to disprove it, and consequently cannot avail himself of the objection in the appellate court, unless the defect should be apparent in some other part of the record. For if there is no plea in abatement, and the want of jurisdiction does not appear in any other part of the transcript brought up by the writ of error, the undisputed averment of citizenship in the declaration must be taken in this court to be true. In this case, the citizenship is averred, but it is denied by the defendant in the manner required by the rules of pleading, and the fact upon which the denial is based is admitted by the demurrer. And, if the plea and demurrer, and judgment of the court below upon it, are before us upon this record, the question to be decided is, whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.

We think they are before us. The plea in abatement and the judgment of the court upon it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as such; and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States v Smith (11 Wheat., 172,) this court said, that the case being brought up by writ of error, the whole record was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily under consideration; and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.

This is certainly a very serious question, and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our duty to meet it and decide it.

The question is simply this: Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves.

The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, a sociated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have beeen negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.

We proceed to examine the case as presented by the pleadings.

The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the tall rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens or this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must enquire who, at that time, were recognized as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern; without doubting for a moment the correctness of this opinion.

And in no nation was this opinion here firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce, than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.

The legislation of the different colonies furnishes positive and indisputable proof of this fact.

It would be tedious, in this opinion, to enumerate the various laws they passed upon this subject. It will be sufficient, as a sample of the legislation which then generally prevailed throughout the British colonies, to give the laws of two of them; one being still a large slaveholding State, and the other the first State in which slavery ceased to exist.

The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring “that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court, where such marriage so happens, shall think fit; to be applied by them towards the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid, with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid.”

The other colonial law to which we refer was passed by Massachusetts in 1705, (chap. 6.) It is entitled “An act for the better preventing of a spurious and mixed issue,” &c.; and it provides, that “if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted.”

And “that none of her Majesty’s English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorised to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the support of the Government within this province, and the other moiety to him or them that shall inform and sue for the same in any of her Majesty’s courts of record within the province, by bill, plaint, or information.”

We give both of these laws in the words used by the respective legislative bodies, because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood, the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the men who framed the Declaration of Independence and established the State Constitutions and Governments. They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.

We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions.

The language of the Declaration of Independence is equally conclusive:

It begins by declaring “that when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.”

It then proceeds to say: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men–high in literary acquirements–high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no farther description or definition was necessary.

But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure. And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.

No one of that race had ever migrated to the United Slates voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a state in every other part of the Union.

Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them.

It is very true, that in that portion of the Union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States: for some of the States, where it had ceased or nearly ceased to exist, were actively engaged in the slave trade, procuring cargoes on the coast of Africa, and transporting, them for sale to those parts of the Union where their labor was found to be profitable, and suited to the climate and productions, And this tragic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced in its worst form–that is, in the seizure and transportation–the people could have regarded those who were emancipated as entitled to equal rights with themselves.

And we may here again refer, in support of this proposition, to the plain and unequivocal language of the laws of the several States, some passed after the Declaration of Independence and before the Constitution was adopted, and some since the Government went into operation.

We need not refer, on this point, particularly to the laws of the present slaveholding States. Their statute books are full of provisions in relation to this class, in the same spirit with the Maryland law which we have before quoted. They have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and leg slating in relation to them upon the same principle which prevailed at the time of the Declaration of Independence. As relates to these States, it is too plain for argument, that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure. And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States; and the correctness of this decision is recognized, canal the same doctrine affirmed, in 1 Meigs’s Tenn. Reports, 331.

And if we turn to the legislation of the States where slavery had worn out, or measures taken for its speedy abolition, we shall find the same opinions and principles equally fixed and equally acted upon.

Thus, Massachusetts, in 1786. passed a law similar to the colonial one of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian, or mulatto, and inflicts a penalty of fifty pounds upon any one who shall join them in marriage; and declares all such marriages absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed and again impressed upon the race, in the careful and deliberate preparation of their revised code published in 1836. This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall, offend, in this respect, to imprisonment, not exceeding six months in the common jail, or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and like the law of 1786, it declares the marriage to be absolutely null and void. It will be seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty.

So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the first to put an end to slavery within its own territory, but was the first to fix a mark of reprobation upon the African slave trade. The law last mentioned was passed in October, 1758, about nine months after the State had ratified and adopted the present Constitution of the United States; and by that law it prohibited its own citizens, under severe penalties, from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in the State to be null and void. But up to the time of the adoption of the Constitution, there is nothing in the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black races in this country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And certainly nothing which would have led the slaveholding States to suppose that Connecticut designed to claim for them, under the new Constitution, the equal rights and privileges and rank of citizens in every other State.

The first step taken by Connecticut upon this subject was as early as 1774, when it passed an act forbidding the further importation of slaves Into the State. But the section containing the prohibition is introduced by the following preamble:

“And whereas the increase of slaves in this State is injurious to the poor, and inconvenient.”

This recital would appear to have been carefully introduced, in order to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon the interest and convenience of the white population–excluding the inference that it might have been intended in any degree for the benefit of the other.

And in the act of 1784, by which the issue of slaves, born after the time therein mentioned, were to be free at a certain age, the section is again introduced by a preamble assigning a similar motive for the act. It is in these words:

“Whereas sound policy requires that the abolition of slavery should be effected as soon as may be consistent with the rights of individuals, and the public safety and welfare”–showing that the right of property in the master was to be protected, and that the measure was one of policy, and to prevent the injury and inconvenience, to the whites, of a slave population in the State.

And still further pursuing its legislation, we find that in the same statute passed in 1774, which prohibited the further importation of slaves into the State, there is also a provision by which any negro, Indian, or mulatto servant, who was found wandering out of the town or place to which he belonged, without a written pass such as is therein described, was made liable to be seized by any one, and taken before the next authority to be examined and delivered up to his master–who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides, that if any free negro shall travel without such pass, and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that up to that time free negroes and mulattoes were associated with servants and slaves in the police regulations established by the laws of the State.

And again, in 1833, Connecticut passed another law, which made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State, or to instruct or teach in any such school or institution, or board or harbor for that purpose, any such person, without the previous consent in writing of the civil authority of the town in which such school or institution might be.

And it appears by the case of Crandall v. the State, reported in 10 Conn. Rep., 340, that upon an information filed against Prudence Crandall for a violation of this law, one of the points raised in the defence was, that the law was a violation of the Constitution of the United States; and that the persons instructed, although of the African race, were citizens of other States, and therefore entitled to the rights and privileges of citizens in the State of Connecticut. But Chief Justice Dagget, before whom the case was tried, held, that persons of that description were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States.

The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question.

We have made this particular examination into the legislative and judicial action of Connecticut, because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union; and if we find that at the time the Constitution was adopted, they were not even there raised to the rank of citizens, but were still held and treated as property, and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else.

A brief notice of the laws of two other States, and we shall pass on to other considerations.

By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State and is not therefore called on to uphold and defend it.

Again, in 1822, Rhode Island, in its revised code, passed a law forbidding persons who were authorized to join persons in marriage, from joining in marriage any white person with any negro, Indian, or mulatto, under the penalty of two hundred dollars, and declaring all such marriages absolutely null and void; and the same law was again re enacted in its revised code of 1844. So that, down to the last-montioned period, the strongest mark of inferiority and degradation was fastened upon the African race in that State.

It would be impossible to enumerate and compress in the space usually allotted to an opinion of a court, the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. In addition to those already referred to, it is sufficient to say, that Chancellor Kent, whose accuracy and research no one will question, states in the sixth edition of his Commentaries (published in 1848, 2 vols., 258, note b,) that in no part of the country except Maine, did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights.

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own satiety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them.

Besides, this want of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. No State was willing to permit another State to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class. And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much more important power–that is, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safety of a large portion of the Union, than the few foreigners one of the States might improperly naturalize.

The Constitution upon its adoption obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was born, or what might be his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory.

A clause similar to the one in the Constitution, in relation to the rights and immunities of citizens of one State in the other States, was contained in the Articles of Confederation. But there is a difference of language, which is worthy of note. The provision in the Articles of Confederation was “that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States.”

It will be observed, that under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term free inhabitant, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizenship in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words “free inhabitants,” it is very clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not: for the fifth section of the ninth article provides that Congress should have the power “to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding.”

Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for a moment be supposed, that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words “free inhabitants,” in the preceding article, to whom privileges and immunities were so carefully secured in every State.

But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word inhabitant, which might be construed to include an emancipated slave, is omitted; and the privilege is confined to citizensof the State. And this alteration in words would hardly have been made, unless a different meaning was intended to be conveyed, or a possible doubt removed. The just and fair inference is, that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given–and the worn citizenwas on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted; and also every description of persons who were not fully recognised as citizens in the several States. This, upon any fair construction of the instruments to which we have referred, was evidently the object and purpose of this change of words.

To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the Government went into operation, will be abundantly sufficient to show this. The two first are particularly worthy of notice, because many of the men who assisted in framing the Constitution, and took an active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they meant when they used the words “people of the United States” and “citizen” in that well-considered instrument.

The first of these acts is the naturalization law, which was passed at the second session of the first Congress. March 26, 1790, and confines the right of becoming citizens “to aliens being free white persons“

Now, the Constitution does not limit the power of Confess in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one of any color, who was born trader allegiance to another Government. But the language of the law above quoted, shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the government.

Congress might, as we before said, have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollect on of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. No one supposed then that any Indian would ask for, or was capable of enjoying the privileges of an American citizen, and the word white was not used with any particular reference to them.

Neither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore there was no necessity for using particular words to exclude them.

It would seem to have been used merely because it followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subject on and slavery, and governed at their own pleasure.

Another of the early laws of which we have spoken, is the first militia law, which was passed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every “free able-bodied white male citizen” shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word “citizen” to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slaves or free; but it is repudiated and rejected from the duties and obligations of citizenship in marked language.

The third act to which we have alluded is even still more decisive; it was passed as late as 1813, (2 Stat, 809,) and it provides: “that from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States.”

Here the line of distinction is drawn in express words. Persons of color, in the judgment of Congress, were not included in the word citizens, and they are described as another and different class of persons, and authorized to be employed, if born in the United States.

And even as late as 1820, (chap. 104, sec. 8,) in the charter to the city of Washington, the corporation is authorized “to restrain and prohibit the nightly and other disorderly meetings of slaves, free negroes, and mulattoes,” thus associating them together in its legislation; and after prescribing the punishment that may be inflicted on the slaves, proceeds in the following words: “And to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offence; and in case of the inability of any such free negro or mulatto to pay any such penalty and cost thereon, to cause him or her to be confined to labor for any time not exceeding six calendar mouths.” And in a subsequent part of the same section, the act authorizes the corporation “to prescribe the terms and conditions upon which free negroes and mulattoes may reside in the city.”

This law, like the laws of the States, shows that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens. And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized, “citizens” of the United States, “fellow-citizens,” a constituent part of the sovereignty, would be an abuse of terms, and not calculated to exalt the character or an American citizen in the eyes of other nations.

The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The quotation was brought officially before the late William Wirt, when be was the Attorney General of the United States, in 1821, and he decided that the words “citizens of the United States” were used in the acts of Congress in the same sense as in the Constitution; and that free persons of color were not citizens, within the meaning of the Constitution and laws; and this opinion has been confirmed by that of the late Attorney General, Caleb Cushing, in a recent case, and acted upon by the Secretary of State, who refused to grant passports to them as “citizens of the United States.”

But it is said that a person may be a citizen, and entitled to that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognized there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship.

This argument overlooks the language of the provision in the Constitution of which we are speaking.

Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular office. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.

So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does not apply to them.

Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognized as citizens, but belong to an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens.

But so far as mere rights of persons are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State, as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights, to the citizen, and the State cannot withhold them. And these rights are of a character and weald lead to consequences, which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States.

The case of Legrand v. Darnall (2 Peters, 664) has been referred to for the purpose of showing that this court has decided that the descendant of a slave may sue as a citizen in a court of the United States; but the case itself shows that the question did not arise and could not have arisen in the case.

It appears from the report, that Darnall was born in Maryland, and was the son of a white man by one of his slaves, and his father executed certain instruments to manumit him, and devised to him some landed property in the State. This property Darnall afterwards sold to Legrand, the appellant, who gave his notes for the purchase-money. But becoming afterwards apprehensive that the appellee had not been emancipated according to the laws of Maryland, he refused to pay the notes until he could be better satisfied as to Darnall’s right to convey. Darnall, in the mean time, had taken up his residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the Circuit Court for the district of Maryland.

The whole proceeding, as appears by the report, was an amicable one; Legrand being perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing him to pay unless he could make him a good one. In point of fact, the whole proceeding was under the direction of the counsel who argued the case for the appellee, who was the mutual friend of the parties, and confided in by both of them, and whose only object was to have the rights of both parties established by judicial decision in the most speedy and least expensive manner.

Legrand, therefore, raised no objection to the jurisdiction of the court in the suit at law, because he was himself anxious to obtain the judgment of the court upon his title. Consequently, there was nothing in the record before the court to show that Darnell, who was of African descent, and the usual judgment and award of execution was entered. And Legrand thereupon filed his bill on the equity side of the Circuit Court, stating that Darnall was born a slave, and had not been legally emancipated, and could not therefore take the land devised to him, nor make Legrand a good title; and praying an injunction to restrain Darnall from proceeding to execution on the judgment, which was granted. Darnall answered, averring in his answer that he was a free man, and capable of conveying a good title. Testimony was taken on this point, and at the hearing the Circuit Court was of opinion that Darnall was a free man and his title good, and dissolved the injunction and dismissed the bill; and that decree was affirmed here, upon the appeal of Legrand.

Now, it is difficult to imagine how any question about the citizenship of Darnall, or his right to sue in that character, can be supposed to have arisen or been decided in that case. The fact that he was of African descent was first brought before the court upon the bill in equity. The suit at law had then passed into judgment and award of execution, and the Circuit Court, as a court of law, had no longer any authority over it. It was a valid and legal judgment, which the court that rendered it had not the power to reverse or set aside. And unless it had jurisdiction as a court of equity to restrain him from using its process as a court of law, Darnall, if he thought proper, would have been at liberty to proceed on his judgment, and compel the payment of the money, although the allegations in the bill were true, and he was incapable of making a title. No other court could have enjoined him, for certainly no State equity court could interfere in that way with the judgment of a Circuit Court of the United States.

But the Circuit Court as a court of equity certainly had equity jurisdiction over its own judgment as a court of law, without regard to the character of the parties; and had not only the right, but it was its duty–no matter who were the parties in the judgment–to prevent them from proceeding to enforce it by execution, if the court was satisfied that the money was not justly and equitably due. The ability of Darnall to convey did not depend upon his citizenship, but upon his title to freedom. And if he was free, he could hold and convey property, by the laws of Maryland, although he was not a citizen. But if he was by law still a slave, he could not. It was therefore the duty of the court, sitting as a court of equity in the latter case, to prevent him from using its process, as a court of common law, to compel the payment of the purchase money, when it was evident that the purchaser must lose the land. But if he was free, and could make a title, it was equally the duty of the court not to suffer Legrand to keep the land, and refuse the payment of the money, upon the ground that Darnall was incapable of suing or being sued as a citizen in a court of the United States. The character or citizenship of the parties had no connection with the question of jurisdiction, and the matter in dispute had no relation to the citizenship of Darnall. Nor is such a question alluded to in the opinion of the Court.

Besides, we are by no means prepared to say that there are not many cases, civil as well as criminal, in which a Circuit Court of the United States may exercise jurisdiction, although one of the African race is a party; that broad question is not before the court. The question with which we are now dealing is, whether a person of the African race can be a citizen of the United States, and become thereby entitled to a special privilege, by virtue of his title to that character, and which, under the Constitution, no one but a citizen can claim. It is manifest that the case of Legrand and Darnall has no bearing on that question, and can have no application to the case now before the court.

This case, however, strikingly illustrates the consequences that would follow the construction of the Constitution which would give the power contended for to a State. It would in effect give it also to an individual. For if the father of young Darnall had manumitted him in his lifetime, and sent him to reside in a State which recognized him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States; and the State officers and tribunals would be compelled, by the paramount authority of the Constitution, to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety.

The only two provisions which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves.

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself, by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abregate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution Was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word “citizen” and the word “people.”

And upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous.

We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before the court upon this writ of error: but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State.

Now, if the removal of which he speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen.

The principle of law is too well serried to be disputed, that a court can give no judgment for either party, where it has no jurisdiction; and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs, is, like that on the plea in abatement, erroneous, and the suit ought to have been dismissed by the Circuit Court for want of jurisdiction in that court.

But, before we proceed to examine this part of the case, it may be proper to notice an objection taken to the judicial authority of this court to decide it; and it has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception; and that anything it may say upon that part of the case will be extra-judicial, and mere obiter dicta.

This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to revise the judgment of a Circuit Court, and to reverse it for any error apparent on the record, whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not.

The objection appears to have arisen from confounding writs of error to a State court, with writs of error to a Circuit Court of the United States. Undoubtedly, upon a writ of error to a State court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exception, or any other part of the record. But writs of error to a State court, and to a Circuit Court of the United States, are regulated by different laws, and stand upon entirely different principles. And in a writ of error to a Circuit Court of the United States, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but it is the judicial duty of the court, to examine the whole case as presented by the record; and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment, and remand the case. And certainly an error in passing a judgment upon the merits in favor of either party, in a case which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit.

The plea in abatement is not a plea to the jurisdiction of this court, but to the jurisdiction of the Circuit Court. And it appears by the record before us, that the Circuit Court committed an error, in deciding that it had jurisdiction, upon the facts in the case, admitted by the pleadings. It is the duty of the appellate tribunal to correct this error; but that could not be done by dismissing the case for want of jurisdiction here–for that would leave the erroneous judgment in full force, and the injured party without remedy. And the appellate court therefore exercises the power for which alone appellate courts are constituted, by reversing the judgment of the court below for this error. It exercises its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit Court, as they appear upon the record brought up by the writ of error.

The correction of one error in the court below does not deprive the appellate court of the power of examining further into the record, and correcting any other material errors which may have been committed by the inferior court. There is certainly no rule of law–nor any practice–nor any decision of a court–which even questions this power in the appellate tribunal. On the contrary, it is the daily practice of this court, and of all appellate courts where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case; and they have always held it to be their duty to do so where the silence of the court might lead to misconstruction or future controversy, and the point has been relied on by either side, and argued before the court.

In the case before us, we have already decided that the Circuit Court erred in deciding that it had jurisdiction upon the facts admitted by the pleadings. And it appears that, in the further progress of the case, it acted upon the erroneous principle it had decided on the pleadings, and gave judgment for the defendant, where, upon the facts admitted in the exception, it had no jurisdiction.

We are at a loss to understand upon what principle of law applicable to appellate jurisdiction, it can be supposed that this court has not judicial authority to correct the last-mentioned error, because they had before corrected the former; or by what process of reasoning it can be made out, that the error of an inferior court in actually pronouncing judgment for one of the parties, in a case in which it had no jurisdiction, cannot be looked into or corrected by this court, because we have decided a similar question presented in the pleadings. The last point is distinctly presented by the facts contained in the plaintiff’s own bill of exceptions, which he himself brings here by this writ of error. It was the point which chiefly occupied the attention of the counsel on both sides in the argument–and the judgment which this court must render upon both errors is precisely the same. It must, in each of them, exercise jurisdiction over the judgment, and reverse it for the errors committed by the court below; and issue a mandate to the Circuit Court to conform its judgment to the opinion pronounced by this court, by dismissing the case for want of jurisdiction in the Circuit Court. This is the constant and invariable practice of this court, where it reverses a judgment for want of jurisdiction in the Circuit Court.

It can scarcely be necessary to pursue such a question further. The want of jurisdiction in the court below may appear on the record without any plea in abatement. This is familiarly the case where a court or chancery has exercised jurisdiction in a case where the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript when brought here by appeal. So also where it appears that a court of admiralty has exercised jurisdiction in a case belonging exclusively to a court of common law. In these cases there is no plea in abatement. And for the same reason, and upon the same principles, where the defect of jurisdiction is patent on the record, this court is bound to reverse the judgment, although the defendant has not pleaded in abatement to the jurisdiction of the inferior court.

The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we have referred in a previous part of this opinion, are directly in point. In the last-mentioned case, Capron brought an action against Van Noorden in a Circuit Court of the United States, without showing, by the usual averments of citizenship, that the court had jurisdiction. There was no plea in abatement put in, and the parties went to trial upon the merits. The court gave judgment in favor of the defendant with costs. The plaintiff thereupon brought his writ of error, and this court reversed the judgment given in favor of the defendant, and remanded the case with directions to dismiss it, because it did not appear by the transcript that the Circuit Court had jurisdiction.

The case before us still more strongly imposes upon this court the duty of examining whether the court below has not committed an error, in taking jurisdiction and giving a judgment for costs in favor of the defendant; for in Capron v. Van Noorden the judgment was reversed because it did not appear that the parties were citizens of different States. They might or might not be. But in this case it does appear that the plaintiff was born a slave; and if the facts upon which he relies have not made him free, then it appears affirmatively on the record that he is not a citizen, and consequently his suit against Sandford was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed.

It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a pecuniary or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment, would not justify this court in sanctioning an error in the judgment which is patent on the record, and which if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit.

We proceed, therefore, to inquire whether the facts relied, on by the plaintiff entitled him to his freedom.

The case, as he himself states it, on the record brought here by his writ of error, is this:

The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the United States. In the year 1834, he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the territory known as Upper Louisiana, acquired by the United States of France. and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Shelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff’s declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Shelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and owner. Eliza and Lizzie, named in the third comet of the plaintiff’s declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided.

Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them, and each of them, as slaves.

In considering this part of the controversy, two questions arise: 1. Was he, together with his family, free in Missouri by reason of the stay in the territory of the United States hereinbefore mentioned? And, 2. If they were not, is Scott himself free by reason of his removal to Rock Island, in the State of Illinois, as stated in the above admissions?

We proceed to examine the first question.

The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime. shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorised to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under the laws of any one of the States.

The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;” but, in the judgment of the court, that provision has no hearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.

A brief summary of the history of the times, as well as the careful and measured terms in which the article is framed, will show the correctness of this proposition.

It will be remembered that, from the commencement of the Revoluntionary war, serious difficulties existed between the States, in relation to the disposition of large and unsettled territories which were included in the chartered limits of some of the States. And some of the other States, and more especially Maryland, which bad no unsettled lands, insisted that as the unoccupied lands, if wrested from Great Britain, would owe their preservation to the common purse and the common sword, the money arising from them ought to be applied in just proportion among the several States to pay the expenses of the war, and ought not to be appropriated to the use of the State in whose chartered limits they might happen to lie, to the exclusion of the other State, by whose combined efforts and common expense the territory was defended and preserved against the claim of the British Government.

These difficulties caused much uneasiness during the war, while the issue was in some degree doubtful, and the future boundaries of the United States yet to be defined by treaty, if we achieved our independence.

The majority of the Congress of the Confederation obviously concurred in opinion with the State of Maryland, and desired to obtain from the States which claimed it a cession of this territory, in order that Congress might raise money on this security to carry on the war. This appears by the resolution passed on the 6th of September, 1780, strongly urging the States to cede these lands to the United. States, both for the sake of peace and union among themselves and to maintain the public credit; and this was followed by the resolution of October 10th, 1780, by which Congress pledged itself, that if the lands were ceded, as recommended by the resolution above mentioned, they should be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, and freedom. and independence, as other States.

But these difficulties became much more serious after peace took place, and the boundaries of the United States were established. Every State, at that time, felt severely the pressure of its war debt; but in Virginia, and some other States, there were large territories of unsettled lands, the sale of which would enable them to discharge their obligations without much inconvenience; while other States, which had no such resource, saw before them many years of heavy and burdensome taxation; and the latter insisted, for the reasons before stated, that these unsettled lands should be treated as the common property of the States, and the proceeds applied to their common benefit.

The letters from the statesmen of that day will show bow much this controversy occupied their thoughts, and the dangers that were apprehended from it. It was the disturbing element of the time, and fears were entertained that it might dissolve the Confederation by which the States were then united.

These fears and dangers were, however, at once removed, when the State of Virginia, in 1784, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio. and which was within the acknowledged limits of the State. The only object of the State, in making this cession, was to pat an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands, and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded because it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better or more conveniently governed by the United States.

The example of Virginia was soon afterwards followed by other States, and, at the time of the adoption of the Constitution. all of the States, similarly situated, had ceded their unappropriated lands, except North Carolina and Georgia. The main object for which these cessions were desired and made, was on account of their money value, and to put an end to a dangerous controversy, as to who was justly entitled to the proceeds when the land should be sold. It is necessary to bring this part of the history of these cessions thus distinctly into view, because it will enable us the better to comprehend the phraseology of the article in the Constitution, so often referred to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain were ceded with the land. This was essential, in order to make it effectual, and to accomplish its objects. But it must be remembered that, at that time, there was no Government of the United States in existence with enumerated and limited powers; what was then called the United States, were thirteen separate, sovereign, independent States, which had entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereignties, meeting together, as equals, to discuss and decide on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legislative, executive, or judicial power. It was little more than a congress of ambassadors, authorised to represent separate nations, in matters in which they had a common concern.

It was this congress that accepted the cession from Virginia. They had no power to accept it under the Articles of Confederation. But they bad an undoubted right, as independent sovereignties, to accept any cession of territory for their common benefit, which all of them assented to; and it is equally clear that as their common property, and having no superior to control them, they had the right to exercise absolute dominion over it, subject only to the restrictions which Virginia had imposed in her act of cession. There was, as we have said, no Government of the United States then in existence with special enumerated and limited powers. The territory belonged to sovereignties, who, subject to the limitations above mentioned, had a right to establish any form of Government they pleased, by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory, as they might deem proper. It was by a Congress, representing the authority of these several and separate sovereignties, and acting under their authority and command (but not from any authority derived from the Articles of Confederation,) that the instrument usually called the ordinance of 1787 was adopted; regulating in much detail the principles and the laws by which this territory should be governed; and among other provisions, slavery is prohibited in it. We do not question the power of the States. by agreement among themselves, to pass this ordinance, nor its obligatory force in the territory, while the confederation or league of the States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common property, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of the cession. They were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this Government was to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instrument, and the objects it was intended to accomplish; and as this league of States would, upon the adoption of the new Government, cease to have any power over the territory, and the ordinance they had agreed upon be incapable of execution and a mere nullity, it was obvious that some provision was necessary to give the new Government sufficient power to enable it to carry into effect the objects for which it was ceded, and the compacts and agreements which the States had made with each other in the exercise of their powers of sovereignty. It was necessary that the lands should be sold to pay the war debt; that a Government and system of jurisprudence should be maintained in it, to protect the citizens of the United States who should migrate to the territory, In their rights of person and of property. It was also necessary that the new Government, about to be adopted, should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land such as arms. military stores, munitions, and ships of war, which were the common property of the States, when acting in their independent characters as confederates, which neither the new Government nor any one else would have a right to take possession of, or control. without authority from them; and it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new Government the property then held in common by the States, and to give to that Government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire.

The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses, when it speaks of the political power to be exercised in the government of the territory, all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any territory, nor of Territories, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to the territory of the United States–that is, to a territory then in existence, and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing, in other words, making sale of the lands, or raising money from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposition and sale of the lands–that is, the power of making needful rules and regulations respecting the territory. And whatever construction may now be given to these words, every one, we think, must admit that they are not the words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new Government might afterwards itself obtain by cession from a State, either for its seat of Government, or for forts, magazines, arsenals, dock yards, and other needful buildings.

And the same power of making needful rules respecting the territory is, in precisely the same language, applied to the other property belonging to the United States–associating the power over the territory in this respect with the power over movable or personal property–that is, the ships, arms, and munitions of war, which then belonged in common to the State sovereignties. And it will hardly be said, that this power, in relation to the last-mentioned objects, was deemed necessary to be thus specially given to the new Government, in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service.

No one, it is believed, would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution. Nor can it, upon any fair construction, be applied to any property, but that which the new Government was about to receive from the confederated States. And if this be true as to this property, it must be equally true and limited as to the territory, which is so carefully and precisely coupled with it–and like it referred to as property in the power granted. The concluding words of the clause appear to render this construction irresistible; for, after the provisions we have mentioned, it proceeds to say, “that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.”

Now, as we have before said, all of the States, except North Carolina and Georgia, had made the cession before the Constitution was adopted, according to the resolution of Congress of October 10, 1780, the claims of other States, that the unappropriated lands in these two States should be applied to the common benefit, in like manner, was still insisted on, but refused by the States. And this member of the clause in question evidently applies to them, and can apply to nothing else. It was to exclude the conclusion that either party, by adopting the Constitution, would surrender what they deemed their rights. And when the latter provision relates so obviously to the unappropriated lands not yet ceded by the States, and the first clause makes provision for those then actually ceded, it is impossible, by any just rule of construction, to make the first provision general, and extend to all territories, which the Federal Government might in any way afterwards acquire, when the latter is plainly and unequivocally confined to a particular territory; which was a part of the same controversy, and involved in the same dispute. and depended upon the same principles. The union of the two provisions in the same clause shows that they were kindred subjects; and that the whole clause is local, and relates only to lands, within the limits of the United States, which had been or then were claimed by a State; and that no other territory was in the mind of the framers of the Constitution, or intended to be embraced in it. Upon any other construction it would be impossible to account for the insertion of the last provision in the place where it is found, or to comprehend why, or for what object, it was associated with the previous provision.

This view of the subject is confirmed by the manner in which the present Government of the United States dealt with the subject as soon as it came into existence. It must be borne in mind that the same States that formed the Confederation also formed and adopted the new Government, to which so large a portion of their former sovereign powers were surrendered. It must also be borne in mind that all of these same States which had then ratified the new Constitution were represented in the Congress which passed the first law for the government of this territory; and many of the members of that legislative body had been deputies from the States under the Confederation–had united in adopting the ordinance of 1787, and assisted in forming the new Government under which they were then acting, and whose powers they were then exercising. And it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance that they regarded it as the act of the States done in the exercise of their legitimate powers at the time. The new Government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo anything that had been done. And, among the earliest laws passed under the new Government, is one reviving the ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. Tiffs law introduces no new form or principles for its government, but recite, in the preamble, that it is passed in order that this ordinance may continue to have full effect, and proceeds to make only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen. It appears, therefore, that this Congress regarded the purposes to which the land in this Territory was to be applied, and the form of government and principles of jurisprudence which were to prevail there, while it remained in the Territorial State, as already determined on by the States when they had full power and right to make the decision; and that the new Government, having received it in this condition, ought to carry substantially into effect the plans and principles which had been previously adopted by the States, and which, no doubt, the States anticipated when they surrendered their power to the new Government. And if we regard this clause of the Constitution as pointing to this Territory, with a Territorial Government already established in it, which had been ceded to the States for the purposes hereinbefore mentioned–every word in it is perfectly appropriate and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a Territory at the time. We can, then, easily account for the manner in which the first Congress legislated on the subject–and can also understand why this power over the territory was associated in the same clause with the other property of the United States, and subjected to the like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present Government, and to give it in such territory a despotic and unlimited power over persons and property, such as the confederated States might exercise in their common property, it would he difficult to account for the phraseology used, when compared with other grants of power–and also for its association with the other provisions in the same clause.

The Constitution has always been remarkable for the felicity of its arrangement of different subjects, and the perspicuity and appropriateness of the language it uses. But if the clause is construed to extend to territory acquired by the present Government from a foreign nation, outside of the limits of any charter from the British Government to a colony, it would be difficult to say, why it was deemed necessary to give the Government the power to sell any vacant lands belonging to the sovereignty which might be found within it; and if this was necessary, why the grant of this power should precede the power to legislate over it and establish a Government there; and still more difficult to say, why it was deemed necessary so specially and particularly to grant the power to make needful rules and regulations in relation to any personal or movable property it might acquire there. For the words, other property, necessarily, by every known rule of interpretation, must mean property of a different description from territory or land. And the difficulty world perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that “nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State,” or to say how any particular State could have claims in or to a territory ceded by a foreign Government, or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connection.

The words “needful rules and regulations” would seem, also, to have been cautiously used for some definite object. They are not the words usually employed by statesmen. when they mean to give the powers of sovereignty, or to establish a Government, or to authorise its establishment. Thus, in the law to renew and keep alive the ordinance of 1787, and to re-establish the Government, the title of the law is: “An act to provide for the government of the territory northwest of the river Ohio.” And in the Constitution, when granting the power to legislate over the territory that may be selected for the seat of Government independently of a State, it does not say Congress shall have power “to make all needful rules and regulations respecting the territory;” but it declares that “Congress shall have power to exercise exclusive legislation in all cases whatsoever over such District (not exceeding, ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States.

The words “rules and regulations” are usually employed in the Constitution in speaking of same particular specified power which it means to confer on the Government, and not, as we have seen, when granting general powers of legislation. As, for example, in the particular power to Congress “to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;” “to establish an uniform rule of naturalization;” “to coin money and regulate the value thereof.” And to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the Government might afterwards acquire, is to use them in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular Territory, in which a Government and laws had already been established, but which would require some alterations to adapt it to the new Government, the words are peculiarly applicable and appropriate for that purpose.

The necessity of this special provision in relation to property and the rights or property held in common by the confederated States, is illustrated by the first clause of the sixth article. This clause provides that “all debts, contracts, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Government as under the Confederation.” This provision like the one under consideration, was indispensable if the new Constitution was adopted The new Government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the right, and bound by all the obligations of the preceding one. But, when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several States would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions were indispensable to transfer to the new Government the property and rights which at that time they held in common; and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory and other property of the United States provided for the first, and the clause last quoted provides for the other. They have no connection with the general powers and rights of sovereignty delegated to the new Government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a Government.

Indeed, a similar provision was deemed necessary, in relation to treaties made by the Confederation; and when in the clause next succeeding the one of which we have last spoken, it is declared that treaties shall be the supreme law of the land, care is taken to include, by express words, the treaties made by the confederated States. The language is: “and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”

Whether, therefore, we take the particular clause in question, by itself, or in connection with the other provisions of the Constitution, we think it clear, that it applies only to the particular territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new Government might afterwards obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercises in this Territory, while it remained under a Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory afterwards acquired by the Federal Government. We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us.

But the case of the American and Ocean Insurance Companies v. Canter (1 Pet., 511) has been quoted as establishing a different construction of this clause of the Constitution. There is, however, not the slightest conflict between the opinion now given and the one referred to; and it is only by taking a single sentence out of the latter and separating it from the context, that even an appearance of conflict can be shown. We need not comment on such a mode of expounding an opinion of the court. Indeed it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opinion would appear to be in direct conflict with that now given; but the words which immediately follow that sentence show that the court, did not mean to decide the point, but merely affirmed the power of Congress to establish a Government in the Territory, leaving it an open question, whether that power was derived from this clause in the Constitution, or was to be necessarily referred item a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead.

The passage referred to is in page 542, in which the court. in speaking of the power of Congress to establish a Territorial Government in Florida until it should become a State, uses the following language:

“In the mean time Florida continues to be a Territory of the United States, governed by that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self government, may result, necessarily, from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source from which the power is derived, the possession of it is unquestionable.“

It is thus clear, from the whole opinion on this point, that the court did not mean to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence of the right to acquire, They do decide that the power in Congress is unquestionable, and in this we entirely concur, and nothing will be found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court–that is, as “the inevitable consequence of the right to acquire territory.“

And what still more clearly demonstrates that the court did not mean to decide the question, but leave it open for future consideration, is the fact that the case was decided in the Circuit Court by Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to the territory then within the limits of the United States. and not to Florida, which had been acquired by cession from Spain. This part of his opinion will be found in the note in page 517 of the report. But he does not dissent from the opinion of the Supreme Court; thereby showing that, in his judgment as well as that of the court, the case before them did not call for a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the same reserve. And in page 546, speaking of the power of Congress to authorise the Territorial Legislature to establish courts there, the court say: “They are legislative courts, created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States.”

It has been said that the construction given to this clause is new, and now for the first time brought forward. The case of which we are speaking, and which has been so much discussed, shows that the fact is otherwise. It shows that precisely the same question came before Mr. Justice Johnson, at his circuit, thirty years ago–was fully considered by him, and the same construction given to the clause in the Constitution which is now given by this court. And that upon an appeal from his decision the same question was brought before this court, but was not decided because a decision upon it was not required by the case before the court.

There is another sentence in the opinion which has been commented on, which even in a still more striking manner shows how one may mislead or be misled by taking out a single sentence from the opinion of a court, and leaving out of view what precedes and follows. It is in page 546, near the close of the opinion, in which the court say: “In legislating for them,” (the territories of the United States,) “Congress exercises the combined powers of the General and or a State Government.” And it is said, that as a State may unquestionably prohibit slavery within its territory, this sentence decides in effect that Congress may do the same in a territory of the United States, exercising there the powers of a State, as well as the power of the General Government.

The examination of this passage in the case referred to, would be more appropriate when we come to consider in another part of this opinion what power Congress can constitutionally exercise in a Territory, over the rights of person or rights of property of a citizen. But, as it is in the same case with the passage we have before commented on, we dispose of it now, as it will save the court from the necessity of referring again to the case. And it will be seen upon reading the page in which this sentence is found, that it has no reference whatever to the power of Congress over rights of person or rights of property–but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise.

The law of Congress establishing a Territorial Government in Florida, provided that the Legislature of the Territory should have legislative powers over “all rightful objects of legislation; but no law should be valid which was inconsistent with the laws and Constitution of the United States.”

Under the power thus conferred, the Legislature of Florida passed an act, erecting a tribunal at Key West to decide cases of salvage., And in the case of which we are speaking, the question arose whether the Territorial Legislature could be authorised by Congress to establish such a tribunal, with such powers; and one of the parties, among other objections, insisted that Congress could not under the Constitution authorise the Legislature of the Territory to establish such a tribunal with such powers, but that it must be established by Congress itself; and that a sale of cargo made under its order, to pay salvors, was void, as made without legal authority, and passed no property to the purchaser.

It is in disposing of this objection that the sentence relied on occurs, and the court begins that part of the opinion by stating with great precision the point, which they are about to decide.

They say: “It has been contended that by the Constitution of the United States, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction; and that the whole of the judicial power must be vested ‘in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish.’ Hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the Territorial Legislature.”

And after thus clearly stating the point before them, and which they were about to decide, they proceed to show that these Territorial tribunals were not constitutional courts, but merely legislative, and that Congress might, therefore, delegate the power to the Territorial Government to establish the court in question; and they conclude that part of the opinion in the following words: “Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the General and State Governments.”

Thus it will be seen by these quotations from the opinion. that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the opinion of the tribunal, that in organizing the judicial department of the Government in a Territory of the United States, Congress does not act under, and is not restricted by. the third article in the Constitution, and is not bound. in a Territory. to ordain and establish courts in which the judges hold their offices during good behaviour, but may exercise the discretionary power which a State exercises in establishing its judicial department, and regulating the jurisdiction of its courts, and may authorize the Territorial Government to establish, or may itself establish, courts in which the judges hold their offices for a term of years only; and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the General and a State Government. It exercises the discretionary power of a State Government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behaviour; and it exercises the power of the General Government in investing that court with admiralty jurisdiction, over which the General Government had exclusive jurisdiction in the Territory.

No one, we presume, will question the correctness of that opinion; nor is there anything in conflict with it in the opinion now given. The point decided in the case cited has no relation to the question now before the court. That depended on the construction of the third article of the Constitution, in relation to the judiciary of the United States, and the power which Congress might exercise in a Territory in organizing the judicial department of the Government. The case before us depends upon other and different provisions of the Constitution, altogether separate and apart from the one above mentioned. The question as to what courts Congress may ordain or establish in a Territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is dot authorized by the Constitution to pass, are widely different–are regulated by different and separate articles of the Constitution, and stand upon different principles. And we are satisfied that no one who reads attentively the page in Peters’s Reports to which we have referred, can suppose that the attention of the court was drawn to a moment to the question now before this court, or that it meant in that case to say that Congress had a right to prohibit a citizen of the United States from taking any property which he lawfully held into a Territory of the United States.

This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States, while it remains a Territory, and until it shall be admitted as one of the States of the Union.

There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation from Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State. and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character.

And indeed the power exercised by Congress to acquire territory and establish a Government there, according to its own unlimited discretion, was viewed with great jealousy by the leading statesmen of the day. And in the Federalist, (No. 38,) written by Mr. Madison. he speaks of the acquisition of the Northwestern Territory by the confederated States, by the cession from Virginia, and the establishment of a Government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power.

We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at the time. but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the south discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial: and whatever the political department of the Government shall recognize as within the limits of the United States, the judicial department is also bound to recognize, and to administer in it the laws of the United States, so far as they apply, and to maintain in the Territory the authority and rights of the Government, and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a Territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed.

Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose. The principle upon which our Governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a General Government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the General Government to obtain and hold colonies and dependent territories, over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them. and charged with the duty of promoting the interests of the whole people of the whole Union in the exercise of the powers specifically granted.

At the time when the Territory in question was obtained by cession from France, it contained no population fit to be associated together and admitted as a State; and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government, and in a condition to be admitted on equal terms with the other States as a member of the Union. But, as we have before said, it was acquired by the General Government, as the representative and trustee of the people of the United States, and it must therefore be held in that character for their common and equal benefit; for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union.

But until that time arrives, it is undoubtedly necessary that some Government should be established in order to organize society, and to protect the inhabitants in their persons and property; and as the people of the United States could act in this matter only through the Government which represented them, and through which they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, but it was its duty to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages anticipated from us acquisition, and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be established necessarily rested in the discretion of Congress. It was their duty to establish the one that would behest suited for the protection and security of the citizens of the United States, and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory, as to the number and character of its inhabitants, and their situation in the Territory. In some cases a Government. consisting of persons appointed by the Federal Government, would best subserve the interests of the Territory, when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of civil authority would be absolutely necessary to organize and preserve civilized society, and prepare it to become a State; and what is the best form must always depend on the condition of the territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress, acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of the citizen who might go there to reside, or for any other lawful purpose. It was acquired by the exercise of this discretion, and it must be held and governed in like manner, until it is fitted to be a State.

But the power of Congress over the person or property of a citizen can never be a more discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States. the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States. put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States. and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government top the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war. But in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation.

The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States. but the words are general. and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States. and places the citizens of a Territory. so far as these rights are concerned, on the same footing with citizens of the States, and. guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this–if it is beyond the powers conferred on the Federal Government–it will be admitted, we presume, that it could not authorise a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.

It seems, however. to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws add usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument.

But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal. acting under the authority of the United States, whether it he legislative, executive, or judicial, has a right to draft such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.

Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property. was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged To protect it in all future time, if the slave escapes from his owner. This is done in plain words–too plain to be misunderstood. And no word can be found in the Constitution which gives Confess a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.

We have so far examined the case. as it stands under the Constitution of the United States, and the powers thereby delegated to the Federal Government.

But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri.

Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration in the case of Strader et al. v. Graham, reported in 10th Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio; and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case.

So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois.

It has, however, been urged in the argument, that by the laws of Missouri he was free on his return, and that this case, therefore, cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may, at one time. have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State Court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State; was fully argued there; and that court decided that neither the plaintiff nor his family were entitled to freedom, and were still the slaves of the defendant; and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of the Supreme Court of the State was erroneous. and that this court had jurisdiction to revise and reverse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court. The case of Strader and others v. Graham is directly in point; and, indeed, independent of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence, and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had in open violation of law entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and revered its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way, which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction.

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity–invoking the favor and guidance of Almighty God–do ordain and establish this Constitution for the Confederate States of America.

All legislative powers herein delegated shall be vested in a Congress of the Confederate States, which shall consist of a Senate and House of Representatives.

1. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.
2. No person shall be a Representative who shall not have attained the age of twenty-five years, and be a citizen of the Confederate States, and who shall not when elected, be an inhabitant of that State in which he shall be chosen.
3. Representatives and direct taxes shall be apportioned among the several States, which may be included within this Confederacy, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves. ,The actual enumeration shall be made within three years after the first meeting of the Congress of the Confederate States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every fifty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of South Carolina shall be entitled to choose six; the State of Georgia ten; the State of Alabama nine; the State of Florida two; the State of Mississippi seven; the State of Louisiana six; and the State of Texas six.
4. When vacancies happen in the representation from any State the executive authority thereof shall issue writs of election to fill such vacancies.
5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment; except that any judicial or other Federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the Legislature thereof.

1. The Senate of the Confederate States shall be composed of two Senators from each State, chosen for six years by the Legislature thereof, at the regular session next immediately preceding the commencement of the term of service; and each Senator shall have one vote.
2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; and of the third class at the expiration of the sixth year; so that one-third may be chosen every second year; and if vacancies happen by resignation, or other wise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.
3. No person shall be a Senator who shall not have attained the age of thirty years, and be a citizen of the Confederate States; and who shall not, then elected, be an inhabitant of the State for which he shall be chosen.
4. The Vice President of the Confederate States shall be president of the Senate, but shall have no vote unless they be equally divided.
5. The Senate shall choose their other officers; and also a president pro tempore in the absence of the Vice President, or when he shall exercise the office of President of the Confederate states.
6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the Confederate States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.
7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, or profit under the Confederate States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.

1. The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, subject to the provisions of this Constitution; but the Congress may, at any time, by law, make or alter such regulations, except as to the times and places of choosing Senators.
2. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a different day.

1. Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.
2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of the whole number, expel a member.
3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal.
4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

1. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the Confederate States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. ‘o Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the Confederate States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the Confederate States shall be a member of either House during his continuance in office. But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.

1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.
2. Every bill which shall have passed both Houses, shall, before it becomes a law, be presented to the President of the Confederate States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respective}y. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a E law. The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.
3. Every order, resolution, or vote, to which the concurrence of both Houses may be necessary (except on a question of adjournment) shall be presented to the President of the Confederate States; and before the same shall take effect, shall be approved by him; or, being disapproved by him, shall be repassed by two-thirds of both Houses, according to the rules and limitations prescribed in case of a bill.

The Congress shall have power-

1. To lay and collect taxes, duties, imposts, and excises for revenue, necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States; but no bounties shall be granted from the Treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts, and excises shall be uniform throughout the Confederate States.
2. To borrow money on the credit of the Confederate States.
3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but neither this, nor any other clause contained in the Constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons, and buoys, and other aids to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation; in all which cases such duties shall be laid on the navigation facilitated thereby as may be necessary to pay the costs and expenses thereof.
4. To establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies, throughout the Confederate States; but no law of Congress shall discharge any debt contracted before the passage of the same.
5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.
6. To provide for the punishment of counterfeiting the securities and current coin of the Confederate States.
7. To establish post offices and post routes; but the expenses of the Post Office Department, after the Ist day of March in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues.
8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
9. To constitute tribunals inferior to the Supreme Court.
10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.
11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.
12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.
13. To provide and maintain a navy.
14. To make rules for the government and regulation of the land and naval forces.
15. To provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions.
16. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of one or more States and the acceptance of Congress, become the seat of the Government of the Confederate States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the . erection of forts, magazines, arsenals, dockyards, and other needful buildings; and
18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the Confederate States, or in any department or officer thereof.

1. The importation of negroes of the African race from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.
2. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.
3. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
4. No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.
5. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.
6. No tax or duty shall be laid on articles exported from any State, except by a vote of two-thirds of both Houses.
7. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.
8. No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
9. Congress shall appropriate no money from the Treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the Government, which it is hereby made the duty of Congress to establish.
10. All bills appropriating money shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered.
11. No title of nobility shall be granted by the Confederate States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.
12. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and petition the Government for a redress of grievances.
13. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.
14. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
15. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
16. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.
17. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.
18. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact so tried by a jury shall be otherwise reexamined in any court of the Confederacy, than according to the rules of common law.
19. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
20. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.
2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports, or exports, shall be for the use of the Treasury of the Confederate States; and all such laws shall be subject to the revision and control of Congress.
3. No State shall, without the consent of Congress, lay any duty on tonnage, except on seagoing vessels, for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus revenue thus derived shall, after making such improvement, be paid into the common treasury. Nor shall any State keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States they may enter into compacts with each other to improve the navigation thereof.

1. The executive power shall be vested in a President of the Confederate States of America. He and the Vice President shall hold their offices for the term of six years; but the President shall not be reeligible. The President and Vice President shall be elected as follows:
2. Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative or person holding an office of trust or profit under the Confederate States shall be appointed an elector.
3. The electors shall meet in their respective States and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit, sealed, to the seat of the Government of. the Confederate States, directed to the President of the Senate; the President of the Senate shall,in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President the votes shall be taken by States~the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the 4th day of March next following, then the Vice President shall act as President, as in case of the death, or other constitutional disability of the President.
4. The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
5. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the Confederate States.
6. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the Confederate States.
7. No person except a natural-born citizen of the Confederate; States, or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, and been fourteen years a resident within the limits of the Confederate States, as they may exist at the time of his election.
8. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the Vice President; and the Congress may, by law, provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President; and such officer shall act accordingly until the disability be removed or a President shall be elected.
9. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the Confederate States, or any of them.
10. Before he enters on the execution of his office he shall take the following oath or affirmation:
    

    “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the Confederate States, and will, to the best of my ability, preserve, protect, and defend the Constitution thereof.”

1. The President shall be Commander-in-Chief of the Army and Navy of the Confederate States, and of the militia of the several States, when called into the actual service of the Confederate States; he may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offenses against the Confederate States, except in cases of impeachment.
2. He shall have power, by and with the advice and consent of the Senate, to make treaties; provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the Confederate States whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
3. The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity. inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.
4. The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session; but no person rejected by the Senate shall be reappointed to the same office during their ensuing recess.

1. The President shall, from time to time, give to the Congress information of the state of the Confederacy, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them; and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the Confederate States.

1. The President, Vice President, and all civil officers of the Confederate States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.

1. The judicial power of the Confederate States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

1. The judicial power shall extend to all cases arising under this Constitution, the laws of the Confederate States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the Confederate States shall be a party; to controversies between two or more States; between a State and citizens of another State, where the State is plaintiff; between citizens claiming lands under grants of different States; and between a State or the citizens thereof, and foreign states, citizens, or subjects; but no State shall be sued by a citizen or subject of any foreign state.
2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.
3. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

1. Treason against the Confederate States shall consist only in levying war against.them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
2. The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

1. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.
2. A person charged in any State with treason, felony, or other crime against the laws of such State, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
3. No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such slave belongs; or to whom such service or labor may be due.

1. Other States may be admitted into this Confederacy by a vote of two-thirds of the whole House of Representatives and two-thirds of the Senate, the Senate voting by States; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.
2. The Congress shall have power to dispose of and make all needful rules and regulations concerning the property of the Confederate States, including the lands thereof.
3. The Confederate States may acquire new territory; and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several Sates; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.
4. The Confederate States shall guarantee to every State that now is, or hereafter may become, a member of this Confederacy, a republican form of government; and shall protect each of them against invasion; and on application of the Legislature or of the Executive when the Legislature is not in session) against domestic violence.

1. Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention~voting by States~and the same be ratified by the Legislatures of two- thirds of the several States, or by conventions in two-thirds thereof~as the one or the other mode of ratification may be proposed by the general convention~they shall thenceforward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.

The Government established by this Constitution is the successor of the Provisional Government of the Confederate States of America, and all the laws passed by the latter shall continue in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in office until their successors are appointed and qualified, or the offices abolished.

Section II.

All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the Confederate States under this Constitution, as under the Provisional Government.

Section III.

This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

Section IV.

The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the Confederate States.

Section V.

The enumeration, in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people of the several States.

Section VI.

The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

1. The ratification of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.
2. When five States shall have ratified this Constitution, in the manner before specified, the Congress under the Provisional Constitution shall prescribe the time for holding the election of President and Vice President; and for the meeting of the Electoral College; and for counting the votes, and inaugurating the President. They shall, also, prescribe the time for holding the first election of members of Congress under this Constitution, and the time for assembling the same. Until the assembling of such Congress, the Congress under the Provisional Constitution shall continue to exercise the legislative powers granted them; not extending beyond the time limited by the Constitution of the Provisional Government.

Adopted unanimously by the Congress of the Confederate States of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas, sitting in convention at the capitol, in the city of Montgomery, Ala., on the eleventh day of March, in the year eighteen hundred and sixty-one.

HOWELL COBB,
President of the Congress.

South Carolina: R. Barnwell Rhett, C. G. Memminger, Wm. Porcher Miles, James Chesnut, Jr., R. W. Barnwell, William W. Boyce, Lawrence M. Keitt, T. J. Withers.
Georgia: Francis S. Bartow, Martin J. Crawford, Benjamin H. Hill, Thos. R. R. Cobb.
Florida: Jackson Morton, J. Patton Anderson, Jas. B. Owens.
Alabama: Richard W. Walker, Robt. H. Smith, Colin J. McRae, William P. Chilton, Stephen F. Hale, David P. L,ewis, Tho. Fearn, Jno. Gill Shorter, J. L. M. Curry. Mississippi: Alex. M. Clayton, James T. Harrison, William S. Barry, W. S. Wilson, Walker Brooke, W. P. Harris, J. A. P. Campbell.
Louisiana: Alex. de Clouet, C. M. Conrad, Duncan F. Kenner, Henry Marshall.
Texas: John Hemphill, Thomas N. Waul, John H. Reagan, Williamson S. Oldham, Louis T. Wigfall, John Gregg, William Beck Ochiltree.

1796

Gracchus Babeuf and the Conspiracy of the Equals

---

The conspiracy of equality organised by Babeuf and his followers aimed at provoking an armed uprising of the plebeian masses against the bourgeois regime of the Directory and establishing a revolutionary dictatorship as a transitional stage to “pure democracy” and “egalitarian communism.” The conspiracy was disclosed in May 1796. At the end of May 1797 its leaders were executed.

Letter to “l’Observateur”, 1789

Babeuf 1789

Letter to “l’Observateur”

August 16, 1789

It can be seen, Monsieur, that you are new to the work of a publicist. Even if the title of your latest issue didn’t assure us that it was issue number four, one could recognize that you are a young writer from your style. By casting aside in the future some improper, or rather poorly placed, expressions it is possible that you will be read. You must cure yourself of these defects. Receive then, a few lessons that are the fruit of my long experience.

For example, what do you mean in saying: “Frenchmen! The freedom of the press has made us citizens. It is this which created the National Assembly, which, etc, etc.”

Go gently, Monsieur, go gently. Learn that these great phrases begin to be out of fashion. We are returning to our former ways. It was worth attempting all of these innovations, but it seems that it’s already been recognized that the preceding forms, i.e., those of arbitrary power, were worth more than all the trappings of this vaunted liberty that has been substituted for it. A public writer, monsieur, if he wants to make his way in the world, must accommodate himself to the time and the circumstances. Model yourself on one of your wise colleagues who, while you continue to be in a state of transport as was done four days ago, prudently conforms himself to the tone of the aristocratic regime that we are being made to hope will be reborn. Consult the following:

“M. the Director General of Finances remits to the Subsistence Committee of the Etats-Generaux, on the part of the King, an instructional memorandum, etc. etc.”

This, Monsieur, is how we are again beginning to speak. It is always good, as you see, to warn young people and to guarantee them from the dangers to which their inattention exposes them. You, in the place of the colleague, might perhaps have still said; “the National Assembly,” a meaningless term of a shocking dissonance for many readers.

If you feel the true value of the good offices that my letter can render you I don’t think you will find that I demand excessive recognition in asking that you insert it in issue five of “l’Observateur.” This will serve to prove to me that you have profited from my warnings and want to share them with the citizens who read you.

I am, Monsieur, one of these Citizens. BABEUF, Rue Quincampoix, no. 40

 

The New Calendar of the French Republic, 1793

Gracchus Babeuf 1793

The New Calendar of the French Republic

To my Fellow Citizens:

I hastily prepared this first edition, where I restricted myself to the sole object of usefulness, because my compatriots need to use the new calendar, and they need to do so immediately. A new edition is at the publisher. For this one I took a little more time: I enriched it with accessories which, I believe, will make it approach the merit of the “Double Almanack of Liege,” and I don’t despair of supplanting the “Mathieu Lansberg.”

There is not a single citizen for whom the new calendar isn’t an indispensable and instant necessity. Not a letter, not an act, not an affair can be treated of without the intervention of the date, and it’s necessary that everyone only use the true one, the only good one, the Republican. The Convention had promised to send the calendar to the administrative bodies and the constituted authorities, but it must be put within the reach of all individuals, and this is what I’ve done.

I placed the decree at the head, which is the best material for giving information about the new organization of the French year.

After this the work consists, for every day of the year, in a bringing together the former era with the new, so next to such and such a date of the old calendar is found that following the new one. Knowing the first, I help you find next to it the second. Examples: September 22 is the first day of the first decade of the first month; January 1, 1794 is the second day of the second décade of the fourth month, etc.

It is only with the assistance of such a comparative table that we will manage to familiarize ourselves with this new form. Though this work is quite simple, and it doesn’t tax the imagination, its usefulness is such that people will be quite grateful to me for having produced it. This attitude is my recompense.

Gracchus Babeuf

 

Prospectus for Le Tribun du Peuple, 1795

Gracchus Babeuf 1795

Prospectus for Le Tribun du Peuple

The goal of society is the common happiness. This was my motto before the government of a free people gave me a forever- memorable proof of its respect for the sacred right of the press.

This goal of society, this fundamental maxim, mother of all the principles of the just, will still be the only lamp by whose light I will continue to march, since the cannons of 13th Vendémiare, which broke my irons, allowed the rearmament of my truthful and plebian pen.

The goal of the French Revolution is also the common happiness. The honorable task of a tribune, that I had the courage to embrace, imposes upon me the sublime obligation of indicating to the French the path that shall lead them to this greatest of goals If they follow me they will arrive there, despite the obstacles profusely spread across that route, despite the maneuvers, the intrigues, and the plots of royalists and patricians.

Since the fatal Thermidorian reaction patricians and royalists have managed to lead the people towards the counter-goal, towards common unhappiness. The people have now reached the apex of this revolutionary period. Its position there is too unnatural, too horrible. It is time that it came to an end. Its up to the advocate of the true people, to the enemy of the gilded people, to teach 24 million oppressed how to counter-react, how one can revolutionize after having de-revolutionized, how there exist no forces, however formidable they might appear, that can prevent the arrival at the true goal, the only equitable goal, at society’s goal, at common happiness.

We too know a little bit about what elements are used to move men. The best lever is their own interest. The late tyrants, the starvers, the directors-in-chief of assassinations, knew this well. They did everything to persuade the people that a government of freedom was a monstrous chimera, that the more one sought to pursue it the more refinement in slavery, famine, persecution and death one met…that consequently it was in everyone’s interest to hope for the return of absolute domination. We will use the same lever of interest, but in a truer manner, less iniquitous, less horrible. We’ll prove to all our fellow citizens that freedom is freedom, that the republic can be not the gathering of all tyrannies, of all evils, that popular government should and can have as a result the ease and happiness of all individuals, the inalterable happiness of all members of the association.

The people are apathetic, pusillanimous, their detractors say; and so, they add, being strangled is their inevitable lot. Be silent, imbecilic dominators! Be silent as well, slaves! The people will prove to you that they are not heedless; they will make you definitively see that they know what to do when their guides have let them know the “why and wherefore” of the revolution, when we will have clearly and demonstratively explained to them what in the last analysis that revolution should be for them, despite all the opposition of the enemies of the common happiness. The people will expose to your dumbstruck eyes, frozen in fear, their intrepid, their prodigious energy when they will have come to know for what great and majestic motive they deploy it…when they will have come to know (let us tear all the veils and let the final word escape) that it is in order to guarantee to each of its members a state of stable happiness, and the fulfillment of the needs of all; an inalterable fulfillment, independent of the ineptitude, the immorality and the malevolence of those who govern…, when they will have come to know that there can be a term to the precarious and constantly unhappy state in which the tyrants of all regimes have made the great mass of men languish. There is no tyrannical dam that the torrent of the people would not then be capable of smashing and taking on in its impetuous effervescence, in those rivers before which everything retreats.

This is the doctrine of which I loudly declare myself the apostle. Frenchmen! Men free and just! Ready yourselves to follow this new gospel: I will call on you to decide whether the morality of it is pure. The benevolence of all of you who received my first essays was too generous; I only showed you a half-light there. I am now going to offer you nature’s great clarity. My hardy brush will be dipped in the colors of original justice, of first truths. Republicans of the North and the South, no, no, you will not fall into discouragement. You will not condescend to the reestablishment of a king or any other tyranny. You will not allow the opinion to prevail that subjection is necessary for the good and the tranquility of peoples. You are not tired, as they say; you proved that this is not so long ago. The same recent experience has also demonstrated that it’s not yet true that you are no longer strong. Despite cowardly massacres and horrible assassinations you are still superior to the partisans of slavery. You will not allow it to grow stronger, in whatever form it shows itself.

Rally with confidence around my coat of arms. My battle-ready lance is not the stiletto of a paid assassin of the Appian faction or the descendants of Tarquin. Compared to us, what are those miserable athletes who I see mechanically battling in the arena, who all have the physiognomy of venal gladiators who’ve broken their spears on behalf of all parties, and who will only ever have the métier of breaking them for whoever pays best? Compared to us, what can these pygmy champions, these armor carriers of the throne and the patricians do? No, there is no need to receive a stipend or to be inspired to fight like Hercules. If it’s already been seen that I tossed thunderbolts, it’s because I was as independent as the master of the gods. My quiver and arrows have been returned to me and we’ll yet again see thunder and lightning fly out from them. Along with you, friends, patriots, I am proud enough to guarantee my ability to pulverize and annihilate, with the flick of a wrist, Atlas and all the giant-indoctrinators and warriors, who so zealously work to win over souls, be it from the gilded million or from the monarch of France and Navarre.

Far from the defenders of the people, far from the people itself this diplomacy, this so-called Machiavellian prudence, this hypocritical policy that’s only worthy of tyrants and, when it was employed this past period by the patriots, cost them the best fruits of the victory if 13 Vendémiaire. Based on all available examples, my ideas led me to believe that in a people’s state the truth must always appear clear and naked. It must always be spoken: make it public, confide in the people all that concerns its major interests. Circumspection, dissimulation, whisperings among exclusive groups of men and so-called regulators only serve to kill energy, to render opinion erroneous, unstable, uncertain, and because of this, heedless and servile. It provides tyranny with all it needs to organize itself without any obstacles. Eternally persuaded that nothing great can be done without the People, I believe that in order to do anything with them its always necessary to tell them everything, ceaselessly show them what must be done, and we should fear less the inconveniences of the publicity from which politics profits, than count on the advantages of the colossal force that always undoes politics…we must calculate all the strength that is lost by leaving opinion apathetic, without aliment or object, and all that we gain in activating it, in enlightening it, in showing it a goal.

 

P.S. My journal will appear irregularly, five to six times a month, and even more. The size of the issues will not be uniform, since the importance of the subjects and the circumstances will lead each issue to have more or less pages. All reasonable readers will feel that a labor both substantive and of a kind that must be clearly thought through, cannot be measured in the same way as the routine work of newspapers that simply cover the news or are full of nothing.

 

Creation of an Insurrectionary Directory, 1796

Gracchus Babeuf 1796

Creation of an Insurrectionary Directory

French democrats, painfully affected, profoundly indignant, justly revolted by the sad spectacle offered by the unheard of state of misery and oppression of their country;

Penetrated by the memory that when a democratic constitution was given to the people and accepted by it, it was placed under the guard of all virtues;

Consequently, considering that the initiative of undertaking the avenging of the people when, like today, its rights are usurped, its freedom stolen and even its existence compromised, belongs to the purest and most courageous virtues;

Recognizing that it is an unfair reproach to accuse the people of cowardice, and that the people have only postponed justice till now because it lacked good leaders to appear at its head;

Recognizing that the overflowing measure of a usurping authority has ripened the disposition of all souls in favor of a revolutionary explosion, and this to such a point that in order to render it fruitful it would perhaps be necessary to temper rather than accelerate the impulse of free men in order to put the regulators in a position to assure its success;

They have resolved the following:

First Article
From this moment an Insurrectional Directory is formed, under the name of Secret Directorate of Public Salvation. In that quality they take the initiative of guiding all the movements that will lead the people to regain its sovereignty.

II. This Directory has four members

III. This Directory shall be secret; the names of its members will not even be known by the principal agents. Between the latter and the members of the Directorate there shall be intermediary members to effectuate communications between the former and the latter.

IV. The Secret Directory of Public Safety commits to fulfilling the immense scope of the obligations imposed by this great title.

V. A distinctive mark shall be placed on those written instructions that it will be indispensable to give to principal agents, and this mark shall serve to protect against any surprise through false instructions; it will guarantee, despite the lack of a signature, the authenticity of the acts they will receive from the Secret Directorate.

 

Fragment of a Projected Economic Decree, 1796

Gracchus Babeuf and the Conspiracy of the Equals 1796

Fragment of a Projected Economic Decree

In 1828, more than thirty years after the Conspiracy’s failure, Philippe (born in Pisa as Filippo, and a descendant of Michelangelo) Buonarroti, one of its leaders (and its greatest chronicler), set down on paper the new economic order the Equals sought to establish. It’s a vision that looks something like a Fourierist phalanstery, a kolkhoz, a kibbutz, and war communism, all growing from the left-wing of Jacobinism.

Art. 1

In the republic, there will be established a great national community

Art. 2

The national community consists of the following goods, to wit:

Goods which, having been declared national, were not sold the 9th Thermidor of the year II;

Goods of enemies of the Revolution, which the decrees of the 8th to the 13th Ventose of the year II had given the poor;

Goods having fallen due to the republic as a result of judicial condemnation;

Buildings currently occupied by the public service;

Goods which communes enjoyed use of before the law of June 10, 1793;

Goods turned over to alms-houses and establishments of public instruction;

Lodgings occupied by poor citizens in the carrying out of the proclamation to the French of …;

Goods of those who have abandoned the republic;

Goods usurped by those who enriched themselves in the exercise of public functions;

Goods whose owners neglect their cultivation.

Art. 3

The right of succession ab intestate or by testament is abolished; all goods currently owned by individuals will revert, upon their death, to the national community.

Art. 4

Shall be considered “current owner” those children of a father today living who are not called by law to the army.

Art. 5

Every Frenchman, of one or the other sex, who abandons to the fatherland all his goods, and who consecrates to it his person and the work of which he is capable is a member of the great national community.

Art. 6

The elderly, who have reached their 60th year, and the infirm, if they are poor, are by right members of the national community.

Art. 7

Are also members of the national community young people raised in national houses of education

Art. 8

The goods of the national community are exploited in common by all able-bodied members

Art. 9

The great national community maintains all its members in an equal and honest mediocrity; it furnishes them with all they need.

Art. 10

The republic invites good citizens to contribute to the success of this reform by a voluntary abandonment of their goods to the community.

Art. 11

Effective …, no one can be a civil or military functionary if he is not a member of said community.

Art. 12

The great national community is administered by local magistrates chosen by its members, under the laws and under the direction of the Supreme Administration.

Art. 13

…

ON COMMON LABOR

Art. 1

Every member of the national community owes it the agricultural labor and the useful arts of which he is capable.

Art. 2

The elderly aged 60 years and the infirm are excepted.

Art. 3

Those citizens who by the voluntary abandonment of their goods become members of the national community, will not be forced to submit to any painful labor, if they’ve reached their 40th year, and if they didn’t exercise a mechanical trade before the publication of the present decree.

Art. 4

In each commune the citizens are distributed by class; there are as many classes as useful arts; each class is composed of those who work in the same art.

Art. 5

In each class there are magistrates named by those who compose it. These magistrates direct the labor, ensure equal distribution, carry out the orders of the municipal administration, and set an example of zeal and activity.

Art. 6

For each season, the law determines the duration of the workday for members of the national community

Art. 7

Each municipal administration has a council of elders, delegated by each class of laborers; this council enlightens the administration on all that concerns the distribution, the lightening, and the improvement of work.

Art. 8

The supreme administration shall apply to the labors of the national community the use of machines and those processes needed to diminish the suffering of men.

Art. 9

The municipal administration constantly has before its eyes the state of the laborers of each class, and that of the tasks they must accomplish: it will regularly instruct the Supreme Administration of this.

Art. 10

The movement of laborers from one commune to another is ordered by the Supreme Administration, according to its knowledge of the strengths and needs of the community.

Art. 11

The Supreme Administration obliges to work at forced labor those individuals of the two sexes whose lack of civic spirit, idleness, profligacy, and disorders set society a pernicious example. Their goods are turned over to the national community.

Art. 12

The magistrates of each class watch over the stock in the storehouses of the national community, the fruits of the earth, and the products of the arts capable of conservation.

Art. 13

The accounting of these objects is regularly communicated to the Supreme Administration

Art. 14

The magistrates attached to the agricultural class have guard over the propagation and improvement of animals that can be used as food, clothing, transport, and for the lightening of human labor.

ON THE DISTRIBUTION AND USE OF COMMON GOODS

Art. 1

A member of the national community can only enjoy the use that which the law gives him by the real tradition of the magistrate.

Art. 2

From this time forward, the national community assures each of its members:

A healthy, comfortable, and properly furnished lodging; work and leisure clothes of linen or wool, in conformity with the national costume; laundry, lighting and heat; a sufficient quantity of foodstuffs in the form of bread, meat, fowl, fish, eggs, butter or oil, wine and other drinks commonly used in the various regions; vegetables, fruits, seasoning, and other objects with the gathering together of constitutes a mediocre and frugal ease; the assistance of the healing arts.

Art. 3

In each commune there will be, at pre-determined times, meals in common, which all members must attend.

Art. 4

The pay rate of public functionaries and the military will be the same as that of the members of the national community.

Art. 5

Any member of the national community who receives a salary, or keeps money, is punished.

Art. 6

Members of the national community can only receive the common ration in the district in which they reside, except for transfers authorized by the administration.

Art .7

The domicile of those who are currently citizens is that which they enjoy at the time of publication of the present decree. That of young people raised in houses of national education is their commune of birth.

Art. 8

In each community there are magistrates charged with the distribution to the homes of members of the national community of the products of agriculture and the arts.

Art. 9

The law determines the rules of this distribution

Art. 10

…

ON THE ADMINISTRATION OF THE NATIONAL COMMUNITY

Art. 1

The national community is under the legal direction of the Supreme Administration of the state.

Art. 2

In relation to administration, the republic is divided into regions.

Art. 3

A region consists of all contiguous departments of which the products are more or less the same.

Art. 4

In each region there is an Intermediate Administration to which Departmental Administrations are subordinated.

Art. 5

Telegraph lines speed up the correspondence between departmental and intermediate administrations, and between these and the Supreme Administration.

Art. 6

In accordance with the law, the Supreme Administration determines the nature and amount to be distributed to members of the community in each region.

Art. 7

In accordance with this determination, the Departmental Administration makes known to the Intermediate Administration the deficit or surplus of the respective districts.

Art. 8

As far as possible, the Intermediate Administrations fill the deficit of one department by the surplus of another, order deposits and necessary transport, and give an accounting to the Supreme Administration of their needs or their surplus.

Art. 9

The Supreme Administration meets the needs of regions that are lacking in certain objects with the overflow of those with too much, or by foreign trade.

Art. 10

Above all, every year the Supreme Administration deducts and deposits in military stores a tenth of all the community harvests.

Art. 11

It ensures that the surplus of the republic is carefully saved for famine years.

ON COMMERCE

Art. 1

All individual commerce with foreign peoples is forbidden. Any merchandise from this source will be confiscated to the profit of the national community. Violators will be punished.

Art. 2

The republic procures for the national community the objects it lacks by exchanging its surplus in agriculture and manufactured goods for those of foreign peoples.

Art 3

To this effect, appropriate warehouses are established on the land and sea borders.

Art. 4

The Supreme Administration trades with foreigners by means of its agents; it deposits the surplus that it wishes to exchange in the warehouses, where it receives from foreigners the agreed-upon goods.

Art. 5

The agents of the Supreme Administration in the commercial warehouses are often changed. The dishonest are severely punished.

ON TRANSPORT

Art. 1

In each commune there are magistrates charged with the directing of communal goods from one commune to another.

Art. 2

Each commune is granted sufficient means of transport, by land and by sea.

Art. 3

The members of the national community are in turn called upon to drive and keep guard over the objects transported from one commune to another.

Art. 4

Every year the Intermediate Administrations commission a certain number of young people, taken from all the departments subordinate to them, to carry out the most distant transports.

Art. 5

Citizens, commissioned to handle any transport, are maintained in the communes in which they are found.

Art. 6

The Supreme Administration transports from commune to commune those objects by which they fill the deficits of regions in need by the shortest route, under the guard of the Lower Administration.

ON CONTRIBUTIONS

Art. 1

Those individuals who do not participate in the national community are the sole taxpayers.

Art. 2

They owe the contributions established in the preceding.

Art. 3

These contributions will be made in kind, and deposited in the storehouses of the national community.

Art. 4

The sum due from this year’s taxpayers is double that of last year.

Art. 5

This total will be broken down by department, and levied against taxpayers in a progressive fashion.

Art. 6

Non-participants in the community can be required, in case of need, to deposit in the storehouse of the national community an advance on future contributions, in the form of their surplus of agricultural or manufactured goods.

ON DEBTS

Art. 1

The national debt is erased for all Frenchmen

Art 2

The republic will reimburse foreigners for the capital amount of the perpetual pensions it owes them. It sets the rates for this, as well as that of lifetime annuities, on a per capita basis.

Art. 3

The debts owed to another Frenchman by any Frenchman who becomes a member of the national community are erased.

Art. 4

The republic assumes responsibility for the debts owed by members of the community to foreigners

Art. 5

Any fraud in this matter is punished by perpetual slavery.

ON MONIES

Art. 1

The republic no longer issues money.

Art 2

Minted matter which falls due to the national community will be employed in purchasing from foreign peoples those objects it needs.

Art. 3

Any individual not participating in the community who shall be convicted of having offered minted matter to one of its members will be severely punished.

Art. 4

Neither gold nor silver will ever again be brought into the republic.

 

Manifesto of the Equals, 1796

Gracchus Babeuf and the Conspiracy of the Equals 1796

Manifesto of the Equals

Real equality, final goal of social art
-Condorcet

People of France!

For fifteen centuries you lived as a slave and, consequently, unhappy. For the last six years you barely breathe, waiting for independence, freedom and equality.

EQUALITY! The first wish of nature, the first need of man, the first knot of all legitimate association! People of France! You were not more blessed than the other nations which vegetate on this unfortunate globe! Everywhere and at all times the poor human race, handed over to more or less deft cannibals served as an object of all ambitions, as feed for all tyrannies. Everywhere and at all times men were lulled with beautiful words; at no time and in no place was the thing ever obtained through the word. From time immemorial they hypocritically repeat; all men are equal; and from time immemorial the most degrading and monstrous inequality insolently weighs upon the human race. As long as there have been human societies the most beautiful of humanity’s rights is recognized without contradiction, but was only able to be put in practice one time: equality was nothing but a beautiful and sterile legal fiction. And now that it is called for with an even stronger voice we are answered: be quiet, you wretches! Real equality is nothing but a chimera; be satisfied with conditional equality; you’re all equal before the law. What more do you want, filthy rabble? Legislators, you who hold power, rich landowners, it is now your turn to listen.

Are we not all equal? This principle remains uncontested, because unless touched by insanity, you can’t say it’s night when it’s day.

Well then! We claim to live and die equal, the way we were born: we want this real equality or death; that’s what we need.

And we’ll have this real equality, at whatever price. Unhappy will be those who stand between it and us! Unhappy will be those who resist a wish so firmly expressed.

The French Revolution was nothing but a precursor of another revolution, one that will be bigger, more solemn, and which will be the last.

The people marched over the bodies of kings and priests who were in league against it: it will do the same to the new tyrants, the new political Tartuffes seated in the place of the old.

What do we need besides equality of rights?

We need not only that equality of rights transcribed in the Declaration of the Rights of Man and Citizen; we want it in our midst, under the roofs of our houses. We consent to everything for it, to make a clean slate so that we hold to it alone. Let all the arts perish, if need be, as long as real equality remains!

Legislators and politicians, you have no more genius than you do good faith; gutless and rich landowners, in vain you attempt to neutralize our holy enterprise by saying: They do nothing but reproduce that agrarian law asked for more than once in the past.

Slanderers, be silent: and in the silence of your confusion listen to our demands, dictated by nature and based on justice.

The Agrarian law, or the partitioning of land, was the spontaneous demand of some unprincipled soldiers, of some towns moved more by their instinct than by reason. We reach for something more sublime and more just: the common good or the community of goods! No more individual property in land: the land belongs to no one. We demand, we want, the common enjoyment of the fruits of the land: the fruits belong to all.

We declare that we can no longer put up with the fact that the great majority work and sweat for the extreme minority.

Long enough, and for too long, less than a million individuals have disposed of that which belongs to 20 million of their like, their equals.

Let it at last end, this great scandal that our nephews will never believe existed! Disappear at last, revolting distinctions between rich and poor, great and small, masters and servants, rulers and ruled.

Let there no longer be any difference between people other than that of age and sex. Since all have the same faculties and the same needs, let there then be for them but one education, but one food. They are satisfied with one sun and one air for all: why then would the same portion and the same quality of food not suffice for each of them?

Already the enemies of the most natural order of things we can imagine raise a clamor against us.

They say to us: You are disorganisers and seditious; you want nothing but massacres and loot.

PEOPLE OF FRANCE:

We won’t waste our time responding to them; we tell you: the holy enterprise that we are organizing has no other goal than to put an end to civil dissension and public misery.

Never has a plan more vast been conceived of or carried out. Here and there several men of genius, several wise men, have spoken in a low and trembling voice. None have had the courage to tell the whole truth.

The moment of great measures has arrived. Evil has reached its height: it covers the face of the earth. Under the name of politics, chaos has reigned for too many centuries. Let everything be set in order and take once again its proper place. In the voice of equality, let the supporters of justice and happiness organize. The moment has come to found the REPUBLIC OF EQUALS, this great home open to all men. The day of general restitution has arrived. Groaning families, come sit at the common table set by nature for all its children.

PEOPLE OF FRANCE:

The purest of all glories was thus reserved for you! Yes it is you who the first should offer the world this touching spectacle.

Ancient habits, antique fears, would again like to block the establishment of the Republic of Equals. The organization of real equality, the only one that responds to all needs, without causing any victims, without costing any sacrifice, will not at first please everyone. The selfish, the ambitious, will tremble with rage. Those who possess unjustly will cry out about injustice. The loss of the enjoyments of the few, solitary pleasures, personal ease will cause lively regret to those heedless of the pain of others. The lovers of absolute power, the henchmen of arbitrary authority, will with difficulty bow their superb heads before the level of real equality. Their shortsightedness will penetrate with difficulty the imminent future of common happiness; but what can a few thousand malcontents do against a mass of happy men, surprised to have searched so long for a happiness that they had in their hands.

The day after this real revolution, they’ll say with astonishment: What? Common happiness was so easy to obtain? All we had to do was want it? Why oh why didn’t we desire it sooner? Did they really have to make us speak of it so many times? Yes, without a doubt, one lone man on earth richer, stronger than his like, than his equals, and the balance is thrown off: crime and unhappiness are on earth.

PEOPLE OF FRANCE;

By what sign will you now recognize the excellence of a constitution? …That which rests in its entirety on real equality is the only one that can suit you and fulfill all your wishes.

The aristocratic charters of 1791 and 1795 tightened your chains instead of breaking them. That of 1793 was a great step towards true equality, and we had never before approached it so closely. But it did not yet touch the goal, nor reach common happiness, which it nevertheless solemnly consecrated as its great principle.

PEOPLE OF FRANCE,

Open your eyes and your hearts to the fullness of happiness: recognize and proclaim with us the REPUBLIC OF EQUALS.

Fragment of a Projected Speech to the Victorious People, 1796

Gracchus Babeuf and the Conspiracy of the Equals 1796

Fragment of a Projected Economic Decree

Art. 1

In the republic, there will be established a great national community

Art. 2

The national community consists of the following goods, to wit:

Goods which, having been declared national, were not sold the 9th Thermidor of the year II;

Goods of enemies of the Revolution, which the decrees of the 8th to the 13th Ventose of the year II had given the poor;

Goods having fallen due to the republic as a result of judicial condemnation;

Buildings currently occupied by the public service;

Goods which communes enjoyed use of before the law of June 10, 1793;

Goods turned over to alms-houses and establishments of public instruction;

Lodgings occupied by poor citizens in the carrying out of the proclamation to the French of …;

Goods of those who have abandoned the republic;

Goods usurped by those who enriched themselves in the exercise of public functions;

Goods whose owners neglect their cultivation.

Art. 3

The right of succession ab intestate or by testament is abolished; all goods currently owned by individuals will revert, upon their death, to the national community.

Art. 4

Shall be considered “current owner” those children of a father today living who are not called by law to the army.

Art. 5

Every Frenchman, of one or the other sex, who abandons to the fatherland all his goods, and who consecrates to it his person and the work of which he is capable is a member of the great national community.

Art. 6

The elderly, who have reached their 60th year, and the infirm, if they are poor, are by right members of the national community.

Art. 7

Are also members of the national community young people raised in national houses of education

Art. 8

The goods of the national community are exploited in common by all able-bodied members

Art. 9

The great national community maintains all its members in an equal and honest mediocrity; it furnishes them with all they need.

Art. 10

The republic invites good citizens to contribute to the success of this reform by a voluntary abandonment of their goods to the community.

Art. 11

Effective …, no one can be a civil or military functionary if he is not a member of said community.

Art. 12

The great national community is administered by local magistrates chosen by its members, under the laws and under the direction of the Supreme Administration.

Art. 13

…

ON COMMON LABOR

Art. 1

Every member of the national community owes it the agricultural labor and the useful arts of which he is capable.

Art. 2

The elderly aged 60 years and the infirm are excepted.

Art. 3

Those citizens who by the voluntary abandonment of their goods become members of the national community, will not be forced to submit to any painful labor, if they’ve reached their 40th year, and if they didn’t exercise a mechanical trade before the publication of the present decree.

Art. 4

In each commune the citizens are distributed by class; there are as many classes as useful arts; each class is composed of those who work in the same art.

Art. 5

In each class there are magistrates named by those who compose it. These magistrates direct the labor, ensure equal distribution, carry out the orders of the municipal administration, and set an example of zeal and activity.

Art. 6

For each season, the law determines the duration of the workday for members of the national community

Art. 7

Each municipal administration has a council of elders, delegated by each class of laborers; this council enlightens the administration on all that concerns the distribution, the lightening, and the improvement of work.

Art. 8

The supreme administration shall apply to the labors of the national community the use of machines and those processes needed to diminish the suffering of men.

Art. 9

The municipal administration constantly has before its eyes the state of the laborers of each class, and that of the tasks they must accomplish: it will regularly instruct the Supreme Administration of this.

Art. 10

The movement of laborers from one commune to another is ordered by the Supreme Administration, according to its knowledge of the strengths and needs of the community.

Art. 11

The Supreme Administration obliges to work at forced labor those individuals of the two sexes whose lack of civic spirit, idleness, profligacy, and disorders set society a pernicious example. Their goods are turned over to the national community.

Art. 12

The magistrates of each class watch over the stock in the storehouses of the national community, the fruits of the earth, and the products of the arts capable of conservation.

Art. 13

The accounting of these objects is regularly communicated to the Supreme Administration

Art. 14

The magistrates attached to the agricultural class have guard over the propagation and improvement of animals that can be used as food, clothing, transport, and for the lightening of human labor.

ON THE DISTRIBUTION AND USE OF COMMON GOODS

Art. 1

A member of the national community can only enjoy the use that which the law gives him by the real tradition of the magistrate.

Art. 2

From this time forward, the national community assures each of its members:

A healthy, comfortable, and properly furnished lodging; work and leisure clothes of linen or wool, in conformity with the national costume; laundry, lighting and heat; a sufficient quantity of foodstuffs in the form of bread, meat, fowl, fish, eggs, butter or oil, wine and other drinks commonly used in the various regions; vegetables, fruits, seasoning, and other objects with the gathering together of constitutes a mediocre and frugal ease; the assistance of the healing arts.

Art. 3

In each commune there will be, at pre-determined times, meals in common, which all members must attend.

Art. 4

The pay rate of public functionaries and the military will be the same as that of the members of the national community.

Art. 5

Any member of the national community who receives a salary, or keeps money, is punished.

Art. 6

Members of the national community can only receive the common ration in the district in which they reside, except for transfers authorized by the administration.

Art .7

The domicile of those who are currently citizens is that which they enjoy at the time of publication of the present decree. That of young people raised in houses of national education is their commune of birth.

Art. 8

In each community there are magistrates charged with the distribution to the homes of members of the national community of the products of agriculture and the arts.

Art. 9

The law determines the rules of this distribution

Art. 10

…

ON THE ADMINISTRATION OF THE NATIONAL COMMUNITY

Art. 1

The national community is under the legal direction of the Supreme Administration of the state.

Art. 2

In relation to administration, the republic is divided into regions.

Art. 3

A region consists of all contiguous departments of which the products are more or less the same.

Art. 4

In each region there is an Intermediate Administration to which Departmental Administrations are subordinated.

Art. 5

Telegraph lines speed up the correspondence between departmental and intermediate administrations, and between these and the Supreme Administration.

Art. 6

In accordance with the law, the Supreme Administration determines the nature and amount to be distributed to members of the community in each region.

Art. 7

In accordance with this determination, the Departmental Administration makes known to the Intermediate Administration the deficit or surplus of the respective districts.

Art. 8

As far as possible, the Intermediate Administrations fill the deficit of one department by the surplus of another, order deposits and necessary transport, and give an accounting to the Supreme Administration of their needs or their surplus.

Art. 9

The Supreme Administration meets the needs of regions that are lacking in certain objects with the overflow of those with too much, or by foreign trade.

Art. 10

Above all, every year the Supreme Administration deducts and deposits in military stores a tenth of all the community harvests.

Art. 11

It ensures that the surplus of the republic is carefully saved for famine years.

ON COMMERCE

Art. 1

All individual commerce with foreign peoples is forbidden. Any merchandise from this source will be confiscated to the profit of the national community. Violators will be punished.

Art. 2

The republic procures for the national community the objects it lacks by exchanging its surplus in agriculture and manufactured goods for those of foreign peoples.

Art 3

To this effect, appropriate warehouses are established on the land and sea borders.

Art. 4

The Supreme Administration trades with foreigners by means of its agents; it deposits the surplus that it wishes to exchange in the warehouses, where it receives from foreigners the agreed-upon goods.

Art. 5

The agents of the Supreme Administration in the commercial warehouses are often changed. The dishonest are severely punished.

ON TRANSPORT

Art. 1

In each commune there are magistrates charged with the directing of communal goods from one commune to another.

Art. 2

Each commune is granted sufficient means of transport, by land and by sea.

Art. 3

The members of the national community are in turn called upon to drive and keep guard over the objects transported from one commune to another.

Art. 4

Every year the Intermediate Administrations commission a certain number of young people, taken from all the departments subordinate to them, to carry out the most distant transports.

Art. 5

Citizens, commissioned to handle any transport, are maintained in the communes in which they are found.

Art. 6

The Supreme Administration transports from commune to commune those objects by which they fill the deficits of regions in need by the shortest route, under the guard of the Lower Administration.

ON CONTRIBUTIONS

Art. 1

Those individuals who do not participate in the national community are the sole taxpayers.

Art. 2

They owe the contributions established in the preceding.

Art. 3

These contributions will be made in kind, and deposited in the storehouses of the national community.

Art. 4

The sum due from this year’s taxpayers is double that of last year.

Art. 5

This total will be broken down by department, and levied against taxpayers in a progressive fashion.

Art. 6

Non-participants in the community can be required, in case of need, to deposit in the storehouse of the national community an advance on future contributions, in the form of their surplus of agricultural or manufactured goods.

ON DEBTS

Art. 1

The national debt is erased for all Frenchmen

Art 2

The republic will reimburse foreigners for the capital amount of the perpetual pensions it owes them. It sets the rates for this, as well as that of lifetime annuities, on a per capita basis.

Art. 3

The debts owed to another Frenchman by any Frenchman who becomes a member of the national community are erased.

Art. 4

The republic assumes responsibility for the debts owed by members of the community to foreigners

Art. 5

Any fraud in this matter is punished by perpetual slavery.

ON MONIES

Art. 1

The republic no longer issues money.

Art 2

Minted matter which falls due to the national community will be employed in purchasing from foreign peoples those objects it needs.

Art. 3

Any individual not participating in the community who shall be convicted of having offered minted matter to one of its members will be severely punished.

Art. 4

Neither gold nor silver will ever again be brought into the republic.

Analysis of the Doctrine of Babeuf, 1797

Gracchus Babeuf and the Conspiracy of the Equals 1797

Analysis of the Doctrine of Babeuf

In April 1796, hundreds of placards of the Analysis of the Doctrine of Babeuf were pasted up around Paris. Though not written by Babeuf, the text was officially sanctioned by the leaders of the Conspiracy. Its doctrine is heavily Rousseauist, and the form strangely resembles that of Spinoza’s Ethics, with the truth of the statements backed up by separate sections of proofs. There was a guerilla war around these posters, as the Equals would paste them up, and opponents would tear them down, only to see the Conspirators put them back up again.

Proscribed by the Directory for having told the truth

Art 1

Nature gave every man an equal right to the full enjoyment of his goods.

Proofs drawn from the discussion piece

Before they were first brought together, all men were equally the masters of the products which nature profusely spread around them.

1. When men were brought together on uncultivated land, what could establish inequality among them? Is it their natural differences? They all have the same organs and the same needs. Is it the dependence of some on others? But no one was strong enough to enslave his like, when the smallest discontent could cause him to move elsewhere; and the advantages of mutual aid and benevolence made it necessary for all of them to respect in others the rights which they felt were invested in them by nature. Is it the ferocity of their hearts? But compassion is the immediate result of their organization, and ferocity is born of the frustration of the passions. Is it an innate tendency towards humiliation and servitude? But the mere sight of this is a painful sensation, a source of jealousy and hatred for even the most savage beings.
2. If families are the first models of society, they are also the most striking proof of the rights of which we speak. Equality is a pledge of the tenderness of fathers, of the union and happiness of children. And if it’s broken? Sorrow and jealousy introduce disorder and violence. Everything concerning the love of parents, inspires in children the hatred of partiality, which parents themselves cannot apply without risking the introduction of dangerous passions into the family.
3. The most strict equality had to be consecrated in the first agreements among men, for what could make men who had up to then been enemies of any form of distinction consent to privations and inferiority?
4. The neglect of equality has introduced among men:

False ideas of happiness;
The straying of the passions;
The dwindling away of the species;
Violence, troubles, and wars;
The tyranny of some and the oppression of others;

Civic, political and religious institutions which, in consecrating injustice have finally dissolved societies, after having for a long time torn them apart.

The sight of distinctions, of the pomp and luxury that they don’t enjoy, was and will always be for the multitude an endless source of torment and worries. It is given to only a small number of wise men to avoid corruption, and once they’ve been separated from it, moderation is a good that the common folk no longer know how to appreciate.

What happens if some citizens create new needs, and they introduce into their pleasures refinements unknown to the multitude? Simplicity is then no longer loved, and happiness ceases to be found in an active life and a peaceful soul; distinctions and delight become the supreme good; no one is any longer satisfied with his state, and all seek in vain the happiness to which inequality has closed access to society.

The more distinctions one obtains, the more one wants, and the more jealousy and envy are excited; this is the source of so many extravagant enterprises; this is the source of the unquenchable and criminal thirst for gold and power; this is the source of hatred, violence and murder; this is the source of the bloody wars caused by a spirit of conquest and a jealousy of commerce, which don’t leave sorrowful humanity a single moment of rest.

In the midst of this overturning of ideas, weakness and sorrow destroy one portion of the species, enervates the other, and prepares for society generations incapable of defending it. From the attachment to distinctions is born the precautions we take to preserve them, despite the envy and the discontent they engender; these precautions take the form of barbaric laws, exclusionary forms of government, religious fables, servile morality: in a word, tyranny on one side, oppression on the other. Nevertheless, the voice of nature cannot be entirely stilled; it sometimes makes its ungrateful children blush; it avenges by its thunderous peal humanity’s tears, and if it rarely manages to reestablish itself in its rights, it always manages to disrupt those societies that ignore its laws.

If the equality of goods follows from that of our organs and our needs, if public and individual unhappiness, if the ruin of societies are the necessary effects of the blows which are struck against it, then this equality is a natural right.

Art. 2

The goal of society is to defend this equality, often attacked in the state of nature by the strong and the wicked, and to add to common happiness by the working together of all.

Proofs:

1. We mean by society an association guided by agreed upon rules; and by state of nature accidental and imperfect society, in which men necessarily found themselves before submitting themselves to laws.
2. Without examining here if attacks on liberty, such as those mentioned in this Article, can have taken place in the state of nature, it is obvious that if the inconveniences of that state determined men to establish laws, it was only those inconveniences that are born of the violation of equality. Whatever the case, the preservation of equality is the goal of association, because it’s only through it that men gathered together can be happy.
3. In uniting their forces, mankind surely wanted to assure itself the maximum of pleasure with the minimum of pain.

The abundance of necessary things assures these pleasures, and is itself assured by the labor of those who are leagued together. This labor is reduced to the minimum for each of them only when it is shared by all.

Art. 3

Nature has imposed on everyone the obligation to work; no one can, without committing a crime, shirk labor.

Proofs

1. Labor is a precept of nature for all.

1st — Because a man isolated in the desert could not, without some form of labor, obtain subsistence.

2nd — because the activity occasioned by moderate labor is a source of health and recreation for man.

2. This obligation could not be weakened by society, either for all as a group or each as an individual.

1st — Because its preservation depends on this

2nd — Because each one’s toils are the least possible only if all participate.

Art. 4

Labor and pleasures should be in common

Explanation

That is to say that all must put up with an equal amount of work, and draw from it an equal amount of goods.

The justice of this principle flows from the proofs of Articles One to Three above. But what do we mean by community of labor? Do we want all citizens to be forced to do the same work? No; but we want all the different labors to be so shared that no able-bodied individual is idle. We want the increase in the number of workers to guarantee public abundance; we want it to be that in return each receive from the fatherland all he needs to meet his natural needs, as well as those artificial needs which all can satisfy.

An objection can be made: What would become of the productions of industry that are the fruit of time and industry? Is it not to be feared that, not being paid any more than other jobs, they vanish to the detriment of society? Sophism! It is to the love of glory, and not the love of riches that are owed for all time the efforts of genius. Millions of poor soldiers go to their deaths for the honor of serving the whims of a cruel master. How can we doubt of the powerful effect that happiness, love of equality and the fatherland, and the workings of a wise political system can have on the human heart? And would we have any need of the glitter of art, and the showiness of luxury, if we had the joy of living under the laws of equality?

Art. 5

Oppression exists when there is one who wears himself out at work and lacks everything, while another swims in abundance while doing nothing.

Proofs

1 — Inequality and oppression are synonymous. If to oppress someone is to violate the law as it relates to him, those who are weighed down by inequality are oppressed, because inequality wounds natural law, to which it is absurd to oppose human laws.

2 — To oppress means: to restrict someone’s faculties, or to increase his burden. This is precisely what inequality does in diminishing the joys of he whose obligations it increases.

Art. 6

No one can, without committing a crime, exclusively expropriate the goods of the earth or of industry

Explanation and Proofs

If we can demonstrate that inequality has no other cause than this exclusive expropriation, we will have demonstrated the crime of those who introduce the distinction of mine and yours.

Private property was born the moment lands were parceled out. From that point everyone was absolute master of all he could take out of the fields that fell to him and the work he carried out.

It is probable that men working in the arts of primary necessity were at the same time excluded from any territorial possession, which they were in any case unable to exploit. Some were thus the masters of the things necessary for existence; others had a right to nothing but the salary the first group was willing to pay them. Nevertheless, this didn’t bring about any perceptible change, as long as the number of salaried employees didn’t exceed the number of landowners. But as soon as natural events, the thrift, or the skill of some; the wastefulness or the handicaps of the others, and territorial property having been brought together in the hands of a few families, those receiving salaries became more numerous than those paying salaries, and the former were at the mercy of the latter who, proud of their opulence, reduced the others to a frugal lifestyle.

It is from this revolution that the sinister effects of inequality outlined in Art 1 date. Since then, we have seen the idler, by a revolting injustice, live by the sweat of the working man, overwhelmed under the weight of fatigues and privations; we have seen the rich as if they were master take control of the state and dictate tyrannical laws to the poor brutalized by need, degraded by ignorance and fooled by religion.

Unhappiness and slavery flow from inequality, and the latter from property. Property is thus the greatest of society’s plagues. It is a veritable public offence.

It will be said that property existed prior to society, and that society was formed to defend it. But how could we have had even the idea of such a right, as long as contracts didn’t assure to the owner the fruits of his labor? How can society owe its origin to that institution the most subversive of social feeling?

Let no one tell us that it’s only fair that the hard-working and thrifty should be paid to live in opulence and the idler punished by misery. It is doubtless only fair that the active man, in paying off his debt, receive from the fatherland what it can give him without ruining itself; it’s only fair that he be repaid in public recognition. But he can’t, for all that, acquire the right to poison his country, no more than a soldier by his valor acquires that to enslave.

There are certainly some evil subjects who have only their own vices to blame for the misery to which they’re reduced , but it’s not likely that all of the poor can be put in that class. A large mass of field and factory workers live on bread and water, in order that the vile libertine enjoy in peace the inheritance of an inhuman father, and so that a millionaire manufacturer can send cheap fabrics and jewels to other countries, that in turn supply our lazy sybarites Arabian perfumes and exotic birds. These evil subjects, would they be so without the vices and follies to which they are dragged by the social institutions which punish them for the effects of the passions whose development it provokes?

Art 7

In a real society there should be neither rich nor poor.

Art 8

The rich who don’t renounce their excess in favor of the indigent are the enemies of the people.

Art 9

No one can, through the accumulation off all means available, deprive another of the instruction necessary for his happiness. Instruction must be for all.

Proofs

1. This accumulation blocks working people from even the possibility of acquiring the knowledge necessary for every citizen.
2. Even if the people don’t require a broad education, they need some education in order not to be the prey of tricksters and so-called experts. It must know its rights and its obligations.

Art. 10

The goal of the revolution is to destroy inequality and restore common happiness

Proofs

Who is the honest man who would want to deliver his fellow citizens to the convulsions and evils of a political revolution which would have as its goal to render them more unhappy still, or to put them in a state from which would flow their total ruin? To skillfully seize the moment for reform is not the least of tasks for a clever and virtuous politics.

Art. 11

The constitution of 1793 is the true constitution of the French, for the people solemnly accepted it; because the Convention did not have the right to change it; because in order to arrive at this, they shot down the people who demanded its fulfillment; because it chased and killed those deputies who did their duty in defending it; because terror against the people and the influence of emigrants presided over the writing and the acceptance of the constitution of 1795, which didn’t even receive a quarter of the votes of that of 1793; because the constitution of 1793 consecrated the inalienable rights of each citizen to consent to laws, to exercise political rights, to assemble, to demand that which it considers useful, to be educated and not die of hunger; rights which the counter-revolutionary act of 1795 openly and completely violated.

Art 13

Every citizen is obligated to re-establish and defend in the constitution of 1793 the will and the happiness of the people.

Art. 14

All powers emanating from the so-called constitution of 1795 are illegal and counter-revolutionary.

Art 15

Those who raised their hand to the constitution of 1793 are guilty of the crime of lese majesté against the people.

Babeuf’s last letter to his family before his execution, 1797

Gracchus Babeuf and the Conspiracy of the Equals 1797

Babeuf’s last letter to his family before his execution

To my wife and my children:

Good evening, my friends. I am ready to wrap myself in the eternal night. I express myself better to the friend to whom I addressed the two letters you saw; I better express to him my situation as far as it concerns you than I do to you yourselves. It seems that feeling too much, I feel nothing. I put your fate in his hands. Alas, I don’t know if you’ll find him in a position to do what I ask of him: I don’t know how you can reach him. Your love for me has led you here through all of poverty’s obstacles. Your faithful feelings have led you to follow every instant of this long and cruel proceeding which you, like me, have drunk to the dregs; but I don’t know how you will return to the place from which you started; I don’t know how my memory will be appreciated, though I believe I carried myself in an irreproachable manner; finally, I don’t know what will become of the republicans, their families, and even the babies still at their mothers’ breasts, in the midst of the royalist fury that the counter-revolution will bring. O my friends! How heart-rending these thought are in my final moments!… To die for the fatherland, to leave a family, children, a beloved wife, all would be bearable if at the end of this I didn’t see liberty lost, and all that belongs to sincere republicans wrapped in a horrible proscription. Ah, my tender children! What will become of you? I can’t defend myself against the strongest of feelings…. Don’t think that I feel any regret for having sacrificed myself for the most beautiful of causes; even if all I did for it was useless, I fulfilled my task…

If contrary to my expectations you are able to survive the terrible storm that breaks over the republic and everything connected to it, if you are able once again to find yourselves in a peaceful situation, and find a few friends who can assist you in triumphing over your ill fortune, I suggest that you all live together ; I recommend to my wife that she attempt to guide the children with much kindness, and I recommend to my children that they merit the kindnesses of their mother, by respecting her and always obeying her wishes. The family of a martyr for freedom must set an example of all the virtues, in order to attract the esteem and the attachment of all good people. I would like my wife to do everything possible to give her children an education, by having all her friends assist her in doing everything that is possible for them with this aim in view. I invite Emile to accept this wish on the part of a father who believes he was loved, and who loved in his turn; I invite him to do so without wasting any time, and as soon as possible.

My friends, I hope you’ll remember me, and that you’ll speak of me often. I hope that you’ll believe that I always loved you. I couldn’t conceive of any other way to make you happy than through the happiness of all. I failed; I sacrificed myself; it is also for you that I die.

Speak of me often with Camille; tell him thousands and thousands of times that I had him with tenderness in my heart.

Say the same to Caius, when he’ll be able to understand it.

Lebois has said that he’ll publish our defense separately: you must give mine the widest possible publicity. I recommend to my wife, my good friend, that she never give Baudoin, Lebois, or anyone else a copy of my defense without having another correct one in her possession, in order to be sure that this defense is never lost. You will know, my dear friend, that this defense is precious, and that it will always be dear to the virtuous hearts of the friends of their country. The only property that will be left to you will be my reputation. And I am sure that you and the children will be consoled in having possession of it. You will love hearing all feeling and upright hearts say, in speaking of your spouse: he was perfectly virtuous.

Farewell. I hold on to the earth by a thread, which tomorrow shall break. This is certain, I see it clearly. The sacrifice must be made. The evil are the stronger, and I surrender to them. At least it is sweet to die with a conscience as clean as mine; the only thing that is cruel, that is heart-rending, is to tear myself from your arms, O my tender friends! O all that is dear to me!!! I tear myself away; the violence is done…Farewell, farewell, ten million times farewell…

…One more word. Write to my mother and my sisters. Send them, by coach or otherwise, my defense as soon as it’s published. Tell them how I died, and try to make these good people understand that such a death is glorious and far from being dishonorable…

So farewell again , my beloved, my tender friends. Farewell forever. I wrap myself in a breast of a virtuous sleep…

G. Babeuf

Babeuf and the Conspiracy of the Equals, E. Belfort Bax, 1911

Ernest Belfort Bax

The Last Episode of the French Revolution
Being a History of
Gracchus Babeuf
and the Conspiracy of the Equals

(1911)

 

List of Authorities

Preface

Introduction

I. Origin and Youth of Babeuf

II. The Revolutionary Drama Opens

III. Vicissitudes of Fortune and Ripening of Ideas

IV. The Society of the Pantheon

V. The Secret Directory and its Principles

VI. The Projected Insurrection and its Plans

VII. The Catastrophe

VIII. The Trial of Babeuf and his Colleagues

IX. End of Trial, and Tragic Death of Babeuf

X. Conclusion

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Note on Authorities

As the principal sources that have been used in the preparation the following study may be mentioned:

(1) The careful and exhaustive Histoire de Gracchus Babeuf et du Babouvisme, largely based on hitherto unpublished documents, by M. Victor Advielle. 2 vols. (Paris, 1884).

(2) Gracchus Babeuf et le Conspiration des Egaux, by Philippe Buonarroti (Paris, 1830), a first-hand narrative by one of the principal actors in the drama he describes.

(3) Babeuf et le Socialisme en 1796, par Edouard Fleury (Paris, 1851), a book preserving some interesting details, but prejudiced and not altogether reliable.

(4) Among the contemporary sources for the history of the movement, the Copie des Pieces saisies dons le local que Babeuf occupait lors de son arrestation (Paris, Nivose, Ann. V.) occupies an important place. It consists in a volume officially published by the High Court immediately after the trial, containing a complete collection of the pieces de conviction which formed the basis of the prosecution.

(5) The collection of the numbers of Babeuf’s journals, the Journal de la Liberty de la Presse and the Tribun du Peuple, together with the few numbers of the Éclaireur, a journal published for a short time by Babeuf’s friend Sylvain Maréchal, to be found in the Bibliotheque Nationale in Paris.

Other, minor, references are given in the text.

Allusions to, and accounts of, the movement are, of course, to be found in all the journals of the time, but they are for the most part utterly prejudiced, and contain no facts of importance not given by Buonarroti or contained in the officially published documents.

 

Philippe Buonarotti.

The Conspiracy of Equals

Philippe Buonarotti

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Source: Notice Biographique sur Buonarotti. Epinal, 1838;
Translated: for marxists.org by Mitch Abidor.

---

Philippe Buonarotti, descendant of the great Michelangelo Buonarotti, was born in Pisa on November 11, 1761. He could easily have obtained the favor of princes, but only ever incurred their rage. He was only twelve when Grand Duke Leopold who, feeling affection for his father had decorated him with the cordon de Saint-Etienne, amused himself by having the young Philippe play with the bauble. It is said that he himself had received that order, but this is not true: Buonarotti never wore a single decoration. Barely embarked upon real life he tore up his letters of noblesse and renounced all his family privileges. Of an illustrious origin, he had the vigor, the love of labor, the patience and the courage of a man of the people. He owed his illustriousness to his own popular virtues alone.

He attracted the displeasure and anger of the prince who had attempted to awaken the desire for external distinctions as soon as the French Revolution broke out because of his ardor in saluting it with his wishes and efforts. Forced to seek refuge in Corsica, he published there a newspaper entitled “The Friend of Italian Freedom.” In 1792 he left his retirement and went to Paris, where the energetic and sincere expression of his republicanism made him stand out at the Jacobin Society. Sent as an envoy to Corsica with extraordinary powers, upon his return he had the Convention pronounce the joining of the island of Saint-Pierre, near Sardinia, to French territory. The Committee of Public Safety then honored him with several missions, both in the French interior and beyond the Alps. He rendered great service to the Italian states, where he had been delegated as agent of the French Republic, until he was arrested at the time of the Thermidorian reaction and brought back to Paris. Buonarotti then began the long career of persecutions that he sanctified by a complete sacrifice of that which commonly attaches men to life. This time he remained a prisoner until the month of Vendémiaire, year IV in the prison of Plessis where he formed ties with Babeuf, Germain, and a great number of departmental revolutionary committees, ties which were to cause him to be rudely tested. Here is how he expressed himself on the time of his first captivity in his book titled Conspiration de Babeuf:

“From these houses of pain burst the electric sparks that so many times made the new tyranny go pale. A spectacle as touching as it was new beautified the interior of prisons: those that aristocracy had plunged there lived in the most intimate frugality; took honor from their chains and poverty, the result of their patriotic devotion; gave themselves over to work and study and conversed only about the ills of the fatherland and the means of ending them. The singing in chorus of civic songs every evening brought together a crowd of citizens attracted by their curiosity or the analogousness of their sentiments with those of the prisoners.”

Buonarotti’s first imprisonment having increased the patriotic party’s confidence in him, when freed for a few instants he was charged with the command at Loano. He was recalled after being denounced. From that time on he observed the march of affairs, reproved them and, just as an austere judge has the sentence he conscientiously pronounced carried out without remorse, he occupied himself solely with actively conspiring against the government he had condemned in the probity of his soul. Arrested with Babeuf and Darthe he, like them, disdained to bargain for his life by having recourse to denial. “Brought before the high court of Vendome,” we read in the Biographie des contemporains by Rabbe, “he took pride in having taken part in the projected insurrection for which he was accused, and solemnly professed his devotion to pure democracy. The public ministry, which judged him as guilty as the actual chief of the conspiracy, demanded the death penalty for him. But the jury only pronounced the death penalty for Babeuf and Darthe and struck Germain, Cazin, Moroy, Blondeau, Menessier and Buonarotti with deportation. “ It was on the very bench of the accused that the latter made the promise to his two friends who were about to die that he would dispel the slanders spread about them. He kept this promise after having devoted thirty-two years of study to the examination of the immense questions he was to raise; so fearful was this honest soul of spreading any kind of error that could surprise him. The book La Conspiration de Babeuf only came out in 1828 in Brussels.

It would be appropriate here to point out an error in the biography that was just cited. It is said that Buonarotti obtained the commutation of his sentence to the simple surveillance that he underwent until 1806 in a city in the Alpes Maritimes. Buonarotti never asked for anything, never addressed a single plea to those in power.

Those condemned to deportation were taken to the fort constructed on Pelée Island at the entry to the harbor of Cherbourg. They traversed the long route that separated them from it in barred cages, sometimes exposed to insults and threats, sometimes receiving the most touching signs of affection and respect. At Falaise, Caen, and Valogne they suffered imminent danger, but they were received with friendship and honors at Mellereau, Argentan and Saint-Lo. In this last city the mayor, at the head of the municipal body, congratulated them and embraced them, calling them our unfortunate brothers. He said: “ You defended the rights of the people. Every good citizen owes you love and recognition.” By decree of the general council they were lodged in the meeting room, where they received the most tender care and consolations.

The deportees awaited their transport to Guyana for quite some time at the fort of Cherbourg. Finally, in the year VIII, they were taken to the island of Oleron. It was from there that Buonarotti, without having been told of either the cause or the execution of this measure, was removed and sentenced to surveillance in a city in the east. Perhaps the First Consul remembered that for a brief time he had lived in the same room and slept in the same bed with he whose noble misfortune caused him a too bitter remorse.

Nevertheless, the man who had heard Bonaparte cry out after May 31: “Here’s a good occasion to make myself King of France” and who had judged the man, didn’t hide his thoughts about the new emperor, exiled though he was. “The cause of freedom,” he said, “is once again condemned by the aristocrats, who prefer engorging themselves with gold, decking themselves with braids, and crawling under the scepter of a soldier, to living free and equal with the people.” He couldn’t remain in France and retired to the area of Geneva, where he lived modestly from his profession of composer. This was one more thing he had in common with J-J Rousseau, whose contemporary and devoted follower he was. Brought up in a Jesuit college he had been tormented there for having read Rousseau.

European diplomacy didn’t allow him any repose and obtained his expulsion from Swiss territory. He took refuge in Belgium and remained there until the July Revolution.

It can be seen how much he loved the people. He made the following reflections on the constitution of the year III, which can be applied to many others:

“In order to impose silence on all its pretensions and to forever close all paths to innovations favorable to the people, all of their political rights were either stolen or truncated. Laws are made without its participation and without their being able to exercise any kind of censure over them. The constitution forever enchains them, both themselves and their posterity, for it is forbidden to them to change it. It declares the people sovereign but any deliberation by the people is declared seditious. After having spoken in a confused fashion of equality of rights, the rights of the mass of citizens is taken from them there, and that of naming to principal state functions is exclusively reserved to the well-to-do. Finally, in order to forever maintain that unfortunate inequality, the source of immorality, injustice and oppression, the authors of that constitution carefully cast aside any institution tending to enlighten the entire nation, to form republican youth, to diminish the ravages and damages of ambition, to rectify public opinion, to improve morals, or to rescue the mass of the people from the idle and the ambitious.

“As soon as wealth was made the basis for the happiness and strength of society, they were necessarily led to refuse the exercise of political rights to all those who, through their fortune, don’t offer a guarantee of their attachment to that order, reputed to be the good par excellence.

“It’s a fact worthy of observation that the national energy for the defense of the revolution increases or decreases according to whether or not the laws favor equality or distance themselves from it. It’s the working class, so unjustly held in contempt, which gave birth to so many prodigious acts of devotion and virtue. Almost everyone else has constantly hindered public regeneration.”

Listen to his judgment on the goal proposed by Jean-Jacques:

“Rousseau proclaimed the rights inseparable from human nature. He pleaded for all men without distinction. He placed the prosperity of society in the happiness of each of its members and its strength in the attachment of all to the laws. For him public wealth resides in the labor and the moderation of its citizens; liberty resides in the might of the sovereign, which is the entire people, every element of which preserves the influence necessary for the life of the social body through the effect of the impartial sharing of joy and enlightenment.”

Finally, judge how much importance he attached to the power of morality:

“The reform of morality must precede the enjoyment of liberty. Before conferring on the people the exercise of sovereignty it is necessary to render general the love of virtue, and to substitute disinterestedness and modesty for avarice, vanity, and ambition, which maintain among the citizens a perpetual war. The contradiction established by our institutions between the needs of love and independence must be annihilated, and the means of misleading, frightening, and dividing must be torn from the hands of the natural enemies of equality. To renounce this preliminary reform means abandoning power to those who are the friends of all abuses and losing the means of assuring public happiness.”

Buonarotti was 70 when he returned to Paris in 1830. The thirty-five years that had passed since he left it, though devoured by prison or exile, had been entirely dedicated to study, under the inspiration of the most religious love of humanity. He had always employed his days and a part of his nights to work, and he only suspended his industrious habits when sickness had defeated him, less than three weeks before his death. The only book he produced is La Conspiration de Babeuf, but he left behind precious manuscripts that will not be lost. What is more, he was so modest that he never wrote anything with publicity in mind. He only studied and instructed himself so as to pour into the souls of his friends the treasures of his knowledge and, even more, his eminent virtue. His counsels were without showiness or vanity, like the rest of his life. He was a sage. He conversed with the old man, the mature man, with the young man or the child as the most intimate friend and brother. He was a witness to the most terrible epochs of our revolution and had taken part in them. Neither his body nor his soul had bent under nearly a half a century of the worst persecutions, and that soul, gifted with so much vigor, far from having been hardened by the struggle, preserved all its gentleness and goodness. No one had more of a right to be severe than Buonarotti, yet no one was more indulgent than he. But indulgent towards faults and reparable errors; inflexible towards the vices of the heart, towards the corruptions of money, towards the cowardly betrayals that sacrifice nations to mad pride or the cupidity of a few men.

Buonarotti’s life was prolonged for 77 years without a single stain having ever been discovered. Those who regularly approached him, who lived most intimately with him, were able to find nothing in his past, surprise nothing in the present, which could trouble this soul worthy of antiquity.

His most extreme old age was not completely sheltered from the suspicions of power. The prefect of police (it was M. Gisquet) had this venerable man arrested and appear before his agents, and only freed him when he had before his eyes the decree of the Convention declaring Philippe Buonarotti a French citizen in recognition of the services he had rendered the republic. “Monsieur, you are not a Frenchman,” the employee charged with interrogating him said to him. “You were not yet born when I already was one,” the descendant of Michelangelo gently answered him, “look in your boxes for the decree of May 27, 1793.”

Without that striking adoption by the National Convention they would cruelly have driven from France, at age 74, he who had so worthily served it. It was under the protection of the decree of the Republic that he was able to die in France.

But he died there under a name other than his own. The condemnation at the High Court of Vendome had pronounced his civil death, and no act had lifted that condemnation. The amnesty of 1830 in favor of those condemned during the Restoration prudently guarded its silence on all previous condemnations. A legal fiction had dispossessed of his name a man whose life any moral power would have singled out for public recognition. Don’t you think that we find in this a bitter irony in our official justice and society? He was insensible to this iniquity, as he was to all others. As long as he did good it made no difference to him if he did it under the name of Buonarotti or Raymond. He regretted the errors of men and never became irritated because of them, always seeking in those that he suffered from a reason to help others avoid similar attacks.

After having fulfilled eminent functions Buonarotti remained poor: what use would riches have been to this sage who had no need of them? Until almost his final days he lived from the lessons in mathematics and music he gave, and it was later said how many noble struggles were necessary to obtain from the nearly blind elderly professor that he finally cease, not to study and learn at his home, but to pursue occupations outside of it.

At his last moments his friends saw him as strong as ever, having guarded the memory, intelligence, and affectionate sentiments of his youth up till the end. Several among them heard him say a few minutes before expiring, and with accents of profound piety; “I am soon going to join those virtuous men who set us such good examples.” And when one of his friends answered: “It is we who have need of yours, and you will remain with us yet,” he added, “You treat me with too much indulgence, speak to me of those whose memory we honor.”

Fifteen hundred citizens followed his remains. Almost all were able to see that high forehead, that so beautiful face in which the great proportions of Michelangelo were preserved. Buonarotti seemed to be sleeping: nothing of death’s sad aspect could be found on his face. Everyone said that they had never seen a more beautiful type. There was power in these cold relics, and those young people who contemplated it took away a lesson in virtue.

– Trélat