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“What, then, is your power? Simply whether you will admit or refuse. This is the limit of your power. And even this power is subject to control, whenever a Territory is sufficiently large, and its population sufficiently numerous, your discretion ceases, and the obligation becomes imperious that you forth with admit ; for I hold that, according to the spirit of the Constitution, the people thus circumstanced are entitled to the privilege of selfgovernment.” - National Intelligencer, March 18, 1820.
OPINIONS OF MADISON, JEFFERSON AND HARRISON.
Mr. Madison to President Monroe.-Extracts from a let
ter dated Montpelier, Feb. 23d, 1820.
“I RECEIVED yours of the 19th, on Monday. * The pinch of the difficulty in the case stated, seems to be in words " forever," coupled with the interdict relating to the territory north of latitude 36° 30'. If the necessary import of these words be, that they are to operate as a condition on future States admitted into the Union, and as a restriction on them after admission, they seem to encounter, indirectly, the arguments which prevailed in the Senate for an unconditional admission of Missouri. I must conclude, therefore, from the assent of the Senate to the words, after the strong vote, on constitutional grounds, against the restriction on Missouri, that there is some other mode of explaining them in their actual application.
As to the right of Congress, to apply such a restriction during the territorial period, it depends on the clause especially providing for the management of those subordinate establishments.
On one side it naturally occurs, that the right being given from the necessity of the case, and in suspension of the great principle of self-government, ought not to be extended further, nor continued longer, than the occasion might fairly require.
On the other side, it cannot be denied that the constitutional phrase "to all rules,” &c., as expounded by uniform practice, is somewhat of a ductile nature, and leaves much to legislative discretion. The question to be decided seems to be
“1. Whether a territorial restriction be an assumption of illegitimate power; or,
“ 2. A misuse of legitimate power; and if the latter only, whether the injury threatened to the nation from an acquiescence in the misuse, or from a frustration of it, be the greater.
“ On the first point, there is certainly room for difference of opinion; though for myself, I must own that I have always leaned to the belief that the restriction was not within the true scope of the Constitution.
In reply to a letter from Mr. Monroe, on the Missouri question he said: “The question to be decided seem to be
“1. Whether a territoral restriction be an assumption of illegitimate power; or,
“2 A misuse of legitimate power; and if the latter only, whether the injury threatened to the nation from an acquiescence in the misuse, or from a frustration of it, be the greater.
“On the first point, there is certainly room for difference of opinion ; though, for myself, I must own that I have always leaned in the belief that the restriction was not within the true scope of the Constitution.
“On the alternative presented by the second point, there can be no room, with the cool and candid, for blame in those acquiescing in a conciliatory course, the demand for which was deemed urgent, and the course itself deemed not irreconcilable with the Constitution.
“ This is the hasty view I have taken of the subject. I am aware that I may be suspected of being influenced by the habit of a guarded construction of constitutional powers; and I have certainly felt all the influence that could justly flow froin a conviction, that an uncontrolled dispersion of the slaves now within the United States, was not only best for the nation, bnt most favorable for the slaves also, both as to their prospects of emancipation, and as to their condition in the mean time."
As to the reason of the passage of the Ordinance of 1787, under the old Confederation, Mr. Madison says :
“I have observed, as yet, in none of the views taken of the Ordinance of 1787, interdicting slavery northwest of the river Obio, an allusion to the circumstance that when it passed, Congress had no authority to prohibit the importation of slaves from abroad; that all the States had, and some were in the full exercise of, the right to import them ; and, consequently, that there was no mode in which Congress could check the evil, but the indirect one of narrowing the space open for the reception of slaves.
“Had a federal authority then existed to prohibit, directly and totally, the importation from abroad, can it be doubted that it would have been exerted, and that a regulation having merely the effect of preventing the interior disposition of slaves actually in the United States, and creating a distinction among the States in the degree of their sovereignty, would not have been adopted, or perhaps thought of ?”—Mr. Madison to Mr. Monroe, February 10th, 1820.
Rough draught, or notes, of President Monroe's intended
Veto Message, rejecting the Missouri Bill, if it had passed Congress with certain restrictions, found in his handwriting, among his papers in possession of S. L. Gouverneur, Esq.
Having fully considered the bill entitled, &c., and disapproved of it, I now return it to the in which it originated, with my objections to the same.
That the Constitution, in providing that new States may
be admitted into the Union, as is done by the third section of the fourth article, intended that they should be admitted with all the rights and immunities of the original States, retaining, like them, all the powers as to their local governments, all the powers ceded to it by the Constitution.
That if conditions of a character not applicable to the original States should be imposed on a new State, an inequality would be imposed or created, lessening in degree the right of State sovereignty, which would always be degrading to such new State, and which, operating as a condition of its admission, its incorporation would be incomplete, and would also be annulled, and such new State be severed from the Union, should afterwards assume equality, and exercise a power acknowledged to belong to all the ori. ginal States.
That the proposed restriction to territories which are to be admitted into the Union, if not in direct violation of the Constitution, IS REPUGNANT TO ITS PRINCIPLES, since it is intended to produce an effect on the future policy of the new States, operating unequally in regard to the original States, injuring those affected by it, in an interest protected from such injury by the Constitution, without benefiting any State in the Union; and that, in this sense, it is repugnant to the generous spirit which has [“so long” erased] always existed and been cherished by the several States toward each other.
That the first clause of the ninth section of the first arti. cle, whieh provides that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior," &c., in whatever sense the term migration or importation may be understood, whether as applicable to the same description of persons or otherwise, confines the power of Congress exclusively to persons entering the United States, or who might be disposed to enter, FROM ABROAD, and pre