Here, then, we have twenty-three out of our thirty-nine fathers "who framed the Government under which we live," who have, upon their official responsibility and their corporal oaths, acted upon the very question which the text affirms they "understood just as well, and even better than we do now"; and twenty-one of them--a clear majority of the whole "thirty-nine"--so acting upon it as to make them guilty of gross political impropriety and wilful perjury, if, in their understanding, any proper division between local and Federal. authority, or anything in the Constitution they had made themselves, and sworn to support, forbade the Federal Government to control as to slavery in the Federal Territories. Thus the twenty-one acted; and, as actions speak louder than words, so actions under such responsibilities speak still louder.
Two of the twenty-three voted against Congressional prohibition of slavery in the Federal Territories, in the instances in which they acted upon the question. But for what reasons they so voted is not known. They may have done so because they thought a proper division of local from Federal authority, or some provision or principle of the Constitution, stood in the way; or they may, without any such question, have voted against the prohibition on what appeared to them to be sufficient grounds of expediency. No one who has sworn to support the Constitution can conscientiously vote for what he understands to be an unconstitutional measure, however expedient he may think it; but one may and ought to vote against a measure which he deems constitutional, if, at the same time, he deems it inexpedient. It therefore would be unsafe to set down even the two who voted against the prohibition as having done so because, in their understanding, any proper division of local from Federal authority, or anything in the Constitution, forbade the Federal Government to control as to slavery in Federal territory.
The remaining sixteen of the "thirty-nine," so far as I have discovered, have left no record of their understanding upon the direct question of Federal control on slavery in the Federal Territories. But there is much reason to believe that their understanding upon that question would not have appeared different from that of their twenty-three compeers, had it been manifested at all.
For the purpose of adhering rigidly to the text, I have purposely omitted whatever understanding may have been manifested by any person, however distinguished, other than the thirty-nine fathers who framed the original Constitution; and, for the same reason, I have also omitted whatever understanding may have been manifested by any of the "thirty tine" even on any other phase of the general question of slavery. If we should look into their acts and declarations on those other phases, as the foreign slave trade, and the morality and policy of slavery generally, it would appear to us that on the direct question of Federal control of slavery in Federal Territories, the sixteen, if they had acted at all, would probably have acted just as the twenty-three did. Among that sixteen were several of the most noted anti-slavery men of those times--as Dr. Franklin, Alexander Hamilton, and Gouverneur Morris while there was not one now known to have been otherwise, unless it may be John Rutledge, of South Carolina.
The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one--a clear majority of the whole--certainly understood that no proper division of local from Federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the Federal Territories; whilst all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question "better than we."
But, so far, I have been considering the understanding of the question manifested by the framers of the original Constitution. In and by the original instrument, a mode was provided for amending it; and, as I have already stated, the present frame of "the Government under which we live" consists of that original, and twelve amendatory articles framed and adopted since. Those who now insist that Federal control of slavery in Federal Territories violates the Constitution, point us to the provisions which they suppose it thus violates; and, as I understand, they all fix upon provisions in these amendatory articles, and not in the original instrument. The Supreme Court, in the Dred Scott case, plant themselves upon the fifth amendment, which provides that no person shall be deprived of "life, liberty, or property without due process of law"; while Senator Douglas and his peculiar adherents plant themselves upon the tenth amendment, providing that "the powers not delegated to the United States by the Constitution" "are reserved to the States respectively, or to the people."
Now, it so happens that these amendments were framed by the first Congress which sat under the Constitution--the identical Congress which passed the act already mentioned, enforcing the prohibition of slavery in the Northwestern Territory. Not only was it the same Congress, but they were the identical same individual men who, at the same session, and at the same time within the session, had under consideration, and in progress toward maturity, these Constitutional amendments, and this act prohibiting slavery in all the territory the nation then owned. The Constitutional amendments were introduced before and passed after the act enforcing the Ordinance of '87; so that, during the whole pendency of the act to enforce the Ordinance, the Constitutional amendments were also pending.