Note 11 — Letter 14.

The claim of the right to go to the acquired, or conquered territories with their slave property, is insisted on by the South. The attempted exclusion creates strong feelings, as it is regarded as offensive and unjust. If, according to my view of the subject, the conquered or acquired territory, is neither a part of any State, nor a part of the Union, the sovereignty is either in Congress, or in the inhabitants. According to European reasoning the sovereignty is in the Government; according to ours it is in the inhabitants; because with us, power travels upwards from the people, but according to the old reasoning, instead of ascending, it descends. But, if it be assumed, that the Constitution follows our flag, even if it be to the Typce(TN) Islands, then it would appear to me, that no citizen can be directly, or indirectly, excluded, on account of his carrying with him, persons bound to service, for that is a condition, or relation recognized by the Constitution. Such servants are recognized if not as property, for taxation, yet as persons for representation. If the Constitution comes in conflict with the local laws, the latter must give way; this is the necessary consequence it is contended of extending the Constitution to the territories. Laying aside all this fine spun reasoning, there is a common sense ground of justice and equal right, in the claim to equal participation in the property acquired by common means, and even the appearance of the denial, must be offensive. The party thus denied, might exclaim “if it be arsenic, I will have my share.”

The necessity of some legislation for the new territories, is evident, even if the first, or second grade of government, be not given to them. They are but fragments of other governments, depending on their superior, and their organization incomplete, when cut off from that superior. The jurisdiction of their courts was limited, or subject to appeal; their political, and military offices, acted under the order of their chief. The President of the United States as commander in chief, would command the military; but the United States judiciary could not entertain appeals, without authority of Congress; and neither could the President exercise civil control, without the same authority. The organic law, provides for the trial by jury, for the security of person, and conscience, not provided for in despotic countries. The laws regulating intercourse with the indians, the Post office, and many and on other subjects require to be specially extended. It is possible that by some indispensable legislation of this kind, the new acquisition, may get along for a while, by supplying the deficiency out of that original stock of power, which men possess in a state of nature, when compelled to do so by necessity. The attempt was made in Florida during a short interval, and it gave rise to much animadversion. I admit, that it may be in some manner obviated, by special legislation on the part of Congress, if from any cause, it should be deemed inexpedient to establish territorial governments, even of the first grade. In Louisiana as in Florida, a Governor was appointed, clothed with the powers of the late Captain General, until Congress could act.