Page:Harvard Law Review Volume 12.djvu/420

400 400 HARVARD LAW REVIEW. The Mexican war had stretched our boundaries to the Pacific. The Wilmot proviso, in 1846, brought the question we are now con- sidering into sharp and sudden prominence. General Cass had been made the Democratic candidate for the Presidency in 1848, in view and in no small part in consequence of an open letter to his pohtical friends, written the year before, in which he told them that the right of Congress to regulate the territory and other prop- erty of the United States would naturally be construed as merely designed to embrace property regulations; that it had been pushed farther in practice "by rather a violent implication;" but that it was "a doubtful and invidious authority," and "should be limited to the creation of proper governments for new countries, acquired or settled, and to the necessary provision for their eventual admis- sion into the Union; leaving in the meantime to the people in- habiting them to regulate their internal concerns in their own way."* The question was a troublesome one for politicians, as well as for jurists. If the Missouri compromise of 1820 was to be upheld, it must be because Congress could rightfully legislate as to the domestic institutions of the Territories. If it was to be broken through by the Wilmot proviso, it was also because Congress had that power. Some of the Whig leaders now took the groimd that the power •to legislate for Territories in this and all other matters existed; but was rather one resting on implication than upon express grant. John Davis of Massachusetts defended this doctrine in the Senate, but said that the exercise of the power was to be controlled by the fundamental maxims of the Constitution. Calhoun came nearly to the same position. The "needful rules and regulations clause," he said, "conferred no governmental power whatever." But the Constitution recognized slavery. Slaves were therefore property, so far as the United States were concerned. The citizens of the United States were entitled to free access to every part of its un- occupied territories. They must be allowed to take their property with them. A sovereign State might abolish slavery within its limits. Into that State a slaveholder could not thereafter take this kind of property and hold it in possession. But the Constitution shielded him in the Territories, for they took their political
 * Letter of Dec. 24, 1847, to A. O, P. Nicholson.