Many of the States on the adoption of the Constitution, or shortly afterwards, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests. But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles white men were made slaves. All slavery has its origin in power and is against right.
To the constitutional theory advanced by the Chief-Justice, that Congress cannot exercise sovereign powers over Federal Territories, and hence cannot exclude slave property from them, Justices McLean and Curtis also opposed a vigorous and exhaustive argument, which the most eminent lawyers and statesmen of that day deemed conclusive. The historical precedents alone ought to have determined the issue. “The judicial mind of this country, State and Federal,” said McLean, “has agreed on no subject within its legitimate action with equal unanimity as on the power of Congress to establish Territorial governments. No court, State or Federal, no judge or statesman, is known to have had any doubts on this question for nearly sixty years after the power was exercised.”
[Sidenote] 19 Howard, p. 619.
And Curtis added: “Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States; and six distinct instances in which Congress organized governments of Territories by which slavery was recognized and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted. If the practical construction of the Constitution, contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to.”