Jefferson Davis, The Rise and Fall of the Confederate Government

[500] then foretold what must have been the decision of the Supreme Court on the Missouri Compromise, anticipating the decision subsequently made in the case of Dred Scott; that decision for which the venerable justices have been so often and so violently arraigned. He foretold it as the necessary consequence from the line of precedents descending from 1842, affirmed and reaffirmed in different cases, and now bearing on a case similar in principle, and only different in the mere reference to the subject involved from those which had gone before. As connected with the decision which had agitated the peace of the country; as the anticipation of that decision before it was made, viewing it as the necessary consequence of the decision the court had made before; if it be the pleasure of the Senate, I ask my friend from South Carolina [Mr. Chesnut] to read for me a letter of the Attorney-General, being an official answer made by him in relation to the military reservation which was involved in the question before him.

Mr. Chesnut read from the “Opinions of the Attorneys-General,” vol. VII, page 575:

The Supreme Court has determined that the United States never held any municipal sovereignty, jurisdiction, or right of soil in the territory of which any of the new States have been formed, except for temporary purposes, and to execute the trusts created by the deeds of cession. . . .

“By the force of the same principle, and in the same line of adjudications, the Supreme Court would have had to decide that the provision of the act of March 6, 1820, which undertakes to determine in advance the municipal law of all that portion of the original province of Louisiana which lies north of the parallel 36° 30′ north latitude, was null and void ab incepto, if it had not been repealed by a recent act of Congress. (Compare IV, Statutes at Large, p. 848, and x, Statutes at Large, p. 289.) For an act of Congress which pretends of right, and without consent of compact, to impose on the municipal power of any new State or States limitations and restrictions not imposed on all, is contrary to the fundamental condition of the Confederation, according to which there is to be equality of right between the old and new States ‘in all respects whatsoever.’ ”

Mr. Davis: It was not long after this official opinion of the Attorney-General before the case arose on which the decision was made which has so agitated the country. Fortunate indeed was it for the public peace that land and religion had been decided—those questions on which men might reason had been the foundation of judicial decision—before that which drives all reason, it seems, from the mind of man, came to be presented the question whether Cuffee should be kept in his normal condition or not; the question whether the Congress of the United States could decide what might or might not be property in a Territory—the case being that of an officer of the army sent into a Territory to perform his public duty, having taken with him his negro slave. The court, however, in giving their decision in this case—or their opinion, if it suits gentlemen better—have gone into the question with such clearness, such precision, and such amplitude, that it will relieve me from the necessity of arguing it any further than to make a reference to some sentences contained in that opinion. And here let me say, I can not see how those who agreed on a former occasion that the constitutional right of the slaveholder to take his property into the Territory—the constitutional power of the Congress and the constitutional power of the Territory to legislate upon that subject—should be a judicial question, can now attempt to escape