Such is the history of President McKinley's administration, and such is the defence offered by the representative of the county of Essex.
There may have been no sinister design in the attempt to demonstrate my inconsistency upon a question of constitutional law. I do not assume the existence of personal hostility. An end would be answered if you and others could be induced to believe that in 1859 I had so construed the Constitution as to justify President McKinley in governing the Philippine Islands as though the Constitution of the United States did not exist. Thus do my opinions receive more consideration from an opponent than they could command at the hands of a friend.
I am now to speak more directly in explanation of the opinion that I gave in 1859, with something of the history of the circumstances which led to the preparation of the paper of that year. It is an error to assume that the question whether or not the Constitution extends to the Territories, was a prominent question, in the period of the anti- slavery controversy. That question was not publicly and seriously discussed on either side.
The controversy was conducted upon the theory that the Territories were under the Constitution. The question was this: Can a slaveholder move from a slave State to a Territory and be protected under the Constitution in holding his slaves as property?
It was the theory of the Missouri Compromise Measure of 1820 and it was the theory of the compromise measures of 1850, that the Constitution neither authorized slavery anywhere nor prohibited it anywhere. The Kansas-Nebraska Act of 1854 recognized, as an admitted fact, the doctrine that the Constitution extended to the Territories, and it asserted as a conclusion of law and as a public policy, the doctrine that the Constitution "should have the same force and effect within the Territory of Kansas as elsewhere within the United States." Thus it was maintained by the friends of the compromise measures that the Constitution neither authorized slavery in the Territories nor prohibited it. This view of the Constitution was accepted by the opponents of slavery.
The Constitution did not authorize slavery in the States nor did it prohibit slavery in the States. Until the Dred Scott Decision, the controversy proceeded upon the idea that States and Territories were alike under the Constitution, and that by the Constitution slavery was neither authorized nor prohibited in any State, nor in any Territory of the Union.