State as well as Territory were to be left "perfectly free," "subject
only to the Constitution." Why mention a State? They were legislating for
Territories, and not for or about States. Certainly the people of a State
are and ought to be subject to the Constitution of the United States; but
why is mention of this lugged into this merely Territorial law? Why are
the people of a Territory and the people of a State therein lumped
together, and their relation to the Constitution therefore treated as
being precisely the same? While the opinion of the court, by Chief
Justice Taney, in the Dred Scott case, and the separate opinions of all
the concurring Judges, expressly declare that the Constitution of the
United States neither permits Congress nor a Territorial Legislature to
exclude slavery from any United States Territory, they all omit to
declare whether or not the same Constitution permits a State, or the
people of a State, to exclude it. Possibly, this is a mere omission; but
who can be quite sure, if McLean or Curtis had sought to get into the
opinion a declaration of unlimited power in the people of a State to
exclude slavery from their limits, just as Chase and Mace sought to get
such declaration, in behalf of the people of a Territory, into the
Nebraska Bill,--I ask, who can be quite sure that it would not have been
voted down in the one case as it had been in the other? The nearest
approach to the point of declaring the power of a State over slavery is
made by Judge Nelson. He approaches it more than once, Using the precise
idea, and almost the language, too, of the Nebraska Act. On one occasion,
his exact language is, "Except in cases where the power is restrained by
the Constitution of the United States, the law of the State is supreme
over the subject of slavery within its jurisdiction." In what cases the
power of the States is so restrained by the United States Constitution,
is left an open question, precisely as the same question, as to the
restraint on the power of the Territories, was left open in the Nebraska
Act. Put this and that together, and we have another nice little niche,