[Delivered in the United States Senate, June
27th, 1848.]
THERE is a very
striking difference between the position on which the slaveholding and
non-slaveholding States stand, in reference to the subject under consideration.
The former desire no action of the Government; demand no law to give
them any advantage in the territory about to be established; are willing to
leave it, and other territories belonging to the United States, open to all
their citizens, so long as they continue to be territories,—and when they cease
to be so, to leave it to their inhabitants to form such governments as may suit
them, without restriction or condition, except that imposed by the
constitution, as a prerequisite for admission into the Union. In short, they
are willing to leave the whole subject where the constitution and the great and
fundamental principles of self-government place it. On the contrary,
the non-slaveholding States, instead of being willing to leave it on
this broad and equal foundation, demand the interposition of the
Government, and the passage of an act to prevent the
citizens of the slaveholding States from emigrating with their
property into the territory, in order to give their citizens and those they may
permit, the exclusive right of settling it, while it remains in that
condition, preparatory to subjecting it to like restrictions and conditions
when it becomes a State. The 12th section of this bill is intended to
assert and maintain this demand of the non-slaveholding States, while
it remains a territory, not openly or directly,—but indirectly, by extending
the provisions of the bill for the establishment of the
Iowa Territory to this, and by ratifying the acts of the informal and
self-constituted government of Oregon, which, among others, contains
one prohibiting the introduction of slavery, It thus, in reality,
adopts what is called the Wilmot proviso, not only for Oregon, but, as the bill
now stands, for New Mexico and California. The amendment, on the contrary,
moved by the Senator from Mississippi, near me (Mr. Davis), is intended to
assert and maintain the position of the slaveholding States. It
leaves the territory free and open to all the citizens of the United
States, and would overrule, if adopted, the act of the self-constituted
Territory of Oregon and the 12th section, as far as it relates to the
subject under consideration. We have thus fairly presented the grounds taken by
the non-slaveholding and the slaveholding States,—or, as I shall call them for
the sake of brevity,—the Northern and Southern States, in their whole
extent for discussion.
The first question
which offers itself for consideration is—Have the Northern States the power
which they claim, to prevent the Southern people from emigrating freely, with
their property, into territories belonging to the United States, and to
monopolize them for their exclusive benefit?
It is, indeed, a
great question. I propose to discuss it calmly and dispassionately. I shall
claim nothing which does not fairly and clearly belong to the Southern States,
either as members of this Federal Union, or appertain to them in
their separate and individual character; nor shall I yield any thing which
belongs to them in either capacity. I am influenced neither by sectional nor
party considerations. If I know myself, I would repel as promptly and decidedly
any aggression of the South on the North, as I would any on the
part of the latter on the former. And let me add, I hold the
obligation to repel aggression to be not much less solemn, than that of abstaining
from making aggression; and the party which submits to it when it can be
resisted, to be not much less guilty and responsible for consequences than that
which makes it. Nor do I stand on party grounds. What I shall say in reference
to this subject, I shall say entirely without reference to the Presidential
election. I hold it to be infinitely higher than that and all other
questions of the day. I shall direct my efforts to ascertain what is
constitutional, right and just, under a thorough conviction that the best and only
way of putting an end to this, the most dangerous of all
questions to our Union and institutions, is to adhere rigidly to the
constitution and the dictates of justice.
With these
preliminary remarks, I recur to the question—Has the North the power which it
claims under the 12th section of this bill? I ask at the outset,
where is the power to be found? Not, certainly, in the relation in which the
Northern and Southern States stand to each other. They are the constituent
parts or members of a common Federal Union; and, as such, are equals
in all respects, both in dignity and rights, as is declared by all writers on
governments founded on such union, and as may be inferred from arguments
deduced from their nature and character. Instead, then, of affording any
countenance or authority in favor of the power, the relation in which
they stand to each other furnishes a strong presumption against it. Nor can it
be found in the fact that the South holds property in slaves. That, too, fairly
considered, instead of affording any authority for the power,
furnishes a strong presumption against it. Slavery existed in the South when
the constitution was framed, fully to the extent, in proportion to the
population, that it does at this time. It is the only property recognized by
it; the only one that entered into its formation as a political element, both
in the adjustment of the relative weight of the States in
the Government, and the apportionment of direct taxes; and the only
one that is put under the express guaranty of the constitution. It is
well known to all conversant with the history of the formation and
adoption of the constitution, that the South was very jealous in
reference. to this property; that it constituted one of the difficulties
both to its formation and adoption; and that it would not have assented to
either, had the convention refused to allow to it its due weight in the
Government, or to place it under the guaranty of the constitution.
Nor can it be found in the way that the territories have been acquired. I will
not go into particulars, in this respect, at this stage of the
discussion. Suffice it to say, the whole was acquired either by purchase,
out of the common funds of all the States, the South as
well as the North, or by arms and mutual sacrifice of men and money;—which,
instead of giving any countenance in favor of the power
claimed by the North, on every principle of right and justice,
furnishes strong additional presumption against it.
But, if it cannot be
found in either,—if it exists at all,—the power must be looked for in the
constitutional compact, which binds these States together in a Federal Union;
and I now ask, can it be found there? Does that instrument contain any
provision which gives the North the power to exclude the South from a free
admission into the territories of the United States with its peculiar
property, and to monopolize them for its own exclusive use? If it in fact
contains such power, expressed or implied, it must be found in a specific
grant, or be inferred by irresistible deduction, from some clear and
acknowledged power. Nothing short of the one or the other can
overcome the strong presumption against it.
That there is no
such specific grant may be inferred, beyond doubt, from the fact that no one
has ever attempted to designate it. Instead of that, it has been
assumed—taken for granted without a particle of proof—that Congress
has the absolute right to govern the territories. Now, I concede, if it does in
reality possess such power, it may exclude from the territories whom or what it
pleases, and admit into them whom or what it pleases; and of course
may exercise the power claimed by the North to exclude the South from them. But
I again repeat, where is this absolute power to be found? All admit that there
is no such specific grant of power. If, then, it exists at all, it
must be inferred from some such power. I ask where is that to be found? The
Senator from New-York, behind me (Mr. Dix), points to the clause in the
constitution, which provides that "Congress shall have power to
dispose of and make all needful rules and regulations respecting the
territory and other property belonging to the United States." Now, I under
take to affirm and maintain, beyond the possibility of doubt, that,
so far from conferring absolute power to govern the territories, it confers no
governmental power whatever; no, not a particle. It refers exclusively to
territory, regarded simply as public lands. Every word relates to it in that
character, and is wholly inapplicable to it considered in any other character
than property. Take the expression "dispose of" with which it
begins. It is easily understood what it means when applied to lands; and is the
proper and natural expression regarding the territory in that character, when
the object is to confer the right to sell or make other
disposition of it. But who ever heard the expression applied to
government? And what possible meaning can it have when so applied? Take the
next expression, "to make all needful rules and regulations." These,
regarded separately, might, indeed, be applicable to government in a loose
sense, but they are never so applied in the constitution. In every case where
they are used in it, they refer to property, to things, or some process, such
as the rules of Court, or of the Houses of Congress
for the government of their proceedings,—but never to government,
which always implies persons to be governed. But if there should be any doubt
in this case, the words immediately following, which restrict them to making “rules
and regulations respecting the territory and other property of the
United States," must effectually expel it. They restrict their meaning,
beyond the possibility of doubt, to territory regarded as property.
But if it were
possible for doubt still to exist, another and conclusive argument still
remains to show that the framers of the constitution did not intend
to confer by this clause governmental powers. I refer to the clause in the
constitution which delegates the power of exclusive legislation to
Congress over this District and "all places purchased by the
consent of the legislature of the State in which the same
may be for the erection of forts, magazines, arsenals, dock yards,
and other needful buildings." The places therein referred to are clearly
embraced by the expression, "other property belonging to the United
States," contained in the clause I have just considered. But it is
certain, that if it had been the intention of the
framers of the constitution to confer governmental powers over such
places by that clause, they never would have delegated it by this. They were
incapable of doing a thing so absurd. But it is equally certain, if
they did not intend to confer such power over them, they could not have
intended it over territories. Whatever was conferred by the same words, in
reference to one, must have been intended to be conferred in reference to the
other, and the reverse. The opposite supposition would be absurd. But, it may
be asked why the term—territory—was omitted in the
delegation of exclusive legislation to Congress over the places
enumerated? Very satisfactory reasons may, in my opinion, be assigned. The
former were limited to places lying within the limits and
jurisdiction of the States, and the latter to public land lying
beyond both. The cession and purchase of the former, with the
consent of the State within which they might be situated, did not
oust the sovereignty or jurisdiction of the State. They still
remained in the State, the United States acquiring only the title to the place.
It, therefore, became necessary to confer on Congress, by express delegation,
the exercise of exclusive power of legislation over this
District and such places, in order to carry out the object of the
purchase and session was simply intended to withdraw them from under the
legislatures of the respective States within which they might lie,
and substitute that of Congress in its place, subject to the
restrictions of the constitution and the objects for which the places
were acquired, leaving, as I have said, the sovereignty still in the State in
which they are situated, but in abeyance, as far as it extends to legislation.
Thus, in the case of this District—since the retrocession to
Virginia of the part beyond the Potomac,—the sovereignty still
continues in Maryland in the manner stated. But the case is very different in
reference to territories, lying as they do beyond the limits and
jurisdictions of all the States. The United States possess not simply
the right of ownership over them, but that of exclusive
dominion and sovereignty; and hence it was not necessary to exclude the
power of the States to legislate over them, by delegating the
exercise of exclusive legislation to Congress. It would have been an
act of supererogation. It may be proper to remark in this connection,
that the power of exclusive legislation, conferred in these cases,
must not be confounded with the power of absolute legislation. They
are very different things. It is true that absolute
power of legislation is always exclusive, but it by no means follows
that exclusive power of legislation or of government is
likewise always absolute. Congress has the exclusive
power of legislation, as far as this Government is concerned, and the
State legislatures as far as their respective governments are concerned;—but we
all know that both are subject to many and important restrictions and
conditions which the nature of absolute power excludes.
I have now made good
the assertion I ventured to make, that the clause in the constitution relied on
by the Senator from New-York, so far from conferring the absolute
power of government over the territory claimed by him, and others who
agree with him, confers not a particle of governmental power. Having
conclusively established this, the long list of precedents, cited by
the Senator to prop up the power which he sought in the clause, falls to the
ground with the fabric which he raised; and I am thus exempted from the
necessity of referring to them, and replying to them one by one.
But there is one
precedent, referred to by the Senator, unconnected with the power, and on that
account requiring particular notice. I refer to the
ordinance of 1787, which was adopted by the old
Congress of the Confederation while the convention that framed the
constitution was in session, and about one year before its adoption,
and of course on the very eve of the
expiration of the old Confederation. Against its introduction, I
might object that the act of the Congress of the
Confederation cannot rightfully form precedents for this Government; but I waive
that. I waive also the objection that the act was consummated when that
Government was in extremis, and could hardly be considered compos mentis. I
waive also the fact that the ordinance assumed the form of a compact,
and was adopted when only eight States were present, while the
articles of confederation required nine to form compacts. I waive
also the fact, that Mr. Madison declared that the act was without
shadow of constitutional authority;—and shall proceed to show, from
the history of its adoption, that it cannot justly be
considered of any binding force.
Virginia made the
cession of the territory north of the Ohio, and lying
between it and the Mississippi and the lakes, in 1784. It now contains the
States of Ohio, Indiana, Illinois, Michigan, Wisconsin, and a very
considerable extent of territory lying north of the latter.
Shortly after the cession, a committee of three was
raised, of whom Mr. Jefferson was one. They reported an ordinance for
the establishment of the territory, containing, among other
provisions, one, of which Mr. Jefferson was the author, excluding
slavery from the territory after the year 1800. It was reported to Congress,
but this provision was struck out. On the question of striking out,
every Southern State present voted in favor of it; and, what is more
striking, every Southern delegate voted the same way, Mr. Jefferson alone
excepted. The ordinance was adopted without the provision. At the next session,
Rufus King, then a member of the old Congress, moved a proposition,
very much in the same shape as the sixth article (that which excludes slavery)
in the ordinance no action on it. A committee was moved the next or the
subsequent year, which reported without including or noticing Mr. King's
proposition. Mr. Dane was a member of that committee, and proposed a
provision the same as that in the ordinance as it passed, but the committee
reported without including it. Finally, another committee was raised, at the
head of which was Mr. Carrington of Virginia,
and of which Mr. Dane was also a member. That committee reported
without including the amendment previously proposed by him. Mr. Dane moved his
proposition, which was adopted, and the report of the committee thus
amended became the ordinance of 1787.
It may be inferred
from this brief historical sketch, that the ordinance was a compromise between
the Southern and Northern States, of which the terms were, that
slavery should be excluded from the territory upon condition that fugitive
slaves, who might take refuge in the territory, should be delivered up to their
owners, as stipulated in the proviso of the sixth
article of the ordinance. It is manifest, from what has been stated,
that the South was unitedly and obstinately opposed to the provision when first
moved; that the proposition of Mr. King, without the proviso, was in
like manner resisted by the South, as may be inferred from its entire
want of success, and that it never could be brought to agree to it
until the provision for the delivery up of fugitive slaves was
incorporated in it. But it is well understood that a compromise involves not a
surrender, but simply a waiver of the right or power; and hence in
the case of individuals, it is a well-established legal principle,
that an offer to settle by compromise a litigated claim, is no
evidence against the justice of the claim on the
side of the party making it. The South, to her honor, has observed
with fidelity her engagements under this compromise; in
proof of which, I appeal to the precedents cited by the Senator from
New-York, intended by him to establish the fact of her acquiescence
in the ordinance. I admit that she has acquiesced in the several
acts of Congress to carry it into effect; but the Senator is mistaken
in supposing that it is proof of a surrender, on her part, of the
power over the territories which he claims for Congress. No, she never has, and
I trust never will, make such a surrender. Instead of that, it is
conclusive proof of her fidelity to her engagements. She has never
attempted to set aside the ordinance, or to deprive the territory, and the
States erected within its limits, of any right or advantage it was
intended to confer. But I regret that as much cannot be said in
favor of the fidelity with which it has been observed on their part.
With the single exception of the State of Illinois—be it
said to her honor—every other State erected within its limits has pursued a
course, and adopted measures, which have rendered the
stipulations of the proviso to deliver up fugitive slaves nugatory.
Wisconsin may, also, be an exception, as she has just entered the Union, and
has hardly had time to act on the subject. They have gone further, and suffered
individuals to form combinations, without an effort to suppress them, for the
purpose of enticing and seducing the slaves to leave their masters,
and to run them into Canada beyond the reach of our laws—in open
violation, not only of the stipulations of the ordinance,
but of the constitution itself. If I express myself strongly, it is
not for the purpose of producing excitement, but to draw the
attention of the Senate forcibly to the subject. My object is to lay
bare the subject under consideration, just as a surgeon probes to the bottom
and lays open a wound, not to cause pain to his patient, but for the purpose of healing
it.
I come now to
another precedent of a similar character, but differing in this—that
it took place under this Government, and not under that of the old
Confederation; I refer to what is known as the Missouri Compromise. It is more
recent and better known, and may be more readily despatched.
After an arduous
struggle of more than a year, on the question whether Missouri should
come into the Union with or without restrictions prohibiting slavery, a
compromise line was adopted between the North and the South; but it was done
under circumstances which made it nowise obligatory on the latter. It is true,
it was moved by one of her distinguished citizens (Mr. Clay); but it
is equally so, that it was carried by the almost united vote of the
North against the almost united vote of the South; and was thus
imposed on the latter by superior numbers in opposition to her strenuous
efforts. The South has never given her sanction to it, or assented to the power
it asserted. She was voted down, and has simply acquiesced in an arrangement
which she has not had the power to reverse, and which she could not attempt to
do without disturbing the peace and harmony of the Union—to which she
has ever been averse. Acting on this principle, she permitted the
Territory of Iowa to be formed, and the State to be admitted into the
Union, under the compromise, without objection; and this is now quoted by the
Senator from New-York to prove her surrender of the power he claims
for Congress.
To add to the
strength of this claim, the advocates of the power hold up
the name of Jefferson in its favor, and go so far as to call him the
author of the so-called Wilmot proviso, which is but a general
expression of a power of which the Missouri compromise is a
case of its application. If we may judge by his
opinion of that case, what his opinion was of the
principle, instead of being the author of the proviso, or
being in its favor, no one could be more deadly hostile to it. In a letter
addressed to the elder Adams in 1819, in answer to one from him, he uses these
remarkable expressions in reference to the Missouri question:
"The
banks, bankrupt law, manufactures, Spanish treaty, are nothing. These are
occurrences, which, like waves in a storm, will pass under the ship. But the
Missouri question is a breaker on which we lose the Missouri country by revolt,
and what more, God only knows."
To understand the
full force of these expressions, it must be borne in mind that the
questions enumerated were the great and exciting political
questions of the day, on which parties divided. The banks and
bankrupt law had long been so. Manufactures, or what has since been called the
protective tariff, was at the time a subject of great excitement, as
was the Spanish treaty, that is, the treaty by which Florida was ceded to the
Union, and by which the western boundary between Mexico and the United States
was settled, from the Gulf of Mexico to the Pacific ocean. All these
exciting party questions of the day Mr. Jefferson regarded as
nothing, compared to the Missouri question. He looked on all of them
as in their nature fugitive; and, to use his own forcible expression,
"would pass off under the ship of State like waves in a
storm." Not so this fatal question. It was a breaker on which it was destined
to be stranded. And yet his name is quoted by the incendiaries of the
present day in support of, and as the author of, a proviso which
would give indefinite and universal extension of this fatal question
to all the territories! It was compromised the next year by the
adoption of the line to which I have referred. Mr.
Holmes of Maine, long a member of this body, who voted for
the measure, addressed a letter to Mr. Jefferson, inclosing a
copy of his speech on the occasion. It drew out an answer from him
which ought to be treasured up in the heart of every man who loves
his country and its institutions. It is brief. I will send it to the Secretary
to be read. The time of the Senate cannot be better occupied than in
listening to it:
To John Holmes.
MONTICELLO, April 22, 1820.
I
thank you, dear sir, for the copy you have been so kind as to send
me of the letter to your constituents on the Missouri question. It is
a perfect justification to them. I had for a long time ceased to read
newspapers, or pay any attention to public affairs, confident they were in good
hands, and content to be a passenger in our bark to the shore from which I am
not far distant. But this momentous question, like a fire-bell in the night,
awakened and filled me with terror. I considered it at once as the knell of the
Union. It is hushed, indeed, for the moment. But this is a reprieve only, not
the final sentence. A geographical line, coinciding with a marked principle,
moral and political, once conceived and held up to the angry
passions of men, will never be obliterated; and every new irritation
will mark it deeper and deeper. I can say, with conscious truth, that there is
not a man on earth who would sacrifice more than I would to relieve us from
this heavy reproach, in any practicable way. The cession of that kind of property
(for so it is misnamed) is a bagatelle, which would not cost me a second
thought, if in that way a general emancipation and expatriation could be
effected; and gradually, and with due sacrifices, I think it might be. But, as
it is, we have the wolf by the ears, and we can neither hold him nor safely let
him go. Justice is in one scale, and self-preservation in the
other. Of one thing I am certain, that as the
passage of slaves from one free State to another would not make a
slave of a single human being who would not be so without it, so
their diffusion over a greater surface would make them individually happier,
and proportionally facilitate the accomplishment of their
emancipation, by dividing the burden on a greater number of coadjutors.
An abstinence, too, from this act of power, would remove the jealousy
excited by the undertaking of Congress to regulate the
condition of th e different descriptions of men composing a
State. This certainly is the exclusive right of every State, which
nothing in the constitution has taken from them, and given to the General
Government. Could Congress, for example, say that the
non-freemen of Connecticut shall be freemen, or that they shall not
emigrate into any other State?
I
regret that I am now to die in the belief that the useless
sacrifice of themselves by the generation of 1776, to
acquire self-government and happiness to their country, is to be thrown away by
the unwise and unworthy passions of their sons, and that my only
consolation is to be, that I shall not live to weep over it. If they would but
dispassionately weigh the blessings they will throw away against an abstract
principle, more likely to be effected by union than by scission, they would
pause before they would perpetrate this act of suicide on themselves,
and of treason against the hopes of the world. To yourself,
as the faithful advocate of the Union, I tender the
offering of my high esteem and respect.
THOMAS JEFFERSON.
Mark his prophetic
words! Mark his profound reasoning!
"It
[the question] is hushed for the moment. But this is a reprieve only, not a
final sentence. A geographical line coinciding with a marked principle, moral
and political, once conceived, and held up to the angry
passions of men, will never be obliterated, and every new irritation
will mark it deeper and deeper."
Twenty-eight years
have passed since these remarkable words were penned, and there is not a
thought which time has not thus far verified, and, it is to be feared, will
continue to verify until the whole will be fulfilled. Certain it is, that he
regarded the compromise line as utterly inadequate to arrest that fatal
course of events, which his keen sagacity anticipated from the
question. It was but a “reprieve.” Mark the deeply melancholy impression which
it made on his mind:
"I
regret that I am to die in the belief that the useless
sacrifice of themselves by the generation of 1776, to
acquire self-government and happiness for themselves, is to be thrown away by
the unwise. and unworthy passions of their sons, and that my only
consolation is to be, that I shall not live to weep over it."
Can any one believe,
after listening to this letter, that Jefferson is the author of the
so-called Wilmot proviso, or ever favored it? And yet there are at this time
strenuous efforts making in the North to form a purely sectional party on it,
and that, too, under the sanction of those who profess the highest
veneration for his character and principles! But I must speak the truth: while
I vindicate the memory of Jefferson from so foul a charge, I hold he
is not blameless in reference to this subject. He committed a great error in
inserting the provision he did in the plan he reported for the
government of the territory, as much modified as it was. It was the
first blow-the first essay "to draw a geographical line coinciding with a
marked principle, moral and political." It originated with him in
philanthropic, but mistaken views of the most dangerous character, as
I shall show in the sequel. Others, with very different feelings and views,
followed, and have given to it a direction and impetus, which, if not promptly
and efficiently arrested, will end in the dissolution of the Union,
and the destruction of our political institutions.
I have, I trust,
established beyond controversy, that neither the ordinance of 1787,
nor the Missouri compromise, nor the precedents growing out of them,
nor the authority of Mr. Jefferson, furnishes any evidence whatever
to prove that Congress possesses the power over the territory, claimed by those
who advocate the 12th section of this bill. But admit, for the
sake of argument, that I am mistaken, and that the objections I have
urged against them are groundless give them all the force which can be claimed
for precedents and they would not have the weight of a feather
against the strong presumption which I, at the outset of my remarks,
showed to be opposed to the existence of the power. Precedents, even
in a court of justice, can have but little weight, except where the law
is doubtful, and should have little in a deliberative body in any case on a
constitutional question, and none, where the power to which it has been
attempted to trace it does not exist, as I have shown, I trust, to be the case
in this instance.
But, while I deny
that the clause relating to the territory and other property of the
United States, confers any governmental, or that Congress possesses absolute
power over the territories, I by no means deny that it has any power over them.
Such a denial would be idle on any occasion, but much more so on this, when we
are engaged in constituting a territorial government, without an objection
being whispered from any quarter against our right to do so. If there be any
Senator of that opinion, he ought at once to rise and move to lay the
bill on the table, or to dispose of it in some other way, so as to
prevent the waste of time on a subject upon which we have no right to
act. Assuming, then, that we possess the power, the only questions that remain
are whence is it derived? and, what is its extent?
As to its origin, I
concur in the opinion expressed by Chief Justice Marshall, in
one of the cases read by the Senator from New-York, that it is
derived from the right of acquiring territory; and I am the more
thoroughly confirmed in it from the fact that I entertained the opinion long
before I knew it to be his. As to the right of acquiring territory, I
agree with the Senator from New-York, that it is embraced, without going
further, both in the war and treaty powers. Admitting, then, what has never
been denied, and what it would be idle to deny in a discussion which relates to
territories acquired both by war and treaties, that the United States have the
right to acquire territories, it would seem to follow, by necessary
consequence, that they have the right to govern them. As they possess the
entire right of soil, dominion, and sovereignty over them, they must
necessarily carry with them the right to govern. But this Government, as the
sole agent and representative of the United States—that is, the
States of the Union in their federal character—must, as such, possess
the sole right, if it exists at all. But, if there be any one disposed to take
a different view of the origin of the power, I shall make
no points with him,—for whatever may be its origin, the conclusion would be the
same, as I shall presently show.
But it would be a
great error to conclude that Congress has the absolute
power of governing the territories, because it has the sole or
exclusive power. The reverse is the case. It is subject to many and important
restrictions and conditions, of which some are expressed and others
implied. Among the former may be classed all the general and absolute
prohibitions of the constitution; that is, all those which prohibit
the exercise of certain powers under any circumstances. In this class
is included the prohibition of granting titles of nobility;
passing ex post facto laws and bills of attainder; the
suspension of the writ of habeas corpus, except in certain
cases; making laws respecting the establishment of religion, or
prohibiting its free exercise; and every other of like description,
which conclusively shows that the power of Congress over the
territories is not absolute. Indeed, it is a great error to suppose that either
this or the State Governments possess, in any case, absolute power. Such power
can belong only to the supreme ultimate power, called sovereignty, and this, in
our system, resides in the people of the several
States of the Union. With us, governments, both federal and State,
are but agents, or, more properly, trustees, and, as such, possess, not
absolute, but subordinate and limited powers; for all powers possessed by such
governments must, from their nature, be trust powers, and subject to all the
restrictions to which that class of powers are.
Among them, they are
restricted to the nature and the objects of the trust; and hence no
government under our system, federal or State, has the right to do any thing
inconsistent with the nature of the powers intrusted to it, or the objects
for which it was intrusted; or to express it in
more usual language,
for which it was delegated. To do either would be to pervert the power to
purposes never intended, and a violation of the constitution,—and
that in the most dangerous way it could be made, because more easily done and
less easily detected. But there is another and important
class of restrictions which more directly relate to the subject under
discussion. I refer to those imposed on the trustees by the nature and
character of the party, who constituted the trustees and invested
them with the trust powers to be exercised for its benefit. In this case it is
the United States, that is, the several States of the Union. It was
they who constituted the Government as their representative or trustee, and intrusted
it with powers to be exercised for their common and joint benefit. To them in
their united character the territories belong, as is expressly declared by the
constitution. They are their joint and common owners, regarded as property or
land; and in them, severally, reside the dominion and sovereignty over them.
They are as much the territories of one State as
another of Virginia as of New-York; of the
Southern as the Northern States. They are the territories of all,
because they are the territories of each; and not of each,
because they are the territories of the whole. Add to this the
perfect equality of dignity, as well as of rights, which
appertain to them as members of a common federal Union,—which all
writers on the subject admit to be a fundamental and essential relation between
States so united,—and it must be manifest that Congress, in governing the
territories, can give no preference or advantage to one State over another, or
to one portion or section of the Union over another, without depriving
the State or section over which the preference is given, or from which the
advantage is withheld, of their clear and unquestionable right, and
subverting the very foundation on which the Union and Government rest. It has
no more power to do so than to subvert the constitution itself. In deed, the
act itself would be subversion. It would destroy the
relation of equality on the part of the Southern States,
and sink them to mere dependants of the Northern, to the total
destruction of the federal Union.
I have now shown, I
trust, beyond controversy, that Congress has no power whatever to prevent the
citizens of the Southern States from emigrating with their property
into the territories of the United States, or to give an exclusive
monopoly of them to the North. I now propose to go one step
further, and show that neither the inhabitants of the territories nor
their legislatures have any such right. A very few words will be sufficient for
the purpose; for of all the positions ever taken, I hold that which
claims the power for them to be the most absurd. If the territories belong to
the United States—if the ownership, dominion and sovereignty over them be in
the States of this Union, then neither the
inhabitants of the territories, nor their legislatures, can exercise
any power but what is subordinate to them but if the contrary could be shown,
which I hold to be impossible, it would be subject to all the restrictions, to
which I have shown the power of Congress is; and for the same reason,
whatever power they might hold, would, in the case supposed, be subordinate to
the constitution, and controlled by the nature and character of our
political institutions. But if the reverse be true—if the dominion and
sovereignty over the territories be in their inhabitants, instead of the
United States—they would indeed, in that case, have the exclusive and absolute
power of governing them, and might exclude whom they pleased, or what
they pleased. But, in that case, they would cease to be the
territories of the United States the moment we acquired them and
permitted them to be inhabited. The first half-dozen of squatters
would become the sovereigns, with full dominion and sovereignty over them; and
the conquered people of New Mexico and California would become the
sovereigns of the country as soon as they became the territories of the
United States, vested with the full right of excluding even their
conquerors. There is no escaping from the alternative, but by resorting to the
greatest of all absurdities, that of a divided sovereignty—a
sovereignty, a part of which would reside in the United States, and a
part in the inhabitants of the territory. How can sovereignty—the
ultimate and supreme power of a State—be divided? The
exercise of the powers of sovereignty may be divided, but how
can there be two supreme powers?
We are next told
that the laws of Mexico preclude slavery; and assuming that they will
remain in force until repealed, it is contended that, until Congress passes an
act for their repeal, the citizens of the South cannot emigrate with
their property into the territory acquired from her. I admit the
laws of Mexico prohibit, not slavery, but slavery in the form it
exists with us. The Puros are as much slaves as our negroes, and are less
intelligent and well treated. But, I deny that the laws of Mexico can
have the effect attributed to them. As soon as the treaty between the two
countries is ratified, the sovereignty and authority of Mexico in the
territory acquired by it becomes extinct, and that of the United
States is substituted in its place,―carrying with it the constitution, with its
overriding control, over all the laws and institutions of Mexico
inconsistent with it. It is true, the municipal laws of the territory
not inconsistent with the condition and the nature of our political
system would, according to the writers on the laws of nations,
remain, until changed,—not as a matter of right, but
merely of sufferance, and as between the
inhabitants of territory, in order to avoid a
state of anarchy, before they can be brought under our laws. This is
the utmost limit to which sufferance goes. Under it the peon system would
continue; but not to the exclusion of such of our citizens
as may choose to emigrate with their slaves or other property, that may be
excluded by the laws of Mexico. The humane provisions of the
laws of nations go no further than to protect the inhabitants in
their property and civil rights, under their former laws, until others can be
substituted. To extend them further and give them the force of excluding
emigrants from the United States, because their property or religion are such
as are prohibited from being introduced by the laws of Mexico, would
not only prevent a great majority of the people of the
United States from emigrating into the acquired territory, but would give a
higher authority to the extinct power of Mexico over the territory
than to our actual authority over it. I say the great majority, for the
laws of Mexico not only prohibit the
introduction of slaves, but of many other
descriptions of property, and also the Protestant religion, which
Congress itself cannot prohibit. To such absurdity would the supposition lead.
I have now concluded
the discussion, so far as it relates to the power; and have, I trust,
established beyond controversy, that the territories are free and open to
all of the citizens of the United States, and that there is
no power, under any aspect the subject can be viewed in, by which the
citizens of the South can be prevented from emigrating with their
property into any of them. I have advanced no argument which I do not
believe to be true, nor pushed any one beyond what truth would strictly
warrant. But, if mistaken,—if my arguments, instead of being sound
and true, as I hold them beyond controversy to be, should turn out to be a mere
mass of sophisms, and if in consequence, the barrier opposed by the
want of power, should be surmounted, there is another still in the
way, that cannot be. The mere possession of power is
not, of itself, sufficient to justify its exercise. It must be, in
addition, shown that, in the given case, it can be rightfully and justly
exercised. Under our system, the first inquiry is: Does the constitution
authorize the exercise of the power?
If this be decided
in the affirmative, the next is: Can it be rightfully and justly exercised
under the circumstances? And it is not, until this, too, is decided in the
affirmative, that the question of the
expediency of exercising it, is presented for consideration.
Now, I put the
question solemnly to the Senators from the North Can you rightly and justly
exclude the South from territories of the United States, and
monopolize them for yourselves, even if, in your opinion, you should have the
power? It is this question I wish to press on your attention with all due solemnity
and decorum. The North and the South stand in the
relation of partners in a common Union, with equal dignity and equal
rights. We of the South have contributed our full
share of funds, and shed our full share of blood for the
acquisition of our territories. Can you, then, on any
principle of equity and justice, deprive us of our full
share in their benefit and advantage? Are you ready to affirm that a
majority of the partners in a joint concern have the right to monopolize
its benefits to the exclusion of the minority, even in cases where
they have contributed their full share to the concern? But, to present the case
more strongly and vividly, I shall descend from generals to particulars, and
shall begin with the Oregon Territory. Our title to it is founded first, and in
my opinion, mainly on our purchase of Louisiana; that was
strengthened by the Florida treaty, which transferred to us the title
also of Spain; and both by the discovery of the
mouth of the Columbia river by Capt. Gray, and the exploration of the
entire stream, from its source down to its mouth, by Lewis and Clark. The
purchase of Louisiana cost fifteen millions of dollars; and
we paid Spain five millions for the Florida treaty; making twenty in all. This
large sum was advanced out of the common funds of the
Union: the South, to say the least, contributing her full share. The discovery
was made, it is true, by a citizen of Massachusetts; but he sailed
under the flag and protection of the Union, and of course,
whatever title was derived from his discovery, accrued to the
benefit of the Union. The exploration of Lewis and Clark
was at the expense of the Union. We are now about to form it into a
territory; the expense of governing which, while it remains so, must
be met out of the common fund, and towards which the South must
contribute her full share. The expense will not be small. Already there is an
Indian war to be put down, and a regiment for that purpose, and to protect the
territory, has been ordered there. To what extent the expense may go we know
not, but it will, not improbably, involve millions before the territory becomes
a State. I now ask, Is it right, is it just—after having contributed our full
share for the acquisition of the territory, with the
liability of contributing, in addition, our full
share of the expense for its government—that we should be shut
out of the territory, and be excluded from participating in its
benefits? What would be thought of such conduct in the
case of individuals? And can that be right and just in Government,
which every right-minded man would cry out to be base and dishonest in private
life? If it would be so pronounced in a partnership of thirty
individuals, how can it be pronounced otherwise in one of thirty
States?
The
case of our recently acquired territory from Mexico is, if possible,
more marked. The events connected with the acquisition are too well known to
require a long narrative. It was won by arms, and a great
sacrifice of men and money. The South, in the contest, performed her
full share of military duty, and earned a full
share of military honor; has poured out her full
share of blood freely, and has and will bear a full
share of the expense; has evinced a full share of skill and
bravery, and if I were to say even more than her full share of both,
I would not go beyond the truth; to be attributed, however, to no superiority
in either respect, but to accidental circumstances, which gave both its
officers and soldiers more favorable opportunities for their display. All have
done their duty nobly, and high courage and gallantry are but common
attributes of our people. Would it be right and just to close a
territory thus won against the South, and leave it open exclusively to the
North? Would it deserve the name of free soil, if one
half of the Union should be excluded and the other half should
monopolize it, when it was won by the joint expense and joint
efforts of all? Is the great law to be reversed—that which is won by
all should be equally enjoyed by all? These are questions which address
themselves more to the heart than the head. Feeble must be the intellect which
does not see what is right and just, and bad must be the heart, unless
unconsciously under the control of deep and abiding prejudice, which
hesitates in pronouncing on which side they are to be found. Now, I put the
question to the Senators from the North: What are you prepared to do? Are you
prepared to prostrate the barriers of the constitution, and in open
defiance of the dictates of equity and justice, to exclude
the South from the territories and monopolize them for the North? If so, vote
against the amendment offered by the Senator from Mississippi (Mr. Davis), and
if that should fail, vote against striking out the 12th section. We shall then
know what to expect. If not, place us on some ground where we can stand as
equals in rights and dignity, and where we shall not be excluded from what has
been acquired at the common expense, and won by common skill and gallantry. All
we demand is to stand on the same level with yourselves, and to participate
equally in what belongs to all. Less we cannot take.
I turn now to my
friends of the South, and ask: What are you prepared to do? If
neither the barriers of the constitution nor the high
sense of right and justice should prove sufficient to protect you,
are you prepared to sink down into a state of acknowledged
inferiority; to be stripped of your dignity of equals among
equals, and be deprived of your equality of rights in this
federal partnership of States? If so, you are woefully [sic] degenerated from your sires, and
will well deserve to change condition with your slaves;—but if not, prepare to
meet the issue. The time is at hand, if the question should not be speedily
settled, when the South must rise up, and bravely defend herself, or sink down
into base and acknowledged inferiority; and it is because I clearly perceive
that this period is favorable for settling it, if it is ever to be settled,
that I am in favor of pressing the question now to a decision—not
because I have any desire whatever to embarrass either party in reference to
the Presidential election. At no other period could the two great parties into
which the country is divided be made to see and feel so clearly and intensely
the embarrassment and danger caused by the question. Indeed, they must be blind
not to perceive that there is a power in action that must burst asunder the
ties that bind them together, strong as they are, unless it should be speedily
settled. Now is the time, if ever. Cast your eyes to the North, and mark what
is going on there; reflect on the tendency of events for the last
three years in reference to this the most vital of all questions, and
you must see that no time should be lost.
I am thus brought to
the question, How can the question be settled? It can, in my opinion, be
finally and permanently adjusted but one way, and that is on the high
principles of justice and the constitution. Fear not to leave it to
them. The less you do the better. If the North and South cannot stand together
on their broad and solid foundation, there is none other on which they can. If
the obligations of the constitution and justice be too feeble to
command the respect of the North, how can the South expect that she
will regard the far more feeble obligations of an
act of Congress? Nor should the North fear that, by leaving it where
justice and the constitution leave it, she would be excluded from her full
share of the territories. In my opinion, if it be left there,
climate, soil, and other circumstances would fix the line between the
slaveholding and non-slaveholding States in about 36° 30'. It may zigzag a
little, to accommodate itself to circumstances—sometimes passing to the north,
and at others passing to the south of it; but that would matter
little, and would be more satisfactory to all, and tend less to alienation
between the two great sections, than a rigid, straight, artificial line,
prescribed by an act of Congress.
And here, let me say
to Senators from the North;—you make a great mistake in supposing that the
portion which might fall to the south of whatever line might be
drawn, if left to soil, and climate, and circumstances to determine, would be
closed to the white labor of the North, because it could not mingle
with slave labor without degradation. The fact is not so. There is no
part of the world where agricultural, mechanical, and other
descriptions of labor are more respected than in the South, with the
exception of two descriptions of employment—that of menial
and body servants. No Southern man—not the poorest or the lowest will, under
any circumstance, submit to perform either of them. He has too much
pride for that, and I rejoice that he has. They are unsuited to the spirit of a
freeman. But the man who would spurn them feels not the least degradation to
work in the same field with his slave; or to be employed to work with them in
the same field or in any mechanical operation; and, when so employed, they
claim the right—and are admitted, in the country portion of the
South of sitting at the table of their employers. Can as
much, on the score of equality, be said of the North. With
us the two great divisions of society are not the rich and poor, but
white and black; and all the former, the poor as well as the rich, belong to
the upper class, and are respected and treated as equals, if honest and
industrious; and hence have a position and
pride of character of which neither poverty nor misfortune
can deprive them.
But I go further,
and hold that justice and the constitution are the easiest and safest guard on
which the question can be settled, regarded in reference to party. It may be
settled on that ground simply by non-action—by leaving the territories free and
open to the emigration of all the world, so long as they continue so,
and when they become States, to adopt whatever constitution they please, with
the single restriction, to be republican, in order to their admission into the
Union. If a party cannot safely take this broad and solid position and
successfully maintain it, what other can it take and maintain? If it cannot
maintain itself by an appeal to the great principles of justice, the
constitution, and self-government, to what other, sufficiently strong to uphold
them in public opinion, can they appeal? I greatly mistake the
character of the people of this Union, if such an appeal
would not prove successful, if either party should have the magnanimity to step
forward, and boldly make it. It would, in my opinion, be received with
shouts of approbation by the patriotic and intelligent in every
quarter. There is a deep feeling pervading the country that the Union and our
political institutions are in danger, which such a course would dispel, and
spread joy over the land.
Now is the time to
take the step, and bring about a result so devoutly to be wished. I have
believed, from the beginning, that this was the only question sufficiently
potent to dissolve the Union, and subvert our system of government;
and that the sooner it was met and settled, the safer and better for all. I
have never doubted but that, if permitted to progress beyond a certain point,
its settlement would become impossible, and am under deep conviction that it is
now rapidly approaching it, and that if it is ever to be averted, it must be
done speedily. In uttering these opinions I look to the whole. If I speak
earnestly, it is to save and protect all. As deep as is the
stake of the South in the Union and our political institutions, it is
not deeper than that of the North. We shall be as well prepared and
as capable of meeting whatever may come, as you.
Now, let me say,
Senators, if our Union and system of government are doomed to perish,
and we to share the fate of so many great people who have gone before
us, the historian, who, in some future day, may record the events ending in so
calamitous a result, will devote his first chapter to the
ordinance of 1787, lauded as it and its authors have been, as the
first of that series which led to it. His next chapter will be
devoted to the Missouri compromise, and the next to the present agitation.
Whether there will be another beyond, I know not. It will depend on what we may
do.
If he should possess
a philosophical turn of mind, and be disposed to look to more remote
and recondite causes, he will trace it to a proposition which originated in a
hypothetical truism, but which, as now expressed and now understood, is the
most false and dangerous of all political errors. The proposition to
which I allude, has become an axiom in the minds of a vast many on
both sides of the Atlantic, and is repeated daily from tongue to
tongue, as an established and incontrovertible truth; it is,—that "all men
are born free and equal." I am not afraid to attack error, however deeply
it may be intrenched, or however widely extended, whenever it becomes my duty
to do so, as I believe it to be on this subject and occasion.
Taking the
proposition literally (it is in that sense it is understood), there is not a
word of truth in it. It begins with "all men are born,"
which is utterly untrue. Men are not born. Infants are born. They grow to be
men. And concludes with asserting that they are born “free and equal,” which is
not less false. While infants they are incapable of freedom, being
destitute alike of the capacity of thinking and acting,
without which there can be no freedom. Besides, they are necessarily born
subject to their parents, and remain so among all people, savage and civilized,
until the development of their intellect and physical capacity
enables them to take care of themselves. They grow to all the
freedom of which the condition in which they were born permits, by
growing to be men. Nor is it less false that they are born "equal."
They are not so in any sense in which it can be regarded; and thus, as I have
asserted, there is not a word of truth in the whole proposition, as
expressed and generally understood.
If we trace it back,
we shall find the proposition differently expressed in the
Declaration of Independence. That asserts that "all men are
created equal." The form of expression, though less dangerous,
is not less erroneous. All men are not created. According to the Bible, only
two—a man and a woman—ever were—and of these one was pronounced
subordinate to the other. All others have come into the world by being born,
and in no sense, as I have shown, either free or equal. But this
form of expression being less striking and popular, has given way to
the present, and under the authority of a document put forth on so
great an occasion, and leading to such important consequences, has spread far
and wide, and fixed itself deeply in the public mind. It was inserted in our
Declaration of Independence without any necessity. It made no
necessary part of our justification in separating from the parent
country, and declaring ourselves independent. Breach of our chartered
privileges, and lawless encroachment on our acknowledged and well-established
rights by the parent country, were the real causes,—and of themselves
sufficient, without resorting to any other, to justify the step. Nor had it any
weight in constructing the governments which were substituted in the
place of the colonial. They were formed of the old
materials and on practical and well-established principles, borrowed for the
most part from our own experience and that of the country from which
we sprang.
If the proposition
be traced still further back, it will be found to have been adopted from
certain writers on government who had attained much celebrity in the early
settlement of these States, and with those writings all the prominent
actors in our revolution were familiar. Among these, Locke and Sydney were
prominent. But they expressed it very differently. According to their
expression, "all men in the state of nature were free and
equal." From this the others were derived; and it was this to which I
referred when I called it a hypothetical truism;—to understand why, will
require some explanation.
Man, for the
purpose of reasoning, may be regarded in three different states: in a
state of individuality; that is, living by himself apart from the
rest of his species. In the social; that is, living in society,
associated with others of his species. And in the political; that is,
living under government. We may reason as to what would be his rights and
duties in either, without taking into consideration whether he could exist in
it or not. It is certain, that in the first, the very supposition that he lived
apart and separated from all others would make him free and equal. No one in
such a state could have the right to command or control another. Every man
would be his own master, and might do just as he pleased. But it is equally
clear, that man cannot exist in such a state; that he is by nature social, and
that society is necessary, not only to the proper development of all
his faculties, moral and intellectual, but to the very
existence of his race. Such being the case, the state is a purely
hypothetical one; and when we say all men are free and equal in it, we announce
a mere hypothetical truism; that is, a truism resting on a mere supposed state
that cannot exist, and of course one of little or no
practical value.
But to call it a
state of nature was a great misnomer, and has led to dangerous
errors; for that cannot justly be called a state of nature which is
so opposed to the constitution of man as to be inconsistent with the
existence of his race and the development of the high
faculties, mental and moral, with which he is endowed by his Creator.
Nor is the social
state of itself his natural state; for society can no more exist
without government, in one form or another, than man without society. It is the
political, then, which includes the social, that is his natural state. It is
the one for which his Creator formed him,—into which he is impelled
irresistibly,—and in which only his race can exist and all its faculties be
fully developed.
Such being the case,
it follows that any, the worst form of government, is better than
anarchy; and that individual liberty, or freedom, must be subordinate to
whatever power may be necessary to protect society against anarchy within or
destruction without; for the safety and well-being of society is as
paramount to individual liberty, as the safety and well-being of the
race is to that of individuals; and in the same proportion the power
necessary for the safety of society is paramount to individual
liberty. On the contrary, government has no right to control individual liberty
beyond what is necessary to the safety and well-being of society.
Such is the boundary which separates the power of government and the
liberty of the citizen or subject in the political state, which, as I
have shown, is the natural state of man—the only one in which his
race can exist, and the one in which he is born, lives, and dies.
It follows from all
this that the quantum of power on the part of the
government, and of liberty on that of individuals,
instead of being equal in all cases, must necessarily be very unequal
among different people, according to their different conditions. For just in
proportion as a people are ignorant, stupid, debased, corrupt, exposed to
violence within, and danger from without, the power necessary for government to
possess, in order to preserve society against anarchy and destruction, becomes
greater and greater, and individual liberty less and less, until the lowest
condition is reached, when absolute and despotic power becomes necessary on the
part of the government, and individual liberty extinct. So, on the
contrary, just as a people rise in the scale of intelligence, virtue,
and patriotism, and the more perfectly they become acquainted with the
nature of government, the ends for which it was ordered, and how it
ought to be administered, and the less the tendency to violence and disorder within,
and danger from abroad,—the power necessary for government becomes less and
less, and individual liberty greater and greater. Instead,
then, of all men having the same right to liberty and equality, as is
claimed by those who hold that they are all born free and equal, liberty is the
noble and highest reward bestowed on mental and moral development, combined
with favorable circumstances. Instead, then, of liberty and equality
being born with men,—instead of all men and all classes and descriptions
being equally entitled to them, they are high prizes to be won, and are in
their most perfect state, not only the highest reward that can be bestowed on
our race, but the most difficult to be won, and when won, the most difficult to
be preserved.
They have been made
vastly more so by the dangerous error I have attempted to expose,—that all men
are born free and equal,—as if those high qualities belonged to man without
effort to acquire them, and to all equally alike, regardless of their
intellectual and moral condition. The attempt to carry into practice this, the
most dangerous of all political errors, and to bestow on all—without
regard to their fitness either to acquire or maintain liberty—that unbounded
and individual liberty supposed to belong to man in the hypothetical and
misnamed state of nature, has done more to retard the
cause of liberty and civilization, and is doing more at present, than
all other causes combined. While it is powerful to pull down governments, it is
still more powerful to prevent their construction on proper principles. It is
the leading cause among those which have placed Europe in its present
anarchical condition, and which mainly stands in the
way of reconstructing good governments in the place of those
which have been overthrown,— threatening thereby the quarter of the
globe most advanced in progress and civilization with hopeless anarchy,—to be
followed by military despotism. Nor are we exempt from its disorganizing
effects. We now begin to experience the danger of admitting so great
an error to have a place in the declaration of our independence. For
a long time it lay dormant; but in the process of time it began to
germinate, and produce its poisonous fruits. It had strong hold on the mind of Mr.
Jefferson, the author of that document, which caused him to take an
utterly false view of the subordinate relation of the black
to the white race in the South; and to hold, in consequence, that the latter,
though utterly unqualified to possess liberty, were as fully entitled to both
liberty and equality as the former; and that to deprive them of it
was unjust and immoral. To this error, his proposition to exclude slavery from
the territory northwest of the Ohio may be traced, and to that the
ordinance of 1787,—and through it the deep and dangerous agitation
which now threatens to ingulf, and will certainly ingulf, if not speedily
settled, our political institutions, and involve the country in countless woes.
SOURCE: Richard K.
Crallé, Editor, Speeches of John C.
Calhoun Delivered in the House of Representatives and in the Senate of the
United States, Vol. 4, p. 479-512
