Chapter I: HOPE that Mr. Mendenhall may be treated with the greatest (2)

In the first place, I offer to the senate an extract from a memorial of the senators and representatives of the state of California to the congress of the United States. To read this memorial, or to state it in substance in detail, would take up a considerable time; and as that memorial has been before senators, and can at any time be referred to and perused by any who have not already examined it, I will merely state, that according to the statements of that memorial――a portion of which are conjectural and a part official――the population of California, from the 1st of January, 1850, was 107,069, exceeding the number requisite to entitle the state to two representatives. But that brings it down only to January, 1850. Since that time we are authorized to add to the number, by that of the arrivals by sea at the port of San Francisco, as shown by the official report of the harbor-master from the 1st of January, 1850, to the 27th of March, 1850. Without going into the classification, there are of Americans, 8,697; of Californians, 13,454; and of foreigners, 5,503――making a total of 16,957. The number of deserters from ships, as stated in the memorial before alluded to, is put at 3,000, in round numbers. The official statement of the harbor-master, made on the first of March last to the legislature, states the number of officers and seamen that left their vessels from various causes to be 14,240. The aggregate of all these statements will give the following results, viz: 1st January, 1849, 26,000――8,000 Americans, 13,000 Californians, and 5,000 foreigners; on the 1st of January, 1850, the population was 107,069――making a total number on the 27th of March, 1850, of 124,026; to which add the number of deserting seamen, 14,240, makes a total of 135,256. Add to this the population arrived from the United States and other places since that time, and altogether, I have no earthly doubt――I am perfectly satisfied in my own mind――that, putting all these statements together, there is at this moment a population in California that would entitle her to two representatives, even supposing there had been no provision for a fraction exceeding the moiety of the ratio fixed by Congress.

Upon this question of population I do not wish to take up the time of the senate unnecessarily. They are bone of our bone and flesh of our flesh, for the greater part. They have lost nothing of intelligence and capacity for self-government by passing from the United States into California. By the treaty of Hidalgo, the Californians who remain become citizens of the United States, if they do not adopt the alternative of remaining Mexicans, within one year after the treaty of Hidalgo was signed. The Constitution of the United States does not any where fix any term of residence sufficient to constitute an individual one of the permanent portion of the people of the United States. In the Constitution, with regard to the subject of taxation and representation, the term is _people_ and _number_. I have very little doubt that there is a sufficient number of citizens of the United States there to entitle California to two representatives. Well, as they will not be represented in the United States, they ought to be represented somewhere. Having gone to California, it is said that they have gone there only for temporary purposes. They have gone there to dig in the mines; and how many will return, how many will remain there, it is impossible at the present time to tell. We have all a right to move from place to place.

With regard to Louisiana――I am sure I state a fact that will be borne out and affirmed by the senator in my eye from that state, [Mr. Downs]――thousands and thousands went to New Orleans and other parts of Louisiana shortly after the acquisition of that territory by the treaty of Louisiana――and even up to the present time they go there for temporary purposes, intending to make a fortune, if they can, and then return home. But, so delightful is the climate, so happy do they find themselves when they get there, the number of those who go there for such purposes, who ultimately return to their individual homes, I do not believe amounts to scarcely one in a hundred. So it is and will be of California, I dare say. Vast numbers have gone there with the intention of returning, but after they have become connected by marriage, by social ties, by the acquisition of wealth, and by all those circumstances that tend to fix to a permanent location the residence of this animal man, they will relinquish their purpose of returning to the United States, I have no doubt, and become permanent and fixed residents of California. On the question of population, therefore, I think there is no ground of rational objection to the number “two,” which has been proposed by the committee, and which is precisely the number in the case of Texas.

Now, sir, with regard to the limits of California.――Upon that subject, a proposition was offered in the committee to extend a line through California, first by 36 deg. 30 min. A member of the committee, however, was not satisfied with that, and proposed 35 deg. 30 min. I believe that a majority of the committee was in favor of that amendment; but when the question of any line came up, it was rejected by a majority of the committee. Is it not a little remarkable that this proposition――this attempt to cut California in two by the line 36 deg. 30 min., or 35 deg. 30 min., or by any other line――does not come from the North at all, from whence it might be supposed it would come? For, with respect to the North, there can be no earthly doubt but if there were half a dozen states made out of California they would all be free states. But the North does not ask for a division. It is from the South that the proposition to divide the existing limits of California comes. The South wants some other states, or another state there. Some gentlemen from the South, it is true, propose that there should be an express recognition of the right to carry slaves south of the proposed line. But I believe that the major part of those who ask for this line, do not even ask for this recognition, or for this enactment, to carry slaves south of this line; and I ask every body who is acquainted with the country, who has taken the pains to look over the map, if he has not come to the conclusion that a friend of mine (I believe now within my hearing) from the South, and a large planter, came to? He said to me the other day: ‘Mr. Clay, if congress was to offer me $500 for every slave I might own, requiring me to take them to one of these new territories and keep them there for ten years, I would not accept the proposition.’

Now, suppose you were to take the line 35 deg. 30 min. or whatever line was proposed, what would be the consequence? There would be an open sea on the one side for the escape of slaves――California, reduced as I have suggested, on another; and Mexico, with her boundless mountains, on another. Who would think――who believes――that, if you establish the line proposed, slavery would ever be carried there, or would be maintained there? Moreover, I think I have understood that the delegation in the convention, south of the line of 35 deg. 30 min., or north of it, voted unanimously against the introduction of slavery there. It cannot, therefore, and I suppose it is not designed with any hope that there would be slavery carried there upon the limits of the Pacific at all. The making of a new state or states out of the present limits of California is therefore but adding to the objection which has been made by the South to the preponderance and influence, and the apprehensions entertained of the preponderance and influence of northern power. If the North is satisfied, if the thing is not unreasonable, it seems to me that there should be on the part of our southern friends no hesitation in accepting these limits. But they are said to be unreasonable. California is some 600 or 700 miles in extent on the Pacific coast; it is too large. It is stated in the report that with respect to all that portion of California south of 36 deg. 30 min., shortly after you have left the coast, you encounter deserts of sand, which never can be inhabited; and after you pass these deserts of sand, you approach mountains, and are involved in successive chains of mountains until you reach a population that has no intercourse with the Pacific, but whose intercourse is carried on exclusively with Mexico and other countries on the Mexican Gulf and the Atlantic Ocean. When you come to the northern portion of California, there is a vast desert which is said to have never been passed――or which was never known to be passed――extending from the country which the Mormons occupy down to the Pacific ocean. There seems to me, then, to be no adequate motive for the decreasing of the limits upon the Pacific, with a view to the addition of future states――at least from any amount of geographical knowledge which we possess at present.

It is mentioned in the report that there are other cases of states which have been admitted without the previous authority of congress. The honorable gentleman from Alabama (Mr. Clemens) stated that in all the other instances of states admitted into the Union, they had served an apprenticeship of so many years. But the statement in the report stands uncontradicted. Michigan, Arkansas, Florida, if no other states, came into the Union without any previous act of congress, according to the usage which prevailed in the early admission of states, authorizing them to meet in convention and form a constitution. But it is said that they were under the government of the United States. So much the better for them; they had a good government――a territorial government. But how was it with California? She had no government. You abandoned and deserted her――violated the engagement of the treaty of Hidalgo――left her to shift for herself as well as she could. In this state of abandonment, she has formed a constitution and come here. I ask again, as I had occasion to ask some three months ago, if she does not present stronger claims upon our consideration than any of those states which had territorial governments, but which, not satisfied with them, chose to form for themselves state constitutions, and come here to be admitted into the Union?

I think, then, Mr. President, that with respect to the population of California, with respect to the limits of California, and with respect to the circumstances under which she presents herself to congress for admission as a state into the Union, all are favorable to the grant of what she solicits, and that we can find neither in the one nor the other a sufficient motive to reject or to throw her back into the state of lawless confusion and disorder from which she has emerged.

With the committee I say upon this occasion, that all the considerations which devolve upon congress to admit California, sanction what she has done, and give her the benefit of self-government, apply with equal force to the two territories of Utah and New Mexico.

Mr. President, allow me, at this stage of the few observations which I propose to address to the senate, to contrast the plans which have been presented for the settlement of this question. One has come to us from very high authority, recommending, as I understand it, the admission of California, and doing nothing more, leaving the question unsettled of the boundary between New Mexico and Texas, and leaving the people who inhabit Utah and New Mexico unprovided for by government. I will take the occasion to say, that I came to Washington with a most anxious desire――a desire which I still entertain――to coöperate in my legislative position, in all cases in which I can judiciously coöperate, with the executive branch of the government. I need not add, however, sir, that I came here, also, with a settled purpose to follow the deliberate dictation of my own judgment, wherever that judgment might carry me. It is with great pleasure, sir, that I state that we do coöperate with the President, to the extent which he recommends. He recommends the admission of California. The committee propose it. There the President’s recommendation stops. There we take up the subject, and proceed to act upon the other parts of the territory acquired from Mexico. Now, sir, which course of the two recommends itself best to the judgment of those who are to act in the case?

In the first place, sir, if we do not provide governments for the other portions of the country acquired from Mexico, we fail to fulfil the obligation, the sacred obligation, in the treaty with Mexico. It is said that they will have a government of their own――a local government; that they have such a one now; but they have not such a one now as they had when they were part of Mexico. When they were part of the republic of Mexico, with the common government of Mexico stretching over all the parts constituting that republic, they had all the benefit resulting from their own local laws, and the additional benefit and security resulting from the laws of the supreme government, covering all parts of the republic. We have the place of that supreme government. They were transferred from that sovereignty to this sovereignty, and we stipulated with that former sovereignty that we would extend to them protection to their persons, security to their property, and the benefit of preserving their own religion according to the dictates of their own consciences. Now, sir, if you admit California, and do nothing for Utah and New Mexico――nothing in relation to the ♦settlement of the boundary question with Texas――I ask you, in what condition, in what state, will you leave these countries? There are the Mormons――a community of which I do not wish to say a word in disrespect. I know very little about them. I have heard very often things said against them; and I believe during this session my colleague, who sits before me, [Mr. Underwood] has had occasion to present some petition or document, showing some very harsh, oppressive, and tyrannical treatment extended by those Mormons to citizens of the United States, who did not compose a portion of their community, and who were merely passing through. Of that people, of their capacity to govern, of the treatment they would give to the other citizens of the United States who might settle among them, or who might wish to pass through, not belonging there――of all these matters I shall not speak. The members from Missouri and Illinois are much more competent to afford information to the senate upon them than I am.

But I care not whether they are as bad as they are represented by their enemies, or as good as they are represented by their friends, or what they are: they are a portion of the people whom we are bound by treaty, as well as other high obligations, to govern; and I put it to you, sir, is it right to say of the people of Utah, comprehending the Mormons, and to the people of New Mexico, deprived as they are of the benefit of the government which they once had, the supreme authority of which resides at Mexico――is it right in us to leave them to themselves, and to say, they will take care of themselves, I dare say; and when they get ripe――ay, when will they be ripe for a state government?――when they get ripe, after the lapse of many years, let them come forward, and we will receive them? Is that discharging our duty?

I will go further in reference to the message, which I am sorry that I think it my duty to contrast with the plan of the committee which is now under consideration; and I will say that I have no doubt that there were strong, at least plausible reasons, for the adoption of that recommendation in the message of the President, at the time it was sent into congress, at the beginning of the session. I have no doubt it was apprehended at that time that it was impossible to create any governments for those territories, without producing scenes in congress of the most painful and unpleasant character. I have no doubt it was believed, as indeed it was stated in the message, that distraction would be aggravated――differences of opinion, perhaps, carried to extreme lengths, if any attempts should be made to extend government over those territories.

But I am happy to be able to recognise what all have seen, that, since the commencement of the session, the most gratifying change in the public mind has taken place. The North, the glorious North, has come to the rescue of this Union of ours. She has displayed a disposition to abate in her demands. The South, the glorious South――not less glorious than the other section of the Union――has also come to the rescue. The minds of men have moderated. Passion has given place to reason. Every where――every where, in all parts of the Union, there is a demand――the force and effect of which, I trust, will be felt in both branches of congress――for an amicable adjustment of these questions, for the relinquishment of extreme opinions entertained, whether upon one side of the question or upon the other, and coming together once more as friends and brethren, living under the common country, and enjoying the benefits and happiness which have flowed from a common government. I think that if the President had to make a recommendation to congress, with all the lights which have been shed upon the subject since the commencement of the session, now that nearly five months of the session have gone, he would not have limited himself simply to a recommendation to admit California, or to leave the territories to shift for themselves as they could or might.

He tells us in one of those messages――I forget whether it is the message of December or January――that he had reason to believe that one of those territories at least (New Mexico) would possibly form a state government for herself, and might come here, even during the progress of this debate. At all events, if there had been such a state of circumstances at the period that this message was sent in as exists down to the present time, I cannot but believe that the gentleman who now presides at the head of our political affairs, if he had had the benefit of our light, would have made a recommendation much more comprehensive, much more general and healing in its character, than the simple recommendation of the admission of California, leaving all the other questions untouched and unsettled.

With regard to the abandoned condition of Utah and New Mexico, to which I have alluded, left without any authority of this government, acting locally to protect the citizen who goes there to settle, and to protect the citizen who is _in transitu_ between these countries, without any authority connected with the supreme authority of the government here――when they are communicating from time to time this state of things existing in those countries, I submit that to abandon them, in face of our obligation contained in the treaty of Guadalupe Hidalgo, and other high obligations, is not conformable to that duty which we are called upon to perform.

Well, then, there is the boundary question with Texas. Why, sir, at this very moment we learn through the public papers that Texas has sent her civil commissioners to Santa Fe, or into New Mexico, for the purpose of bringing them under her authority; and if you leave the Texas boundary question unsettled, and establish no government for Utah and New Mexico, I venture to say that, before we meet again next December, we shall hear of some civil commotion, perhaps the shedding of blood, in the contest between New Mexico and Texas with respect to the boundary; for, without meaning to express at this time, or at any time, any positive opinion on that question, we know that the people of Santa Fe are as much opposed to the government of Texas, and as much convinced that they do not belong to Texas, that they constitute no portion of the territory of Texas, as we know Texas to be earnest in asserting the contrary, and affirming her right to all the country from the mouth of the Rio Grande to its uppermost sources. Is it right, then, to leave these territories unprovided for? Is it right to leave this important question of boundary between New Mexico and Texas unsettled, to produce possibly the fearful consequences to which I have adverted?

Sir, on these questions, I believe――though I do not recollect the exact state of the vote in committee――that there was no serious diversity of opinion. We all thought we should establish governments for them if we could; that, at any rate, we should make the attempt; and if we failed, after making the attempt, we should stand irreproachable for any voluntary abandonment or neglect of them on our part.

The next question which arose before the committee, after having agreed upon the proposal to be made to Texas for the settlement of the boundary between her and New Mexico, was the question of the union of these three measures in one bill. And upon that subject, sir, the same diversity of opinion which had developed itself in the senate displayed itself in the committee.

A senator, in his seat.――What of the amount to be paid to Texas?

Mr. Clay.――Ah! I am reminded that I have said nothing about the amount proposed to be given to Texas for the relinquishment of her title to the United States of the territory north of the proposed line. The committee, I hope, with the approbation of the senate, thought it best not to fill up that blank until the last moment, upon the final reading of the bill; that if it were inserted in the bill it would go out to the country, and might lead to improper speculation in the stock markets; and that therefore it was better to leave it out until the final passage of the bill.――When we arrive at that point, which I hope we shall do in a short time, I shall be most happy to propose the sum which has been thought of by the committee.

Sir, the committee recommended the union of these three measures. If the senator from Missouri will allow me the benefit of those two cannons pointed to this side of the house, (alluding to two volumes of Hatsel,) I will be much obliged to him. I believe the senator from Missouri has them on his table.

Mr. Benton.――They are in the secretary’s office.

Mr. Clay. The union of these three measures in one bill has been objected to, and has been already very much discussed in the senate. Out of respect to the senator from Missouri and to the senate, I feel myself called upon to give some answer to the argument which he addressed to the senate some days ago, to show that it was improper to connect them together. I must begin by stating what I understand to be parliamentary law in this country. It consists, in the first place, of the Constitution of the United States and of the rules adopted by the two houses of congress; and if you please, sir, Jefferson’s Manual, which has been respected as authority, and used, I believe, in most of the deliberative bodies in this country. Now, sir, either the senator from Missouri or myself totally misunderstands what is meant by Hatsel in the use of the word ‘tacking.’ We have no such thing as tacking in the English sense of the term. Jefferson has no chapter in his Manual on this subject of tacking. Hatsel first. Tacking in England is this: By the constitution of England――or, in other words, by the practice of England, which makes her constitution――money bills, supply bills, bills of subsidy and aid of all kinds, are passed by the house of commons, sent to the house of lords, and the lords are obliged to take them word for word, without making any amendment whatever. They are sent in that shape to the crown, and the crown is obliged to take them without amendment at all. The practice of tacking in England is this: knowing that a money bill is obliged to be passed without any alteration or amendment in the lords, the commons in England frequently, when they have a public object or measure to carry out, tack that measure to a money bill, and send it to the house of lords. They know that the over-ruling necessity of the aristocracy and of the crown is such that they must, for the sake of the money granted to them, agree to that clause favorable perhaps to liberty, or to something else that is tacked on to it. The process of tacking in England is therefore objected to by the crown and by the aristocracy always. It is never objected to by the commons.――And according as the prevalence of the authority of the crown and the aristocracy, or of the public branch of the legislature takes place, the practice of tacking is resorted to. Hence the quotation read by the senator the other day from Chancellor Finch. The king always, and the lords always complain of it. Hatsel, in the very loose and very unsatisfactory work of his which I have often had occasion to refer to, complains of it; but the fact is, the process of tacking in England is favorable to liberty; it is favorable to the commons of England. It is never objected to by them, but it is always objected to by the crown and the aristocracy. Her Majesty would be glad to get the money without being obliged to make any concessions to her subjects; and the house of lords would be equally disposed with her Majesty to think it very wrong to be compelled to swallow the whole. They would be willing to take the money, but they would have to take along with it the clause which has been tacked on in favor of personal liberty or of some rights of the subjects.

Sir, I had intended to go into the details of this subject, by way of answer to the honorable senator; but, really, I think it is hardly necessary. You find in the third volume of Hatsel that he has a chapter on the subject of bills tacked to bills of supply. I repeat, sir, that we have no such thing as that tacking process in this country. And why? Because, although tax bills and other bills originate in the house of representatives, and by the Constitution are required to originate there, the senate have a right to amend, to strike out any clause, to reduce the tax, or to make any additions or amendment which they please. The senate is under no such restraint as is the house of lords in England. Hence we have no such thing as tacking, in the English parliamentary sense of the term. But tacking, even in England, is confined to what are considered incongruous measures. Now, sir, the question is, whether there is any incongruity in these measures: a bill for the admission of California: a bill establishing a territorial government in Utah; a bill establishing a territorial government for New Mexico: and what is indispensable, if we give her a government, a bill providing what shall be her boundary, provided Texas shall accede to the liberal proposal made to her? Is there any thing, I ask, incongruous in all this? Where is it? What is the incongruity? What is the indignity? for I have heard time after time that it is undignified, or that it is ill-treating California, to attach her to those portions of territory acquired from Mexico, included in Utah and New Mexico. What is the indignity? I admit that in general, for the sake of simplicity of business, it is better not to make any one bill complex, or even to embrace too great a variety of subjects of a congruous nature. But that rests in the sound discretion of congress. It rests in the pleasure of congress. Sir, it has been said that California has set us a very good example, by providing by her constitution that no two subjects are to be united in the same bill. Louisiana has done the same thing in her constitution. Ask the senator from Louisiana, or ask an honorable member of that legislature, who has just arrived here from Baton Rouge, and they will tell you to what vast inconvenience legislative action is exposed, in consequence of this constitutional restriction. What are incongruous subjects, what are distinct subjects, is a matter not always absolutely certain. If any thing which is thought incongruous is incorporated in a bill in that legislature, it is sent to the judiciary, and if the judiciary thinks the subjects are incongruous, the law cannot be constitutional, because, in the opinion of the judges, it was in violation of the constitution, which declared that the legislature should pass only congruous bills. I have been told, and the senator from Louisiana can state whether I have been correctly informed or not, that in two or three instances laws which have been passed by the legislature of Louisiana have been declared unconstitutional, in consequence of this constitutional restriction upon legislative action, and the courts would not enforce them.

I have stated what I think I ought to satisfy every body without dwelling upon it further. Now, sir, I will show you what has been done by congress from time to time in the annexation of different subjects in the same bill. Here, sir, is volume second, page 396, chapter five, of _The United States Statutes at Large_, in which I find ‘An act to regulate and fix compensation for clerks, and _to authorize the laying out of public roads_, and for other purposes.’――The very title shows the incongruity of the subjects treated of. You will find in volume four, page 125, chapter 83, ‘An act to extend the time for the settlement of private land claims in the territory of Florida, to provide for the preservation of the public archives in said territory, and for the relief of John Johnson.’ [Laughter.] Here the name of the individual came last, but I have a case before me in which the individual came first. It is to be found in the _Statutes at Large, private acts_, volume six, page 813, chapter 89, entitled ‘An act for the relief of Chastelain and Pouvert, and for other purposes.’ And what do you suppose those other purposes to have been? About fifty appropriations for a variety of subjects which can be supposed to arise under such a government as ours. Will my friend read the extract for me?

Mr. Underwood accordingly read the extract as follows:

‘_An act for the relief of Chastelain and Pouvert,
and for other purposes._

‘_Be it enacted, &c._ That the collector of the port of New York
is hereby authorized to deduct from the amount of a bond given
by Chastelain and Pouvert, for duties on merchandise imported in
the schooner Gen. Jackson, Hawes, master, from Neuvitas, in the
island of Cuba, such duties as may have been charged on that
portion of said merchandise which was not landed in the United
States, having been destroyed by fire in the harbor of New York,
upon their producing proof to the collector of New York of the
destruction of said merchandise.

‘_And be it further enacted_, That the following sums to pay
the balance of accounts for which no appropriations now exist,
and which have been passed upon and allowed by the proper
accounting officer of the government, are now before them
for audit, and for the payment of which appropriations are
recommended by the heads of the proper departments, be and the
same are appropriated, viz: For an award made by the proper
accounting officer of the treasury in favor of the owners of
the steamboats Stasca and Dayton, for services rendered under
an agreement with Major Charles Thomas, quarter-master for the
transportation of supplies, laborers, and other things for the
use of the works at Fort Smith, Arkansas, in the year 1838,
$13,350. For the payment of a balance due for supplies furnished
to the Creek Indians, and medical services rendered to those
Indians, after the commencement of the disturbances in the Creek
country, and before and during the removal of the said Indians
west of the Mississippi, which accounts were incurred under the
direction of the proper officers or agents of the government,
$7,741.44. For the payment of the expenses of a division of the
lands of the Brothertown Indians among the members of the tribe,
in obedience to the act of congress of the 3d of March, 1839,
entitled, ‘An act for the relief of the Brothertown Indians in
the territory of Wisconsin,’ the duties having been performed
and the accounts presented, $1,830.’

Mr. Clay.――There are a great many others.

Mr. Benton.――What is the date of that act?

Mr. Clay.――It was approved July 1st, 1840; but I have one of a later date, if the honorable senator will prefer it. Here is one in 1849, entitled ‘an act for the relief of James Norris, and for other purposes:’

‘_Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That the
secretary of the navy be, and is hereby, directed to place the
name of James Norris, of Sandwich, in the state of New Hampshire,
on the roll of invalid pensioners, and pay him a pension at such
a rate per day as is provided by law for the total disability
of an assistant surgeon in the navy of the United States, to
commence on the first day of July, A. D. 1848, and continue
during his natural life.

‘Sec. 2. _And be it further enacted_, That there be, and hereby
are appropriated, out of any money in the treasury not otherwise
appropriated, the following sums, for the government of the
territory of Minnesota. For salaries of governor, three judges,
and secretary, nine thousand dollars. For contingent expenses
of said territory, three hundred and fifty dollars. For
compensation and mileage of members of the legislative assembly,
pay of the officers and attendants, printing, stationery, fuel,
and other incidental expenses, thirteen thousand seven hundred
dollars.――Approved, March 3, 1849.’

I never knew that our young sister Minnesota thought her dignity at all affected or offended by this association with James Norris. There was a civil and diplomatic bill under consideration the last session. The senator’s recollection will assist me if it were not last session. To that bill the senator from Missouri (Mr. Benton) moved to add an amendment, to pay certain expenses incurred in the conquest of California. At the second session of the thirtieth congress, the bill ‘making appropriations for the civil and diplomatic expenses of the government for the year ending June 30th, 1850, and for other purposes,’ being under consideration of the senate, Mr. Walker proposed an amendment, the object of which was to provide governments for the territory recently acquired from Mexico, including California, which was adopted; yeas 29, nays 27. At the same session, the same bill being under consideration, Mr. Walker, for the first time, proposed the amendment quoted above as agreed to; and Mr. Bell proposed an amendment to the amendment of Mr. Walker, which was disagreed to: yeas 4, nays 39.――_Senate Journal, second session, Thirtieth Cong._ pp. 241–’43.

I shall next notice an act making appropriations for the civil and diplomatic expenses of the government for the year 1842. It will be found in the fifth volume of the _Statutes at Large_, page 476, chapter 29. To that act is annexed a proviso limiting the compensation which should be received for printing the laws and documents of congress. The next subject I shall notice is an act to provide for the support of the military academy of the United States for the year 1838, and for other purposes. It will be found in volume fifth of the _Statutes at Large_, page 262, chapter 169.――These are only some out of a multitude of the same kind that might have been produced from the passage of such laws, from time to time, founded upon the discretion and good sense of congress, embracing subjects of every variety of incongruity. And yet, upon a bill which proposes to unite three subjects perfectly compatible in their nature, without the slightest incongruity existing between them――subjects which, at the last session, were proposed to be united together by the honorable senator from Wisconsin, in his proposal for the adjustment of these unpleasant questions, it is all at once discovered that the powers of government are paralyzed: that it is ‘tacking’――a word which has not yet been imported from England in her parliamentary law――it is all at once discovered that it is ‘tacking’――a most dangerous and undignified course, which ought not to be sanctioned.

I mentioned, sir, a while ago, acts which embraced every possible variety of legislation. I referred to an act providing for the support of the military academy of the United States for the year 1838, and for other purposes. That act makes thirty or forty appropriations for different objects! It makes appropriations for the documentary history of the revolution, for continuing the construction of the patent office, for furnishing machinery and other expenses incident to the outfit of the branch mint at New Orleans, Charlotte, and Dahlonega; for the salaries of the governor, chief judge, associate justices, district attorney, marshal, and pay and mileage of the members of the legislative assembly of the territory of Iowa, the expense there of taking the census, and for other incidental and contingent expenses of that territory, and in relation to the investment in state stock of the bequest of the late James Smithson, of London, for the purpose of founding at Washington, in this district, an institution we denominate the Smithsonian Institution. These and various other acts are all comprehended in a bill making an appropriation for the military academy at West Point.

Now, sir, after this, can it be said that there is any want of power, or any non-conformity in the practice of congress, in endeavoring to unite together, not three incongruous and discordant measures, but three measures of the same character, having, in different form, the same general object?

I will pass on, with a single observation on an amendment introduced by the committee into the territorial bill. To that amendment I was opposed, but it was carried in the committee. It is an amendment which is to be found in the tenth section of one of the bills limiting the power of the territorial legislature upon the subject of laws which it may pass. Amongst other limitations, it declares ‘that the territorial legislature shall have no power to pass any law in respect to African slavery.’ I did not then, and do not now, attach much importance to the amendment, which was proposed by an honorable senator, now in my eye, and carried by a majority of the committee. The effect of that clause will at once be understood by the senate. It speaks of ‘African’ slavery. The word African was introduced so as to leave the government at liberty to legislate as it might think proper on any other condition of slavery――‘Peon’ or ‘Indian’ slavery, which has so long existed under the Spanish regime. The object was to impose a restriction upon them as to the passage of any law either to admit or exclude African slavery, or of any law restricting it. The effect of that amendment will at once be seen. If the territorial legislature can pass no law with respect to African slavery, the state of the law as it exists now in the territories of Utah and New Mexico will continue to exist until the people form a constitution for themselves, when they can settle the question of slavery as they please. They will not be allowed to admit or exclude it. They will be restrained on the one hand from its admission, and on the other from its exclusion. Sir, I shall not repeat now the expression of opinion which I have already announced to the senate as being held by me on this subject. My opinion is, that the law of Mexico, in all the variety of forms in which legislation can take place――that is to say, by the edict of a dictator, by the constitution of the people of Mexico, by the act of the legislative authority of Mexico――by all these modes of legislation, slavery has been abolished there. I am aware that some other senators entertain a different opinion; but without going into discussion of that question, which I think altogether unnecessary, I feel authorized to say that the opinion of a vast majority of the people of the United States, of a vast majority of the jurists of the United States, is in coincidence with that which I entertain; that is to say, that at this moment, by law and in fact, there is no slavery there, unless it is possible that some gentlemen from the slave states, in passing through that country, may have taken along their body slaves. In point of fact and in point of law, I entertain the opinions which I expressed at an early period of the session. Sir, we have heard since, from authority entitled to the highest respect, from no less authority than that of the delegate from New Mexico, that labor can be there obtained at the rate of three or four dollars per month; and, if it can be got at that rate, can anybody suppose that any owner of slaves would ever carry them to that country, where he could only get three or four dollars per month for them?

I believe, on this part of the subject, I have said every thing that is necessary for me to say; but their remains two or three subjects upon which I wish to say a few words before I close what I have to offer for the consideration of the senate.

The next subject upon which the committee acted was that of fugitive slaves. The committee have proposed two amendments to be offered to the bill introduced by the senator from Virginia, (Mr. Mason,) whenever the bill is taken up. The first of these amendments provides that the owner of a fugitive slave, when leaving his own state, and whenever it is practicable――for sometimes, in the hot pursuit of an immediate runaway, it may not be in the power of the master to wait to get such record, and he will always do it if it is possible――shall carry with him a record from the state from which the fugitive has fled; which record shall contain an adjudication of two facts: first, the fact of slavery, and secondly, the fact of elopement; and in the third place, such a general description of the slave as the court shall be enabled to give upon such testimony as shall be brought before it. It also provides that this record, taken from the county court, or from the court of record in the slaveholding state, shall be taken to the free state, and shall be there held to be competent and sufficient evidence of the facts which it avows. Now, sir, I heard objection made to this that it would be an inconvenience and an expense to the slaveholder. I think the expense will be very trifling to the great advantages which will result. The expenses will be only two or three dollars for the seal of the court, and the certificate and attestation of the clerk, &c. Sir, we know the just reverence and respect in which records are ever held. The slaveholder himself will feel, when he goes from Virginia to Ohio with this record, that he has got a security which he never possessed before for the recovery of his property. And when the attestation of the clerk, under the seal of the court, is exhibited to the citizen of Ohio, that citizen will be disposed to respect, and bound to respect, under the laws of the United States, a record thus exhibited, coming from a sister state. The inconvenience will be very slight, very inconsiderable, compared with the great security of the slaveholder.

Mr. Butler.――As the bill to which the senator refers has been
somewhat under my care, I am sure the honorable senator will
allow me to ask a question in relation to this amendment. Is it
proposed that the certificate shall be from the judge, or shall
be from the court, as it is termed; because I see it seems to be
inferred that it must be given by a court, and a court of record,
which has a technical meaning? I desire the honorable senator
to inform me whether it is thus to be given by a court or by a
judge at chambers?

Mr. Clay.――Mr. President, I confess I had in view the county courts of probate which prevail throughout the United States, and not the judge. But it can be so modified, if it be deemed essential to the progress of the bill.

The committee partake of the same spirit which I have endeavored to manifest throughout this whole distracted question. They are not wedded to any particular plan; and if any amendments are offered that will improve and better the bills reported, they will be accepted. I am sure that I answer for every member of the committee, with pleasure, that any amendments to aid the object we have in view will be accepted. I repeat, sir, I confess I had in view that this record should be taken from the county courts, which prevail in almost all the states, except Louisiana and South Carolina, which have their parish courts. Any one of these courts, after hearing evidence about the ownership of property and the escape of the property, could give the required record, and this would be carried to that part of the country where the parties go.

With respect to the other amendment offered by the committee to the fugitive bill, I regretted extremely to hear the senator from Arkansas object so earnestly and so seriously to it. I did not pretend to question his right, or the right of any other senator, but he will surely allow me to say, in all kindness, that of all the states in this Union, without exception, I will not except even Virginia herself, I believe that the state which suffers more than any other by the escaping of slaves from their owners, seeking refuge either in Canada, or in some of the non-slaveholding states, Kentucky is the one. I doubt very much whether the state of Arkansas ever lost a slave. They may, very possibly, once in a while, run off to the Indians, but very rarely. So of other interior states. So of Georgia and South Carolina. Sometimes, perhaps, a slave escapes from their seaports, but very rarely by land. Kentucky is the most suffering state, but I venture to anticipate for my own state that she will be satisfied with the provisions to which I am now about to call the attention of the senate.

Mr. President, in all subjects of this kind we must deal fairly and honestly by all. We must recollect that there are feelings, and interests, and sympathies on both sides of the question; and no man who has ever brought his mind seriously to the consideration of a suitable measure for the rēcapture of runaway slaves, can fail to admit that the question is surrounded with great difficulties. On the one hand, if the owner of the slave could go into this non-slaveholding state, and seize the negro, put his hands upon him, and the whole world would recognise the truth of his ownership of property, and the fact of the escape of that property, there would be no difficulty then in those states where prejudice against slavery exists in the highest degree. But he goes to a state which does not recognise slavery. Recollect how different the state of fact is now from what it was in 1793, nearly sixty years ago. There were, then, comparatively few free persons of color――few, compared to the numbers which exist at present. By the progress of emancipation in the slaveholding states, and the multiplication of them by natural causes, vast numbers of them have rushed to the free states.――There are in the cities of Philadelphia, New York, and Boston――I have not looked into the precise number――some eight or ten to one in proportion to the number there were in 1793 when the act passed.

In proportion to the number of free blacks, multiplied in the free states, does the difficulty increase of recovering a fugitive from a slaveholding state. Recollect, Mr. President, that the rule of law is reversed in the two classes of states. In the slaveholding states the rule is, that color implies slavery, and the _onus probandi_ of freedom is thrown on the persons claiming it, as every person in the slaveholding states is regarded _prima facie_ as a slave. On the contrary, when you go to the non-slaveholding states, color implies freedom and not slavery. Every man who is seen in the free states, though he be a man of color, is regarded as free. And when a stranger from Virginia or Kentucky goes to remote parts of Pennsylvania, and sees a black person, who perhaps has been living there for years, and claims him to be his slave, the feelings and sympathy of the neighborhood are naturally and necessarily excited in favor of the colored person. We all respect these feelings, where they are honestly entertained. Well, sir, what are you to do in a case of that kind? You will give every satisfaction that can be given that the person whom you propose to arrest is your property, and is a fugitive from your service or labor. That is the extent of one amendment which we propose to offer, but there is also another. The amendment upon which I have been commenting provides for the production of a record. Now, what is the inconvenience of that? It provides that when the owner of the slave shall arrest his property in a non-slaveholding state, and shall take him before the proper functionary to obtain a certificate to authorize the return of that property to the state from which he fled, and if he declares to that functionary at the time that he is a free man and not a slave, what does the provision require the officer to do? Why, to take a bond from the agent or owner that he will carry the black person back to the county of the state from which he fled; and that at the first court which may sit after his return, he shall be carried there, if he again assert the right to his freedom; the court shall afford and the owner shall afford to him all the facilities which are requisite to enable him to establish his right to freedom. Now, no surety is even required of the master. The committee thought, and in that I believe they all concurred, that it would be wrong to demand of a stranger, hundreds of miles from his home, surety to take back the slave to the state from which he fled. The trial by jury is what is demanded by the non-slaveholding states. Well, we put the party claimed to be a fugitive back to the state from which he fled, and give him trial by jury in that state.