Chapter XV: Letter 14

_Shall we organize Territorial Governments in the conquered
Territories._

MARCH, 1847.

Both political parties seem to take it for granted, that
annexation must immediately follow the conquest of the whole or
any portion of Mexico, by which is meant, the formation of new
States to be added to the confederacy. But this is by no means a
necessary consequence. Louisiana was not brought within the pale
of the Constitution for eight years, Missouri for a longer time,
and Florida for sixteen. They were placed under a first, and
then a second grade of territorial government, over which the
Constitution was not extended; rather their Courts, executive,
judicial, or legislative branches, were not constitutional
authorities, but depending on Congress for their being and
power. It has been argued, that the acquisition of territory,
either by purchase or conquest, (to which the same reason
applies,) is not constitutional; and of this opinion, were Mr.
Jefferson, John Quincy Adams, and I think I may add, Mr.
Madison. But public opinion, and public necessity, have
overruled them, not by fair reasoning, but by “jumping to the
conclusion.”

Under the territorial government, the territory has no vote in
Congress, and no representation in the Senate, although allowed
a delegate on the floor of the House of Representatives, with
the liberty of speech, but without the right to vote. The
territories of Louisiana, Missouri, and Florida, had their own
legislatures, retained their own laws, and enacted new ones, but
in this case, subject to the repealing power of Congress. They
had also their own judiciary, with the exception of the Judges
of the Superior Court, who, together with the Executive, were
appointed under the organic law by the President of the United
States; that organic law, emanating from Congress, and which was
for the territories, what State and United States constitutions,
were for the States, might have given the power to the
territories to elect their Governors and Judges, as well as
their Legislators. This was in the pleasure of Congress, which
had acquired the rights of the former sovereign, and might
exercise it under the _limitations_ of the Constitution, not
because it was extended to the acquired territories, but as a
restraint on Congress in its own sphere of action; and whatever
Congress was expressly forbidden to do generally, it was
forbidden to do in any case, unless the exception was express.
The organic law or territorial constitution, extended the great
prerogative writs of _habeas corpus_, _mandamus_, and _quo
warranto_, for the benefit and safe guard of persons, property,
and religion of every citizen. The Government of each territory,
as to all local subjects of legislation, was as completely at
their own hands, as any of the States. But has not Congress
power of regulation over local subjects? I do not find it in the
Constitution, excepting over its real or moveable property. The
District of Columbia stands on an anomalous principle; and
besides, in respect to that district, Congress acts in two
distinct capacities: first, in its general character of a
legislature for the whole Union; and secondly, as a local
legislature for the district; and in this respect, the other
States, have no more right to interfere, than they have a right
to interfere with each other. Its local legislation, must be
directed by its local wants, with which the people of
Massachusetts or New York, have no concern.

The only acts of Congress extended to the territories are always
expressly named, and they are those relating to the revenue, the
slave trade, those regulating commerce and the public lands;
while the great body of the acts of Congress, have application
only to the members of the confederacy. The general Government,
in virtue of its sovereignty, had the control over all foreign
intercourse, and undertook the military defence and protection.
Having lived under these protective Governments, I must candidly
confess, that they possess many advantages. They are entirely
unlike the condition of colonies and conquered provinces,
subject to onerous exactions, or restrictions. Their burthens
were even lighter than those of the citizens of the States, in
consequence of not being represented in Congress, as it would be
against a fundamental principle to bind them by laws, which they
had no share in enacting. Many of the territorial inhabitants
regret the change from the quiet of their territorial
Government, to the turbulence and expense of the State
constitution. They preferred this state of things to the
ambition of being able to disturb the balance of power among the
States, by a voice in the Senate, or even in the House of
Representatives. But the admission into the Union (or admission
as States,) “as soon as consistent with the principles of the
Constitution,” was an express stipulation, under the treaties
which ceded those territories; and in the case of Texas,
immediate annexation as a State, was the principal consideration
of the compact. Where there is no such stipulation, as in the
case of countries acquired by conquest, like those of the Rio
Grande, the acquisition is unconditional, and the territorial
state may be continued indefinitely, or the admission of the
whole or part, be determined at our pleasure. According to the
laws of nations, their local laws remain in force; and according
to our Constitution, Congress has no power to legislate in local
matters for them, although it may create a local legislature for
that purpose; for, in my opinion, it cannot constitute itself a
local legislature for the purpose, as in the anomalous case of
the District of Columbia.

The Supreme Court is often regarded as the sole arbiter in all
constitutional questions. This is to be understood with some
comitations. For instance, it would not consider itself at
liberty to decide the question, whether the acquisition of
foreign territory is constitutional or not; the other branches
of the Government, the Legislation, the treaty making power, the
Executive, having determined the high political question
involved, the Supreme Court conforms to that decision. It,
therefore, moves in a groove, and is not Supreme over all. Yet
it has decided, in the case of Cairter, that the Courts of the
territory are not constitutional Courts, and the Judges not
constitutional Judges; consequently its inferior Courts not
inferior Courts of the United States.

We must distinguish between Political, and Municipal or local
laws; the former are abrogated _ipso facto_, by the charge of
sovereignty, the later continue in force until repealed. For
instance the whole body of the Spanish law was repealed in
Louisiana, by an edict of Governor O’Reilly, and in Missouri,
the Spanish code, continue to Paris and we, were abrogated by
the Governor and Judges, under the first grade of Government,
and the common law with the statutes of one of the States,
substituted in their place. One of the earliest decisions of the
Supreme Court, was that the United States had no code of
municipal law, but must resort to the municipal law of the State
in which it happened to sit.

Let us suppose the whole of Mexico conquered by our arms, it may
be divided, in the first instance, into four or five
territories, which may be retained in that form of government at
least as long as Florida, and be, afterwards, admitted as
States, or be permitted to establish independent governments,
bound to us by treaties of alliance, offensive and defensive. I
hold it as a settled principle, that we cannot hold conquered
countries like ancient or modern nations; and we cannot, without
violating the spirit of our institutions, deny them the right of
self-government, or at least, of representation. The conquests
we may make, cannot fail to better the condition of the
conquered, by affording them better political institutions than
those they before possessed. Surely, nothing can be worse than
the present military anarchy of Mexico. They would obtain
security for their rights, and obtain new ones, which they never
enjoyed before; they would have peace within their borders, and
safety from without. We should repel with indignation, the terms
of reproach heaped upon us by the “tory” paper of England, the
“Times.” Our free governments carry blessings with them wherever
they appear. Plunder and devastation, form no part of the
American character, as is proved by the progress of our arms,
marked by a degree of humanity unexampled in the annals of war
and conquest. The affectation of concern for their religion,
manifested by the Mexicans, is truly ridiculous in those who
tolerate no religion but that of the State.

The subject of slavery is one of local, that is, of State or
territorial legislation, except as to the foreign slave trade,
which belongs to Congress in the regulation of foreign commerce.
In the territory Northwest of the Ohio, there could not be said
to be any system of law, it being uninhabited, or at least, the
population was so inconsiderable, that it was not taken into
consideration in establishing the ordinance of 1787, before the
adoption of the present Constitution. It is in the nature of a
compact between the States, and is not a case in point. But in
Louisiana, the institution of slavery was already there, and
could not be destroyed without interfering with a subject of
local regulation of those territories, together with other
subjects of domestic concern. Congress reserved to itself only a
right to repeal, resembling a veto, except that the laws enacted
continued in force until repealed; but, in no instance did
Congress take the initiative in this local legislation. We may
often discover the best expositions of the power of the
Government, or any branch of it, by strict enquiry into the
history of its practical operation.

Suppose the laws of Mexico _prohibit_ slavery, would the simple
repeal of the laws _establish_ it? I do not see by what
reasoning it would do so. Is it probable, I would almost say
possible, that slavery will be introduced by positive enactment?
This would not only be local legislation, and on that account
objectionable, even if it were possible, _as Congress is at
present constituted_. It is said to be carried there by the
Constitution. How can this be, if the Constitution does not
extend there? A part cannot be extended without extending the
whole. Congress is forbidden by the Constitution to legislate on
certain subjects. This is true, but it is a limitation on its
own powers, the effects of which are felt by the territories, as
well as the States, but is no argument to prove, that the
Constitution extends to the former as well as to the latter. I
cannot see by what reasoning the Constitution is extended to
them, and yet, I can readily see many curious, inconvenient, and
unjust consequences arising from this view of the subject. It is
impossible to avoid such consequences, when we attempt to reason
from false premises. We have started wrong in acquiring
territory, when such acquisition was not contemplated by the
Constitution; and that error is the cause of other errors. I see
no way of surmounting these difficulties, but by mutual
forbearance, reciprocal respect for each others feelings and
interests.[11]

Footnote 11:

The claim of the right to go to the acquired, or conquered
territories with their slave property, is insisted on by the
South. The attempted exclusion creates strong feelings, as it
is regarded as offensive and unjust. If, according to my view
of the subject, the conquered or acquired territory, is
neither a part of any State, nor a part of the Union, the
sovereignty is either in Congress, or in the inhabitants.
According to European reasoning the sovereignty is in the
Government; according to ours it is in the inhabitants;
because with us, power travels upwards from the people, but
according to the old reasoning, instead of ascending, it
descends. But, if it be _assumed_, that the Constitution
follows our flag, even if it be to the Typce(TN) Islands, then
it would appear to me, that no citizen can be directly, or
indirectly, excluded, on account of his carrying with him,
persons _bound to service_, for that is a condition, or
relation recognized by the Constitution. Such servants are
recognized if not as _property_, for taxation, yet as
_persons_ for representation. If the Constitution comes in
conflict with the local laws, the latter must give way; this
is the necessary consequence it is contended of extending the
Constitution to the territories. Laying aside all this fine
spun reasoning, there is a common sense ground of justice and
equal right, in the claim to equal participation in the
property acquired by common means, and even the appearance of
the denial, must be offensive. The party thus denied, might
exclaim “if it be arsenic, I will have my share.”

The necessity of some legislation for the new territories, is
evident, even if the first, or second grade of government, be
not given to them. They are but _fragments_ of other
governments, depending on their superior, and their
organization incomplete, when cut off from that superior. The
jurisdiction of their courts was limited, or subject to
appeal; their political, and military offices, acted under the
order of their chief. The President of the United States as
commander in chief, would command the military; but the United
States judiciary could not entertain appeals, without
authority of Congress; and neither could the President
exercise civil control, without the same authority. The
organic law, provides for the trial by jury, for the security
of person, and conscience, not provided for in despotic
countries. The laws regulating intercourse with the indians,
the Post office, and many and on other subjects require to be
specially extended. It is possible that by some indispensable
legislation of this kind, the new acquisition, may get along
for a while, by supplying the deficiency out of that original
stock of power, which men possess in a state of nature, when
compelled to do so by necessity. The attempt was made in
Florida during a short interval, and it gave rise to much
animadversion. I admit, that it may be in some manner
obviated, by special legislation on the part of Congress, if
_from any cause_, it should be deemed inexpedient to establish
territorial governments, even of the first grade. In Louisiana
as in Florida, a Governor was appointed, clothed with the
powers of the late Captain General, until Congress could act.

Much has been said on the subject of the laws of Mexico
abolishing slavery, and no little merit is ascribed to her for
her course on this head. When her pretensions are examined, it
will be seen, that she is entitled to no credit whatever.
African slavery was not introduced into that country, because
the native indians, who had been reduced to a real bondage,
already formed a cheaper slavery, than the African. In the time
of the conquerors, _villages_ and _districts_ were granted to
them, the soil being only of secondary consideration. Their
inhabitants were condemned to the severest labor, and were, in
fact, slaves. The Spanish monarchs struggled with the wealthy
proprietors to alleviate the condition of the unfortunate
indians, and with success, so far as to rescue them from their
original servitude; but, they are, at this day, little better
off. Under the system of peonage, and the authority exercised by
the alcaldes, their freedom is but nominal. This kind of slavery
_is not abolished_; and as to abolishing negro slavery, it
scarcely existed there. According to Mr. Ward, a few negroes
were introduced about thirty years ago, but on finding the
Indian labor much cheaper, they were suffered to go where they
pleased. The only slavery in Mexico, except peonage, was in
Texas.[12] This system is founded on a law of the _Siete
Partidas_, which exempts females, ecclesiastics, military
persons, scholars, and _gentlemen_, (hidalgos) from
imprisonment, or liability of person, for debt! The poor Indian
is, therefore, the only subject for the law to operate on. This
kind of slavery commands the labor of the adult laborer, without
the burthen of the aged and helpless, as is the case of negro
slavery, which is not only a _relation_, but a _community_,
where the able-bodied provide for the helpless. This pretention
to merit on account of the abolition of slavery, is only an
after thought arising out of the hostility to Texas. It was a
subject of State legislation as with us, until the Mexicans
found that they could make capital out of it with our
abolitionists, and their English coadjutors. I detest hypocrisy,
and never was there any thing of this kind more palpable, than
the affectation of hostility to slavery by _Mexican
philanthropists_! In enumerating the causes of difference
between Mexico and Texas, I passed this topic in silence,
because I know it to be hollow and insincere, when put forth by
a country where human rights are held so cheap.

Footnote 12:

It is not long, since a list of the peons who had escaped from the
other side of the Rio Grande was published, and bitter complaints made
by their masters to the Mexican Government, which was petitioned for
redress! It is said that some proprietors own thousands, and they are
a part of their estates. It is probable that neither slavery nor
peonage can continue on the borders of the Rio Grande. During our
military operations a large number of persons were freed by earning
the means of paying the debts for which they were bound.

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