Chapter CLXXXII

PROPOSED EXTENSION OF THE CONSTITUTION OF THE UNITED STATES TO THE TERRITORIES, WITH A VIEW TO MAKE IT CARRY SLAVERY INTO CALIFORNIA, UTAH AND NEW MEXICO.

The treaty of peace with Mexico had been ratified in the session of 1847-'48, and all the ceded territory became subject to our government, and needing the immediate establishment of territorial governments: but such were the distractions of the slavery question, that no such governments could be formed, nor any law of the United States extended to these newly acquired and orphan dominions. Congress sat for six months after the treaty had been ratified, making vain efforts to provide government for the new territories, and adjourning without accomplishing the work. Another session had commenced, and was coming to a close with the same fruitless result. Bills had been introduced, but they only gave rise to heated discussion. In the last days of the session, the civil and diplomatic appropriation bill, commonly called the general appropriation bill--the one which provides annually for the support of the government, and without the passage of which the government would stop, came up from the House to the Senate. It had received its consideration in the Senate, and was ready to be returned to the House, when Mr. Walker, of Wisconsin, moved to attach to it, under the name of amendment, a section providing a temporary government for the ceded territories, and extending an enumerated list of acts of Congress to them. It was an unparliamentary and disorderly proposition, the proposed amendment being incongruous to the matter of the appropriation bill, and in plain violation of the obvious principle which forbade extraneous matter, and especially that which was vehemently contested, from going into a bill upon the passage of which the existence of the government depended. The proposition met no favor: it would have died out if the mover had not yielded to a Southern solicitation to insert the extension of the constitution into his amendment, so as to extend that fundamental law to those for whom it was never made, and where it was inapplicable, and impracticable. The novelty and strangeness of the proposition called up Mr. Webster, who said:

"It is of importance that we should seek to have clear ideas
and correct notions of the question which this amendment of
the member from Wisconsin has presented to us; and especially
that we should seek to get some conception of what is meant
by the proposition, in a law, to 'extend the constitution of
the United States to the territories.' Why, sir, the thing is
utterly impossible. All the legislation in the world, in this
general form, could not accomplish it. There is no cause for the
operation of the legislative power in such a manner as that.
The constitution--what is it? We extend the constitution of the
United States by law to territory! What is the constitution of
the United States? Is not its very first principle, that all
within its influence and comprehension shall be represented in
the legislature which it establishes, with not only a right
of debate and a right to vote in both Houses of Congress,
but a right to partake in the choice of the President and
Vice-President? And can we by law extend these rights, or any
of them, to a territory of the United States? Every body will
see that it is altogether impracticable. It comes to this, then,
that the constitution is to be extended as far as practicable;
but how far that is, is to be decided by the President of
the United States, and therefore he is to have absolute and
despotic power. He is the judge of what is suitable, and what
is unsuitable; and what he thinks suitable is suitable, and
what he thinks unsuitable is unsuitable. He is '_omnis in
hoc_;' and what is this but to say, in general terms, that the
President of the United States shall govern this territory as
he sees fit till Congress makes further provision. Now, if the
gentleman will be kind enough to tell me what principle of
the constitution he supposes suitable, what discrimination he
can draw between suitable and unsuitable which he proposes to
follow, I shall be instructed. Let me say, that in this general
sense there is no such thing as extending the constitution.
The constitution is extended over the United States, and over
nothing else. It cannot be extended over any thing except over
the old States and the new States that shall come in hereafter,
when they do come in. There is a want of accuracy of ideas in
this respect that is quite remarkable among eminent gentlemen,
and especially professional and judicial gentlemen. It seems
to be taken for granted that the right of trial by jury, the
_habeas corpus_, and every principle designed to protect
personal liberty, is extended by force of the constitution
itself over every new territory. That proposition cannot be
maintained at all. How do you arrive at it by any reasoning
or deduction? It can be only arrived at by the loosest of all
possible constructions. It is said that this must be so, else
the right of the _habeas corpus_ would be lost. Undoubtedly
these rights must be conferred by law before they can be enjoyed
in a territory."

It was not Mr. Walker, of Wisconsin, the mover of the proposition, that replied to Mr. Webster: it was the prompter of the measure that did it, and in a way to show immediately that this extension of the constitution to territories was nothing but a new scheme for the extension of slavery. Denying the power of Congress to legislate upon slavery in territories--finding slavery actually excluded from the ceded territories, and desirous to get it there--Mr. Calhoun, the real author of Mr. Walker's amendment, took the new conception of carrying the constitution into them; which arriving there, and recognizing slavery, and being the supreme law of the land, it would over-ride the anti-slavery laws of the territory, and plant the institution of slavery under its Ægis, and above the reach of any territorial law, or law of Congress to abolish it. He, therefore, came to the defence of his own proposition, and thus replied to Mr. Webster:

"I rise, not to detain the Senate to any considerable extent,
but to make a few remarks upon the proposition first advanced
by the senator from New Jersey, fully endorsed by the senator
from New Hampshire, and partly endorsed by the senator from
Massachusetts, that the constitution of the United States
does not extend to the territories. That is the point. I am
very happy, sir, to hear this proposition thus asserted,
for it will have the effect of narrowing very greatly the
controversy between the North and the South as it regards the
slavery question in connection with the territories. It is an
implied admission on the part of those gentlemen, that, if
the constitution does extend to the territories, the South
will be protected in the enjoyment of its property--that it
will be under the shield of the constitution. You can put no
other interpretation upon the proposition which the gentlemen
have made, than that the constitution does not extend to the
territories. Then the simple question is, does the constitution
extend to the territories, or does it not extend to them? Why,
the constitution interprets itself. It pronounces itself to be
the supreme law of the land."

When Mr. Webster heard this syllogistic assertion, that the constitution being the supreme law of the land, and the territories being a part of the land, _ergo_ the constitution being extended to them would be their supreme law: when he heard this, he called out from his seat--"_What land?_" Mr. Calhoun replied, saying:

"The land; the territories of the United States are a part
of the land. It is the supreme law, not within the limits
of the States of this Union merely, but wherever our flag
waves--wherever our authority goes, the constitution in
part goes, not all its provisions certainly, but all its
suitable provisions. Why, can we have any authority beyond the
constitution? I put the question solemnly to gentlemen; if the
constitution does not go there, how are we to have any authority
or jurisdiction whatever? Is not Congress the creature of the
constitution; does it not hold its existence upon the tenure
of the continuance of the constitution; and would it not be
annihilated upon the destruction of that instrument, and the
consequent dissolution of this confederacy? And shall we, the
creature of the constitution, pretend that we have any authority
beyond the reach of the constitution? Sir, we were told, a few
days since, that the courts of the United States had made a
decision that the constitution did not extend to the territories
without an act of Congress. I confess that I was incredulous,
and am still incredulous that any tribunal, pretending to have
a knowledge of our system of government, as the courts of the
United States ought to have, could have pronounced such a
monstrous judgment. I am inclined to think that it is an error
which has been unjustly attributed to them; but if they have
made such a decision as that, I for one say, that it ought not
and never can be respected. The territories belong to us; they
are ours; that is to say, they are the property of the thirty
States of the Union; and we, as the representatives of those
thirty States, have the right to exercise all that authority and
jurisdiction which ownership carries with it."

Mr. Webster replied, with showing that the constitution was made for States, not territories--that no part of it went to a territory unless specifically extended to it by act of Congress--that the territories from first to last were governed as Congress chose to govern them, independently of the constitution and often contrary to it, as in denying them representatives in Congress, a vote for President and Vice-President, the protection of the Supreme Court--that Congress was constantly doing things in the territories without constitutional objection (as making mere local roads and bridges) which could not be attempted in a State. He argued:

"The constitution as the gentleman contends, extends over the
territories. How does it get there? I am surprised to hear a
gentleman so distinguished as a strict constructionist affirming
that the constitution of the United States extends to the
territories, without, showing us any clause in the constitution
in any way leading to that result; and to hear the gentleman
maintaining that position without showing us any way in which
such a result could be inferred, increases my surprise.

"One idea further upon this branch of the subject. The
constitution of the United States extending over the
territories, and no other law existing there! Why, I beg to know
how any government could proceed, without any other authority
existing there than such as is created by the constitution of
the United States? Does the constitution of the United States
settle titles to land? Does it regulate the rights of property?
Does it fix the relations of parent and child, guardian and
ward? The constitution of the United States establishes what
the gentleman calls a confederation for certain great purposes,
leaving all the great mass of laws which is to govern society
to derive their existence from State enactments. That is the
just view of the state of things under the constitution. And
a State or territory that has no law but such as it derives
from the constitution of the United States, must be entirely
without any State or territorial government. The honorable
senator from South Carolina, conversant with the subject as he
must be, from his long experience in different branches of the
government, must know that the Congress of the United States
have established principles in regard to the territories that
are utterly repugnant to the constitution. The constitution
of the United States has provided for them an independent
judiciary; for the judge of every court of the United States
holds his office upon the tenure of good behavior. Will the
gentleman say that in any court established in the territories
the judge holds his office in that way? He holds it for a term
of years, and is removable at Executive discretion. How did we
govern Louisiana before it was a State? Did the writ of _habeas
corpus_ exist in Louisiana during its territorial existence?
Or the right to trial by jury? Who ever heard of trial by jury
there before the law creating the territorial government gave
the right to trial by jury? No one. And I do not believe that
there is any new light now to be thrown upon the history of the
proceedings of this government in relation to that matter. When
new territory has been acquired it has always been subject to
the laws of Congress, to such laws as Congress thought proper to
pass for its immediate government, for its government during its
territorial existence, during the preparatory state in which it
was to remain until it was ready to come into the Union as one
of the family of States."

All this was sound constitutional law, or, rather, was veracious history, showing that Congress governed as it pleased in the territories independently of the constitution, and often contrary to it; and consequently that the constitution did not extend to it. Mr. Webster then showed the puerility of the idea that the constitution went over the territories because they were "_land_," and exposed the fallacy of the supposition that the constitution, even if extended to a territory, could operate there of itself, and without a law of Congress made under it. This fallacy was exposed by showing that Mr. Calhoun, in quoting the constitution as the supreme law of the land, had omitted the essential words which were part of the same clause, and which couples with that supremacy the laws of Congress made in pursuance of the constitution. Thus:

"The honorable senator from South Carolina argues that the
constitution declares itself to be the law of the land, and
that, therefore, it must extend over the territories. 'The
land,' I take it, means the land over which the constitution
is established, or, in other words, it means the States united
under the constitution. But does not the gentleman see at
once that the argument would prove a great deal too much? The
constitution no more says that the constitution itself shall
be the supreme law of the land, than it says that the laws of
Congress shall be the supreme law of the land. It declares that
the constitution and the law of Congress passed under it shall
be the supreme law of the land."

The question took a regular slavery turn, Mr. Calhoun avowing his intent to be to carry slavery into the territories under the wing of the constitution, and openly treated as enemies to the South all that opposed it. Having taken the turn of a slavery question, it gave rise to all the dissension of which that subject had become the parent since the year 1835. By a close vote, and before the object had been understood by all the senators, the amendment was agreed to in the Senate, but immediately disagreed to in the House, and a contest brought on between the two Houses by which the great appropriation bill, on which the existence of the government depended, was not passed until after the constitutional expiration of the Congress at midnight of the third of March, and was signed by Mr. Polk (after he had ceased to be President) on the 4th of March--the law and his approval being antedated of the 3d, to prevent its invalidity from appearing on the face of the act. Great was the heat which manifested itself, and imminent the danger that Congress would break up without passing the general appropriation bill; and that the government would stop until a new Congress could be assembled--many of the members of which remained still to be elected. Many members refused to vote after midnight--which it then was. Mr. Cass said:

"As I am among those who believe that the term of this session
has expired, and that it is incompetent for us now to do
business, I cannot vote upon any motion. I have sat here as a
mere looker on. I merely desire to explain why I took no part in
the proceedings."

Mr. Yulee, of Florida, moving an adjournment, said:

"I should be very sorry, indeed, to make any proposition which
may in any degree run counter to the general sentiment of the
Senate; but I feel bound, laboring under the strong conviction
that I do, to arrest at every step, and by every means, any
recorded judgment of the Senate at a time when we are not
legally engaged in the discharge of our senatorial duties. I
agree entirely in the view taken by the senator from Michigan."

Mr. Turney, of Tennessee, said:

"I am one of those who believe that we have no right to sit
here. The time has expired; one-third of this body are not
present at all, and the others have no right to sit here as a
part of Congress. But a motion has been made for adjournment,
and the presiding officer has refused to entertain that motion.
This being the case, I must regard all that is done as done in
violation of the constitution, or, rather, not in pursuance of
it. It appears to me that we sit here more in the character of a
town meeting than as the Senate of the United States, and that
what we do is no more binding on the American people than if we
did it at a town meeting. I shall express no opinion by saying
yea or nay on the question before the Senate. At the same time,
I protest against it, as being no part of the constitutional
proceedings of the Senate of the United States."

Mr. Benton, and many others, declined to vote. The House of Representatives had ceased to act, and sent to the Senate the customary message of adjournment. The President who, according to the usage, had remained in the capitol till midnight to sign bills, had gone home. It was four o'clock in the morning of the fourth, and the greatest confusion and disorder prevailed. Finally, Mr. Webster succeeded in getting a vote, by which the Senate receded from the amendment it had adopted, extending the constitution to the territories; and that recession leaving the appropriation bill free from the encumbrance of the slavery question, it was immediately passed.

This attempt, pushed to the verge of breaking up the government in pursuit of a newly invented slavery dogma, was founded in errors too gross for misapprehension. In the first place as fully shown by Mr. Webster, the constitution was not made for territories, but for States. In the second place, it cannot operate any where, not even in the States for which it was made without acts of Congress to enforce it. This is true of the constitution in every particular. Every part of it is inoperative until put into action by a statute of Congress. The constitution allows the President a salary: he cannot touch a dollar of it without an act of Congress. It allows the recovery of fugitive slaves: you cannot recover one without an act of Congress. And so of every clause it contains. The proposed extension of the constitution to territories, with a view to its transportation of slavery along with it, was then futile and nugatory, until an act of Congress should be passed to vitalize slavery under it. So that, if the extension had been declared by law, it would have answered no purpose except to widen the field of the slavery agitation--to establish a new point of contention--to give a new phase to the embittered contest--and to alienate more and more from each other the two halves of the Union. But the extension was not declared. Congress did not extend the constitution to the Territories. The proposal was rejected in both Houses; and immediately the crowning dogma is invented, that the constitution goes of itself to the territories without an act of Congress, and executes itself, so far as slavery is concerned, not only without legislative aid, but in defiance of Congress and the people of the territory. This is the last slavery creed of the Calhoun school, and the one on which his disciples now stand--and not with any barren foot. They apply the doctrine to existing territories, and make acquisitions from Mexico for new applications. It is impossible to consider such conduct as any thing else than as one of the devices for "_forcing the issue with the North_," which Mr. Calhoun in his confidential letter to the member of the Alabama legislature avows to have been his policy since 1835, and which he avers he would then have effected if the members from the slave States had stood by him.