Chapter CXCVI

THE ADMISSION OF THE STATE OF CALIFORNIA: PROTEST OF SOUTHERN SENATORS: REMARKS UPON IT BY MR. BENTON.

This became the "_test_" question in the great slavery agitation which disturbed Congress and the Union, and as such was impressively presented by Mr. Calhoun in the last and most intensely considered speech of his life--read for him in the Senate by Mr. Mason of Virginia. In that speech, and at the conclusion of it, and as the resulting consequence of the whole of it, he said:

"It is time, senators, that there should be an open and manly
avowal on all sides, as to what is intended to be done. If the
question is not now settled, it is uncertain whether it ever can
hereafter be; and we, as the representatives of the States of
this Union, regarded as governments, should come to a distinct
understanding as to our respective views, in order to ascertain
whether the great questions at issue can be settled or not. If
you, who represent the stronger portion, cannot agree to settle
them on the broad principle of justice and duty, say so; and
let the States we both represent agree to separate and part
in peace. If you are unwilling that we should part in peace,
tell us so, and we shall know what to do, when you reduce the
question to submission or resistance. If you remain silent, you
will compel us to infer by your acts what you intend. In that
case, California will become the _test_ question. If you admit
her, under all the difficulties that oppose her admission, you
compel us to infer that you intend to exclude us from the whole
of the acquired territories, with the intention of destroying
irretrievably the equilibrium between the two sections. We
would be blind not to perceive, in that case, that your real
objects are power and aggrandizement, and infatuated not to act
accordingly."

Mr. Calhoun died before the bill for the admission of California was taken up: but his principles did not die with him: and the test question which he had proclaimed remained a legacy to his friends. As such they took it up, and cherished it. The bill was taken up in the Senate, and many motions made to amend, of which the most material was by Mr. Turney of Tennessee, to limit the southern boundary of the State to the latitude of 36° 30', and to extend the Missouri line through to the Pacific, so as to authorize the existence of slavery in all the territory south of that latitude. On this motion the yeas and nays were:

"YEAS--Messrs. Atchison, Badger, Barnwell, Bell, Berrien,
Butler, Clemens, Davis of Mississippi, Dawson, Downs, Foote,
Houston, Hunter, King, Mangum, Mason, Morton, Pearce, Pratt,
Rusk, Sebastian, Soulé, Turney, and Yulee--24.

"NAYS--Messrs. Baldwin, Benton, Bradbury, Bright, Cass, Clarke,
Cooper, Davis of Massachusetts, Dayton, Dickinson, Dodge of
Wisconsin, Dodge of Iowa, Douglass, Ewing, Felch, Greene, Hale,
Hamlin, Jones, Norris, Phelps, Seward, Shields, Smith, Spruance,
Sturgeon, Underwood, Upham, Wales, Walker, Whitcomb, and
Winthrop--32."

The amendments having all been disposed of, the question was taken upon the passage of the bill, and resulted in its favor, 34 yeas to 18 nays. The vote was:

"YEAS--Messrs. Baldwin, Bell, Benton, Bradbury, Bright, Cass,
Chase, Cooper, Davis of Massachusetts, Dickinson, Dodge of
Wisconsin, Dodge of Iowa, Douglass, Ewing, Felch, Greene, Hale,
Hamlin, Houston, Jones, Miller, Norris, Phelps, Seward, Shields,
Smith, Spruance, Sturgeon, Underwood, Upham, Wales, Walker,
Whitcomb, and Winthrop--34.

"NAYS--Messrs. Atchison, Barnwell, Berrien, Butler, Clemens,
Davis of Mississippi, Dawson, Foote, Hunter, King, Mason,
Morton, Pratt, Rusk, Sebastian, Soulé, Turney, and Yulee--18."

Immediately upon the passage of the bill through the Senate, ten of the senators opposed to it offered a protest against it, which was read at the secretary's table, of which the leading points were these:

"We, the undersigned senators, deeply impressed with the
importance of the occasion, and with a solemn sense of the
responsibility under which we are acting, respectfully submit
the following protest against the bill admitting California as a
State into this Union, and request that it may be entered upon
the Journal of the Senate. We feel that it is not enough to
have resisted in debate alone a bill so fraught with mischief
to the Union and the States which we represent, with all the
resources of argument which we possessed; but that it is also
due to ourselves, the people whose interest have been intrusted
to our care, and to posterity, which even in its most distant
generations may feel its consequences, to leave in whatever form
may be most solemn and enduring, a memorial of the opposition
which we have made to this measure, and of the reasons by which
we have been governed, upon the pages of a journal which the
constitution requires to be kept so long as the Senate may have
an existence. We desire to place the reasons upon which we are
willing to be judged by generations living and yet to come, for
our opposition to a bill whose consequences may be so durable
and portentous as to make it an object of deep interest to all
who may come after us.

"We have dissented from this bill because it gives the sanction
of law, and thus imparts validity to the unauthorized action of
a portion of the inhabitants of California, by which an odious
discrimination is made against the property of the fifteen
slaveholding States of the Union, who are thus deprived of
that position of equality which the constitution so manifestly
designs, and which constitutes the only sure and stable
foundation on which this Union can repose.

"Because the right of the slaveholding States to a common
and equal enjoyment of the territory of the Union has been
defeated by a system of measures which, without the authority
of precedent, of law, or of the constitution, were manifestly
contrived for that purpose, and which Congress must sanction and
adopt, should this bill become a law.

"Because to vote for a bill passed under such circumstances
would be to agree to a principle, which may exclude for ever
hereafter, as it does now, the States which we represent from
all enjoyment of the common territory of the Union; a principle
which destroys the equal rights of their constituents, the
equality of their States in the Confederacy, the equal dignity
of those whom they represent as men and as citizens in the eye
of the law, and their equal title to the protection of the
government and the constitution.

"Because all the propositions have been rejected which have
been made to obtain either a recognition of the rights of the
slaveholding States to a common enjoyment of all the territory
of the United States, or to a fair division of that territory
between the slaveholding and non-slaveholding States of the
Union--every effort having failed which has been made to obtain
a fair division of the territory proposed to be brought in as
the State of California.

"But, lastly, we dissent from this bill, and solemnly protest
against its passage, because, in sanctioning measures so
contrary to former precedent, to obvious policy, to the spirit
and intent of the constitution of the United States, for the
purpose of excluding the slaveholding States from the territory
thus to be erected into a State, this government in effect
declares, that the exclusion of slavery from the territory
of the United States is an object so high and important as
to justify a disregard not only of all the principles of
sound policy, but also of the constitution itself. Against
this conclusion we must now and for ever protest, as it is
destructive of the safety and liberties of those whose rights
have been committed to our care, fatal to the peace and
_equality_ of the States which we represent, and must lead, if
persisted in, to the _dissolution_ of that confederacy, in which
the slaveholding States have never sought more than _equality_,
and in which they will not be content to _remain_ with less."

This protest was signed by Messrs. Mason and Hunter, senators from Virginia; Messrs. Butler and Barnwell, senators from South Carolina; Mr. Turney, senator from Tennessee; Mr. Pierre Soulé, senator from Louisiana; Mr. Jefferson Davis, senator from Mississippi; Mr. Atchison, senator from Missouri; and Messrs. Morton and Yulee, senators from Florida. It is remarkable that this protest is not on account of any power exercised by Congress over the subject of slavery in a territory, but for the non-exercise of such power, and especially for not extending the Missouri compromise line to the Pacific Ocean; and which non-extension of that line was then cause for the dissolution of the Union.

Mr. Winthrop, newly appointed senator from Massachusetts, in place of Mr. Webster, appointed Secretary of State, immediately raised the question of reception upon this protest, for the purpose of preventing it from going upon the Journal, where, he alleged, the only protest that could be entered by a senator (and that was a sufficient one) was his peremptory "no:" and then said:

"Sir, does my honorable friend from Virginia (Mr. Hunter), know
that there is but one parliamentary body in the world--so far
as my own knowledge, certainly, goes--which acknowledges an
inherent right in its members to enter their protests upon the
Journals? That body is the British House of Lords. It is the
privilege of every peer, as I understand it, to enter upon the
Journals his protest against any measure which may have been
passed contrary to his own individual views or wishes. But what
has been the practice in our own country? You, yourself, Mr.
President, have read to us an authority upon this subject. It
seems that in the earliest days of our history, when there may
have been something more of a disposition than I hope prevails
among us now, to copy the precedents of the British government,
a rule was introduced into this body for the purpose of securing
to the senators of the several States this privilege which
belongs to the peers of the British Parliament. That proposition
was negatived. I know not by what majority, for you did not
read the record; I know not by whose votes; but that rule was
rejected. It was thus declared in the early days of our history
that this body should not be assimilated to the British House of
Lords in this respect, however it may be in any other; and that
individual senators should not be allowed this privilege which
belongs to British peers, of spreading upon the Journals the
reasons which may have influenced their votes."

Mr. Benton spoke against the reception of the protest, denying the right of senators to file any reasons upon the Journal for their vote; and said:

"In the British House of Lords, Mr. President, this right
prevails, but not in the House of Commons; and I will show you
before I have done that the attempt to introduce it into the
House of Commons gave rise to altercation, well-nigh led to
bloodshed on the floor of the House, and caused the member who
attempted to introduce it, though he asked leave to do so, to
be committed to the Tower for his presumption. And I will show
that we begin the practice here at a point at which the British
Parliament had arrived, long after they commenced the business
of entering the dissents. It will be my business to show that,
notwithstanding the British House of Lords in the beginning
entered the protestor's name under the word 'dissent,' precisely
as our names are entered here under the word 'nay,' it went on
until something very different took place, and which ended in
authorizing any member who pleased to arraign the sense of the
House, and to reproach the House whenever he pleased. Now, how
came the lords to possess this right? It is because every lord
is a power within himself. He is his own constituent body. He
represents himself; and in virtue of that representation of
himself, he can constitute a representative, and can give a
proxy to any lord to vote for him on any measure not judicial.
Members of the House of Commons cannot do it, because they
are themselves nothing but proxies and representatives of the
people. The House of Lords, then, who have this privilege and
right of entering their dissent, have it by virtue of being
themselves, each one, a power within himself, a constituent body
to himself, having inherent rights which he derives from nobody,
but which belong to him by virtue of being a peer of the realm;
and by virtue of that he enters his protest on the Journal, if
he pleases. It is a privilege belonging to every lord, each for
himself, and is an absolute privilege; and although the form is
to ask leave of the House, yet the House is bound to grant the
leave."

Mr. Benton showed that there was no right of protest in the members of the British House of Commons--that the only time it was attempted there was during the strifes of Charles the First with the Parliament, and by Mr. Hyde (afterwards Lord Clarendon), who was committed prisoner to the Tower for presuming to insult the House, by proposing to set up his judgment against the act of the House after the House had acted. Having spoken against the right of the senators to enter a protest on the Journal against an act of the Senate, Mr. Benton proceeded to speak against the protest itself, and especially the concluding part of it, in which a dissolution of the Union was hypothetically predicated upon the admission of California.

"I now pass over what relates to the body or matter of the
protest, and come to the concluding sentence, where, sir, I
see a word which I am sorry to see, or hear used even in the
heat of debate in this chamber. It is one which I believe I
have not pronounced this session, not even hypothetically or
historically, in speaking of every thing which has taken place.
But I find it here, and I am sorry to see it. It is qualified,
it is true; yet I am sorry to see it any where, and especially
in a paper of such solemn import. It is in the concluding
sentence:

'Against this conclusion we must now and for ever _protest_, as
it is destructive of the safety and liberties of those whose
rights have been committed to our care, fatal to the peace and
_equality_ of the States which we represent, and must lead,
if persisted in, to the _dissolution_ of that confederacy in
which the slaveholding States have never sought more than an
_equality_, and in which they will not be content to _remain_
with less.'

"I grieve to see these words used with this deliberation; still
more do I grieve to see an application made to enter them on
the Journal of the Senate. Hypothetically they use the words;
but we all know what this word "if" is--a great peacemaker,
the poet tells us, between individuals, but, as we all know,
a most convenient introduction to a positive conclusion. The
language here is used solemnly, and the word protest is one of
serious import. Protest is a word known to the law, and always
implies authority, and one which is rarely used by individuals
at all. It is a word of grave and authoritative import in the
English language, which implies the testification of the truth!
and a right to testify to it! and which is far above any other
mode of asseveration. It comes from the Latin--_testari_, to be
a witness--_protestari_, to be a public witness, to publish,
avouch, and testify the truth; and can be only used on legal or
on the most solemn occasions. It has given a name to a great
division of the Christian family, who took the title from the
fact of their '_protesting_' against the imperial edicts of
Charles V., which put on a level with the Holy Scriptures the
traditions of the church and the opinions of the commentators.
It was a great act of _protesting_, and an act of conscience and
duty. It was a proper occasion to use the word _protest_; and it
was used in the face of power, and maintained through oceans
and seas of blood, until it has found an immortality in the name
of one division of the Christian family.

"I have read to you from British history--history of 1640--the
most eventful in the British annals--to show the first attempt
to introduce a protest in the House of Commons--to show you how
the men of that day--men in whose bosoms the love of liberty
rose higher than love of self--the Puritans whose sacrifices
for liberty were only equalled by their sacrifices to their
religion--these men, from whom we learned so much, refused to
suffer themselves to be arraigned by a minority--refused to
suffer an indictment to be placed on their own Journals against
themselves. I have shown you that a body in which were such
men as Hampden, and Cromwell, and Pym, and Sir Harry Vane,
would not allow themselves to be arraigned by a minority, or
to be impeached before the people, and that they sent the man
to the Tower who even asked leave to do it. This period of
British history is that of the civil wars which deluged Great
Britain with blood; and, sir, may there be no analogy to it in
our history!--may there be no omen in this proceeding--nothing
ominous in this attempted imitation of one of the scenes which
preceded the outbreak of civil war in Great Britain. Sir, this
protest is treated by some senators as a harmless and innocent
matter; but I cannot so consider it. It is a novelty, but a
portentous one, and connects itself with other novelties,
equally portentous. The Senate must bear with me for a moment.
I have refrained hitherto from alluding to the painful subject,
and would not now do it if it was not brought forward in such
a manner as to compel me. This is a novelty, and it connects
itself with other novelties of a most important character. We
have seen lately what we have never before seen in the history
of the country--sectional meetings of members of Congress,
sectional declarations by legislative bodies, sectional meetings
of conventions, sectional establishment of a press here! and
now the introduction of this protest, also sectional, and not
only connecting itself in time and circumstances, but connecting
itself by its arguments, by its facts, and by its conclusions,
with all these sectional movements to which I have referred. It
is a sectional protest.

"All of these sectional movements are based upon the hypothesis,
that, if a certain state of things is continued, there is to be
a dissolution of the Union. The Wilmot proviso, to be sure, is
now dropped, or is not referred to in the protest. That cause of
dissolution is dead; but the California bill comes in its place,
and the system of measures of which it is said to be a part. Of
these, the admission of California is now made the prominent,
the salient point in that whole system, which hypothetically it
is assumed may lead to a dissolution of the Union. Sir, I cannot
help looking upon this protest as belonging to the series of
novelties to which I have referred. I cannot help considering
it as part of a system--as a link in a chain of measures all
looking to one result, hypothetically, to be sure, but all
still looking to the same result--that of a dissolution of the
Union. It is afflicting enough to witness such things out of
doors; but to enter a solemn protest on our Journals, looking
to the contingent dissolution of the Union, and that for our
own acts--for the acts of a majority--to call upon us of the
majority to receive our own indictment, and enter it, without
answer, upon our own Journals--is certainly going beyond all the
other signs of the times, and taking a most alarming step in
the progress which seems to be making in leading to a dreadful
catastrophe. '_Dissolution_' to be entered on our Journal! What
would our ancestors have thought of it? The paper contains
an enumeration of what it characterizes as unconstitutional,
unjust, and oppressive conduct on the part of Congress against
the South, which, if persisted in, must lead to a dissolution of
the Union, and names the admission of California as one of the
worst of these measures. I cannot consent to place that paper
on our Journals. I protest against it--protest in the name of
my constituents. I have made a stand against it. It took me by
surprise; but my spirit rose and fought. I deem it my sacred
duty to resist it--to resist the entrance upon our Journal of
a paper hypothetically justifying disunion. If defeated, and
the paper goes on the Journal, I still wish the present age and
posterity to see that it was not without a struggle--not without
a stand against the portentous measure--a stand which should
mark one of those eras in the history of nations from which
calamitous events flow."

The reception of the protest was refused, and the bill sent to the House of Representatives, and readily passed; and immediately receiving the approval of the President, the senators elect from California, who had been long waiting (Messrs. William M. Gwinn and John Charles Frémont), were admitted to their seats; but not without further and strenuous resistance. Their credentials being presented, Mr. Davis, of Mississippi, moved to refer them to the Committee on the Judiciary, to report on the law and the facts of the case; which motion led to a discussion, terminated by a call for the yeas and nays. The yeas were 12 in number; to wit: Messrs. Atchison, Barnwell, Berrien, Butler, Davis of Mississippi, Hunter, Mason, Morton, Pratt, Sebastian, Soulé, Turney. Only 12 voting for the reference, and 36 against it; the two senators elect were then sworn in, and took their seats.