Reminiscences of Sixty Years in Public Affairs, Vol. 2

by George S. Boutwell

If, in this year 1900, it could be proved beyond controversy that in the year 1859, I had maintained the doctrine that the Constitution of the United States did not apply to the Territories, and that in the year 1899 I had expressed the opposite opinion, would these facts, including the change of opinion, and whether considered together or considered separately, possess any value argumentative, or otherwise, as a justification of President McKinley in seizing the Philippine Islands through war, and in attempting to govern the inhabitants by force? Is it of any consequence when this country is dealing with a public policy of which war is the incident, and the continuing inevitable incident, whether the opinions that one man may have entertained one and forty years ago are acceptable opinions now that the one and forty years have passed away? Yet, my fellow-citizens, this is the argument which the representative of the ancient and honored county of Essex offers to you and to the country in justification of a policy of war degenerating at times into brutal massacres, carried on against ten million people, inhabitants of a thousand islands, ten thousand miles from our shores, and at a cost of four million dollars a week, and at the sacrifice each year of thousands of the youth of America, and the destruction of the health and happiness of tens of thousands more.

Such is the history of President McKinley's administration, and such is the defence offered by the representative of the county of Essex.

There may have been no sinister design in the attempt to demonstrate my inconsistency upon a question of constitutional law. I do not assume the existence of personal hostility. An end would be answered if you and others could be induced to believe that in 1859 I had so construed the Constitution as to justify President McKinley in governing the Philippine Islands as though the Constitution of the United States did not exist. Thus do my opinions receive more consideration from an opponent than they could command at the hands of a friend.

I am now to speak more directly in explanation of the opinion that I gave in 1859, with something of the history of the circumstances which led to the preparation of the paper of that year. It is an error to assume that the question whether or not the Constitution extends to the Territories, was a prominent question, in the period of the anti- slavery controversy. That question was not publicly and seriously discussed on either side.

The controversy was conducted upon the theory that the Territories were under the Constitution. The question was this: Can a slaveholder move from a slave State to a Territory and be protected under the Constitution in holding his slaves as property?

It was the theory of the Missouri Compromise Measure of 1820 and it was the theory of the compromise measures of 1850, that the Constitution neither authorized slavery anywhere nor prohibited it anywhere. The Kansas-Nebraska Act of 1854 recognized, as an admitted fact, the doctrine that the Constitution extended to the Territories, and it asserted as a conclusion of law and as a public policy, the doctrine that the Constitution "should have the same force and effect within the Territory of Kansas as elsewhere within the United States." Thus it was maintained by the friends of the compromise measures that the Constitution neither authorized slavery in the Territories nor prohibited it. This view of the Constitution was accepted by the opponents of slavery.

The Constitution did not authorize slavery in the States nor did it prohibit slavery in the States. Until the Dred Scott Decision, the controversy proceeded upon the idea that States and Territories were alike under the Constitution, and that by the Constitution slavery was neither authorized nor prohibited in any State, nor in any Territory of the Union.

Inasmuch as at that time slavery was not prohibited under the Constitution, there was a general agreement in the proposition that Congress might authorize slavery in the Territories and that Congress might prohibit slavery in the Territories. One party contended for its authorization, the other party demanded its prohibition. On this issue the contest was made up. From first to last the contest proceeded upon the theory, on all sides admitted to be a true theory, that the Constitution of the United States, by its own force, applied to all the Territories of the United States. In that opinion I concurred.

When Mr. Douglas concluded to become a Presidential candidate, he broached a theory of constitutional interpretation for which he may have found some support in the Dred Scott Decision.

His theory was this: The Constitution so applies to the Territories that they must take places as States in the American Union, and the Constitution also requires Congress to accept the Territories as States, and with such institutions as the Territories, when on their way to Statehood, might choose to establish.