“The constitutional part of the question is very simple, and presents no difficulties whatever,” returned the counsellor, squinting through the ruby of his glass, with an old-bachelor sort of delight, “except for those who have special ends to obtain.”
“Has, or has not, Congress a legal right to enact laws preventing the admission of slaves into California?”
“Congress has the legal right to govern any of its territories despotically; of course, to admit or to receive what it may please within their limits. The resident of a territory is not a citizen, and has no legal claim to be so considered. California, as a conquered territory, may be thus governed by the laws of nations, unless the treaty of cession places some restrictions on the authority of the conqueror. A great deal of absurdity is afloat among those who should know better, touching the powers of government in this country. You yourself, are one of those fellows, Timms, who get things upside-down, and fancy the Constitution is to be looked into for everything.”
“And is it not, ’Squire?—that is, in the way of theory—in practice, I know it is a very different matter. Are we not to look into the Constitution for all the powers of the government?”
“Of the government, perhaps, in one sense—but not for those of the nation. Whence come the powers to make war and peace, to form treaties and alliances, maintain armies and navies, coin money, &c.?”
“You’ll find them all in the Constitution, as I read it, sir.”
“There is just your mistake; and connected with it are most of the errors that are floating about in our political world. The country gets its legal right to do all these things from the laws of nations; the Constitution merely saying who shall be its agents in the exercise of these powers. Thus war is rendered legal by the custom of nations; and the Constitution says Congress shall declare war. It also says Congress shall pass all laws that become necessary to carry out this power. It follows, Congress may pass any law that has a legitimate aim to secure a conquest. Nor is this all the functionaries of the government can do, on general principles, in the absence of any special provisions by a direct law. The latter merely supersedes or directs the power of the former. The Constitution guarantees nothing to the territories. They are strictly subject, and may be governed absolutely. The only protection of their people is in the sympathy and habits of the people of the States. We give them political liberty, not as of legal necessity, but as a boon to which they are entitled in good-fellowship—or as the father provides for his children.”
“Then you think Congress has power to exclude slavery from California?”
“I can’t imagine a greater legal absurdity than to deny it. I see no use in any legislation on the subject, as a matter of practice, since California will shortly decide on this interest for itself; but, as a right in theory, it strikes me to be madness to deny that the government of the United States has full power over all its territories, both on general principles and under the Constitution.”
“And in the Deestrict—you hold to the same power in the Deestrict?”