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: