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A Constitutional History of the United States
Chapter XXXVII - War with Mexico. The Wilmot Proviso. Slavery in the Territories
by McLaughlin, Andrew C.

The acquisition of Texas brought on war with Mexico; the war resulted in the addition of a large area to American territory, and there ensued disputes concerning the extension of slavery into the newly-acquired region. These disputes and differences, growing into animosities, ended in civil war. We now enter therefore on a period of some fifteen years during which the question of slavery in the western territories was always present and always overshadowed all other political controversies.

Fortunately it is not our affair to examine in detail the processes by which the war was brought on, and fortunately, too, there is no need for our concerning ourselves with passing judgment upon the morality or immorality of Polk's conduct. Even to-day, three-quarters of a century and more after the President announced to Congress that war had been begun by the act of Mexico, there is not unanimity of opinion on this matter among American historians. There is, however, a decided tendency to sustain Polk. Without doubt, he was anxious to make as much as he could out of the situation. He wanted to settle the boundary dispute by getting Mexico to recognize the limits which Texas, not too modestly, had laid down. He wanted to get payment of the claims of American citizens,[1] but he knew that the last thing Mexico could or would do was to pay money. Indeed, Mexico's poverty opened up roseate possibilities; it presented the chance of a bargain; if the United States offered to assume the debts and dangled before the eyes of the dazzled Mexicans a sum of some millions of dollars, why should the two countries not be the best of friends, if Mexico would only cede a large area in the west including California and the much-to-be-desired harbor of San Francisco?[2] Polk wanted California, and we can imagine that, had he not wanted that fair land so badly, he might have treated Mexico a bit more gently and not have been so ready for stern measures. And yet, had he dallied and delayed, war might have come nevertheless; for Mexico was distracted and irritable; she was unreasoning if not unreasonable. Furthermore, to single out Polk as the "mendacious", to hold him up as an example of imperial designs and of dishonest diplomacy in a decade when American oratory was blazing with coruscating declarations of the glories of manifest destiny and the beauties of a pious imperialism — to select Polk as an example of impropriety in the decade of the roaring forties is to bestow upon him an unmerited degree of distinction.

The President was under moral and legal obligations to negotiate with Mexico before he proceeded to take her property. He tried to negotiate by sending John Slidell to Mexico; but the attempt was unsuccessful. Before Slidell had given up in despair, but after he had reported the probable refusal to receive him, Polk took an eventful step; he ordered American troops to march into the disputed area south of the Nueces (January 13, 1846). In May, he decided on war; and the fates were with him, for, just at the lucky moment, word came of a fight between Mexican and American troops north of the Rio Grande. Polk could therefore solemnly announce the outbreak of a war of defense: "But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil." [3]

The chief charge against the President at the time was based upon the occupation of the disputed area south of the Nueces. The resolution annexing Texas spoke of the "territory properly included within, and rightfully belonging to the Republic of Texas...." The consent of Congress, the resolution stated, was given upon certain conditions, among them the adjustment by the United States "of all questions of boundary that may arise with other governments...." That the resolution would have been passed, unless it was taken for granted that a settlement with Mexico would be reached before actual entry upon the region in question, is at least doubtful.

Against the charge of illegal conduct Polk, defending himself, asserted that Congress had recognized that region as part of our territory by including it within our revenue system and by directing the appointment of a revenue officer to reside within the district. But this sort of thing did not please the Whigs who were naturally ready to attack a Democratic President even if they felt compelled to support the war when once it had begun. Congress, said Alexander Stephens of Georgia, after the outbreak of war, had not made any determination of the boundary of Texas, "and I venture to say that no resolution so fixing the boundary could have passed this or the other House.... But some one asks me, what was the President to do? How was he to know where to stop, as there was no fixed line? I answer, his duty was a plain one. It was to keep the army within that portion of the territory which 'rightfully belonged to Texas,' or over which she had established her jurisdiction and supremacy, where her laws extended and were enforced, and where the people acknowledged her Government." [4] He contended that Congress alone could determine the boundary in case Mexico would not treat in a friendly manner.[5]

The antislavery men have been charged with wrong-headedness because they could see nothing in the matter but a wicked scheme for the extension of slavery.[6] But it is well to remember that even southern Whigs denounced Polk's audacity, and no one can be surprised at the antislavery indignation when one takes into account that those men knew, even as you and I, the correspondence of Calhoun of two years before and the alleged danger lurking in the existence of a free Texas. The technical right, if such there were, to move troops into a disputed area and then to proclaim the opening of a defensive war, begun because of Mexican aggression, need not lead us to proclaim the blindness and perversity of the antislavery men. The whole movement for expansion which resulted in securely gathering in a vast territory was, beyond question, due in large degree to a passion for enlargement and to patriotic pride, augmented by fears and charges of British imperial plans and of plots for dominion or for controlling influence in the far west. Even Calhoun, commonly considered the particular champion of slavery, objected to the methods by which, without congressional approval, the country had been, as he believed, hurried into war; and though later he advocated a line of demarcation running through to the Pacific, he was opposed to the wild schemes for absorbing Mexican territory which were filling the minds of enthusiastic patriots.[7]

The slavery question arose almost as soon as war was begun.[8 ] Polk wanted money and he hoped to get more territory than was "rightfully belonging" to the state of Texas or than we had claimed.[9]

In midsummer (August, 1846), the war being then well under way, he asked Congress to make an appropriation to provide for any expenditure which it might be necessary to make in advance for the purpose of settling all difficulties with Mexico. To an appropriation bill framed to carry out the President's wishes, David Wilmot of Pennsylvania proposed a proviso that neither slavery nor involuntary servitude should ever exist within any of the territory to be acquired.[10] The House passed the bill as thus amended and did so without delay, August 8, 1846. But the bill was talked to death in the Senate by an advocate of the proviso who in his loquacious anxiety forgot that the hour ending the session was at hand — a fateful blunder. Of course, to win the Senate to the principle of the proviso would have been difficult, perhaps impossible, anxious as men were to push the appropriation through; but had Congress at that juncture definitely declared in favor of free soil, would it have been possible for the south after annexation to demand the right of taking their slaves into the new west? The question arose again the next year (1847) in connection with a bill to appropriate three million dollars for the purpose [11] of enabling the President to conclude a treaty of peace with Mexico. The Wilmot proviso was again introduced. In the course of the debate that followed, Douglas moved to extend the line of thirty-six thirty through any territory acquired under the act; but the House would not consent.[12] The same day the antislavery proviso was passed by a vote of 115 to 106, and the bill was passed by a substantially similar vote. The Senate, however, was not of that mind; an attempt to provide for the exclusion of slavery was defeated; and though Wilmot returned to the attack in the House, his proviso was there defeated also (March 3, 1847), and the bill for the appropriation was passed unadorned by an antislavery attachment.[13] The most noteworthy fact is the size of the antislavery vote in both houses: opposition to the extension of slavery was not confined to an insignificant number, nor was it the special possession of a small body, who, like the abolitionists, might be charged with unreasoning enthusiasm. Reasons for passing the appropriation measure without the proviso were probably not due to a complete surrender of the principle. The session was nearly at an end; something must be done if money was to be granted for making a peace and acquiring territory; congressmen obstructing the government by insisting on the proviso would meet criticism or opposition; zeal for territorial expansion was daily waxing stronger and reached extremes of patriotic fervor in the months that followed.[14]

The historian is subject to professional inhibitions; he must not indulge in inclinations to favor one side or the other; he must not believe that even the extermination of slavery was a good thing for the world; he must stand stolid and unmoved in the presence of a great controversy which was one of the most momentous in the annals of America and the world. This is supposed to be his attitude; but no one, unless ceasing to be human, can fail to be stirred by the events of those years. After all, the nineteenth century is known and will be known as the century during which slavery disappeared from the civilized world; and if the United States in 1848 had so far forgotten herself as to absorb Mexico, and had she been drawn on to further conquests, America and the world would be — though ex post facto prophecy is also forbidden the historian — quite different from what they are to-day.

In February, 1848, the treaty of Guadalupe Hidalgo was signed and transmitted to Washington. An interesting problem was presented. The treaty had been negotiated by N. P. Trist, an agent sent long before by Polk. He had been recalled but continued to act, and the result of his insolent persistence was now in the President's hands. With many grumblings and much ill-suppressed irritation Polk accepted the treaty and sent it to the Senate where it was found acceptable. It provided for compensation to Mexico for the surrender of a great region extending westward to the Pacific. Mexico was to be paid fifteen million dollars and the United States assumed claims against the Mexican government. The treaty with Great Britain in 1846 established our claim to the Oregon country as far north as the forty-ninth parallel. Thus during Polk's presidency a vast area was added to the United States. Was it to be the home of slavery or of free labor?

By the law of Mexico, slavery did not exist in the territory which she surrendered. There was also no slavery in Oregon; and the people of Oregon, several hundreds in number, left to their own devices, formed a temporary government and excluded slavery. Was there any constitutional obligation to establish slavery in these regions? Orators spoke in fervid periods about the glorious forward march of freedom under the banner of liberty and self-government; and yet there were some who asserted that the banner carried slavery with it. By the summer of 1848 various theories had been presented, and we may well give them briefly at this point, omitting for the moment any full consideration of the constitutional questions involved.

(1) Antislavery men declared that slavery should be forbidden; the western land was free and should not be inundated by slavery. Doubtless most of them, though eager to oppose the extension of slavery, were content with a declaration of the duty of Congress to exercise its power to exclude slavery from the newly-acquired territory. Others, taking a more advanced position, denied the authority of Congress to recognize or establish slavery in the public domain; the Free Soil party, organized in 1848, nominated Van Buren and Adams, and on a ringing platform declared Congress had no more power to make a slave than to make a king.

(2) At the opposite extreme stood Calhoun, ably supported by Jefferson Davis of Mississippi in the Senate and by Barnwell Rhett of South Carolina in the House. Congress, according to these defenders of southern rights, was under constitutional obligation to hold the territories for the common use and benefit of the states, and the southerner had as much right to go west with his slaves as the northerner had to go with horses or sheep.

(3) At the end of the year 1847, Lewis Cass of Michigan issued his Nicholson letter.[15] Cass was a Democratic leader, was considered a likely candidate of the party for the presidential office, and was in fact nominated in 1848. Congress, he asserted, should leave slavery alone and allow the people of an organized territory to deal with the. troublesome problem as they saw fit. This was not literally the beginning of the doctrine of what came to be known as popular sovereignty or, as less politely termed, "squatter sovereignty"; arguments against the power of Congress to deal with slavery had already been put forth in congressional debates,[16] but the letter brought the matter to public attention. Cass's argument in the letter was not so vigorous in its denial of constitutional authority as were some of his speeches at a later day; but it appeared not only to point to the justice and propriety of placing upon the people of the territories the full right of self-government, but also to indicate the constitutional obligation to allow them full control of domestic affairs.

These were the main and outstanding constitutional doctrines. Before taking up these various theories for detailed examination, we should notice a bill introduced by Senator Clayton of Delaware for the establishment of governments in Oregon, California, and New Mexico (July 18, 1848). The bill was intended to embody a compromise and was commonly so-called. It provided for the temporary recognition of the laws in force in Oregon. The governments of California and New Mexico were to have no power to legislate on the subject of slavery. In this way, the right to introduce or prohibit slavery was made to rest "on the Constitution, as the same should be expounded by the judges, with a right of appeal to the Supreme Court of the United States." It was thought, Clayton explained, that Congress would thus "avoid the decision of this distracting question, leaving it to be settled by the silent operation of the Constitution itself...." [17] The measure passed the Senate, but it received short shrift in the House. The proposal of the bill for leaving the slavery question to the Court is of importance in light of certain portions of the Compromise of 1850, which will be discussed later, the Kansas-Nebraska bill of 1854, and the Supreme Court decision in 1857.

In the course of debate, various opinions were expressed about the advisability of this proposed settlement of the vexing problem. Corwin of Ohio declared the bill to be "a rich and rare legislative curiosity"; it did not enact a law, but only a lawsuit. Hale of New Hampshire said the Constitution was interpreted as variously as the Bible. Badger of North Carolina was unwilling to leave the decision "to a court, so large a portion of which were opposed to slavery." Stephens of Georgia, later Vice-President of the Confederacy, was unwilling to turn the matter over to the Court because he believed the Constitution did not carry slavery into a region where it did not exist, and the Court must so decide. Congress should, he believed, acknowledge the equitable right to carry slavery into the western territory and should legislate accordingly; but inasmuch as the southwest was free by the law of Mexico, it must remain free until positive legislation provided for slavery: "The Constitution no more carries the local law of slavery of any State into a State or Territory where, by law, it is prohibited, than it carries any other local law...." [18] A bill organizing Oregon was passed in the summer of 1848; it extended the principle of the Ordinance of 1787 over the territory and thus indicated plainly the belief of Congress that it had the power to exclude slavery.

One feature of the debates in the Senate deserves a word of comment. Stephen A. Douglas was now pushing toward the front and was soon to be the leader of the northern Democracy. As chairman of the Senate committee on territories he had peculiarly good opportunity to fashion legislation. He advocated the extension of the Missouri Compromise line through to the Pacific. All through these debates, though some southerners found fault with the Compromise, and though arguments were brought forth to deny congressional authority to exclude slavery from the national domain, the permanence, even the sanctity, of the Compromise of 1820 appears on the whole to have been taken for granted.

We may now consider more carefully these opposing theories of constitutional obligation. The advanced proslavery doctrine was naturally put forward by Calhoun, now nearing the end of his long and laborious life. For twenty years he had been the champion of southern interests, opposing the tariff, defending slavery as a wise and moral institution, announcing his devotion to the union and the Constitution, but holding forth the need of southern unity and the inevitable dissolution of the union if the Constitution were distorted by northern economic greed or by unfairness to the south. Even attacks on the morality of slavery were in his opinion unjust and dangerous; the union must be preserved by a sacred regard for the peculiar institution of the south. Again one is impressed by the vigor and earnestness of this pathetic figure as he argued with consummate skill in behalf of a cause doomed by fate to destruction.

Fundamental in Calhoun's thinking, even more fundamental than state sovereignty, was hostility to majority rule. Of this something has been said in a previous chapter. For this reason he lamented the growing tendency to speak of the United States as a nation. Declaring the devotion of the south to the union, he exclaimed: "Sir, we are as devoted to this Union as any portion of the American people. I use the phrase as meaning the people of the Union. But we see in nationality evils immeasurable to us. Admit us to be a nation, we see where we stand. We are in a minority. We have peculiar institutions; we have peculiar productions; and we shall have to trust to the mere numerical majority of the whole — the unsafest of all Governments — for protection. I would rather trust to a sovereign. I would rather trust to an aristocracy — any form of government, rather than to that." [19]

Clinging closely to the idea of state sovereignty as the basis of constitutional right, Calhoun was fearful lest by the introduction of new free states the rights of the slaveholding states would be utterly destroyed. He was in fact looking upon the union as in reality a union of sections, though he held it to be constitutionally a union of sovereign states. Indeed, much as the northerners might speak of the nation, and far as the idea of nationalism had sunk into their inmost thoughts, even they could not conceal from themselves the fact of sectional divergence. As shown by his "Discourse on the Constitution and Government of the United States," the great southern leader was now interested more keenly, if possible, than ever before in preventing a complete breakdown of the balance or of even the constitutional equilibrium of the sections.[20] The very essence of his theory of concurrent majority included fundamentally the existence of contrary interests, each with its own identity. The equilibrium as a practical fact had already been destroyed; a recognition of state sovereignty and of the equal right of the southern slaveholder in the territories without discrimination was the remedy. But could he actually hope that slavery with these safeguards could hold its own, especially if every territory when coming into the union could decide for itself whether it should be free or slave?

Though Calhoun was interested in sectional equality or such a, policy as would prevent the southern states from being reduced to an unhappy minority, the immediate question was slavery in the territories. On that matter, he declared, the Constitution furnished a remedy: the public domain "is the common property of the States of this Union. They are called 'the territories of the United States.' And what are the 'United States' but the States united? Sir, these territories are the property of the States united; held jointly for their common use."[21] He introduced resolutions which asserted that the territories belong to the several states and are held by them as their joint and common property; that Congress, as the joint agent of the states, has no right to make any discrimination between the states by which any of them shall be deprived of its equal right in any territory; that an act depriving citizens of any state from emigrating with their property would be a violation of the Constitution and the rights of the states from which the citizens emigrated, and in derogation of the perfect equality which belongs to the members of the union; that a people, in forming a constitution, have the right to adopt a government which they think best suited to their needs, and no condition for admission into the union can be imposed, save that its constitution shall be republican.

Before this speech, Barnwell Rhett of South Carolina had proclaimed the same doctrine in the House.[22] The Constitution, he said, "declares, that the territories belong to the United States. They are tenants in common, or joint proprietors, and co-sovereigns over them. As co-sovereigns they have agreed, in their common compact, the Constitution, that their agent, the General Government, 'may dispose of, and make all needful rules and regulations,' with respect to them; but, beyond this, they are not limited or limitable in their rights. Their sovereignty, unalienated and unimpaired by this mutual concession to each other, exists in all its plenitude over our territories; as much so, as within the limits of the States themselves."

Here then was state sovereignty in its starkest and crudest form. There was nothing of the refinement of earlier argument. The Constitution was a plain contract between individual entities, and they as such own the territories.

Jefferson Davis of Mississippi, in a very able speech, defended the proslavery cause, but he did not, like Rhett and Calhoun, base the right to carry slaves into the territories on the ownership of the territories by the states; [23] nor indeed did he with any fullness put forward the sovereignty of the states as proof of southern rights, although he used some expressions which may bear such an interpretation. He argued from the Constitution and found there no power to exclude slavery. He discovered, on the other hand, a recognition of slaves as property. "... territory of the United States," he said, "is the property of all the people of the United States; ... sovereignty of the territory remains with them until it is admitted as an independent State into the Union...." Congress could not discriminate against one kind of property. He also made one important admission: "but for the Constitution the right to property in slaves could not have extended beyond the State which possessed them." [24]

In one particular, Calhoun agreed with Cass in denying the right of Congress to govern the territories; but he thus agreed only by denying that the power of Congress came from the clause in the Constitution granting the authority "to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States;" he could find no direct and unequivocal grant of power. The word "all" may have given him pause. But he declared the United States could acquire territory; the right came from the war and treaty-making powers. The people of the territories thus annexed are subject to the laws of the United States; they are not free to do as they please; in the latter case "they would cease to be the territories of the United States the moment we acquired them and permitted them to be inhabited. The first half-dozen of squatters would become the sovereigns, with full dominion and sovereignty over them...."[25]

But though Congress has power, Calhoun could not admit that Congress has full power; the general government must act for the benefit of the real owners, the states, and furthermore it is limited by certain "general and absolute prohibitions of the constitution" such as the provisions prohibiting ex post facto laws, the establishment of religion, and granting titles of nobility.[26] He swept aside the notion that the laws of Mexico against slavery remain in effect after annexation. The Constitution followed the flag, and the flag bore slavery in its folds. There was no need of affirmative legislation to establish slavery; it already existed as a matter of legal fact in acquired territory; Congress would act both unjustly and illegally in attempting to make the territory free. An argument like that presented to the House by Stephens, declaring the territories were free because the law of the country from which they were acquired continued in force, made no impression on Calhoun,[27] who would recognize as law nothing contrary to the Constitution; the Constitution recognized property in slaves. Neither the Ordinance of 1787 nor the Missouri Compromise, as precedents indicative of congressional power to exclude slavery, abashed the sturdy champion of the peculiar institution. Even if they were to be given all the force which could be claimed for them as precedents, "they would not have the weight of a feather against the strong presumption which I ... showed to be opposed to the existence of the power." [28] He did not have much, if anything, to say about the practical necessity of positive legislation for the protection of slave property in the territories; possibly he intentionally shunned such dangerous and delicate ground, for he may have seen how instinctively the north, now becoming acutely sensitive, would shrink from the idea of affirmative legislation.

Toward the end of a powerful speech which has already been referred to and which elicits our admiration because of its frankness, vigor, and clarity, Calhoun (with as near an approach to humor as he ever showed) denounced the "proposition ... repeated daily from tongue to tongue," that men are born free and equal: "Men are not born. Infants are born. They grow to be men." But in some respects his warning to the listening Senate is most impressive: "Now, let me say, Senators, if our Union and system of government are doomed to perish, and we to share the fate of so many great people who have gone before us, the historian, who, in some future day, may record the events ending in so calamitous a result, will devote his first chapter to the ordinance of 1787, lauded as it and its authors have been, as the first of that series which led to it. His next chapter will be devoted to the Missouri compromise, and the next to the present agitation." [29]

State sovereignty, Calhoun's beloved, does not in itself, as a matter of pure theory, contradict or deny the right of Congress to exclude slavery from the public domain; whether or not that power was in the hands of Congress must depend on whether or not it had been expressly or impliedly granted by the "sovereign" states; it must depend on the interpretation of the Constitution, call it a compact, if you will. True, Calhoun's statements concerning the southern devotion to slavery sixty years before,[30] if taken at face value, bore upon the question of constitutional interpretation; and the general supposition, which may be ascribed to him, that the government existed to benefit the states and to guard their interests, has its bearing on interpretation. But even if the states were sovereign and had the right of sovereigns to secede for any reason, the authority of Congress to legislate concerning slavery must rest on a grant to the "agent", as long as the Constitution (the compact) existed.

The doctrine of Cass, though not fully elaborated until somewhat later, deserves attention here, not because of the intricacy of the constitutional problem, but because of its practical importance. It came in the course of time to have a wide popularity. It offered a comfortable escape from any supposed obligation for congressional decision. How thoroughly the constitutional doctrine, which he put forth, was understood or accepted, it is difficult to say. And yet the theory of "squatter" or popular sovereignty rested, in the minds of its advocates, on correct constitutional principles; and furthermore, those principles were in accord with the elemental and sentimental spirit of American government, with the notion that people, and perhaps frontiersmen most of all, should be left alone and not be hampered by intrusion of the strong hand of government. For various reasons these principles appealed to the public — partly of course because they showed the way to avoid responsibility. This announcement that Congress had no authority to manage the domestic affairs of a territory rested not on state sovereignty but on strict construction of the Constitution. Congress had not been assigned the authority, therefore it did not possess the authority. Whence then came the power of the people themselves in the territories to pass upon the question of slavery? From the same source as that from which you yourselves, O conscript fathers, obtained your right to self-government — from Almighty God, from the great and all-controlling principles of justice. All defenders of this doctrine were naturally troubled by the fact that Congress was engaged in the duty of setting up governments in the territories; whence then came the right to do even that much? Cass would limit the right of Congress to the establishment of a government; over matters of domestic concern the people of a territory, with their own government, had complete control. As matters of domestic concern he classed parent and child, husband and wife, master and servant — the last a euphemism for slavery.[31]

As we have seen, Calhoun met such statements with withering scorn. If Congress had a right to annex, it had a right to govern. Control and acquisition went hand in hand, or were one and the same; and the Constitution ex proprio vigore at the moment of acquisition covered the whole region. With the Constitution went slavery. If the Constitution recognized slavery, no territorial government, the mere creature of Congress, could do what Congress itself could not do.

Clear as the various announcements of constitutional principles appear to you and me, when they are presented briefly and succinctly, they were capable of causing considerable confusion or uncertainty in the public mind. How many people are likely to read and inwardly digest a senatorial speech? And how easy it is to forget with intentional or unintentional perversity! The Cass doctrine which afterwards paraded at the head of the Democratic procession when Douglas was the master of ceremonies, the doctrine which was later dubbed popular sovereignty, meant this when first pronounced: the people of a territory during the territorial time have the right and the constitutional power to establish or prohibit slavery in the territory. But to some people the doctrine may have meant simply a proposal to drop the troublesome slavery question from the shoulders of Congress without any miserable haggling about constitutional obligation. Though one cannot altogether resist the inclination to believe that confusion was due to the skill of professional politicians, there was, perhaps at the beginning and more clearly later, some confusion between, on the one hand, the right of the people of the territories to decide the slavery question during their territorial existence — the real doctrine of popular sovereignty — and, on the other hand, their right to decide, when forming a state constitution, whether slavery should be recognized or not. Moreover, the phrase "non-interference with slavery" was corning into favor. Did "non-interference" mean that Congress should just drop the matter and reach no conclusion, or that the territories had the right to decide for themselves, or that nobody, neither Congress nor a territorial legislature, should interfere with a southerner's right to take his slaves to the public domain and hold them there? Slogans are sometimes useful in political controversies, and especially so if they relieve people from the job of thinking.

Concerning the constitutional right to exclude slavery from the territories, the advocates of exclusion were emphatic. Though there were some persons, as we have seen, who denied the right to recognize slavery, the weight of argument in Congress was upon congressional authority to manage the territories; and over and over again historical facts were referred to, showing the actual exercise of authority and disproving the assumption that in the earlier days slavery was the darling of the south. Senator Davis of Massachusetts pointed to the "preposterous" idea that each emigrant from a state carried with him the law of the state from which he came. "Slavery," he said, "unless it can make a law, and support and maintain itself, exists and has existed, and been sustained in these Territories, by the United States. If, then, they can create or sustain it, they can abolish it, unless prohibited by the Constitution." [32]

No one can know how much of acute legal argument had penetrated the mind of the average voter in the campaign of 1848. The Free Soilers, it is true, on the face of their platform, felt no doubt. The Democratic platform indulged in safe platitudes, and Cass's letter of acceptance of the presidential nomination was couched in guarded terms. But it is to be noted that Yancey of Alabama introduced a resolution in the Democratic convention announcing "the true republican doctrine" to be "non-interference with the rights of property of any portion of the people of this confederacy, be it in the States or Territories thereof, by any other than the parties interested in them...." What did he mean by "non-interference" or by the words "parties interested in them"? The resolution was defeated. What did the defeat imply? Probably Yancey meant Calhoun's doctrine of the sanctity of slave property. But the words might possibly be interpreted to mean the doctrine already set forth by Cass, the nominee of the convention, or to mean just leaving the subject alone.[33]

[1] In his instructions to Slidell he indicated that he would waive the payment of claims, if Mexico would accept the boundaries of Texas as Texas had announced them — the Rio Grande from its mouth to its source, thence due north to the forty-second parallel. Polk was willing to pay five million dollars in addition to the assumption of American claims.

[2] An able though brief defense of Polk is given by E. C. Barker, "California as the Cause of the Mexican War," The Texas Review, II, no. 3, pp. 213-221. The author attacks the assertion, often made, that Polk brought on the war in order to get California.

[3] Message of May 11, 1846. Richardson, Messages and Papers, IV, p. 442. "The fact is," says Professor Burgess, adopting Polk's defense in toto, "it was a defensive war at the outset, and if the Mexicans were excited to their move across the Rio Grande by the appearance of United States troops on the northern bank, they had only to thank themselves for bringing them there by previously massing their own troops on the south bank." J. W. Burgess, The Middle Period, p. 331. "In the face of Mexico's solemn threats concerning the annexation of Texas, any prudent executive would have ordered troops to Texas in 1845." Barker, "California as the Cause of the Mexican War," loc. cit., p. 220.

[4] Speech in the House, June 16, 1846. Congressional Globe, 29 Cong., 1 sess., appendix, p. 949. See also Calhoun, Works, IV, pp. 377-378.

[5] The orders to General Taylor (August 30, 1845) contain the following: "In case of war, either declared or made manifest by hostile acts, your main object will be the protection of Texas; but the pursuit of this object will not necessarily confine your action within the territory of Texas. Mexico having thus commenced hostilities, you may ... cross the Rio Grande, disperse or capture the forces assembling to invade Texas, defeat the junction of troops uniting for that purpose, drive them from their positions on either side of that river, and, if deemed practicable and expedient, take, and hold possession of, Matamoras and other places in the country." Executive Documents, 30 Cong., 1 sess., VII, no. 60, pp. 88-89. In light of all the facts, there may have been justification of this procedure; but one is inclined to inquire what becomes of the authority of Congress to declare war?

[6] See, for example, Burgess, op. cit., p. 331. Burgess says the attitude of the abolitionists — meaning by the term probably the men opposed to slavery-expansion — was "too narrow and bigoted to win much attention."

[7] Calhoun's speech of February 9, 1847, is impressive, especially where he declares that in selecting a "defensive line" it should be "such as would deprive Mexico in the smallest possible degree of her resources and her strength: ..." Works, IV, pp. 306-307. See also his fear of sectional dispute. Ibid., p. 323.

[8] The persistence of the slavery question and the extent to which the subject frayed the nerves of contestants in debate is humorously presented by Benton's speech in the Senate, May 31, 1848. "This Federal Government was made for something else than to have this pestiferous question constantly thrust upon us to the interruption of the most important business.... What I protest against is, to have the real business of the country, the pressing, urgent, crying business of the country stopped, prostrated, defeated, by thrusting this question upon us. We read in Holy Writ, that a certain people were cursed by the plague of frogs, and that the plague was everywhere. You could not look upon the table but there were frogs, you could not sit down at the banquet but there were frogs, you could not go to the bridal couch and lift the sheets but there were frogs! ... Here it is, this black question, forever on the table, on the nuptial couch, everywhere! ... I remember the time when no one would have thought of asking a public man what his opinions were on the extension of slavery any more than what was the length of his foot...." Congressional Globe, 30 Cong., 1 sess., appendix, p. 686.

[9] Message to Congress, August 8, 1846: "It is probable that the chief obstacle to be surmounted in accomplishing this desirable object [a peace just and honorable to both parties] will be the adjustment of a boundary between the two Republics which shall prove satisfactory and convenient to both, and such as neither will hereafter be inclined to disturb. In the adjustment of this boundary we ought to pay a fair equivalent for any concessions which may be made by Mexico." Richardson, Messages and Papers, IV, p. 459.

[10] It is noteworthy that this movement was begun by Free Soil Democrats — a warning that there were dissatisfied elements in the party and foreshadowing later opposition to slavery-extension.

[11] Congressional Globe, 29 Cong., 2 sess., p. 303 (February 1, 1847).

[12] February 15, 1847. Ibid., 424. The rejection did not mean the abandonment of the purpose to exclude slavery from the whole area.

[13] The Senate rejected an antislavery amendment by a vote of thirty-one to twenty-one, March 1, 1847. Ibid., p. 555. Wilmot's amendment of March 3 was lost in the House by a vote of 97 to 102. The appropriation bill was passed by a vote of 115 to 81. Ibid., p. 573.

[14] See E. G. Bourne, "The United States and Mexico, 1847-1848," Am. Hist. Rev., V, pp. 491-502. This article of Bourne, especially if one supplement it by reading the debates in Congress, furnishes an astonishing picture of the manifest-destiny fever of those hectic days. When Congress met in December, 1847, Calhoun introduced resolutions against the extinction of Mexican nationality and declared (December 20) one could scarcely read a newspaper without finding it filled with speculation on that subject. An illustration of the high-flown sentimentality is in the speech of Dickinson of New York who declared in the Senate (January 12, 1848) that it was America's destiny to include the whole of North America.

[15] The letter to A. O. P. Nicholson of Tennessee is given in W. T. Young, Life of General Lewis Cass, p. 320 ff. A copy was printed in pamphlet form at Washington (1847) and was probably widely circulated. For discussion of the doctrine of the letter, see A. C. McLaughlin, Lewis Cass, p. 232 ff.

[16] See, for example, the remarks of Leake of Virginia in the House, February 17, 1847. Possibly he leaves one in a little uncertainty, but he said, "We [the south] maintain ... that is a question to be left to the people of this territory to decide, and with which this Government cannot interfere." Congressional Globe, 29 Cong., 2 sess., p. 444. This is to be compared with his speech of a few days earlier. Ibid., appendix, pp. 111-113. See also resolutions introduced into the Senate by Dickinson of New York, December 15, 1847. Ibid., 30 Cong., 1 sess., p. 27. For an argument denying congressional authority, see the speech of John Gayle of Alabama in the House, March 28, 1848. Ibid., p. 542.

[17] Congressional Globe, 30 Cong., 1 sess., p. 950. It is interesting to notice that Calhoun voted for the measure. Ibid., p. 1002.

[18] Congressional Globe, 30 Cong., 1 sess., appendix, p. 1106. See a letter written by Stephens in 1854 explaining his opposition to the Clayton Compromise. Am. Hist. Rev., VIII, pp. 91-97.

[19] February 20, 1847. Congressional Globe, 29 Cong., 2 sess., p. 467. But if mere numbers could not govern, how could a state within its own limits actually manage its own affairs? Calhoun believed restrictions to be the sum of constitutionalism; and, we must remember, he put forth the theory of concurrent majority which he illustrated by the experiences of South Carolina.

[20] Notice Calhoun's speech of February 19, 1847. Ibid., p. 453 ff.

[21] Ibid., p. 454.

[22] January 15, 1847. Congressional Globe, 29 Cong., 2 sess., appendix, pp. 244-247. I am not seeking to establish any priority for either Rhett or Calhoun, but to present the theory as it came from both. Rhett in this speech saw that the "only effect, and probably the only object of their reserved sovereignty is, that it secures to each State the right to enter the territories with her citizens, and settle and occupy them with their property — with whatever is recognised as property by each State." p. 246.

[23] In this respect Davis, we may notice now, came more nearly than did Calhoun to the announcement of the principles upon which the Supreme Court ten years later decided the question of slavery in the territories.

[24] July 12, 1848. Congressional Globe, 30 Cong., 1 sess., appendix, pp. 907-914. An interesting letter to Calhoun written in March, 1848, by John A. Campbell, later a Justice of the Supreme Court, is in the Miss. Valley Hist. Rev., XIX, pp. 568-570. Campbell then insisted upon the local character of slavery.

[25] Speech in the Senate, June 27, 1848. Works, IV, p. 479 ff.

[26] In this latter assertion, the necessity of respecting individual rights to elementary liberty, Calhoun's argument is in some respects distinctly prophetic of the opinions of the Supreme Court which resulted from the perplexities arising out of the acquisition of territory after the Spanish-American War of 1898. See the opinion given by Justice Brown in Downes v. Bidwell, 182 U. S. 244, 277 (1901). See also, Ibid., 294-295; Dorr v. United States, 195 U. S. 138 (1904), where Justice Day quotes with approval Hawaii v. Mankichi, 190 U. S. 197 (1903). This subject is discussed in later pages of this work.

[27] Stephens's speech, in which there was the most formal and explicit announcement of this doctrine, was given later than the long one by Calhoun delivered June 27, 1848, but of course Calhoun knew the theory well and swept it aside.

[28] Works, IV, p. 494.

[29] Ibid., p. 507.

[30] Ibid., p. 482.

[31] Cass's doctrine was presented in full in a speech occupying nearly two days, January 21 and 22, 1850. Congressional Globe, 31 Cong., 1 sess., appendix, part 1, p. 58 ff. The argument was able and eloquent, but the later exposition, though much fuller than that of the Nicholson letter of two years before and though enlarging on the constitutional foundations for the position, was essentially the same as the earlier statement. In the statement above I have sought to give the fully-developed doctrine.

[32] Congressional Globe, 30 Cong., 1 sess., appendix, p. 895.

[33] MacDonald, a careful scholar, says Yancey's statement was the doctrine of squatter sovereignty. Select Documents (William MacDonald, ed.), p. 378. And yet, Yancey in the Alabama convention of that year moved to declare that doctrine equally false with the doctrine that Congress could exclude slavery from the territories. See Joseph Hodgson, The Cradle of the Confederacy, p. 270. See also H. von Holst, The Constitutional and Political History of the United States, III, p. 363; M. M. Quaife, The Doctrine of Non-intervention With Slavery in the Territories, pp. 75-76. Quaife thinks Yancey may have intentionally couched his resolution in ambiguous terms.


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