A Constitutional History of the United States Chapter XXXVII - War with Mexico. The Wilmot Proviso. Slavery in the Territories byMcLaughlin, 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.
[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.
