f53 1^ HOLUNGER pH8.5 MILL RUN F3-1543 SPEECH . P H F: L P S, O V V E R M O N T, ON THE SUBJF.CT OF SLAVERY, &c. IN SRNATE, JANUARY 23, 1850. The Senate having resumed the consideration of the motion lo print the resolu- tions of the General Assembly of tlie State of Vermont on the subject of slavery, which were some time since presented by Mr. Upham — Mr. Phklps. After the few remarks which 1 made Ihe other day, 1 entertained the hope that I should not find myself under the necessity at present of participat- ing any further in the debate on this question. But, sir, after what has fallen from the other side of this chamber, I feel it due to myself, and due to the State I in part represent, to ofl'er some further remarks in vindication of my course and their course. Sir, I have been called upon to "face the music." I have no disposition, Mr. President, to avoid the "facing" of any "music;" but I must be allowed to say, sir, that 1 think we have some very bad "music" on this floor. I have been called upon, sir, to meet the issue. I make no issue here which I am not prepared to meet, and I trust my constituents will make no issue here which 1 am not prepared to meet. Nay, sir, I am prepared to meet the approaching issue, pregnant as it is with consequences to this country. Sir, it has been said by gentlemen on the other side of this chamber that this great issue was forced upon them. It has not, however, been forced upon them by the officiousness of any portion of this country; it is an issue which has forced itself upon us; an issue which has come here uninvited and unwelcome. It presents itself as one of that train of consequences which many of us foresaw and resisted. It comes here as the consequence — the necessary consequence — of a train of measures w^hich I, for one, have resisted from the outset. It is one of the fruits of that spirit of aggrandizement, and conquest, and military acquisition, which seems to have infected and infatuated every republican government. Sir, it is one of the fruits of our Mexican war — the fruits of that policy which originated in the disposition to extend the area of our power, but which carries in its train the element which may in the end dissolve this Republic. Sir, I am not surprised at this issue. It is what I have long anticipated; it is an issue which we cannot avoid; and here, sir, lie.'^^ its difficulty and its danger — it is a question to be settled; l)ut /tow settled no man on this floor can now anticipate. Sir, in approaching this question, I am not forgetful of the pledge w^hich 1 gave the Senate on a former occasion, that I should approach it coolly, deliberately, and with a feeling of conciliation; that I should approach it with an ardent attachment to the Constitution and to the Union. Sir, 1 shall not be diverted from this deter- mination, whatever may be the tenor or the temper of the debate. There are too many considerations of imperious an.l appalling import now pressing upon me to permit me to depart in the least from what I consider a cool and dis[)assionate, and rational consideration of this question. Sir, we are all attached to the Union; we all value the harmony and stability of that Union; and no topic which tends to endanger either, should, in my judgment, be discussed here in anger. Sir, these professions may be doubted. My professions the other day seem not to have carried with them the most implicit confidence on the part of some gentle- men. Sir, if proof were wanting of the sincerity of my professions on this subject, it is to be found in the history of my public life. There are passages, Mr. President, in that life here which Senators ought not to have forgotten. Il is but a few months since, in the position where I now stand, I advocated t!ie measure alluded to by the Gideon & Co., Printers. honorable Senator from South Carolina. I allude to the territorial bill reported by the select committee, commonly called the Clayton compromise. The honorable Senator from South Carolina, [Mr. Buti.kr,] the other day, pronounced that bill satisfactory to the South. His expression was, that it was "framed to save the honor of the South." I sustained that bill; and under what circumstances? Sir, I knew from the outset the position I was about to take, in consenting to be a member of that committee. I knew that it was no enviable, but a perilous position. I knew well the difficulty of reconciling the excited feelings of different sections of this country; I was not ignorant of the danger of any concessi jn, with a view to compromise. I knew, sir, the temper of the people of different sections of this Union, and that every conces- sion, on cither side, however small, would be viewed with extreme jealousy. Sir, I might have avoided this position; 1 might have gone further, and when the bill was reported I might have consulted mv own popularity by going with my friends of the North, and following the crowd in denouncing the creature of our own crea- tion. Sir, it was not unanticipated that, in consequence of my course upon that bill, my name should be associated with terms of reproach; that opprobrium, personality, and, sir, I may add, personal insult, should be cast upon me. But, sir, I trust I was influenced by higher and better motives than the mere love of popularity. I had a duty lo ]ierform here; I desired to see this troublesome and dangerous question set- tled; .ind, in the discharge of that duty, 1 came boldly to the vindication of that bill, while it was dcnouncpfl by the almost unanimous voice of the North; and, I may arid, by tlie almost unanimous voice of my own constituency. I stood alone of all the people of the North; 1 followed the dictates of my own judgment; and, I must be permitted to add, in all sincerity, that judgment is now what it was then. Sir, I regret that the bill did not pass, and 1 believe the country will yet regret it. I was willing, if necessary, to make myself a sacrifice in order to attain the great object of harmonizing this Union, and of putting an end forever to the question which now agitates and alarms us. If that object could have been attained by the sacrifice of my humble jiretensions, I would have considered the object very cheap- ly purchased. Sir, when gentlemen from other sections of this Union, when gen- tlemen fro;n the South, will place themselves in the gap between the excited feelings of their constituents and the harmony of this Union — when they, disregarding the excitement of the moment, will breast themselves to the storm of popular prejudice, hazarding their popularity and their good name with an excited constituency, I pro- mise those gentlemen 1 will nev(;r do them the injustice to doubt the sincerity of their professions. I will pursue this subject no further. My object is to satisfy the Senate, that in what I have said in relation to the cultivation of a harmonious spirit, whatever pro- fessions 1 have made of a disposition to harmonize the difl^erent sections of this Union, and settle forever this troublesome question, my sincerity is proved by the cour>e I have heretofore taken on this floor. Sir, one object I have in addressing the Senate on the present occasion, is to vindicate the resolutions presented here from the State which I in part represent. Those resolutions have been the object of no very conciliatory comment. Almost every epithet in the whole category of opjjrobrium has been bestowed on them. Sir, I believe I can vindicate those resolutions before the Senate, and before the world. They have been, sir, misconceived here, and most grossly misrepresented elsewhere. They h;ive been pronounced on this floor offensive, violent, opprobrious, vituperative, unjust, insulting, treasonable, and untrue. Sir, if there is anything left in the cate- gory of opprobrium not bestowed upon them, it may well be regarded as surplusage. Let me advert to the resolutions themselves. [ have said that they have been misconstrued. Sir, if they have not been most egregiousl}^ misconceived, I have not the ca|)acity to judge. They are drawn not, perhaps, as skilfully as they ought to be. The language; is perhai)> not precisely what others would have employed to express the same sentiments. I will read them. The first resolution asserts — "That slavpry is a crimnaijninst huinnnity and a sore evil in the body politic, that was excused by the fr.imers of ihn Feilfral Cimsiiiution ns n crime entailed upon tlie country by their predecessors, and tolerated as a thing of inexorable ncccBsily" The other day I took the liberty of remarking that the sentiment here expressed was the general sentiment of the civilized world. In making this remark 1 really regarded it as rather conunun-j)lacc. It seems, however, to have been received as offensive, and was so considered probal))}' because ilie resolutions themselves were considered to convey an oll'cnsive imputation. Sir, when 1 made the remark, I considered that these resolutions cast no imputation on any portion of this Union. I regarded the resolutions as merely expressing an abstract opinion, directly impH- cating nobody ; and, having this view of their purport, I felt at liberty to endorse them, although if 1 liad regarded the resolution as containing an olliinsive imputation on any portion of {pr Union I should probably have avoided the expression. But these resolutions merely express an abstract opinion. What is it ? That slavery is a crime, or, if you please, an offence against humanity. Whom does this implicate > Upon whom is censure cast ? Upon those, and those only, who j)articipate in the offence and are responsible for the crime, if there be a crime. If criminality is im- puted to any one in j)articular, it is by inference, and by inference only. What, sir, have you, and what have I heard from our childhood on this subject ? We have all heard and felt the force of the vindication of the South on this subject. What- ever may be the origin of this institution, its continuance has been vindicated by gentlemen of the South ; first, on the ground that they are not responsible for its origin ; and, secondly, on the ground that its existence being a matter of inexorable necessity, they are not responsible for that continuance. Sir, this language has been used everyv.'here. 1 have not only heard it, br,t I have used this language myself among my own constituents, in excuse, if you please, or in vindication (if you please to use the teim) of the people of the South for their participation in this institution. I repeat, we all felt the force of this argument. Let the institution be an offence against humanit)^, if you please; those who brought it into the country are responsi- ble; those who participate in it are responsible for its continuance, only when its abolition can be made consistent with their safety. I have ever felt the force of this argument. And what say the resolutions.? They express the o])inion that the in- stitution is an offence against humanity. They proceed further to present the vindication which the South have always urged for themselves, the fact that the institution was entailed Mpon them by those who had gone before them, and that its continuance M-ith them rests upon inexorable necessity. i\ow, sir, having this view of the resolutions, finding they presented, at the same moment in which they brand- ed the institution as a crime, the excuse in exculpation of the South, I could not re- gard the sentiment as an imputation upon them. It was with this view that I hazarded the remark which I then considered, and now consider, rather as a common place one, without the slightest idea it could give offence to any one. But, sir, does the assertion need proof? Does the opinion that the institution is inconsistent with the dictates of humanity need proof.? Sir, what has been the opinion, and what is now the oj)inion of the civilized world? What has been the language of the ablest and best men of the South.? What lan- guage have they held before the world, and what has the civilized world at large said and done on this subject? Sir, if we look abroad we find the opinion of the civilized nations of Europ;? expressed by their acts. Great Britain has put an end to the institution; France demolished it at a single blow. One of the first acts of the French Republic— I speak of the existing Republic — was the abolition of this insti- tution totally, universally, absolutely, without reservation and without qualification, throughout her dominions. Sir, how did we feel, and how did this Senate act, in re- gard to that matter? Have gentlemen forgotten the resolutions of congratulation, and sympathy, and approbation which were transmitted from this body to France immediately after her late revolution? And have gentlemen forgotten the remark which 1 thought proper to make on that occasion, when we were expressing our gratification that, among the first acts of the new government wi'.h whom we were sympathizing, and to whom we were extending our congratulations, w'as the absolute and unqualified execution of a measure about Avhich my humble constituents were not even permitted to talk? Yes, sir, tlie axe was put to the root of the institution. It was done boldly, promptly, decisively; and yet, at the moment when we were tlius expressing our sympathicj; and extendin;^ our coni,'ratulations, the subject when pre- sented here from a constituency represented on this (loor, was laid upon the table upon the question i>f rec«'|)tii)n. Now, sir, I tiiid no fault with that disjjosition of the subject, so long as it is l)ruught here by the ollicious fanaticism of people who had better let it alone. So long as it is the mere topjic of demagoguism and popular ex- citement, I care not, if it is presented here in that spi^, if it is put unJ*:';- your table. But the subject presents itself now in a (lifFerent aspecP^it- comes to us, as I have already remarked, uninvited and unwelcome. It is an intrud^u])i)n us; but, even though it is an intruder, it must be received, for we cannot gcNpd of it. The issue is made in respect to these territories in reference to this institution, and it cannot be evaded. It must be met and it must be decided. Under these circumstances it is the right of every Slate and of any State iti this Union to express its sentiments upon this engrossing subject. It is the right and duty, in this aspect of the question, for every State to express not only its opinion as to the propriety of extending this institution to our territories, but its opinion of the institution itself. But if 1 was not right in the remark I dropped the other day with reference to the views and opinions of the civilized world — with the exception, perhaps, of a small portion of it in which th • institution exists— if I am in error, let gentlemen point me to some spot in th*' civilized world where the institution does not now exist, and where a civilized people demand its introduction. Sir, who desires it.' When and where, in what portion of the globe, do you find an earnest wish expressed for its in- troduction where it has not heretofore existed? What is now the sentiment of the people of all these territories? What was the sentiment of Oregon, and what is the sentiment of California' She has presented us here a constitution, in wiiich the people have attempted to prohibit the institution. But, sir, I need not go abroad for ma- terial to vindicate my expression ; I may appeal to the expressed opinions of the ablest and the be.>t men ofthe South — the able>t and the hest men whom this country has ever produced. What were the opinions of Washington, of Madison, and of Jefferson? Sir, gentlemen seem to have forgotten the expressive language of these men, when they regard the expression of similar sentiments in these resolutions as offen- sive to the South. Sir, let me advert to some of the opinions of Thomas Jetierson on this subject, and let me, at the same time, advert to the course of Virginia herself in relation to the introduction of this institution. Mr. Jetlirson tells us: *' Ourinij the n-^al (iovernment, we hail at one time obtained a law which imposed such a duty on the importation of slaves as amounted nearly to a prohibition, when one inconsiderate assembly, placed under a [)eculiarity of circumstarxes, repealed the law. This re|)eal met a joyfid sanction from the then Sovereign, and no devices, no expedient.-, which could ever after be attempted hv subsequent assemblie.s — and they seldom met without attempting them — could succeed in getting the royal assent to a renewal of the duty. In the very first session held under the Republican Gov- ernment, th<* assembly passed a law tor the per[)etual prohibition of the importa- tion of slaves. This will in some measure stop the increase of this great poliiical and moral tnyil, while the minds of our citizens may be ripeiu'd tor a complete eman- cij)ation of human nature." — JSt'otes on Virginia, pp. Itil, 1(5*2. Sir, the sentiments here expressed are the sentiments ol this day ofthe free States, and if an apology \n n 'cessary on their p;irt for their expression here, it is to be found in th(! fact that the languag(! is that of a distinguished statesman and patriot of the South. Mr. JefferHon says further: "And can the liberties of a nation be thought secure when we have removed tiieir only firm basis, a conviction in the minds of the people that these liberties are the eift of (j(Ki? That they are not to be violated but witli his wrath? Indeed I trem- ble for my country when I r<'tlect that (iod is jusl: that his justice cannot sleep for- ever." — Same, p. 300. Why tremble? If slavery be no sin and no crime, why tremble at the reflection ''that (Irnl is ju-,t." Sir, this language, wh(Mi it was uttered, was the language of the patriot and the statesman. It was the language of a man more prominent as a Soutfiern statesnuui than any other man who ever existed in that quarter of the Union. ]5ut this iano;ua<^e, tlicn considered as the langua<^e of the philosopher, the patriot, and the statesman, has now fjecome ^'■fnnnticism.''^ Transjjlanted from the soil of Virginia to the free soil of the North, these sentiments, which at one time did honor to the head and heart of the author, have now degv-nerated into '■'■fanaticism.'''' This prohably is an illustration of what the Senator from JVIicliigan, (Mr. Cass,) calls the progress of the age — of progress in morality and in political ethics. The .state- ments thus uttered in the very heart of the country where this institution exists; uttered by Mr. Jetf^son with the approbation ol his own country, his own people, and of the world; "when repeated by my humble constituency, in lesH pointed and less vigorous terms, become ^[fanoticis-m.'' What have we done here? What sort of brand has Congress put upon this insti- tution.' Sir, at the very outset of our legislation, the subject of the slave-trade was taken up. As early as 1794, although the importation into this country could not then be prohibited under the Constitution, laws were passed against carrying on the foreign slave-trade, with the severest penalties attached to their violation. As early as May, 1800, anotlier act was passed involving the forfeiture of all vessels built and equipped for the purpose, and all jjcrsons employed in the business, on board those ships, were made liable to a peaalty of $2,000 and imprisonment for two years. In March, 1S07, an act was pas-cd pruliibiting the introduction ()f slaves into the coun- try after the first of January, 1808. The law also provided, ihal all vessels built and equipped for that purpose should be forfeited, and the penalty on the persons en- gaged in fitting out such vessels was fixed at a fine of $20,000. The penalty for the importation of the slaves iato the country, was imprisonment for not more thaa ten nor less than five years, and a fine of not more than $10,000 nor less than $1,000. The act of 1818, was a similar one. fn May, 1820, the frajftc was pronounced piracy, and piinished with death. Sir, is this traffic, which you denominate piracy and pun- ish with death, to be denominated a crime or not? This resolution assumes that it is a crime. If it is no crime, why jironounce it piracy, and punish it with death? Sir, I am aware that these penalties are directed against the si ive-trade, and that it is the importation of slaves which has been made the object of these stringent and severe prohibitions; but is not the institution it.-elf a pcrpt^tuation of the offence against humanity? It originated at the outset in what you deem piracy, and, how- ever long it may continue, it partatces still of the cliaracler of its origin. It is of the blood of its own lineage. Sir, the present generation may not be responsible for its origin — it may be an evil which they cannot remedy. But, sir, do these consideration:; re. ider tiie institu- tion less oppressive, or more consistent with the dictat' -■ of li.-'vi: nity? This is not all, Mr. President. In our treaty with G.^^ai Britain, ratified in 1842, ■we stipulated to employ a force on the coast of Africa for the suppression of this slave trade; and, further, the parties to that treaty eiignged to exert their influence with nations still permitting the trallic, to put an end to it by closing their markets. It v/as thought to be the best mode of discouraging this disgu. ting tralfic to close the markets. What do my constituency now propose? They piopo.-e ntttoopen new mar- kets in territories where the institution does not now e\i -I, for the future encourage- ment of a traffic which the almost entire civilized world has coinbined to suppress. Sir, are not the cases parallel? If we are justified in juitting an end to this traffic; if we are justified in endeavoring to close the market in other countries, how can we be justified in opening these immense territorie.-, th.it have been conquered by our valor, as a new market for the introduction of this species of property — a new stimulus to this abominable traffic? Mr. President, the second resolution has, if possible, boon more misconceived than the first. It has been asserted here, and it has been asserted eNewhere, that the second resolution claims a right in Congress to interfere with the institutions of the various States Sir, the resolution claims no such right. It will bear no such construction. It is only by a substitution of one expression for another, that such a construction can be fixed upon it. What is the language of the resolution? 6 "That the so-called ^coinjiroinise of the Constitution' restrained the Federal Gov- enunent troni interrerence with slavery only in thf States in which it then existed, and trorn itit»*rfi!rence with the slave trade only for a limited time, which has long since expired." Now, it is to be remarked that the word restrained is used in the past tense; it is used in reference to the effect and operati(tn of the Constitution at the time it was adopted. Well, sir, is not the assertion true? If the compromises of the Constitu- tion, which restricted Congress in relation to this subject, restycted them in rela- tion to other territories than the States where it then existed, I desire to be informed •where tho>e territories are; lor at this time we had "but one territory, that of the northwest. The question as to that was settled by the old Congress, existing under the confederation, by a compact which has been Regarded from that day to the pre- sent as binding upon all. We had no other territory. VVhere, then, could this restriction take etiect, unless it were in the States where the institution existed? It has been said that this resolution asserts the power in Congress to interfere with slavery in the new State.s — in the States which have been admitted since the adoption of "the Constitution. Sir, I repeat, it asserts no such power. What are those States? First, Kentucky and Teimessee. Sir, we all know that those States were a portion, one of Virginia, and the other of North Carolina. If the restriction operated in Virjinia as she stood at the time of the adoption of the Constitution, and upon North Carolina, it covered those territories. So I'ar, then, as new States have been formed out of the limits of the old States, the restriction which applied to the old States will apply to the new, thus formed out of the limits of the old. Then came Alabama and Mississippi, formed mainly within the limits of Georgia. They stand upon the same footing. But there is another aspect in which this matter is to be viewed. Those who draughted the resolution knew well that, although the proposition in its terms is unquestionably true, that the Constitution only restricted Congress as respects those States where the institution existed, yet the subject was open to be acted upon by Congress in relation to the territories. Our first territory was Louisiana; our second Florida. Now, I maintain that, while these territories remained territories, it was competent for Congress to regulate the subject of slavery within them. However that may be, when those teriitories became States, the power of regulat- ing the subject passed from Congress. They had no longer any control over it. And thus the new States, introduced since the adoption of the Constitution, have been placed, by virtue of their sovereignty as States, and their exclusive control over the subject, without the pale of our legislation. Further: the resolutions proceed to state — ''That the powers conferred upon Congress by the Constitution to suppress the slave tradi', to regulate commerce between the Slates, to govern the territories, and to admit new States — powers conferred with an express intention "to foi-m a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to our- selves and our posterity" — may all rightfully be used so as to prevent the extension of slavery into territory now free, and to abolish slaver}'^ and the slave trade wherever either exists urxler the jurisdiction of Congress." Now, sir, is not this plain? Can any thing be more so? It asserts the power only in territories subject to the jurisdiction of Congress. I regret, sir, that there has been this mistake. I regret that this error has gone abroad. I have seen some notices of this resolution in the newspapers in which the .same mistake occurs. The honorable Senator from Arkansas has been represented as saying that the reso- lution contains this ]>osition, that Congress is restricted only, cS'c." Now, sir, by substituting the present tense for the past, the resolutions are made to receive a construction which those who drew them up, and those who adopted them, never imagined would be a])plied to them. Upon this error, Mr. President — ufXiU ihh misapprehension — have been hung speeches filled with opprobrious epi- thets, in this Hall, and various comments elsewhere, which I can only characterize as the result, on the part of tho.se who uttered them, of their own hasty misappre- hension. If gentlemen had ascertained with more accuracy the purport of the reso- lutions, they might, and I think probably would, have spared us the comments in which they have indulged. The hcjiiorable Senator from Arkansas, after exhibiting to us the resolution as containing the assertion of a power which the resolution does not claim, and, contrasting it with the professions of gentlemen of the North, ex- claimed, "Commend me to such conciliation!" — conciliation in professions, accom- panied by an assertion on the part of the free States, of a power to interfere with this institution in the slave States of the laiion. Sir, if I were to commend the honorable Senator to any thing, I would commend him to the use of his spectacles when he reads the resolution again; and I think he will find that the offensive con- struction which he puts upon the resolution may very properly be termed a hasty misapprehension g£ his own. Sir, I disclaim it, as I have done heretofore; I dis- claim this imputation upon the resolution. I go further. There is not a man among my constituency, of ordinary intelligence, who does not understand and feel that this institution in the States is beyond the reach of the action of this body; it is uni- versally so considered — universally. Now, sir, the Senator from Arkansas says he wont argue with us. No, he will not; and for the very best of all reasons — we will not argue with him. We concede the point. We assert no such claim. We have no argument to support a claim which we do not think proper to make. Sir, what else is there in these resolutions? Why, sir, the residue of these reso- lutions merely assert the power of Congress to prohibit slavery in these territories; and this, sir, I take it, is not to be regardcnl as an offensive pretension, it may be ill-founded; but, sir, it is merely the assertion of a power that has been exefcised ever since the organization of this Government — a power, exercised in every in- stance where the exigency of the case called for its exercise. Is it offensive, Mr. President, to assert a power which has thus t)een exercised by this Government from the beginning.' Sir, we maybe wrong in this position; the p^ogre^s of the times, the superior light of the present day, and I might say, peihaps, the superior logic of the present day, may have dispelled the illusion that Congress has the right to legislate for the territories, and we may now be enabled, b}' abandoning the prac- tice of the Government, abandoning the construction of the Constitution adopted by all the departments of the Government, to place ourselves on a more comfortable footing by setting these territories adrift; for, sir, if the arguments we have recently heard upon this subject of the power of Congress to legislate for these territories be correct — if the logic is sound and the conclusions right — there is but one word in the English language which will describe the position of these territories, and that is the word "«Jrz/if." Mr. President, I have done with these resolutions; but there are other matters which demand of me a passing notice. I have heard much, sir, upon this floor, of the encroachments of the North. Sir, I desire to know what those encroachments are. Are they such as would justify any portion of this Union in dissolving its connexion with it, and setting at defiance the Government of this Union? What are those encroachments? When did they commence? How have they been fol- lowed up? Sir, the first time that this question ever arose, the first time it was ever proposed to regulate this subject by act of Congress, was with reference to the northwest territory, previous to the passage of the ordinance of 1787. Sir, in the enumeration of these encroachments of the North, w^e have been reminded of the exclusion ,of slavery from the northwestern territory, and the peopling of that terri- tory with a population who would '■'sting to death their benefactors.''^ Now, sir, be it an encroachment or be it not, who was the first man to propose the exclusion of slavery from that territory? The same individual, Mr, President, whose sentiments on this subject 1 have had occasion to refer to. Thomas Jeffer- son was the man who first proposed this measure in 1784. In 1787 the ordinance ^\a«. a.l.'ptt'd; anil it was adopted by the unanimous vote of the States, including the Stales of the South. Now, sir, if this be an encroachment, who is responsible? If it be all eucroaohinent upon the rights of the South, who is the offender? Why, sir, -Mr. Jell'erson, the original projector, and the representatives of the South in thai Congress who sanctioned it by their unanimous vote. Sir, are we of the North to be reproached because slavery is excluded from that territory, when it turns out that the oriijinal projector of' the measure, and those who adopted it, were the representatives of a slaveholding constituency? Louisiana came into the Union, and what was done with Louisiana? Sir, this has been done: We have in that territory three slaveholding States — Louisi'cMia. Arkansas, and iMissouri — and but one free State, the State of Iowa. Sir, let me advert to another fact. At the time of the Missouri Compromise there was probablv not a slave to lie lound north of 36' 30'. Well, sir, the result was, that wherever t'le institution w'as found, it was permitted by that compromise to exist. So far a> this species of pr.^perty had found its way into the territories, so far it was recogxiiaed and protected by this compromise; but, sir, by that same compromise it was excluded north of 36'' 30'. Sir, was this an encroachment? Why, sir, it was a compromise in its terms, and a compromise in fact; and will gentlemen assert that a compromise, assented to on all sides, is to be called an encroachment upon the rii'hts of either party? If a compromise of this description is to be converted into an "encroachment,'' I confess 1 know not what meaning to attach to the expres- sion. The next step, sir, was the introduction of Florida, where slavery was per- mitted to exist. Was that an encroachment? Texas followed. It was permitted there, too. Oregon followed, and there it was excluded, with the concurrence of soutlicrn members, with the approbation of a southern President; and it was ex- cluded iVom a conviction that, law or no law, the institution never could find its way intu that territory. Sir, I think no man will entertain the =^lightest suspicion that slavery was either desirable in Oregon, or that, if it was permitted to find its own way, it would ever find a foothold there. Was this an encroachment ? Was this trampling on the rights of the South?" Sir, I don't understand the meaning of such ten. s. Then came New Mexico and California, What is the encroachment with respect to them? They have seen fit to abolish the institution, and they come to us with a prohibition in their fundamental aw. Now, sir, if we of the N'ort!' let these people alone, and leave them where their oun legislation has sc;.:i fst : .^ place them, we can hardly be taxed with encroaching on the lights of the South. Sir, if the icverse prove true; if the power of this country, once exerted to con- quer these territories, is to be exerted again for the purpose of planting amongst them an institution which they repudiate, that would be, in my opinion, a case calling most emphatically for the application of the term encroachment. Sir, a more egregious encroachment on the rights and liberties of any people cannot well be irnagined than to attempt to impose upon them an institution offensive to them — an instftutiou which they have in their lundamental law rejected. Sir, this is a species of encroachment that I protest against. I have listened to many homilies about the innate rights, and the inalienable rights of men, but I have iuht learned, for the first timo, if I understand aright some of the logic we have listened to, that these territories are independent of us; we own the land, but we have no right to control the people. If it be so, I think we are relieved from all re.sjwnsibillty on this subject, if we choose to leave them what they have made thcm.selves, a free people, and do not impose upon them institutions which they have n-jcflfd — I might perhaps say, have rejected with horror. Well, sir, there is another" complaint which I deem it my duty to notice. It is jjaid that we have refused to aid in the recapture of fugitives. Sir, is this a viola- tion of the Coustitution? I believe it has been settled by the Supreme Court that the free States are under no obligation at all to aid by their State legislation in car- rying rth, that .slavery ought not to be extended to these territories, that 18 a very diflerent thing; it is a more enduring principle. Sir, on that subject our opinion:^ have been exprej.sed — firmly, calmly, and boldly expressed, without equivocation; and all that we propose is to carry out our own opinions, as far as we have the power, by regular, ordinary, constitutional action. If it turns out that we have no constitutional power over the matter, we must yield; but, if we have a constitutional power over it, then, sir, we propose to use it. All we ask is, that the lesjislation of Congress upon tlie matter, within its constitutional jurisdiction, shall be guided by the question was once agitated. It was once proposed to amend the Constitution of the I iiited States, in order to remove doubts as to the constitutionality of the purchase of Louisiana; but the good sense of the American people seemed to ap- prove the measure, and the project of amending the Constitution was abandoned. Sir, we will suppose that we have got over that dilliculty — (gentlemen may get over it a.s they jilease) — we will assunie that it is competent for this Government to take a cession of New Mexico and California, which cession conveys the sovereignty of the country. Now, if we I ecome the depositories of the power, can we or can we not exercihe it? If the sovereign control over the country, the highest attribute of M*vereignty that can be exerci.sed by any Government, belong to this Government, can lh»; (Government or can it not exercise the power with which it is thus clothed? Sir, I derive the power, not directly but indirectly, from the treaty-making power. If tlu- tuaty-iiiaking p(jwer enables us to take a cession of territory which involves the infill to ((jiitrol .•such territory, it would be an absurdity in the science of Gov- ernnKiit to .sup])o.^c that we may become the depositories of a power which we cimnol excrci-se. 11 Now, this may perhaps be deemed '■'■.subtle reasoning.'- It may be deemed '■^metaphijsical.'''' Sir, it would re(|uiro a good deal of metaphysics, I think, to get over the utter absurdity in which genth;men involve tiiemselves when they admit that we can acquire the sovereignty oC a country, and yet cannot exercise the rights belonging to that sovereignty. , Sir, in discussing this subject gentlemen overlook the distinction between a mere right of property and the sovereign power of a State. Sir, the cession of a territory or a tract of country, where the ceding power parts with its entire control to a sove- reign State, involves political power — the ownership of all belongs to the State. What is that ownership? Not a mere title under the existing law of another Gov- ernment. It is the highest title known to the law, the eminent domain residing in the sovereignty of the State; and where the ownership is of that character, political regulations and control follow it. The only mode in which that ownership can be exercised is through political action — by legislation. Sir, we may purchase a tract of land for an arsenal or a fort, and we then get a mere tenancy, in the language of the law; a tenancy in fee simple, under the law and jurisdiction of another State; the mere proprietorship of the land, the mere tenancy, involving no political power; but when our title involves the eminent domain, the very source of all tenancy and all title, then we have the sovereign power to be exercised by political action — by legislation. The ownership in a sove- reign State, where there is no other existing jurisdiction, involves political power. Sir, what is this distinction taken between regulating the land and governing the peo- ple? The question is asked, whether a mere cession of land gives political control over a political community within the territory? Certainly a mere purchase of land would not. But suppose that people have no sort of organization, no pohtical existence, how then are they a political community? They are subject to no control but of this Union, and if we cannot govern the people, what becomes of them? Sir, this must result, that if New Mexico and California are ceded to us by the Mexican Govern- ment, their sovereignty is passed to us. If we have got no political control in con- sequence of such cession, the people must be, as I said before, adrift; there is no other phrase that will express their condition. Mexico can have no control over them — they have no political organization. If we have no legislative power over them, they are without law, without government, possessing no political sovereignty of their own, and subject to no jurisdiction. The result, then, of a cession from Mexico, to the United States, is to make those territories independent of both Powers, and place them beyond the reach of legislation and of legal protection. They must, from the necessity of the case, adopt an organization and legislate for themselves; and when they do this, not under our authority, but by force of an inherent right of self-government, they become ipso facto independent; and the public domain residing in the sovereignty of the State, as the source of all title, at- taches to this new independent sovereignty, and thus our title to the land is extinct. Sir, by the terms of the Constitution we are authorized to make rules and regula- tions for the government of the territories. But it is said we can regulate our lands, but we cannot regulate the people. Sir, what kind of regulation would that be ? What sort of regulation is that which regulates an inanimate object only, but is bind- ing upon nothing animate — binding the land, but not the people who inhabit it? A law which nothing living is bound to regard ! If you make regulations with respect to your land, you must regulate the mode of acquiring title and the mode of transferring title. You must have some law in rela- tion to these matters, for you can have no title as mere owner of the land without some law to support it. Your law must regulate the people living upon the land. If disputes arise between you and some of your tenants, you must have some law to regulate those disputes, and you must have some tribunal to decide them ; you must also have some executive power to carry those decisions into effect. I know not how you are to administer law in a region where there is no law and no tribunals for adjudication, and no executive olficers to enforce decrees. Without 1'2 the^t' a>j:riu if^ ;uiv reo^ulations that you may make are nugatory and useless, and your arqui>ilion of territory is valueless You cannot control your land unless you have legislation, nor unless you have executive and judicial authority .somewhere. Well, sir, when you have tliese three branches, you then have the outline at least of a political government. It is impossible to proceed one step to any practical pur- pose, in my judgment, in regulating the territories, unless you have not only the form but the osse^ntials of government. When you have established regulations for the acquisition and transfer of titles, you have entered upon legislation. When you have created an executive and a judiciary, you have assumed political power. Where, then, is the limitation which ties you down to any particular subject or parti« ular course of legislation ? Is there any limit to your power, but the limit of legitimate legislation and sound legi.slative discretion.' Sir, is it not clear that the po\v^r to make rules and regulations respecting the territory of the United States carr'cs with it legi.-lative — political power.' And is it not further apparent that with- out that accompaniment the power conferred by the Constitution is impotent.? Sir. I am not disposed to occupy tlie time of the Senate upon this point. I have had occasion heretofore to express my views more formally, more at large, in regard to it, and I am not now about to repeat them; but I wish to ask some questions, rather for the purpose of information. It is said that we can regulate the land — the territory (for ''territory means land") — but that we cannot regulate the people upon it. Now, the verv first step is to have the land surveyed and offered for sale. It is sold. The (Juvernment issues its patent. The patentee goes on and takes possession of the land, and the moment he takes possession, he becomes independent of your Government! He is a sovereign by himself! He is, by himself, a '■'■political community!'''' [A laugh.] He sets yovi at defiance, and takes as much land as he pleases. Well, what are you to do.' Are you to drive him out at the point of the bayonet.' But suppose you grant another patent of the adjoining land to somebody- else who has got no bayonet, and a controversy arises between those tw^o men, what is to be done.' Why, I suppose they must fight it out; because, although you have the sovereignty of the country and you own the territory, you have no con.>titutional power to interfere in the coutroversv, and you must therefore make your obeisance to ther-e two individuals, holding under your own patent, in the character of media- tor between these two hostile '■'communities.''^ Sir, I will not follow the subject any further. I suppose, Mr. President, the provisions contained in our Constitution were intended to be practically sufficient to answer some purpose. I suppose they were intended to answer the great purpose of government ; but if our powers with respect to these territories are such as gentlemen suppose, and such modes of con- .struction are to be adopted, all I have to say is, the whole Constitution put together is not worth the controversy vvhieh has grown out of it. I had designed, sir, to allude to another subject, and I feel bound in some measure to do so. Sir, it is by vo means extraordinary that the discussion of this subject of slavery should produce excitement. It is by no means strange if that excitement should be carried to an extreme, and it is from this consideration — that men, under the influence of an excitement produced by a state of affairs like this, will some- times do what in their cooler moments they would have avoided — that my fears arise. This lies at the bottom of my apprehension in relation to this matter. Sir, we have heard much of the purposes and the determination of the people of the South. To what jK)int that determination tends, what that determination pre- cisely i.s, how far it reaches in its design and purpose, is not for me to say. I hope and tru-t that it reaches no further than is consistent with the rational and ron^ititutional i)rotection of their own rights, or .such rights, at most, as they sup- pose tlicmsclves to po>scss. if this determination, Mr. President, goes no further than to sustain their integrity as States, to maintain their exclusive jurisdiction over their own domestic aflairs, nobody has the right to interpose; no one has a disposi- tion to do «o. Sir, the rlctermination of the South in regard to this matter, if it 'roes no fiirlhir than to preserve the honor of the South, and to secure what is due to her 13 domostic institutions, is right. She has a right, boldly and firmly, to maintain these against all encroachment, and 1 assure the gentlemen of the South that she will have no diiliculfy in doing this; there will be no obstruction thrown in her way by the North; no invasion of rigiits in this resi)ect need be apprehended; no int(;rfer- ence. 1 am willing to engage, sir, that she shall be undisturbed in thi; administra- tion of her internal aiTuirs, throughout the whole extent of her domain. She may line her whole frontier, from the Atlantic to the Mississippi, with bayonets; it will be a bloodless warfare; she will have no enemy to contend with. I have no apprehen- sion on this score. The ditliculty and the danger lies beyond this. Sir, before we suffer ourselves to be excited or alarmed, it is well, perhaps, to ascertain in what position we stand, to ascertain what is the issue between us, what are its probable and what its possible results. Sir, we have no contest with the gentlemen of the South about the institution of slavery, as it exists in the States, What is, then, the controversy? Sir, on the one side we maintain the power of Con- gress to regulate the subject within the territories while they remain such. This power is denied, at least to a certain extent. Here, then, is the issue. Does It not result in a question of constitutional construction? 1 have iiad occasion to discuss this question heretofore with distinguished gentlemen of the South. We understood ourselves as discussing a constitutional question. What arc our powers under the Constitution? Can we or can we not put our hands upon the institution within the territories, and is it or is it not subject to our control? Sir, irf it is, as I conceive it to be, a mere constitutional question, it is not a matter to be settl d by violence. It is a matter to be discussed coolly and calmly. Such being the character of the issue between us, whatever determination may exist here or elsewhere, and however firmly and eariiestly the issue may be main- tained by the respective parties to it, yet gentlemen will permit me to say, that all threats and violence, all purposes of disunion, of separate independent State action, and any and all measures not justified nor called for by the Constitution, are in my judgment, at present altogether premature. Sir, Congress has not yet attempted to exercise the power in this instance — that is, in relation to the newly acquired terri- tories. Before we talk of dissolving the Union, let us wait and see whether Con- gress will exercise it. If, sir, it should turn out that the Wilmot proviso, or the Ordinance of 1787, cannot be passed through Congress, the South will be satisfied, and we certainly shall not attempt to carry either into execution by force. But, sir, suppose Congress should enact the Wilmot Proviso, or suj)pose we should incorpo- rate the Ordinance of '87 into an act establishing territorial governments, has the time then arrived for disunion — for resistance to the Constitution? Has the time then arrived for independent State action, or any extreme measures not warranted by the Constitution itself? Mr. Foot. It would be usurpation. Mr. Phelps. The Senator may call it "usurpation," if he pleases. But i repeat the question, suppose the Wilmot Proviso should pass? Has the time arrived for a separate, independent State action, by way of resistance, to the action of Congress, call it usurpation, or what you please? No, sir; not yet. The Constitution has pro- vided its remedy; the framers of that instrument, foreseeing that there might be a difference of opinion in defining precisely the powers conferred by it, have provided a peaceful tribunal for the adjustment of such controversies — that tribunal which sits in the chamber below us, Mr. President, (the Supreme Court.) It is for them to pass on the validity of these ordinances. Sir, we were told yesterday that we had nothing to do with their decision; that we are to follow our own opinion, without regard to their adjudications, and are to be guided solely by our own judgment. All this may be true to a certain extent. In giving our votes here, we are guided by the dictates of our own judgments, and we ibrm our own opinions of what is constitutional and what is not; but, sir, when a law comes to be enacted, and the question whether that law is constitutional or not is raised, the decision of that tribunal, whether it is or is not constitutional, binds the Government, and decides the Executive whether to put the law in force or not. If the decision is adverse to the law, the law itself is abrogated, virtually and in 14 effect, by the decision of this tribunal. Sir, is not the path before us plain? When the judi^inent of this body and of the other House is passed upon this subject, and the Wihnot Proviso is adopted, if the constitutionality of the enactment is doubted, here is a constitutional tribunal to settle the question. Now, sir, will or will not the North and South both submit to its decision? Will either party attempt to decide on the constitutionality of the law in anticipation of the decision of this tribunal, and set that decision at defiance? Sir, I repeat, that even when these measures, ofi'ensive as they may be regarded in some quarters, are passed here, the time for resistance in any other shape than in following out the re- medies provided by the Constitution has not yet arrived. When the decision of that tribunal is pronounced, should it establish the poAver for which we at the North con- tend, it will then be fully in season; early enough for the gentlemen of the South to begin to calculate the value of the Union, and determine whether they can any lon- ger live under it, as expounded by the various departments of the Government. Sir, we have many stages to pass through yet; many contingencies to encounter, before we begin to talk of breaking up the foundations of our political temple. Mr. President, 1 alluded, in the commencement of my remarks, to a measure that (was brought before this body some months ago — a measure which was in my judg- ment the only one which could be resorted to with the slightest hope at that time of an adjustment of this question. Sir, I am free to say I was disappointed in some re- spects in finding gentlfemen of the South giving their assent to that proposition in a manner that appeared to me hardly consistent with their professed opinions. Sir, I give the gentlemen credit for yielding their assent to that measure with a view of con- ciliation and settlement. This very question presented itself to us when we had under consideration that bill. There lay under it, after all, the constitutional ques- tion, whether you can regulate the subject at all. We were all conscious of that. The friends of the bill, one and all, were willing to submit that constitutional ques- tion to the proper tribunal. We did not attempt to settle it, but professed on all sides a willingness to submit the question to the tribunal created by the Constitution for the purpose of deciding it. Has there been any change of sentiment on this point? Are we not prepared now to submit it? Certainly, sir. Mr. Yui.EE. Do 1 understand the gentleman to say that the North is prepared now to submit the question to tliat tribunal ? Mr. Phelps. I cannot be responsible for the entire North ; but what I mean to say is, I trust that all parties are willing at the present day, before resorting to measures not sanctioned by the Constitu- tion, to submit the constitutional question, in the first instance at least, to the tribunal created for the purpose of deciding it. Sir, when a decision is had, the question will assume a very different aspect. Sir, I do not like to anticipate, but I venture to assert that the great mass of the American people will ait down satisfied with the decision of that tribunal upon this ipiestion, let that decision be as it may. Mr Yllee. Will the Senator yield me the floor for one minute? T desire that Senators from the North should be tested upon this point. The gentleman says that the North is contented that the issue of thi.s question between the two sections of the country should rest upon the decision of the Supreme Court as to the constitutional merits of the issue. Now, sir, I ask him whether lie speaks for the North, when he says the North is willing to come forward and meet the South upon this set- tlement of the issue. I hazard nothing in saying that the South is prepared now, conscious as she is that she demands only her constitutional rights, "to submit the question to the Supreme Court, and to hold all action and all legislation which may affect it in abeyance until that decision shall be had. Mr. Di?TLKR. I am bound to interfere in this matter, because the question put by the Senator from Florida should not go without some explanation. At the time the bill relating to the territories was under consideration more than a year ago, the South would have had an opportunity to have settled this territorial question, and during that time must have had some rights wilrhin those territories •ccured to her by Congress ; but 1 do not go so far as my friend from Florida in saying that I would altogether acquiesce in the proposition to subject the rights of fourteen sovereign States to the decision of a body like the Supremo Court of the United States, after all the advantages given to our opponents by the oficrationH of the Government in California and New Mexico. Mr. FooTE. If the honorable Senator will allow me to interpose at this point of his argument, 1 will beg leave to rrad an extrart from the famous report of Mr. Madison, explanatory and vinilicatory of the rclebrutcd Virginia res-ilulions of 17i)8-'99. It will be recollected that it was contended then, M now, by certain siateHmen, that the action of Virginia, Kentucky, and certain other States, had been prcnpiiaie and unjusiifinblc, in slrivinjr, in the mode then adopted, to an-enl the course of uncon- ■lituiionnj IcgiHlmion on the part of Congress, and that the Supreme Court of the Union ought alone to l)«- appealed to. Listen to Mr. Madi.ion, who, as a lover of the Union, and a faithful expositor of the Ciinatitiiiiiin, haw never been surpassed : "If ihe deliberate exercJHe of dangerous powcr.i, pal|)ably witiield by the Constitution, could not jus- 15 tify the parties to it in interposing even so far as to arrest the progress oft ne evil, and thereby to pre- serve the Constitution itself, as well as to provide for the safety of the parties lo it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognised under all the State constitutions, as well as a plain denial of the fundamental principle on which our inde- pendence itself was declared. "But it is objected that the judicial authority is to be regarded as the pole expositor of (he Constitu- tion in the last resort; and it may be asked for what reason the declaration by the General Assembly, supposing it to be .theoretically true, could be required at the present day, and in so solemn a manner. "On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department; second- ly, that, if the decision of Judiciary be raised above the authority of the sovereign parties to the Con- stitution, the decision of the other department, notcarried l)y the forms of the Cotistitution before the Ju- diciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General A.s.sembly relates to those great and ex- traordinary cases in which all the forms of the Constitution m ly prove inelTectual against infractions dangerous to the essential rights of th<: parties to it. The resolution supposes that dangerous powers, not delegated, may not only bo usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another — by the Judiciary as well as by the executive or the legislature. "However true, therefore, it may be that the judicial department is, in all (juestions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the Government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well the oth^r depart- ments hold their delegated trusts On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the po.ssible reach of any rightful remedy, the very Con- stitution which all were instituted to preserve." Mr. Phelps. Mr. President, I apprehend there is nothing in the extract which has been read which bears on the course of remark which I was pursuing. What [ intended to illustrate was this : should this law, offensive to the people of the South, receive the sanction of Congress, there is still a constitutional tribunal to which they may appeal for the interpretation of the Constitution, and for the purpose of determining whether this body has transcended its [)o\vers or not. Well, sir, if that deci- sion should be against the validity of the law, most clearly the South would be satisfied ; we should have no civil war growing out of such a decision. Should the decision be otherwise, and the power of Congress in this particular be established, it will then, as I remarked before, rest with the sove- reign States of this Union to determine whether they can longer adhere to the Constitution thus expounded by the Judiciary departuieni of the Government. Tlie extract from the writings of Mr. Madison asserts the ground that these .sovereign States may, after all, judge for themselves. Cer- tainly !hey may. They must be their own judges whether they will longer continue in our political community. I have expressed no doubt on this point. The idea I intended to convey was this : that it will be abundantly in seison for the southern States to t! whicli my own State, as a member of this Union, has a perfect right to entertain and to express. They are sentiments bearing directly on the action of this body, on the most important subject before it, and perhaps upon the most important topic that will ever come before it. Upon such a question it is the right of any and every State of this Union to express itself in language satis- factory to itself. Sir,' 1 regret that Senators should have thought it proper, in reference to my colleague (Mr. Upiiam) and myself, to cliarge upon us the unnecessary exhibition of these sentiments — the unnecessary and culpable iigilaiion of the subject here. Sir, the right of my State, and of any Slate in this Union, to speak it.v sentiments in lliis manner, should not be — is not questioned. The only manner in which a Stale can speak here is through her lepresenlaiives on this door. Will it be contended that, if such expresjiioiis should happen not to be palatable to every gentleman on this floor, that, in regard to a topic thus important, it is the duty of the representative to pocket the solemn resolutions of his con- Btituenry, ana suppress their opinions? Sir, in presenting these resolutions my colleague conformed to the uniform practice of the Senate ; and I was not a little surprised that exception should be taken to this course, after listening to the expressions of gentlemen from other quarters, in relation to the determination of the Slates they re- present. Sir, it is the right, it is the duty of these gentlemen, to express the opinions of the States they represent. I take no exception to the very decided tone in which, in some instances, this has been done. But I may be permitted to express my surprise that, while gentlemen volunteer, upon their own responsibility, not only to express the opinion of their States, but to announce determina- tions — fixed and unalterable purposes — which may lead to measures of the last extremity, we should be censured for presenting the expression of opinion emanating from the Legislature — the representa- tives ofihcpeople of our Stati. Mr. President, I repeal it, this subject is one which, of all others, I would avoid, if I could avoid it consimeiilly with my duty- But the time has come when it cannot be ai-oided. My apology, if one be neceH.-ary, for trespassing upon the time of the Senate, is lo be found in the fact, that the opinions exi>re.H8ed by the Legislature of my Stale have been commented upon in a tone and with a severity which renderc-d it my duty, as the representative of the State, to vindicate those opinions, and those who cxprcKsed them. LIBRARY OF CONGRESS 11 011 898 111 H « LIBRARY OF CONGRESS 011 898 111 A f