The southern press. [volume], June 25, 1850, Image 1

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Ell wood EUl)**' A Edwin De Leon.
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SPEECH OP div
Hon. V. E. HOWARD, of Texas, mo
Against the admission of California, and the dis- M
niembermentof Texas?delivered in the House
of Representatives, June 11, 1850, in the Committee
of the Whole on the California message.
The House being in Committee of the 001
Whole, and having under consideration the <lUl
President's message in relation to the ad- e.v'
mission of California? l'tT
Mr. HOWARD said:
Nothing, Mr. Chairman, but the deep ,wo
interest which my immediate constituents
and the State of Texas have in these ques
tions, could induce me to claim the attention
of the Committee at this late period ot the p*
discussion. The time has as length arrived
when the peace and welfarcaf this country
require, not a compromise, but justice to (lu'
the South, and an observance of constitutional
requirements and official oaths for *-?
their support. The South demands her constitutional
rights, and a just share in the tr.v
y benefits of this Government; no other com- ma
"promise is required, or will secure tranquility
to the country. ffu<
I am not, sir, about to enter into any ab- tl0
stract speculations upon the nature and char- no
acter of slavery. 1 am content to treat the 'r0
institution as it was regarded by the fathers
of the country who framed the Constitution
under which we here assemble, as an exist- me
ing relation of society, drawing to itself Prc
certain fixed, and, in theory, firmly estab- ?r(
lished civil and political rights. What the
greatest and purest men that the world has f"8
ever seen?a Washington, a Franklin, a .
Hamilton, and a Madison?guaranteed as a PIC
right, cannot be proved sinful by the latter str
day saints of abolition and free-soil, however
men may dilfer as to its character in I"'
other respects. Neither shall 1 so far follow m'
the hackneyed examples of bad taste, as to
participate in the sectional recriminations
which have been so freely indulged in by an
speakers from all sections during this bebate;
they are beneath the dignity of the subject, .
and unworthv of the American Congress. VIS
? ~ -- - J -- - _ _ 0
Sir, when oar forefathers, the men ol the Cl
Revolution, framed the present Constitution,
the great charter of American liberty? ",(
slavery constituted no objection to the Union.
If, in the progress of events and opinions,
it has become so odious and sinful in the
| estimation of any considerable section of *?
this country, that the Government cannot be Sr:
administered in its original spirit, and the r.es
letter of the Constitution complied with, let .
the fact be proclaimed, and the legitimate n*'
consequences follow. But it is not in candor
and honesty to appropriate the advan- ?.r
tages of the compact, and then refuse to M
abide by its obligations and express stipula
tions; the performance, like the benefits,
must be mutual by all the contracting par- nii
ties. co
It cannot be disguised, that attachment ?la
and loyalty to the Constitution arc, in some ha
sections of the Union, greatly weakened, w!
and in danger of being entirely destroyed, tei
During the present session of Congress, wl
petitions have been presented from free jus
States asking for a dissolution of the Union, rn<
on the ground that the petitioners could not oc
conscientiously remain in a Union, the (Jon- St
stitution of which guaranteed slavery. A pr<
very considerable party openly took the mi
ground, that the Constitution i.i opposed to 0f
the divine law in this respect, and must a i
yield to this new rule of |>olitical faith.. It sti
is a novel revelation, and above the word of ha
Cod, for the Sciiptures, as well as the Con- tr:
stitution, recognise slavery, and pronounce pe
it legal. . en
It was satisfactory to near this disreputa- Si
ble doctrine denounced by the distinguished ju<
me.mbcr from New Vork, (Mr. DrtR,) as Cj
well as by the eloquent member from Mass a- St
chusetts, (Mr. Winthrop,) although the w;
value of their reprobation was very much tv
weakened by certain phrases which they let of
fall about habea* corput and jury trial. It thi
cannot be necessary to remind gentlemen, as tic
intelligent as they are, thrt the difference pp
between one who openly and boldly sets the ni;
Constitution at defiance, and one who ad- he
mits its obligation, vet evades it bv dexter- foi
ous legislative devices, as to the remedy, is thi
scarcely worth the consideration of the casuist.
. (]t
The truth is, Mr. Chairman, the Consti- pe
tution, in relation to the restoration of fugi- ge
tive slaves, has become a dead letter, and thi
so, I believe, it is destined to remain. This gr
condition of things is calculated to awaken : th*
the most lively apprehensions. The whole joi
foundation of the American theory of gov-j lik
ernmcnt is the respect and attachment of In
the people lor their written Constitutions.? dc
When they cease, the representative repub-! th
lican system of government is at an end.? ! is
If the people of this country ones embrace (ge
the opinion that there is a Divine law, or pn
any other rule of government above the is
sanctions of the Constitution, and the obli- er
gations of an oath, an end of republican N
forms will soon follow. na
No one can read the acts of certain State f0i
Legislatures, prohibiting the restoration of ex
fugitive slaves, opposed, as they are, to the th
Constitution, the law of Congress, and the foi
decisions ol the Supreme Court, without Ti
fueling his pride as an American citizen hum- hu
bled in the dust. . p<j
After the close of a brilliant war the gov- ' sc
ejnmcnt acquired, by treaty of cession, an si<
extens ve and valuable country from Mc.\i- da
co. This acquisition was the result of com- (\
mon blood and treasure, freely expended by , th
all section! of the Union. On obvious If
principles of equity and justice this public on
domain, thus belonging as a common fund ve
to the whole country, ought to be open to te
the citizens of all the States, with their cil
property. If there is such a dilfcrcncc be- ' cu
tween the institutions and property of the an
slave and non-slave States, as to make a C<
common occupation by their citizens repug- st:
Inant to tho interests or feelings of those1 sa
emigrating from different sections, or inex-; to
pedient for any reason, then the timo-hon-, ha
ored princifde of a division of estate, by Si
proprietors who cannot agree to occupy in j
common, should at once be the rulo of ad- g;i
justment. If it cannot be occupied in coin- di
mon, the territory should be divided by di:
some equitable line of partition. hi
I am not wedded to any particular line of; nc
-X. ?
Till
Vol. 1.
'ision. I am free to say that, twelve
inths ago, I would not have voted for the
issouri Compromise line ; but the active
ervention of the Executive and others in
i affairs of California, and which will be
itinued as to the other Territories if this
estion is left open, render a settlement,
sn by this line, desirable at the present
i ......i.i v.? -,:n: r..? ? .1:.?r
ic. i vyuuiu i/o iui ? uivimuii ui
s Territory by parallels of longitude, and
uld prefer the bill of the honorable memr
from Maryland, (Mr. McLane,) which
iposes to extend the Texas boundary to
i Colorado and the Gulf of California,
-ing to the State of California the
iance of the country. This would fix
! institutions of the whole Mexican acisition,
and leave no further territory for
i Wilmot Proviso and the legislation of
ngress.
If there cannot be a division of the coun,
then the Mexican law ought to be forlly
repealed. This would not be an esilishment
of slavery, but would leave the
jstion to stand merely upon the Constitun
and non-intervention. Congress has
power to destroy property, or exclude it
m a Territory; hut it may remove obuctions
and obstacles. If there be any
sxican law excluding the .manufactures or
ichanic arts of the North, or the slave
iperty of the South, it is the duty of Conjss
to repeal these laws. I might go fur>.r,
as a question of right, and maintain
it there is a broad and obvious distinction
tween the power to create, or establish a
ice of property, and the power to deoy.
Congress ought to settle this matter, and
ice it beyond doubt. The inclination of
r own mind is, that the Mexican law, in
ation to slavery, is superseded by the
institution; yet it is a question in contest,
d, as long as it remains in that condition,
one will think of taking slaves into these
irritories. No prudent lawyer would adie
his client to that course; how, then,
u he consistently vote for any settlement
lich does not secure the right, and place
i emigrant beyond the harassment of
xatious lawsuits in relation to this species
property? The present condition of the
v is the subject ol too much uncertainty
be a safe rule. It will prevent the emi?* ?!?
oloifftKAl/lorc in ite nrtirtirql
nilWJI VI atUT?iiuiuviO) vi in a???
iults, exclude the South from any fair parion
in the advantages of the common Tcraries.
Let there be a removal of all
structions, in the shape of Mexican laws,
an acknowledgment of the right on one
le of a given line.
THE ADMISSION OF CALIFORNIA.
The first measure of the series is the adssion
of California as a State, with her
nstitutional boundaries and inhibition of
very. This action in California, by a
ndful of men, excludes the South from the
lole Pacific coast, running through some
i degrees of latitude, and embracing the
tole Pacific country of any real value. The
itice of permitting a few persons thus to
mopolize an empire, which they cannot
cupy, to the expulsion of one halt of the
ates of the Union, cannot readily be apehended.
Within reasonable and legitiboundaries,
first ascertained, the people
a Territory, when forming a State, have
right to prescribe their own domestic intutions;
but a few men or inhabitants
ve no right or power to monopolize large
icts of the public domain tor an indefinite
riod of time, which they cannot enjoy, and
cumber it with their political institutions,
ich a course of action is alike forbidden by
stice and the Constitution. In the case of
ilifornia, it is particularly odious to the
ates it was aimed at, from the fact that it
is accomplished through the instrumentaliol
political agitations, and the interference
Executive agents and emissaries. 1 know
is hashecn denied, and I do not now men>n
the subject with any other view than to
oduce the proof, furnished by the Califori
convention, on a proposition to extend
r boundaries to the line of New Mexico,
the purpose of excluding slavery in all
at vast region.
"Mr. SHERWOOD. The gentleman,
dr. McCarvk.r,) says he is in favor of a
rmanent boundary. How is he going to
t a permanent boundary by fixing it upon
e Sierra Nevada ? Is he sure that Coness
will not cut us off on the South ? If
e gentleman has that assurance from a malty
of the members of Congress, 1 sliould
;e to see it I hope he will produce it.
my opinion, if a majority of Congress are
lermincd to settle the question of slavery,
ey will give us the whole territory. If it
objected to by Mr. Calhoun, or any other
ntlcman who is in favor of slavery over a
rt of California, it will be answered that it
too expensive to establish a territorial govnment
on the eastern side of the Sierra
evada ; that that territory is for the most
irt a desert waste, and may rest with Calirnia
as a part of the State without being
ipensiye to the people of California; but
at it would be quite a burden in thirty or
rty years, at an annual expense to the
reasury of the United States of one or two
M'leA/l fli/tiiBon/l /1/vltura a fnar?.!? hmrn
ution of wliicli wc would liavc to pay ourIvcs.
In regard to preventing our admis>
>n into the Union, by extending the. bounty
to New Mexico, we expressly sav to
angress that, if they will not give us that,
ey may cut us down to the Sierra Nevada.
wc cut ourselves down now, gentlemen
i the other side will say wc have acted
ry foolishly in not embracing the whole
rritory, and thus throwing out of the couns
ot the nation the subject of all the diffiIty.
If wc are admitted into the Union,
id bceomc a constituent part of the great
jnfederacy?a new star in the galaxy of
irs?wc shall always, I trust, have the
me desire to keep the Union together?
preserve it in pirit and substance?as we
id when we were residents of the older
:atcs.
"Mr. SEMl'LE. 1 feci under some ob!iition
to repeat a conversation which has a
rect bearing upon this matter. There is a
stifiguished member of Congress, who holds
s seat from one of the States of this Union,
?w in Calitotnia. With a desire to obtain
f
ft c. - PORTFOLIO *
SOI'
T I
Washing
all the information possible, in relation to the tc
state of things on the other side of the p
mountains, I asked him what was the desire a
of the people in Congress; I observed to him ti
that it was not the desire of the people of s<
California to tal.e a larger boundary than the ir
Sierra Nevada; end that we would prefer p
not embracing within our limits this desert ii
waste to the east. His reply was, ' For e
God's sake leave us no territory to legislate C;
npon in Congress.' He went on to state, b
then, that the great object in our formation
of a State government, was to avoid further ft
legislation. There would be no question as to n
our admission Joy adopting this course; and it
that all subjects of minor importance could v
afterwards be settled. 1 think it my duty to s<
impart this information to the Convention. I
The conversation took place between Mr. h
Thomas Butler King and myself. s
" Mr. BOTTS. I have remarked it as a g
singular fact, that we have reports daily, and a
almost hourly, ol some important information a
that has been received from some particular a
sources; letters that have arrived, conversa- u
tions that have occurred, something that v
some gentleman has heard Mr. Thomas But- f:
ler King say. Now, sir, 1 take it that Mr. ri
Thomas Butler King, nor no other single in- ti
dividual, is the exponent of the wishes of the c
Congress of the United States. He is but rJ
one man on the floor of that Congress. He s
gives but one vote, and that vote it is not in c
his power to give whilst he remains in the ii
State of California. No, sir, not even that e
vote, either directly himself, or indirectly tl
through iiis friend upon this floor. Sir, I take n
it that if Mr. Thomas Butler King did know d
and had a right to tell us what were the o
opinions of the Congress of the United States, x
it would be for us to consider r: ther what' v
our own opinions arc, than those of Congress,
upon this subject. Therefore 1 exclude the t
whole testimony as totally irrelevant to this h
matter." d
Thus, it seems, that the opinions and dis- J
courses of Mr. King, if not that of others, s
did influence and control the action of the r
California Convention upon this most delicate t
subject. a
It is a great mistake to suppose that the i
highest interests of California require her im- i
mediate admission into the Union. It has 1
been announced in the other wing of the 4
Capitol, that this new State must for a time j
be supported by the Federal Treasury, hav- [
ing no revenue of her own. It is the first |
instance of such a pretension, and is of evil )
example. States ought never to be depend- f
ent on the Federal Treasury. a
If the report of Mr. Jones be correct, that [
there never was a surveyor in California, t
then it is true that there is not a com- t
plcle title in that country; for it is a notorious <
fact, that in no part of Spain or Mexico did
the final title issue, until after survey and ju- ,
dicial possession. All these titles, on this ,
statement, are inchoate, and must depend for |
validity on the future legislation of Congress. |
If the statements of Mr. Jones are accurate, ,
fItnrn ic nnf n tills* in Pnlifnrnia flint will ciicu a
tain an action of ejection. They are not j
legal titles, but mere equities, requiring the
action of Congress, which in good faith their
owners are entitled to demand. The interests
of California require legislative,action on
these subjects far more than present admission
into this Union.
Whatever may be the difference of opinions
as to the extent of the power of Congress
over the municipal and internal affairs of a .
territory when organized, there can be no1
well-founded doubt that the right to authorize
a State territorial government is exclusively
in Congress. Until, the ter.itory becomes
a State, the light to govern is in the
United States, and not in the people who
happen to be present or located on the public
domain, in the case of Florida, the Supreme
Court of the United States declared,
that " perhaps the power of governing a territory
belonging to the United States, which
has not, by becoming a State, acquired the
means of self-government, may result necessarily
from the tacts that it is not within the
nn,l 11? ISVtl aT ftntf r\1 ?-4 IA lllor Qtoto
jlVWOI U1IU |Ul I?UIV/IIVII ui UUJ |>UI uvuun t7vin?. ^
ami is within the power an?l jurisdiction of the i
United States. The right to govern may :
be the inevitable consequence cf the right to
acquire territory. Whichever may be the
source whence the power is derived, the
possession of it is unquestioned."?(1 Peters,
542.)
I do not admit that under this power Congress
has any authority to destroy private
property. This cannot be done either in the
States or Territories by the Federal Government,
because it is restrained by the Constitution.
Hy express provision of the Constitution,
it may take private property for public
use, first making compensation thcrclor.
It has no |?ower to lake or destroy private
property to promote any general purposes of
public good, or any real or mistaken views
of human philanthropy. The Federal Government
has no such mission. In the Territories,
Congress may remove obstacles to the
enjoyment of property, by giving remedies
and salutary police regulations, but it can
neither exclude nor destroy it'. The Federal
Legislature is limited in its exercise of
I power over property. Congress having in j
' itself no authority to exrludi or destroy pro- \ s
! |?erty in the Territories, ran d'dcgiitr. tin such
power to tin: territorial icgidatuies. It can*
not confer that on another which it docs not
possess itself. If a Territory is within the
|K?wcr and jurisdiction ol the United States,
it is exclusively so uuld it acquires a new |
sovereign; and this cannot he done unless
admitted as a State into the ( nioii. How,
can there constitutionally he a Stale on the I
public domain within the limits of the United
States, and yet outside of the Union, and j
beyond the control of this Government ? I
The idea is a solecism, a contradiction in
terms. It is not a State, in the American!
sense, for any purpose, until it is embraced;
by the Union. As the power to admit new 1
States is entirely with Congress, there is no
other tribunal which can authorize a government
to be formed with a constitution preparatory
to its admission into the Union as a
State. Tha sovereignty of the Territories
must either reside in this Government or the
people of the States. If such were not the
case, it would be in abeyance, until a terri
rHERI
II-WEEKLY.
^ton, Tuesday, June 25,
>ry acquired by the United States was peo- I
led. The Supreme Court has decided that v
u acquisition of territory is also an acquisi- t
on of the sovereignty over it. If this be r
>, it cannot be a divided sovereignty, partly r
i the United States, and partly in the peo- t
le of the Territory. It resides exclusively ?
1 the United States, and no government o
rected in the Territories, in time of peace, t
an have a legal existence, unless it has i
een established or authorized by Congress, c
Previous to the call of the convention at r
lonterey, there was a provisional govern- i
lent in California, organized by the author- t
y of the United State#..jluring wa,'? a?d 1
diich was continued after peace by the con- t
_r il _ a: _r xi _ tt. 'i-.i ct.i__
eni 01 me rjxecuuve 01 me unueu oiaies. j
t was a government of necessity, with a i
igal commencement, which could not be
uperseded without the authority of Con- '<
;ress. It has been destroyed by an illegal i
nd revolutionary movement, without the i
uthority of the United States, constitution- 1
lly expressed. The action of General Riley, '>
nder which the convention was assembled <
/hich framed the present constitution of Cali- i
srnia, has been disavowed by the Secreta- i
ies of State and War of the last administraion,
the only officers from whom an order <
ould have proceeded to sanction his course. '
'he convention had not even the m ?rit of a 1
pontaneous revolutionary movement pro- 1
eeding from the people. It had its origin 1
n the proclamation or military order of Gen- <
ral Riley, of the 3d of June, 1849. By <
his order he called a convention, fixed the
umber of delegates, and the boundaries of t
istricts. Thus were the highest attributes i
f sovereignty arrogated by this military :
ommandant, at a remote position, in open
iolation of law and the Constitution. '
Although the convention which framed <
he constitution of California was convened ]
>y General Riley without Executive or- <
lers, he states in a proclamation of 22d oi s
une, that it was confirmed by instructions i
ubsequently received by the steamer "Pa- s
lama." Thus was this convention assem- i
iled, contrary to law and the Constitution; 1
ind to the unauthorized Government which <
t provided, was delivered over the then exsting
government of California by General 1
Uley, with the remarkable declaration that i
'whatever may be the legal objections to I
Hitting into operation a State government 1
irevious to its beiug acknowledged or ap- I
iroved by Congress, these objections must
rield to the obvious necessities of the case ; i
or the powers of the existing government
ire too limited, and its organization too imlerfect,
to provide for the wants of a counry
so peculiarly situated, and of a populaion
which is augmenting with such unprecedented
rapidity."
If such action is authorized by the Con
ititution of the United States, what be:omes
of the doctrine of Jthe Supreme Court,
that the right to governnhe Territories is in
:he United States? I think it quite demonitrable,
as a legal proposition, that this.acion
in California is not merely irregular,
iut that she cannot be admitted into the
Union, under her present constitution, with>ut
another convention authorized by Congress.
I should rejoice to see this action
tad, the slavery question settled, the limits>f
California adjusted, and her worthy repesentatives
admitted to their seats.
1 proceed to state some objections to the
tresent admission of that State.
The Constitution of the United States
leclares, that " new States may be admitted
nto the Union." Now, what is a State, in
he sense contemplated by the Constitution
>f the United States ? If Cuba, without
iny previous sanction of Congress, were to
present herself here with a constitution
eadv formed, would she be a State which
ould legally be admitted into the Union ? It
leems to me that the previous assent of j
Congress would be necessary to the creation |
>f a State out of a foreign country, which
lad not been under the laws of the Federal!
Government by virtue of territorial organi- j
'.anon.
The case of Texas has been cited as fur- '
lishing a precedent for a different rule of
iction ; but its authority is clearly the other
vay. By the joint resolution of annexation,
Jongress gave consent that Texas might be
jrected into a State, in order to its admission
nto the Union, by means of a convention
>f delegates chosen by the people. This
invention was assembled, and the constitu- '
ion formed by authority of the Congress of
he United States, as well as by the legisla- !
ive department of the Republic of Texas. As
he first admission of a foreign State into
he Union, it is a strong precedent to prove 1
lie necessity of a previous consent in order
;o legalize the preparatory action of forming 1
1 government which is to enter the Union as
i State. Obviously, no foreign government
las a right to proceed to the election of Selators
and Representatives until its admislion
into the Union. No political organizaion
has any warrant for this until it is inlide
of the Union ; for it is by virtue of the
Kederal Constitution, as well as of the
Ticmbcrship of the Union, that a State has
his privilege.
The admission of Vermont, Kentucky,
Hid Maine are not exceptions to this rule, inrsmucli
as they were f rinedoutofpre-existing
States; and, in that case, the Constitution
;outcniplates that the initiatory step shall be '
aken by the old States, and that the appro
nation of Congress should follow; which, in
heir admission, was the course pursued, the 1
espective laws of admission defining their
boundaries.
It is worthy ofobservation that in no case '
ins a State been admitted without the previous
consent of Congress to form a consti- I
ution and State government, unless such
Stat? had previously been in the condition i
if a territory, and had her boundaries de- I
ined by an act of Congress during her ter- i
itorial pupilage. It is difficult to perceive I
io\*,on principle, it could otherwise be done, I
\ State must have identity, to which dc- J
initc boundaries arc indispensable. These i
boundaries must be established by the
United States, if the State is carved out of
the public domain. Who but the proprietdr
:an M up the limits of his own estate,
when he parts with a portion of it? The i
\ PRI
1850.
Jnited States have clearly the right to say
vhere shall be the limits of a new State to
>e erected out of its own territory or donain.
Naturally, before an? political comnunity
enters on any portion of this domain
o erect it into a State, the consent of Congress
should be had,and, as a general course
>f legislation, such has been the practice of
he Government. The late treaty with Mcxco
evidently contemplates that the Congress
>f the United States will move first in this
natter, and that, until it does act, these teritories
will be governed by the authority of
he United States. As to the time and
netUod of admission, the language of the
reaty is peculiar and quite different from the
irovisions by which we acquired Louisiana
?nd Florida.
The treaty with France of 1803, for the.
icquisition of Louisiana, provides that " the
inhabitants of the ceded territory shall be
ncorporated into the Union of the United
States, and admitted, as soon as possible,
lccording to the principles of the Federal
Constitution, to the enjoyment of all the
rights, advantages, and immunities of citizens
of the United States."
In the treaty with Spain, of 1819, it was
Jeclared that the inhabitants of Florida
' shall be incorporated into the Union of the
United States, as soon as may be consistent
with the principles of the Federal Consti'ution,
and admitted to the enjoyment of all
the privileges, rights, and immunities of the
citizens of the United States."
The treaty of Guadalupe Hidalgo declares
that " Mexicans, who in the territory aforesaid,
shall not preserve the character of citizens
of the Mexican Republic, conformably
with what is stipulated in the preceding
article, shall be incorporated into the Union
at the United States, arid be admitted at the
proper time (t? be judged by the Congress
at the united btaesjto the enjoyment ol
all the rights of citizens of the United States,
according to the principles of the Constitution;
and, in the mean time, shall be maintained
and protected in the free enjoyment of their
liberty and property, and secured in the free
exercise of their religion without restraint.
Here Congress is given a wide discretion
by the treaty, which is the law of the case,
unless it can be shown that it conflicts with
the Constitution. Congress is made by the
treaty the exclusive judge of the proper time
For the admission of these people into the
Union. It is a fair inference from the language
used that the commissioners contemplated
that Congress would say to them
when the proper time for admission had arrived.
It was not the people of the ceded
territory, but Congress, who were to judge
of this matter. The reaso.i for'this provision
must occur to every one. At the period
of the negotiation of this treaty, the mines of
California were unknown ; the mass of the
population were Mexicans and pueblo Indians,
and they(were to have a year to determine
their citizenship. It was a very unpromising
material out of which to form
American citizens, capable of working our
representative system. Mr. Trist knew
their character well, and hence the provision
in the treaty which gave to Congress
unlimited control over the time of their incorporation
into the Union, and made the
previous action of Congress a condition precedent
to their formation of States in order
a. tt_: t> : i.
iu an auimaoiv/ii mil/ uic u iliuu. II IS UUVIous,
from the language employed in the
treaty, that the commissioners contemplated
a territorial government for these countries
previous to their admission into the Union.
Until admitted into the Union, the treaty
express'y guarantees to these people their
liberty, property, and religion, which shows
that an intermediate territorial government
was contemplated'by the commissioners.
Admitting, for the sake of argument, that
the legal difficulty of the want of previous
assent of v\ihigress to the formation of this
State could figured by subsequent legislation,
still there is another defect which is
radical, and goes to the nullity of the very
basis of the California constitution. The
delegates who formed the constitution itself,
were not elected by citizens of the United
States with a legal and fixed domicil in California,
and a large portion of those who voted
for its ratification were laboring under
the same disability. The Constitution ot
the United States, wherever it speaks of
federal numbers, looks to citizenship and
domicil. The cit zens of one State cannot
be enumerated in another. Citizens domiciled
in one State cannot vote for members
of Congress in another. To maintain
the reverse would be ta overthrow the entire
representative theory of the Government,
and destroy the State system. The people
of Ohio have no power, under the Constitui:
?
nun, tu i'uiiiiii iiiu ciuzeiiH ui vxemucKV 10
be enumerated or vote for President or members
of Congress in that State. If they had
this power, the federal slave basis could be
transferred to the free States, and the same
federal numbers counted in different States.
The exercise of the right of suffrage touching
federal rights, under our system, cannot be
separated from domicil. People domiciled
in the States have no right, under the Constitution,
to participate in the formation of
a government for a new State in one of the
Territories of this Union, or to vote for members
of Congress to represent it. Their political
rights, in this respect, arc fixed in and
pertain to another jurisdiction. That the action
of California violated the law and the
Constitution in this respect, is evident from
the following provisions established by the
proclamation of General Riley, on the 3d of
June, 1849:
44 Every free male citizen of the United
States and of Upper California, twenty-one
years of age, and actually resident in the
Jistrict where the vote is offered, will be entitled
to the right of sulfrage. "All citizens
af Lower California, who havcMieen forced
to come to this territory, on account of ha,v-',
ing rendered assistance to the Americatf
troops during the recent war with Mexico,
should also be allowed to vote in the district
where they actually reside." '
In the first place,, this proclamation is a
direct violation of thft laws of naturalization
of the United States. Those citizens'
of Lower California who had been forced to
; .. . . . ? -
sssn
F
_
^ ' L"- *
No. 1.
i i ? e
remove because they had assisted the United
States troops, were not thereby naturalized, w
nor were they embraced in the provisions of di
the treaty of Hidalgo. Under the laws of 111
Congress on this subject, they are aliens, ^
and yet they have been permitted to vote c
and aid in excluding- the South from this th
rich and common heritage tof the Union.
The next objection is, that lor citizens of the 0j
United States to vote for delegates, citizen- si
ship in California is not required, but mire
rett'uU'.nce. * ?
. With the exception of the admission of the new ?
States formed out of the older States, and the case
of Tvxus previous to admission, there has always
been an act of Congress for the territory, fixing .
boundaries and reguluting the l ight of suffrage. ^
At the time the convention was called at Mon- ^
terey, there wus no law of suffrage existing in
California. The Mexican law, which fixed majority
nt 25 years of age, and wus in other re;
spects greatly restricted, was not pretended to he P
followed by General Riley. The reason must be &
obvious. As a purely political regulation, deter- ?
mining the relation between the citizen and his ?
Government, according to the writers on interna- ?
tional law, as well as the English and American a
decisions, this rule ceased on the transfer of Cali- 81
fornia to the United States. The language of the "
Supreme Court of the United States is: "The /
same act which transfers their country, transfers
the allegiance of those who remain in it; and the 11
law, which may be denominated political, is ne- ?
cessarily changed, although that which regulates jj
the intercourse and general conduct of individuals ^
remains in force until altered by the newly created 11
power of the State. e.
The right of suffrage is not a natural right; it is "
a positive institution of society, confided to a cer- n
tain portion or its members for the good of nil. ?
The power to regulate it was usurped by the
proclamation of General Riley, and was an abuse" T
of authority without a parallel iti the history v
of this Government. The convention appears to r
have been aware of this defect in the very basis 1
of their proceedings, for the constitution which 11
they framed declares the qualification of voters, ?
and provides that " every citizen of California, s
.i??i? i... .v. c
ucvuutu u icgoi tuici ijy iaia LUiioiuuia'n9 ?nu
every citizen of the United States, a resident of ^
this State on the "day of election, shall be entitled '
to vote at the first general election under this con- f
stitution, and on the question of the adoption
thereof." Thus no domicil was required to vote 1
for the adoption of this constitution; nothia* but r
simple residence on the day of election. I main- v
tain that no one has a right to vote 011 the oi^jani- a
zatinn of a State, unless he its domiciled within the 0
territory at the time. 1 denv the right of strangers 0
and denizens to exclude tine South and South- ?
ern property from one of the territories by erect- 11
ing it into u State orgnnizaition. That cun be T
effected only by citizens of tiie territory actually *
domiciled, who are forming a State government
under which they are to live. It is not the province
of foreigners and strangers without domicil, r
or any intention of a permanent residence, who, ?
in contemplation of law, stilj retain their former i
legal domicil, and have acquired no other. For the H
rule of law is well settled, that the domicil of ori- N
gin obtains until a new one is acquired, and it ^
cannot be acquired without :ui actual change and j
an intention to abandon the former domicil and (
acquire another. ,
Resident is defined: "One who resides or dwells j
in a place for some time. A. B. is now a rtriieul <
of London." Judge Story informs us that " two
things must concur to constitute domicil; first, |
residence, and secondly, intention of making it the ;
home of the party. There must be the fact, and
the intent." <
" If, therefore, a person leaves his home for 1
temporary purposes, but with an intention to return
to it, this change of plja'atip not in law a
change of domicil, * * for it is not the
mere act of inhabitancy in a place which makes it
the domicil, but it is the fact, coupled with the intention
of remaining; there must be animo manendi" j
(Story 011 Co 42.) ,
" A persoi -stive citizen of one State, ,
never ceases r until he has ac- ,
quired a ne * 'Story on {
Constitutic ,
If perso
of the ail 4
vote, it follows w.
to make it their prrnuu,.
institutions and policy. Unrtet ...
frage, the citizens of other States on
election might be brought into the new State ..
sufficient numbers, and for the express purpose ^
of controlling its domestic policy. The injustice H
and illegality of excluding the South IVom the c
Territoties by such a course of proceeding under jj
the pretence that it was a State action, or people 3
of u Territory settling the question of slavery for r
themselves, is too manifest for disputation. y
There can be no validity in the action of a convention,
the delegates to which were chosen, and g
whose constitution was adopted, by voters who ?
were not citizens of or domiciliated in the State. ?
I undertake lo.wiv, that where citizenship was ft
necessary to the jurisdiction of a court in Cali- tj
fornia, not one-fourlh of the voters for this con- t|
stitution could have maintained a suit in the judicial
tribunals. It is doubtful whether this portion f
were there for the purpose of making it their home, 1
and without this intent, as the jurists prove, they -j
could not urquire a donticil. Tliey were there ,
temporarily to dig gold, and with the intent to re- v
turn as soon ns they had collected s certain quan- p
tity of the glittering dust. It is no answer, in a legal
sense, that inany would change this view; the in- c
lent to rrmmn wns necessary to donticil and citi- p
zenship. Without this intention, they had no p
right to participate in the formation of a State go- J,
vert intent, and to prescribe institutions to those u
who were really resident citizens of the country. A
Under the rule of their constitution, citizens of 0
other States might have voted on the adoption of n
the constitution on the day they arrived in San |,
Francisco, and departed for their homes on the lt
following morning. ei
Sir, it is not true that this constitution here pre- u
sented wns fohned by the jteujtle of Californiu. It ?|
is not their sense. It is the work of aliens, and n
the-citizens of other States of the Union, without
donticil or citizenship in California. It was n |,
usurpation of political rights clearly opposed to j,,
the principles of the Federal Constitution nnd the v
spirit of our Govemmant. It is well known that
tne great innss of the real citizens of California, ?]
who were mude so by the treaty, or bad made al
themselves such by residence, were entirely over- jj
slaugbed by this action of adventurers and stratigers.
The great majority of the citizens resided Hl
south of 3Go 30*, and were unanimous in favor of 4
a territorial government. Their wishes were over- 1
ruled and defeated by a horde of new-comers, the t|
men of a day, whose baggage had scarcely been
triinaferred Ironi the shipping to the shore. It j
is notorious that the people south of that line 0
were, in the sequel, induced to vote for the 0
State organization only to fVec themselves froin j
present tlimculty, ana uiiuer assurances that it wax cj
the only hope of civil government. Since the ~
agitation here, a portion of them have reiterated ?
their choice for a territorial government. ,j
Hut, air, such an the population wai, the number, al
at the time of the formation of the Constitution, t|
wax not enough to entitle them to a State govern- B|
inent. ? tl
The Ntatement of T. 0. Larkin, esq., navy ^
agent at Monterey, aa to the population of Call- (|
fornia, in published in the American Quarterly tj
Register and Magazine. "The population of M
California in July, 1646, wax about 15,(XX), excluaive
of . Indiana; in July, 1H49, it is about 35 to t<
40,000." tt
The number of inhabitant* in a territory to en- w
title it, under the Constitution, to a member of
Congress and to admiaaion under thp present fed- r
eral Twisje, ia 70,600. Hf-fore a Slate can be ad- [
miftetl, m a State government legally formed, it fl
SHunt have thin number. It cannot form a State t
government- atrd then awaft for the steamboats to t
bring the. population. If a territory could do this, r
the one hundred who first arrived in a territory, t
might form a State government that would control ,
its institutions and give them a lasting character. (
There is still an insurmountable objection to
the admission of California under the present Con- ,
I atitution, which haN been urged with great ability ,
[ in another place. It i* the absence in her Constitq- ,
*
mt m
'Tb? Southern Frt?s,"-?ri-weekly I
i published Oil Tuesdays^ Thursday. and Saturdays I
"The Southern PreM,"?Weekly, I
b published every Wednesday. I
advertising rates. i
or one square of 10 Lines, three insertions, |1 00 I
? every subsequent insertion, I
Liberal deductions made on yearly advertising. I
Individuals may forward the amooat of their I
ibscriplions at ourrii-c. Address, (poet-paid) I
ELLWOOD FISHER, I
Washington City. I
on of the recognition of the title of the United I
tales to the public domain within her limitnaodtlic I
ant of a compact not to interfere with the primary I
sposition of the soil. The usage of the Govern- I
ent demands such a provision, ft ia the exercise of I
high sovereign power, and cannot be had without
ie call of another convention, because the present I
onstitution of California does not confer it upon I
ie legislature. Without eucb a atipuhdion, the
nited States cannot preserve any title to the puis- I
: lands and mines of California. The title- -of I
ie government to lands within another, is in con- I
stent with the sovereignty of the latter, and can I
llv be maintained, with the consent of the State, I
i the nature of a compact. Such has been the uni- I
rm construction of Congress, of our Constitution, I
id system of State sovereignties, in regard to this I
implex subject. ( T|pk object cannot be secured I
y the simple leg4#latjop of Congress. It must I
rve the form anu sMction of a compact, which I
in be consummated only by the asseut of Cali- I
>mia. I
Since the Constitution of California must return I
i the people for further action and new and im- I
ortant provisions, it becomes the duty of Con- I
ress to adjust her boundary and curtail the vast I
xtent of this Pacific empire. There ia great dan- I
er in permitting one State to engross all the porta I
a the Pacific, especially when the remoteness I
nd isolated condition of that country ia con- I
idered. To say nothing of the political hazard I
f our system, urising from combinations among I
irge and disproportionate States, California, with I
er vast limits, presents other subjects of serious I
pprehension. She will be tempted to a separate I
xistence by the wide extent and productiveness of I
er mines?by the still richer treasures that will I
ow from Eastern and Indian commerce. From all I
hese causes we may look for hostility to the rev- I
nue and commercial system of the Union. All I
lie great commercial ports of the Pacific should I
ot lie left under one local jurisdiction. San Diego I
nd San Francisco ought to be in different States, I
or many and cogent reasons of policy. In the I
irogress of events, the Government of the Union I
rill have slight hold upon that extensive isolated I
egion, with its great mines and western trade, if I
he country is all embraced by one State govern- I
nent. It is our policy to strengthen the bands of I
he Union there by the erection of two or more I
Itates, the multiplication of seaports, and the I
rention of commercial rivalries. If you admit I
California with her present limits, the bay of San I
Vancisco will engross nearly the whole of the I
oreign and domestic trade of the Pacific. I
It is apparent, from the report of Mr. King, I
hat the country possesses mucn more n^iluminal
power than i* generally supposed. Its mines
rill fill tbe country rapidly witn a large population,
population composed, in a considerable degree,
r foreigners, with very little sympathy with our
cn Government. It is not the part of wisdom to
rganise this State in such a manner as to tempt
to inhabitants with the advantages of a separate
lolitieal existence, independent of tlie American
Jnion.
THE DISMEMBERMENT OF TEXAI.
In opposing the compromise of Mr. Clay in its
resent shape, I desire to speak of that illustrious
talesman with all respect. By his lofty pntriotsm
and great intellectual exertions during the ;>re>ent
session of Congress, he has shown himself,
vhat he has been often termed, the Chatham of
Vmerica. But I urn constrained to say, that the
Mroviaioiu of this bill in relatiou to Texas are toall
y inadmissible as a Southern measure, glaringly
inujst to that State, and destructive to her highest
interest, to her security and prosperity as a slave
State.
The Senate bill declares, that all that portion of
the territory of the United States acquired from
Mexico by the treaty, concluded 2d February,
184S, and not included within the limits of the
State of California, nor within the limits of the
Territory of Utah, as prescribed in this act, be and
the same is hereby erected into a temporary gov- .
eminent, by the name of " the territory of New Mexico,"
with a provision that Congress may
hererffter divide it into two States.
This bill is accompanied by a report, with the
following(statement: "The committee beg leave
Text to report on the subject of the nortliern and
western boundary of Texas. On that question a
freat diversity of opinion has prevailed. Accordng
to one view of it, the western limit of Texas
van the Nueres; according to another, it extended
' ? Rio Grande, and stretched from its mouth
* " The report then atates, that the
t ?d on an amicable adjustment
"Ury: "The northern
- follows: Begin -ailed
El
"wl
?y si... _
. point whe>.
roaaea lied river, ?.
he line designated bet wee..
dexico, and the same ungle in Uu
itory set apart for the Indians by tiu
Itatea."
In the first place, the bill and report taken toethef
throw discredit and doubt upon the whole
,-estcrn boundary of Texas. They cast doubt
jioil n jniruun w? ui? u?iv WW oiiu uv?.i?
?r a considerable period, under the quiet jurisdiclonof
the officers and government of Texas, from
lie mouth of the Kio Grande to El Peso.
Tlie Senate bill, it will be perceived, pushes a
re* line, down into the immediate vicinity of El
'ato, on the (Treat military road from the coast of
Vxas to the Pacific. It opens a highway for our
laves into New Msxico, Utah, and California,
rith every means and facility for escape from the
rontiers. Such a line cannot fail to render slave
roperty in western and northern Texns, and esneially
on Red river, insecure, and seriously affect
a value. The salubrious climato, rich soil, and
roductions of Texas, together with cheap lands,
nvite emigration, and offer great inducements to
lie planter. Her capacities for producing sugar
nd cotton are almost incalculable. She must relive
a large portion of the negroes of the more
orthern slave States, unless emigration is retarded
y an unjust nnd, to the South, unwise adjustment
r this subject. If Texas is true to her own interwts,
she never will consent to such a boundary,
lien the resolutions of annexation guarantee
lavery to new States to be formed out or her teritory
south of 3G degrees 30 mintues north latiide.
I low can she consent to permit slavery to
c abolished within her limits to the 33d degree of
ititude, with the inevitable consequences in full
iew ?
This bill further provides: ' I f the State ofTexas '
liall refuse or decline to accede to the preceding
rticles, they shall become null and voia, and the
United Slates shall be remitted back to all their
(rritorial rights, in the same state and condition
* if these articles of compact hod never been tehered
to tha acceptance of the State of Texas.*'
'be amount to be paid in cast Texas accedes to
>c proposition i* by the hill left blank.
It will be perceived that the Territory of New
lexico is, by this bill, to be created with or withut
the consent of Texns. It will of course be
rganized according to its ancienf limits, and in
erogation of the rights of Texas. It will be
laimed that the bill legalizes the present military
overnmeni in Sante Fe. It will give the appearrice
of law to a systematic resistance to thejurisiction
of Texas, nnd before the matter can be
djuxted, practically determine the question against
te State. It will produce civil war and moodlied
between the people of Santa Fe and Ate autorites
of Tepas. It leaves the State no ehbicw
etween such a calamity and the acceptance of
le money which may hereafter be inserted in
ic bill. it includes country on the east itever
ithin the limits of New Mexico^ and" transfers
. to the new territory. It triage* no provision as
> the future condition of the foreign and hostile
ribes of Indiana now roaming over northern and
western Texas. . ?*
In relation to the people of "NeW Mexico pettier,
which is now. situated on the West bftnlcOPthe
tio Grande, the provisions of* th*'trtdty ' Itfth
dexico are complied with if they ar* Mmftted
nto the Unipn in any Stale. They have ftotltmrtto
o their ancient limits, any mors than had the *eW?
?lc of Louisiana. Rut this ftilf transfers territory
p them on the south and east, nbt1 fMbraced
vithin the leeal limits of New Mexito|'a? ft
txisted under Mexican rule.
Up to the present time, ,thd'actions Of alltho
lepartmcnts of this Government has' sisWHii Hie
ilaim of.Texaa to the Rio Grande.in ita fa Rest
extent. Individuals, a ftw members of Coftfrtw,
a ..*!