The southern press., June 24, 1850, Image 1

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?111 wood Fisher 4k Edwin De Leon.
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VeL 1. Washington, Monday, dune 94, 1?&0. No. 7.
UWICE, renusylvauia Avenue south side, between
3d and 4| streets.
99BB9SBS9B9EESSeS9SSSSS99SBfi99n99ni
SPEECH OF
Hon. . B. HOWARD, of Taxes,
Against the admission of California, and the dismemberment
of Texas?delivered in the House
of Representatives, June 11, 1(150, in the Committee
of the Whole on the California message.
The House being in Committee of the
Whole, and having under consideration the
President's message in relation to the admission
of California?
Mr. HOWARD said:
Nothing, Mr. Chairman, but the deep
interest which my immediate constituents
and the State of Texas have in these questions,
could induce me to claim the attention
of the Committee at this late period ot the
discussion. The time has as lenjrth. arrived
when the peace and welfare of this country
requir3, not a compromise, but justice to
the South, and an observance of constitutional
requirements and official oaths for
their support. The South demandshe* constitutional
rights, and a just share in the
benefits of this Government: no other rom
promise is required, or will secure tranquility
to the country.
I am not, sir, about to enter into any abstract
speculations upon the nature and character
of slavery. I am coutent to treat the
institution as it was regarded by the fathers
of the country who framed the Constitution
under which we here assemble, as an existing
relation of society, drawing to itself
certain fixed, and, in theory, firmly established
civil and political rights. What the
greatest and purest men that the world has
ever seen?a Washington, a Franklin, a
Hamilton, and a Madison?guaranteed as a
right, cannot be proved sinful by the latter
day saints of abolition and free-soil, however
men may differ as to its character in
other respects. Neither shall 1 so far follow
the hackneyed examples of bad taste, as to
participate in the sectional recriminations
which have been so freely indulged in by
speakers from all sections during this bebate;
they are beneath the dignity of the subject,
and unworthy of the American Congress.
Sir, when our forefathers, the men ol the
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
administered in its original spirit, and the
letter of the Constitution complied with, let
the fact be proclaimed, and the legitimate
consequences follow. But it is not in candor
and honesty to appropriate the advantages
of the compact, and then refuse to
abide by its obligations and express stipulations
; the performance, like the benefits,
must be mutual by all the contracting parties.
It cannot be disguised, that attachment
and loyalty to the Constitution are, in some
sections of the Union, greatly weakened,
and in danger of being entirely destroyed.
During the present session of Congress,
petitions have been presented from free
States asking for a dissolution of the Union,
on the ground that the petitioners could not
conscientiously remain in a Union, the Constitution
of which guaranteed slavery. A
very considerable party openly took the
ground, that the Constitution i3 opposed to
the divine law in this respect, and must
yield to this new rule of political faith. It
is a novel revelation, and above the word of
God, for the Scriptures, as well as the Con
stitution, Tecogmse slavery, anu pronounce
it legal.
It was satisfactory to hear this disreputable
doctrine denounced by the distinguished
member from New York, (Mr. Duer,) as
well as by the eloquent member from Massachusetts,
(Mr. Winthrop,) although the
value of their reprobation was very much
weakened by certain phrases which they let
fall about habeas corpus and jury trial. It
cannot be necessary to remind gentlemen, as
intelligent as they are, that the difference
between one who openly and boldly sets the
Constitution at defiance, and one who admits
its obligation, yet evades it by dexterous
legislative devices, as to the remedy, is
scarcely worth the consideration of the casuist.
The truth is, Mr. Chairman, the Constitution,
in relation to the restoration of fugitive
slaves, has become a dead letter, and
so, I believe, it is destined to remain. This
condition of things is calculated to awaken [
the most lively apprehensions. The whole I
foundation of the American theory ol gov- j
ernment is the respect and attachment of
the people for their written Constitutions.?
When they cease, the representative republican
system of government is at an end.?
If the people of this country once embrace
me opinion mai mere is a uivine law, or;
any other role of government above the |
sanctions of the Constitution, and the obli- j
gations of an oath, an end of republican!
forms will soon follow.
No one can read the acts of certain State
Legislatures, prohibiting the restoration of
fugitive slaves, opposed, as they are, to the
Constitution, the law of Congress, and the
decisions ot the Supreme Court, without
fueling his pride as an American citizen humbled
in the dust.
After the close of a brilliant war the government
acquired, by treaty of cession, an
extens vc and valuable country from Mexico.
This acquisition was the result of com- ;
mon blood and treasure, freely expended bv j
all section! of the Union. On obvious
principles of equity and justice this public 11
domain, thus belonging as a common fund '
to the whole country, ought to be open to I
the citizens of all the States, with their i
property. If there is such a difference be- i
tween the institutions and property of the i
slave and non-slave States, as to make a I
common occupation by their citizens repug- i
nant to the interests or feelings of those i
emigrating from different sections, or inex- , 1
pedient for any reason, then the time-hon- j I
ored principle of a divison of estate, by i
proprietors who cannot agree to occupy in
common, should at once be the rule of ad- j
justment. If it cannot be occupied in com- 1 i
mon, the territory should be divided by i
some equitable line of partition. : |
I am not wedded to any particular line of, i
division. 1 am free to say that, twelve
months ago, I would not have voted for the
Missouri Compromise line ; but the active
intervention, of the Executive and others in
(the affairs of California, and which will be
continued as to the other Territories il this
question is left open, render a settlement,
even by this line, desirable at the present
time. 1 would be willing for a division of
the Territory by parallels of longitude, and
would prefer the bill of the honorable member
from Maryland, (Mr. McLane,) which
proposes to extend the Texas boundary to
the Colorado and the Gulf of California,
giving to the State of California the
balance of the country. This would fix
the institutions of the whole Mexican acquisition,
and leave no further territory for
the Wilmot Proviso and the legislation of
Congress.
(f tfrfT* be atUviakm of the coun
try, then the Mexican law ought to be formally
repealed. This would not be an establishment
of slavery, but would leave the
question to stand merely upon the Constitution
and non-intervention. Congress has
no power to destroy property, or exclude it
from a Territory; but it may remove obstructions
and obstacles. If there be any
Mexican law excluding the manufactures or
mechanic arts of the North, or tha slave
property of the South, it is the duty of Congress
to repeal these laws. I might go further,
as a question of right, and maintain
that there is a broad and obvious distinction
between the power to create, or establish a
piece of property, and the power to destroy.
Congress ought to settle this matter, and
place it beyond doubt. The inclination of
my own mind is, that the Mexican law, in
relation to slavery, is superseded by the
Constitution; yet it is a question in contest,
and, as long as it remains in that condition,
no one will think of taking slaves into these
Territories. No prudent lawyer would advise
his client to that couise; hew, then,
can he consistently vote for any settlement
which does not secure the right, and place
the emigrant beyond the harassment of
vexatious lawsuits in relation to this species
of property? The present condition of the
law is the subject of too much uncertainty
i. i r? _..i? n ._:ii t iu~ ;
iu uc a sate iuic. 11 nut jiicvciu uic cmi?
gration of slaveholders, and in its practical
results, exclude the South from any fair partition
in the advantages of the common Territories.
Let there be a removal of all
obstructions, in the shape of Mexicau Jaws,
or an acknowledgment of the right on one
side of a given line.
THE ADMISSION OF CALIFORNIA.
The first measure of the series is the admission
of California as a State, with her
constitutional boundaries and inhibition of
slavery. This action in California, by a
handful of men, excludes the South from the
whole Pacific coast, running through some
ten degrees of latitude, and embracing the
whole Pacific country of any real value. The
justice of permitting a few persons thus to
monopolize an empire, which they cannot
occupy, to the expulsion of one halt of the
States of the Union, cannot readily be apprehended.
Within reasonable and legitimate
boundaries, first ascertained, the people
of a Territory, when forming a State, have
a right to prescribe their own domestic institutions
; but a few men or inhabitants
have no right or power to monopolize large
tracts of the public domain for an indefinite
period of time, which they cannot enjoy, and
encumber it with their political institutions.
Such a course of action is alike forbidden by
justice and the Constitution. In the case of
California, it is particularly odious to the
States it was aimed at, from the fact that it
was accomplished through the instrumentality
of political agitations, and the interference
of Executive agents and emissaries. I know
this has been denied, and I do not now men
--i.:--* ?:*l ...... *i A_
lion me suojeci wiui mijr uiuci view mail IU
produce the proof, furnished by the California
convention, on a proposition to extend
her boundaries to the line of New Mexico,
for the purpose of excluding slavery in all
that vast region.
"Mr. SHERWOOD. The gentleman,
(Mr. McCarver,) says he is in favor of a
permanent boundary. How is he going to
get a permanent boundary by fixing it upon
the Sierra Nevada ? Is he sure that Congress
will not cut us off on the South ? If
the gentleman has that assurance from a ma- [
jority of the members of Congress, I should ,
like to see it I hope he will produce it.
In my opinion, if a majority of Congress are
determined to settle the question of slavery,
they will give us the whole territory. If it
is objected to by Mr. Calhoun, or any other
gentleman who is in favor of slavery over a
part of Calilorn^,, it will be answered that it
is too expensive 10 establish a territorial government
on the eastern side of the Sierra
Nevada ; that that territory is for the most <
part a desert waste, and may rest with Cali- i
fornia as a part of the State without being I
expensive to the people of California; but ?
that it would be quite a burden in thirty or i
forty years, at an annual expense to the i
Treasury of the United States of one or two j i
hundred thousand dollars a year?a large 11
portion of which we would have to pay our- j i
selves. In regard to preventing our admission
into the Union, bv extending the boun- |
darv to New Mexico, we expressly say to
Congress that, if they w ill not give us that, |
ik pv mav rut nv dnwn tn tkn Sierra \ev:nln
? ? ? ..
If we cut ourselves down now, gentlemen
an the other side will say we have acted
very foolishly in not embracing the whole
Lerritory, and thus throwing out of the conn- i
cils of the nation the subject of all the difficulty.
If we are admitted into the Union, i
ind beeome a constituent part of the great
Confederacy?a new star in the galaxy of
rtars?we shall always, I trust, have tfy i
tame desire to keep the Union together? !
to preserve it in pirit and substance?as we 1
had when we were residents of the older I
States. i
"Mr. SEMPLE. I feel under some obli- i
gation to repeat a conversation which has a |
direct bearing upon this matter. Th^re is a !
distinguished member of Congress, who holds i
bis seat from one of the States of this Union, |
now in California. With a desire to obtain <
! all the information possible, in relation to the
state of things on the other side of the
raouutains, I asked him what was the desire
of the people ia Congress; I observed to him j
that it was not the desire of the people of j
California to ta!;e a larger boundary than the :
Sierra Nevada; end that we would prefer;
not embracing within our limits this desert
waste to the east. His reply was, i For
God's sake leave us no territory to legislate
npon in Congress.' He weut 911 to state,
then, that the great object in crtir formation
of a State government, was to avoid further
legislation. There would be no question as to
our admission by adopting this course; and
that all subjects o( minor importance could
afterwards be settled. I think it my duty to
impart this information to the Convention.
The conversation took place between Mr.
Thomas Butler King and myselt.
M Mr. BOTTS. I have remarked it as a j
singular fact, that we have reports daily, and
almost hourly, of some important intormaliou i
that has been received from some particular i
sources; letters that have arrived, conversa- i
tions that have occurred, something that
some gentleman has heard Mr. Thomas But- !
ler King say. Now, sir, I take it that Mr. i
Thomas Butler King, nor no other single in- 1
dividual, is the exponent of the wishes of the i
Congress of the United States. He is but
one man on the floor of that Congress. He i
gives but one vote, and that vote it is not in i
his power to give whilst he remains in the i
State of California. No, sir,"not even that i
vote, either directly himself, or indirectly I
through his friend upon this floor. Sir, I take i
it that if Mr. Thomas Butler King did know <
and had a right to tell us what were the <
opinions of the Congress of the United States, <
it would be for us to consider r: ther what i
our own opinions are, than those of Congress,
upon this subject. Therefore I exclude the I
whole testimony as totally irrelevaq^. to this 1
matter." <
Thus, it seems, that the opinions and dis- .
courses of Mr. King, if not that of others, i
did influence and control the action of the i
California Convention upon this most delicate I
subject. s
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 :
been announced in the other wintr of the '
Capitol, that this new State must for a time
be supported by the Federal Treasury, having
no revenue of her own. It is the first
instance of such a pretension, and is of evil
example. States ought never to be dependent
on the Federal Treasury.
If the report of Mr. Jones be correct, that
there never was a surveyor in Calitornia,
then it is true that there is not a complete
title in that country; for it is a notorious
fact, that in no part of Spaiu or Mexico did
the final title issue, until after survey and judicial
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,
there is not a title in California that will sustain
an action of ejection. They are not
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 no
vt*^ll_fr?nnrlorl /lniikf
"v" IVU..MVM uvuui II1UI UIC Ilgllt IU clUlUUlize
a State territorial government is exclusively
in Congress. Until the territory 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 facts that it is not within the :
power and jurisdiction of any particular State,
and is within the power and jurisdiction of the
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.
By express provision oi the Constitution,
it may take private property for pubI:
^ L\ l l A * a. i r _ A
iic use, nrsi making compensaiun inereior. i
It has no power to take or destroy private i
property to promote any general purposes of i
public good, or any real or mistaken views 1
of human philanthropy. The Federal Gov- i
eminent has no such mission. In the Terri- 8
tories, Congress may remove obstacles to the t
enjoyment of property, by giving remedies s
and salutary "police regulations, but it can* J
neither exclude nor destroy it. The Fede- r
ral Legislature is limited in its exercise of t
|>ower over property. Congress having in
itself no authority to exclud or destroy pro- a
pcrty in the Territories, can delegate no such ?
power to the territorial legislatures. It can- I i
not confer that on another which it does not c
possess itself. If a Territory is within the t
power and jurisdiction ol the United States, I
it is exclusively so until it acquires a new t
sovereign; and this cannot be done unless r
admitted as a State into the Union. How I
can there constitutionally be a State on the
public domain within the limits of the United h
States, and yet outside of the Union, and v
beyond the control of this Government ? t
The idea is a solecism, a contradiction in f"
terms. It is not a State, in the American o
sense, for any purpose, until it is embraced fi
by the Union. As the power to admit new r
Stales is entirely with Congress, there is no h
ather tribunal which can authorize a govern- >
ment to be formed with a constitution pre- f
paratory to its admission into the Union as a t
State. Tha sovereignty of the Territories I
must either reside in this Government or the t
people of the States. If such were not the c
:-a$e, it would be in abeyance, until a terri- y
tory acquired by the United States was peopled.
The Supreme Court has decided that
an acquisition of territory is also an acquisition
of the sovereignty over it. If this be
so, it cannot be a divided sovereignty, partly
in the United States, and partly in the people
of the Territory. It resides exclusively
in the United States, and no government
erected in the Territories, in time of peace,
can have a legal existence, unless it has
been established or authorized by Congress.
Previous to the call of the convention at
Monterey, there was a provisional government
in California, organized by the authority
of the United States during war, and
which was continued after peace by the conseut
of the Executive of the United States.
It was a government of necessity, with a
legal commencement, which could not be
superseded without the authority of Congress.
It has been Octroyed by an illegal
and revolutionary movement, without the
authority of the United States, constitutionally
ex] ressed. The action of General Riley,
under which the convention was assembled
which framed the present constitution of California,
has been disavowed by the Secretaries
of State and War of the last administration,
the only officers irom whom an order
could have proceeded to sanction 1 is course.
The convention had not even the m^rit of a
spontaneous revolutionary movement proceeding
from the people. It had its origin
in the proclamation or military order of Gensral
Riley, of the 3d of June, 1849. By
this order he called a convention, fixed the
aumber of delegates, and the boundaries of
districts. Thus were the highest attributes
>f sovereignty arrogated by this military
commandant, at a remote position, in open
violation of law and the Constitution.
Although the convention which framed
the constitution of California was convened
by General Riley without Executive orders,
he states in a proclamation of 22d of
June, that it was confirmed by instructions
?ubsequently received by the steamer "Panama."
Thus was this convention assembled,
contrary to law and the Constitution;
md to the unauthorized Government which
it provided, was delivered over the then existing
government of California by General
Riley, with the remarkable declaration that
'whatever may be the legal objections to
putting into operation a State government
previous to its being acknowledged or opproved
by Congress, these objections must
-1 J t. A. 1 -* - r a i
yieiu u> me uuv;ous necessities o: me case ]
lor the powers of the existing government
ire too limited, and its organization too imjerfect,
to provide for the wants of a coun:ry
so peculiarly situated, and of a popula- '
;ion which is augmenting with such unprc:edented
rapidity."
If such action is authorized by the Constitution
of the United States, what becomes
of the dcctrine of the Supreme Court,
that the right to govern the Territories is in
the United States? I think it quite demonstrable,
as a legal proposition, that this action
in California is not merely irregular,
but that she cannot be admitted into the
Union, under her present constitution, withjut
another convention authorized by Congress.
I should rejoice to see this action
iad, the slavery question settled, the limitsjf
California adjusted, and her worthy representatives
admitted to their seats.
1 proceed to state some objections to the
present admission of that State.
The Constitution of the United States
Jeclares, 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
my previous sanction of Congress, were to
>resent herself here with a constitution
eady formed, would she be a State which
couldlegally be admitted into the Union? It
teems to me that the previous assent of
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- ;
sation.
The case of Texas has been cited as fur- 1
Dishing a precedent for a different rule of
iction ; but its authority is clearly the other
vay. By the joint resolution of annexation,
Congress gave consent that Texas might be j
erected into a State, in order to its admission
nto the Union, by means of a convention
>f delegates chosen by the people. This
:onvention was assembled, and the constituion
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 1
he Union, it is a strong precedent to prove 1
he necessity of a previous consent in order ;
0 legalize the preparatory action of forming (
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 iniide
of the Union; for it is by virtue of the
Pederal Constitution, as well as of the
nembership of the Union, that a State has
his privilege.
rri.? ,.i: _r ir
l lie ciuiii irtMuu Ui eiiuuiiv^ A.CIIIUUK),
ind Maine are not exceptions to this rule, in- ;
tsmuch as they were fi rmed out of pre-existing
states; and, in that case, the Constitution
ontemplates that the initiatory step shall be
aken by the old States, and that the approlation
of Congress should follow; which, in
heir admission, was the course pursued, the
espective laws of admission defining their
mundaries
It is worthy of observation that in no case
ias a State been admitted without the preious
consent of Congress to form a constiution
and State government, unless such
Jtate had previously been in the condition
f a territory, and had her boundaries demed
by an act ol Congress during her teritorial
pupilage. It is difficult to perceive
iOw,on principle, it could otherwise he done.
V State must have identity, to which deinite
boundaries are indispensable. These
>i undaries must be established by the
Jnited States, if the State is carved out of
he public domain. Who but the proprietor
an s*t up the limits of his own estate,
vh?n he parts with ? portion of it? The
United States have clearly the right to say
where shall be the limits of a new State to
be erected out of its own territory or domain.
Naturally, before any political community
enters on any portiou of this domain
to erect it iato a State, the consent of Congress
should be had, and, as a general course
of legislation, such has been the practice of
the Government. The late treaty with Mexico
evidently contemplates that the Congress
of the United States will move first in this
matter, and that, until it does act, these territories
will be governed by the authority of
the United States. As to the time and
method of admission, the language of the
treaty is peculiar and quite dillerent from the
provisions by which we acquired Louisiana
and Florida.
The treaty with France of 1803, for the
acquisition of Louisiana, nrovide* that u the
? 7 I """ "
inhabitants of the ceded territory shall be
incorporated into the Union of the United
States, and admitted, as soon as possible,
according 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
declared 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'u- 1
tion, 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
of the United States, and be admitted at the
proper time (to ba judged by the Congress
of the United Sta'esjto the enjoyment of
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 Inn- '
guage used that the commissioners contein- j
plated that Congress would say to them ,
when the proper time for admission had ar- i
rived. It was not the people of the ceded 1
territory, but Congress, who were to judge j
of this matter. The reason for this provis- <
ion 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 in- 1
corporation into the Union, and made the
previous action of Congress a condition precedent
to their formation of States in order
to an admission into the Union. It is obvious,
from the language employed in the
treaty, that thfc commissioners contemplated
a territorial government for these countries
previous to their admission into the Union.
Until admitted into the Union, the treaty
expressly 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 J
assent of Congress to the formation of this ,
State could be cured by subsequent legisk- i
tion, 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 1
Qfnfna unfit n
??1W1 u iv^ai aim I1ACII UUIIIICII III VXilllfornia,
and a large portion of those who voted
for its ratification were laboring under
the same disability. The Constitution of
the United States, wherever it speaks of
federal numbers, looks to citizenship and
dotnicil. 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 to overthrow the entire
representative theory of the Government,
and destroy the State system. The people
of Ohio have no power, under the Constitution,
to permit the citizens of Kentucky to
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
a. Gi-i i i -i '?
111 me oiuws i.ave 110 ngnt, unuer the i on- i
stitution, to participate in the formation of i
a government for a new State in one of the ,
Territories of this Union, or to vote tor mem- j
bers of Congress to represent it. Their po- i
litioal rights, in this respect, are fixed in and 1
pertain to another jurisdiction. That the ac- 1
lion of California violated the law and the ,
Constitution in this respect, is evident from <
the following provisions established by the 1
proclamation of General Riley, on the 3d of (
tune, 1849:
" Every tree male citizen of the United '
States and of Upper California, twenty-one ,
pears of age, and actually resident in the <
Jistrict where the vote is offered, will ba cn;itled
to the right of suffrage. All citizens J
)f Lower California, who have been forced t
:o come to this territory, on account of hav- r
ng rendered assistance to the American
:roops during the recent war with Mexico, j1
should also be allowed to vote in the district t
where they actually reside." r
In the first place, this proclamation is a 1
lirect violation of the laws of naturali- t
cation of the United States. Those citizens a
>f Lower California who had beeu forced to 1 *
remove because they had assisted the United
States troops, were not thereby naturalized,
nor were tbey embraced in the provisions of
the treaty of Hidalgo. Under the laws of
Congress on this subject, they are aliens,
and yet they have been permitted to vote
and aid in excluding the South from this
rich and common heritage of the Union.
The next objection is, that for citizens of the
United States to vote for delegated, citizenship
in California is not required, but mere
residence.
Willi the exception of the admission of the new
States rnrnw>(l nut nfthnnldor Sfjifpa miwI fh*> mite
of Texas previous to admission, there bus always
been an act of Congress for the territory, fixing
boundaries and regulating the right of suffrage.
At the time the convention wua called at Monterey,
there wua no l.\w of suffrage exiating in
California. The Mexicun law, which fixed majority
at 25 years of age, and wua in other reaped*
greatly restricted, waa not pretended to be
followed by General Riley. The reaaon muat be
obvious. As a purely political regulation, determining
the relation bet ween the citizen and hia
Government, according u> the writers on international
law, us well us the English and American
decisions, this rule censed on flie transfer of California
to the United Sttit.es. The language of the
Supreme Court of the United States is: "The
same act which transfers their country, transfers
the allegiance of t^ose who remain in it; and the
luw, which may be denominated political, is necessarily
changed, although that which regulates
the intercourse and general conduct of individuals
remains in force until altered by the newly created
power of the State.
The right of suffrage is not a natural right; it is
a positive institution of society, confided to a certain
portion or its members for the good of all.
Tha power to regulate it was usurped by the
proclamation of General Riley, and waa an abuse
of authority without a parallel in the history
of this Government. The convention appears to
have been aware of this defect m the very basis
of their proceedings, fbr the constitution which
they framed declares the qualifieutioii of voters,
and provides that " every citizen of California,
declared a legal voter by thia constitution, and
every citizen of the United States, a nesident of
tins State on the day of election, shall be entitled
to vote at the first general election under this ?oustitution,
and on the question of the adoption
thereof." ThuB 110 domicil was required to vote
for the adoption of this constitution; nothing but
simple residence 011 the day of election. I mainlain
that no one bas a right to vote on the organisation
of n State, unless lie is domiciled within the
rritory at the time. I deny the right of strangers
ind denizens to exclude tnc South and Southini
property from one of the territories by erecting
it into a State organization. That can be
snected only by citizens of the 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,
or any intention of a permanent residence, who,
in contemplation of law, still retain their former
legal donncil, and liave acquired no other. For the
rule of law is well settled, that the domicil of origin
obtains until a new one is acquired, and it
rannot be acquired without un actual change and
in intention to abandon the former domicil and
icquire another. I
Resident is defined: "One who resides or dwells
in a place for some lime. A. B. is now a retideiU |
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. 1 here must be the fact, aud
the intent."
" If, therefore, a person leaves his home for
temporary purposes, out ^wun an intention to return
to it, this change .< ?>lacc is not in law u
change of domicil, *' ? for it in not the
mere act of inhabitancy in a place which makes it
the domicil, but iti? the/act, coupled with the intention
of remuining; there must beanhrtOmanendi"
(Story on Conflict, 42.)
" A person who is a native citizen of one Slate,
never censes to be citizen thereof until he lias acquired
a new citizenship elsewhere." (Story on
Constitution, 565.)
If persons merely resident in a State on the day
of the adoption ot a constitution are allowed to
vote, it follows that strangers who do not intend
to make it their permanent abode may control its
institutions and policy. Under such a rule of suffrage,
the citizens or other States on the day of
election might be brought into the new State in
sufficient numbers, una for the express purpose
of controlling its domestic policy. The injustice
and illegality of excluding the South from the
Territoties by such a course of proceeding under
the pretence that it was a State action, or people
of a Territory settling the question of slavery for
themselves, is too manifest for disputation.
There can be nd validity in the action of a convention,
the delegates to wliich were chosen, and
whose constitution was adopted, by voters who
were not citizens of or domiciliated in the State.
I undertake to say, that where citizenship was
leceHsary to the jurisdiction of a court in California,
not one-fourth of the voters for this conititution
could have maintained a suit in the judical
tribunals. It is doubtful whether this portion
were there for the purpose of making it their home,
and without this intent, as the jurists prove, they
:ould not acquire a domicil. They were there
temporarily to dig gold, and with the intent to return
as soon as they had collected a certain quantity
of the glittering dust, ft is 110 answer, in a legal
sense, that many would change this view; the intent
to remain was necessary to domicil and citizenship.
Without this intention, they had no
right to participate in the formation of a State government.
nnfl In nrrsrrilie InutitnlInno tn llmo?
who were really resident citizens of the country.
Under the rule of their constitution, citizens of
other States might have voted on the adoption of
the constitution on the day they arrived in San
Francisco, and departed for their homes 011 the
following morning.
Sir, it is not true that this constitution here presented
was formed by the peojtle of California. It
is not their sense, it is the work of aliens, and
the citizens of other States of the Union, without
domicil or citizenship in California. It was a
usurpation of political rights clearly opposed to
the principles of the Federal Constitution and the
spirit of our Government. It is well known that
tne great mass of the real citizens of California,
who were made so by the treaty, or had made
thcmaelvss such by residence, were entirely overslaughed
by this action of adventurers ana strangers.
The great majority of the citizens resided
south of 3fP 30', and were unanimous in favor of
a territorial government. Their wishes were over
ruled and defeated by a horde of new-comers, the
men of a day, whose baggage had scarcely been
transferred from the shipping to the shore. It
is notorious thut the people south of that line
wsre, in the sequel, induced to vote for the
State organization only to fVee themselves from
present difficulty, and under assurances that it was
the only hope of civil government. Since the 1
sgitation here, a portion of them have reiterated
their choice for a terrritorial government.
But, sir, such n? the population was, the number,
it the time of the formation of the Constitution,
was not enough to entitle them to a State goternment.
The statement of T. O. Larkin, esq., navy
igent at Monterey, as to the population of California,
is published in the American Quarterly
Register and Magazine. "The population of
California in July, 1846, was about IS,000, exclu?ivc
of Indians; in July, 1849, it is about 3T> to
10,000."
The number of inhabitants in a territory to subtle
it, under the Constitution, to n member of
Congress and to admission under the present fed ral
basis, is 70,680. Before a State can be adni/ted,
or a State government legally formed.it
nust have this number. It cannot form a State
government and then await for the steamboats to
ring the population. If a territory could do this,
he one hundred who first arrived in a territory,
night form a Stats government that would control
ts institutions and give them a lasting character.
There is still an insurmountable objection to
he admission of California under the present Conititution,
which has been urged with great ability
0 another place. It w the absenc* in her Constjtu
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la published every Wednesday.
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tion of the recognition of the title of the United
States to the public domain within her limits and the
want of a compact not to intrrfVre with the primary
disposition of the soil. The usage of the Government
demunds such a provision. It in the exerciseof
a high sovereign power, and cannot be had without
the call of another convention, because the present
Constitution of California does not confer it upon
the legislature. Without such a stipulation, the
Unitea States cannot preserve uny title to the public
lands and mines of California. The title of
one government to lands within another, is inconsistent
with the sovereignty of the latter, and can
only be maintained, with the consent of the State,
in the nature of a conmact. Such has been the uniform
construction of Congress, of our Constitution,
and system of State sovereignties, in regnrd to this
complex subject. This object cannot os secured
by tne simple legislation of Congress. It must
have the form and sanction of a compact, which
can be consummated only by the assent of California.
Since the Constitution of California must return
to the people for further action and new and important
provisions, it becomes the duty of Congress
to adjust her boundary and curtail the vast
extent of this Pacific empire. There is great danger
in permitting one State to engross ull the ports
on the Pacific, especially when the remoteness
and isolated condition of that country^ is con
aide red. To nay nothing or tne ponurui imznru
of our system, arising front combinations nntong
large and disproportionate States, California, with
her vast limits, presents e'hsr subjects of serious
apprehension. She will be tempted to a separate
existence by the wide extent and productiveness of
her mines?by the still richer treusures that will
flow from Eastern and Indian commerce. From all
these causes we ntuy look for hostility to the revenue
and commercial system of the Union. All
the great commercial ports of the Pacific should
not he left under one iocul jurisdiction. San Diego
and San Francisco ought to be in different States,
for many and cogent reasons of policy. In the
progress of events, the Government of the Union
will have slight hold upon that extensive isolated
region, with its great mines and western trade, if
the country is all embraced by one State government.
It is our policy to strengthen the bands of
the Union there liy the erection of two or more
States, the multiplication of seaports, and the
creation of commercial rivalries. If you admit
California with her present limits, the nay of San
Francisco will engross nearly the whole of the
foreign and domestic trade of the Pacific.
It is apparent, front the report of Mr. King,
that the country possesses much more agricultural
power than is generally supposed. Its mines
VvU fill the country rapidly with a large population,
a population composed, in a considerable degree,
of foreign era, with very little sympathy with our
own Government. It is not the part of wisdom to
organise .thin State in such a manner an to tempt
its lultabiUtiU .with the advantages of a separate
political existence., independent of the American
Union.
Ttuc WSMMWERMENT TCXA1.
In opponing the cowprqHUse of Mr. CUy in its /
present shape, I desire to spepk of that illustrious
statesman with all respect. By liirt lofty imtriotJ
' " ?J.,,;.,l,o nr.._
ism tuiagrew, inmictiuiu .....
sent session of Congress, lie bus shown himself,
what he has luce* often termed, the Chatham of
Anierien. But I turn eonstmined lo say, that the
provisions of this laill ii? relation to TexaH are totally
inadmissible as a ttoutlieru measure,glaringly
uimjst to that State, and dostiructive to her highest,
interest, to her security and prosperity-as u 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,
184#, and not included within the limits of th*
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
heredfter divide it into two Stales.
This bill is accompanied by a report, with the
following (statement: "The committee beg leave
next to report 011 the subject of the northern and
western boundary of Texas. O11 that question a
great diversity ot opinion haw prevailed. According
to one view of it, the western limit ef Texas
was the Nueces; according to another, it extended
to the llio Grande, and stretched from its mouth
to its source." The report then states, that the
committee had agreed 011 an amicable adjustment
with the following boundary: "The northern
boundary of said State shall bs as follows: Beginning
on the Rio del Norte, commonly called El
Pato, and running up that river 20 miles, measured
by straight line thereon, and thence eautwardly to
a point w here the 100th degree of west longitude
crosses Red river, being the southwest angle in
the line designated between the United States and
Mexico, and the same angle in the line of the territory
set apart for the Indians by the United
States."
In the first place, the bill and report taken together
throw discredit and doubt upon the whole
western boundary of Texas. They cast doubt
upon a portion of the line which is and has been,
I for a considerable period, under the quiet jurisdiction
of the officers and government of Texas, from
the mouth of the Rio Grande to El Paso.
The Senate bill, it will be perceived, pushes a
fret line, down into the immediate vicinity of El
Paxo, on the great military road from the coast of
Texas to the Pacific. It opens a highway for our
slaves into New Mexico, Utah, and California,
with every menns and facility for escape from the
frontiers. Such a line cannot fail to render slave
property in western and northern Texas, and especially
on Red river, insecure, and seriously afiect
its value. The salubrious climate, rich soil, and
productions of Texas, together with cheap lands,
invite emigration, and offer great inducements to
the planter. Her capacities for producing sugar
and cotton are almost incalculable. She must receive
a large portion of the negroes of the more
northern stave States, unless emigration is retarded
by an unjust and, to the South, unwise adjustment
or this subject. If Texas is true to her own interests,
she never will consent to Btich a boundary,
when the resolutions of annexation guarantee
slavery to new States to be formed out of her territory
south of 3fi degrees 30 mintuer north lati
tude. How can she consent to permit, sluvery to
be abolished within her limits to the 3&1 decree of
I latitude, with the inevitable consequences 111 full
view ?
| This bill furtherprovides: " If theStateofTexas
shall rofbse or decline to accede to the preceding
' articles, they shall become null and voiu, and the
United States shall he remitted hack to all their
i territorial rights, in the same state and condition
as if these articles of compact had never been tendered
to the acceptance <?f the State of Texas."
The amount to be paid in caae Texas accedes to
the proposition i? by the bill left blank.
It will be perceived that the Territory of New
Mexico is, by this bill, to be created with or without
the consent of Texas. It will of course he
organized according to ita ancient limits, and in
derogation of the rights of Texns. It will be
claimed that the bill legalizes the present military
(rnvArnmon/ ir* Sonto P? It will irisrji flip ?innPAr-_
/tnce of law to a systematic resistance to tin* jurisdiction
of Texas, nnd before the mutter can be
adjusted, practically determine the question against
the State. It will produce civil war and bloodshed
between the people of Santa Te nnd the authoriten
of Texas. It leaves the State no choice
between such a calamity and the acceptance of
the money which may hereafter be inserted in
the bill. It includes country on the east never
within the limits of New Mexico, and transfers
it to the new territory. If makes no provision as
to the fttture condition of the foreign and hostile
tribes of Indians now roaming over northern and
weatern Texas.
In relation to the people of New Mexico proper,
which ia now situated on the west bank or the
Rio Grande, the provisions of the treaty with
Mexico are complied with if they are admitted
into the Union in any State. They have no claims
to their ancient limits, any more than bad the people
of Louisiana. But this bill transfers territory
to them on the south and east, not embraced
within the legal limits of New Mexico, as it
existed under Mexican rule.
Up to the present time, the actiona of all the
departments of thia Government has admilUd the
claim of Texas to the Rio Grand# in ita fullest,
extent. Individuals, a few member! of Cong^M,