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shall be slaves. The want of power is equally clear to prevent, by an act of Congress, the settlement in the territories of slaves, and of families consisting of free white persons and of slaves. The effect of the Wilmot Proviso would be to prevent the establishment in the territories, of many families, some members of which are the owners of slaves.
The constitution of the United States requises, “that representatives and direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers; which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.' The fact is indisputable, that the persons, for the representation of three-fifths of whom the constitution provides, were slaves. Slaves were held in every state of the Union when the constitution was adopted. The constitution contains not only a recognition of slavery in every state, which was then in existence, but a prospective recognition of it in every state which might be formed and admitted into the Union in future. The constitution gives no authority to Congress to interfere with any state-or any people, when they may be engaged in founding a state-in the selection of the persons the citizens of the state may prefer for the basis of her representation and taxation; but the constitution does require all the persons mentioned in it, to be enumerated in every state where they may be found, and according to the directions in the constitution for the purpose of ascertaining and fixing the number of representatives to which each may be entitled at every apportionment. The rule for the apportionment of representatives and direct laxes, is applied by the constitution which established it to all the States of the Union, regardless of the time of the admission of any. It governs the first apportionment to a state as well as every subsequent one; and the first apportionment, therefore, of every new state.
The constitutional right of a new state to have slaves as well as free persons enumerated according to the constitution, at the first apportionment made for her, involves the right also, in the inhabitants of a territory on which the new state may be founded, to hold slaves—because the right of the same persons as citizens of the state could not be exercised at the first apportionment, unless this right had been previously enjoyed by them while they were the inhabitants of the territory. The effect therefore of a denial of the right of the people of a territory to bold slaves, is a denial of the right of the same people, when they may establish a state, to have slaves enumerated according to the constitution at the first apportionment of her representatives. To prohibit slavery in a territory before the inhabitants have the power of the citizens of a state to exercise their own will, and decide for or against the institution, would be to render that will, if it should be expressed at the proper time in favor of slavery, ineffectual at the first apportionment for their state--because the prohibition by Congress would prevent the existence in the territory at that time of the persons whom the new state might prefer for a part of the basis of her representation and taxation.
There is an obligation on the United States, the effect of which is to entitle the territories to be admitted as a state into the Union, whenever the inhabitants may give proof of their capacity for self-government,
and the number of them shall be as large as that of the residents of the territories heretofore received as states into the Union; or the number may be sufficient to bear the burdens and perform the duties of a state. The obligation created on the United States, by the 9th article of the treaty, in favor of the Mexican inhabitants who may elect to become citizens of the United States, could not be discharged without the acknowledgment of the right of the inhabitants of the territories to establish a state, at the proper time, to be determined in view of the considerations which have been mentioned. The obligation to admit the territories, is as perfect as one would be to receive as a state a territory with one hundred thousand inhabitants, including persons of every description, upon the ground that a compact between the Union and such territory bound the former to admit the latter as a state whenever her population amounted to this number. Congress would have no authority, if it should change its opinion as to the policy which dictated the compact, to limit the annual number of settlers in the territory, or make a requisition of those allowed to establish themselves there from particular descriptions of persons. The effect of any such act of Congress would be to retard the increase of population, and postpone to a more distant period, in violation of the compact, the right of the inhabitants to establish a state, and have it admiited into the Union. If the act made the right of any persons to settle there to depend upon their civil and political condition, the act would affect the right of the inhabi. tants, when they might found a state to elect whether slavery should be authorized or prohibited.
The sovereign power of each state belongs to the citizens of the state. A portion of this power they have granted by the constitution of the United States to the General Government: the remainder of it was retained by the citizens of each state. The sovereign power, in every state, to establish or prohibit, continue or abolish, the institution of slavery, belongs to the citizens of the state. This power, the citizens of a state may exercise in a convention, in which they adopt or alter their constitution, or in the legislature of the state, if they be authorized by their constitution to exercise such power in the legislative department of the state government.
Of the states admitted into the Union since its formation, some have established and others rejected, the institution. Some of the old thirteen have abolished the relation of master and slave, and nearly an equal number of them has preserved and yet maintains it.
The citizens of the several states who may migrate and establish themiselves in the territories, and the Mexican inhabitants who may become citizens of the United States, according to the treaty, together with such other citizens as were there at the conquest and cession, and who yet remain, will be the first citizens of any state that may be founded there in future. Citizens of slave-holding states may settle themselves there who are opposed to slavery, and intend to employ, at the proper time, their portion of the sovereign power, which will be exercised to establish a state in the territories, to prohibit the relation of master and slave. From non-slave-holding states citizens may go there with the intention of using their share of power to authorize slavery, that had been excluded by the will of the majority from the states they
may leave. The will of all and of each of these descriptions of persons had been rendered ineffectual, by the adverse will of the majority of the citizens of the states from which such immigrants may go. But these, and all other citizens of the several states, who may seitle in these terricories, will carry with them equal and inherent shares of sovereign power, to be exercised whenever a state may be formed for the territory in which they may establish themselves. Whether the result of the exercise of this power at that time, will be the establishment or prohibition of slavery, no one can foresee. The result will depend on the will of the majority of the persons who shall have the right of citizenship in the new state when it may be founded. As the territories were acquired by the united power and resources of all the states, the citizens and other inhabitants of each state, have an equal right to seek homes there, and a new theater for the exercise of the sovereign power of these citizens, in the establishment of new states to be admitted into the Union, for the increase, we hope, of its prosperity, power and glory.
As the sovereign power belongs to the citizens of each state, it is divided into so many shares, and will so' shortly be divided into many more, that the possessors of the numerous portions of it do not attract the attention which an absolute monarch does, and they themselves do not realize the possession of such power and habitually think and reason in relation to it as single sovereigns do. In this want of attention to the character of the citizens of the United States as sovereigus, is the source of all the difficulties which are encountered in the examination of the question we are considering:
If each of the states of the Union were an elective, but an absolute monarchy, with all the sovereign power of every state exercised by her monarch, and acknowledged by his subjects to belong to him; if the relation of master and slave were established by law, and slaves were numerous in some of the states and from the others excluded and the relation forbidden; if a union of the monarchies existed, and their foreign affairs were conducted and controlled by a council appointed by the authority of each; if this agency or government, in the exercise of power derived from the joint grant of all the sovereigns, should acquire by treaty any territory--what would be a just and lawful disposition of it? The agency or government of the league could not make it a state. A state, when founded on the territory, must be an elective monarchy, like the other states; as we suppose a guarantee on the part of the league that each state admitted into it shall be of this form and character. The citizens of these states who might settle in the territory, together with the old inhabitants, entitled under the treaty to the right, would become the citizens of the new state, when one might be established in the territory, and the monarch who might be elected by a majority of them, would have the exclusive right to determine whether the institution of slavery should be authorized or prohibited, continued or abolished. The government would hold the country, while it continued to be a territory of the league, in trust, to encourage the settlement of it by the subjects of all the sovereigns of .the league, and to protect the persons and property of all the immigrants. How long would the league endure, if, in the council which governed it, the influence of the slave-holding monarchies was the
greatest, and prohibited the employment, in the territory, of labor and capital, in the establishment and working of manufactories, as an inducemeni to slave holders to settle there, that they might elect a monarch who would establish slavery, and thus increase the power in the league of the slave-holding monarchies?
The general government of the United States acquired and holds these territories in trust for the sovereign citizens of the several states. The object of the Wilmot Provisoists is to induce Congress, the trustee, to prohibit the transfer of property in slaves, and the removal of their persons to the territories--to forbid the employment there of most of the moveable property of slave-holders; while the right of the inhabitants of the non-slave-holding states is treated as unquestionable to remove to, and use in, the territories all of their own moveable property.
The consequences of the accomplishment of this object would be the exclusion from the territories of most of the persons who are slaveholders and would otherwise establish themselves there, and the settlement of nearly the whole country by immigrants from the non-slaveholding states. The combined operation of these causes would secure the conversion of the territories into non-slave-holding states, and the soil and most of all the advantages of the new acquisitions, mainly for the inhabitants of the existing states of this description. What would be thought, by all the disinterested and impartial of our race, of an individual trustee of a large real estate, abounding in rich gold " washings," who, years before the time when it would be his duty, in the execution of the trust to divide and sell the estate in
parcels, permitted some of the beneficiaries to work the gold " washings" with all the means and laborers they could transfer and employ in them, and thus increase their ability to purchase and monopolize the estate at the sale to be made by the trustee, while he prohibited the others from using more than half their wealth in the employment of labor in the same kind of work?
If the treaty had provided that the former Mexican laws should continue in force, it would require the exercise of the proper legislative power to terminate the authority of all, except such as are political, by repealing them. But an express agreement in the treaty, for the continuance of the obligation of the political laws of Mexico in the territories, would be void, as the treaty-making power is incompetent to give authority to laws wbich would be inconsistent with the constitution. If a Mexican law prohibited slavery in the territories while they belonged to Mexico, a stipulation in the treaty for its continuance, could not preserve its authority in the ceded country after it became a territory of the United States. The effect of the cession would be to annul the law, upon the ground of its repugnance to the constitution of the United States. But the acquisition of these territories, does not present the case of a country conquered and relinquished, or ceded, to the United States, with laws the obligation of which the treaty secured.
The feeble Mexican government, which existed once over a small part of the territories, had been subverted, and, upon its ruins, a military government established, by the authority of the President of the United States, in his character of Commander-in-chief of the American army,
before the treaty was made. The military government existed at the time of the ratification of the treaty, by the governments of the United States and Mexico. The legal effect of the cession, was to terminate the military government, and the conquered and ceded territories were left without a government or civil laws. If there were a government de facto in the territories, it would derive its authority from the implied assent of the inhabitants to the power it exercised, and a majority of them consists now of American citizens. Some of these were there at the conquest, and at the date of the cession, and the others have migrated there since. The Mexican government and laws had been overthrown, before nine-tenths of them established themselves in the country; and they have done no act since, from which their assent can be implied to the re-establishment of any of the laws of the old local, civil government. There is, indeed, no lawful civil authority in the territories, and there can be none, till after the establishment, by the inhabitants of the ceded country, or by Congress, of a government, or the establishment of a state in the territories and the admission of it into the Union. The condition of things which exists there, is the same that it would be if the territories had been without Mexican inhabitants and occupied solely by savages, not subject to Mexican laws, but having a right to occupy the soil, while the fee in it, and the dominion over the country, belonged to the Republic of Mexico, and the United States had taken forcible possession of the territories first, and obtained a cession of them afterward. In the case we have supposed, there would be no Mexican laws in force, in the territories, at the date of the cession, as the jurisdiction of the Mexican Republic had not been extended and established over the waste territories. There is no difference between the principle that would apply to a case in which a Mexican government and laws bad not existed before the cession, and the case that has occurred, in which all these had been subverted before the treaty was made that contains no provision for the re-establishment of any of them. Mexican grants of wild lands, would entiile the grantees, in either case, to the estates conveyed, which the United States would be bound, by the treaty, and the laws of nations, to recognize and protect.
Any inhabitant of the territories, whether an American or Mexican, who was there when the treaty was made, or has gone and established himself there since, occupies a territory of the United States, but over which no civil government or civil laws exist. A Mexican inhabitant, who owned property there before the cession, has a good title to it still, unless it has been impaired, or transferred, by some act of his own. Any American, or other person, who is there with a right to property, which was property in the state of the Union from which he migrated, is entitled to hold and enjoy it as property, in the territories. As there was no law of the territories which prohibited the removal of his property of any kind, and none of the United States, he had as clear a right to take and use it, as he had to go himself and reside in the territories.
Every owner of property is entitled to an equal measure of protection for it, from the military power of the United States, which may be employed there, and, if Congress should establish a territorial government, it would be the duty of the government to protect equally, with