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California Question, Speech in Congress
Mr. Stevens said:
Those who, half a century hence, shall be led to examine
the archives of the nation, will naturally inquire what new
light had been shed on this subject, what new event had
happened to disturb this well settled opinion. It may
possibly be found, that even in this free and enlightened
Republic, men, statesmen, and demagogues, were actuated by
the same cupidity, lust of power and of office, which
governed the people of the old and corrupt nations of the
world – that an independent nation, without treaty and
without warrant in the Constitution, by mere act of
Congress, was corruptly admitted into this confederacy for
the avowed purpose of extending the dominion of slavery –
and that California and New Mexico were acquired for the
same object. But that it was found that Congress,
unexpectedly to the South, determined to exclude slavery
from them, and had actually passed a bill (Wilmot Proviso)
for that purpose, through the House of Representatives, and
it was lost in the Senate only for want of time. Then
southern statesmen discovered that the only chance they had
of carrying out their original design, was to deny the power
of Congress to pass such a law. They abandoned the position
sanctioned by themselves, and by the prescription of sixty
years, and boldly assumed this new attitude.
My opinion as to the extent of the power of Congress in legislating for the territories differs somewhat from those who admit the general and exclusive power.
The Supreme Court, the ultimate arbiter fixed by the people finally to decide all questions arising under the Constitution and laws of Congress, have, by repeated decisions, derived the exclusive power of Congress to legislate for the territories from the clause in the Constitution which says: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States.”
I do not suppose that any branch of this Government is at liberty practically to disregard these decisions. It would be improper in the President, Congress, or any other functionary of the Government, as it would be in an individual. In him it would be a misdemeanor. If it were now an open question, I should hesitate to rest it wholly on that part of the Constitution. There is much weight in the argument that “territory” is used in the singular number, and coupled with the phrase “or other property belonging to the United States.” It seems to have been intended to apply to a single territory and the Government property therein. At the adoption of the Constitution, the United States owned but one territory (the northwestern.) Not did the Constitution provide for the acquisition of any other. Clearly, no such power is given to Congress, either expressly or by necessary implication. It is to be found, if it exists anywhere in the Government, in the treaty making power alone. The Supreme Court have fortified their opinion of the power of Congress over the territories, as the necessary consequence of the right to acquire by treaty. If I were allowed to indulge my own judgment, I would place the right of Congress to legislate for the territories acquired from foreign nations wholly in the consequences resulting from the right of acquisition.
By the law of nations, when a nation acquires territory, either by conquest or treaty, it becomes subject to the will of the acquiring power. The laws of such Power, however, do not spread over it until some express legislation. In the meantime, their own laws remain in full force. Not infrequently such subject provinces are for a long time governed by very different laws from the country to which they become attached. Canada and other British provinces, are to this day. But the very fact of acquisition gives the sovereign power of the acquiring State all power to legislate for such acquisitions. It requires no constitutional or treaty provision. Wherever the legislative power of the new sovereign is placed, whether in King, Parliament, or Congress, there is the whole and only power to govern them.
Our Constitution places the legislative power in Congress. Consequently, Congress has exclusive power over the territories newly acquired. The Constitution itself does not extend to them, and can have no influence upon them, except so far as it creates and defines the legislative organ of the sovereign will of the nation. None of the officers in the territories hold by a constitutional tenure. No law of the United States was supposed to be extended to any of the territories by the mere force of the Constitution. The provision for the return of fugitive slaves does not extend to the territories. Any slave escaping or being taken into New Mexico or California, would be instantly free. Hence, by the act of 1793, express provision for the subject was made with regard to the territories which we then had.
It allows that Congress alone has exclusive power to legislate for the territories; and that any action by the inhabitants in forming governments for themselves, until authorized by Congress, and, as is justly argued by the gentleman from Virginia, (Mr. Seddon,) and other southern gentlemen, mere usurpation. I do not think, however, it is such usurpation as is to be treated as criminal; but may be either sanctioned or disallowed, as Congress may deem most conducive to the general welfare.But it is contended, that although Congress has exclusive, it has not unlimited, jurisdiction – that it may and is bound to legislate to protect slavery but cannot prohibit it.
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