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The California Question, Speech in Congress
Delivered on June 10, 1850

  This speech, one of three major speeches given by Thaddeus Stevens in his first term in Congress on the issue of slavery, was in opposition to the proposed "Compromise of 1850."  This "compromise" was proposed to resolve the issue of what to do with the territories acquired by the United States from its victory in the ill fated war with Mexico (a war that both Stevens and Abraham Lincoln considered illegal and immoral.) Southern slaveholders wanted these new lands to enter the Union as territories open to slavery (along with the Republic of Texas, which was seeking to join the Union.)


Mr. Stevens said:

Mr. Chairman. How far Congress can legislate for the territories, and admit new States into the Union, has been a matter of grave discussion.

   The power to admit new States is expressly given by the Constitution. But the extent of that power is by no means settled. In my judgment, it refers only to new States formed out of territory previously belonging to the nation. Such was the opinion of Mr. Jefferson, and I have never seen it successfully controverted. Clearly that clause conferred no diplomatic powers on Congress. Consequently, Congress could enter no negotiation with foreign Powers, for that would be an act of diplomacy. The right to admit foreign independent nations into the Confederacy is nowhere given to Congress, either by direct grant or necessary implication. I do not believe it exists anywhere, except with the treaty making power. This question will probably be seriously considered and finally decided, when Texas comes to subdivide her territory into States, and claim their admission into the Union, if that unfortunate even should ever happen.

   The right of Congress, and the extent of that right, to legislate for the territories, has become a question of fierce discussion by the ablest minds of the nation. For sixty years and upwards, after the passage of the ordinance of 1787 and the adoption of the Constitution, no one seriously doubted the right of Congress to control the whole legislation of the territories --- to establish territorial governments, create courts, fix the tenure of the judges and other officers – in short, to exercise all acts of municipal as well as political legislation.  For sixty years, all that authority has been exercised over the northwestern territory, the southwestern territory, over Louisiana, Florida and Oregon. In the meantime, the question had been definitively and conclusively settled by all the branches of the Government –by Presidents, by Congresses, by repeated decisions of the Supreme Court of the United States. Elementary writers – Story, Rawle, and others – had so laid down the law.

    It is only since our dismemberment of the Mexican empire, that this question has been opened, and found able and apparently sincere statesmen totally to deny the power.

    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.

   But to be successful, they must bring northern aid to this new doctrine. They put in requisition the means which before had always availed them – the political weight of slavery. A presidential election was approaching. He alone, who was willing to receive this new light, and surrender his conscience to its illumination, could receive their support. Among the most prominent of the aspirants to that high office was a gentleman of distinguished talents, of great scientific and legal attainments, who had reached the mature age of nearly three score and ten. He was particularly versed in the Constitution and laws which regulate the territories. He had grown up with them. He had filled several offices, and among them the highest in territorial governments established by Congress. He acknowledged the exclusive power of Congress over them, and its power to exclude slavery from them. He was prepared to vote for the Wilmot Proviso, and expressed great regret that he was deprived of the opportunity, by a debate which was protracted to the end of the session of 1846. There seemed but little hope that his judgment, thus matured, his opinion formed with care, and consolidated by the action of a long life, could ever be so changed as to entitle him to southern support. But miracles have not ceased in the moral, whatever may be the case in the physical world. Southern alchemy was applied; straightway a shaking was seen among the dry bones, and he stood up, regenerated, illuminated, and transformed. The scales fell from his ancient eyes, and he saw bright visions. He now denies to Congress the least power over the territories! To vindicate, not his constituency, for that is hopeless, but his honesty, he has devoted thirty odd mortal pages of a speech, to show the error indulged in for the last sixty years, by Congress, by Presidents, by Supreme Courts, by constitutional writers, and by himself.

    I shall not attempt to follow his labored argument, especially as few of his southern allies now endorse it. All, however, must feel sincere regret that he changed his opinions under such peculiar circumstances.

    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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