CHAPTER LXXI.

BILLS FOR CALIFORNIA AND OTHER TERRITORIAL GOVERNMENTS.

One of the exciting topics of the session of 1847-48, was the establishment of a territorial government for Oregon. A bill for this purpose was reported early in the session, but was not disposed of until just at its close. The question of slavery, including the Wilmot proviso and the Missouri compromise, furnished the matter for this protracted debate. The question of the power of congress to legislate on the subject of slavery in the territories, was elaborately discussed in the senate, by Mr. Dix, of New York, and Mr. Calhoun; the former most ably maintaining the affirmative of the proposition, and the latter denying it.

Mr. Dix, although he made a luminous and powerful argument in favor of the power in question, stated certain positions which he thought constituted a proper basis for the settlement of the question; positions, the correctness of which a majority of the friends of free territory, it is believed, do not concede. They are these: 1. All external interference with slavery in the states is a violation of the compromises of the constitution, and dangerous to the harmony and perpetuity of the federal union. 2. Territory acquired by the United States, should, in respect to slavery, be received as it is found. If slavery exists therein at the time of the acquisition, it should be left to remain undisturbed by congress. If it does not exist therein at the time of the acquisition, its introduction ought to be prohibited while the territory continues to be governed as such. 3. All legislation by congress in respect to slavery in the territory, ceases to be operative when the inhabitants are permitted to form a state government; and the admission of a state into the union carries with it, by force of the sovercignty such admission confers, the right to dispose of the whole question of slavery at its discretion, without external interference.

If by the “external interference” referred to in the first position, is meant external legislative interference with slavery in the states, the proposition will not be disputed by any one. But if this interference is intended to include all discussion and agitation of the question of slavery, and all attempts, by moral means, to effect the abolition of slavery in the states, the position will be extensively controverted, The assertion in the second position, that congress, although it has

power to remove a serious evil, ought to leave it as it is found, is equally far from receiving general assent. As to the third proposition, if it goes so far as to deny the power of congress to refuse the admission of a state on the ground that its constitution does not prohibit slavery, this doctrine also, it is believed, is not in accordance with public sentiment in the free states. The right of a state, after its admission, to establish slavery, is not disputed.

Mr. Calhoun denied the existence of the power of congress to exclude the south from a free admission into the territories with its slaves. He denied what had been by many assumed, that congress had an absolute right to govern the territories. The clause of the constitution which gives “power to dispose of and make all needful rules and regulations respecting the territory, and other property belonging to the United States," did not, he said, convey such a right: "it conferred no governmental power whatever ; no, not a particle." It only referred to territory as public lands—as property-and gave to congress the right to dispose of it as such, but not to exercise over it the power

of

government. Mr. Calhoun thought the best method of settling the slavery question was by non-action--by leaving the territories free and open to the emigration of all the world, and when they became states, to permit them to adopt whatever constitution they pleased.

Mr. Calhoun considered the interference on the subject dangerous to the union. If the union and our system of government were ever doomed to perish, the historian who should record the events ending in so calamitous a result, would devote his first chapter to the ordinance of 1787 ; his next to the Missouri compromise; and the next to the present agitation. Whether there would be another beyond, he knew not. He reviewed and controverted the doctrines of the declaration of independence. The proposition that “all men are created free and equal” he called a "hypothetical truism." Literally, there was not a word of truth in it. This assertion he supported with the singular argument,

men are not born free. Infants are born. They grow to be men. They were not born free. While infants, they are incapable of freedom; they are subject to their parents." Nor was it less false that they are born “equal.” But in the declaration of independence the word “free” did not occur. Still the expression was erroneous. men are not created. Only two, a man and a woman, were created, and one of these was pronounced subordinate to the other. All others have come into the world by being born, and in no sense, as I have shown, either free or equal.” This expression, Mr. C. said, had been inserted in the declaration without any necessity. It made no necessary part of our justification in separating ourselves from the parent country.

Nor had it any weight in constructing the governments which were to be substituted in the place of the colonial. They were formed from the old materials, and on practical and well established principles, borrowed, for the most part, from our own experience, and that of the country from which we sprang.

Mr. Calhoun argued, that, instead of liberty and equality being born with men, and instead of all men and all classes being entitled to them, they were high prizes to be won; they were rewards bestowed on mental and moral development. The error which he was combaticg bad done more to retard the cause of liberty and civilization, and was doing more at present, than all other causes combined. It was the leading cause which had placed Europe in its present state of anarchy, and which stood in the way of reconstructing good governments. He concluded as follows:

"Nor are we exempt from its disorganizing effects. We now begin to experience the danger of admitting so great an error to have a place in the declaration of our independence. For a long time it lay dormant; but in process of time it began to germinate, and produce its poisonous fruits. It had strong hold on the mind of Mr. Jefferson, the author of that document, which caused him to take an utterly false view of the subordinate relation of the black to the white race in the south; and to hold, in consequence, that the latter, though utterly unqualified to possess liberty, were as fully entitled to both liberty and equality as the former; and that to deprive them of it was unjust and immoral. To this error, his proposition to exclude slavery from the territory north-west of the Ohio may be traced, and to that the ordinance of 1787, and through it the deep and dangerous agitation which now threatens to engulph, and will certainly engulph, if not speedily settled, our political institutions, and involve the country in countless woes."

On the 6th of July, the Oregon bill being still pending, the president transmitted to congress a message, with a copy of the ratified treaty. On the 11th, Mr. Clayton, in the senate, moved that the Oregon bill and amendment be referred to a select committee of eight, four from the north, and four from the south, equally divided also as to their party politics. A modification being suggested by Mr. Bright, of Indiana, so as to include so much of the president's message as related to the new territory of California, New Mexico, &c., recently acquired by treaty with Mexico, and referred to the select committee of eight. The proposition having been accepted by Mr. Clayton, it was adopted, 31 to 14. On the 18th, Mr. Clayton, from the select committee, reported a bill to establish territorial governments in New Mexico and California. The following is a synopsis of the report :

a

The committee recommended the passage of the Oregon bill, nearly as it came from the house, and without the senate's proposed amendments, simply amending it so as to hold the existing territorial laws of Oregon in force, until after the new government had time to act, and to reënact or repeal them. Oregon was to have a legislative assembly of two houses, elected by the people.

New Mexico and California were to be organized into separate territories, with governors, judges, secretaries, distriot attorneys, and marshals, appointed by the president and senate of the United States; the constitution and laws of the United States to be extended over them : the governors and judges in California and New Mexico to constitute a legislative council, and to be authorized to pass laws, subject to the revision or rejection of congress; but such council not to legislate respecting slavery, the establishment of religion, the pledging of the faith of the territory, nor to dispose of the soil. If any question on the subject of slavery should arise, it was to be left to the decision of the judiciary of the United States. Courts were to be established, with the right to appeal to the supreme court of the United States.

Here was a compromise bill, not to divide free and slave territory upon a given line, but proposing equal advantages to slavery. A compromise line had been proposed and rejected in the committee of eight; and the plan reported was the only one that could be devised, which would secure any approach to unanimity. By the opponents of slavery, the bill was considered as almost certain to secure the preoccupation of the territory to slavery. The taking of the power of legislating for the territory out of the hands of the two hundred and ninety representatives of the nation, and conferring it upon some eight or ten persons appointed by a slave-bolding president, and forbidden to pass any law respecting slavery, thus leaving the country open to slaveholders; subjecting questions of slavery to the decision of the local judges, also appointed by the president; appeals from their decision to be taken to the supreme court of the United States—a majority of the judges being slaveholders :-all this was regarded as tantamount to the establishment of slavery in those vast territories.

By the provisional government then existing in Oregon, slavery was prohibited. The present bill provided, that, if the territorial legislature of Oregon should not reaffirm the law of the provisional government prohibiting slavery, within three months after the assembling of the first territorial legislature, that law was to be null and void. By another provision of the bill, all bills passed by the territorial legislature were required to be submitted to congress, and, if not approved, were to be void. As it was not probable that both houses of congress

would at any time be opposed to the introduction of slavery in the territories, this provision was considered as in effect removing the restriction upon slavery in that territory. This bill, with some amendments, one of which allowed an appeal from a decision of the state court to the supreme court of the United States, in any case involving the question of personal freedom, passed the senate, on the morning of the 27th of July, after a continuous session of twenty-one hours. The vote was, ayes, 33; noes, 22. In the house, the bill was taken up the next day, and, by a vote of 112 to 97, laid on the table. The house then, in committee of the whole, resumed the consideration of their own bill providing a government for Oregon, which passed that body on the 2d of August, 129 to 71. It contained a provision for extending the ordinance of 1787 over the territory; and another to abolish the veto power of the governor. In the senate, it was amended so as to restore this power to the governor. The section also prohibiting slavery, was amended, by inserting, "Inasmuch as the said territory is north of the parallel of 36 degrees and 30 minutes of north latitude, usually known as the Missouri compromise." As the whole territory of Oregon lies north of the 420 degree, the object of this amendment was to make the record appear that slavery was prohibited in that territory, in accordance with the compromise, in order to remove all ground for any future pretext to carry the anti-slavery proviso south of the compromise line.

These amendments of the senate were all negatived in the house, ayes, 82; noes, 121; and the bill returned to the senate, where, after a protracted debate, the question on a motion to recede from the amendment by which the Missouri compromise had been inserted, was taken, and carried in the affirmative, 29 to 25. The bill was then passed by the same vote, Sunday morning, the 13th of August. The session closing the next day, no bill was passed for the government of the new territories. It was supposed, and not altogether without reason, that the “ free soil” movement at the north contributed, in no small degree, to effect the passage of the Oregon bill.

At the next session (1848-49,) another unsuccessful attempt was made to provide for the government of the newly acquired territory. A bill was introduced into the senate, December 11, 1848, by Mr. Douglass, of Illinois, for the admission of California as a state, to include all the territory acquired by treaty from Mexico. The state was to come into the union on an equal footing with the other states. The laws of the United States were to be extended over the new state, so far as they were not locally inapplicable. Congress reserved the right to form and admit new states from that portion of the territory lying east of the Sierra Nevada, or California mountains. The bill also provided for the establishment