Slavery and the Mexican War
Brownson's Quarterly Review, July
ART. III. — Speech of the HON. R. B. RHETT, of South Carolina, on the Oregon Territory Bill, excluding Slavery from that Territory, — the Missouri Compromise being proposed and rejected. Delivered in the House of Representatives of the United States, January 14, 1847. 8vo. pp. 14.
WE always read Mr. Rhett's speeches with interest, and rarely without instruction. He ranks high among the most eminent of South Carolina's gifted sons, is high-minded and honorable, one of the few — alas ! very few—of our public men who act always from principle. He may sometimes be unsound in his views, but he always aims at truth and justice, and acknowledges that in politics, as in every thing else,' a man should always act under a deep and abiding sense of moral obligation.
The speech before us is earnest, able, and eloquent, — the production of the statesman and the constitutional lawyer. It is on a subject of great and almost fearful interest, which is every day forcing itself more and more directly upon the attention of the American people. It is confined, indeed, principally to the inquiry, Where vests the political sovereignty, under our system of government ? but it raises this inquiry only in its bearing on the great and absorbing question of Slavery. The question of slavery is becoming for us, through the influence of causes no longer controllable, the question of questions, which can henceforth be blinked with safety by no section of the Union, but which must be met and in some way disposed of, or it will dispose of the Union itself. How it is to be met and disposed of it is not easy to say, and not for us to attempt to say.
As conductor, some years since, of the Boston Quarterly Reviexo, we took frequent occasion to express our views of the Abolitionists ; and though many, many changes have come over us, and we can hardly be recognized by our readers as
the same man that we were then, our estimation of them remains unaltered, except that, if possible, we now hold them in still greater detestation. They are the worst enemies of their country, and the worst enemies, too, of the slave. They are a band of mad fanatics, and we have no language strong enough to express our abhorrence of their principles and proceedings. But we cannot shut our eyes to the fact, that they have the sympathy of a large portion of the people of the Free States, and that in several of the Northern States they are already powerful enough to make it an object for demagogues to bid for their suffrages. Both political parties pander to them. Even the administration seems to court them ; for it has appointed from this Commonwealth scarcely an individual to a prominent office in its gift, not selected from the Abolition section of its friends, — certainly, no one distinguished for his bold and resolute opposition to Abolition movements. In the Whig party the tendency to Abolitionism, or to court the Abolitionists, is, perhaps, still more decided than in the Democratic party. In Maine, New Hampshire, Vermont, Connecticut, the party, at least just before elections, is almost avowedly Abolitionist, and would be in this State, were it not for a few distinguished leaders, whose influence we are sorry to see daily declining. Young Whigdom in all the Free States, composed of young men and boys, not to say young misses, who are soon to be the Whig party itself, is virtually an Abolition party, and its leaders are nearly as far gone as Garrison, Phillips, Leavitt, and Abby Foster.
All the sects, if we except, perhaps, High Church Episcopalians, are either already carried away by the Abolition fanaticism, or rapidly yielding to it. The great body of Unitarian ministers in New England, once a respectable and conservative body of men, exerting, indeed, a bad influence on religion, yet highly commendable for political and social virtues, are almost to a man now mad and fanatical Socialists and Abolitionists. If some few yet hold out, they are timid, and without influence on the general action of the body of which they are members. Nearly all the young men from Protestant theological seminaries come out infected, and, wherever settled as ministers, seek to enlist their congregations in the movement. Only the Church, which can be surprised by no new moral or social question, which has nothing to learn from experience, and whose doctrines on all subjects are long ago determined and fixed, remains unaffected by the fanaticism around her, and pays no attention to the decisions of modern casuists.
Add to this the new aspect the question assumes through the anticipated extension of American territory by conquests from Mexico, and the bravest must admit that there is serious cause for alarm. The Slaveholding States contend that the territories of the United States not yet erected into States belong to all the States in common, and must be as open to their citizens to settle and occupy with their property, as to the citizens of the Free States; and there is a very general determination on the part even of the most moderate of the citizens of the Free States to resist the further extension of the slave system. The majority of them will not seek to disturb it where it now legally exists, but they feel, that, for the sake of humanity and the honor of the American States, they ought resolutely to oppose all efforts to open new territory to it. If any new territory shall be acquired by the Union, a conflict is likely to come, whose shock may shiver the Union, and reduce it to its primitive elements.
For ourselves, we adopt no extreme views on the question of slavery. We have no sympathy with the Abolitionists ; we entertain not for a moment even one of their fundamental principles. Man, we are ready to maintain, may have property in man, a valid right to the services of his slave, — though no dominion over his soul ; slavery is not malum in se, and in no case justifiable ; there is nothing in slavery that necessarily prevents the slaveholder from being a true and pious Christian ; and where the master is a true Christian, and takes care that his people are instructed and brought up in the true Christian faith and worship, slavery is tolerable, and for negroes, perhaps, even more than tolerable. Many of the laws of the Slave-holding States on slavery are unnecessary, unjust, cruel, and disgraceful; a large body of the slaveholders are deeply censurable for neglecting to recognize and respect marriage among their people, and for bringing them up in heathenism or heresy ; but we have no sympathy with those who denounce them because they are slaveholders, and we have no reason to suppose that they cannot, in the moral, social, and religious virtues, compare favorably with their brethren of the North ; and, whatever repugnance we may feel, personally, to the slave system, we are fully convinced that the greatest disservice they could do to their slaves would be to grant them immediate emancipation ; which would be as cruel as for a father to turn his children out upon the world, at a tender age, to lake care of themselves.
But the great body of the people of the Free States are in principle opposed to the whole system of involuntary servitude. All their feelings and convictions are against it. They may not, the majority of them, as we have said, seek to disturb it where it now has a legal existence ; but they shrink from its further extension within the bounds of the Union. They regard it as inconsistent with their professions of liberty and equality, and they feel acutely the hypocritical taunts of foreigners. They cannot endure the thought of consenting to pour out their blood and treasure to extend its area, and sooner than do so they are not unlikely to join in the enterprise to overthrow it where it is now established. If we have not mistaken the feeling in (he Free States, the determination is fixed, even in the minds of the warmest and least hesitating friends of the South, that there shall be no further extension of the slave territory of the Union, and no more Slave States admitted into the Union. Whatever we may think of such a determination itself, we regard it as madness to deny its existence, and idle to attempt to withstand it.
But here arises a serious difficulty. The territories of the United States not yet erected into States belong to all the States in common, and must, in justice, be open alike to the citizens of each, who may wish to occupy them. Congress can make no discrimination between the States, in prescribing the conditions on which the territories may be settled and occupied. If the citizens of Non-slaveholding States are left free to settle and occupy them with their property, the citizens of the Slaveholding States must also be left free to settle and occupy them with theirs. The fact, that the latter recognize property in slaves, while the former do not, cannot be taken into the account. Congress has no authority to define property, to say what shall or shall not be property, but is bound to respect as property, for the citizens of each State, what their State defines to be property. One State cannot define it for another ; for, in relation to the others, each State is an independent sovereign, and its definition of property within its own limits must be respected by all the others, as well as by the Union. Hence, in the territories which belong to no State in particular, but of which all are tenants in common, no State can have any right to make its system of property prevail over that of any of the others ; and Congress, being bound to respect the system of each for the citizens of each, cannot prefer the system of one to the exclusion of the system of another. Then Congress can make no law which would prohibit the citizens of Slave-holding Stales from emigrating to the territories and occupying them with their property in slaves, any more than it can prohibit the citizens of the Non-slaveholding States from occupying them with their property in horses and mules, sheep and cattle. The famous Wilmot Proviso was, therefore, unconstitutional, and could not have been passed without a usurpation of power.
But it is contended, on the other hand, that the general government is the sovereign of the territories belonging to the United States, and therefore may prohibit slavery in them, if it chooses. This position would seem to be supported by the Ordinance erecting the old Northwest Territory, by the Missouri Compromise, as it is called, and the exercise by the general government of sovereign powers in the erection of territorial governments. But the erection of territorial governments does not imply plenary sovereignty, and may be defended on the ground of a sovereignty within the limits of the constitution ; and the precedents established by the Ordinance and the Compromise, if unconstitutional, cannot be pleaded.
Mr. Rhett, in the speech before us, denies that the general government holds the sovereignty of the territories in question, and he does it on the ground, that the general sovereignty exercised by the Union vests, not in the Union itself, but in the States severally which have created the Union. But this, though conceded, would not of itself be decisive of the case. ]t matters not, so far as the exercise of sovereignty by the Union is concerned, whether that sovereignty vests originally in it, or be only delegated to it. If the States have delegated to it the sovereignty in full of the territories, it can exercise all the sovereignty over them it could, if it were sovereign in its own right. But there is, as we shall by and' by show, no express delegation of such sovereignty, and the sovereignty in its full sense over them must vest where, and only where, under our system, the plenary sovereignty in general is vested. If it is in the Union, then the Union is sovereign over the territories by its own right, and can exercise plenary sovereignty over them, unless the constitution ordains to the contrary, without any express grant of power. But if it vests in the States severally, then the Union has no sovereignty but what is expressly delegated to it, and its power over the territories is limited to the express grant, and what is necessarily incident to it. Since, then, there is no express grant of plenary sovereignty over the territories in the constitution, it becomes necessary, in order to ascertain whether the general government possesses it or not, to ascertain whether, under our system, the general sovereignty vests originally in the Union, or elsewhere. For ourselves, we agree perfectly with Mr Rhett in his position, that the political sovereignty with us vests originally, not in the Union, but in the States severally which have made the Union, and from which the Union derives its existence and all its powers. Nevertheless, he must pardon us, if we say we cannot, in all cases, accept the reasoning by which he sustains this position, and are unable to adopt his view of the State governments. He maintains that the general government is not sovereign, not only on the ground that it is the creature of the States, but also on the broader ground, that under the American system no government is sovereign, not even the State governments themselves. If government in general, if the State government itself, is a mere agency, deriving all its powers from an authority antecedent to government, then, a fortiori, the Federal government in particular. He says,—
" Sir, it is a truth, vital to all free popular governments, that sovereignty can never be in government. The fundamental doctrine, on which all our free institutions rest, is that government is nothing of itself, but is simply the agent of the people. Make government sovereign, and the people are subject. They are ruled, and do not rule themselves. To attempt to alter, change, or abolish the forms of government over them will, then, not be a right in the people, but treason to the existing government, for which they may rightfully be gibbeted or put to the sword. I repeat the position, that sovereignty, in free, popular governments, can never be in government. It is, under our system of government, neither in the general nor in the State governments. Both are but agencies."—p. 5.
Understand by people, the States, and restrict the doctrine asserted to the Federal government, this may pass ; but understand by people, not the state, but population, and extend the doctrine to the State governments, it is inadmissible. The Federal government, it is historically certain, is the creature of the States, and, saving the faith they have pledged to each other, the States have the same right to alter, change, or abolish it, that the principal has to alter, change, or revoke the powers he has given to his agent. But we cannot say as much of the State governments. They are governments, not agencies ; for there is and can be in the States no authority antecedent to them to create them. The people as population have never made them, and therefore cannot unmake them. The people as the state, the legally constituted people, are inconceivable without the government, are the government itself in fact, as well as in principle, and for them to abolish it would be to commit political suicide.
But " make the government sovereign, and the people are subject." Unquestionably. Sovereign and subject are correlatives, and one necessarily implies the other. Where there is no subject, there is no sovereign ; for nothing can be over, where there is nothing under. If you assert sovereignty, you must concede subjection. Then the people " are ruled, and do not rule themselves." Granted. But what is government for, if not to rule the people ? and is that government which neither rules them, nor has the right to rule them ? Does government operate on things only, subject things only, never persons ? Are not the people, every man, woman, and child of them, subject to the laws ? And is it not the boast of our institutions, that no one is above the laws ? How can you say that the people are subject to the laws, and yet not subject to the government ? and if governed by the laws, that they are not ruled ? You must either deny all government of persons, and exempt from the dominion of the law all except things, or else you must concede that the people are subject to government and ruled by it.
But, if they are ruled, they do not rule ; and the fundamental principle of our institutions is that people rule. Rule as the government, conceded ; as population taken distributively, denied. The confusion arises from the ambiguity of the word people, which, in this country, is taken in two senses, very distinguishable one from the other. The term people means, 1. Population, the whole number of persons inhabiting the territory or country ; 2. The state, commonwealth, or political sovereignty. In the latter sense, as the state, the people are sovereign, and rule ; in the former sense, they are not sovereign, but subject, and are ruled. Numerically considered, the people in the one sense may or may not be commensurate with the people in the other sense ; but in no actual case are they so. The people, as population, are the whole population, men, women, and children, freemen and slaves ; as the state, they may include only a small number, in some countries more, in others fewer. They are some two hundred thousand out of thirty-five millions in France, and with us they never exceed, in fact never equal, the whole number of free male citizens twenty-one years of age and over ; and in most cases never include more than the free white male citizens of the same age and over ; and these in South Carolina, for instance, do not exceed one in ten, and in no State one in five, of the whole population.
But these free male citizens, the electors, are themselves, save in the simple act of voting, subject to the laws, and ruled in the same manner as the rest of the inhabitants. Moreover, the elective franchise, which they possess and exercise, they possess only by virtue of law, and can exercise only according to the law. They may alter, change, or abolish the existing form of government, it is true ; but by virtue of law, and only in the way, and by the means, the existing form authorizes ; and the attempt to do it in any other way, or by any other means, would be treason, and punishable as such, by the laws of every State in the Union. To abolish the government is, under our system, no more the right of the people, than it is under any other system, as Mr. Dorr and his partisans in Rhode Island discovered to their cost.
The insane doctrine of but too many of our politicians on this subject arises from the ambiguity we have pointed out in the word people. From the fact that the political sovereignty with us is unquestionably vested in the people as the state, they sophistically conclude that it vests in the people as population ; that is, in the people' out of, or antecedent to, the state. But where there is no state, no nokis, no political enii-ty, there is and can be no political sovereignty. Out of the state and antecedent to it, if you may make the supposition, the people are not a state, have no political existence, and therefore are not sovereign, and have no sovereignty. It is absurd to assume that the sovereignty vests in them ; and if it does not in this sense vest in them, they of course cannot delegate it to the state, nor can the state derive it from them. The States could delegate sovereignly to the Union, for they were antecedent to it, and were, prior to it, sovereign states, and possessed the powers they delegated. But the people could delegate no sovereignty to the State or State government ; for, antecedently to the State government, they were no political entity, and therefore had no sovereignty to delegate.
Here is the refutation of the prevalent fallacy of the popular origin of government. The administration of government may be popular, and is so with us ; but its origin is never popular. The people cannot make the constitution ; for to make the constitution is itself an act, and the most sovereign act, of the political sovereign ; and antecedently to the constitution the people are not sovereign, since antecedently to it, as we have seen, they have no political existence. What is not cannot act. Where there is no sovereign, there can be no act of sovereignty. To assume that the people make the constitution is, then, to assume them capable of performing an act of sovereignty before they exist as a sovereignty, which is absurd. It would be to assume that sovereignty is self-created,— an impossible supposition. Nothing can be self-created, for the very solid reason, that nothing can act before it is. The constitution must always be octroyee, — granted or imposed by authority,—or it has and can have no legal force or vitality. But if we suppose as already existing an authority competent to grant or impose a constitution, we suppose the state to be already constituted, and the sovereign authority to exist. When the state already exists, with its sovereign authority, the people owe it allegiance, are subject to it, and have neither the right nor the occasion to make the constitution.
Tn denying the popular origin of government, we neither deny the legitimacy nor mistake the character of our American system of government. The doctrine of the popular origin of government—'that is, that government is instituted by, and derives its powers from, the people, antecedently, logically or chronologically considered, to the state — is no American doctrine, and implied in no American institution. It is an exotic, brought hither from the gardens of foreign theorists, and should be rooted up and rejected by every American who loves his country, and would be able to distinguish between the state and the mob.
Not one of our State governments has had a strictly popular origin ; for there has never been with us a moment when the people were unconstituted or without government, and free, without regard to existing authority, to institute government for themselves. We are not so rash as to pretend that the people here have never been guilty of any irregularity, or that all their proceedings are defensible in strict law ; but we do say, and are ready to maintain against all challengers, that what with us is called making the constitution^ with one or two apparent, but not real, exceptions, has been nothing but a modification of a previous constitution, and a modification effected, not by the people as population antecedent to the state, but, if by the people at all, the people as the state, by virtue of previously existing political authority. The conventions which have modified the old constitutions and formed our present constitutions have all been called, or held to be called, by an already constituted public authority, by virtue of public law, and according to law. Their whole authority as conventions has been derived from the government which authorized them, and there has never been a moment when to call conventions without the authorization of the existing government, and to attempt to enforce their acts against it, was not treason, and as such punishable by existing law.
The colonists on arriving here were, as before leaving home, subject to the laws of the mother country ; and the colonial governments were constituted governments by the authority of that mother country, and derived from it all their powers. Our present governments are only the mediate or immediate continuations of the colonial governments, by whose authority they have from colonial become State governments. In no instance has the change been effected but by their authority. Mr. Dorr and his friends attempted, in the case of Rhode Island, to effect a change by popular, instead of legal authority, and failed. This is strictly true of all the old thirteen Colonies, as nobody can pretend to deny. With regard to the other States admitted into the Union since the adoption of the Federal constitution, nearly all have formed their constitutions by authorization of the general government through their territorial governments. Vermont and Michigan, perhaps Kentucky and Tennessee, though of these we cannot speak positively, formed their constitutions in the first instance in conventions called without legal authority ; but the defect of legality was subsequently supplied by the acknowledgment of the governments in contravention of whose authority they formed them. Maine became a State by the consent of Massachusetts, on whom she depended, and the authority of Congress. Texas was erected into a State by the act of Mexico, originally illegitimate, but made legal by the subsequent acknowledgment of Mexican independence by Spain, the mother country, and she became an independent State by the revolution which subverted the Mexican union or federal government. All our governments may, then, plead a legal, in distinction from a popular origin.
Against us, some may allege the American Revolution, the Declaration of Independence, and the prevalent theories and speculations of American statesmen and politicians. The theories and speculations of many of our statesmen and politicians assert the popular origin of government, we grant; but these theories and speculations are precisely what we are controverting, and their authors cannot assert them as American, on the authority of our institutions, unless necessary to explain and justify their existence. The existence of these institutions does not require them for their explanation or justification, as we have shown, in showing that they are explicable and justifiable on legal principles.
The Declaration of Independence, in the preamble, asserts the popular origin of government, it is true ; but that document is of no legal force or value, forms no part of the public law of either the States or the Union. The act of the Congress which drew it up, declaring the Colonies absolved from their allegiance to the crown of Great Britain, has entered into the modifications our institutions have received ; but the principles of government they asserted, and the reasonings by which they justified it, enter for nothing. Moreover, the Congress which drew up the document had received from the States whose agent they were no authority to promulgate a theory of government, or a political code, and in doing so exceeded their powers. Consequently the political doctrines they published are to be treated simply as the private opinion or speculation of the individual delegates. Furthermore, the assertion of the popular origin of government was a mere obiter dictum. The essential issue between the Colonies and Great Britain was, not whether the people have or have not the right to institute government for themselves, but whether the crown of Great Britain had or had not committed illegal and unconstitutional acts, and if it had, whether it had forfeited its rights over the Colonies. The Colonies decided that it had, that the king had proved himself a tyrant, and having so proved himself, they were absolved — by his act, not by theirs — from their allegiance. The real assumption of the Colonies was, not the right of the people to originate government, but that the tyranny of the prince absolves the subject. If it had been otherwise, there would have been no necessity for attempting, as they do in the document in question, by a recital of his acts, to prove that George the Third was a tyrant.
What is called the American Revolution, properly speaking, was no revolution at all, and no man, in order to maintain the legitimacy of our institutions, is obliged to assert the right of revolution, and therefore the popular origin of government;
because it was not the act of the people as population, out of or antecedent to the State, but of the people acting in subjection to the colonial governments, — the constituted authorities ; because all our institutions originally or by legal derivation date from beyond it, and not one of them can be said to have originated in it ; because the authority of the mother country was not resisted, till it had forfeited its rights, and ceased to be a legal authority ; and because, whatever illegality there may have been in the Declaration and War of Independence, the stain was wiped oft", and the whole legitimated, by the subsequent acknowledgment of the independence of the United States by Great Britain. A just appreciation of what we improperly call the American Revolution would show that in it the American people were far from intending to declare themselves revolutionists on principle. The whole controversy which preceded the struggle for independence proves that they held themselves bound to obey legitimate authority, and that they did not resist the British government till they had convinced themselves — rightly or wrongly is nothing to our present purpose — that it had ceased to be legitimate, and by its own acts absolved them from their allegiance. But in resisting the crown of Great Britain, they did not resist their own governments ; at least, never asserted their right to subvert them, which they must have done in order to have asserted the sacred right of insurrection as it is called, and the strictly popular origin of government.
That there is much confused thinking on this subject among our countrymen at present, and that men with fanciful theories and lawless passions, for which they wished to obtain free scope, have seized upon the American Revolution, and tortured it entirely out of its original shape, we do not deny. That there were at the time individuals — perhaps prominent individuals — affected by the mischievous theories of their times, and carried away by the Utopian dreams of liberty, equality, the perfectibility of human nature, and the realization of a paradise on earth, then so common, and the bitter fruits of which France and all Europe were soon to reap, and that they sought, in season and out of season, to introduce their insane imaginings, and to make it appear to all the world that they had the sanction of the American people, and that individuals of this description, of whom the author of Common Sense, subsequently, of the Age of Reason, was an associate and a sample, were able to direct and color too many of the proceedings of the time, is but too true ; but instead of regarding what they said and did as the rule, we should, as true Americans, regard it as exceptional, to be forgotten, not continued, and exaggerated. The less we have of Jean Jacques Rousseau and his school, Thomas Paine and his protectors and followers, and the more we have of the strong old Anglo-Saxon sense, and old Anglo-Saxon loyalty, the better. Massachusetts was foremost in the struggle for independence, and it, perhaps, is some proof that the patriots did not intend to be revolutionists, that she has always been foremost among the States in contending for the supremacy of the law,—though she may not have always maintained it, or been as faithful as we could wish to her principles.
Our readers, of course, will understand that in denying the popular origin of the American governments, we do not deny, or wish to deny, their popular administration. We merely assert the legal order against the revolutionary order, and maintain, that, notwithstanding the popular forms of our government, the broad popular basis of their administration, the state is as sovereign with us as it is elsewhere, and that loyalty to the state is as much a virtue here, and made as obligatory upon the people by our institutions, as it is under any other form of government. We recognize all the freedom in the people, as the state acting according to law, that the most zealous radical amongst us contends for ; but in the people, regarded as population, in their capacity, not of sovereign, but of subjects, no other freedom than the law grants and guaranties to them. In the ordinary routine of government, in all its ordinary functions, there is no perceptible difference in the practical working or results of our governments, whether we suppose their origin to be legal or to be popular. But there is an immense practical difference, when it comes to the interpretation of their powers, and the allegiance of the subject. If the theory of their popular origin is adopted, they can be assumed to have no powers not granted in the constitution, and the obedience of the subject can never be lawfully enforced. Nay, they have no right of self-preservation ; and the people, without reference to law, may abolish them at will, and set up any government or no government in their place, as they please.
Mr. Dorr's movement in Rhode Island, sincere and philanthropic on his part, and undertaken, we have reason to believe, in a pure, disinterested spirit, shows clearly the danger of the theory we denounce. He adopted the theory of the popular origin of government, and held that an instrument drawn up and proposed by a body of men assembled without authority of law, if sanctioned by the votes of a majority of the people, would be the fundamental law of the state, and might be lawfully enforced as such by sword and bayonet against the regularly constituted authorities. He reasoned, it is true, fallaciously ; for he was obliged to assume the legality of the existing government in order to determine who were the people of Rhode Island, which was necessary to enable him to determine how many votes he must have in order to have a majority ; and when he had assumed the legality of that government, be had conceded his obligation to obey it, and therefore denied to himself all right to resist it, at least so long as it continued in the legal discharge of its legal functions ; that is, unless it ceased, by its own act, to be legitimate. But, waiving this consideration, his conclusion was logical, if the popular origin of government was conceded, as it was, for the most part, by his opponents. He certainly had the advantage in the argument of the chief justice of Rhode Island, and of the learned president of Brown University. Yet there was no sober, thinking man, who reflected on his movement, that did not see that it was wholly subversive of all legitimate rule, of the essential principle of government itself. It is unquestionably true, that the legal people, legally convened, have the right to alter or amend the constitution, and equally true, that the new or amended constitution, in most cases, though not in all, will not go lawfully into operation unless sanctioned by a majority of the voters voting on it; but not because the constitution derives its authority from the people antecedent to government, but because the law so ordains. The law could, if the sovereign so willed, dispense with the popular vote, and also with the convention ; nay, deny the right altogether, under any circumstances, by any methods whatever, to alter the fundamental law ; and experience will yet prove that the facilities provided by law for altering or amending the constitution are incompatible with the safety and stability of our political institutions, if indeed it has not done so already.
We have dwelt at length on the legal origin of our State governments, in opposition to the popular fallacy that they derive from the people as population, because we wish to present our institutions in their true character, and guard, as far as possible, against the false and dangerous theories afloat concerning them. The danger with us is not likely to come from the side of law ; but it will come through the corrupting theories of the enemies of all legal order. We have an abundance of politicians, — demagogues, more properly, — but, unhappily, a great dearth of statesmen, and no good school of politics. The ambition of our politicians is, not to serve the country, consolidate and perpetuate our institutions, and secure the practical enjoyment of the blessings they promise, but to rise to place and power; and only that which best enables them easily and speedily to rise are they very likely to study. As to rise, one must secure the votes of the electors, as these are with us a numerous body, the easiest and speediest way is to make constant appeals to the popular element, to flatter the people, to exalt their majesty, and exaggerate their sovereignty, their wisdom, intelligence, and virtue. Hence the tendency is to undervalue and neglect law, and to prize and consult only popularity. We have seen, during the last twenty years, this tendency growing stronger and stronger, till the bulk of our fledgling politicians have become hardly able to recognize any real distinction between the convention and the caucus, the state and the mob, republicanism and ochlocracy. The man who contends for law and order, by a singular misnomer, is termed an Jllgerine, and he who declaims lustily for the people, sneers at all legal distinctions and legal forms as dry and barren technicalities, unworthy a freeman, is regarded as magnanimous and noble, eloquent and profound, wise'and sagacious, the true friend of his country, the man of his times, worthy of universal honor, and the highest offices in the gift of u free people. What will be the end it is not difficult to experienced wisdom to foresee.
It has been from no love of theorizing that we have gone thus largely into the principles of our State governments. The question we have raised is no merely speculative question, but a question of vital practical importance. If our State governments are mere agencies, not governments in the proper sense of the term, we have no governments at all, no legal order, and there is and can be no disloyally, no treason, and therefore no right to coerce obedience. The government so called is at the mercy of the mob, and Judge Lynch has as valid a commission, and his court as legal an existence, as any judge or court in the land. Moreover, the rule of interpretation is altogether different, on the view we present, from what it is on the one we oppose. If our State governments are governments, they are the STATE, and have all powers, under God, not denied them by the constitution ; if they are mere agencies, they have no powers but such as are specially granted in the constitution. In the former case, the constitution is nothing but a limitation of powers ; in the latter, it is a grant of powers. In the one case, the practical statesman has only to ask what is forbidden ; but in the other, he must ask what is granted. The difference is obvious and important. If the latter view prevail, there will be a constant usurpation of power; for no grant of specific powers which human wisdom can devise will ever be adequate to all the exigencies of the state ; and then, either the public weal must be sacrificed through the inefficiency of the government, or the constitution be nullified, and all legal order overthrown, by the exercise of unconstitutional powers.
While, then, we cheerfully concede to Mr. Rhett, Mr. Oal-houn, and the South Carolina school of politicians generally, that the Federal government is a simple agency created by the States, we cannot concede it on the ground, that, under our system, even the State governments themselves are only agencies. The general government and the State governments are in no sense analogous ; they rest on totally distinct foundations, and can never be rightfully interpreted on the same general principles. The people do not make the State government in the sense in which the States make the general government, and the relation between the people and the State government bears no analogy to the relation between the States and the general government. The relation in the latter case is that of principal and agent; in the former, it is that of sovereign and subject. The Federal constitution is a grant of powers, the State constitution a limitation of powers ; the Union has no powers not specified in the grant, the State all powers not specifically denied in the constitution. The Union must prove its power before it can act; the State can act unless its power is disproved. The presumption is in favor of the State, but it is against the Union. It is necessary to bear this difference in mind, lest, applying to the Union the principles proper to the State governments, we run into consolidationism, — or to the State governments the principles proper to the Federal government, we run into no-governmentism, and confound the state with the mob.
Some of our statesmen, and statesmen, too, whose views are entitled to the respect always due to superior talents, distinguished rank, and eminent service, reject the doctrine of State sovereignty which, after Mr. Calhoun, we have set forth, and contend that the sovereignty vests, not in the Slates, but in the Union ; that is, that the American people are one sovereign people or state, and that the Federal government has all the sovereign powers, substantive or incidental, of government in general, not denied it in the constitution. Foremost among these is Mr. John Quincy Adams, ex-President of the United States, really one of our most scientific, though at times one of our most erratic, statesmen. He, if we understand him, asserts the sovereignty of the Union on the ground that we were one people from the beginning, and that the division into colonies was only for the purposes of administration. He alleges in proof of this, that the Colonists had a common origin, a common language, common habits and sentiments ; and that the Colonies had the Common Law, derived all their authority from the same imperial government, and were subject to one and the same prince. For the purposes of administration they were distinct departments, each with its own local authority, but they retained their unity by being all subordinated to the same supreme government from which emanated all their legal authority. Consequently, we remain one people, notwithstanding the government of the Union was formed by the States acting in their capacity as distinct states ; for it was the only way, prior to the establishment of the Union, in which the sovereign people could legally express its will.
This theory is plausible, but not sound. The common origin, language, sentiments, habits, &c, prove nothing to the purpose, because they exist still between us and Great Britain, in all their essentials, as much as they did between the Colonies themselves prior to the Revolution, and yet we and Great Britain are not one legal people. The possession of the Common Law, for the same reason, proves nothing. We have it still in common with England. The greater part of the Continental states of Europe possess the Civil Law, which binds in their courts, and yet they are none the less independent states. Subjection to one and the same prince proves just as little. England, Scotland, and Ireland continued — if they do not still continue — to be separate kingdoms long after their union under the same prince, and the acts of the British Parliament would not operate in either of the latter unless specially named. Austria, Bohemia, Hungary, Lombardy, &c, are all subject to the same prince, the Emperor of Austria, and yet in relation to each other are independent states. The great vassals of the crown of France, in feudal times, were none the less sovereign in relation to each other, because they held from the same suzerain or lord paramount. The Colonies derived all their legal authority from the same source, it is true ; but to have been one colonial people for that reason, they must have been subordinated, not to the authority of the mother country only, but to one paramount colonial authority. But there was no paramount colonial authority between them and the mother country. They each held immediately from the crown, and each, under the crown, contained in itself all the legal authority it recognized, or to which it was subjected. Consequently, they were not so many departments or divisions of one colonial people, but so many distinct, and, in relation to each other, independent colonies. Consequently, again, when the authority of the mother country to which they were subordinated, and which was their only bond of legal unity, was thrown off,, they necessarily became independent sovereign states, not one sovereign state or people. The proofs, then, on which Mr. Adams relies do not sustain him, and his theory, however consistent it may be with itself, cannot be asserted, because it is contradicted by the historical and legal facts of the case.
Mr. Webster, regarded by a large portion of his countrymen as the ablest expounder of the constitution we have had, and sustained in his views, we are inclined to believe, by the convictions and intentions of many of the men who aided in framing the constitution, concedes that prior to the adoption of the Federal constitution the States were independent sovereignties, but contends that by its adoption their sovereignty was merged in that of the Union, and that therefore the Union is now sovereign. But this is inadmissible, for the reasons we have assigned when denying the popular origin of government. The constitution is the act of the sovereign authority, and therefore does not and cannot create that authority. There can be in the constitution no sovereignty but that which makes, imposes, or grants it. The sovereignty which made or granted it vested, it is conceded, in the States severally. Therefore the sovereignty in the constitution vests in the States severally, — not in the Union, which is their creature. Moreover, the whole vitality and force of the constitution are in the sovereignty which makes it, and are lost the moment that sovereignty ceases to exist. To suppose, then, that the State sovereignty, which made or granted the constitution, ceased to exist the moment the constitution was adopted, is to suppose that
the constitution the moment it was adopted became a nullity, and had no legal force or vitality. If the States were sovereign before its adoption, they must be after its adoption ; since it can be a constitution only by virtue of their sovereignty. Their sovereignty must survive its adoption, then, as much as the authority of the principal survives the instructions by which he constitutes his agent. Then the sovereignty vests, not in the Union, but in the States severally ; and then the Union has no powers but those the States have severally delegated to it. Mr. Jefferson and his peculiar school do not adopt precisely either Mr. Webster's theory, or the one we have set forth ; but appear to adopt one somewhere about midway between the two ; that is, that we are one sovereign people in all our foreign relations, and several independent, sovereign states in all our internal relations. This, if intended merely to state the practical fact, that under the constitution the foreign relations of the country are subjected to the Union, and the internal, with some rather important exceptions, to the State governments, is true enough, and nobody disputes it; but if intended to point out the seat of sovereignty under our system, is open to all the objections we have urged against the theory of Mr. Adams and that of Mr. Webster, and to all those which the consolida-tionists allege against State sovereignty, besides being an absurdity in itself. Sovereignty is necessarily one and indivisible. A divided sovereignty is inconceivable. The sovereignty must be in the States, and the exercise of it, within certain limits, delegated to the Union ; or it must be in the Union, and the exercise, within certain limits, delegated to the States. If you say the former, you have the doctrine we contend for ; if the latter, you have the theory either of Mr. Adams or of Mr. Webster. Moreover, if we were not one people in what regards our foreign relations before the adoption of the constitution, as, in refuting Mr. Adams, we have shown we were not, we could not be made one people in reference to those relations any more than in reference to our internal relations, for the reasons we have assigned against Mr. Webster. Both Mr. Jefferson and Mr. Webster appear to us to have been misled by their assumption, that the government derives its authority from the people, not as the state, byt as antecedent to the state, —the doctrine of the atheistical Hobbes, and the sentimental and licentious Jean Jacques Rousseau, — and by their overlooking the fact, that it is the political sovereign that makes or grants the constitution, not the constitution or fundamental law that
creates the sovereign ; and this has happened to them, we presume, in consequence of their having been more concerned with the practical mode to be adopted for administering government, than with inquiries into the origin and nature of government itself. Most of us, however logical we may be in our capacities and tendencies, are apt to take for our premises the assumptions of pur particular school, or of the community in which we are brought up, and. rarely, if ever, question them till we find them leading us into consequences from which our good sense or right feeling recoils. The error of these great men is easily accounted for, without detracting from their eminent talents, or.the solid worth of their characters.
The four views we have considered are all that have been or can be suggested on the constitution of the United States. No other than one of these is possible, and the last three we have seen, though supported by high authority, are inadmissible. Nothing remains, then, but the first, Mr. Calhoun's view, — namely, the sovereignty, under our system, still vests in the States, and the Union has only a delegated sovereignty, and can rightfully exercise only such powers as are specially delegated to it.* (Footnote: * Our readers must not understand us, in adopting Mr. Calhoun's theory of State sovereignty, to adopt also his doctrine of nullification. We heretofore gave in our adhesion to it, but a more thorough investigation of the subject than we had formerly made of it has led us to doubt bolli its theoretical soundness and its practical efficacy. If the sovereignty still vests in the States severally, a State must have, saving her faith, the right, to absolve her subjects, if she chooses, from their obligation to obey the Union, since she alone has created that obligation. But she can nullify no act of the Union in the passage of which she has participated, either for or against, without breaking her faith : and as she is, by her own agreement in consenting to the Union, rightfully held to participate in every act of the Union while she 'remains in it, whether she actively participates or not, she cannot nullify an act of the Union without seceding from it. She must secede, as the condition of nullifying without breach of faith.:, The abstract right of a Stale to secede we are not disposed to question '; but as no State has or can have the right to break its faith, we confess we can hardly conceive a case in which the State can practically exercise this abstract right, for it is hard to conceive a case in which the engagements the State has already entered into do not bind her to remain in the Union. But, as the subject has no necessary connection with our present discussion, we reserve its full consideration to some future occasion, should such occasion occur.--End of Footnote)
Practically, there is no difference in the mode of operation or in the legality of the acts of the Union, whether we assume the Union to be sovereign in its own right or only by the delegation of the States, so long as it keeps within its clear and unquestionable powers. The difference arises only the moment when it concerns doubtful powers. If the power is doubtful, the Union cannot exercise it; for the doubt must always be interpreted in favor of the States, against the Union. The Union can claim none of the incidental powers of sovereignty, unless they are expressly granted, and the only incidental powers it has are such as are incidental or necessary to the exercise of its express substantive powers.
There are, then, only two grounds on which plenary sovereignty over the territories of the United States can be claimed for the Union ; that is, it must be itself expressly granted, or it must be necessary to the exercise of some substantive power expressly granted. It evidently is not expressly granted. The only express grant of power over the territories is, that " the Congress shall have power to dispose of and make all needful rules and regulations respecting the territories and other property belonging to the United States." This is no grant of plenary sovereignty ; and nobody pretends or can pretend that the exercise of plenary sovereignty over the territories is necessary to the exercise of any other power granted in the constitution. Congress has simply power to dispose of and to make all needful rules and regulations respecting the territories belonging to the United States. Beyond this it cannot go without a usurpation of power. But needful to what ? Evidently to the end of preserving to the States the property and sovereignty of the territories, and to provide, perhaps, for their settlement, erection into States, and final admission into the Union. The most liberal construction can force nothing more than this from the language of the constitution. Then the power of Congress over the territories is restricted to this end, and it is only on the ground that it is necessary to this end that Congress has the power even to erect provisional territorial governments.
The question whether Congress has authority to exclude slavery from the territories is now easily disposed of. If the exclusion of slavery is needful or necessary to the exercise of the power granted, or to secure the end for which it was granted, Congress unquestionably has the power ; but if it is not, it has not the power. Since the power is not expressly granted, and can be exercised,.,if at all, only as an incident of some power expressly granted, it can be claimed as the incident of no power expressly granted but the one in question.' But the exclusion of slavery is not needful to the exercise of this, as is evident from past experience, and indeed of itself; it follows, therefore, necessarily, that Congress has no constitutional power to exclude slavery from the territories of the United States.
But it is contended that Congress may exclude it indirectly, hy refusing to admit into the Union any new State whose constitution permits slavery. The constitution says new States may be admitted, but does not say they shall be. It leaves the admission or non-admission to the discretion of Congress, and prescribes no conditions for admission or refusal. If Congress has discretionary power to admit or not to admit, it may refuse to admit a Slave State, if it chooses. This seems plausible enough.
But the Congress is the agent of the States ; the agent is bound to exercise his discretionary powers according to the general scope and design of his instructions, and can never so construe his discretion as to make it override a specific instruction, or to make it the grant of full powers over matters on which he has received specific instructions,1 and in them only limited powers. To do so, if not absolutely a usurpation of power, would be an abuse of power, which the law would not tolerate. Congress, by the fact that it is the agent and not the principal, is bound to subordinate its discretionary powers to the ends contemplated in the powers expressly granted in its instructions. As the power to exclude slavery from the territories is denied it by not being granted in the specific instructions which it has received respecting them, it cannot acquire it by any construction of its discretionary powers. Hence, Congress cannot exclude slavery from the territories by refusing to admit into the Union a State which authorizes it, nor can it refuse to admit the new State itself, on the ground that its constitution does not prohibit it, — certainly not without a dangerous abuse, if not absolutely a usurpation, of power. The Union is bound, by its general character of agent of the States, and its instructions as such, to treat the territories as nearly like the States as their exceptional character will allow. Consequently, as it is acknowledged on all hands to have no power over slavery in the States, it can have none over it in the territories, unless necessary to the exercise of its legitimate power over them. It is not necessary to this, and therefore it has and can have no power over it in the territories ; and then none to exclude a State from the Union for the sake of excluding slavery from the territory.
Moreover, the refusal of Congress to admit a new Slave-holding State into the Union would have little practical effect. New States, when once admitted, stand, and must stand, on an equal footing with the old Stales, and Congress can bind the new State after its admission no further than it can one of the old States. Every State now in the Union has the right, so far as the Union is concerned, to hold slaves. Massachusetts may reestablish slavery to-morrow in her dominions, if she chooses, and the Union has nothing to say to her. The new State, after her admission, would have the same right. All a State wishing to hold slaves has to do, then, is simply to prohibit slavery in her constitution for the sake of admission, and as soon as admitted call a convention, and strike out the prohibition. She will then have the right to hold slaves in defiance of Congress ; and if bent upon holding slaves, this would be her course, if she could gain admission on no other conditions.
It is clear, from what we have now established, that there is no constitutional means of preventing the extension of the area of slavery, if there should be an extension of the territory of the Union. What, then, are they who are resolved to confine it within its present limits to do ?
There are boys and girls and some men amongst us who will answer, Humanity is prior and paramount to constitutions, and has the right to prevail over all human conventions and legal enactments. This is very easy to say, and sounds very fine ; but it is true only on condition that it is humanity truly interpreted, instead of humanity as each fanatic may choose to interpret it for himself. The maintenance of legal order is the primary interest of mankind, because there is no interest of mankind that can be protected or promoted without it. They war upon humanity herself, who war, though professedly in her name, upon legal order, and trample on the constitutions of states. Humanity always requires us to show our philanthropy in subordination to the legal order of our country, and forbids us ever to do it in defiance of that order. Of two evils, we are allowed, nay, commanded, in morals, to choose that which is least; and there is no prudent man who can for a single moment doubt that the continuance and even extension of negro slavery is a less evil than the destruction of the whole legal order of the country. Such destruction would bring no liberty to the slave ; for it would be the destruction of all the conditions and guaranties of liberty, and the reduction of the whole population of the country to anarchy, which is worse than slavery.
There is no greater evil possible to humanity than is threatened by these Abolition and other associations which swarm over the land, and seek to expound to us the laws of God and of humanity ; and it is the duty of every one, who loves his God, his race, or his country, to oppose to them the firmest and the most persevering resistance. They are self-created, irresponsible, and without any authority to decide on any moral or political question, except what they arrogate to themselves. Whatever their avowed objects, they are engines destructies of all true liberty. They are formed for and against every thing, and usurp control over both the private and the public conscience. Already have they become in the so-called Free States nearly intolerable. They are everywhere ; they annoy us in our downsitting and uprising, in our eating and drinking, in our sleeping and waking. They overawe juries, they make the judge hesitate in his charge, and render the impartial administration of justice nearly impracticable. The magistrate fears to encounter them, and must obtain their permission, before venturing to discharge his duties. If we yield to them on one point, we must on another, — take the law from their dictation on one occasion, we must on all occasions, and hold our property, our liberty, and our consciences only at their mercy. Let us break up to-day the legal order of the country in reference to slavery at their bidding, and to-morrow we must do it in reference to some other question, next day to still another. All security then is gone. We are at the mercy of a wild, infatuated, and fickle multitude. The evils of negro slavery are but the dust in the balance with the evils we should then experU ence. No, never trample on law and constitutions in obedience to the mandates of self-constituted and irresponsible associations, which no well-ordered state can safely tolerate. A thousand times better is it to be the slave of the most brutal master, than to come under their lawless and fanatical sway.
Others, hardly less mad, seek to obviate the difficulty by dissolving the Union. But the dissolution of the Union would be the dissolution of American society itself. Remove the pressure of the Union, and the States would fall to pieces. Their strength, as well-ordered states, is in the Union. Let them resume the exercise of all their powers as independent sovereignties, and war, revolution, and anarchy would almost instantly follow. They would soon become hostile to each other, and bitter and savage in their hostility in proportion to the intimacy of their former mutual relations. The larger
States would soon reduce the smaller to the condition of conquered provinces, and oppression and misrule would become universal.
The external evils would be incalculable ; but the internal evils, those which would spring up in the bosom of the state itself, would almost infinitely exceed them. Not a single one of our State constitutions, especially in the Northern, Middle, and Western States, would stand. The insubordination, the love of change, the passion for experimenting of our people are so great, that nothing would remain permanent and fixed, but change itself. The tendency to ochlocracy is already fearfully strong. The reverence for law has nearly disappeared ; loyalty is a word of bad meaning ; fixed and permanent institutions are held to be derogatory to the majesty and sovereignty of the people, and there is a wide and active determination to sweep away every thing which may impose even a momentary check upon popular passion and popular caprice. The magistrate trembles before the multitude of the irresponsible and fanatical associations to which we have alluded, and the government in the Free States is already passing into their hands. And what are these associations themselves but mobs, —their influence but the influence of the mob, and their rule but the rule of the mob, — unknown as they are to the state, and to all laws, human and divine ? Antirentisrn, agrarianism, forming the principle of one of two leading parties in the great State of New York, the independence of the judiciary already gone, and the judges converted into demagogues by being made elective by the people, for a short term of years, and re-eligible,— a senseless Socialism spreading like wildfire from one end of the Union to the other, inflaming all ardent temperaments, maddening the young and inexperienced with delusive dreams and fallacious hopes, and undermining the very foundations of society itself, — tell but too plainly the dangerous elements at work in the heart of the American population, and the terrible evils which would fall upon us, if the Union were dissolved, and all the restlessness, ambition, intrigue, cunning, energy in each State, now absorbed by the general govern-. ment, were turned loose to prey at will upon the bosom of the State itself. Society would be broken up, anarchy in its most hideous forms would reign, and we should be sunk so low as to hail as a liberator the military despot who should succeed in restoring something like order by subjecting us to absolute dependence on his arbitrary will and iron rule. No ; talk not of the dissolution of the Union. Palsied be the tongue that would propose it ; palsied the arm that would attempt it. Let the day be cursed in which the wretch was born who dare wish it; let him be driven out from the habitations of men, and his memory perish for ever.
What, we ask again, is, then, to be done ? The question, as we intimated in the beginning, is practically important only on the supposition of the extension of the territory of the Union by new acquisitions from Mexico. So far as concerns our present territory, the question is merely speculative, Oregon is not likely to become a Slave State, and if slavery should be introduced there, it would soon die out, for the same reason that it has died out in the Northern and Central States of the Union, — because it would be found to be bad economy. The whole importance of the question, as a practical question, is occasioned by the present war with Mexico, and the probability of our insisting on a cession to us of a portion of her territory, adapted to a slave population. This gives a fearful interest to that war, and imposes a terrible responsibility on the government which has involved us in it, if it could with honor have avoided it.
We have heretofore observed silence on the Mexican war, for we do not like the idea of declaiming against a war in which our country is actually engaged, especially if we have only our private judgment on which to question its justice or necessity. We hold loyalty to be a virtue indispensable in the citizen, and that, even in a free country, no man has the right to offer a factious opposition to the administration, and no opposition at all beyond what is demanded by the clear and unquestionable calls of duty, either to his religion or to his country. Especially do we hold this to be the case when our country is engaged in war, and needs the cordial union and support of all her citizens. This consideration has prevented us heretofore from expressing our own views of the real character of the Mexican war, and would keep us silent even now, if there were a single solid reason for prosecuting that war any farther. But no such reason can be pretended. The success of our arms has secured to us already all the legitimate objects which the war could have had, and which could justify its further continuance. We are, therefore, no longer bound to silence ; but we and all good citizens are now at liberty to speak out freely, according to our mature and honest convictions, without subjecting ourselves to a charge of want of patriotism, or of offering a factious opposition.
For ourselves, we have regarded the Mexican war from the first as uncalled for, impolitic, and unjust. We have examined the documents published by order of the government ; we have read the official defence of the war in the last annual Message of the President to Congress, and with every disposition to find our own government in the right; but we are bound to say, that our original impressions have been strengthened rather than weakened. The President, undoubtedly, makes it clear that we had many just causes of complaint against Mexico, which at the time of their occurrence might have justified reprisals, perhaps even war, — but he cannot plead these in justification of the present war ; for they were not the ground on which we professed to engage in it. The official announcement of the President to Congress was that war already existed between the two republics, by the act of Mexico herself; and whatever use we may make of old grievances in adjusting the terms of peace, we can make no use of them in defending the war. We can plead in its defence only the fact on which we grounded it, namely, war exists by the act of Mexico herself. But unhappily, at the time of the official announcement, war did not exist between the two republics at all, for neither republic had declared war against the other. There had been a collision of their forces, but this was not war, as the President would probably have conceded, had he known or recollected the distinction between war and hostilities. By placing the war on the ground that it existed by the act of Mexico, and that ground being false, he has left it wholly indefensible, whatever the old grievances we may have to allege against Mexico.
The act of Mexico in crossing the Rio Grande, and engaging our troops on territory which she had possessed and still claimed as hers, but which we asserted had, by a recent act against which she had protested, become ours, — the act which the President chose to inform Congress and the world was war, — may or may not have been a just cause for declaring war against her, but it assuredly was not war itself. We have no intention to justify Mexico. She may have been decidedly in the wrong ; she may have had no valid title to the territory of which the President had just taken military occupation ; that territory may have been rightfully ours, and it may even have been the duty of the President to occupy and defend it; — but it cannot be denied that she had once possessed it; that it was still a part of one of her states or provinces ; that she still claimed it, and had continued to exercise jurisdiction over it, till driven from it by our army of occupation ; that she invaded it with an armed force, if invasion it can be called, not as territory belonging to us, but as territory belonging to her ; and that she attacked our troops, not for the reason that they were ours, but for the reason, as she held, — and she had as good a right to be judge in her own case as we had in ours, — that they were intruders, trespassers on her soil. The motive of her act was not war against the United States, but the expulsion of intruders from her own territory. No sophistry can make her act war,— certainly not without conceding that our act in taking military possession of that territory was also war ; and if that was war, then the war, if it existed at all, existed by our act and not by hers, for her act was consequent upon ours. The most that the President was at liberty to say, without condemning his own government, was, that there had been a collision of the forces of the two republics on a territory claimed by each ; but this collision he had no right to term war, for every body knows that it takes something more than a collision of their respective forces on a disputed territory to constitute war between two civilized nations. In no possible point of view was the announcement of the President that war existed between the two republics, and existed by the act of Mexico, correct. It did not exist at all; or if it did, it existed not by act of Mexico, but by our act. Ih either case, the official announcement was false, and cannot be defended.
The President may have been governed by patriotic motives ; he may have felt that prompt and energetic action was required ; he may have believed that in great emergencies the chief magistrate of a powerful republic, having to deal with a weak and distracted state, should rise superior to mere technical forms, and the niceties of truth and honor ; but it strikes us that he would have done better, proved himself even more patriotic, and sufficiently prompt and energetic, if he had confined himself to the ordinary rules of morality, and the well-defined principles of international law. By aspiring to rise above these, and to appear original, he has placed his country in a false position, and debarred himself, whatever the just causes of war Mexico may have given us, from pleading one of them in justification of the actual war. We must be permitted to regret that he did not reflect beforehand, that, if he placed the defence of the war on the ground that it already existed, and existed by the act of Mexico herself, and on that ground demanded of Congress the means of prosecuting it, he would, in case that ground proved to be untenable, as he must have known it would, have nothing whatever to allege in its or his own justification. He should have been lawyer enough to have known that he could not plead anew, after having failed on his first issue. It is often hazardous in our pleadings to plead what is not true, and in doing so in the present case, the President has not only offended morality, which he may regard as a small matter, but has even committed a blunder.
The course the President should have pursued is plain and obvious. On learning the state of things on the frontier, the critical condition of our army of occupation, he should have demanded of Congress the reinforcements and supplies necessary to relieve it and secure the purpose for which it was avowedly sent to the Rio Grande ; and, if he believed it proper or necessary, to have in addition laid before Congress a full and truthful statement of our relations with Mexico, including all the unadjusted complaints, past and present, we had against her, accompanied by the recommendation of a declaration of war. He would then have kept within the limits of his duty, proved himself a plain constitutional President, and left the responsibility of war or no war to Congress, the only war-making power known to our laws. Congress, after mature deliberation, might, or might not, have declared war, — most likely would not; but whether so or not, the responsibility would have rested with it, and no blame would have attached to the President.
Unhappily, this course did not occur to the President, or was too plain and simple to meet his approbation. As if fearful, if Congress deliberated, it might refuse to declare war, and as if determined to have war at any rate, he presented to Congress, not the true issue, whether war should or should not be declared, — but the false issue, whether Congress would grant him the means of prosecuting a war, waged against us by a foreign power. In the true issue, Congress might have hesitated ; in the one actually presented, there was no room to hesitate, if the official announcement of the President was to be credited, and hesitation would have been criminal. By declaring that the war already existed, and by the act of Mexico herself, the President relieved Congress of the responsibility of the war, by throwing it all on Mexico. But since he cannot fasten it on Mexico, — for war did not already exist, or if so, by our act, and not hers, — it necessarily recoils upon himself,and he must bear the responsibility of doing what the constitution forbids him to do, — of making war without the intervention of Congress. In effect, therefore, he has trampled the constitution under his feet, set a dangerous precedent, and, by the official publication of a palpable falsehood, sullied the national honor. It is with no pleasure that we speak thus of the chief magistrate of the Union, for whose elevation to his high and responsible office we ourselves voted. But whatever may be our attachment to party, or the respect we hold to be due from all good citizens to the civil magistrate, we cannot see the constitution violated, and the national honor sacrificed, whether by friend or foe, from good motives or bad, without entering, feeble though it be, our stern and indignant protest. The humiliation is deep and painful, and would be insupportable, were it not for the earnest patriotism of the people which the war has called forth, and the brilliant achievements of our brave troops in Mexico. These relieve the gloom, and make us still proud to call ourselves an American citizen.* (Footnote)* We are far from regarding Congress, in echoing the false statement of the President, as free from blame. It ought to have seen and corrected the executive — mistake. Yet it is not surprising that it took the President at his word. The late Congress had some able members, and it adopted some judicious measures; but we express only the common sentiment of all parties, when we say it was far from covering itself with glory, and that it is to be hoped another Congress like it will not meet again very soon. Various motives, no doubt, governed the members. Many, no doubt, ignorant of the distinction between war and hostilities, really believed the President, and therefore regarded the suggestion that war did not exist, and exist by the act of Mexico, as proceeding either from a want of patriotism, or from a factious opposition to the administration. Some, perhaps, felt that they were bound by their party obligations to support executive measures, whether right or wrong ; others felt that the declaration of the President, whether true or false, would shield them; others still, perhaps, acquiesced, lest their patriotism should be questioned, and their opposition be set down to faction ; and, finally, a number, very likely, believing war to be inevitable, and not undesirable, held that it mattered little on what pretence it was made, providing it was made and prosecuted with vigor. These could see no good likely to result from the deliberations of Congress. The issue presented, the actual slate of the army, were adapted to mislead many, and left no time to deliberate, to take a calm survey of the momentous question, and correct first impressions. All was hurry and confusion. The danger was imminent, and permitted no delay. The administration and its confidential friends would suffer no division of the question, and through the influence of committees forced members either to vote the war or bear the odium of refusing to vote the reinforcements and supplies necessary to the safety of the army. Those who had scruples could obtain no division and no delay, and the greater part of the members of both Houses yielded to the executive. It is to be regretted they did ; but, however censurable they were, their wrong does not relieve the Presrdent, nor can their votes under protest be pleaded by his friends in mitigation of his conduct; because it was by his act that they were led, almost compelled, to do what they did. (End of Footnote).
But passing over this, we have yet to be convinced, whatever were the just causes of complaint we had against Mexico, that the war was called for. We are willing to admit that we had suffered grievous wrongs from Mexico, and that we had shown exemplary forbearance, and treated her with great generosity ; but she had shown a willingness to treat with us, and the greater part, if not all, of the old offences we had had to complain of she had acknowledged, and they had been settled in a convention of the two republics. True, she had not, in all cases, fulfilled her engagements ; but she had manifested no unwillingness to fulfil them, and no one doubts that she would have fulfilled them, had it not been for her unsettled and distracted internal state. The more recent difficulties growing out of the affair of Texas demanded great delicacy and forbearance on our part. She felt herself wronged and humbled by the annexation of Texas to the Union, and, however blameworthy we may choose to regard her conduct, we are sure, if the cases had been reversed, we should have behaved at least no better than she did. She protested, as was her undoubted right, against the annexation of Texas; but she committed no act of violence against us, so long as we confined our army of occupation to territory over which Texas had actually exercised jurisdiction. We might well have forborne to press our claims further, and it would have been no derogation of our national dignity to have refrained from pushing our claims at once to their farthest limits against a weak, humbled, and distracted, albeit gasconading, neighbour. It would have been wise and just to give her time to cool, — time for her wounds to begin to heal, and to reconcile herself to her humiliating loss. — especially since she had been stripped of the province of Texas through her misfortune, not her fault.
The necessity of sending our troops from Corpus Chrisli to the Rio Grande, to occupy a position within territory claimed indeed by Texas, but which it is well known continued to be subject to Mexican laws, and to form a portion of one of the undoubted states or provinces of the Mexican republic, was not at all urgent. That the position taken up by General Taylor, under orders of the President, was in territory which had never been in the actual possession of Texas, and which had continued since as before Texan independence subject to Mexican authority, it is worse than idle to question: Whether we had a right to claim under Texas beyond what Texas held in actual subjection to her laws may be disputed ; but even admitting that we had a valid title to all of Mexico to which Texas saw proper to set up a claim, there can be no doubt that a little patience would have enabled us to adjust peaceably the question of boundary between the two republics. But if worst had come to worst, we might at any time have fixed upon the boundary we intended to maintain, and confined ourselves simply to its defence. The real cause of the war, disguise it as we may, was the act of the President in ordering the troops under General Taylor to the Rio Grande, an act done on his sole responsibility, while Congress was in session, and without necessity or reason of state ; for, so long as we were the stronger party, there was no danger of our losing our title by delaying to vindicate it, and there was no other conceivable reason for urging its immediate vindication. The vindication could have been safely, prudently delayed. The act, therefore, which brought on the war was an unnecessary act, and therefore the war itself was uncalled for.* (Footnote* It is contended, in opposition to us, that the removal of our troops to the territory between the Nueces and the Rio Grande was not the immediate cause of the war, — 1. Because Mexico has never made that act a special ground of complaint; and, 3. Because that territory was as much a part of the State of Texas as that to the east of the Nueces. These replies are both disingenuous. That the actual jurisdiction in some instances and to some extent crossed the Nueces, we believe to be true ; for Corpus Christi itself, on the map we have consulted, is to the west of that river; but that it extended to the Rio Grande, or even far to the west of the Nueces, is not true. Texas may have declared that the whole of the territory between the two rivers was included within one of her Congressional districts, for that was easy enough to do; but there is no one bold enough to say that she opened her polls and received votes for her Congressmen from the citizens of Tamaulipas, in the vicinity of what is now Fort Brown, or even in the vicinity of Point Isabel. The laws of Texas were never acknowledged or regularly enforced in that section. That Texas set up a claim to the Rio Grande, we concede ; but that she actually exercised jurisdiction to the Rio Grande, or far to the west of the Nueces, is what we deny, and the government, so far as we have seen, lias offered no evidence to the contrary.
The second reply is more disingenuous still. Mexico sets up a claim to the whole of Texas to the Sabine, and that claim she refuses to relinquish. While she continues her claim to the whole, she can make no distinction
as to a part. She could not plead our occupation of the territory in question as a special grievance, without making a distinction between it and that east of it, and, in fact, not without abandoning her claim to all the rest of Texas. This reply by some of the defenders of the President may answer to throw dust in the eyes of the people, but it is really unworthy of an American citizen. Nothing would have pleased our government more than to have found Mexico complaining of that invasion as a special grievance. No doubt, it was the very blunder they hoped to provoke her to commit; and if she had committed it, we can believe our troops would have been speedily ordered back to the Nueces ; for it would have virtually yielded to us all the territory Texas actually possessed, and with that the President would probably have been satisfied. It is idle, then, to draw any inference from the silence of Mexico as to the act which we say was the immediate cause of the war. That it was the immediate cause of the war we may infer from the fact, that, till it was done, Mexico made no effort to disturb our possession of Texas ; and there can be little doubt, that, but for it, she would silently have abandoned her claim to all of Texas east of the Nueces. (End of footnote)
The war, furthermore, was impolitic. If unsuccessful, it could not fail to disgrace us ; if successful, it could hardly fail to weaken Mexico, already too weak for our interest. The true policy of this country is, not to destroy, absorb, or weaken Mexico, but to preserve her nationality and independence, and to strengthen her. It is a great evil to a nation to have only weak neighbours, and worse than madness for us to seek to be the only power on the North American continent. Solitude is no more the normal state for a nation than for an individual, and in the case of either, without special grace, is hurtful. If the nation has only weak neighbours, it will be constantly tempted to the practice of injustice ; and if no neighbours, it will be torn by intestine divisions, and sink into anarchy or despotism.
But especially was this war impolitic in consequence of the slave question, already threatening the Union, and with difficulty restrained within constitutional limits. The war, if successful, can hardly fail in extorting from Mexico a portion of her territory, and that territory to some extent not unsuitable to a slave population. Its annexation to the Union must bring on, in all its fierceness, the contest between the Free States and the Slave States, —• a contest in which both have much to lose, and neither any thing to gain. The Free States are resolved not to pour out their blood and treasure to extend what they regard as a detestable system, and, if new territory is acquired, they cannot, as we'have seen, avoid doing so, without trampling on the constitution, which we are afraid, if forced to the alternative, they will not hesitate to do. The administration should have foreseen this, and avoided the war, if possible, for this reason, if for no other ; for, if the Antislavery party find itself strong enough to prevent the extension of slavery in defiance of the constitution, it will not stop there. It will no longer respect constitutional barriers ; but will take up the question of slavery in the States, and immediate emancipation or civil war will be the alternative, — both bad, and one hardly more to be deprecated than the other. If no foreign element be introduced to give additional force to the excitement already so fearful, the friends of the constitution may be able, at least for a time, to keep it from any direct interference with slavery where it is ; but introduce such an element, let there be a colorable pretext for asserting that the Free States are called upon, not merely to let slavery alone, but to aid in extending it, and there is no longer among us any power to control the consequences. The present administration should have considered this, and have studiously avoided every occasion of fanning the excitement. It has, we are sorry to say, not done so. It has gained no friends by its policy at the North, and it has done its best to ruin the South.
In the present posture of affairs, and in view of the probable results of the war, there is only one constitutional course to be pursued, and that is for both the friends and the enemies of the slave system to unite in resisting the further extension of the territory of the Union. This is politic and constitutional. Mexico must not be dismembered, nor a foot of her territory permanently annexed to the Union. Let this be the settled policy of both parties. Let not the South think of converting the North to her views of slavery, nor the North attempt to check the progress of slavery by trampling on the constitution. It is too late in the day to attempt the former, and it is always out of season to dream of the latter. But both may unite in resisting any extension of the present territory of the Union, and, in doing so, remove all additional pretext for excitement. The territory of the Union is large enough, and he is as poor a patriot as he is a statesman who would seek to extend its bounds. The insane rage of a portion of our people for annexation, and the influence demagogues acquire for nefarious purposes by appealing to it, must be checked, or our national honor is gone, our national sense of justice obliterated, and our free institutions become our reproach. A firm and successful resistance of the attempt likely to be made to extend the. territory of the Union, by cessions extorted from Mexico, will have this salutary effect, and we trust it will be made.