in his speech on the Oregon territorial bill, delivered in the Senate in 1848, wherein he said:

But I deny that the laws of Mexico can have the effect attributed to them (that of keeping slavery out of New Mexico and California). As soon as the treaty between the two countries is ratified the sovereignty and authority of Mexico in the territory acquired by it become extinct and that of the United States is substituted in its place, carrying with it the Constitution, with its overriding control over all the laws and institutions of Mexico inconsistent with it."

The treaty of peace with Mexico was proclaimed July 4, 1848. The conditions then existing in California demanded the immediate establishment of a Territorial government. The military government was having difficulty to maintain its authority, for the discovery of gold led to constant desertions from military service by the soldiers and brought into the territory a great number of lawless persons. Congress sat for six months after the treaty had been ratified attempting to provide government for the new territories, but such were the distractions of the slavery question that their efforts were unavailing. Another session was had and was drawing to a close with the same fruitless result. In the closing days of the session the general appropriation bill came from the House to the Senate. It was considered and was ready to be returned to the House, when Mr. Walker, of Wisconsin, moved to amend it by attaching a section providing a temporary government for the ceded territories and extending over them certain designated acts of Congress. Subsequently Mr. Walker, at the solicitation of other Senators, modified his amendment so as to provide for the extension of the Constitution over said territories. (Cong. Globe, vol. 20, p. 561.)

The announcement of the doctrine of the extension of the Constitution, ex proprio vigore, over territory newly acquired, opened an alarming prospect to the opponents of slavery. They feared that the Supreme Court of the United States would sustain the doctrine and thereby bring to naught the efforts made to keep slavery out of the Territories. They vehemently assailed the Walker amendment, at first, upon the grounds of expediency. This placed them at a disadvantage, for the necessity of providing a government for California was obvious. The supporters of the Calhoun doctrine were equally at a disadvantage, for, if the Constitution extended over New Mexico and California, ex proprio vigore, there was no use in resorting to Congressional action for the accomplishment of that extension. The discussion took the regular slavery turn. That portion of it which is of interest in connection with the application of the doctrine to the conditions now calling for consideration, arose as follows:

Mr. Bell, of Tennessee, offered an amendment to the Walker amendment, providing for the immediate creation of the "State of Cali

a

For Calhoun's view on proposition at time Florida was annexed, see ante, page 140.

fornia" by Congressional enactment and that such State, so created, "is hereby admitted into the Union." (Cong. Globe, vol. 20, p. 562.)

Mr. Berrien, of Georgia, a member of the Judiciary Committee, assailed this proposal as being in excess of the powers of Congress, since the Constitution did not confer the authority to create States upon that body. In the course of his argument he said:

But I put the question, since it is obvious that this whole subject was considered by the convention-since they gave to Congress the power to make rules and regulations for the government of the Territories and authorized them to admit new States— would they have overlooked the condition of the people of a Territory, in their transition state from their Territorial condition to that of a State, if they had intended to invest Congress with power over that subject, the power to create a State? No, sir It was omitted, and purposely omitted, in obedience to those great and broad principles by which that convention was actuated-to the principles of popular sovereignty which belongs to every free people, which requires that those who are to constitute the State are alone competent to organize it. Sir, this interpretation of the Constitution has been verified by the uniform usage of this Government from the very time of its foundation to the present moment.

But the question here is, whether the State that is formed by the people of a Territory, with the consent of Congress, is created by the people or by Congress? And when that question is examined by the Senator from Tennessee I think he will find it can not admit of a doubt. Congress does not form a constitution and government for the new State. It authorizes the people of the Territory to do this. If the power was in Congress, why do they not exercise it? If Congress possessed the power of creating a State, why do they depute the power to another and not exercise it themselves? Could they exercise it? Could they form a constitution for the new State and compel the people of the Territory to accept it and become a State? Sir, it was under the conviction of a total want of power-in obedience to that principle of free governments that it belongs to the people who are to form the State to frame the constitution which is to regulate the action of that State. (Appendix to Cong. Globe, vol. 20, p. 254.)

Mr. Dayton, of New Jersey, desired to provide for the government of California by the enactment of a law containing the provisions of the statute which gave a temporary government to Louisiana and Florida. (Appendix to Cong. Globe, vol. 20, p. 256.) He opposed the plan of creating a State by Congressional action, and, respecting that proposal, said:

How can you make California a State government? Can Congress create a State? Congress create a State! Sir, I never thought, until I heard it here a day or two since from the Senator from Tennessee (Mr. Bell), that such a proposition could have entered the mind of any human being. His idea is, that Congress can alone create a State; that no State government can be created in our Territories, save by revolution, if without the authority of Congress. Now, what does this argument prove? Suppose no State could be created in Territories without the leave of Congress, either in advance or by adoption afterwards, save by revolution, what does it prove? It only proves, sir, that we can admit a State into the Union which is a State de facto by revolution. When the debates of the convention were in progress, the section declaring that new States may be admitted was inserted with reference to a future admission of the Canadas, then a dependent province, which of course could only become States by revolution. The only object of the section was to admit a State

which might become so by revolution. If we have power to create a State, why do we not do it? Why say to the people of our Territories, as we ever have, if you are disposed to create a State we will admit you? It is an act of popular sovereignty, exercise it if you please. Our power is to admit, permit you to come, not to force you. If we had this power to create, all we would have to do would be to pass a law and resolve that California was a State, and it would become one. A schoolboy may cut a man out of a bit of paper and say it is a man, but is it a man? Has it the blood, bones, and sinews of a man? You call this Territory a State, but is it a State? Has it any of the essential powers or prerequisites of a State? Can it do anything that a State can do? If not, what a farce is it to call it a State. (Appendix to Cong. Globe, vol. 20, p. 257.)

Later in the discussion Mr. Dayton further said:

I supposed it was a clear point that the Constitution of the United States, being a contract and agreement between sovereign States, could be extended no further than it, by its inherent power, extended itself. No act of legislation could make that compact between sovereign States reach further than to these States. Now, the Senator talks about the principles of the Constitution. Why, the Constitution, sir, does not consist of matters of principle. It is a compact and agreement between sovereign States. It is not like the principles of the common law or the principles of the civil law. It is something entirely different in all its aspects. I hope that I am not intruding upon the time of the Senator from Wisconsin in saying that the Constitution can not, by legislative act, be extended an inch beyond the territory over which its inherent power will carry it. (Appendix to Cong. Globe, vol. 20, p. 268.)

Mr. Hale, of New Hampshire, opposed both the Calhoun doctrine and the Walker amendment, basing his opposition upon the fact that the Constitution was a compact between States, created in order to form a more perfect union of States, and, under our theory of gov ernment, it was necessary for a State to be in existence and to manifest its willingness to enter the compact in order to become a party thereto, and therefore the Constitution could not extend to territory, organized or unorganized, either ex proprio vigore or by Congressional enactment. In the course of his argument Mr. Hale said:

I am at a loss to see how the Constitution, which is an agreement by which the people of the United States pledge themselves to the performance of certain duties, for the mutual attainment of certain great ends and securing great privileges, can, by any act of legislation, an exercise of mere arbitrary power, be extended over those who do not voluntarily become parties to the compact. You and I may make a bargain and bind ourselves to carry out our agreement, but how can we extend its restrictions over those who do not agree to its stipulations? We may extend the invitation to the people of these Territories, under certain restrictions, to band themselves together so that they may become parties to this confederacy, but for us to extend to them the privileges of an agreement with the provisions of which they will not concur strikes me, with all due respect to the Senators who advocate the principle, as an absurdity.

What is this Constitution? If anything, it is a fundamental law, and if we may extend its provisions by legislative enactment we may withdraw them in the same manner. If the Constitution of the United States, by an act of the two Houses of Congress, may be extended to a people who do not desire to take it, why may we not take it away from that people upon the same principle that we have extended to them? Sir, the framers of this Constitution did not so understand it. By the Constitution it was provided that as soon as nine of the States had adopted it it should

go into operation and be obligatory on them.

Now, if the doctrine advanced by the Senator from Wisconsin be true, all that these nine States had to do in order to have the whole Confederacy united in support of the Constitution at that particular time was to extend its provisions over the four remaining States, notwithstanding their disapproval of it. Such a construction of the Constitution as this never entered the heads of its framers, nor did they ever treat it as anything but what it purports to be-a compact. But the Senator from Georgia endeavors to meet this difficulty by saying that we may extend one or more of the provisions of the Constitution by legislative enactment, so that the people of the Territories may be governed by these provisions of the Constitution. And so we may extend any of the provisions of the Constitution, one by one, and make them the law of that country. But this is a different thing from extending the Constitution itself. There is exactly the same objection in my mind to this amendment that there was to the amendment proposed to the famous compromise bill reported at the last session. It proposed not to make any enactment which you dared not make at that time. As we did not dare to make the enactment we attempted to get around it by transferring to the judiciary the performance of the duty which we ought to have executed ourselves. This amendment, if it does anything at all, adopts the very principles of the compromise bill; it provides that the Constitution, whatever may be its provisions on the subject of slavery, shall be extended over these Territories, and then leaves the interpretation and execution of these provisions to the decision of the Supreme Court, exactly in the same manner as the compromise bill did.

There is another article in the preamble to the Constitution, as originally formed, which throws some light upon this question, and that is the declaration that the Constitution was formed “for the United States." And there is great force in the suggestion thrown out by the Senator from New Jersey (Mr. Dayton) that he did not understand the Territories as being subject to the Constitution as an entire instrument, because the first section of the third article provides that "the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior," and we appoint judges of the inferior courts in the Territories for a limited time, thus conceding that the Constitution, as a whole, does not extend over these Territories, nor can it do so; the idea is absurd. This is the main difficulty in the way of the amendment of the Senator from Wisconsin, that instead of recognizing the Constitution simply as a compact he regards it as a law which we may extend or not at our pleasure, which I think is not competent for us to do. (Appendix to Cong. Globe, vol. 20, p. 270.)

None of the supporters of the Calhoun doctrine seemed to entertain the idea that the Constitution and body of laws of the United States extended, in entirety, over New Mexico and California. It was conceded that the extension was limited to such parts of the Constitution and body of laws as were applicable to the conditions existing in said territory.

Mr. Butler, of South Carolina, said:

I go further and say that, proprio vigore, the moment that Territories are acquired under treaty the provisions of the Constitution of the United States extend to that Territory, to some, though not to the entire, extent of its provisions. This Territory was acquired under treaty, and I say that the provisions of the Constitution, with the qualification of applicability, are now, proprio vigore, the fundamental law of California and New Mexico. And when I say that, I admit that there may be wanting some machinery of courts and officers to carry out those provisions, but they nevertheless exist as the fundamental law. (Appendix to Cong. Globe, vol. 20, p. 271.)

At this point in the debate occurred the famous colloquial discussion of the subject between Webster and Calhoun. This discussion has such direct bearing upon the subject that it is quoted in full.

Mr. WEBSTER. Mr. President, it is of importance that we should seek to have clear ideas and correct notions of the question which this amendment of the member from Wisconsin has presented to us; and especially that we should seek to get some conception of what is meant by the proposition in a law to "extend the Constitution of the United States to the Territories." Why, sir, the thing is utterly impossible. All the legislation in the world in this general form could not accomplish it. There is no cause for the operation of the legislative power in such a manner as that. The Constitution-what is it? We extend the Constitution of the United States to territory! What is the Constitution of the United States? Is not its very first principle that all within its influence and comprehension shall be represented in the legislature which it establishes, with not only a right of debate and a right to vote in both Houses of Congress, but a right to partake in the choice of the President and VicePresident? And can we by law extend these rights, or any of them, to a Territory of the United States? Everybody will see that it is altogether impracticable. Well, sir, the amendment goes on and says that the revenue laws shall, so far as they are suitable, be applied in the Territories. Now, with respect to that qualification made by the honorable member from Wisconsin, I shall like to know if he understands it, as I suppose he does. Does the expression "as far as suitable" apply to the Constitution or the revenue laws, or both?

Mr. WALKER. It was not the proposition to extend the Constitution beyond the limits to which it was applicable.

Mr. WEBSTER. It comes to this, then, that the Constitution is to be extended as far as practicable; but how far that is is to be decided by the President of the United States, and therefore he is to have absolute and despotic power. He is the judge of what is suitable and what is unsuitable, and what he thinks is suitable is suitable, and what he thinks unsuitable is unsuitable. He is "omnis in hoc;" and what is this but to say in general terms that the President of the United States shall govern this Territory as he sees fit till Congress makes further provision? Now, if the gentleman will be kind enough to tell me what principle of the Constitution he supposes suitable, what discrimination he can draw between suitable and unsuitable, which he proposes to follow, I shall be instructed. Let me say that in this general sense there is no such thing as extending the Constitution. The Constitution is extended over the United States and over nothing else, and can extend over nothing else. It can not be extended over anything except over the old States and the new States that shall come in hereafter, when they do come in. There is a want of accuracy of ideas in this respect that is quite remarkable among eminent gentlemen, and especially professional and judicial gentlemen. It seems to be taken for granted that the right of trial by jury, the habeas corpus, and every principle designed to protect personal liberty is extended by force of the Constitution itself over every new Territory. That proposition can not be maintained at all. How do you arrive at it by any reasoning or deduction? It can be only arrived at by the loosest of all possible constructions. It is said this must be so, else the right of the habeas corpus would be lost. Undoubtedly these rights must be conferred by law before they can be enjoyed in a Territory.

Sir, if the hopes of some gentlemen were realized, and Cuba were to become a possession of the United States by cession, does anybody suppose that the habeas corpus and the trial by jury would be established in it by the mere act of cession? Why more than election laws and the political franchises, or popular franchises? Sir, the whole authority of Congress on this subject is embraced in that very short provision that Congress shall have power to make all needful rules and regulations 13635-02-10