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respecting the Territories of the United States. The word is Territories; for it is quite evident that the compromises of the Constitution looked to no new acquisitions to form new Territories. But as they have been acquired from time to time, new Territories have been regarded as coming under that general provision for making rules for Territories. We have never had a Territory governed as the United States are governed. The legislature and the judiciary of Territories have always been established by a law of Congress. I do not say that while we sit here to make laws for these Territories, we are not bound by every one of those great principles which are intended as general securities for public liberty. But they do not exist in Territories till introduced by the authority of Congress. These principles do not. proprio vigore, apply to any one of the Territories of the United States, because that Territory, while a Territory, does not become a part, and is no part, of the United States.
Mr. Calhoun. I rise, not to detain the Senate to any considerable extent, but to make a few remarks upon the proposition first advanced by the Senator from New Jersey, fully indorsed by the Senator from New Hampshire, and partly indorsed by the Senator from Massachusetts, that the Constitution of the United States does not extend to the Territories. That is the point. I am very happy, sir, to hear this proposition thus asserted, for it will have the effect of narrowing very greatly the controversy between the North and the South, as it regards the slavery question in connection with the Territories. It is an implied admission on the part of those gentlemen that, if the Constitution does extend to the Territories, the South will be protected in the enjoyment of its property—that it will be under the shield of the Constitution. You can put no other interpretation upon the proposition which the gentlemen have made than that the Constitution does not extend to the Territories.
Then the simple question is, Does the Constitution extend to the Territories, or does it not extend to them? Why, the Constitution interprets itself. It pronounces itself to be the supreme law of the land.
Mr. WEBSTER. What land?
Mr. Calhoun. The land; the Territories of the United States are a part of the land. It is the supreme law, not within the limits of the States of this Union merely, but wherever our flag waves-wherever our authority goes, the Constitution in part goes, not all its provisions, certainly, but all its suitable provisions. Why, can we have any authority beyond the Constitution? I put the question solemnly to gentlemen: If the Constitution does not go there, how are we to have any authority or jurisdiction whatever? Is not Congress the creature of the Constitution? Does it not hold its existence upon the tenure of the continuance of the Constitution, and would it not be annihilated upon the destruction of that instrument, and the consequent dissolution of this confederacy? And shall we, the creature of the Constitution, pretend that we have any authority beyond the reach of the Constitution? Sir, we were told a few days since that the courts of the United States had made a decision that the Constitution did not extend to the Territories without an act of Congress. I confess that I was incredulous, and I am still incredulous that any tribunal, pretending to have a knowledge of our system of government, as the courts of the United States ought to have, could have pronounced such a monstrous judg. ment. I am inclined to think that it is an error which has been unjustly attributed to them; but if they have made such a decision as that, I for one say that it ought not and never can be respected. The Territories belong to us; they are ours; that is to say, they are the property of the thirty States of the Union; and we, as the representatives of those thirty States, have the right to exercise all that authority and jurisdiction which ownership carries with it.
Sir, there are some questions that do not admit of lengthened discussion. This is one of them. The mere statement is sufficient to carry conviction with it. And I am rejoiced to hear gentlemen acknowledge that if the Constitution is there we are under its shield. The South wants no higher ground to stand upon. The
gentlemen have put us upon high ground by the admission that their only means of putting their claims above ours is to deny the existence of the Constitution in California and New Mexico. The Senator from Massachusetts, I say, in part indorsed the proposition. He qualified it, however, by saying that all the fundamental principles of that instrument must be regarded as having application to the Territories. Now, is there a more fundamental principle than that the States of which this Federal Union is composed have a community of interest in all that belongs to the Union in its federative character? And that the territory of the United States belongs to the Union in that capacity is declared by the Constitution, and that there shall be, in all respects, perfect equality among all the members of the Confederacy. There is no principle more distinctly set forth than that there shall be no discrimination in favor of one section over another, and that the Constitution shall have no halfway operation in regard to one portion of the Union, while it shall have full force and effect in regard to another portion.
I will not dwell upon this. I will only listen, if gentlemen choose to go on, in order to discover by what ingenuity they can make out their case. It is a mere assumption to say that the Constitution does not extend to the Territories. Let the gentlemen prove their assumption. I hold the course of the whole of this debate to be triumphant to us. We are placed upon higher ground; we have a narrower question to defend; and it will be understood by the community that we are nonsuited only by a denial of the existence of the Constitution in the Territories.
Mr. WEBSTER. The honorable Senator from South Carolina alludes to some decision of the United States courts as affirming that the Constitution of the United States does not extend to the Territories, and he says that with regard to
Mr. CALHOUN. I hope the gentleman will state my position exactly right. I said I was told a few days since that they had so decided, but that I was incredulous of the fact.
Mr. WEBSTER. I can remove the gentleman's incredulity very easily, for I can assure him that the same thing has been decided by the United States courts over and over again for the last thirty years.
Mr. CALHOUN. I would be glad to hear the gentleman mention a case in which such a decision was given.
Mr. WEBSTER. Upon a few moments consideration I could mention a number of cases. The Constitution, as the gentleman contends, extends over the Territories. How does it get there? I am surprised to hear a gentleman so distinguished as a strict constructionist affirming that the Constitution of the United States extends to the Territories without showing us any clause in the Constitution in any way leading to that result, and to hear the gentleman maintaining that position without showing us any way in which such a result could be inferred increases my surprise.
One idea further upon this branch of the subject. The Constitution of the United States extending over the Terrttories and no other law existing there! Why, I beg to know how any government could proceed, without any other authority existing there than such as is created by the Constitution of the United States? Does the Constitution of the United States settle titles to land? Does it regulate the rights of property? Does it fix the relations of parent and child, guardian and ward? The Constitution of the United States establishes what the gentleman calls a confederation for certain great purposes, leaving all the great mass of laws which is to govern society to derive their existence from State enactments. That is the just view of the state of things under the Constitution. And a State or a Territory that has no law but such as it derives from the Constitution of the United States must be entirely without any State or Territorial government. The honorable Senator from South Carolina, conversant with the subject as he must be, from his long experience in different branches of the Government, must know that the Congress of the United States have established principles in regard to the Territories that are utterly repugnant to the Constitution. The Constitution of the United States has provided for them an independent judiciary; for the judge of every court of the United States holds his office upon the tenure of good behavior. Will the gentleman say that in any court established in the Territories the judge holds his office in that way? He holds it for a term of years, and is removable at Executive discretion. How did we govern Louisiana before it was a State? Did the writ of habeas corpus exist in Louisiana during its Territorial existence? Or the right to trial by jury? Who ever heard of trial by jury there before the law creating the Territorial government gave the right to trial by jury? No one. And I do not believe that there is any new light now to be thrown upon the history of the proceedings of this Government in relation to that matter. When new territory has been acquired it has always been subject to the laws of Congress, to such law as Congress thought proper to pass for its immediate government, for its government during its territorial existence, during the preparatory state in which it was to remain until it was ready to come into the Union as one of the family of States.
The honorable Senator from South Carolina argues that the Constitution declares itself to be the law of the land, and that therefore it must extend over the Territories. “The land," I take it, means the land over which the Constitution is established, or, in other words, it means the States united under the Constitution. But does not the gentleman see at once that that argument would prove a great deal too much? The Constitution no more says that the Constitution itself shall be the supreme law of the land than it says that the laws of Congress shall be the supreme law of the land. It declares that the Constitution and the laws of Congress passed under it shall be the supreme law of the land. Mr. Calhoun. The laws of Congress made in pursuance of its provisions.
Mr. WEBSTER. Well, I suppose the revenue laws are made in pursuance of its provisions; but, according to the gentleman's reasoning, the Constitution extends over the Territories as the supreme law, and no legislation on the subject is necessary. This would be tantamount to saying that the moment territory is attached to the United States, all the laws of the United States, as well as the Constitution of the United States, become the governing will of men's conduct, and of the rights of property, because they are declared to be the law of the land—the laws of Congress being the supreme law as well as the Constitution of the United States. Sir, this is a course of reasoning that can not be maintained. The Crown of England often makes conquests of territory. Who ever heard it contended that the constitution of England, or the supreme power of Parliament, because it is the law of the land, extended over the territory thus acquired, until made to do so by a special act of Parliament? The whole history of colonial conquest shows entirely the reverse. Until provision is made by act of Parliament for a civil government, the territory is held as a military acquisition. It is subject to the control of Parliament, and Parliament may make all laws that they deem proper and necessary to be made for its government; but until such provision is made, the territory is not under the dominion of English law. And it is exactly upon the same principle that territories coming to belong to the United States by acquisition or by cession, as we have no jus coronæ, remain to be made subject to the operation of our supreme law by an enactment of Congress.'
Mr. CALHOUN. I shall be extremely brief in noticing the arguments of the honorable Senator from Massachusetts, and, I trust, decisive. His first objection is, as I understand it, that I show no authority by which the Constitution of the United States is extended to the Territories. How does Congress get any power over the Territories?
Mr. WEBSTER. It is granted in the Constitution in so many words—the power to make laws for the government of the Territories.
Mr. CalhouN. Well, then, the proposition that the Constitution does not extend to the Territories is false to that extent. How else does Congress obtain the legisla
tive power over the Territories? And yet the honorable Senator says I assign no reason for it. I assigned the strongest reason. If the Constitution does not extend there, you have no right to legislate or to do any act in reference to the Territories.
Well, as to the next point. The honorable Senator states that he was surprised to hear from a strict constructionist the proposition that the Constitution extends itself to the Territories. I certainly never conte ded that the Cor ution was of itself sufficient for the government of Territories without the intervention of legislative enactments. It requires human agency everywhere; it can not extend itself within the limits of any State, in the sense in which the gentleman speaks of it. It is, nevertheless, the supreme law, in obedience to which, and in conformity with which, all legislative enactments must be made. And the proposition that the Constitution of the United States extends to the Territories so far as it is applicable to them is so clear a proposition that even the Senator from Massachusetts, with his profound talent, can not disprove it. I will put the case of some of the negative provisions of the Constitution. Congress can make no law concerning religion, nor create titles of nobility. Can you establish titles of nobility in California? If not, if all the negative provisions extend to the Territories, why not the positive? I do not think it necessary to dwell any longer upon this point.
Mr. WEBSTER. The precise question is whether a Territory, while it remains in a territorial state, is a part of the United States. I maintain it is not. And there is no stronger proof of what has been the idea of the Government in this respect than that to which I have alluded and which has drawn the honorable member's attention. Now, let us see how it stands. The judicial power of the United States is declared by the Constitution to be “vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish.” The whole judicial power, therefore, of the United States is in these courts. And the Constitution declares that “all the judges of these courts shall hold their offices during good behavior.” Then the gentleman must admit that the legislation of Congress heretofore has not been altogether in error; that these Territorial courts do not constitute a part of the judicial power of the United States, because the whole judicial power of the United States is to be vested in one Supreme Court and in such inferior courts as Congress shall establish, and the judges of all these courts are to have a life tenure under the law; and we do not give such tenure, nor never did, to the judges of these Territorial courts. That has gone on the presumption and true idea, I suppose, that the Territories are not even part of the United States, but are subject to their legislation. Well, where do they get this power of legislation? Why, I have already stated that the Constitution says “the Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States," and it is under that clause only that the legislation of Congress in respect to the Territories has been conducted. And it is apparent from our history that no other provision was intended for Territorial Government, inasmuch as it is highly probable, I think certain, that no acquisition of foreign territory was ever contemplated.
And again, there is another remarkable instance. The honorable gentleman and his friends who act with him on these subjects hold that the power of internal improvement within the United States does not belong to Congress. They deny that we can pass any law for internal improvements within any State of this Union, while they all admit that the moment we get out of the States into a Territory we can make just as much improvement as we choose. There is not an honorable gentleman on that side of the Chamber who has not, time and again, voted money out of the public Treasury for internal improvements out of the Union in Territories, under the conception that, under that provision of the Constitution to which I have referred, they do not constitute any portion of the Union—that they are not parts of the Union.
Sir, there is no end to illustrations that might be brought upon this subject. Our history is full of them. Our history is uniform in its course. It began with the acquisition of Louisiana. It went on after Florida became a part of the Union. In all cases, under all circumstances, by every proceeding of Congress on the subject, and by all judicature on the subject, it has been held that Territories belonging to the United States were to be governed by a constitution of their own, framed by a convention, and in approving that constitution the legislation of Congress was not necessarily confined to those principles that bind it when it is exercised in passing laws for the United States itself. But, sir, I take leave of the subject.
Mr. Calhoun. Mr. President, a few words. First, as to the judiciary. If Congress has decided the judiciary of the Territories to be part of the judiciary under the United States, Congress has decided wrong. It may be that it is a part of the judiciary of the United States, though I do not think so.
Mr. WEBSTER (in his seat). Nor I.
Mr. Calhoun. Again, the honorable gentleman from Massachusetts says that the Territories are not a part of the United States—are not of the United States. I had supposed that all the Territories were a part of the United States. They are called so.
Mr. WEBSTER (in his seat). Never.
Mr. WEBSTER (still in his seat). That is another thing. The colonies of England belong to England, but they are not a part of England.
Mr. Calhoun. Whatever belongs to the United States they have authority over, and England has authority over whatever belongs to her. We can have no authority over anything that does not belong to the United States, I care not in what light it may be placed.
But, sir, as to the other point raised by the Senator_internal improvements. The Senator says there is not a member on this side of the Chamber but what has voted 'to appropriate money out of the public Treasury for internal improvements in the Territories. I know that a very large portion of the gentlemen on this side have voted to appropriate money out of the public Treasury for improvements in Territories, upon the principle of ownership; that the land in the Territories in which improvements are made has an increased value in proportion to the sums appropriated, and the appropriations have in every case been given in alternate sections. But many gentlemen here have utterly denied our right to make them under that form. But that question comes under another category altogether. It comes under the category whether we have a right to appropriate funds out of the common Treasury at all for internal improvements.
Sir, I repeat it, that the proposition that the Constitution of the United States extends to the Territories is so plain a one and its opposite-I say it with all respectis so absurd a one that the strongest intellect can not maintain it. And I repeat that the gentlemen acknowledge, by implication, if not more than that, that the extension of the Constitution of the United States to the Territories would be a shield to the South upon the question in controversy between us and them. I hold it to be a most important concession. It narrows the ground of controversy between us. We then can not be deprived of our equal participation in those Territories without being deprived of the advantages and rights which the Constitution gives us. (Appendix to Cong. Globe, vol. 20, pp. 272-274.)