errors.

That mistake is in the assumption, that the Constitution extends to Territories as well as to States, and includes these infant settlements in the provisions made for sovereign States. Well do I remember the day-and if I had forgotten it, parliamentary history would preserve its memory-when a view of that doctrine was first revealed* to the astonished vision of the American Senate. It was in the last days of the Session 1848– '49, and in an unparliamentary attempt to hitch on to the General Appropriation Bill, which had come up from the House, the defeated bills (three made into one) for giving territorial governments to California, New Mexico, and Utah. These territories had remained without governments for nearly two years-all attempts at legislating for them being baffled, first, by the movement of Mr. Wilmot to prohibit the introduction of slavery, (defeated because the prohibition was already complete under the Mexican laws,)—and, next, by the movements of Mr. Calhoun to carry slavery there. It was an injury to these territories, a reproach upon our Government, and a humiliation to Congress, to remain in this state of impassibility with respect to the government of the new acquisitions. But the power of Congress

*"First revealed:" for it had been there once before, without a revelation of itself. It was the session before, in one of the many abortive bills for giving governments to these territories, reported from a committee specially appointed for the purpose, composed of Mr. Calhoun and a majority of his immediate friends and sympathizers on the slavery subject. It was a conglomerate bill which lumped all the territories together-even Oregon. It was an enormously long bill of three dozen ponderous sections, the penultimate one of which, namely, the 35th, was in these words: "The Constitution and the laws of the United States are hereby extended over and declared to be in full force in said territories of New Mexico and California, so far as the same, or any provision thereof, may be applicable."--This comprehensive section, the only short one in the bill, but so new and startling, was relegated to its fag-end, where nothing but details of form are ever found--details to carry out principles contained in the front sections, and upon which alone the bill is debated-and seems to have escaped all notice at the time. No speaker mentioned it, and there were many able jurists who spoke on the bill-among others, Mr. Webster. No one hinted at it—a persuasive evidence that no one knew of it but those who put it there, and who had the same reason for not referring to it that they would have for putting it where it would not be seen. Mr. Benton voted for the bill without knowing such a provision was in it--nor did he know of it until long after.-This bill did not become law, and has passed into the receptacle of things forgotten, but its remembrance may be of some value now in showing that, on that day, (July 22d, 1848,) the authors of that bill deemed an act of Congress necessary to carry the Constitution into a territory, and give it force therein the same as statutes of Congresss--and so classed it with the statutes to be extended.

was paralyzed by the pertinacity of two extremes, which, operating from opposite points, and with mutual crimination of each other, worked to the same effect in baffling Congress, and cooperated in producing the same results while denouncing each other's means each extreme a minority, and unable to do anything of itself, but potent enough in conjoint action to prevent Congress from doing any thing. A succession of bills introduced during three Sessions to give governments to these orphan territories, had each been defeated; and now Congress was at the end of its Session, and at the end of the Administration which acquired the territories, and a recess of nine months in view; and the same abortive result to the territorial bills. In this extreme moment, the civil and diplomatic bill, commonly called the General Appropriation Bill-the one on which the life of the Government depended, and to which nothing extraneous could be added-came up from the House, matured by that body, and only waiting the action of the Senate upon it. The Senate had acted-had made the appropriate additions germane to the bill-had finished the bill, and was on the point of returning it to the House, when Mr. Isaac P. Walker, of Wisconsin, moved to amend it by adding to it a lumping bill for the government of the three territories. The proposition fixed no attention, and seemed to excite no concern, being considered unsustainable on a question of order, until it took a sudden and sharp turn into the epidemic slavery question. For, it seemed to be with the mind in those days as it was with the body in the time of the great plague in Athens during the "Thirty Years' War," when the historian Thucydides says-That whatever disease a man had before, or might take during the time, no matter what, it immediataly ran into the plague, and took the form of that pestilence, entirely losing its own milder character in the virulence of the prevailing distemper: so, in the mental malady of our slavery agitation, all questions in Congress immediately ran into that malady, and took the form of the slavery question. So of this proposed amendment of Mr. Walker. It had nothing to do with slavery, and no affinity to the Appropriation Bill; and, left to itself, would have been quickly disposed of—either ruled out as disorderly, or rejected as objectionable. But its nature. was wholly altered after he had first presented it. At that first presentation it contained a section, as does every territorial

government bill, extending certain enumerated acts of Congress to the territories-such acts as Congress thinks proper to extend -no act of Congress obtaining force in a territory, unless expressly spread over it. Mr. Walker's bill conformed to this practice. It contained the usual list of acts which were suitable to territories; for the list is nearly always the same.

Nothing was done upon this proposition the day it was offered. It remained unacted upon during that day. The next day Mr. Walker asked the leave of the Senate to modify his amendment, at the request of a friend, as he said. Leave was given, and the modification made in open Senate, and consisted of heading the list of the enumerated acts of Congress, with the Constitution: so as to make the list read, "The Constitution of the United States, and all and singular the several acts of Congress (describing them) be, and the same hereby, are extended over and given full force and efficacy in the said territories." The novelty and strangeness of this proposition called up Mr. Webster, who repulsed as an absurdity, and as an impossibility, the scheme of extending the Constitution to territories-declaring that instrument to have been made for States, not territoriesthat Congress governed the territories independently of the Constitution, and incompatibly with it—that no part of it went to a territory but what Congress chose to send-that it could not act of itself anywhere, not even in the States for which it was made and that it required an act of Congress to put it into operation before it had effect anywhere.* This was clear constitutional law, shown in the preamble to the Constitution, and in every word of it, that it was made for States-so understood

* But this is a case in which Mr. Webster should have his own words-at least a few of them; and here they are: "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 nothing else. It cannot be extended over any thing, except 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 cannot be maintained at all. How do you arrive at it by any reasoning or deduction? It can only be arrived at by the loosest of all possible constructions. It is said that this must be so, else the right of habeas *Stick a pin here. Mr. Webster points out lawyers and judges as being specially befogged on this point. Nothing but a sense of painful duty could have carried Mr. W. out of his way to make such a remark of a profession of which he was himself the highest ornament, and of the ermine which he so much reverenced.

in the legislation of seventy years-every part of it requiring a specific law to execute it before it could be enforced. Even the oath commanded by the Constitution could not be taken until an act of Congress was passed to prescribe the mode, and that act was No. 1 of the acts of the first Congress, and required the members who made it, (and who had been sworn in by a voluntary resolution for the purpose of making it,) to be sworn in under it immediately; and all other officers as soon as appointed. So of every other clause of the Constitution, no matter how plain or peremptory the provision. Nothing could be done under it without a law, as in the case of fugitives from service or

corpus would be lost. Undoubtedly, these rights must be conferred by law before they can be enjoyed in a Territory."— Webster, March 3d, 1849.

To the same effect Mr. Clay, when he first heard of this new doctrine, which was near the end of his natural as well of his parliamentary life :

“Now, really, I must say that the idea that eo instanti upon the consummation of the treaty, the Constitution of the United States spread itself over the acquired territory, and carried along with it the institution of slavery, is so irreconcilable with any comprehension, or any reason that I possess, that I hardly know how to meet it. Why, sir, these United States consist of thirty States. In fifteen of them there is slavery: in fifteen slavery does not exist. How can it be argued that the fifteen slave States, by the operation of the Constitution of the United States, carried into the ceded country their institution of slavery, any more than it can be argued upon the other side, that by the operation of the same Constitution the fifteen free States carried into the ceded Territories the principle of freedom, which they, from views of public policy, have chosen to adopt within their limits? Let me suppose a case. Let me imagine that Mexico had never abolished slavery there at all. Let me suppose that it was existing there, by virtue of law, from the shores of the Pacific to those of the Gulf of Mexico, at the moment of the cession of those countries to us by the treaty in question. With what patience would gentlemen, coming from the slaveholding States, listen to an argument which should be urged by the free States, that, notwithstanding the existence of slavery within these territories, the Constitution of the United States, the moment it operated upon and took effect within the ceded Territories, abolished slavery and rendered them free? Well, is there not just as much ground to contend, where a moiety of the States are free, and the other moiety are slaveholding States, that the principle of freedom which prevails in the one class shall operate, as the principle of slavery, which operates in the other class of States, shall operate? Can you, amidst this conflict of interests, of principles, and of legislation which prevails in the two parts of the Union--can you come to any other conclusion than that which I understand to be the conclusion of the public law of the world, of reason, and of jusuce, that the status of law, as it existed at the moment of the conquest, or acquisition, remains unchanged, until it is altered by the sovereign authority of the conquering or acquiring power? The laws of Mexico, as they existed at the moment of the cession of the ceded territories to this country, remained their laws still, unless they were altered by that new sovereign power under which this people and these territories came, in consequence of the treaty of cession, to the United States.-Mr. Clay on Compromise Measures, 1850.

justice: none of whom could be delivered up except in pursuance to a law made to carry the clause into effect. Knowing the impossibility of self-action on the part of the Constitutiona mere declaration of principles without vitality until germinated by law-Mr. Webster scouted as an impossible absurdity, the extension of the Constitution to territories. Mr. Calhoun replied, and immediately became the prominent speaker on the extension side-contending that the Constitution could be so extended, and, being the supreme law of the land, would carry along with it protection to persons and property, to wit, the owner and his slaves; and would override and control all laws opposed to that protection. The debate then took the regular slavery form, and developed this new question which had been feeling its way in some remarks, but never before took the shape of a formal proposition to be enacted into law-that of extending slavery into the new territories. Mr. Calhoun boldly avowed his intent to carry slavery into them under the wing of the Constitution, and denounced as enemies to the South all who opposed it.. Mr. Webster rejoined, going into an extended argument in support of his positions. Several senators joined in it, and the whole debate may be seen in the Appendix to the Congress Debates of the day. A brief notice of it, with parts of Mr. Webster's and Mr. Calhoun's speeches, may be seen in the Thirty Years' View, (vol. 2, ch. 182,) and also in the Appendix to this Examination of the Court's Opinion.

The amendment was carried, the whole Territorial Bill of Mr. Walker, as modified at the instance of a friend; and being returned to the House for its concurrence, the amendment was rejected, and a contest was brought on between the two Houses, which threatened the loss of the General Appropriation Bill, and the consequent stoppage of the government for the want of the means of keeping it alive. It was after midnight, and the last night not only of the session but of the Congress, and of the presidential term; and when many Senators had retired, or refused to vote, believing their power was at an end. Mr. Polk, who, according to the custom of the presidents, had remained in the capitol until midnight to sign bills, had left it and gone home; the House had ceased to do business, was without a quorum, and had sent to the Senate the customary adjournment message. One-third of the Senate was absent, or refusing to