Saturday, February 23, 2019

Alexander H. Stephens to the Editor of the Federal Union,* August 30, 1848

Clinton, Ga. 30th, Aug., 1848.

Mr. Editor: In passing through this place, I have just seen your paper of yesterday's date which contains some enquiries addressed to me, to which I cannot hesitate to give a prompt reply “in such reasonable length and respectful terms” as to secure, I trust, a place in your columns.

And that I may be distinctly understood, I will give the entire communication and my answer to each enquiry in order:

To The Hon. A. H. Stephens:

It is known to you, that your motion to lay upon the table the “Compromise bill”1 of the Senate, during the late session of Congress, has produced considerable excitement in this district. You have been nominated as the Whig candidate for re-election. If you should have opposition, it is scarcely to be doubted that this bill will be the main issue involved in the canvass. It is therefore eminently desirable that your sentiments should be clearly understood as to what are the rights of the South and how far they are affected by the bill. A careful perusal of your speech has left our mind in doubt as to your opinion upon several essential points. We therefore venture respectfully to propound to you a few interrogatories, to which we ask a reply.

I. Do you believe that Congress has the right under the Constitution, to prohibit slavery in the territories belonging to the United States?

To your first enquiry I answer, that I do not believe that Congress has the right, either in honor, justice or good faith, to prohibit slavery in the territories belonging to the United States and thus to appropriate the public Domain entirely to the benefit of the people of the non-slaveholding states — and hence I have uniformly voted against the Oregon bill which contained a section excluding slavery, notwithstanding most if not all my Democratic colleagues have repeatedly voted for a bill organizing a Government there with such exclusion — and notwithstanding Mr. Polk has lately signed a bill which contained such an exclusion.

So far as New Mexico and California are concerned, and towards which your enquiries are doubtless mainly directed, there is no express provision in the Constitution which applies either directly or indirectly to them. They are to be considered as acquired by conquest, and there is no article or clause in the Constitution that relates in the remotest degree to the government of conquests. I do not believe that the framers of the Constitution contemplated that such a contingency would ever happen — and hence the silence of the Constitution upon that subject. But as the Supreme Court of the United States have repeatedly held the doctrine that the power to make conquest does belong to the General Government, though not expressly granted, it is not my purpose to say anything upon that point now. The only point in your enquiry relates to the government of the conquest, and to that point I answer explicitly that I consider the conquest, according to the best authorities upon the laws of nations, as belonging to the people of the United States — to all the citizens of the United States, the South as well as the North. When the treaty is fully complied with these provinces will constitute a public domain acquired by the common valor, blood and treasure of all. And in the government of them the rights and interests of the South should be looked to, guarded and protected as well as the North by all proper and necessary laws. Until they are admitted into the United States the government of them must devolve upon Congress or such territorial legislatures as may be created and authorized by Congress. And any legislation by Congress or by the territorial legislatures which would exclude slavery would be in direct violation of the rights of the Southern people to an equal participation in them and in open derogation of that equality between the states of the South and North which should never [be] surrendered by the South. And I hold also that any legislation by Congress or by the territorial legislatures which does not secure and protect the rights of the South as fully and as completely in the enjoyment of their property in slaves as it does the rights of the people of the North in the enjoyment of their property in these territories is manifestly unjust, in violation of the rights of the South, and a surrender of that equality between the different members of this confederacy which shall never be made by my sanction.

Your second enquiry is in the following words:

II. From your replies to Mr. Stanton of Tennessee, on pages 10 and 11 of your speech, we clearly infer that it is your opinion that the Constitution of the United States does not guarantee to the slaveholder the right to remove with his property into any territory of the United States and to be protected in the undisturbed use and enjoyment of his slaves as property. Do we properly construe your meaning?

And in reply you will allow me to say that you seem greatly to misapprehend my answer to Mr. Stanton. The purport of my answer to him was (I have not the speech before me) that the Constitution did secure and guarantee the rights of the master to his slave in every state and territory of the Union where slavery was not prohibited by law. But that it did not establish it in any territory or State where it was so prohibited. And the same I reaffirm. It is too plain a question to admit of argument. It is one of those truths which under our system of government may be considered as a political axiom. Everybody knows that the Constitution secures and guarantees property in slaves in Georgia and in all the slave States, but that it does not secure the use and enjoyment of such property in New York or any of the States where slavery is prohibited.

Your third question is in the following words:

III. If the right spoken of in the 2d question does exist under the Constitution in reference to territory generally, does it exist in relation to New Mexico and California?

And in answer to it I say that I hold that the Constitution does secure and guarantee the rights of the master to property in his slave in all the territories belong to the United States where slavery is not prohibited. With regard to the territories, the same principle holds which is applicable to the states. I do not maintain the position that slavery cannot be maintained without positive law. But I say that according to all the decisions of all the courts I have ever seen in all civilized nations, it cannot be maintained and protected where it is prohibited by express law. In all the states of this Union where it is not prohibited, the Constitution secures and protects it; but in those states where it is prohibited it does not protect it further than to provide for the recapture of runaway slaves — and the same principle I have no doubt from the decisions of the Supreme Court would by that tribunal be held to be applicable to the territories. By the Missouri Compromise slavery was prohibited from all that portion of the Louisiana cession out of Missouri, North of 36:30 degrees of North latitude. Slavery by that Compromise was in effect abolished in all that territory. For by the laws in force in the territory at the time of the acquisition slavery was recognised and had existence. There is a large territory now unoccupied which is embraced in the provisions of that Compromise and from which by that Compromise slavery is prohibited. And can any man believe that if a slaveholder should carry his slave into that territory where slavery is prohibited, that the Supreme Court of the United States would recognise his right and protect him in holding his slave there?

It is not my purpose now to speak of the constitutionality of the Missouri Compromise — I am speaking of it as a practical question under the decisions of the Supreme Court; and according to principles settled by that Court, does any man believe that the rights of the master would be protected by that Court in that territory, or any other territory of the United States, where slavery is prohibited, until the prohibition is removed by competent authority, any more than in a State where slavery is prohibited? In New Mexico and California slavery was abolished and prohibited by express law at the time of the conquest. And according to the decisions of the Supreme Court of the United States, which no man can gainsay or deny; (I mean the fact of the decisions; I do not now speak of their correctness), all the laws which were of force at the time of the conquest will continue in force until altered by competent authority, except such as were inconsistent with the Constitution of the United States or the stipulations of the treaty. Is the prohibition of slavery by the local law of any state or place inconsistent with the Constitution of the United States? If it is, those laws of New Mexico and California will become abrogated and necessarily cease to operate upon the final fulfilment of the treaty stipulations. But if the prohibition of slavery by the local law of any state or place is not inconsistent with the Constitution according to the decisions of the Supreme Court, they will of course remain of force until altered by competent authority. My own opinion is, that neither the existence of slavery or non-existence of it by the local law of any place is inconsistent with any provision of the Constitution. The Constitution extends over states where slavery exists as well as where it is prohibited. Slavery depends upon the law of the place, which may be either written or unwritten. And where it exists the Constitution protects it, but it does not establish it where it is prohibited.

I have heard some argue that the laws in New Mexico and California prohibiting slavery there were similar to the laws concerning the establishment of religion. I consider the cases totally different. for this plain reason: An established religion is inconsistent with an express provision of the Constitution.

But the non-existence or prohibition of slavery by the local law of any State or place is not inconsistent with any provision of the Constitution. It is in vain for any man to attempt to deceive himself or others upon this point. And it is worse than in vain to attempt to make the Southern people believe that any right was secured to them by the late proposed Compromise bill which without any legal protection referred the matter to the Supreme Court. The only right it pretended to secure was the right of a law suit — and that existed without the Compromise just as amply and as fully as it did under it. And under the circumstances if any man can suppose that the Court, at the end of the suit, would decide in favor of the rights of the Southern people, he cannot doubt but that the same decision would be made even if the Wilmot Proviso were passed.

But to proceed to your fourth question, which is as follows:

IV. We infer from the tenor of your speech that you do not believe the right exists in relation to New Mexico and California, because of the decrees of 1829 and 1837 abolishing slavery throughout the Republic of Mexico. If so, what right of the South is surrendered by the Compromise bill, and how is it surrendered?

To this I answer that your inference is entirely wrong. I do believe that we of the South have a right to an equal participation in this acquisition, notwithstanding the decrees and acts of Mexico abolishing and prohibiting slavery in New Mexico and California — and a right that I never intend to abandon or surrender by my vote. It is the right which belongs to us as a portion of the conquerors of the country. It is public property, belonging as I have said before to all the citizens of the country — to the people of the South as well as the North. It is common property, and the principles applicable to it are well expressed by Vattel, as follows:

All the members of a corporation have an equal right to the use of the common property. But respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality of right which ought to be preserved in a communion of property. Thus a corporation may determine the use of a common forest or a common pasture, either allotting it to all the members, according to their wants, or allotting each an equal share, but they have no right to exclude any one of the members, or to make a distinction to his disadvantage, by assigning him a less share than that of the others. (Vattel's L[aw of] Nations], 113.)

These are the principles I hold: Congress has no right to exclude the South from an equal share, and it is the duty of Congress to see that the rights of the South are as amply protected as the rights of the North. And it was this right of legal protection for the property of the South that was surrendered in that bill. If Congress has the power to declare exactly how far the interests of the North shall be protected, if they have the power to extend the Missouri Compromise line, they certainly have the power to say in clear and distinct words that up to that line on the South the rights of the South shall be protected — and not after prohibiting us from going North of that line leave us to contest with the Courts our rights on the South of it. This is what the Compromise bill did. It excluded us from the whole of Oregon, and left us to the Courts to decide whether we should be allowed to carry and hold our property in New Mexico and California. For such a Compromise I shall never vote.

Your fifth question is as follows:

V. If by virtue of the Constitution of the United States, we have not the right to carry our slaves into these territories, we ask, upon what principle do you claim it, in behalf of your constituents? Do you claim it, upon the broad principle of justice arising from the fact that It is the fruit of common blood and common treasure? If so, do you expect Congress, constituted as it now is, or is hereafter likely to be, will ever recognise this principle of justice, and by positive legislation authorise the extension of slavery into those territories?

And in answer I say, that I do claim it “upon the broad principle of justice arising from the fact that it is the fruit of common blood and common treasure. And I do expect that Congress constituted as it is will recognise this principle of justice when the South presents an unbroken front, as it ought to do, against paying one dollar for the territories unless this justice is awarded to them; and you will here permit me to bring to your mind a reminiscence not inapplicable on the present occasion. When the annexation of Texas was at first started by Mr. Tyler, by a treaty which left this question of vital importance to the South unsettled, I opposed it. I was then bitterly assailed by the paper which you now conduct for opposition to this great Southern measure upon all occasions when I addressed the people of Georgia. In 1844, I declared that I was in favor of the annexation of Texas upon proper principles — but I was utterly opposed to the Tyler treaty for several reasons, the main one of which was that the slave question was left open in it, the rights of the South were not secured by it, and that I should never vote for any plan of annexation that did not settle this question in the compact of union and secure these rights in terms clearly and distinctly defined. This position I maintained in your own city, and if you will turn to the files of the Federal Union and examine an editorial of the first week in July, 1844, I think you will see that this position of mine was alluded to and it was denounced as amounting to a total opposition to the whole measure and it was said (I quote from memory) that I was insisting upon what never could be obtained. But I had taken my position firmly, not to be deterred by any fears or alarms or denunciations. And from that position and its success a profitable lesson may now be learnt. I made a speech in Congress when a plan for annexation similar to the Tyler treaty was offered, in which I maintained the same position and stated the only grounds upon which I should vote for annexation. They were the same grounds which I had advocated throughout 1844. Seven Southern Whigs stood by me — we held the balance of power in the House. And when all other plans offered (and there were a number) failed (neither of which secured the rights of the South), then Mr. Brown (after conference with me and others) offered his with the Missouri Compromise in it; and that passed by my vote and the other seven Whigs, and it could not have passed in the Committee of the Whole House without our votes, as the proceedings of the House will show. The firm and inflexible course I and seven other Southern Whigs took upon that question secured the rights of the South and obtained the establishment of the Missouri Compromise, which it was said by the Federal Union could never be obtained. And if a similar course shall be taken and maintained by all parties at the South, the same Compromise or one as good can be obtained again. I have taken the same stand now and I intend to maintain it in defiance of all assaults and denunciations that may be made against me from any and every quarter.

The sixth and last of your enquiries, is as follows:

VI. If you should be of opinion that we have the constitutional right to carry our slaves into these territories, would you sooner risk the recognition and vindication of that right before Congress where there is a decided majority in both branches against us, or before the Supreme Court where it is well known that a majority of the Bench are from slaveholding States?

We are aware, that you deprecate in very strong terms any reference to the complexion of the Supreme Court upon this subject. Tour deprecation may be the result of a sentiment which we by no means condemn. Yet we do not agree with you in its application in this instance. The South are in a minority, we fear a doomed minority, on this subject, and we are therefore disposed to vindicate our rights by all honorable means. We certainly should not refuse to accept justice because the tribunal to whom we apply are supposed to be favorable to our cause. With all deference to your views on this point, we must be indulged in the belief that your indignation savors more of transcendentalism than of sound, practical statesmanship.

To this I answer that I consider the reference of this subject to the Supreme Court as a total abandonment of the question by the South. According to repeated decisions of that court upon the principles involved in it, I cannot see how any man can look upon it in any other light. But I will here say, that I am opposed to referring any political question to that court. And as a Representative in Congress, as long as I shall have the honor of remaining there, I shall never avoid responsibility by turning any question over to the Supreme Court or any other body. I shall, as I have heretofore done, maintain the equal and just rights of my constituents upon all questions; and I shall demand that they be clearly and distinctly recognised by Congress, that they may be amply protected by all others before whom they may come for action; and when these rights are left to the courts to determine, by my sanction they shall be so clearly set forth and defined that the courts shall be bound to protect them, in their decisions. And I say to you and the people of the 7th. Congressional District, that I shall never return as your and their Representative and tell them I have secured their rights by getting an act passed which will enable them to carry their slaves to California and New Mexico to encounter a law suit whenever they get there, which will cost more than their slaves are worth. If I can never get a better compromise for them than such an one as that, I shall never agree to any at all. They have that right independently of any thing I can do for them, and that is a right which no act of Congress can deprive them of.
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* From the Federal Union, Milledgerllle, Ga., Sept. 12, 1848.
1 The Clayton compromise hill.

SOURCE: Ulrich Bonnell Phillips, Editor, The Annual Report of the American Historical Association for the Year 1911, Volume 2: The Correspondence of Robert Toombs, Alexander H. Stephens, and Howell Cobb, p. 117-24

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