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.
_______________
* 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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