Letter 14.

Shall we organize Territorial Governments in the conquered Territories.

March, 1847.

Both political parties seem to take it for granted, that annexation must immediately follow the conquest of the whole or any portion of Mexico, by which is meant, the formation of new States to be added to the confederacy. But this is by no means a necessary consequence. Louisiana was not brought within the pale of the Constitution for eight years, Missouri for a longer time, and Florida for sixteen. They were placed under a first, and then a second grade of territorial government, over which the Constitution was not extended; rather their Courts, executive, judicial, or legislative branches, were not constitutional authorities, but depending on Congress for their being and power. It has been argued, that the acquisition of territory, either by purchase or conquest, (to which the same reason applies,) is not constitutional; and of this opinion, were Mr. Jefferson, John Quincy Adams, and I think I may add, Mr. Madison. But public opinion, and public necessity, have overruled them, not by fair reasoning, but by “jumping to the conclusion.”

Under the territorial government, the territory has no vote in Congress, and no representation in the Senate, although allowed a delegate on the floor of the House of Representatives, with the liberty of speech, but without the right to vote. The territories of Louisiana, Missouri, and Florida, had their own legislatures, retained their own laws, and enacted new ones, butin this case, subject to the repealing power of Congress. They had also their own judiciary, with the exception of the Judges of the Superior Court, who, together with the Executive, were appointed under the organic law by the President of the United States; that organic law, emanating from Congress, and which was for the territories, what State and United States constitutions, were for the States, might have given the power to the territories to elect their Governors and Judges, as well as their Legislators. This was in the pleasure of Congress, which had acquired the rights of the former sovereign, and might exercise it under thelimitationsof the Constitution, not because it was extended to the acquired territories, but as a restraint on Congress in its own sphere of action; and whatever Congress was expressly forbidden to do generally, it was forbidden to do in any case, unless the exception was express. The organic law or territorial constitution, extended the great prerogative writs ofhabeas corpus,mandamus, andquo warranto, for the benefit and safe guard of persons, property, and religion of every citizen. The Government of each territory, as to all local subjects of legislation, was as completely at their own hands, as any of the States. But has not Congress power of regulation over local subjects? I do not find it in the Constitution, excepting over its real or moveable property. The District of Columbia stands on an anomalous principle; and besides, in respect to that district, Congress acts in two distinct capacities: first, in its general character of a legislature for the whole Union; and secondly, as a local legislature for the district; and in this respect, the other States, have no more right to interfere, than they have a right to interfere with each other. Its local legislation, must be directed by its local wants, with which the people of Massachusetts or New York, have no concern.

The only acts of Congress extended to the territories are always expressly named, and they are those relating to the revenue, the slave trade, those regulating commerce and thepublic lands; while the great body of the acts of Congress, have application only to the members of the confederacy. The general Government, in virtue of its sovereignty, had the control over all foreign intercourse, and undertook the military defence and protection. Having lived under these protective Governments, I must candidly confess, that they possess many advantages. They are entirely unlike the condition of colonies and conquered provinces, subject to onerous exactions, or restrictions. Their burthens were even lighter than those of the citizens of the States, in consequence of not being represented in Congress, as it would be against a fundamental principle to bind them by laws, which they had no share in enacting. Many of the territorial inhabitants regret the change from the quiet of their territorial Government, to the turbulence and expense of the State constitution. They preferred this state of things to the ambition of being able to disturb the balance of power among the States, by a voice in the Senate, or even in the House of Representatives. But the admission into the Union (or admission as States,) “as soon as consistent with the principles of the Constitution,” was an express stipulation, under the treaties which ceded those territories; and in the case of Texas, immediate annexation as a State, was the principal consideration of the compact. Where there is no such stipulation, as in the case of countries acquired by conquest, like those of the Rio Grande, the acquisition is unconditional, and the territorial state may be continued indefinitely, or the admission of the whole or part, be determined at our pleasure. According to the laws of nations, their local laws remain in force; and according to our Constitution, Congress has no power to legislate in local matters for them, although it may create a local legislature for that purpose; for, in my opinion, it cannot constitute itself a local legislature for the purpose, as in the anomalous case of the District of Columbia.

The Supreme Court is often regarded as the sole arbiter inall constitutional questions. This is to be understood with some comitations. For instance, it would not consider itself at liberty to decide the question, whether the acquisition of foreign territory is constitutional or not; the other branches of the Government, the Legislation, the treaty making power, the Executive, having determined the high political question involved, the Supreme Court conforms to that decision. It, therefore, moves in a groove, and is not Supreme over all. Yet it has decided, in the case of Cairter, that the Courts of the territory are not constitutional Courts, and the Judges not constitutional Judges; consequently its inferior Courts not inferior Courts of the United States.

We must distinguish between Political, and Municipal or local laws; the former are abrogatedipso facto, by the charge of sovereignty, the later continue in force until repealed. For instance the whole body of the Spanish law was repealed in Louisiana, by an edict of Governor O’Reilly, and in Missouri, the Spanish code, continue to Paris and we, were abrogated by the Governor and Judges, under the first grade of Government, and the common law with the statutes of one of the States, substituted in their place. One of the earliest decisions of the Supreme Court, was that the United States had no code of municipal law, but must resort to the municipal law of the State in which it happened to sit.

Let us suppose the whole of Mexico conquered by our arms, it may be divided, in the first instance, into four or five territories, which may be retained in that form of government at least as long as Florida, and be, afterwards, admitted as States, or be permitted to establish independent governments, bound to us by treaties of alliance, offensive and defensive. I hold it as a settled principle, that we cannot hold conquered countries like ancient or modern nations; and we cannot, without violating the spirit of our institutions, deny them the right of self-government, or at least, of representation. The conquests wemay make, cannot fail to better the condition of the conquered, by affording them better political institutions than those they before possessed. Surely, nothing can be worse than the present military anarchy of Mexico. They would obtain security for their rights, and obtain new ones, which they never enjoyed before; they would have peace within their borders, and safety from without. We should repel with indignation, the terms of reproach heaped upon us by the “tory” paper of England, the “Times.” Our free governments carry blessings with them wherever they appear. Plunder and devastation, form no part of the American character, as is proved by the progress of our arms, marked by a degree of humanity unexampled in the annals of war and conquest. The affectation of concern for their religion, manifested by the Mexicans, is truly ridiculous in those who tolerate no religion but that of the State.

The subject of slavery is one of local, that is, of State or territorial legislation, except as to the foreign slave trade, which belongs to Congress in the regulation of foreign commerce. In the territory Northwest of the Ohio, there could not be said to be any system of law, it being uninhabited, or at least, the population was so inconsiderable, that it was not taken into consideration in establishing the ordinance of 1787, before the adoption of the present Constitution. It is in the nature of a compact between the States, and is not a case in point. But in Louisiana, the institution of slavery was already there, and could not be destroyed without interfering with a subject of local regulation of those territories, together with other subjects of domestic concern. Congress reserved to itself only a right to repeal, resembling a veto, except that the laws enacted continued in force until repealed; but, in no instance did Congress take the initiative in this local legislation. We may often discover the best expositions of the power of the Government, or any branch of it, by strict enquiry into the history of its practical operation.

Suppose the laws of Mexicoprohibitslavery, would the simple repeal of the lawsestablishit? I do not see by what reasoning it would do so. Is it probable, I would almost say possible, that slavery will be introduced by positive enactment? This would not only be local legislation, and on that account objectionable, even if it were possible,as Congress is at present constituted. It is said to be carried there by the Constitution. How can this be, if the Constitution does not extend there? A part cannot be extended without extending the whole. Congress is forbidden by the Constitution to legislate on certain subjects. This is true, but it is a limitation on its own powers, the effects of which are felt by the territories, as well as the States, but is no argument to prove, that the Constitution extends to the former as well as to the latter. I cannot see by what reasoning the Constitution is extended to them, and yet, I can readily see many curious, inconvenient, and unjust consequences arising from this view of the subject. It is impossible to avoid such consequences, when we attempt to reason from false premises. We have started wrong in acquiring territory, when such acquisition was not contemplated by the Constitution; and that error is the cause of other errors. I see no way of surmounting these difficulties, but by mutual forbearance, reciprocal respect for each others feelings and interests.[11]

11.The claim of the right to go to the acquired, or conquered territories with their slave property, is insisted on by the South. The attempted exclusion creates strong feelings, as it is regarded as offensive and unjust. If, according to my view of the subject, the conquered or acquired territory, is neither a part of any State, nor a part of the Union, the sovereignty is either in Congress, or in the inhabitants. According to European reasoning the sovereignty is in the Government; according to ours it is in the inhabitants; because with us, power travels upwards from the people, but according to the old reasoning, instead of ascending, it descends. But, if it beassumed, that the Constitution follows our flag, even if it be to the Typce(TN) Islands, then it would appear to me, that no citizen can be directly, or indirectly, excluded, on account of his carrying with him, personsbound to service, for that is a condition, or relation recognized by the Constitution. Such servants are recognized if not asproperty, for taxation, yet aspersonsfor representation. If the Constitution comes in conflict with the local laws, the latter must give way; this is the necessary consequence it is contended of extending the Constitution to the territories. Laying aside all this fine spun reasoning, there is a common sense ground of justice and equal right, in the claim to equal participation in the property acquired by common means, and even the appearance of the denial, must be offensive. The party thus denied, might exclaim “if it be arsenic, I will have my share.”The necessity of some legislation for the new territories, is evident, even if the first, or second grade of government, be not given to them. They are butfragmentsof other governments, depending on their superior, and their organization incomplete, when cut off from that superior. The jurisdiction of their courts was limited, or subject to appeal; their political, and military offices, acted under the order of their chief. The President of the United States as commander in chief, would command the military; but the United States judiciary could not entertain appeals, without authority of Congress; and neither could the President exercise civil control, without the same authority. The organic law, provides for the trial by jury, for the security of person, and conscience, not provided for in despotic countries. The laws regulating intercourse with the indians, the Post office, and many and on other subjects require to be specially extended. It is possible that by some indispensable legislation of this kind, the new acquisition, may get along for a while, by supplying the deficiency out of that original stock of power, which men possess in a state of nature, when compelled to do so by necessity. The attempt was made in Florida during a short interval, and it gave rise to much animadversion. I admit, that it may be in some manner obviated, by special legislation on the part of Congress, iffrom any cause, it should be deemed inexpedient to establish territorial governments, even of the first grade. In Louisiana as in Florida, a Governor was appointed, clothed with the powers of the late Captain General, until Congress could act.

The necessity of some legislation for the new territories, is evident, even if the first, or second grade of government, be not given to them. They are butfragmentsof other governments, depending on their superior, and their organization incomplete, when cut off from that superior. The jurisdiction of their courts was limited, or subject to appeal; their political, and military offices, acted under the order of their chief. The President of the United States as commander in chief, would command the military; but the United States judiciary could not entertain appeals, without authority of Congress; and neither could the President exercise civil control, without the same authority. The organic law, provides for the trial by jury, for the security of person, and conscience, not provided for in despotic countries. The laws regulating intercourse with the indians, the Post office, and many and on other subjects require to be specially extended. It is possible that by some indispensable legislation of this kind, the new acquisition, may get along for a while, by supplying the deficiency out of that original stock of power, which men possess in a state of nature, when compelled to do so by necessity. The attempt was made in Florida during a short interval, and it gave rise to much animadversion. I admit, that it may be in some manner obviated, by special legislation on the part of Congress, iffrom any cause, it should be deemed inexpedient to establish territorial governments, even of the first grade. In Louisiana as in Florida, a Governor was appointed, clothed with the powers of the late Captain General, until Congress could act.

Much has been said on the subject of the laws of Mexico abolishing slavery, and no little merit is ascribed to her for her course on this head. When her pretensions are examined, it will be seen, that she is entitled to no credit whatever. African slavery was not introduced into that country, because the native indians, who had been reduced to a real bondage, already formed a cheaper slavery, than the African. In thetime of the conquerors,villagesanddistrictswere granted to them, the soil being only of secondary consideration. Their inhabitants were condemned to the severest labor, and were, in fact, slaves. The Spanish monarchs struggled with the wealthy proprietors to alleviate the condition of the unfortunate indians, and with success, so far as to rescue them from their original servitude; but, they are, at this day, little better off. Under the system of peonage, and the authority exercised by the alcaldes, their freedom is but nominal. This kind of slaveryis not abolished; and as to abolishing negro slavery, it scarcely existed there. According to Mr. Ward, a few negroes were introduced about thirty years ago, but on finding the Indian labor much cheaper, they were suffered to go where they pleased. The only slavery in Mexico, except peonage, was in Texas.[12]This system is founded on a law of theSiete Partidas, which exempts females, ecclesiastics, military persons, scholars, andgentlemen, (hidalgos) from imprisonment, or liability of person, for debt! The poor Indian is, therefore, the only subject for the law to operate on. This kind of slavery commands the labor of the adult laborer, without the burthen of the aged and helpless, as is the case of negro slavery, which is not only arelation, but acommunity, where the able-bodied provide for the helpless. This pretention to merit on account of the abolition of slavery, is only an after thought arising out of the hostility to Texas. It was a subject of State legislation as with us, until the Mexicansfound that they could make capital out of it with our abolitionists, and their English coadjutors. I detest hypocrisy, and never was there any thing of this kind more palpable, than the affectation of hostility to slavery byMexican philanthropists! In enumerating the causes of difference between Mexico and Texas, I passed this topic in silence, because I know it to be hollow and insincere, when put forth by a country where human rights are held so cheap.

12.It is not long, since a list of the peons who had escaped from the other side of the Rio Grande was published, and bitter complaints made by their masters to the Mexican Government, which was petitioned for redress! It is said that some proprietors own thousands, and they are a part of their estates. It is probable that neither slavery nor peonage can continue on the borders of the Rio Grande. During our military operations a large number of persons were freed by earning the means of paying the debts for which they were bound.

Back to Index Next