When the highly respectable committee,[54] which had charge of this

memorial, called upon him this morning, and requested him to present it

to the Senate, he had felt it to be his duty to inform them in what

relation he stood to the question. He stated to them that he had been

requested by the delegate from Arkansas to take charge of the

application of that Territory to be admitted into the Union, and that he

had cheerfully taken upon himself the performance of this duty. He also

read to them the 8th section of the act of Congress of 6th March, 1820,

containing the famous Missouri compromise; and informed them that the

whole Territory of Arkansas was south of the parallel of 36 degrees and

a half of north latitude; and _that he regarded this compromise,

considering the exciting and alarming circumstances under which it was

made, and the dangers to the existence of the Union which it had

removed, to be almost as sacred as a constitutional provision_. That

there might be no mistake on the subject, he had also informed them that

in presenting their memorial he should feel it to be his duty to state

these facts to the Senate. With this course on his part they were

satisfied, and still continued their request that he might present the

memorial. He now did so with great pleasure. He hoped it might be

received by the Senate with all the respect it so highly deserved. He

asked that it might be read; and as the question of the admission of

Arkansas was no longer before us, he moved that it might be laid upon

the table. The memorial was accordingly read, and was ordered to be laid

upon the table.

The next time that the subject of slavery came before the Senate was in

June, 1836. It then arose upon a bill which had been proposed in

conformity with a special recommendation by President Jackson, in his

annual message of December, 1835, to restrain the use of the mails for

the circulation of _incendiary publications_. The bill contained the

following provisions:

_Be it enacted, &c_., That it shall not be lawful for any deputy

postmaster, in any State, Territory, or District of the United States,

knowingly to deliver to any person whatever, any pamphlet, newspaper,

handbill, or other printed paper or pictorial representation touching

the subject of slavery, where, by the laws of the said State, Territory,

or District, their circulation is prohibited; and any deputy postmaster

who shall be guilty thereof, shall be forthwith removed from office.

SEC. 2. _And be it further enacted_, That nothing in the acts of

Congress to establish and regulate the Post Office Department, shall be

construed to protect any deputy postmaster, mail carrier, or other

officer or agent of said department, who shall knowingly circulate in

any State, Territory, or District, as aforesaid, any such pamphlet,

newspaper, handbill, or other printed paper or pictorial representation,

forbidden by the laws of such State, Territory, or District.

SEC. 3. _And be it further enacted by the authority aforesaid_, That the

deputy postmasters of the offices where the pamphlets, newspapers,

handbills, or other printed papers or pictorial representations

aforesaid, may arrive for delivery, shall, under the instructions of the

Postmaster General, from time to time give notice of the same, so that

they may be withdrawn, by the person who deposited them originally to be

mailed, and if the same shall not be withdrawn in one month thereafter,

shall be burnt or otherwise destroyed.

This bill, on the 2d of June, 1836, was ordered to be engrossed and read

a third time, by the casting vote of Mr. Van Buren, the Vice-President.

On the 8th of June the following debate and proceedings took place:

Mr. Webster addressed the Senate at length in opposition to the bill,

commencing his argument against what he contended was its vagueness and

obscurity in not sufficiently defining what were the publications, the

circulation of which it intended to prohibit. The bill provided that it

should not be lawful for any deputy postmaster, in any State, Territory,

or District of the United States, knowingly to deliver to any person

whatever, any pamphlet, newspaper, handbill, or other printed matter or

pictorial representation, touching the subject of slavery, where by the

laws of said State, District, or Territory, their circulation was

prohibited. Under this provision Mr. W. contended that it was impossible

to say what publications might not be prohibited from circulation. No

matter what was the publication, whether for or against slavery—if it

touched the subject in any shape or form, it would fall under the

prohibition. Even the Constitution of the United States might be

prohibited; and the person who was clothed with the power to judge in

this delicate matter was one of the deputy postmasters who,

notwithstanding the difficulties with which he was encompassed in coming

to a correct decision must decide correctly, under pain of being removed

from office. It would be necessary, also, he said, for the deputy

postmasters referred to in this bill to make themselves acquainted with

all the various laws passed by the States, touching this subject of

slavery, and to decide them, no matter how variant they might be with

each other. Mr. W. also contended that the bill conflicted with that

provision in the Constitution which prohibited Congress from passing any

law to abridge the freedom of speech or of the press. What was the

liberty of the press? he asked. It was the liberty of printing as well

as the liberty of publishing, in all the ordinary modes of publication;

and was not the circulation of the papers through the mails an ordinary

mode of publication? He was afraid that they were in some danger of

taking a step in this matter, that they might hereafter have cause to

regret, by its being contended that whatever in this bill applies to

publications touching slavery, applies to other publications that the

States might think proper to prohibit; and Congress might, under this

example, be called upon to pass laws to suppress the circulation of

political, religious, or any other description of publications, which

produced excitement in the States. Was this bill in accordance with the

general force and temper of the Constitution and its amendments? It was

not in accordance with that provision of the instrument, under which the

freedom of speech and of the press was secured. Whatever laws the State

Legislatures might pass on the subject, Congress was restrained from

legislating in any manner whatever, with regard to the press. It would

be admitted, that if a newspaper came directed to him, he had a property

in it; and how could any man, then, take that property and burn it

without due form of law? and he did not know how this newspaper could be

pronounced an unlawful publication and having no property in it, without

a legal trial.

Mr. W. argued against the right to examine into the nature of

publications sent to the post-office, and said that the right of an

individual in his papers, was secured to him in every free country in

the world. In England, it was expressly provided that the papers of the

subject shall be free from all unreasonable searches and

seizures—language, he said, to be found in our Constitution. This

principle established in England, so essential to liberty, had been

followed out in France, where the right of printing and publishing was

secured in the fullest extent; the individual publishing being amenable

to the laws for what he published; and every man printed and published

what he pleased, at his peril. Mr. W. went on at some length to show

that the bill was contrary to that provision of the Constitution, which

prohibits Congress to pass any law abridging the freedom of speech or of

the press.

Mr. Buchanan said, that as he had voted for the engrossment of this

bill, and should vote for its final passage, he felt himself bound to

defend and justify his vote against the argument of the Senator from

Massachusetts (Mr. Webster). In doing so, he would imitate that Senator,

if in no other respect, at least in being brief.

It is indispensable to the clear and distinct understanding of any

argument, to know precisely what is the question under discussion.

Without this knowledge, we cannot tell whether in any or what degree the

argument is applicable to the subject. What, then, is the naked question

now under discussion, stripped of all the mist which has been cast

around it? This bill embraced but a single principle, though this

principle was carried out through three sections. It provides that

deputy postmasters, within the limits of such slaveholding States as

have found it necessary for their own safety to pass laws making it

penal to circulate inflammatory publications and pictorial

representations calculated to excite the slaves to insurrection, shall

not be protected by the laws of the United States, in violating these

State laws. Postmasters within these States who shall _knowingly_

distribute such publications are liable to be removed from office. The

bill also provides that the post-office laws of the United States shall

not protect postmasters, mail carriers, or other officers or agents of

the department who shall knowingly circulate such incendiary

publications, from the penalties denounced against this offence under

the laws of the States. This is the spirit and principle of the bill. It

does no more than to withdraw the protection of the laws of the United

States, establishing the Post Office Department, from postmasters and

other agents of this Government who shall wilfully transgress State laws

deemed absolutely necessary to secure the States, within which they

exist, from servile insurrection.

This bill did not affect, in the slightest degree, any of the

non-slaveholding States. Neither did it apply to any of the slaveholding

States, except those within which the danger of insurrection had become

so imminent as to compel them to pass laws of the character referred to

in the bill.

Of the policy and justice of passing such a bill he could not doubt,

provided we possess the power. No person would contend that this

Government ought to become the instrument of exciting insurrection

within any of the States, unless we were constrained to pursue this

course by an overruling constitutional necessity. The question then is,

does any such necessity exist? Are we bound by the Constitution of the

United States, through our post-offices, to circulate publications among

the slaves, the direct tendency of which is to excite their passions and

rouse them to insurrection? Have we no power to stay our hand in any

case? Even if a portion of this Union were in a state of open rebellion

against the United States, must we aid and assist the rebels by

communicating to them, through our Post Office Department, such

publications and information as may encourage and promote their designs

against the very existence of the confederacy itself? If the

Constitution of the United States has placed us in this deplorable

condition, we must yield to its mandates, no matter what may be the

consequences.

Mr. B. did not believe that the Constitution placed us in any such

position. Our power over the mails was as broad and general as any words

in the English language could confer. The Constitution declares that

“Congress shall have power to establish post-offices and post roads.”

This is the only provision which it contains touching the subject. After

the establishment of these post-offices and post roads, who shall decide

upon the purposes for which they shall be used? He answered, Congress,

and Congress alone. There was no limitation, no restriction, whatever,

upon our discretion contained in the bond. We have the power to decide

what shall and what shall not be carried in the mail, and what shall be

the rate of postage. He freely admitted that, unless in extreme cases,

where the safety of the Republic was involved, we should never exercise

this power of discrimination between what papers should and should not

be circulated through the mail. The Constitution, however, has conferred

upon us this general power, probably for the very purpose of meeting

these extreme cases; and it is one which, from its delicate nature, we

shall not be likely to abuse.

He differed entirely from the opinion of the Senator from South Carolina

(Mr. Calhoun), as to the source whence the power was derived to pass

this bill. No action of the State Legislatures could either confer it or

take it away. It was perfect and complete in itself under the Federal

Constitution, or it had no existence. With that Senator he entirely

concurred in opinion, that the sedition law was clearly

unconstitutional. Congress have no power to abridge the freedom of the

press, or to pass any law to prevent or to punish any publication

whatever. He understood the freedom of the press to mean precisely what

the Senator from Massachusetts had stated. But does it follow, as the

gentleman contends, that because we have no power over the press, that

therefore we are bound to carry and distribute anything and everything

which may proceed from it, even if it should be calculated to stir up

insurrection or to destroy the Government? So far as this Government is

concerned, every person may print, and publish, and circulate whatever

he pleases; but are we, therefore, compelled to become his agents, and

to circulate for him everything he may choose to publish? This is the

question. Any gentleman upon this floor may write what he thinks proper

against my character; but because he can exercise this liberty, am I

therefore bound to carry and to circulate what he has written? So any

individual within the broad limits of this Union, without previous

restraint and without danger of punishment from the Federal Government,

may publish what is calculated to aid and assist the enemies of the

country in open war; but does it follow, as a necessary consequence,

that this very Government is bound to carry and circulate such

publications through its mails? A more perfect _non sequitur_ never had

been presented to his mind. It was one thing not to restrain or punish

publications; it was another and an entirely different thing to carry

and circulate them after they have been published. The one is merely

passive; the other is active. It was one thing to leave our citizens

entirely free to print and publish and circulate what they pleased; and

it was another thing to call upon us to aid in their circulation. From

the prohibition to make any law “abridging the freedom of speech or of

the press,” it could never be inferred that we must provide by law for

the circulation through the post-office of everything which the press

might publish. And yet this is the argument both of the Senator from

Massachusetts and the Senator from South Carolina. If this argument were

well founded, it was very clear to his mind, that no State law could

confer upon Congress any power to pass this bill. We derived our powers

from the Federal Constitution, and from that alone. If, under its

provisions, we have had no authority to pass the bill, we could derive

no such authority from the laws of the States.

Why, then, did Mr. B. vote for a bill to prevent the circulation of

publications prohibited by State laws? Not because we derived any power

from these laws; but, under the circumstances, they contained the best

rule to guide us in deciding what publications were dangerous. The

States were the best judges of what was necessary for their own safety

and protection; and they would not call for the passage of this bill,

unless they were firmly convinced that the situation in which they were

placed imperiously demanded it. They were willing to submit to a great

evil in depriving themselves of information which might be valuable to

them, in order to avoid the still greater evil that would result from

the circulation of these publications and pictorial representations

among their slaves. Such a law would not be permitted to exist after the

necessity for it had ended. He was therefore willing, upon this

occasion, to refer to the laws of the States, not for the purpose of

conferring any power on Congress, but merely for a description of the

publications which it should be unlawful for our deputy-postmasters

within these States to circulate.

This bill was in strict conformity with the recommendations contained in

the President’s message on this subject, which had, he believed, found

favor everywhere. The principles of this message, which had been

pronounced unconstitutional by the Senator from South Carolina (Mr.

Calhoun), had, he believed, been highly commended in a resolution passed

by the legislature of that State. He would read an extract from the

President’s message:

“In connection with these provisions in relation to the Post Office

Department, I must also invite your attention to the painful excitement

produced in the South, by attempts to circulate through the mails

inflammatory appeals addressed to the passions of the slaves, in prints,

and in various sorts of publications, calculated to stimulate them to

insurrection, and to produce all the horrors of a servile war.

“There is, doubtless, no respectable portion of our countrymen who can

be so far misled as to feel any other sentiment than that of indignant

regret at conduct so destructive of the harmony and peace of the

country, and so repugnant to the principles of our national compact, and

to the dictates of humanity and religion. Our happiness and prosperity

essentially depend upon peace within our borders—and peace depends upon

the maintenance, in good faith, of those compromises of the Constitution

upon which the Union is founded. It is fortunate for the country that

the good sense, the generous feeling, and the deep-rooted attachment of

the people of the non-slaveholding States to the Union, and to their

fellow-citizens of the same blood in the South, have given so strong and

impressive a tone to the sentiments entertained against the proceedings

of the misguided persons who have engaged in these unconstitutional and

wicked attempts, and especially against the emissaries from foreign

parts who have dared to interfere in this matter, as to authorize the

hope, that those attempts will no longer be persisted in. But if these

expressions of the public will shall not be sufficient to effect so

desirable a result, not a doubt can be entertained that the

non-slaveholding States, so far from countenancing the slightest

interference with the constitutional rights of the South, will be prompt

to exercise their authority in suppressing, so far as in them lies,

whatever is calculated to produce this evil.

“In leaving the care of other branches of this interesting subject to

the State authorities, to whom they properly belong, it is nevertheless

proper for Congress to take such measures as will prevent the Post

Office Department, which was designed to foster an amicable intercourse

and correspondence between all the members of the confederacy, from

being used as an instrument of an opposite character. The General

Government, to which the great trust is confided, of preserving

inviolate the relations created among the States by the Constitution, is

especially bound to avoid in its own action, anything that may disturb

them. I would, therefore, call the special attention of Congress to the

subject, and respectfully suggest the propriety of passing such a law as

will prohibit, under severe penalties, the circulation in the Southern

States, through the mail, of incendiary publications intended to

instigate the slaves to insurrection.”

In reply to Mr. Webster, Mr. B. said, that he did not think there was

any vagueness in that part of the bill on which the gentleman had

commented, except what arose from the nature of the subject. It is

vague, says the gentleman, because it contains no description of the

publications, the circulation of which it intends to prohibit, except

the words “touching the subject of slavery.” On this foundation he had

erected a considerable portion of his argument. Mr. B. acknowledged that

if the bill contained no other description than this, it would be

impossible to carry it into execution. But this was not the fact. The

subsequent language restricted this vague description; because it

confined the operation of the bill to such publications only, “touching

the subject of slavery,” as were prohibited from circulation by the laws

of the respective States.

We have, said Mr. B., wisely and properly referred, for the description

of the offence, to the laws of the different States which will be

embraced by the bill. It was just—it was politic—it was treating those

States with a proper degree of respect, to make our law conform with

their laws, and thus to take care that no conflict should arise between

our deputy postmasters and their State authorities. Could the gentleman

from Massachusetts himself make the bill more explicit? He could not do

it, consistently with the principles upon which it was founded, without

incorporating into its provisions all the laws of all the States who had

thought proper to pass laws upon this subject. Our deputy postmasters

were resident citizens of those States. They were bound to know the

State laws under which they lived, and all that this bill requires is,

that they shall not violate them.

The Senator from Massachusetts has contended that any newspaper which

had been sent to an individual by mail, and was deposited in a

post-office, was his property; and we had, therefore, no right to say it

should not be delivered. But this was begging the question. It was

taking that for granted which remained to be proved. If Congress, as he

(Mr. B.) had contended, possessed the incontestable power of declaring

what should and what should not be circulated through the mails, no man

could have the right to demand from any post-office that which the law

had declared should not thus be circulated. If we can, without violating

the Constitution, say that these inflammatory publications tending to

excite servile war shall not be distributed by our postmasters among the

individuals to whom they are directed, no question of property could

then arise. No man can have a property in that which is a violation of

the law. It then becomes a question, not of property, but of public

safety. Admit the gentleman’s premises, that we have no right to pass

any law upon this subject, and he can establish his position that a

property exists in those publications whilst in the post-offices.

Without this admission, his argument entirely fails.

He felt as reluctant as any man could feel, to vote for any law

interfering with the circulation through the mails of any publication

whatever, no matter what might be its character. But if the slaves

within any Southern State were in rebellion, or if a palpable or

well-founded danger of such a rebellion existed, with his present

convictions, should he refuse to prevent the circulation of publications

tending to encourage or excite insurrection, he would consider himself

an accomplice in their guilt. He entertained no doubt whatever of the

power of Congress to pass this bill, or of the propriety of exercising

that power. He would not have voted for the bill which had been reported

by the Senator from South Carolina, (Mr. Calhoun) because he thought it

a measure far beyond what was required by the necessity of the case.

This bill, whilst it was sufficiently strong to correct the evil, would

be confined in its operation to those States within which the danger

existed.

Mr. Davis (of Massachusetts) stated at length his objections to the

passage of the bill. Senators assumed that there were no difficulties in

the way, because the post-office power gave to Congress the right to

decide what should be carried in the mails. On a former occasion he had

said all that was proper in regard to this matter. He then drew the

attention of the Senate to the constitutional question involved, and

demonstrated, as he thought, that there was no authority in the

Constitution to pass this bill, or anything like it. The language of the

Constitution was very simple: it only said that Congress should have the

power to establish post-offices and post roads. Now what was a

post-office, in the meaning of the Constitution? To understand this, it

would be necessary to ascertain what was the meaning held at the time

the Constitution was adopted. You had a post-office at the time the

Constitution was made, and a press also; and the provision in the

Constitution was made in reference to both these known things. The

object in establishing the post-office, then, was to send abroad

intelligence throughout the country; and it was intended for the

transmission of newspapers, pamphlets, judicial and legislative

proceedings, and all matters emanating from the press, relating to

politics, literature, and science, and for the transmission of private

letters. It would be, therefore, in his opinion, in conflict with the

provision of the Constitution, giving Congress the power to establish

the post-office, as well as an abridgment of the freedom of the press,

to carry into effect the provisions of the bill.

The Senator from Pennsylvania reïterated the argument used the other day

by his friend from Georgia, that you have no right to diffuse

publications through the agency of the post-office, for the purpose of

exciting a servile war. Now let me tell the gentleman, (said Mr. D.)

that this is an old argument against the liberty of the press, and that

it has been used whenever it was thought necessary to establish a

censorship over it. The public morals were said to be in danger; it was

necessary to prevent licentiousness, tumult, and sedition; and the

public good required that the licentiousness of the press should be

restrained. All these were the plausible pretences under which the

freedom of the press had been violated in all ages. Now they knew that

the press was at all times corrupt; but when they came to decide the

question whether the tares should be rooted up, and the wheat along with

it, those who had decided in favor of liberty, had always decided that

it was better to put up with a lesser evil than to draw down upon

themselves one of such fearful magnitude, as must result from the

destruction of the press. Mr. D. contended that the power to be given to

the deputy postmasters to decide what should, and what should not be

distributed from the post-office, gave them a dangerous discretion over

a very delicate matter, and that the power was one highly susceptible of

abuse, and always liable to misconstruction.

Mr. Grundy (of Tennessee) observed that this bill was intended simply to

prevent any officer of the Government, who should violate the laws of

the States in which he resided, from sheltering himself under the

post-office law. As the bill now stood, the objections with regard to

abridging the freedom of the press had no application whatever. There

was no provision in the bill interfering with the printing or publishing

of any matter whatever, nor was it even pretended that Congress

possessed the power of doing so. It was not even said that certain

publications, no matter how incendiary in their character, should not be

deposited in the post-office, and transmitted through the mails.

Therefore all the objections that he had heard to the bill fell to the

ground. In this bill, the Government simply said to the individuals in

its employ, “We will not help you to do an act in violation of the laws

of the State in which you live.” That was the ground on which the bill

was framed, and it could not be pretended that this was an abridgment of

the liberty of the press. It was only the Government declining to assist

an individual in the violation of the law, and that was the whole bill.

The Government, under the Constitution, had an entire control of the

Post-Office Department. It had the power to regulate what matters should

be carried through the mails, and what should not. We say to everybody

that to these slaveholding States you may transmit through the mails

what you please, but if you transmit to one of our officers what is

prohibited by the laws of the State in which he resides, we shall say to

that officer, you shall not put on the mantle of the Government to

assist you in the violation of that law; you shall be subject to the

penalties of the State laws, besides removal from office. In fact there

was not the slightest pretext for saying that this bill violates in the

remotest degree the freedom of the press. Nothing should be carried in

the mails but what was proper for transmission through them; but if

there was anything sent through them tending to excite insurrection and

bloodshed, how could there be an objection to the passage of a law,

saying that it should not be delivered out of the post-office?

The gentleman from Massachusetts objected to the vagueness of the bill

in saying what shall not be distributed from the post-offices. How could

the matter, he asked, be made more specific? When the publication

arrived at the post-office where it was prohibited, and was about to be

handed out, the State law would be consulted, and by it, it would be

decided whether it was in violation of the State law or not, and it

could thus be determined whether it was proper for delivery. He should

not say anything as to the report—he did not concur in it farther than

that this was a great evil, and should be corrected in the mildest way

that it could be done. This bill did not affect any individual but those

of the post-offices of the States where laws have been passed

prohibiting publications and pictorial representations, calculated to

excite insurrection among the slaves. He was opposed to the original

bill, because it interfered with what publications should be deposited

in, as well as delivered from, the post-offices. But it was only at the

delivery office where this bill would operate, and the postmaster at

such office would be operated on by the laws of the State in which it is

situated. If this bill was not passed, nothing could be done, and the

post-office would be made (for there were persons wicked enough to do

it) the medium through which to send fire-brands throughout the country.

Mr. Clay said that he considered this bill totally unnecessary and

uncalled for by public sentiment; and in this he differed with the

Senator from Pennsylvania (Mr. Buchanan); for he believed that the

President’s message on the subject had met with general disapprobation;

that it was unconstitutional; and if not so, that it contained a

principle of a most dangerous and alarming character. When he saw that

the exercise of the most extraordinary and dangerous power had been

assumed by the head of the post-office, and that it had been sustained

by this message, he turned his attention to the subject and inquired

whether it was necessary that the General Government should, under any

circumstances, exercise such a power, and whether it possessed it; and

after much reflection, he had come to the conclusion, that they could

not pass any law interfering with the subject in any shape or form

whatever.

The evil complained of was the circulation of papers having a certain

tendency. The papers, unless circulated, did no harm, and while in the

post-office or in the mail—it was a circulation solely which constituted

the evil. It was the taking them out of the mail, and the use that was

to be made of them, that constituted the mischief.—Then it was perfectly

competent to the State authorities to apply the remedy. The instant that

a prohibited paper was handed out, whether to a citizen or sojourner, he

was subject to the laws which might compel him either to surrender them

or burn them. He considered the bill not only unnecessary, but as a law

of a dangerous, if not a doubtful authority.

It was objected that it was vague and indefinite in its character; and

how is that objection got over? The bill provided that it shall not be

lawful for any deputy postmaster, in any State, Territory, or District

of the United States, knowingly to deliver to any person whatever, any

pamphlet, newspaper, handbill, or other printed paper or pictorial

representation, touching the subject of slavery, where, by the laws of

said State, Territory, or District, their circulation is prohibited.

Now, what could be more vague and indefinite than this description? Now,

could it be decided by this description, what publications should be

withheld from distribution? The gentleman from Pennsylvania said that

the laws of the States would supply the omission. He thought the Senator

was premature in saying that there would be a precision in State laws,

before he showed it by producing the law. He had seen no such law, and

he did not know whether the description in the bill was applicable or

not. There was another objection to this part of the bill: it applied

not only to the present laws of the States, but to any future laws they

might pass.

Mr. C. denied that the bill applied to the slaveholding States only, and

went on to argue that it could be applied to all the States, and to any

publication touching the subject of slavery whatever, whether for or

against it, if such publication was only prohibited by the laws of such

State. Thus, for instance, a non-slaveholding State might prohibit

publications in defence of the institution of slavery, and this bill

would apply to it as well as to the laws of the slaveholding States; but

the law would be inoperative: it declared that the deputy postmaster

should not be amenable, unless he knowingly shall deliver, etc. Why, the

postmaster might plead ignorance, and of course the law would be

inoperative.

But he wanted to know whence Congress derived the power to pass this

law. It was said that it was to carry into effect the laws of the

States. Where did they get such authority? He thought that their only

authority to pass laws was in pursuance of the Constitution; but to pass

laws to carry into effect the laws of the States, was a most prolific

authority, and there was no knowing where it was to stop: it would make

the legislation of Congress dependent upon the legislation of

twenty-four different sovereignties. He thought the bill was of a most

dangerous tendency. The Senator from Pennsylvania asked if the

post-office power did not give them the right to regulate what should be

carried in the mails. Why, there was no such power as that claimed in

the bill; and if they passed such a law, it would be exercising a most

dangerous power. Why, if such doctrine prevailed, the Government might

designate the persons, or parties, or classes who should have the

benefit of the mails, excluding all others.

It was too often in the condemnation of a particular evil that they were

urged on to measures of a dangerous tendency. All must agree as to the

dangerous consequences of persons residing out of certain States

transmitting to them incendiary publications, calculating to promote

civil war and bloodshed. All must see the evil, and a great evil it was,

and he hoped that a stop would be put to it; but Congress had no power

to pass beyond the Constitution for the purpose of correcting it. The

States alone had the power, and their power was ample for the purpose.

He hoped never to see the time when the General Government should

undertake to correct the evil by such measures as the one before them.

If (said Mr. C.) you can pass this law to prohibit the delivery through

the post-office of publications touching the subject of slavery, might

they not also pass laws to prohibit any citizen of New York or

Massachusetts from publishing and transmitting through the mails

touching that subject? If you may touch the subject of slavery at all,

why not go to the root of the evil? Suppose one of the Southern States

were to pass a law of this kind, would you not be called upon by all the

arguments now used in favor of this bill, to carry such laws into

effect? Mr. C. concluded by saying that the bill was calculated to

destroy all the landmarks of the Constitution, establish a precedent for

dangerous legislation, and to lead to incalculable mischief. There was

no necessity for so dangerous an assumption of authority, the State laws

being perfectly competent to correct the evil complained of. He must

say, that from the first to the last he was opposed to the measure.

Mr. Calhoun could not concur with the views taken by the Senators from

Massachusetts and Kentucky, that this bill would comprehend in its

provisions all publications touching the subject of slavery. In order to

bring any publications within the provision of the bill, two

qualifications were necessary. The first was, that it must relate to the

subject of slavery; and the next was, that it must be prohibited by the

laws of the States to which it is transmitted. He thought that this was

the view that would be taken of it by the courts. The object of this

bill was to make it the duty of the postmasters in the States to conform

to the laws of such States, and not to deliver out papers in violation

of their laws. The simple question was, had this Government the power to

say to its officers, you shall not violate the laws of the States in

which you reside? Could it go further, and make it their duty to

co-operate with the States in carrying their laws into effect? This was

the simple question. Now could any man doubt that Congress possessed the

power to pass both measures, so that their officers might not come in

conflict with the State laws? Indeed, he looked upon measures of this

kind to prevent conflicts between the General and State Governments,

which were likely to ensue, as essentially necessary, for it was evident

that when such conflicts took place, the State must have the ascendancy.

Mr. C. then briefly recapitulated the principles on which this bill was

founded, and contended that it was in aid of laws passed by the States,

as far as Congress had the power constitutionally to go, and assumed no

power to prohibit or interfere with the publication or circulation of

any paper whatever; it only declared, that the officers of the

Government should not make their official stations a shield for

violating the State laws. Was there any one there who would say, that

the States had not the power to pass laws prohibiting, and making penal,

the circulation of papers calculated to excite insurrection among their

slaves? It being admitted that they could, could not Congress order its

officers to abstain from the violation of these laws? We do not (said

Mr. C.) pass a law to abridge the freedom of the press, or to prohibit

the publication and circulation of any paper whatever—this has been done

by the States already. The inhibition of the Constitution was on

Congress, and not on the States, who possessed full power to pass any

laws they thought proper. They knew that there were several precedents

to sanction this bill. Congress had passed laws to abstain from the

violation of the health laws of the States. Could any one say that the

Constitution gave to Congress the power to pass quarantine laws? He had

not adverted to the message of the President on this subject, because he

believed that the President acted from the best motives, and that that

part of the message was drawn up without sufficient reflection. He

denied, however, that this message was in conformity with the

Constitution. It would be directly abridging the liberty of the press

for Congress to pass such laws as the President recommended. One part of

the message he would refer to, which was in these words:

“I would, therefore, call the special attention of Congress to the

subject, and respectfully suggest the propriety of passing such a law as

will prohibit, under severe penalties, the circulation in the Southern

States, through the mail, of incendiary publications, intended to

instigate the slaves to insurrection.” This was clearly

unconstitutional, for it not only recommended the prohibition of

publications and circulation of incendiary papers (abridging the freedom

of the press), but it recommended also the infliction of severe

penalties, which powers were expressly prohibited by the Constitution.

On no other principle could this ever be defended, than that it was

simply abstaining from a violation of the laws of the States.

The Senator from Kentucky contended that this bill was useless, and he

(Mr. C.) agreed that it was so in one sense, and that was, with or

without this bill, the Southern States would execute their own laws

against the circulation of such papers. It was a case of life and death

with them; and did anybody suppose that they would permit so many

magazines in their bosoms, to blow them to destruction, as these

post-offices must be, if these incendiary publications continued to be

circulated through them? While the Southern States contained so many

postmasters opposed to their institutions, as it was in his own State,

where almost every postmaster was opposed to it, it was absolutely

necessary for them to take effectual measures for their own security. It

was the assertion of the principle, that the States had a right to

protect themselves, which made the bill valuable in his eye; it

prevented the conflict which would be likely to take place between the

General and State Governments, unless some measure of the kind should be

adopted. The States had a right to go to the extent of this bill, and

they would be wanting to themselves and to posterity, if they omitted to

do it. It was on the doctrine of State rights and State intervention,

that he supported this bill, and on no other grounds.

The Senator from Massachusetts objected to the returning of these

papers, whose delivery was prohibited. He regretted this as much as the

Senator did, but his objection was, that it did not go far enough; he

thought that these papers should be delivered to the prosecuting

officers of the States, to enable them to ferret out the designs of the

incendiaries.

Mr. Webster remarked, that in general, it might be safely said, that

when different gentlemen supported a measure admitted to be of a novel

character, and placed their defence of it on different and inconsistent

grounds, a very simple person might believe, in such case, that there

were no very strong grounds for adopting the measure. The Senator from

Pennsylvania and the Senator from South Carolina not only placed their

defence of their bill on opposite grounds, but each opposed the

principles on which the other founded his support of it. Where the

object to be gained was apparently good, and the case urgent, as it was

represented to be, how could limitations of power stand against powerful

opponents, which have always been urging to despotism? Now, against the

objects of this bill, he had not a word to say; but with constitutional

lawyers, there was a great difference between the object and the means

to carry it into effect. It was not the object to be gained, but the

means to attain it, which they should look to, for though the object

might be good, the means might not be so. His objections went to the

means and not to the object; and he did not yield the argument because

the object was a good one, and the case was urgent. It was better to

limit the power, and run the risk of injury from the want of it, than to

give a power which might be exercised in a dangerous manner.

The Senator from Pennsylvania said that this bill was calling on

Congress to do nothing but to abstain from violating the laws of the

States. It was one thing, said the Senator, for Congress to abstain from

giving these incendiary papers circulation, and another to pass laws

saying that they shall not be published. But if Congress had no mail

through which these papers could be transmitted, what did the gentleman

mean by Congress abstaining from giving them circulation? It meant that

Congress should interfere and should create an especial exception as to

what should be transmitted by their ordinary channel of intelligence,

and that that exception should be caused by the character of the writing

or publication. He contended that Congress had not the power, drawn from

the character of the paper, to decide whether it should be carried in

the mail or not, for such decision would be a direct abridgment of the

freedom of the press. He confessed that he was shocked at the doctrine.

He looked back to the alien and sedition laws which were so universally

condemned throughout the country, and what was their object? Certainly

to prohibit publications of a dangerous tendency. Mr. W. here quoted the

sedition law, to show the objects it intended to effect. But the deputy

postmasters (Mr. W. said) must look into the newspaper mail to see if

there were any publications in it touching the subject of slavery

calculated to excite insurrections among the slaves.

Now, said Mr. W., the country would have been rent into atoms if the

sedition law, instead of saying that papers should not be published in

such and such a way, had declared that the deputy postmasters should

have the power to search the mails to see if they contained any

publications calculated to “bring the Government into disrepute, promote

insurrection, and lead to foreign war,” the evils the sedition law

intended to guard against. All the papers described in the law of ’99

were unlawful by the laws of any of the States, and yet that law which

had created so much excitement and met with such general reprobation,

contained nothing like the power claimed by this bill. Any law

distinguishing what shall or shall not go into the mails, founded on the

sentiments of the paper, and making the deputy postmaster the judge, he

should say, was expressly unconstitutional, if not recommended by

gentlemen of such high authority. This bill (said Mr. W.) went beyond

the recommendation of the President, for his recommendation was, that

the person who circulated the papers described by him should be punished

by severe penalties. Now, this was the old law of liberty—there was not

a word of previous restraint in it as imposed by this bill. Mr. W. then

went into an argument to show the vagueness of the bill in describing

the paper, the delivery of which was prohibited. Under it, it was

impossible to determine what publications should be prohibited;

abolition pamphlets were to be stopped at the South, and anti-abolition

papers were to be stopped at the North. In reply to Mr. Buchanan, he

said that he did not assume that these prohibited publications either

were or were not property. All he said was, that they ought not to make

the deputy postmasters the judge, and take away the property without the

authority of law. What he had to say was, that it was a question of

property or no property, and that they could not make the deputy

postmaster the judge of the fact, as he could not be a judge of property

known to the Constitution and the law.

Mr. Buchanan said he had not anticipated, when he first addressed the

Senate upon this subject, that he should have occasion to make any

further remarks, but the Senator from Massachusetts had replied to his

argument, in such a special manner, that he felt himself constrained to

reply to some of his remarks. Now, permit me to say (continued Mr. B.)

that he has not at all met the point of my argument. He has invested

this subject with an air of greater importance and responsibility than

it deserves: he has played around it with all his powers, but without

touching the real question involved in the discussion.

Congress has no power (says the gentleman) to pass any law abridging the

freedom of speech or of the press. Granted. He most freely admitted that

Congress had no power to touch the press at all. We can pass no law

whatever either to prevent or to punish any publication, under any

circumstances whatever. The sedition law violated this principle. It

punished libels against the Federal Government and its officers; and

having met with general reprobation, it was repealed, or permitted to

expire by its own limitation, he did not recollect which.

Mr. B. said he admitted these premises of the gentleman in their

broadest extent; but did they justify his conclusions? In order to

maintain his argument, he must prove that the Constitution, in declaring

that Congress shall not pass any law abridging the freedom of the press,

has thereby, and from the force of these terms alone, commanded us to

circulate and distribute, through our post-offices, everything which the

press may publish, no matter whether it shall promote insurrection and

civil war or not. This is the proposition which he must establish. All

the gentleman’s remarks in favor of the liberty of the press met his

cordial approbation; but they did not apply to the constitutional

question then under discussion. He had argued this question precisely as

if, in addition to the words already in the Constitution, that “Congress

shall make no law abridging the freedom of speech or of the press,”

there had been inserted, “or to prevent the circulation of any

production of the press through the post-offices.” But these words were

not in the instrument; and the only question was, whether the one

prohibition could be inferred from the other. Mr. B. said he was in

favor of a plain and literal construction of the Constitution. He took

it for his guide; and he could never consent to interpolate what its

framers never intended should be there. They have conferred upon

Congress, in express terms, a general discretion in regard to the Post

Office Department; and the question then was, shall we exercise it in

the manner proposed by this bill, for the purpose of preventing servile

war, bloodshed and disunion?

How had the gentleman from Massachusetts met his argument? He says that

the principles upon which the Senator from South Carolina (Mr. Calhoun)

and himself had sustained this bill, were at variance with each other;

and that this of itself was sufficient to cast doubt over the measure.

But was it the first time the gentleman had known correct conclusions to

be drawn from varying or even unfounded premises? The bill itself ought

not to be condemned for the arguments of its friends. He would remind

the gentleman of the advice given by a distinguished English judge, to a

young friend about to occupy a judicial station in the West Indies,

which was, never to give reasons for his judgments, where it could be

avoided; because his natural sense and perception of justice would

almost always enable him to decide correctly, though he might, and

probably often would, assign insufficient reasons for his decisions.

This bill ought to be judged by its own provisions, and ought not to be

condemned for the reasons in support of it which had been advanced

either by the Senator from South Carolina or himself.

The Senator from Massachusetts had argued as though he (Mr. B.) had

said, that as the end proposed by this measure was good, he should vote

for it, notwithstanding the means might be unconstitutional.

[Here Mr. Webster explained, and said he had not imputed to Mr. B. such

an argument.]

Mr. B. proceeded. The Senator did not mean this imputation; but his

argument seemed to imply as much. However necessary he might believe

this bill to be, if he did not find a clear warrant for its passage in

the Constitution, it should never have his support. He never could

believe that this Government, having exclusive control over the

Post-Office Department in all its various relations, was yet so impotent

to prevent evil, that it must, under the fundamental law which called it

into existence, whether it would or not, distribute publications tending

directly to promote servile insurrection, and to produce its own

destruction.

The Senator from South Carolina (Mr. Calhoun) had misapprehended him in

one particular. He (Mr. B.) had disclaimed all authority to pass this

bill derived from State laws, or from any other source than the

Constitution of the United States. He had not said he would vote for a

similar bill in all cases where the State Legislatures might think

proper to pass laws to prohibit the circulation of any publication

whatever. He considered the passage of such laws merely as evidence of

the necessity for legislation by Congress; but he was very far from

adopting the principle that it should be conclusive evidence in all

cases. Congress must judge for itself under all the circumstances of

each particular case.

In reply to the Senator from Massachusetts, Mr. B. said that this bill

would not be a penal law. Everything like a penalty had been stricken

from its provisions, unless the removal of a deputy postmaster from

office by the Postmaster General might be viewed in that light. By it we

merely directed our agent not to violate State laws by distributing

publications calculated to excite insurrection. He would not have

occasion to study all the laws of all the States on the subject of

slavery, as the Senator from Massachusetts had alleged. All that would

be required of him was to know the laws of the State of which he was a

citizen, and to take care not to violate them.

The gentleman had said that he (Mr. B.) had mistaken the recommendation

contained in the President’s message. Now he undertook to assert that

this bill was in conformity with the recommendation of the President,

and carried it out in all essential particulars.

[Here Mr. B. again read the last paragraph of the message which he had

read before.]

Now, sir, (said Mr. B.) does not the President expressly assert that

Congress has authority to regulate what shall be distributed through the

post-offices, and does he not “suggest the propriety of passing such a

law as will prohibit, under severe penalties, the circulation in the

Southern States, through the mail, of incendiary publications, intended

to instigate the slaves to insurrection?” Except that this bill

contained no severe penalties, it was framed both in its spirit and in

its letter according to the suggestion of the President. What other bill

could we pass of a milder character than the one now before us, to

prevent the circulation of these incendiary publications? Let the

President’s recommendation be entitled to what weight it might, this

bill was in exact accordance with it.

The Senator from Massachusetts had contended that this bill conferred

upon deputy postmasters the power of depriving individuals of their

property in newspapers and other publications, in violation of that

clause in the Constitution, which declares that no person shall be

deprived of his property without due process of law. By this bill we had

not attempted to shield any postmaster from legal responsibility for his

conduct. We could not do so, if we would. We had merely prescribed for

him, as we had done for our other agents, the line of his duty. We did

not attempt to protect him from the suit of any person who might

consider himself aggrieved. If any individual to whom a publication was

directed, and who had demanded it from the postmaster and had been

refused, should believe our law to be unconstitutional, he might bring

this question before the judiciary, and try it, like any other question.

All our officers and agents are liable to be sued, and if the law under

which they acted should prove to be unconstitutional, it would afford

them no protection. On the present occasion we proposed to proceed in

the spirit of the common law principle, that any individual may abate a

nuisance; though he thereby rendered himself responsible, in case it

should appear afterwards that the thing abated was not a nuisance. So

here, the postmaster refusing to deliver a newspaper under our law,

would be responsible in damages to the party aggrieved, in case it

should appear that the law under which he had acted was

unconstitutional.

As to the necessity for passing this bill, he should say but a few

words. It was very easy for gentlemen to say that necessity was the plea

of tyrants. He admitted it had been so, and would be so in all time to

come. But after all, if we possessed the power to legislate in this

case, from our situation we were compelled to judge whether it was

necessary to call it into efficient action or not. This duty devolved

upon us. We could not avoid deciding this question. Was it not, then,

within our knowledge that the slaveholding States had been attempted to

be flooded with pamphlets and pictorial representations calculated to

excite servile insurrection? Had we not seen upon this floor many of

these pictorial representations, whose direct effect would be to excite

the wild and brutal passions of the slaves to cut the throats of their

masters? Within the last few months, had there not been blood shed? and

had there not been several attempted insurrections in some of the

Southern States? These facts were incontestable. Believing and knowing

all this to be true, he said the case of necessity, in his judgment, was

fully established, and he should vote for the passage of the bill.

Mr. Cuthbert (of Georgia) was not desirous to throw himself into the

current of this debate at this time. The position which he held—the

infrequency of his occupying that floor, and the indisposition under

which he labored, authorized him to expect the attention of the Senate

for a short time, when he should be better able to address them than he

then was. He therefore hoped the Senate would indulge him in an

opportunity of being heard on the subject, by postponing it, to be taken

up within a very short period. It appeared to him that the Senator from

Pennsylvania had said precisely what should have been said in support of

this bill. It appeared to him that that Senator had given an

unanswerable reply to the Senator from Massachusetts on points on which

he principally relied for his opposition to the measure before them.

What is the state of the case (said Mr. C.)? The deputy postmaster in

one of the States holds in his hand an incendiary publication, intended

to carry blood and desolation through the land. Is he bound in duty to

hold it from circulation? If he gives it to another, the evil intended

by that publication will ensue; but then your officer, contends the

Senator from Massachusetts, is bound to deliver it, because you have no

power to pass a law abridging the freedom of the press. According to

this doctrine, that which an individual cannot do, your officer is bound

to do. It appeared to him that the obvious necessity of this law was to

prevent the post-office agents from committing a criminal offence

against the laws of the States, and then shielding themselves under the

post-office law. But the Senator from Massachusetts had not met this

point, but had rather evaded and played around it. This was a question

which should not be discussed with the chicanery of a pettifogging

lawyer, but should be considered with those enlarged ideas and noble

sentiments which belong to the statesman. They should argue it as became

enlightened patriots, anxious to promote harmony and good feeling

through our common country, and to preserve all its parts from the

dangers of insurrection.

He denied that property could be affected by this law, as contended by

the Senator from Massachusetts. There could be no property in these

incendiary publications. The postmaster holds in his hand that which, by

the laws of the States, is in the condition of stolen property, and he

is bound to give it back. He holds in his hand what, by his own

judgment, he considers not to be property—which his own judgment

condemns, and he is therefore bound to resign it. The Senator from

Massachusetts said, rightly, that the person to whom this publication is

directed may come forward and demand it, under the provision of this

law. Now, if the Senator thought there was anything wanting in this

provision of the bill, why did he not propose an amendment? If he did

propose any, he (Mr. C.) had not heard it. The property is not to be

destroyed; it must be returned to him who sent it.

In another point of view (Mr. C. said), the postmaster must judge

whether these papers are legal or not. He holds in his hand papers which

the laws of his State have said shall not be circulated, under a

penalty. Is he not to decide whether he shall incur that penalty or not?

How stood the argument of the Senator from Massachusetts? He requires

that the officer shall violate the laws of his State, or that the

General Government shall protect him in it. With regard to the members

that compose the Senate, every gentleman was conscious in his own breast

of a strong desire to prevent the evils of a servile war in the Southern

States. Of this he was confident. But with regard to the Senator from

Massachusetts, he should be guilty of a want of candor if he allowed him

that clearness of judgment which belonged to the statesman; he should be

wanting in that sincerity of heart on which he had ever prided himself,

if he declared his conviction that the honorable Senator had treated

this subject with the liberal and impartial spirit it deserved. The

gentleman’s course had uniformly been opposed to all those measures

which tended to quiet the country, and heal those sectional dissensions

which disturb the Union.

When a large and overwhelming vote was taken in the Senate, on the

motion of the Senator from Pennsylvania, believed by all to be so

necessary to settle a question, threatening the most fearful

consequences, it was held to be highly desirable that there should be an

unanimous vote. Yet, on an occasion when the Senator could well have

shown a desire to harmonize and conciliate, his vote was found in the

negative. Again, the Senator from Massachusetts had put forth a paper

calculated to excite great distrust in the body of the people affected

by it. He alluded to the resolutions adopted at a meeting held in Boston

on the subject of slavery, of which the gentleman was said to be the

author, in which it was declared that Congress had the power to regulate

the transfer of slaves from one State to another. Mr. C. said that he

had addressed the Senate but seldom, and as he wished to be heard on

this subject more at large, when his health was better and under more

favorable circumstances, he hoped the Senate would indulge him by a

postponement.

Mr. Webster said that he had heard the remarks of the Senator from

Georgia (Mr. Cuthbert) with attention and with respect; and considering

his speech of a personal character, it became him to notice it; but as

the gentleman proposed to discuss this subject more at large when his

health was better, and, as he said, under circumstances less tending to

irritation, he should postpone his reply till then. He should hear the

gentleman with pleasure, and he looked forward to it with much

solicitude, and should endeavor to reply to him according to his best

abilities. Mr. W. then entered into a lengthy reply to the remarks of

Mr. Buchanan, in the course of which he contended that the law was

unnecessary, because the States had at present the power to punish the

deputy postmasters who should circulate incendiary publications in

violation of their laws.

Mr. Buchanan did not rise again to argue the question. He did not feel

any petty desire to have the last word. He should now merely remark that

the Senator from Massachusetts, in his last observations, had done

nothing more than again to restate his proposition, without offering any

new argument in its support. He reminded him of another powerful man, in

the ancient time, who was condemned to roll a large stone to the top of

a mountain, which was always falling back upon him, and which he never

could accomplish. The gentleman’s position was one which even his great

powers did not enable him to maintain.

Mr. B. should not again have risen but for the purpose of making a

single remark. The Senator from Massachusetts had just expressed the

opinion that deputy postmasters could be punished, under State

authority, for circulating inflammatory pamphlets and papers in

violation of State laws. If this be true, then all the power over the

post-office which we confer by this bill already exists in the States.

The effect of it, then, will be nothing more than to express our assent

to the exercise of a power over deputy postmasters by the States, which

the gentleman admits to exist already. Upon this principle there can be

no objection to the adoption of the present measure.

Mr. Cuthbert only rose to repeat the request that the Senate would, by

the postponement of the subject to a short day, allow him an opportunity

of being heard on it when his health was better.

Mr. C. then moved to lay the bill on the table; which motion was lost.

The bill was then rejected by the following vote:

Yeas—Messrs. Black, Brown, Buchanan, Calhoun, Cuthbert, Grundy, King of

Alabama, King of Georgia, Mangum, Moore, Nicholas, Porter, Preston,

Rives, Robinson, Tallmadge, Walker, White and Wright—19.

Nays—Messrs. Benton, Clay, Crittenden, Davis, Ewing of Illinois, Ewing

of Ohio, Goldsborough, Hendricks, Hubbard, Kent, Knight, Leigh, McKean,

Morris, Naudain, Niles, Prentiss, Ruggles, Shepley, Southard, Swift,

Tipton, Tomlinson, Wall, and Webster—25.

During this session of Congress (1836), Michigan sought admission into

the Union. The following speech was made by Mr. Buchanan on the first of

April, in reply to some of the arguments against the admission of that

State:

MR. PRESIDENT: Nothing was more remote from my intention, when I closed

my remarks on Wednesday last, than again to address you on the subject

of the admission of Michigan into the Union; but my argument on that

occasion has been so strongly assailed by the Senator from New Jersey

(Mr. Southard), and other gentlemen, that I feel myself almost

constrained to reply. Even under this strong necessity, I would not now

trespass upon your time, if I believed I should thus provoke a

protracted debate, and thereby prevent the decision of the question

before we adjourn this afternoon.

I shall undertake to demonstrate, notwithstanding all that has been

said, that under the ordinance of 1787, aliens who were residents of the

Northwestern Territory, had a clear right to exercise the elective

franchise.

The territory ceded by Virginia to the United States was sufficiently

extensive for an immense empire. The parties to this compact of cession

contemplated that it would form five sovereign States of this Union. At

that early period we had just emerged from our revolutionary struggle,

and none of the jealousy was then felt against foreigners, and

particularly against Irish foreigners, which now appears to haunt some

gentlemen. There had then been no attempts made to get up a native

American party in this country. The blood of the gallant Irish had

flowed freely upon every battle-field in defence of the liberties which

we now enjoy. Besides, the Senate will well recollect that the ordinance

was passed before the adoption of our present Constitution, and whilst

the power of naturalization remained with the several States. In some,

and perhaps in all of them, it required so short a residence, and so

little trouble, to be changed from an alien to a citizen, that the

process could be performed without the least difficulty. I repeat that

no jealousy whatever then existed against foreigners.

What, at that early period, was the condition of the vast Territory,

part of which has been formed into the State of Michigan? It was a

wilderness and a frontier. The wise men of the old Congress who framed

this ordinance desired to promote its population, and to render it a

barrier against foreign invasion. They were willing that all persons,

whether citizens of any of the States, or foreigners, who should

establish a fixed residence in the Territory, and become the owners of a

freehold, might not only enjoy the privilege of voting, but that of

holding offices. In regard to the construction of the ordinance itself,

I shall not follow in detail the argument of the Senator from New

Jersey. Indeed, I do not consider it a question for construction. The

language is so plain, that he who runs may read. No ingenuity can cast

the slightest shade of doubt over it.

The ordinance declares that “so soon as there shall be five thousand

_free male inhabitants_ of full age, in the district, upon giving proof

thereof to the governor, they shall receive authority, with time and

place, to elect representatives from their counties or townships, to

represent them in the general assembly; provided that, for every five

hundred _free male inhabitants_, there shall be one representative, and

so on, progressively, with the number of free male inhabitants, shall

the right of representation increase, until the number of

representatives shall amount to twenty-five; after which the number and

proportion of representatives shall be regulated by the legislature;

provided, that no person be eligible or qualified to act as a

representative, _unless he shall have been a citizen of one of the

United States three years, and be a resident in the district, or unless

he shall have resided in the district three years_; and in either case,

shall likewise hold in his own right, in fee simple, two hundred acres

of land within the same; provided also, that a freehold of fifty acres

of land in the district, _having been a citizen of one of the States,

and being resident in the district, or the like freehold and two years

residence in the district, shall be necessary to qualify a man as an

elector of a representative_.”

Now, sir, I have said that this language is too plain for construction.

When had the people of this Territory the right to elect

representatives? Was it when there were five thousand free male

_citizens_ within its borders? By no means; but as soon as there were

that number of _free male inhabitants_, whether citizens or not. Who

were entitled to vote at these elections? _They_, referring directly and

immediately to the _five thousand free male inhabitants of full age_.

The subsequent portion of the clause which I have just read, makes this

question, if possible, still plainer. It divides those capable of being

elected representatives, as well as the electors, into two distinct

classes, conferring advantages, in both cases, upon those inhabitants

who had been citizens of one of the States for a period of three years.

If a candidate for the House of Representatives had been “a citizen of

one of the United States three years,” he was eligible, although he

might not have been a resident of the Territory for more than a single

day. Nothing more, in this case, is required than that he should be a

resident. No period of residence was necessary. If the candidate, on the

other hand, belonged to the second class—if he had been a naturalized

citizen of one of the States for less than three years, or if he still

continued to be an alien, in order to render him eligible as a

representative, he must “have resided in the district three years.” In

short, if he had been a citizen for three years, it was no matter how

brief his residence might have been; but if “a free male inhabitant” of

any other description, a residence of three years was indispensable. A

similar distinction prevails in regard to the electors. “A citizen of

any of the States, if a resident of the district but for a single day,

had a right to exercise the elective franchise. If, on the other hand,

he were not a citizen, “two years residence in the district” was

required.

The property qualification was the same both for citizens and for other

residents.

[Mr. Buchanan here read other portions of the ordinance to prove that

its framers were careful in their use of terms, and always distinguished

with great precision, between the use of the words “_free male

inhabitants_,” and “citizens of one of the United States,” etc. He also

referred, as a further proof of his position, to the language of that

portion of the ordinance which provides for the election of the

legislative council.]

Now, sir, said Mr. B., have I not clearly established the position,

that, under this ordinance, aliens were entitled to elect and to be

elected, provided they had resided a sufficient time in the territory,

and were possessed of the necessary freehold qualification? If I can

comprehend the meaning of the plainest English words, neither doubt nor

difficulty can longer rest upon this question.

But it has been urged that in order to become a freeholder, a person

must first have been a citizen of one of the States. In reply, I might

content myself by saying that this is begging the question. It is

assuming the very proposition to be proved. But I shall give this

objection two answers. In the first place, although I have become

somewhat rusty in my legal knowledge, yet I feel perfectly safe in

asserting, that, under the strict principles of the common law of

England, an alien may purchase real estate, may hold real estate, may

transmit real estate to his heirs, or devise it by his will. His title

is good against all mankind, except the crown; and can only be divested

by what in technical language is termed “an office found” in favor of

the king. Admitting that the Government in this country possessed the

same right, they have, in the most solemn terms, abandoned it, by

holding out inducements, under the ordinance, to foreigners, to become

the proprietors of real estate within the Northwestern Territory.

An answer still more conclusive may be given to this objection. The old

Congress which framed the ordinance had the unquestionable power to

enable aliens to purchase and hold real estate. It was their policy to

promote the settlement of this Territory; and for this purpose they have

plainly declared, by the ordinance, that aliens, or in other words, that

any free male inhabitant, might hold real estate. Even at this day

aliens, without any restriction, purchase lands from the United States.

To lure them to make purchases, as we have done, and then to attempt to

forfeit their estates, would be a violation of every principle of

justice and public faith.

The Congress of the United States have repeatedly, in relation to Ohio,

Indiana, and Illinois, placed the same construction on this ordinance

which I have done. I shall not exhaust either myself, or the Senate, by

referring to more than one or two of these instances. In April, 1802,

when Congress passed the act authorizing the people of Ohio to form a

constitution and State government, it became necessary to prescribe the

qualifications of the electors of delegates to the convention. They

performed this duty in the fourth section of that act. It declares as

follows: “That all male citizens of the United States who shall have

arrived at full age, and resided within the said Territory at least one

year previous to the day of election, and shall have paid a territorial

or county tax, _and all persons having, in other respects, the legal

qualifications to vote for representatives in the general assembly of

the territory_, be, and they are hereby, authorized to choose

representatives to form a convention.”

Who were these persons having, in other respects, the legal

qualifications to vote for Territorial representatives? Let the

ordinance itself answer this question. They were free male persons, not

citizens of the United States, who held a freehold in fifty acres of

land within the Territory, and had resided there for two years.

Congress, actuated by the more liberal and enlightened spirit of the

age, in the year 1802, dispensed with the freehold qualification in

regard to citizens of the United States. They suffered it to remain,

however, in relation to those persons within the Territory who were not

citizens: but who possessed the legal qualifications, in other respects,

to vote for Territorial representatives.

I shall merely refer to another instance in the case of Illinois. On the

20th May, 1812, Congress passed an act to extend the right of suffrage

in that Territory. Under this act, no freehold was necessary, in any

case, to the exercise of the elective franchise. The spirit of the age

had corrected this error in politics. I am glad of it. Our own

experience has taught us that the citizen, in humble circumstances, who

pays his personal tax, feels as deep an interest in the welfare of the

country, and would make as many sacrifices to promote its prosperity and

glory, as the man who has an income of thousands from his real estate.

Wealth has never been, and never can be, a true standard of patriotism.

By the first section of this act, Congress declared that “_each and

every free white male person_, who shall have attained the age of

twenty-one years, and who shall have paid a county or Territorial tax,

and who shall have resided one year in said Territory previous to any

general election, and be, at the time of such election, a resident

thereof, shall be entitled to vote for members of the legislative

council and house of representatives for the said Territory.” You

perceive, sir, that Congress, by this act, no longer retained the

distinction which they had established in regard to Ohio, between

citizens of the United States and persons in other respects entitled to

vote for members of the Territorial legislature. They are all blended

together into the same mass, and the elective franchise is conferred

upon them all, under the denomination of free white male persons, who

have paid taxes and resided one year in the Territory. The phrase

citizens of the United States does not once occur in the act. In the

second and third sections these free white male persons are denominated

citizens of the Territory, not citizens of the United States. Under the

ordinance of 1787, they were, in fact, constituted citizens of the

Territory; and this phraseology is, therefore, perfectly correct.

The Senator from New Jersey (Mr. Southard) has undertaken the Herculean

task of proving that neither the ordinance nor the act of 1802, in

relation to Ohio, nor the act to which I have just referred, nor the

other similar acts conferred upon any persons not citizens of the United

States the right of voting. How far he has been successful, I shall

leave for the Senate to judge.

These portions of the ordinance to which I have heretofore referred were

subject to the control of Congress. They have been modified and changed

in several instances, some of which have been referred to and commented

upon in this debate. But I now come to speak of one of those articles of

the ordinance, essential to the correct decision of this question, which

is placed beyond the power of Congress. To use its own emphatic

language, they “shall be considered as articles of compact between the

original States and the people and States in the said Territory, and

forever remain unalterable, unless by common consent.” This solemn

agreement has been confirmed by the Constitution of the United States.

No person either denies or doubts the sacred character and the binding

force of this contract. The fifth of these articles of this ordinance

declares as follows: “And whenever any of the said States shall have

_sixty thousand free inhabitants therein_, such State shall be admitted

by its delegates into the Congress of the United States, on an equal

footing with the original States, in all respects whatever; and shall be

at liberty to form a permanent constitution and State government;

provided the constitution and government so to be formed shall be

republican, and in conformity to the principles contained in these

articles; and, so far as it can be consistent with the general interest

of the confederacy, such admission shall be allowed at an earlier

period, and when there may be a less number of free inhabitants in the

State than sixty thousand.”

Now, sir, under this provision, these sixty thousand free inhabitants

had a right to frame a constitution whenever they pleased. They had a

right to determine which of them should be electors of delegates to

their own convention for that purpose, and which of them should not. It

rested solely within their own discretion, whether the elective

franchise should be confined to the citizens of the United States, or be

extended to other inhabitants of the Territory. It was the right and the

duty of Congress first to determine the boundaries of the States to be

formed within the limits of the Northwestern Territory. Had this duty

been performed, the free inhabitants of Michigan, after they amounted to

sixty thousand, would have become a distinct political community under

the ordinance. They would have possessed the sovereign right to form a

constitution; and if the constitution were republican, and in conformity

to the ordinance, they might have demanded admission, by their

delegates, into the Congress of the United States. They could not have

been refused without a direct violation of the solemnly pledged faith of

the nation. If Congress had objected that persons, not citizens of the

United States, had been permitted to vote at the election for delegates,

they might have triumphantly presented this ordinance, and declared that

the question was settled by its terms and its spirit; that the time had

arrived when they were entitled to shake off their Territorial

dependence, and assume an equal rank with the other States of the Union.

Throughout the ordinance there is a marked distinction between “free

inhabitants” and “citizens of the United States.”

It is true that Congress have never yet determined the boundaries of the

State of Michigan; but their omission to do so could not affect, in any

degree, the right of the free male inhabitants to vote for delegates to

the convention which framed their constitution. As soon as Michigan

shall have been admitted into the Union, the boundaries of Wisconsin

will then be irrevocably determined. It will be the last of the five

States into which the Northwestern Territory can be divided under the

terms of the ordinance. When that Territory shall contain sixty thousand

free inhabitants, they will have an absolute right to demand admission,

as a State, into the Union, and we cannot refuse to admit them without

violating the public faith. Still, I should not advise them to frame a

constitution without a previous act of Congress.

The precedent in the case of Tennessee, on which I commented when I

addressed the Senate on Wednesday last, has completely silenced all

opposition in regard to the necessity of a previous act of Congress to

enable the people of Michigan to form a State constitution. It now seems

to be conceded, that our subsequent approbation is equivalent to our

previous action. This can no longer be doubted. We have the

unquestionable power of waiving any irregularities in the method of

framing the constitution, had any such existed. It is wiser, I admit,

for Congress, in the first instance, to pass such an act; but, after

they had refused to do so, from year to year, the people of Michigan had

no other alternative but either to take the matter into their own hands,

or abandon the hope of admission into the Union, within any reasonable

time.

But I am not done with this Tennessee precedent.

It will be recollected that when North Carolina ceded to the United

States the territory which now composes the State of Tennessee, it was

specially stipulated that the inhabitants within the same should “enjoy

all the privileges, benefits and advantages,” set forth in the ordinance

for the government of the Northwestern Territory. This provision makes

the case of Tennessee one precisely in point with the present. I would

ask, then, who voted at the election for delegates to frame the

constitution of Tennessee? Let the proclamation of Governor Blount,

issued in obedience to an act of the Territorial legislature, answer

this question. He declares “that all free males (not free male

citizens,) twenty-one years of age and upwards,” shall be entitled to

vote. Under this proclamation every free male inhabitant of the

Territory had a right to vote, no matter how short a time his

inhabitancy may have continued. In this respect it differs from the

Territorial law of Michigan, which requires a previous residence of

three months.

With a full knowledge of these facts, General Washington, in his message

to Congress of the 8th of April, 1796, on the subject of the admission

of Tennessee into the Union, declares that “among the privileges,

benefits and advantages thus secured to the inhabitants of the Territory

south of the river Ohio, appear to be the right of forming a permanent

constitution and state of government, and of admission as a State by its

delegates into the Congress of the United States, on an equal footing

with the original States in all respects whatever, when it should have

therein sixty thousand free inhabitants; provided the constitution and

government so to be formed should be republican, and in conformity to

the principles contained in the articles of the said ordinance.”

The State of Tennessee was accordingly admitted. At this early day, when

the ordinance was better understood than it can be at present, no

objection was made from any quarter, so far as I can learn, that

delegates to the convention which formed the constitution of that State,

were voted for by inhabitants who were not citizens of the United

States. Certain it is, that no such question was raised by General

Washington. Even Mr. King, whose report was decidedly adverse to the

admission of this State, never, in the most distant manner, adverts to

this objection which has now been so strongly urged by Senators.

I stated when I last addressed the Senate, as a proposition clearly

established, that under the ordinance, the States formed out of the

Northwestern Territory had a right to confer the elective franchise upon

the inhabitants resident within them at the time of the adoption of

their constitutions, whether they were citizens or not. I then also

asserted, that the States of Ohio and Illinois had not only exercised

this power to the extent which Michigan had done, but had gone much

further. They had not, like Michigan, confined the elective franchise to

inhabitants actually resident within their respective States, at the

time of the adoption of their constitutions; but had made a general

provision by which all such inhabitants, though not citizens, would be

entitled to vote in all future time. These positions, which I thought

impregnable, have been violently assailed; and it has been contended

that, under the provisions of these constitutions, no persons, except

citizens of the United States, are entitled to vote. This renders it

necessary that I should again turn to these constitutions. The first

section of the fourth article of the constitution of Ohio declares, that

“in all elections, _all white male inhabitants_, above the age of

twenty-one years, having resided in the State one year next preceding

the election, and who have paid, or are charged with, a State or county

tax, shall enjoy the right of an elector; but no person shall be

entitled to vote, except in the county or district in which he shall

actually reside at the time of the election.” The fifth section of the

same article varies the expression, and confers the right of voting “_on

white male persons_,” who are compelled to labor on the roads. These

“white male inhabitants,” or “white male persons,” are not required to

be citizens of the United States. The terms are as general as they can

be. They embrace all persons, whether citizens of the United States or

not, who have resided within the State for one year, and are in other

respects qualified. Besides, it would be easy to show, by adverting to

other parts of this constitution, that the framers of it, in several

cases, when they intended to confine its benefits to citizens of the

United States, have so declared in express terms. We have heard it

stated that by a judicial decision, the right to vote has been

restricted to citizens of the United States. This decision has not been

produced. I should be very much pleased to see it. I am aware that

judicial construction can work wonders; but if any court has decided

that “all white male inhabitants,” or “white male persons,” are

restricted in their meaning to white male citizens of the United States,

it is a stretch of judicial construction which surpasses anything of

which I could have conceived.

The constitution of Illinois is still more general in its provisions. It

declares that “in all elections, _all white male inhabitants_, above the

age of twenty-one years, having resided in the State six months, next

preceding the election, shall enjoy the right of an elector; but no

person shall be entitled to vote except in the county or district in

which he shall actually reside at the time of the election.” We have

been informed by the Senators from Illinois, that the practice of that

State has always conformed to the plain meaning of the constitution. At

this day, any alien, who has resided within that State for six months,

is in the full enjoyment of the elective franchise. Indeed, this

privilege has induced aliens to settle in that State in preference to

others where they cannot vote until after they have become citizens of

the United States.

Now, sir, I wish to be fairly understood upon this question. As a

general principle, I do not think that any State of this Union ought to

permit any person to exercise the right of an elector who is not either

a native or a naturalized citizen of the United States. There may have

been, and I think there was, a propriety in conferring the elective

franchise upon the inhabitants of the Territory, actually resident

therein, although not citizens, who had a right under the ordinance to

participate in the formation of the constitution. Beyond this, the

power, even under the ordinance, is extremely doubtful. Michigan has

wisely confined herself within these limits. She has not followed the

example of Ohio and Illinois. These States have been admitted into the

Union, notwithstanding the extravagant provisions in their constitutions

in favor of foreigners. Would it not then be extremely ungracious to

exclude Michigan, when no foreigner can ever hereafter enjoy the right

of voting, except such as were resident within the limits of the State

at the time of the formation of her constitution?

According to the census, it would appear that not more than from five to

six hundred aliens could have been in that situation. At the present

time it is probable that many of these have become naturalized citizens.

The evil, if it be one, is very small. Within a short period it will

entirely disappear. Would it be wise, would it be politic, would it be

statesman-like, to annul all that has been done by the convention of

Michigan, merely for this reason? Ought we, on this account, to defer

the final settlement of the disputed boundary between Ohio and Michigan,

and thus again give rise to anarchy and confusion, and perhaps to the

shedding of blood? Do you feel confident, that the people of Michigan,

after you have violated their rights, by refusing to admit them into the

Union at this time, would ever act under your law authorizing them to

form a new constitution? We must all desire to see this unfortunate

boundary question settled; and the passage of this bill presents the

best, if not the only means, of accomplishing a result so desirable.

Have the people of Michigan, or any portion of them, ever complained of

this part of their constitution? I would ask, by what authority have the

Senators from Ohio and New Jersey (Messrs. Ewing and Southard) raised

this objection, whilst the people themselves are content? Even if they

did commit an error in this respect, we ought to treat them as children,

and not as enemies. It is the part of greatness and magnanimity to pass

over unimportant errors of judgment committed by those who are, in some

degree, dependent upon us. It would, indeed, be a severe measure of

justice, for the Congress of the United States, after having admitted

Ohio and Illinois into the Union, to close the door of admission against

Michigan. This, in truth, would be straining at a gnat, and swallowing a

camel.

Suppose you deprive the people of Michigan of a territory to which they

all believe, however erroneously, they have a right, and transfer it to

Ohio, and then drive them from your door and refuse to admit them into

the Union; can any Senator here view the probable consequences with

composure? They are a high-spirited and manly people. You cannot blame

them for that. They are bone of your bone, and flesh of your flesh. They

have been taught, by your example, to resist what they believe to be

oppression. Will they patiently submit to your decree? Will they tamely

surrender up to Ohio that territory of which they have been in

possession for thirty years? Their past history proves conclusively that

they will maintain what they believe to be their rights, to the death.

You may have civil war as the direct consequence of your vote this day.

Should the amendment of the Senator from Ohio (Mr. Ewing) prevail,

whilst it will leave unsettled the question of boundary so important to

his own State, it may, and probably will produce, scenes of bloodshed

and civil war along the boundary line. I have expressed the opinion,

that Congress possess the power of annexing the territory in dispute to

the State of Ohio, and that it is expedient to exercise it. The only

mode of extorting a reluctant consent from the people of Michigan to

this disposition, is to make it a condition of their admission, under

their present constitution, into the Union. The bill proposes to do so,

and, in my humble judgment, Ohio is deeply interested in its passage.

I shall now, following the example of my friend from New York (Mr.

Wright), proceed to make some suggestions upon another point. They are

intended merely as suggestions, for I can say with truth I have formed

no decided opinion upon the subject. A friend called to see me last

evening, and attempted to maintain the proposition that the several

States, under the Constitution of the United States, and independent of

the ordinance applicable to the Northwestern Territory, had the power of

conferring the right to vote upon foreigners resident within their

territories. This opinion was at war with all my former impressions. He

requested me to do as he had done, and to read over the Constitution of

the United States carefully, with a view to this question. I have

complied with his request, and shall now throw out a few suggestions

upon this subject, merely to elicit the opinion of others.

The older I grow, the more I am inclined to be what is called “a State

rights man.” The peace and security of this Union depend upon giving to

the Constitution a literal and fair construction, such as would be

placed upon it by a plain, intelligent man, and not by ingenious

constructions, to increase the powers of this Government, and thereby

diminish those of the States. The rights of the States, reserved to them

by that instrument, ought ever to be held sacred. If then the

Constitution leaves to them to decide according to their own discretion,

unrestricted and unlimited, who shall be electors, it follows as a

necessary consequence that they may, if they think proper, confer upon

resident aliens the right of voting.

It has been supposed, and is perhaps generally believed, that this power

has been abridged by that clause in the Constitution which declares,

that “the citizens of each State shall be entitled to all privileges and

immunities of citizens of the several States.” Does then a State, by

conferring upon a person, not a citizen of the United States, the

privilege of voting, necessarily constitute him a citizen of such State?

Is the elective franchise so essentially connected with the citizenship,

that the one cannot exist without the other? This is the question. If it

be so, no State can exercise this power; because, no State, by bestowing

upon an alien the privilege of voting, can make him a citizen of that

State, and thereby confer upon him “the privileges and immunities of

citizens of the several States.” Citizens are either natives of the

country, or they are naturalized. To Congress exclusively belongs the

power of naturalization; and I freely admit, that no foreigner can

become a citizen of the United States, but by complying with the

provisions of the acts of Congress upon this subject. But still we are

brought back to the question, may not a State bestow upon a resident

alien the right to vote, within its limits, as a personal privilege,

without conferring upon him the other privileges of citizenship, or ever

intending to render it obligatory upon the other States to receive him

as a citizen? Might not Virginia refuse to a foreigner who had voted in

Illinois, without having been naturalized, “the privileges and

immunities” of one of her citizens, without any violation of the

Constitution of the United States? Would such an alien have any pretext

for claiming, under the Constitution of the United States, the right to

vote within a State where citizens of the United States alone are

voters?

It is certain that the Constitution of the United States, in the

broadest terms, leaves to the States the qualifications of their own

electors, or rather it does not restrict them in any manner upon this

question. The second section of the first article provides “that the

House of Representatives shall be composed of members chosen every

second year by the people of the several States, and the electors in

each State shall have the qualifications requisite for electors of the

most numerous branch of the State Legislature.” By the first section of

the second article, “each State shall appoint, in such manner as the

Legislature thereof may direct, a number of electors equal to the whole

number of Senators and Representatives to which the State may be

entitled in the Congress.” Both these provisions seem to recognize in

the States the most absolute discretion in deciding who shall be

qualified electors. There is no declaration or intimation throughout the

whole instrument that these electors shall be citizens of the United

States. Are the States not left to exercise this discretion in the same

sovereign manner they did before they became parties to the Federal

Constitution? There is at least strong plausibility in the argument,

especially when we consider that the framers of the Constitution in

order more effectually to guard the reserved rights of the States,

inserted a provision, “that the powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”

Without any stretch of imagination, we might conceive a case in which

this question would shake our Union to the very centre. Suppose that the

decision of the next Presidential election should depend upon the vote

of Illinois; and it could be made to appear, that the aliens who voted

under the Constitution in that State, had turned the scale in favor of

the successful candidate. What would then be the consequence? Have we a

right to rejudge her justice? to interfere with her sovereign rights? to

declare that her Legislature could not appoint electors of President and

Vice President in such manner as they thought proper, and to annul the

election?

It is curious to remark, that except in a few instances, the

Constitution of the United States has not prescribed that the officers

elected or appointed under its authority, shall be citizens; and we all

know in practice, that the Senate have been constantly in the habit of

confirming the nominations of foreigners as consuls of the United

States. They have repeatedly done so, I believe, in regard to other

officers.

I repeat that, on this question, I have formed no fixed opinion one way

or the other. On the other points of the case, I entertain the clearest

conviction, that Michigan is entitled to admission into the Union.

I have thus completed all I intend to say upon this subject. I have been

most reluctantly drawn a second time into this debate. I had the

admission of Arkansas specially entrusted to my care. Few, if any, of

the objections urged against Michigan, are applicable to Arkansas; but I

could not conceal from myself the fact, that the admission of the one

depended upon that of the other; and I am equally anxious to receive

both the sisters.

The people of Texas were at this time engaged in their revolutionary

effort to make themselves independent of Mexico. It was deemed necessary

to authorize the President of the United States to accept the services

of volunteers for the defence of the frontiers. On a bill introduced for

this purpose, and which had passed the House of Representatives, Mr.

Buchanan, on the 4th of May, said:

He had no doubt but that the Government of the United States, in regard

to Mexico, had pursued, and would pursue, the course which had been

sanctioned by all its experience in relation to questions of this kind.

One principle had been established in the political history of the

country; had grown with its growth, and strengthened with its strength;

and without knowing what the President had done or would do in this

matter, he had no doubt but he would strictly adhere to that established

principle in our institutions, never to interfere with the internal

policy or domestic concerns of foreign nations. The famous proclamation

of neutrality of General Washington first asserted that principle, and

to it our Government had always adhered. We consider, said Mr. B., all

nations “enemies in war, and in peace, friends.”

In regard to Mexico, he considered Santa Anna as an usurper. The federal

constitution, established for the Republic of Mexico, and which Texas,

as a part of that Republic, had sworn to support, had been trampled on

by him, and Texas, in his eyes, and in the eyes of all mankind, was

justified in rebelling against him. Whether the Texans acted

consistently with a true policy at the time, in declaring their

independence, he should not discuss, nor should he decide; but as a man

and an American, he should be rejoiced to see them successful in

maintaining their liberties, and he trusted in God they would be so. He

would, however, leave them to rely on their own bravery, with every hope

and prayer that the God of battles would shield them with his

protection.

If Santa Anna excited the Indians within our territory to deeds of

massacre and blood; if he should excite a spirit among them which he

cannot restrain; and if, in consequence, the blood of our women and

children on the frontier shall flow, he undoubtedly ought to be held

responsible. Mr. B. saw a strong necessity for sending a force to the

frontiers, not only to restrain the natural disposition of the Indians

to deeds of violence, but because they could place no confidence in a

man who had so little command of his temper, who had shown so cruel and

sanguinary a disposition as Santa Anna had. He was for having a force

speedily sent to that frontier, and a force of mounted men or dragoons,

as suggested by the Senator from Missouri (Mr. Linn), but he was against

interfering in the war now raging in Texas, unless an attack should be

made on us.

If it were left for him to decide to which bill a preference should be

given by the Senate, he would first take up the bill providing for this

additional force for the protection of the frontiers; but he had been

instructed by an authority which he was bound to respect and obey, and

he must, therefore, vote to take up the land bill. He should vote with

the warmest friends of that bill in its favor till it was either carried

through or defeated. To-day or to-morrow, the land bill would be finally

disposed of; it now stood in the way of everything else; and he would

then be for proceeding with the appropriation bills as rapidly as

possible. He should have said nothing about instructions, had not this

question of preference been brought up. After the decision of the land

bill, he should give his hearty support to carry through the bills

necessary for the defence of the country, with as much expedition as

possible.

IN SENATE, MONDAY, MAY 9, 1836.

Mr. Preston presented the petition of a number of the citizens of

Philadelphia, on the subject of the affairs of Texas; and praying

Congress to acknowledge the independence of that country.

Mr. Buchanan said he had received several memorials from the city of

Philadelphia, of the same character as those which had been presented by

the Senator from South Carolina (Mr. Preston). He had intended to

present them this morning to the Senate, but was prevented from doing so

at the proper time by an accidental circumstance. It was also his

intention to have accompanied their presentation by some remarks. These

he thought best to offer now, rather than to wait until to-morrow

morning, and then become instrumental in getting up another debate.

These memorials asked Congress “to recognize the independence of Texas,

and at such time, and in such manner, as may be deemed proper, interpose

to terminate the conflict which now rages in that country.”

In some remarks, which he had submitted to the Senate a few days since,

and which, like all other proceedings in this body, had been much

misrepresented abroad, he had indulged the feelings of a man and an

American citizen. What he then uttered were the sentiments of his own

heart, in relation to the existing trouble in Texas. But when he was

called on as a Senator to recognize the independence of that country, he

thought it prudent to refer back to the conduct of our ancestors, when

placed in similar circumstances, and to derive lessons of wisdom from

their example. If there was any one principle of our public policy which

had been well settled—one which had been acted upon by every

administration, and which had met the approbation not only of this

country, but of every civilized government with which we have

intercourse, it was that we should never interfere in the domestic

concerns of other nations. Recognizing in the people of every nation the

absolute right to adopt such forms of government as they thought proper,

we had always preserved the strictest neutrality between the parties, in

every country, whilst engaged in civil war. We had left all nations

perfectly free, so far as we were concerned, to establish, to maintain,

or to change their forms of government, according to their own sovereign

will and pleasure. It would indeed be surprising, and more than that, it

would be unnatural, if the sympathies of the American people should not

be deeply, earnestly enlisted in favor of those who drew the sword for

liberty throughout the world, no matter where it was raised to strike.

Beyond this we had never proceeded.

The peaceful influence of our example upon other nations was much

greater—the cause of free government was thus more efficiently promoted

than if we should waste the blood and treasure of the people of the

United States in foreign wars, waged even to maintain the sacred cause

of liberty. The world must be persuaded, it could not be conquered.

Besides, said Mr. B., we can never, with any proper regard for the

welfare of our constituents, devote their energies and their resources

to the cause of planting and sustaining free institutions among the

people of other nations.

Acting upon these principles, we had always recognized existing

governments _de facto_, whether they were constitutional or despotic. We

had the same amicable relations with despotisms as with free

governments; because we had no right to quarrel with people of any

nation on account of the form of government which they might think

proper to adopt or to sanction. It was their affair, not ours. We would

not tolerate such interference from abroad; and we ought to demean

ourselves towards foreign nations as we should require them to act

towards ourselves.

A very striking illustration of this principle had been presented,

during the present administration, in the case of Portugal. We

recognized Don Miguel’s government, because he was _de facto_ in

possession of the throne, apparently with the consent of the Portuguese

people. In this respect, Mr. B. believed, we stood alone, or nearly

alone, among the nations of the earth. When he was expelled from that

country, and the present queen seemed to be firmly seated upon the

throne, we had no difficulty, pursuing our established policy, in

recognizing her government.

A still more striking case, and one to the very point in question, had

occurred during Mr. Monroe’s administration. The Spanish provinces,

throughout the whole continent of America, had raised the standard of

rebellion against the king of Spain. They were struggling for liberty

against oppression. The feelings of the American people were devotedly

enlisted in their favor. Our ardent wishes and our prayers for their

success, continued throughout the whole long and bloody conflict. But we

took no other part in their cause; and we rendered them no assistance,

except the strong moral influence exerted over the world by our

well-known feelings and opinions in their favor. When, said Mr. B., did

we recognize their independence? Not till after they had achieved it by

their arms; not until the contest was over, and victory had perched upon

their banners; not until the good fight had been fought and won. We then

led the van in acknowledging their independence. But until they were

independent in fact, we resisted every effort and every eloquent appeal

which was made in their behalf, to induce us to depart from the settled

policy of the country. When the fact of their actual independence was

established; then, and not till then, did we acknowledge it.

He would rejoice should similar success attend the arms of the Texans.

He trusted they would yet conquer their independence against the

myrmidons of Santa Anna. In that event, there was no man in the country

who would vote more cheerfully to recognize it than himself. Until that

time should arrive, he must continue to act upon the firmly established

principle which had been our guide for nearly half a century.

Mr. B. believed that no President of the United States had ever been

more strongly convinced of the necessity of maintaining this principle

inviolate than General Jackson. His whole conduct towards foreign

governments had made this manifest. Whilst, said Mr. B., he requires

justice from all, he treats all with justice. In his annual message, at

the commencement of the present session, he informed Congress that

instructions had been given to the district attorneys of the United

States, to prosecute all persons who might attempt to violate our

neutrality in the civil war between Mexico and Texas. He also stated

that he had apprised the government of Mexico that we should require the

integrity of our territory to be scrupulously respected by both parties.

He thus declared to the world, not only that we had determined to be

neutral between the parties, but that our neutrality must be respected

by both. This afforded abundant evidence of his disposition neither to

interfere with the internal concerns of other nations, nor to submit to

any violation of the law of nations by them. Mr. B. entertained not a

doubt that the line of conduct which he had marked out for himself, in

the beginning, he would pursue until the end, so far as the executive

Government was concerned.

It was obviously necessary to concentrate a strong military force on the

confines of Texas, not only to enforce our neutrality, but to protect

the lives and property of our fellow-citizens. This had been done; but

the commanding general had been strictly prohibited from acting, except

on the defensive.

Such a force was absolutely necessary to preserve inviolate our treaty

with Mexico. Under it, we were bound to maintain peace among the Indian

nations along the frontier of the two countries, and to restrain the

Indians within our territory by force, if that should become necessary,

from making war upon Mexico. This obligation was reciprocal and bound

both parties. If the Indians from Texas should be let slip upon our

frontier; if they, or Santa Anna, or any other power should attempt to

invade our territory, then every American would say, repel force by

force, and return blow for blow. Our cause and our quarrel would be

just.

But, said Mr. B., let us not, by departing from our settled policy, give

rise to the suspicion that we have got up this war for the purpose of

wresting Texas from those to whom, under the faith of treaties, it

justly belongs. Since the treaty with Spain of 1819, there could no

longer be any doubt, but that this province was a part of Mexico. He was

sorry for it; but such was the undeniable fact. Let us then follow the

course which we had pursued, under similar circumstances, in all other

cases.

Mr. B. said his blood boiled whilst contemplating the cruelties and the

barbarities which were said to have been committed by the Mexicans in

this contest. The heart sickened and revolted at such a spectacle. But,

as an American Senator, he could give the Texans nothing except his

prayers and his good wishes.

IN SENATE, FRIDAY, MAY 20, 1836.

Mr. Calhoun, from the Committee of Conference appointed on the part of

the Senate, to confer with a committee of the House on the disagreeing

votes of the two Houses as to the Senate’s amendment to the bill

authorizing the President to accept the services of ten thousand

volunteers for the defence of the western frontiers, reported that the

committees of the two Houses had had a meeting, but that they had not

been able to effect the objects for which they were appointed, having

sat the whole day without coming to any agreement whatever.

Mr. King of Alabama (from the same committee) observed that it was true

that they had come to no agreement on the point at issue between the two

Houses, inasmuch as some gentlemen seemed to think that they had the

whole bill under consideration, and that they had the power to modify it

at pleasure. He hoped that when the Senate again appointed a committee

of conference, they would appoint gentlemen who would be willing to

confine their deliberations to the subject of disagreement, and not

think themselves authorized to take the range of the whole bill.

Mr. Calhoun replied that the committee did confine themselves to the

subject of disagreement, until finding that there was no possibility of

coming to an agreement on that point, they entered into a more enlarged

discussion, for the purpose of ascertaining whether the bill could not

be so framed as to meet the concurrence of both Houses. His

understanding was, that when a committee of conference came to a

proposition that could not be agreed on, the whole subject was open to

them.

Mr. King recollected exactly the state of the case. The proposition last

made was, that they should extend the term of service of the militia

force of the United States for a year, instead of its being a volunteer

militia force. This was the last subject of conference; and after

talking until half-past five o’clock, the committee found that they

could come to no agreement whatever.

Mr. Buchanan said that he had been a member of the Committee of

Conference; and if a second committee should now be appointed, he hoped

he would be excused from serving upon it. He did not believe that the

appointment of the same committee by the Senate and the House could

result in any practical good. They had been busily engaged in the

Conference Chamber until a late hour yesterday, and when they had

separated, they were further, if possible, from agreeing, than when they

had first met.

For his own part, he could not feel the force of the constitutional

objections which had been made by the Senator from South Carolina (Mr.

Calhoun). It was true that the amendment which had been proposed by the

Senate to the bill of the House was somewhat vague and ambiguous in its

terms. He had thought, at one time, during the conference, that we

should have agreed upon an amendment to the Senate’s amendment, which

would have made the bill much more explicit, and would have removed all

the constitutional objections of the gentlemen. When it came to the

final vote, he found that he had been mistaken.

The amendment proposed in the Committee of Conference provided that none

of the officers should be appointed by the President, until the

volunteers were actually mustered into the service of the United States.

Until that moment, the companies which might be formed would thus be

considered as mere voluntary associations, under no pledge whatever,

except that of honor, to enter the service of their country. When once,

however, this pledge was redeemed—when they were mustered into the

service—they became a portion of the army of the United States for the

period of six or twelve months; and then there could not possibly be a

constitutional objection to the appointment of their officers by the

President. Congress possessed the power to raise armies in any manner

they thought proper. Whether they obtained soldiers by individual

enlistments, or whether the patriotic young men of the country chose to

associate together as volunteers, and come in masses, we had an equal

right to receive them. The one mode of obtaining soldiers was just as

constitutional as the other.

The amendment which had been proposed, whilst it practically insured to

the companies the selection of their own company officers, did not

interfere with the constitutional powers of the President. The

volunteers themselves were to designate such officers, and if the

President approved of such designations, these officers would be

appointed. This would be the best and strongest recommendation which

could be presented to him; and, no doubt, he would always obey the

wishes of the companies, unless in cases where powerful and satisfactory

reasons existed to render it improper.

Until these volunteers should actually enter the service, they would

continue to be militia men of the States, and liable to perform militia

duty in the States. Their character would not be changed. They would not

constitute a dormant standing army in the States, with officers

appointed by the President, as had been urged, but would be mere

associations, bound together by no law but that of honor. Such men would

always be ready to obey the call of their country in case of necessity.

The Senator from South Carolina (Mr. Calhoun) did argue that it would be

a violation of the Constitution for the President to appoint these

officers without the previous advice and consent of the Senate. Whatever

doubt might have rested upon this point at the organization of our

Government, this power had been exercised, over and over again, ever

since the adoption of the Constitution, under all administrations. The

precedents were numerous. One act had been read which passed during the

late war, conferring upon the President, in express terms, the power of

appointing all the officers of the military force to be raised under its

provisions, but requiring him to submit these appointments to the Senate

for their approbation at the next session. The very same thing was

proposed to be done by this act, in regard to all the officers above the

rank of captain.

He was afraid to trust his memory in attempting to state the proceedings

of the Committee of Conference. So much had been said, that he could

not, if he would, undertake to report it all. We did not confine

ourselves to the point of disagreement between the two Houses; but

almost every question relating to the military defence of the country

had been ably and eloquently discussed. He had derived much information

on this subject from the members of that committee.

There was one fact which he would mention, and which demanded the

serious consideration of the country at the present crisis. A gallant

and distinguished officer, who was a member of the committee, (Gen.

Ripley) had stated, that, according to his recollection, the history of

our Indian wars did not present a single case in which a volunteer force

had been beaten by the Indians. Our disasters in this kind of warfare

had always been suffered by the regular troops. Our recent experience

was certainly in accordance with this statement. This important fact,

however, established the necessity of raising volunteer corps, in some

form or other, composed of the brave and hardy youth, accustomed to the

modes of Indian warfare, and who were able and willing to fight the

Indians, man to man, according to their own custom. Such men would best

protect our citizens from the ravages of the Indians, and would soon put

an end to the Creek war.

He had said more than he intended, as his chief object in rising had

been to request that he might not be appointed a member of the new

Committee of Conference.

Mr. Buchanan could not now but hope, after having heard the observations

of the Senator from South Carolina (Mr. Calhoun), that a Committee of

Conference might yet agree upon some compromise which would be

acceptable to both Houses. He now believed, from what he had just heard

from several members of the other House, that another committee ought to

be appointed.

The Senator from South Carolina had not, he believed, denied any of the

positions which he had stated. They did not materially differ as to

their constitutional views on this subject. His (Mr. B.’s) positions

were these: that any number of individuals within the States might

associate together, either in companies, battalions, or divisions, for

the purpose of entering the army of the United States, for six or for

twelve months, upon any contingency which might render their services

necessary; that these associations would be voluntary and not

compulsory; and would be held together by no tie but that sense of honor

which binds a man to enter the service of his country, after he has

declared, in the presence of the world, that such was his determination;

and that these volunteers, after having arrived at the place of

rendezvous, and after having been mustered into service, but not before,

became a part of the regular army of the United States; and the

President could then, by and with the advice and consent of the Senate,

appoint their officers. At one period of the conference, he had believed

that the committee would arrive at these conclusions.

One of the objections of the Senator from South Carolina was, that the

appointment of the captains of companies and other inferior officers

ought, like that of the superior officers, to be submitted to the

Senate. Mr. B. had been perfectly willing and was still willing to adopt

this modification. He could not, however, agree, nor did he understand

the gentleman now to insist upon it, that these offices could not be

filled without the previous advice of the Senate. Such a provision would

render the law perfectly nugatory. We might not, and probably would not,

be in session when these appointments must be made. The same necessity

which the gentleman alleges to have existed during the late war, for

authorizing the President to make appointments, during the recess of the

Senate, will exist in regard to the appointments to be made under this

act.—Besides, whatever might be our opinion in regard to the power of

the President, if the question were now, for the first time, submitted

to us, Congress have so often authorized him to make appointments,

during the recess, to be submitted to the Senate at its next session,

that this constitutional question must be considered as settled.

As to the act of 1812, which had just been cited by the other Senator

from South Carolina (Mr. Preston), he thought it went too far. He would

not say that it was unconstitutional, because he had not examined the

subject sufficiently to express a positive opinion. This he would say,

however, that it did authorize the existence of a dormant military force

within the several States, commanded by officers appointed by the

President of the United States, and liable to be called into service at

any moment he might think proper. The individuals composing this force

were exempted from militia duty within the States. Upon the principles

contained in this act, the militia of the several States might be

subverted, and a national militia, under the command of national

officers, might be substituted in its stead. This would certainly be at

war with the spirit of the Constitution, which reserves to the States

respectively the appointment of the officers of the militia, and the

authority of training them according to the discipline prescribed by

Congress. The militia emphatically belongs to the States, and not to the

General Government; and it might be very dangerous for the States to

surrender their control over this force into the hands of Congress.

Under the act cited by the gentleman, a portion of the militia was taken

from the control of the States, and relieved from the performance of

militia duty, whilst they remained in the heart of the country, mixed up

with the other citizens. This did seem to him to interfere with the

power of the States over their militia, contrary to the provisions of

the Constitution. But these objections did not apply to the bill before

them, nor to the amendment he had suggested. They had drawn a broad line

of separation between the force to be raised and the militia of the

States. What they proposed was, that these volunteers should associate

themselves together for the purpose of offering their services to their

country, and that when they arrived at their places of rendezvous, they

should enrol themselves, and be mustered into service as a part of the

regular army; but until then, that they should remain as they were,

citizens of the several States, liable to the performance of the militia

duty of the States. With these views, he was confident that a new

Committee of Conference might come to such an agreement as would be

acceptable to both Houses, and he therefore hoped that one would be

appointed. He was almost ashamed to say that he had never acquainted

himself sufficiently with the rules which governed the proceedings of a

Committee of Conference. His common sense, however, had taught him that

it was the duty of such a committee to confine itself to the point of

disagreement between the two Houses; but he had been informed by

gentlemen of great experience that the whole subject of the bill was

open to them. Acting upon this principle, they had got into a general

discussion as to the relative value of volunteer and regular as well as

common militia forces. He believed now that a Committee of Conference

might do some good, and that by steering clear of the constitutional

scruples of gentlemen, they might agree on some amendments that would

render the bill acceptable to both Houses, and thus enable them speedily

to adopt a measure so urgently demanded for the protection of the

suffering inhabitants of the frontiers.

Mr. B. said, as he should not be a member of the new Committee of

Conference, he would read the amendment which had been so much discussed

in the old committee:

“_Be it enacted_, That the said volunteers shall form themselves into

companies, and designate their company officers, who, if he approve of

such designations, shall be commissioned by the President, after they

shall have been mustered into service; and that the President be, and

hereby is, authorized to organize the volunteers so mustered into

service, as aforesaid, into battalions, squadrons, regiments, brigades

and divisions, as soon as the number of volunteers shall render such

organization, in his judgment, expedient, and shall then appoint the

necessary officers, which appointment shall be submitted to the Senate

at its next session.”

-----

Footnote 54:

Dr. Parrish, Wm. Wharton, Joseph Foulke.

-----

CHAPTER XIV.

1837–1840.

BILL TO PREVENT THE INTERFERENCE OF FEDERAL OFFICERS WITH

ELECTIONS—DEVOTION OF THE FOLLOWERS OF JACKSON—THE WHIG PARTY LESS

COMPACT IN CONSEQUENCE OF THE RIVALRY BETWEEN MR. CLAY AND MR.

WEBSTER—RETROSPECTIVE REVIEW OF THE BANK QUESTION—THE SPECIE

CIRCULAR—GREAT FINANCIAL DISASTERS.