Thirty Years' View (Vol. II of 2)

This was the expiation of the scape-goat in ancient Jerusalem: an innocent and helpless animal, loaded with sins which were not his own, and made to die for offences which he had never committed. So of California. She is innocent of all the evils of slavery in the United States, yet they are all to be packed upon her back, and herself sacrificed under the heavy load. First, Utah and New Mexico are piled upon her, each pregnant with all the transgressions of the Wilmot Proviso – a double load in itself – and enough, without further weight, to bear down California. Utah and New Mexico are first piled on; and the reason given for it by the committee is thus stated in their authentic report:

"The committee recommend to the Senate the establishment of those territorial governments; and, in order more effectually to secure that desirable object, they also recommend that the bill for their establishment be incorporated in the bill for the admission of California, and that, united together, they both be passed."

This is the reason given in the report: and the first thing that strikes me, on reading it, is its entire incompatibility with the reasons previously given for the same act. In his speech in favor of raising the committee, the senator from Kentucky [Mr. Clay] was in favor of putting the territories upon California for her own good, for the good of California herself – as the speedy way to get her into the Union, and the safe way to do it, by preventing an opposition to her admission which might otherwise defeat it altogether. This was his reason then, and he thus delivered it to the Senate:

"He would say now to those who desired the speedy admission of California, the shortest and most expeditious way of attaining the desired object was to include her admission in a bill giving governments to the territories. He made this statement because he was impelled to do so from what had come to his knowledge. If her admission as a separate measure be urged, an opposition is created which may result in the defeat of any bill for her admission."

These are the reasons which the senator then gave for urging the conjunction of the State and the territories – quickest and safest for California: her admission the supreme object, and the conjunction of the territories only a means of helping her along and saving her. And, unfounded as I deemed these reasons at the time, and now know them to be, they still had the merit of giving preference where it was due – to the superior object – to California herself, a State, without being a State of the Union, and suffering all the ills of that anomalous condition. California was then the superior object: the territories were incidental figures and subordinate considerations, to be made subservient to her salvation. Now all this is reversed. The territories take the superior place. They become the object: the State the incident. They take the first – she the second place! And to make sure of their welfare – make more certain of giving governments to them – innuendo, such governments as the committee prescribe – the conjunction is now proposed and enforced. This is a change of position, with a corresponding change of reasons. Doubtless the senator from Kentucky has a right to change his own position, and to change his reasons at the same time; but he has no right to ask other senators to change with him, or to require them to believe in two sets of reasons, each contradictory to the other. It is my fortune to believe in neither. I did not believe in the first set when they were delivered; and time has shown that I was right. Time has disposed of the argument of speed. That reason has expired under the lapse of time. Instead of more speedy, we all now know that California has been delayed three months, waiting for this conjunction: instead of defeat if she remained single, we all know now that she might have been passed singly before the committee was raised, if the senator from Kentucky had remained on his original ground, on my side; and every one knows that the only danger to California now comes from the companionship into which she has been forced. I do not believe in either set of reasons. I do not admit the territorial governments to be objects of superior interest to the admission of California. I admit them to be objects of interest, demanding our attention, and that at this session; but not at the expense of California, nor in precedence of her, nor in conjunction with her, nor as a condition for her admission. She has been delayed long, and is now endangered by this attempt to couple with her the territories, with which she has no connection, and to involve her in the Wilmot Proviso question, from which she is free. The senator from Kentucky has done me the favor to blame me for this delay. He may blame me again when he beholds the catastrophe of his attempted conjunctions; but all mankind will see that the delay is the result of his own abandonment of the position which he originally took with me. The other reason which the senator gave in his speech for the conjunction is not repeated in the report – the one which addressed itself to our nervous system, and menaced total defeat to California if urged in a bill by herself. He has not renewed that argument to our fears, so portentously exhibited three months ago; and it may be supposed that that danger has passed by, and that Congress is now free. But California is not bettered by it, but worsted. Then it was only necessary to her salvation that she should be joined to the territories; so said the speech. Now she is joined to Texas also; and must be damned if not strong enough to save Texas, and Utah, and New Mexico, and herself into the bargain!

United together, the report says, the bills will be passed together. That is very well for the report. It was natural for it to say so. But, suppose they are rejected together, and in consequence of being together: what is, then, the condition of California? First, she has been delayed three months, at great damage to herself, waiting the intrusive companionship of this incongruous company. Then she is sunk under its weight. Who, then, is to blame – the senator from Kentucky or the senator from Missouri? And if opposition to this indefinite postponement shall make still further delay to California, and involve her defeat in the end, who then is to be blamed again? I do not ask these questions of the senator from Kentucky. It might be unlawful to do so: for, by the law of the land, no man is bound to criminate himself.

Mr. Clay (from his seat). I do not claim the benefit of the law.

Mr. Benton. No; a high-spirited man will not claim it. But the law gives him the privilege; and, as a law-abiding and generous man, I give him the benefit of the law whether he claims it or not. But I think it is time for him to begin to consider the responsibility he has incurred in quitting his position at my side for California single, and first, to jumble her up in this crowd, where she is sure to meet death, come the vote when it will. I think it is time for him to begin to think about submitting to a mis-trial! withdraw a juror, and let a venire facias de novo be issued.

But I have another objection to this new argument. The territorial government bills are now the object; and to make more certain of these bills they are put into the California bill, to be carried safe through by it. This is the argument of the report; and it is a plain declaration that one measure is to be forced to carry the other. This is a breach of parliamentary law – that law upon the existence of which the senator from Kentucky took an issue with me, and failed to maintain his side of it. True, he made a show of maintaining it – ostentatiously borrowing a couple of my books from me, in open Senate, to prove his side of the case; and taking good care not to open them, because he knew they would prove my side of it. Then he quoted that bill for the "relief of John Thompson, and for other purposes," the reading of which had such an effect upon the risible susceptibilities of that part of our spectators which Shakspeare measures by the quantity, and qualifies as barren! Sir, if the senator from Kentucky had only read us Dr. Franklin's story of John Thompson and his hat-sign, it would have been something – a thing equally pertinent as argument, and still more amusing as anecdote. The senator, by doing that much, admitted his obligation to maintain his side of the issue: by doing no more, he confessed he could not. And now the illegality of this conjunction stands confessed, with the superaddition of an avowed condemnable motive for it. The motive is – so declared in the report – to force one measure to carry the other – the identical thing mentioned in all the books as the very reason why subjects of different natures should not be tacked together. I do not repeat what I have heretofore said on this point: it will be remembered by the Senate: and its validity is now admitted by the attempt, and the failure, to contest it. It is compulsory legislation, and a flagrant breach of parliamentary law, and of safe legislation. It is also a compliment of no equivocal character to a portion of the members of this Chamber. To put two measures together for the avowed purpose of forcing one to carry the other, is to propose to force the friends of the stronger measure to take the weak one, under the penalty of losing the stronger. It implies both that these members cannot be trusted to vote fairly upon one of the measures, or that an unfair vote is wanted from them; and that they are coercible, and ought to be coerced. This is the compliment which the compulsory process implies, and which is as good as declared in this case. It is a rough compliment, but such a one as "distinguished senators" – such as composed this committee – may have the prerogative to offer to the undistinguished ones: but then these undistinguished may have the privilege to refuse to receive it – may refuse to sanction the implication, by refusing to vote as required – may take the high ground that they are not coercible, that they owe allegiance, not to the committee, but to honor and duty; and that they can trust themselves for an honest vote, in a bill by itself, although the committee cannot trust them! But, stop! Is it a government or the government which the committee propose to secure by coercion? Is it a government, such as a majority of the Senate may agree upon? or is it the government, such as a majority of the committee have prescribed? If the former, why not leave the Senate to free voting in a separate bill? if the latter, will the Senate be coerced? will it allow a majority of the committee to govern the Senate? – seven to govern sixty? Sir! it is the latter – so avowed; and being the first instance of such an avowal, it should meet a reception which would make it the last.

Mr. President: all the evils of incongruous conjunctions are exemplified in this conjunction of the territorial government bills with the California State admission bill. They are subjects not only foreign to each other, but involving different questions, and resting upon principles of different natures. One involves the slavery and anti-slavery questions: the other is free from them. One involves constitutional questions: the other does not. One is a question of right, resting upon the constitution of the United States and the treaty with Mexico: the other is a question of expediency, resting in the discretion of Congress. One is the case of a State, asking for an equality of rights with the other States: the other is a question of territories, asking protection from States. One is a sovereignty – the other a property. So that, at all points, and under every aspect, the subjects differ; and it is well known that there are senators here who can unite in a vote for the admission of California, who cannot unite in any vote for the territorial governments; and that, because these governments involve the slavery questions, from all which the California bill is free. That is the rock on which men and parties split here. Some deny the power of Congress in toto over the subject of slavery in territories: such as these can support no bill which touches that question one way or the other. Others admit the power, but deny the expediency of its exercise. Others again claim both the power and the exercise. Others again are under legislative instructions – some to vote one way, some the other. Finally, there are some opposed to giving any governments at all to these territories, and in favor of leaving them to grow up of themselves into future States. Now, what are the senators, so circumstanced, to do with these bills conjoined? Vote for all – and call it a compromise! as if oaths, duty, constitutional obligation, and legislative instructions, were subjects of compromise. No! rejection of the whole is the only course; and to begin anew, each bill by itself, the only remedy.

The conjunction of these bills illustrates all the evils of joining incoherent subjects together. It presents a revolting enormity, of which all the evils go to an innocent party, which has done all in its power to avoid them. But, not to do the Committee of Thirteen injustice, I must tell that they have looked somewhat to the interest of California in this conjunction, and proposed a compensating advantage to her; of which kind consideration they are entitled to the credit in their own words. This, then, is what they propose for her:

"As for California – far from feeling her sensibility affected by her being associated with other kindred measures – she ought to rejoice and be highly gratified that, in entering into the Union, she may have contributed to the tranquillity and happiness of the great family of States, of which it is to be hoped she may one day be a distinguished member."

This is the compensation proposed to California. She is to rejoice, and be highly gratified. She is to contribute to the tranquillity and happiness of the great family of States, and thereby become tranquil and happy herself. And she is one day, it is hoped, to become a distinguished member of this confederacy. This is to be her compensation – felicity and glory! Prospective felicity, and contingent glory. The felicity rural – rural felicity – from the geographical position of California – the most innocent and invigorating kind of felicity. The glory and distinction yet to be achieved. Whether California will consider these anticipations ample compensation for all the injuries of this conjunction – the long delay, and eventual danger, and all her sufferings at home in the mean time – will remain for herself to say. For my part, I would not give one hour's duration of actual existence in this Union for a whole eternity of such compensation; and such, I think, will be the opinion of California herself. Life, and present relief from actual ills, is what she wants. Existence and relief, is her cry! And for these she can find no compensation in the illusions of contributing to the tranquillity of States which are already tranquil, the happiness of people who are already happy, the settlement of questions in which she has no concern, and the formation of compromises which breed new quarrels in assuming to settle old ones.

With these fine reasons for tacking Utah and New Mexico to California, the committee proceed to pile a new load upon her back. Texas next appears in the committee's plan, crammed into the California bill, with all her questions of debt and boundary, dispute with New Mexico, division into future States, cession of territory to the United States, amount of compensation to be given her, thrust in along with her! A compact with one State put into a law for the life of another! And a veto upon the admission of California given to Texas! This is a monstrosity of which there is no example in the history of our legislation, and for the production of which it is fair to permit the committee to speak for themselves.

These are the reasons of the committee, and they present grave errors in law, both constitutional and municipal, and of geography and history. They assume a controversy between New Mexico and Texas. No such thing. New Mexico belongs to the United States, and the controversy is with the United States. They assume there is no way to settle this controversy but by a compact with Texas. This is another great mistake. There are three ways to settle it: first, and best, by a compact; secondly, by a suit in the Supreme Court of the United States; thirdly, by giving a government to New Mexico according to her actual extent when the United States acquired her, and holding on to that until the question of title is decided, either amicably by compact, or legally by the Supreme Court. The fundamental error of the committee is in supposing that New Mexico is party to this controversy with Texas. No such thing. New Mexico is only the John Doe of the concern. That error corrected, and all the reasoning of the committee falls to the ground. For the judicial power of the United States extends to all controversies to which the United States are party; and the original jurisdiction of the Supreme Court extends to all cases to which a State is a party. This brings the case bang up at once within the jurisdiction of the Supreme Court, without waiting for the consent of Texas, or waiting for New Mexico to grow up into a State, so as to have a suit between two States; and so there is no danger of collision, as the committee suppose, and make an argument for their bill, in the danger there is to New Mexico from this apprehended collision. If any takes place it will be a collision with the United States, to whom the territory of New Mexico belongs; and she will know how to prevent this collision, first, by offering what is not only just, but generous to Texas; and next, in defending her territory from invasion, and her people from violence.

These are the reasons for thrusting Texas, with all her multifarious questions, into the California bill; and, reduced to their essence, they argue thus: Utah must go in, because she binds upon California; New Mexico must go in, because she binds upon Utah; and Texas must go in, because she binds upon New Mexico. And thus poor California is crammed and gorged until she is about in the condition that Jonah would have been in, if he had swallowed the whale, instead of the whale swallowing him. This opens a new chapter in legislative ratiocination. It substitutes contiguity of territory for congruity of matter, and makes geographical affinities the rule of legislative conjunctions. Upon that principle the committee might have gone on, cramming other bills into the California bill, all over the United States; for all our territory is binding in some one part upon another. Upon that principle, the District of Columbia slave trade suppression bill might have been interjected; for, though not actually binding upon Texas, yet it binds upon land that binds upon land that does bind upon her. So of the fugitive slave bill. For, let the fugacious slave run as far as he may, he must still be on land; and that being the case, the territorial contiguity may be established which justifies the legislative conjunction.

Mr. President, the moralist informs us that there are some subjects too light for reason – too grave for ridicule; and in such cases the mere moralist may laugh or cry, as he deems best. But not so with the legislator – his business is not laughing or crying. Whimpering, or simpering, is not his mission. Work is his vocation, and gravity his vein; and in that vein I proceed to consider this interjection of Texas, with all her multifarious questions, into the bowels of the California bill.

In the first place, this Texas bill is a compact, depending for its validity on the consent of Texas, and is put into the California bill as part of a compromise and general settlement of all the slavery questions; and, of course, the whole must stand together, or fall together. This gives Texas a veto upon the admission of California. This is unconstitutional, as well as unjust; for by the constitution, new States are to be admitted by Congress, and not by another State; and, therefore, Texas should not have a veto upon the admission of California. In the next place, Texas presents a great many serious questions of her own – some of them depending upon a compact already existing with the United States, many of them concerning the United States, one concerning New Mexico, but no one reaching to California. She has a question of boundary nominally with New Mexico, in reality with the United States, as the owner of New Mexico; and that might be a reason for joining her in a bill, so far as that boundary is concerned, with New Mexico; but it can be no reason for joining her to California. The western boundary of Texas is the point of collision with New Mexico; and this plan of the committee, instead of proposing a suitable boundary between them adapted to localities, or leaving to each its actual possessions, disturbing no interest, until the decision of title upon the universal principle of uti possidetis; instead of these obvious and natural remedies, the plan of the committee cuts deep into the actual possessions of the United States in New Mexico – rousing the question which the committee professes to avoid, the question of extending slavery, and so disturbing the whole United States.

And here I must insist on the error of the committee in constitutional and municipal law, before I point out their mistakes in geography and history. They treat New Mexico as having a controversy with Texas – as being in danger of a collision with her – and that a compact with Texas to settle the boundary between them is the only way to settle that controversy and prevent that collision. Now, all this is a mistake. The controversy is not with New Mexico, but with the United States, and the judicial power of the United States has jurisdiction of it. Again, possession is title until the right is tried; and the United States having the possession, may give a government at once according to the possession; and then wait the decision of title.

I avoid all argument about right – the eventual right of Texas to any part of what was New Mexico before the existence of Texas. I avoid that question. Amicable settlement of contested claim, and not adjudication of title, is now my object. I need no argument from any quarter to satisfy me that the Texas questions ought to be settled. I happened to know that before Texas was annexed, and brought in bills and made speeches for that purpose at that time. I brought in such bills six years ago, and again at the present session; and whenever presented single, either by myself or any other person, I shall be ready to give it a generous consideration; but, as part of the California bill, I wash my hands of it.

I am against disturbing actual possession, either that of New Mexico or of Texas; and, therefore, am in favor of leaving to each all its population, and an ample amount of compact and homogeneous territory. With this view, all my bills and plans for a divisional line between New Mexico and Texas – whether of 1844 or 1850 – left to each all its settlements, all its actual possessions, all its uncontested claim; and divided the remainder by a line adapted to the geography and natural divisions of the country, as well as suitable to the political and social condition of the people themselves. This gave a longitudinal line between them; and the longitude of 100 degrees in my bill of 1844, and 102 degrees in my bill of 1850 – and both upon the same principle of leaving possessions intact, Texas having extended her settlements in the mean time. The proposed line of the committee violates all these conditions. It cuts deep and arbitrarily into the actual possessions of New Mexico, such as she held them before Texas had existence; and so conforms to no principle of public policy, private right, territorial affinity, or local propriety. It begins on the Rio del Norte, twenty miles in a straight line above El Paso, and thence, diagonally and northeastwardly, to the point where the Red River crosses the longitude of 100°. Now this beginning, twenty miles above El Paso, is about three hundred miles in a straight line (near six hundred by the windings of the river) above the ancient line of New Mexico; and this diagonal line to the Red River cuts about four hundred miles in a straight line through the ancient New Mexican possessions, cutting off about seventy thousand square miles of territory from New Mexico, where there is no slavery, and giving it to Texas where there is. This constitutes a more serious case of tacking than even that of sticking incongruous bills together, and calls for a most considerate examination of all the circumstances it involves. I will examine these circumstances, first making a statement, and then sustaining it by proof.