Chapter XIII · 1836. (continued 2)

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 346whether 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 throughthrough 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 throughthrough 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 347did 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 348in 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 349now 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 350was 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 351his 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 352recommendation 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 353the 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; 354but 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 responsibilityresponsibility 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 355he 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, 356but 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 357heard 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.

358During 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 359governor, 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“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 360framers 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 361to 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.

362These 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, 363the 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 364republican, 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 365“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 366this 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 367the 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 368of 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 369grown 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.

370In 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, 371devote 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 372treats 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 373had 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, 374to 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.