ON THE QUESTION: DOES THE CONSTITUTION CARRY SLAVERY INTO THE TERRITORIES?

IN SENATE, MAY 15, 1850.

[MR. DAVIS, of Mississippi, had moved an amendment to the bill to establish governments in the Territories of Utah and New Mexico, so as to recognize the doctrine, that the Constitution of the United States would authorize and protect slavery there; in answer to which Mr. Clay said as follows.]

MR. PRESIDENT-I am not perfectly sure that I comprehend the full meaning of the amendment offered by the senator from Mississippi. If I do, I think he accomplishes nothing by striking out the clause now in the bill, and inserting that which he proposes to insert. The clause now in the bill is, that the territorial legislation shall not extend to any thing respecting African slavery within the Territory. The effect of retaining the clause as reported by the committee will be this: that if in any of the Territories slavery now exists, it can not be abolished by the territorial Legislature; and if in any of the Territories slavery does not now exist, it can not be introduced by the territorial Legislature. The clause itself was introduced into the bill by the committee, for the purpose of tying up the hands of the territorial Legislature in respect to legislating at all, one way or the other, upon the subject of African slavery. It was intended to leave the legislation and the law of the respective Territories in the condition in which the act will find them. I stated on a former occasion that I did not, in committee, vote for the amendment to insert the clause, though it was proposed to be introduced by a majority of the committee. I attached very little confidence to it at that time, and I attach very little to it at the present. It is, perhaps, of no practical importance whatever.

Now, sir, if I understand the measure proposed by the senator from Mississippi, it aims at the same thing. I do not understand him as proposing that if any one shall carry slaves into the Territory-although by the law of the Territory he can not take them there—the legislative hands of the territorial government should be so tied as to prevent its saying he shall not enjoy the fruits of their labor. If the senator from Mississippi means to say that

MR. DAVIS, of Mississippi. I do mean to say it.

may be

MR. CLAY. If the object of the senator is to provide that slaves introduced into the Territory contrary to the lex loci, and, being introduced, nothing shall be done by the Legislature to impair the rights of owners to hold the slaves thus brought contrary to the local laws, I certainly can not vote for it. In doing so, I shall repeat again the expression of opinion which I announced at an early period of the session. I think that the language of the amendment which the senator from Mississippi has offered, is just as much restricted as is the language of the bill which he proposes to strike out. His amendment does not provide in express terms for the privilege of introducing slaves, but merely declares that the territorial Legislature shall not interfere with the rights of property in slaves, as that property exists in a certain class of States. Very well. The Legislature is already restrained from so interfering, unless slaves are brought in contrary to the lex loci. If they be so brought in, then the amendment of the gentleman-although its language does not comprehend it might secure to the introducer of slaves the protection of his property.

If the object of the senator, however, is, as he states, the language of it, I think, does not necessarily imply it. I repeat what I have before said, that I can not vote to convert a Territory already free into a slave Territary. I am satisfied, for one, to let the lex loci, as it exists, remain. Now, let us see what will be the effect of this in that portion of New Mexico east of the Rio Grande. Three opinions prevail upon that subject in the Senate. According to my opinion, the laws of Mexico still prevail in that country, because Texas never had possession of that country, never legislated for that country, and her laws never stretched over that country; but, on the contrary, the country remained in the possession of Mexico until, by the treaty of Guadalupe Hidalgo, it was ceded to the United States. In my opinion, therefore, the local law which prevails in New Mexico-as well in New Mexico east of the Rio Grande as west of it-is the law of Mexico, as pronounced by the Dictator of Mexico, by the constitutional authority of Mexico, and by the legislative power of Mexico. That is my own opinion. But, sir, there are, I may say, two other opinions on this subject. According to one of these opinions-which is maintained with so much ability by my friend from Georgia [Mr. Berrien] who sits near me even admitting that the law of Mexico did extend to New Mexico this side of the Rio del Norte, the Constitution of the United States, by its own necessary operation, abrogated that local law, and invested the owners of slaves with the power of carrying their slaves into any portion of the territories acquired by us from Mexico. But there is still another opinion. There are many senators and members of the House of Representatives, and a large portion of the American people, who be lieve that all the territory this side the Rio del Norte, from its mouth to its source, is Texas, and that the laws of Texas consequently extend over

it; and therefore that the Texas laws comprehend New Mexico this side of the Rio del Norte, and that the lex loci of the territory east of the Rio del Norte is at this moment the law of Texas. If that opinion be correct, there is nothing in the bill reported by the committee to restrain the transportation of slaves from the slaveholding States into that portion of New Mexico which is on this side of the Rio del Norte. Hence there is noth

ing to prevent the bringing before the Supreme Court of the United States the question of the right of the slaveholder to preserve possession of his property, and enjoy the benefits of it, if he should take it to the Territories. There will be no difficulty about the matter if the bill as reported by the committee remains unchanged. And if the Supreme Court shall be of opinion either that the laws of Texas stretch over New Mexico this side of the Rio Grande, or, as maintained by my friend from Georgia that the Constitution of the United States abolished the Mexican laws by which slavery was abrogated, in either case the owner of slaves in New Mexico would have a right to enjoy the possession of his property. But if, on the contrary, as I believe, the Constitution did no such thing, and Texas, not having actual possession, did not extend her laws there, then it would follow that the right to maintain and carry slaves there would not prevail. I have endeavored, sir, to state the effect of the provision in the bill as reported by the committee, and the operation of the amendment of the gentleman from Mississippi, as I understand it.

MR. RUSK. I desire, in this stage of the proceedings on this bill, to say but a few words in answer to a part of the argument of the senator from Kentucky. He seems to suppose that the extension of the laws of Texas over every foot of the territory claimed by her, is necessary to constitute a title to the territory; that unless actual possession and an actual extension of the law in the exercise of jurisdiction absolutely over every foot of the soil takes place, her title is incomplete.

MR. CLAY. My friend will allow me to correct him. I said nothing about title. I spoke of the law as it exists de facto or de jure. But law can not be introduced without some action by legislative authority, if there be a pre-existing local law. If there be a law de facto, although the title may be in Texas, yet the lex loci will exist until the law assuming that Texas has a good title is carried through by the force of legislative authority. I repeat, I said nothing about title.

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Mr. President, I desire to say only a few words. I had no purpose, sir, in any observations I made, to enter into any discussion or consideration of the question of title on the part of Texas to the country this side of the Rio del Norte; and my friend from Texas, therefore, whose zeal is entitled to the highest commendation in behalf of the rights of his own State, when he supposes them to be either directly or remotely infringed or endangered, might have saved himself the necessity of making any observations on the subject. The whole scheme, as he well knows, is founded on putting aside the consideration of the validity or invalidity of the title of

Texas to this territory. The bill-that part of it which relates to Texas -assumes that she has a claim to the country, and proposes a large pecuniary equivalent for that claim. In other words, we propose to buy our peace with Texas; and I am sure, when my friend comes to consider the liberal terms we propose-whether Texas has a good or a bad title to these lands, whether that title is a valid or an invalid one-he will say that these terms are such as are conceived and offered in a spirit of liberality.

Now, sir, with respect to another friend-my friend from Mississippiallow me to say a few words. He seems to think that there is some inconsistency between my present course and that which I took the other day on the subject of non-action. Now this subject of non-action has been very much misconceived, both in the country and in Congress. Nonaction, as respects legislation on the subject of slavery, is one thing-and for that I go; but non-action, so far as giving to these people, separated from their connection with the republic of Mexico, and brought under our jurisdiction-non-action as to giving them a suitable government, is a totally distinct thing. I am in favor of action as respects government for the Territories, but I am in favor of non-action as respects the question of slavery. I think that the honorable senator from Mississippi [Mr. Davis], when he comes to consider the distinction, will see that there is no inconsistency between my present course, and that which I took a few days ago.

Now, sir, with respect to the amendment offered by the senator from Mississippi. The senator says there is a right on the part of the slaveholder in any of the slave States of the Union, to carry his slaves into Utah and Mexico, on this side or on the other side of the Rio Grande; that the Constitution of the United States has abrogated or abolished the laws of Mexico, and that, therefore, in virtue of the operation of the Constitution, this right exists. He went on further to intimate that the laws of Texas perhaps privileged them, and that the laws of Texas might have abrogated the laws of Mexico on the subject of slavery. These are the opinions of the senator from Mississippi. It is my misfortune and I regard it as one, I assure him-to have to declare that I differ from him. And, sir, how is the existing difference to be settled? By that very judicial authority to which the senator in a former session was so ready to refer it. If I am right in my supposition or opinion in regard to the prevalance of this or that law, why then, when the question comes before the Supreme Court of the United States, to which it will be carried, the right to carry slaves there will be disavowed. If, on the other hand, the senator from Mississippi is right, either in supposing that by the Constitution of the United States or by the local law the introduction of slaves is authorized, or that the laws of Texas stretch over the country, and authorize the introduction of slaves, in either contingency the senator will attain the object he proposes the right of the owners of slaves to carry them there. I think with these two chances against me the honorable senator ought to be satisfied, believing, as he appears to believe, that both the

Constitution of the United States and the laws of Texas authorize the carrying of slaves there; whereas I go upon the ground that the laws of Mexico did stretch over there, and that the laws of Texas did not; because although it may be conceded, for the sake of argument, that Texas has a good title, yet she had not the possession de facto; and I can assure him, and I can put it to nobody more confidently, that there is a difference between a title without possession, and the obligations of the local law, or the obligations of the government de facto to maintain its authority, notwithstanding it is not connected with the title. Sir, there are numbers of cases of this kind. In the case of the Stuarts, in England, when contending with the Commonwealth-when the throne was vacated, when Charles I. was beheaded, when England was under the Commonwealth, who ever supposed, after there was a restoration of the authority of the crown, and a replacement of the monarch on the throne-who ever supposed that the laws passed during the reign of the Commonwealth had not force, because they were laws by a government de facto and not by a government de jure? However, these are questions which are not worth taking up the time of the Senate to consider, and the simple question now before the Senate is, whether it will adopt an amendment; and I shall feel myself constrained to vote against it, although I greatly regret to differ from the senator from Mississippi [Mr. Davis]. But I will take his amendment as he intends to propose it, and I shall vote against it upon the supposition that the sense which he intends to convey is in fact conveyed by its language. Then, what is that proposition? The proposition is, that by express legislative authority you shall recognize the right of the owners of slaves to carry these slaves into Utah and New Mexico; that they should be carriable there by the authority of Congress; that they may be transported there by the authority of the amendment which the senator offers.

Now, sir, I can only repeat, what I have often had occasion to say before, that while I am willing to stand aside and to make no legislative enactment, one way or the other-to lay off the Territories without the Wilmot proviso on the one hand, with which I understand we are threatened, or without an attempt to introduce a clause for the introduction of slavery into the Territories-while I am for rejecting both the one and the other, Iam contented that the law as it exists shall prevail; and if there be any diversity of opinion as to what it means, I am willing that it shall be settled by the highest judicial authority of the country. While I am content thus to abide the result, I must say that I can not vote for any express provision recognizing the right to carry slaves there.

And allow me to say to the senators from the South, and to my friend from Mississippi, if he will allow me to apply that expression to him, which I do with the most profound truth and sincerity-for he is not only my friend, but he was also the friend of one who is now no more-allow me to ask him, sir, and the other southern senators, if, with their views of