Thirty Years' View (Vol. II of 2)

CHAPTER CLXXV.

MR. CALHOUN'S NEW DOGMA ON TERRITORIAL SLAVERY: SELF-EXTENSION OF THE SLAVERY PART OF THE CONSTITUTION TO THE TERRITORIES

The resolutions of 1847 went no further than to deny the power of Congress to prohibit slavery in a territory, and that was enough while Congress alone was the power to be guarded against: but it became insufficient, and even a stumbling-block, when New Mexico and California were acquired, and where no Congress prohibition was necessary because their soil was already free. Here the dogma of '47 became an impediment to the territorial extension of slavery; for, in denying power to legislate upon the subject, the denial worked both ways – both against the admission and exclusion. It was on seeing this consequence as resulting from the dogmas of 1847, that Mr. Benton congratulated the country upon the approaching cessation of the slavery agitation – that the Wilmot Proviso being rejected as unnecessary, the question was at an end, as the friends of slavery extension could not ask Congress to pass a law to carry it into a territory. The agitation seemed to be at an end, and peace about to dawn upon the land. Delusive calculation! A new dogma was invented to fit the case – that of the transmigration of the constitution – (the slavery part of it) – into the territories, overriding and overruling all the anti-slavery laws which it found there, and planting the institution there under its own wing, and maintaining it beyond the power of eradication either by Congress or the people of the territory. Before this dogma was proclaimed efforts were made to get the constitution extended to these territories by act of Congress: failing in those attempts, the difficulty was leaped over by boldly assuming that the constitution went of itself – that is to say, the slavery part of it. In this exigency Mr. Calhoun came out with his new and supreme dogma of the transmigratory function of the constitution in the ipso facto, and the instantaneous transportation of itself in its slavery attributes, into all acquired territories. This dogma was thus broached by its author in his speech upon the Oregon territorial bill:

"But I deny that the laws of Mexico can have the effect attributed to them (that of keeping slavery out of New Mexico and California). As soon as the treaty between the two countries is ratified, the sovereignty and authority of Mexico in the territory acquired by it become extinct, and that of the United States is substituted in its place, carrying with it the constitution, with its overriding control over all the laws and institutions of Mexico inconsistent with it."

History cannot class higher than as a vagary of a diseased imagination this imputed self-acting and self-extension of the constitution. The constitution does nothing of itself – not even in the States, for which it was made. Every part of it requires a law to put it into operation. No part of it can reach a territory unless imparted to it by act of Congress. Slavery, as a local institution, can only be established by a local legislative authority. It cannot transmigrate – cannot carry along with it the law which protects it: and if it could, what law would it carry? The code of the State from which the emigrant went? Then there would be as many slavery codes in the territory as States furnishing emigrants, and these codes all varying more or less; and some of them in the essential nature of the property – the slave, in many States, being only a chattel interest, governed by the laws applicable to chattels – in others, as in Louisiana and Kentucky, a real-estate interest, governed by the laws which apply to landed property. In a word, this dogma of the self-extension of the slavery part of the constitution to a territory is impracticable and preposterous, and as novel as unfounded.

It was in this same debate, on the Oregon territorial bill, that Mr. Calhoun showed that he had forgotten the part which he had acted on the Missouri compromise question, and also forgotten its history, and first declared that he held that compromise to be unconstitutional and void. Thus:

"After an arduous struggle of more than a year, on the question whether Missouri should come into the Union, with or without restrictions prohibiting slavery, a compromise line was adopted between the North and the South; but it was done under circumstances which made it nowise obligatory on the latter. It is true, it was moved by one of her distinguished citizens (Mr. Clay), but it is equally so, that it was carried by the almost united vote of the North against the almost united vote of the South; and was thus imposed on the latter by superior numbers, in opposition to her strenuous efforts. The South has never given her sanction to it, or assented to the power it asserted. She was voted down, and has simply acquiesced in an arrangement which she has not had the power to reverse, and which she could not attempt to do without disturbing the peace and harmony of the Union – to which she has ever been adverse."

All this is error, and was immediately shown to be so by Senator Dix of New York, who produced the evidence that Mr. Monroe's cabinet, of which Mr. Calhoun was a member, had passed upon the question of the constitutionality of that compromise, and given their opinions in its favor. It has also been seen since that, as late as 1838, Mr. Calhoun was in favor of that compromise, and censured Mr. Randolph for being against it; and, still later, in 1845, he acted his part in re-enacting that compromise, and re-establishing its line, in that part of it which had been abrogated by the laws and constitution of Texas, and which, if not re-established, would permit slavery in Texas, to spread south of 36° 30'. Forgetting his own part in that compromise, Mr. Calhoun equally forgot that of others. He says Mr. Clay moved the compromise – a clear mistake, as it came down to the House from the Senate, as an amendment to the House restrictive bill. He says it was carried by the almost united voice of the North against the almost united voice of the South – a clear mistake again, for it was carried in the Senate by the united voice of the South, with the aid of a few votes from the North; and in the House, by a majority of votes from each section, making 134 to 42. He says it was imposed on the South: on the contrary, it was not only voted for, but invoked and implored by its leading men – by all in the Senate, headed by Mr. Pinkney of Maryland; by all in the House, headed by Mr. Lowndes, with the exception of Mr. Randolph, whom Mr. Calhoun has since authentically declared he blamed at the time for his opposition. So far from being imposed on the South, she re-established it when she found it down at the recovery of Texas. Every member of Congress that voted for the legislative admission of Texas in 1845, voted for the re-establishment of the prostrate Missouri compromise line: and that vote comprehended the South, with Mr. Calhoun at its head – not as a member of Congress, but as Secretary of State, promoting that legislative admission of Texas, and seizing upon it in preference to negotiation, to effect the admission. This was on the third day of March, 1845; so that up to that day, which was only two years before the invention of the "no power" dogma, Mr. Calhoun is estopped by his own act from denying the constitutionality of the Missouri compromise: and in that estoppel is equally included every member of Congress that then voted for that admission. He says the South never gave her sanction to it: on the contrary, she did it twice – at its enactment in 1820, and at its re-establishment in 1845. He says she was voted down: on the contrary, she was voted up, and that twice, and by good help added to her own exertions – and for which she was duly grateful both times. All this the journals and legislative history of the times will prove, and which any person may see that will take the trouble to look. But admit all these errors of fact, Mr. Calhoun delivered a sound and patriotic sentiment which his disciples have disregarded and violated: He would not attempt to reverse the Missouri compromise, because it would disturb the peace and harmony of the Union. What he would not attempt, they have done: and the peace and harmony of the Union are not only disturbed, but destroyed.

In the same speech the dogma of squatter sovereignty was properly repudiated and scouted, though condemnation was erroneously derived from a denial, instead of an assertion, of the power of Congress over it. "Of all the positions ever taken on the subject, he declared this of squatter sovereignty to be the most absurd: " and, going on to trace the absurdity to its consequences, he said:

"The first half-dozen of squatters would become the sovereigns, with full dominion and sovereignty over the territories; and the conquered people of New Mexico and California would become the sovereigns of the country as soon as they become territories of the United States, vested with the full right of excluding even their conquerors."

Mr. Calhoun concluded this speech on the Oregon bill, in which he promulgated his latest dogmas on slavery, with referring the future hypothetical dissolution of the Union, to three phases of the slavery question: 1. The ordinance of '87. 2. The compromise of 1820. 3. The Oregon agitation of that day, 1848. These were his words:

"Now, let me say, Senators, if our Union and system of government are doomed to perish, and we to share the fate of so many great people who have gone before us, the historian, who, in some future day, may record the events tending to so calamitous a result, will devote his first chapter to the ordinance of 1787, as lauded as it and its authors have been, as the first in that series which led to it. His next chapter will be devoted to the Missouri compromise, and the next to the present agitation. Whether there will be another beyond, I know not. It will depend on what we may do."

These the three causes: The ordinance of 1787, which was voted for by every slave State then in existence: The compromise of 1820, supported by himself, and the power of the South: The Oregon agitation of 1848, of which he was the sole architect – for he was the founder of the opposition to free soil in Oregon. But the historian will have to say that neither of these causes dissolved the Union: and that historian may have to relate that a fourth cause did it – and one from which Mr. Calhoun recoiled, "because it could not be attempted without disturbing the peace and the harmony of the Union."

CHAPTER CLXXVI.

COURT-MARTIAL ON LIEUTENANT-COLONEL FREMONT

Columbus, the discoverer of the New World, was carried home in chains, from the theatre of his discoveries, to expiate the crime of his glory: Frémont, the explorer of California and its preserver to the United States, was brought home a prisoner to be tried for an offence, of which the penalty was death, to expiate the offence of having entered the army without passing through the gate of the Military Academy.

The governor of the State of Missouri, Austin A. King, Esq., sitting at the end of a long gallery at Fort Leavenworth, in the summer of 1846, where he had gone to see a son depart as a volunteer in General Kearney's expedition to New Mexico, heard a person at the other end of the gallery speaking of Frémont in a way that attracted his attention. The speaker was in the uniform of a United States officer, and his remarks were highly injurious to Frémont. He inquired the name of the speaker, and was told it was Lieutenant Emory, of the Topographical corps; and he afterwards wrote to a friend in Washington that Frémont was to have trouble when he got among the officers of the regular army: and trouble he did have: for he had committed the offence for which, in the eyes of many of these officers, there was no expiation except in ignominious expulsion from the army. He had not only entered the army intrusively, according to their ideas, that is to say, without passing through West Point, but he had done worse: he had become distinguished. Instead of seeking easy service about towns and villages, he had gone off into the depths of the wilderness, to extend the boundaries of science in the midst of perils and sufferings, and to gain for himself a name which became known throughout the world. He was brought home to be tried for the crime of mutiny, expanded into many specifications, of which one is enough to show the monstrosity of the whole. At page 11 of the printed record of the trial, under the head of "Mutiny" stands this specification, numbered 6:

"In this, that he, Lieutenant-colonel John C. Frémont, of the regiment of mounted riflemen, United States army, did, at Ciudad de los Angeles, on the second of March, 1847, in contempt of the lawful authority of his superior officer, Brigadier-general Kearney, assume to be and act as governor of California, in executing a deed or instrument of writing in the following words, to wit: 'In consideration of Francis Temple having conveyed to the United States a certain island, commonly called White, or Bird Island, situated near the mouth of San Francisco Bay, I, John C. Frémont, Governor of California, and in virtue of my office as aforesaid, hereby oblige myself as the legal representative of the United States, and my successors in office, to pay the said Francis Temple, his heirs or assigns, the sum of $5,000, to be paid at as early a day as possible after the receipt of funds from the United States. In witness whereof, I have hereunto set my hand, and caused the seal of the Territory of California to be affixed, at Ciudad de los Angeles, the capital of California, this 2d day of March, A. D. 1847. – John C. Frémont.'"

And of this specification, as well as of all the rest, two dozen in number, Frémont was duly found guilty by a majority of the court. Now this case of mutiny consisted in this: That there being an island of solid rock, of some hundred acres extent, in the mouth of the San Francisco bay, formed by nature to command the bay, and on which the United States are now constructing forts and a light-house to cost millions, which island had been granted to a British subject and was about to be sold to a French subject, Colonel Frémont bought it for the United States, subject to their ratification in paying the purchase money: all which appears upon the face of the papers. Upon this transaction (as upon all the other specifications) the majority of the court found the accused guilty of "mutiny," the appropriate punishment for which is death; but the sentence was moderated down to dismission from the service. The President disapproved the absurd findings (seven of them) under the mutiny charge, but approved the finding and sentence on inferior charges; and offered a pardon to Frémont: which he scornfully refused. Since then the government has taken possession of that island by military force, without paying any thing for it; Frémont having taken the purchase on his own account since his conviction for "mutiny" in having purchased it for the government – a conviction about equal to what it would have been on a specification for witchcraft, heresy, or "flat burglary." And now annual appropriations are made for forts and the light-house upon it, under the name of Alcatraz, or Los Alcatrazes – that is to say, Pelican Island; so called from being the resort of those sea birds.

Justice to the dead requires it to be told that these charges, so preposterously wicked, were not the work of General Kearney, but had been altered from his. At page 64 of the printed record, and not in answer to any question on that point, but simply to place himself right before the court, and the country, General Kearney swore in these words, and signed them: "The charges upon which Colonel Frémont is now arraigned, are not my charges. I preferred a single charge against Lieutenant-colonel Frémont. These charges, upon which he is now arraigned, have been changed from mine." The change was from one charge to three, and from one or a few specifications to two dozen – whereof this island purchase is a characteristic specimen. No person has ever acknowledged the authorship of the change, but the caption to the charges (page 4 of the record) declares them to have been preferred by order of the War Department. The caption runs thus: "Charges against Lieutenant-colonel Frémont, of the regiment of mounted riflemen, United States army, preferred against him by order of the War Department, on information of Brigadier-general Kearney." The War Department, at that time, was William L. Marcy, Esq.; in consequence of which Senator Benton, chairman for twenty years of the Senate's committee on Military Affairs, refused to remain any longer at the head of that committee, because he would not hold a place which would put him in communication with that department.

The gravamen of the charge was, that Frémont had mutinied because Kearney would not appoint him governor of California; and the answer to that was, that Commodore Stockton, acting under full authority from the President, had already appointed him to that place before Kearney left Santa Fé for New Mexico: and the proof was ample, clear, and pointed to that effect: but more has since been found, and of a kind to be noticed by a court of West Point officers, as it comes from graduates of the institution. It so happens that two of General Kearney's officers (Captain Johnston, of the First Dragoons, and Lieutenant Emory, of the Topographical corps), both kept journals of the expedition, which have since been published, and that both these journals contain the same proof – one by a plain and natural statement – the other by an unnatural suppression which betrays the same knowledge. The journal of Captain Johnston, of the first dragoons, under the date of October 6th, 1846, contains this entry:

"Marched at 9, after having great trouble in getting some ox carts from the Mexicans: after marching about three miles we met Kit Carson, direct on express from California, with a mail of public letters for Washington. He informs us that Colonel Frémont is probably civil and military governor of California, and that about forty days since, Commodore Stockton with the naval forces, and Colonel Frémont, acting in concert, commenced to revolutionize that country, and place it under the American flag: that in about ten days this was done, and Carson having received the rank of lieutenant, was despatched across the country by the Gila, with a party to carry the mail. The general told him that he had just passed over the country which we were to traverse, and he wanted him to go back with him as a guide: he replied that he had pledged himself to go to Washington, and he could not think of not fulfilling his promise. The general told him he would relieve him of all responsibility, and place the mail in the hands of a safe person to carry it on. He finally consented, and turned his face towards the West again, just as he was on the eve of entering the settlements, after his arduous trip, and when he had set his hopes on seeing his family. It requires a brave man to give up his private feelings thus for the public good; but Carson is one: such honor to his name for it."

This is a natural and straightforward account of this meeting with Carson, and of the information he gave, that California was conquered by Stockton and Frémont, and the latter governor of it; and the journal goes on to show that, in consequence of this information, General Kearney turned back the body of his command, and went on with an escort only of one hundred dragoons. Lieutenant Emory's journal of the same date opens in the same way, with the same account of the difficulty of getting some teams from the Mexicans, and then branches off into a dissertation upon peonage, and winds up the day with saying: "Came into camp late, and found Carson with an express from California, bearing intelligence that the country had surrendered without a blow, and that the American flag floated in every part." This is a lame account, not telling to whom the country had surrendered, eschewing all mention of Stockton and Frémont, and that governorship which afterwards became the point in the court-martial trial. The next day's journal opens with Carson's news, equally lame at the same point, and redundant in telling something in New Mexico, under date of Oct. 7th, 1846, which took place the next year in old Mexico, thus: "Yesterday's news caused some changes in our camp: one hundred dragoons, officered, &c., formed the party for California. Major Sumner, with the dragoons, was ordered to retrace his steps." Here the news brought by Carson is again referred to, and the consequence of receiving it is stated; but still no mention of Frémont and Stockton, and that governorship, the question of which became the whole point in the next year's trial for mutiny. But the lack of knowledge of what took place in his presence is more than balanced by a foresight into what took place afterwards and far from him – exhibited thus in the journal: "Many friends here parted that were never to meet again: some fell in California, some in New Mexico, and some at Cerro Gordo." Now, no United States troops fell in New Mexico until after Lieutenant Emory left there, nor in California until he got there, nor at Cerro Gordo until April of the next year, when he was in California, and could not know it until after Frémont was fixed upon to be arrested for that mutiny of which the governorship was the point. It stands to reason, then, that this part of the journal was altered nearly a year after it purports to have been written, and after the arrest of Frémont had been resolved upon; and so, while absolutely proving an alteration of the journal, explains the omission of all mention of all reference to the governorship, the ignoring of which was absolutely essential to the institution of the charge of mutiny. – Long afterwards, and without knowing a word of what Captain Johnston had written, or Lieutenant Emory had suppressed, Carson gave his own statement of that meeting with General Kearney, the identity of which with the statement of Captain Johnston, is the identity of truth with itself. Thus:

"I met General Kearney, with his troops, on the 6th of October, about – miles below Santa Fé. I had heard of their coming, and when I met them, the first thing I told them was that they were 'too late' – that California was conquered, and the United States flag raised in all parts of the country. But General Kearney said he would go on, and said something about going to establish a civil government. I told him a civil government was already established, and Colonel Frémont appointed governor, to commence as soon as he returned from the north, some time in that very month (October). General Kearney said that made no difference – that he was a friend of Colonel Frémont, and he would make him governor himself. He began from the first to insist on my turning back to guide him into California. I told him I could not turn back – that I had pledged myself to Commodore Stockton and Colonel Frémont to take their despatches through to Washington City, and to return with despatches as far as New Mexico, where my family lived, and to carry them all the way back if I did not find some one at Santa Fé that I could trust as well as I could myself – that I had promised them I would reach Washington in sixty days, and that they should have return despatches from the government in 120 days. I had performed so much of the journey in the appointed time, and in doing so had already worn out and killed thirty-four mules – that Stockton and Frémont had given me letters of credit to persons on the way to furnish me with all the animals I needed, and all the supplies to make the trip to Washington and back in 120 days; and that I was pledged to them, and could not disappoint them; and besides, that I was under more obligations to Colonel Frémont than to any other man alive. General Kearney would not hear of any such thing as my going on. He told me he was a friend to Colonel Frémont and Colonel Benton, and all the family, and would send on the despatches by Mr. Fitzpatrick, who had been with Colonel Frémont in his exploring party, and was a good friend to him, and would take the despatches through, and bring back despatches as quick as I could. When he could not persuade me to turn back, he then told me that he had a right to make me go with him, and insisted on his right; and I did not consent to turn back till he had made me believe that he had a right to order me; and then, as Mr. Fitzpatrick was going on with the despatches and General Kearney seemed to be such a good friend of the colonel's, I let him take me back; and I guided him through, but went with great hesitation, and had prepared every thing to escape the night before they started, and made known my intention to Maxwell, who urged me not to do so. More than twenty times on the road, General Kearney told me about his being a friend of Colonel Benton and Colonel Frémont, and all their family, and that he intended to make Colonel Frémont the governor of California; and all this of his own accord, as we were travelling along, or in camp, and without my saying a word to him about it. I say, more than twenty times, for I cannot remember how many times, it was such a common thing for him to talk about it."