The Sovereignty of the enemy is in such case "suspended," and his laws can "no longer be rightfully enforced" over the conquered territory "or be obligatory upon the inhabitants who remain and submit to the conqueror. By the surrender the inhabitants pass under a temporary allegiance" to the conqueror, and are "bound by such laws, and such only, as" he may choose to recognize and impose. "From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty there can be no claim to obedience." These are well-established principles of the laws of war, as recognized and practised by civilized nations, and they have been sanctioned by the highest judicial tribunal of our own country. The orders and instructions issued to the officers of our Army and Navy, applicable to such portions of the Mexican territory as had been or might be conquered by our arms, were in strict conformity to these principles. It is from the same source of authority that we derive the unquestioned right, after the war has been declared by Congress, to blockade the ports and coast of the enemy, to capture his towns, cities, and provinces, and to levy contributions upon him for the support of our Army. Of the same character with these is the right to subject to our temporary military government the conquered territories of our enemy. They are all belligerent rights, and their exercise is as essential to the successful prosecution of a foreign war as the right to fight battles. New Mexico and Upper California were among the territories conquered and occupied by our forces, and such temporary governments were established over them. They were established by the officers of our Army and Navy in command, in pursuance of the orders and instructions accompanying my message to the House of Representatives of December 22, 1846. . . On the conclusion and exchange of ratifications of a treaty of peace with Mexico, which was proclaimed on the 4th instant, these temporary governments necessarily ceased to exist.. 126. President Polk to Congress.1 Upon the exchange of ratifications of the treaty of peace with Mexico, on the 30th of May last, the temporary governments which had been established over New Mexico and California by our military and naval commanders by virtue of the rights of war ceased to derive any obligatory force from that source of authority, and having been ceded to the United States, all government and control over them under the authority of Mexico had ceased to exist. Impressed with the necessity of establishing Territorial governments over them, I recommended the subject to the favorable consideration of Congress in my message communicating the ratified treaty of peace, on the 6th of July last, and invoked their action at that session. Congress adjourned without making any provision for their government. The inhabitants by the transfer of their country had become entitled to the benefit of our laws and Constitution, and yet were left without any regularly organized government. Since that time the very limited power possessed by the Executive has been exercised to preserve and protect them from the inevitable consequences of a state of anarchy. The only government which remained was that established by the military authority during the war. Regarding this to be a de facto government, and that by the presumed consent of the inhabitants it might be continued temporarily, they were advised to conform and submit to it for the short intervening period before Congress would again assemble and could legislate on the subject. 1 December 5, 1848. Richardson, Messages and Papers of the Presi dents, IV, 638. PART SEVEN. SLAVERY AND THE CONSTITUTION CHAPTER XLIV SLAVERY IN THE TERRITORIES FROM the beginning of the war, the acquisition of territory from Mexico, whether as indemnity or conquest, was earnestly desired by the administration at Washington. The prospect opened up long vistas of trouble. With every extension of territory the slavery question was bound to recur. President Polk's request for an appropriation for any cession of territory which Mexico might make as "indemnity," was the signal for an aggressive move on the part of the anti-slavery forces. Should such an accession of territory fall to the United States, they were bound that it should be made free soil. To this end they attached the Wilmot Proviso to successive bills authorizing the desired appropriation. The House favored the Proviso, but the Senate would have none of it. Between 1847 and 1850 at least four different ways of dealing with the vexing question of slavery in the territories were proposed. One was presented by the South Carolina radicals led by Calhoun and Rhett; a second was reported by a committee of which Senator Clayton of Delaware was chairman; a third was offered by Cass and promptly dubbed "squatter sovereignty"; and a fourth was finally embodied in the Utah and New Mexico Territorial bills of 1850. 127. The Wilmot Proviso.1 Provided, That, as an express and fundamental condition to the acquisition of any territory from the Republic of Mexico by the United States, by virtue of any treaty which may be negotiated between them, and to the use by the Executive of the moneys herein appropriated, neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted. ... 1 Proposed by Representative Wilmot of Pennsylvania, August 8, 1846, as an amendment to the Two Million Dollar Bill. 128. The Rhett-Calhoun Doctrine.1 The question made by the bill is, has Congress the power of excluding the people of the southern States from entering and colonizing with their slaves the territories of the United States? The gentleman from Indiana, [Mr. Pettit,] and others, affirm that it has, because the sovereignty of the Territories is in the Government of the United States. Now, let us examine, first, before we ascend to general principles, the clause of the Constitution, on which the gentleman from Indiana relies, to show that sovereignty over the territories, is in the Government of the United States. "The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States." Here, in the first place, nothing is said about the Government of the United States. Whatever power is conceded by the clause is conceded to "the Congress." . . . Suppose Congress to be the Government, what power does the clause convey? "To dispose of, and make all needful rules and regulations concerning, the territory or other property belonging to the United States." Does the power "to dispose of and make all needful rules and regulations," imply sovereignty? Mark, sir, how far short this phraseology is in its scope of that other clause in the Constitution which relates to "the other property" of the United States the forts, arsenals, magazines, and dock yards. Over these, and over this District, Congress "is to exercise exclusive legislation in all cases whatsoever." Does not the clause relate to the territory only as property, and confer only powers necessary for its disposition and control as property? It speaks of the territories in connexion with the "other property" of the United States. Congress can sell the lands lying within the territory, and, to secure purchasers and settlers in their persons and property, they can make "all needful rules and regu 1 Speech of Representative Rhett in the House, January 15, 1847. Congressional Globe, 29 Cong., 2 Sess., App., 244-46 passim. The resolutions of Calhoun, to the same purport, are in the Congressional Globe, 29 Cong., 2 Sess., 455. lations," establish territorial governments, and pass laws. ... But the clause itself directly repudiates the idea that either Congress or the Government have any property, much less sovereignty over our territories. Its words are, "territory and other property belonging to the United States." Here is a direct affirmation that our territory does not "belong" either to Congress or the Government. Now, although it does not follow that where there is property (for property may belong to individuals) there is sovereignty; yet where there is no property, over an unsettled country, there cannot be sovereignty. The "supreme ultimate authority" cannot exist where there is neither the inferior right of property, which exists in individuals, or the higher right by the eminent domain. The clause, however, does not stop at negativing, by implication, the idea that the Government has the sovereignty over our territories, but it directly asserts where the property and the sovereignty over them are "belonging to the United States." --- It declares, that the territories belong to the United States. They are tenants in common, or joint proprietors, and cosovereigns over them. As co-sovereigns they have agreed, in their common compact, the Constitution, that their agent, the General Government, "may dispose of, and make all needful rules and regulations," with respect to them; but, beyond this, they are not limited or limitable in their rights. Their sovereignty, unalienated and unimpaired by this mutual concession to each other, exists in all its plenitude over our territories; as much so, as within the limits of the States themselves. Yet there can be no conflict; for none of the States can make any "rules and regulations" separately, within the territories, which may bring them in conflict. The "rules and regulations" prevailing, will be made by all, and obligatory on all, through their common agency, the Government of the United States. The only effect, and probably the only object of their reserved sovereignty, is, that it secures to each State the right to enter the territories with her citizens, and settle and occupy them with their property - with whatever is recognised as property by each State. The ingress of the citizen, is the ingress of his |