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Stephen Arnold Douglas.

A brief treatise upon constitutional and party questions and the history of political parties, as I received it orally from the late Senator Stephen A. Douglas online

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Online LibraryStephen Arnold DouglasA brief treatise upon constitutional and party questions and the history of political parties, as I received it orally from the late Senator Stephen A. Douglas → online text (page 1 of 11)
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LIBRARY

-UNIVERSITY OF CALIFORNIA
DAVIS



A BRIEF TREATISE



UPON



CONSTITUTIONAL



PARTY QUESTIONS,



AND



THE HISTORY OF POLITICAL PARTIES,



A3 I RECEIVED IT ORALLY FROM THE LATE SENATOR
STEPHEN- A. DOUGLAS, OF ILLINOIS.



BY

J. MADISON CUTTS,

BBEVET LIEUTENANT COLONEL, U. S. A.



NEW YORK :
D. APPLETON AND COMPANY,

443 & 445 BKOADWAY,
1866.



LIBRARY

UNIVERSITY OF CALIFORNIA
DAVIS



ENTERED, according to Act of Congress, in the year 1866, by

D. APPLETON & CO.,

la the Clerk's Office of the District Court of the United States for the
Southern District of New York.



TO THE FRIENDS
OP THE

HON. STEPHEN A. DOUGLAS,

NORTH, WEST, AND SOUTH;

AND IN AN ESPECIAL MANNER MOST WABMLY AND AFFECTIONATELY
TO TUB

HON. DANIEL P. KHODES,

OF CLEVELAND, OHIO,
HIS RELATIVE, VERY DEAR FRIEND, AND FAITHFUL EXECUTOR,

THIS VOLUME
IS RESPECTFULLY DEDICATED.



PREFACE.



IN the summer of 1859 Mr. Douglas remained
in Washington ; and as I was very desirous of re
ceiving from him a statement of his own political
faith, with the general views of a statesman upon
Constitutional, Political, and Party Questions, I
prepared, with his consent, a brief analysis of such
subjects as I wished him to explain to me. We
were in the habit of spending an hour together each
evening, until all the questions I had proposed were
answered.

The following brief treatise embodies all of
these conversations, which were taken down in
writing, verbally, at the time Mr. Douglas always
pausing long enough to enable me to obtain his
exact language.



PREFACE.

As these conversations were not intended for
publication, and were entirely free and unrestrained,
wanting all of that method and careful thought
which the term "treatise" implies,. I have been
induced to rely entirely upon the dignity of the
subjects discussed, and their general interest to
the friends of the late Senator Douglas, to justify
the title I have adopted.

I am persuaded that this volume contains a more
complete and perfect statement of his opinions than
any original work of compilation by another could
possibly embody, and that it will be generally ac
ceptable to his friends, and be found worthy of
their perusal, "because it came from himself.

J. MADISON CUTTS,
Brevet Lieutenant Colonel, F. S. A.

NEW YORK CITY, June 1, 1866.



CONTENTS.



PAGK

THE PREAMBLE OF THE CONSTITUTION DISCUSSED, . 11

THE LEGISLATIVE POWER OP THE GOVERNMENT, . 12

Right of Suffrage under the Constitution, . . . .13

THE POWERS OF CONGRESS CONSIDERED, ... 16

HISTORY OF THE NATIONAL BANK, 20

Removal of the deposits, 23

Specie circulars, 26

The Sub-Treasury, '.,..- .27

Popular argument against the Sub-Treasury, ... 29

Arguments in its favor, . . ; .s . , 30
The financial policy of the Democratic party adopted by the

people, . . . . . ... . 32

PROHIBITION OF THE AFRICAN SLAVE TRADE, . . 33

SUSPENSION OF THE WRIT OF HABEAS CORPUS, . 35
History of General Jackson's suspension of the writ in New
Orleans, and arguments for and against the bill refund
ing the fine imposed upon him, . . . . .37

INTERNAL IMPROVEMENTS, AND RIVER AND HARBOR IM
PROVEMENTS, . . . ' . ..... 41

OF THE EXECUTIVE POWER, . . . . ... 47

Power of the President to make removals,, and to fill vacancies, 48

OF THE JUDICIAL POWER, ... . . . 49



8 CONTENTS.

PAGE

SLAVERY, 50

POWER TO ACQUIRE TERRITORY, 61

ADMISSION OF NEW STATES, 52

POWER TO DISPOSE OF PUBLIC PROPERTY, . . 53
HISTORY OF THE ACQUISITIONS OF TERRITORY BY THE

UNITED STATES, . .55

1. Of the Louisiana purchase, . . . . 55

2. Of Florida, and parts of Alabama, Mississippi, and Louis

iana, 59

3. Of Oregon, Texas, California, and New Mexico, . . 60
The Re-annexation of Texas, Re-occupation of Oregon, and

the Mexican war, 61

HISTORY OF THE MISSOURI COMPROMISE, ... 69
THE WILMOT PROVISO, AND THE COMPROMISE OF 1850, 75
THE KANSAS-NEBRASKA BILL, AND THE SUBSEQUENT HISTORY

OF KANSAS UNDER THAT LAW THE KANSAS-LECOMPTON

CONTROVERSY, AND THE PERFIDY OF MR.. BUCHANAN AND
HIS ADMINISTRATION, . . .' . . . .84

POPULAR AND SQUATTER SOVEREIGNTY DEFINED AND

DISTINGUISHED, . . . . . . . 123

ORIGIN, HISTORY, AND STATE OF PARTIES, FROM THE

FORMATION OF THE GOVERNMENT DOWN TO THE ADMINIS
TRATION OF PRESIDENT PIERCE, ._ . . . .-., < . 125
Republican and Federal parties, . . . . 127

Alien and Sedition Laws, . . A .* . . . 128

Resolutions of 1798 and 1799, . . . ... . . 129

Hartford Convention War of 1812, . ^ . . . .132

The Era of Good Feeling, . . , '. . . '; -. . 133

Defeat of GeneralJackson, . . -.. . . . 135

Charges of bribery and corruption against Henry Clay, . 137

Democratic party assumes its name, . . . . . 137

South Carolina Nullification doctrine, .... 138

General Jackson' suppresses nullification, . . . . 139



CONTENTS. 9

PAGE)

Clay's Compromise Tariff Bill, 140

Origin of the name of the Whig party, and its chief measures

stated, 141

General Jackson reorganizes his Cabinet, .... 143
Mr. Van Buren's rejection by the Senate as minister to Eng
land, and his subsequent election as President of the

United States, 143

Van Buren's Administration, . . . . . . 145

Election of General Harrison, his death, Tyler's succession
and administration, . . . . . ; ...'.. . . 147

The Texas question : it defeats Mr. Van Buren and Mr. Clay,

and elects President Polk, .149

Election of General Taylor in consequence of the division in

the New York Democracy : this division explained, . 155
THE TARIFF POSITION OF PARTIES THEREON, .... 158
THE PUBLIC LAND SYSTEM OF THE UNITED STATES, 161

THE HOMESTEAD BILL, . . 174

HISTORY OF THE ILLINOIS CENTRAL RAILROAD BILL, 187
INDIANS AND INDIAN INTERCOURSE LAWS, . . 200
THE RECIPROCITY TREATY, . . . .... .203

THE MONROE DOCTRINE, . "..'"'.'. ... 207

CENTRAL AMERICA AND THE CLAYTON-BULWER

TREATY, . . . .- 209

THE PACIFIC RAILROAD, . V - 217



A BRIEF TREATISE



ON



CONSTITUTIONAL AND PARTY QUESTIONS.



PREAMBLE.

" WE, the people of the United States, in order to form a
more perfect Union, establish Justice, insure domestic Tran
quillity, provide for the common Defence, promote the general
Welfare, and secure the blessings of Liberty to ourselves and
our Posterity, do ordain and establish this Constitution for
the United States of America."

The Constitution is an amendment, in the form
of a substitute, for the Articles of Confederation ;
the successor of the government of the Confeder
ation. Chief Justice Taney, in the Dred Scott case,
says not : that it was a new government.

" In order to form a more perfect Union" de
notes and implies that it is a continuation.



12 PREAMBLE OF THE CONSTITUTION.

" We, the people of the United States."

The Constitution was made bj the States, and
not bj the people united. It should therefore read,
" We, the people of the States united." It was
voted for by States in the Convention, submitted to
the people of each State severally, and became the
Constitution only of the States adopting it. It is a
Federal Constitution, and not a National Govern
ment.

" Promote the general Welfare."

The Federalist party contended that this gave
Congress power to do whatever it thought would
promote the general welfare. But the preamble
gives no power. It neither confers, enlarges, nor
restrains power ; but simply declares the objects for
which, and the reasons why the powers subsequently
and elsewhere conferred, were conferred.



ARTICLE FIRST.
OF THE LEGISLATIVE POWER.

In the Confederation all powers were granted to
one body, namely, " the United States in Congress
assembled." Experience under the Confederation
taught that the British system of three depart-



THE LEGISLATIVE POWER. 13

ments, with which they had been familiar, was the
best. The Constitution was not made, manufac
tured. It grew as a plant, and was the develop
ment of the experience of ages. The Articles of
Confederation were a departure from, and they re
turned to the system with which they had been
familiar, both in the British Constitution and in the
organization of their own colonial assemblies.

Section 2. " And the electors in each State shall have the
qualifications requisite for electors of the most numerous
branch of the State Legislature."

One of the great difficulties encountered and
overcome in the formation of the Constitution was
to determine the Right of Suffrage. Who should
be the constituency of the House of Represent
atives ? Should it be uniform in all the States, or
not?

Each State had its own system, and wanted it
adopted. Some required property qualifications,
others not. The compromise was to let each State
adopt its own system, with the limitation contained
in the section under consideration. Here I call your
attention to two general propositions : 1st. A man
may be a citizen and not a voter, and he may be a
voter and not a citizen. 2d. Citizen of a State,



14 EIGHT OF SUFFRAGE.

means citizen of the United States resident in a
State.

No power except that of the Federal Govern
ment can create a citizen. But the privileges may
be conferred, by virtue of the sovereignty of the
State, and are good within its limits.

It is difficult to give a construction, and the
courts have only glanced at it. See the Dred Scott
decision, where the court decides Dred not a citi
zen so as to have the right to sue under Art. 3, Sec.
2 of the Constitution.

How many members a State may send, and
what their qualifications, is elsewhere determined.
But each State is left to decide for itself who shall
send them. So also as to who shall be the electors
of the President. Each State prescribes who shall
be, and the manner of the election. May be a ne
gro, a w r oman, an unnaturalized person, and may be
elected in any way. In South Carolina, now, by
the Legislature, and formerly so in nearly if not all
the States.

The impression is that an unnaturalized person
cannot vote for a Federal officer, and so would an-
'swer ninety-nine out of a hundred. Design and
necessity gave rise to the clause under discussion.
I first raised that question. It is reported in Illinois



EIGHT OF SUFFEAGE. 15

in 1838 or 1839. So that right to vote is not affect
ed by naturalization, and is not one of the rights
conferred by naturalization. See the contested case
of Jones and Botts of Virginia in 1843. In 1836
the Whigs, Clay among them, opposed the admis
sion of Michigan because she gave unnaturalized
persons the right to vote.

Each State may prescribe its own terms of
suffrage, but cannot prescribe the qualifications of
the man who is to hold the office. That he should
be " an inhabitant of the State in which he shall be
chosen," was a provision of the Constitution in
tended to correct abuses which had sprung up in
England.

A State may elect by district, or by general
ticket, unless Congress should itself divide the
States into districts, but it cannot compel the States
to district themselves. See a report made by me
upon this subject.

A State cannot so far make a man a citizen as
to confer upon him a right to sue in the United
States courts. It can only confer upon him such
privileges of citizenship as its own citizens enjoy,
but cannot make him a citizen.

A State cannot enlarge or diminish the quali
fications of Senators or Representatives. The only



16 POWERS OF CONGRESS.

inquiry is, have they the qualifications required by
the Constitution, namely, age and inhabitancy of
the State in which or for which they are elected.
See the case of Trumbull of Illinois, in the Senate,
and, at the same time, of Marshall of Illinois, in the
House. As to who are " inhabitants," see the cases
of Felix Grundy of Tennessee, John Forsyth of
Georgia, and Bayly of Massachusetts.

Dallas passed the revenue tariff of 1846 by his
casting vote as President of the Senate.

Under Art. I., Sec. 6, Clause 2, a question has
arisen, and some have held that the position of min
ister to a foreign country is not an office under the
Constitution, and that the President could appoint
one without a law creating. I hold no such thing.

ARTICLE I., SECTION 8. THE POWERS OP CONGRESS.

You may strain a power beyond the moral
right.

The general rule is, that few of these powers are
concurrent, and most of them exclusive. The pecu
liar phraseology and subject matter give rise to the
exceptions in which they are held concurrent.

Art. I., Sec. 8, Clause V. The Congress shall have power
" to establish Post-Offices and Post-Koads."



POWERS OF CONGRESS. IT

But not to construct and build simply to indi
cate the line, the route.

" To constitute tribunals inferior to the Supreme Court."
But not to confer a jurisdiction not authorized
in the third article of the Constitution.

"To promote the progress of science and the useful
arts," etc.

But no power to establish a University. The
power is limited to the mode mentioned, namely,
"by securing for limited times to authors and in
ventors the exclusive right to their respective writ
ings and discoveries."

Mr. Madison offered in the Convention a provi
sion which would have authorized the establishment
of a University, but it was not adopted.

It has been said that Congress would have power
to establish a University in the District of Columbia,
on the ground of its exclusive jurisdiction. But ex
clusive jurisdiction means here, that there shall ~be
no other, not that it shall be unlimited. It must l}e
subordinate to the limitations of the Constitution,
and thus confined in its means. It has power to
establish schools for the District, but this would not
authorize a University in its character national, but

might of a local character.
2



18 POWEKS OF CONGRESS.

Congress makes appropriations for railroads, for
example, the Illinois Central, under its "power to
dispose of and make all needful rules and regulations
respecting the territory or other property of the
United States," conferred in Art. 4, Sec. 3, Clause
2 of the Constitution. It might give the land
away, but there is a moral obligation not to do so.
Congress gave the land to the Illinois Central, on
the ground of the increase of value. The lands had
been for forty years unsold. They gave alternate
sections, and sold readily the other half for more
than they had asked for the whole. There was also
a provision that the railroad should carry the mails
for a just and fair compensation, which, in case of
disagreement, was to be fixed by the Congress. The
grant was made to the State, and thence to the
company.

Art. I., Section 8, Claim 18. " To make all laws which
shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Consti
tution in the Government of the United States, or in any De
partment or Officer thereof."

This clause confers no new powers. It is only
declaratory of a rule of construction, which would
have been precisely the same without it ; for powers



POWERS OF CONGRESS. 19

were already given, and necessarily include the
means of using them. It would have been implied
without this declaration.

" Necessary and proper." Some say essentially,
absolutely necessary. But see the reasoning of Chief
Justice Marshall in the case of McCulloch vs. State
of Maryland. Carried to the extent of his doctrine,
you would substitute the discretion of Congress for
the Constitution.

The true doctrine is, that where there are several
means adapted to the s-ame end, Congress may fairly
choose. The means must be appropriate and adapt
ed to the end authorized by the Constitution, and that
end must be the one for which the means is used,
and not incidentally the end proposed. Hence we
exclude a National Bank, because you establish it
to issue money, regulate the currency, while the
Treasury Agency you make incidental. I will here
give you the history of the National Bank.



HISTORY OF THE NATIONAL BAJSK.

IMMEDIATELY after the first Congress of 1791,
Alexander Hamilton, Secretary of the Treasury,
recommended a bank, as one of the means necessary
to restore the credit of the Government, and to act
as its financial agent. The two Houses of Congress,
on his recommendation, passed the first bank charter.

General Washington expressed serious doubts of
the power to pass the law, and took the opinions of
his Cabinet, in writing. Thomas Jefferson, Secre
tary of State, was against it. Edmund Randolph,
Attorney-General, expressed the same opinion ; while
General Henry Knox, Secretary of War, sustained
Hamilton in its constitutionality. Washington re
ferred the opinions of Jefferson and others to Hamil
ton for his reply, who gave an elaborate opinion,
sustaining the right of Congress to establish the
bank.

On consideration of the whole subject, General



HISTOEY OF THE NATIONAL BANK. 21

Washington was of the opinion that the bank was
unconstitutional, and that he ought to veto it, and
called on Mr. Madison to prepare for him a veto
message, which he accordingly did. Upon the pre
sentation of that message, Washington again ex
pressed himself in doubt, inclining to the impression
that the power did not exist. Jefferson still ad
hered to his opinion that it was clearly unconstitu
tional, but he advised the President, that in cases
of great and serious doubt, the doubt should "be
weighed in favor of legislative authority. Where
upon Washington signed the bill.

That first charter ran twenty years, from 1791
to 1811. On application for its renewal in 1811,
the Democratic party generally resisted on Constitu
tional grounds, and the Federal party sustained it.
Henry Clay made his first great speech against it in
1811, and the bill for re-charter was defeated, and
the bank expired. The war of 1812 immediately
intervened. The finance, currency, and credit of
the country became greatly disturbed, and an im
pression was made on the minds of the American
people that a bank was necessary to restore them.
In 1815 a bank charter passed, received votes from
both parties, and opposition from both, and Mr.
Madison vetoed it. The next year John C. Cal-



22 HISTORY OF THE NATIONAL BANK.

houn, as a leader in the Republican or Democratic
party, introduced a bill, with the sanction of a large
portion of the party, for a National Bank. It passed
both houses, and Mr. Madison, waiving his scruples,
and yielding to what seemed the public opinion of the
country, signed it. That charter also ran for twenty
years, until 1836, and for the ensuing five years
ceased to be a party question. All acquiesced in it,
though a great portion of all the leading Demo
crats still retained their opposition ; but it did not
go into the elections, and nobody knew whether it
would ever become a party question again.

But General Jackson became President in 1829,
and, in his message of 1830 or 1831, called the at
tention of the country to the bank, whose charter
would expire in 1836, with intimations of doubts as
to its constitutionality. In 1832, preceding the
Presidential election, and with a view to influence
it, the opponents of General Jackson brought in a
bill for the re-charter of the bank, and pressed it
through both houses of Congress, in order to com
pel Jackson to sign it before the election, or to en
counter the opposition of the bank, and all its
friends, in the coming election. Large numbers of
Jackson's best friends, probably including a majority
of the leading men in both houses of Congress,



IIISTOKY OF THE NATIONAL BANK. 23

urged him to sign the bill. Not that they believed,
or pretended to believe, that the bank ought to be
re-chartered, but they were clearly of the opinion
that if he did veto it, he would be defeated for re
election, and the opposite party would come into
power, and not only re-charter the bank, but carry
out all their other measures, to which the Democratic
party were opposed. Jackson replied, that the bank
was unconstitutional, corrupt, and insolvent. He
persisted in declaring it insolvent, though then at
130, but ultimately, not a cent on the dollar. He
declared that he would veto it, if it was the last act
of his life, and it sank the party with him ; telling
those of his friends who were afraid of the conse
quences, that they could desert and go over to the
bank, and he would whip the whole of them. He
vetoed it on the 10th of July, 1832, and was re-
elected by a large majority in November of the same
year on that issue.

In September, 1833, Duane was removed from
the Treasury Department because he refused to re
move the deposits, which Jackson insisted on, upon
the ground that the bank was corrupt and insolvent,
using its funds to control elections, and to corrupt
the people. Jackson sent for Roger B. Taney, and
said to him, " You are Secretary of the Treasury.



24: HISTORY OF THE NATIONAL BANK.

/ want the deposits removed" Taney removed
them, and then the excitement was still greater.
Immediately the bank curtailed discounts in every
part of the country at once, and refusing to discount
for those who opposed the bank, broke every man
not in its favor, still extending loans to those in
favor, to buy the property of those who were
obliged to sacrifice. The distress was terrible ; you
can examine for yourself the petitions portraying it.
There was the greatest panic, and the wildest frenzy,
when Congress met in the winter of 1833.

The Senate passed resolutions of censure. Jack
son protested ; said he was not before them for im
peachment. Many of Jackson's friends deserted
him in the House, and they passed resolutions in
favor of the return of the deposits. The Govern
ment had seven, out of the thirty-five directors of the
bank, and Jackson called on them to furnish a list
of loans, by which he showed that nearly every
member who had deserted him, had received loans
from the bank. Henry Clay had got round for
the bank, so also had Webster, who, in 1815, was
against it, but was now a leader, and for it. It
was a Whig measure. But Calhoun, who was the
author of the bank charter in 1817, had got round,
and was now declaring it palpably unconstitutional,



HISTORY OF THE NATIONAL BANK. 25

but still declared that Jackson had violated the Con
stitution in removing the deposits, and the opposi
tion to Jackson on that question was conducted by
Clay, Calhoun, and "Webster, in concert.

Jackson appealed to the people at the next State
elections on these questions, on the ground that the
bank was unconstitutional and corrupt, using money
to control elections and the people, and to buy up
their representatives. This was in 1834 and 1835.
The people responded, and returned a majority in
favor of Jackson and his policy; and the Senate,
there being a majority in both Houses in his favor,
expunged the resolutions against him.

The bank then again enlarged its discounts,
stimulated the prices of property, of stocks, and the
importation of goods, and the consequent means of
revenue, beyond any parallel known in the world.
The revenue was being piled up in the State banks
to an unparalleled extent. The banks, on the
strength of the surplus not used, increased dis
counts, which increased importations and revenue.
Speculations in the public lands raged in the same
ratio, until their sales ran up in 1836 to twenty-four
millions, as against the ordinary amount of three
millions all paid for in bank notes, which same
went into the bank again, and formed the basis of



26 HISTORY OF THE NATIONAL BANK.

additional discounts, thus aggravating the evil, until
Jackson discovered that unless that system could be
checked, the State banks and all the banks in the
country would necessarily be exploded, and the
whole become insolvent ; the Government thus
having its revenues piled up in them, which would
exist on their books, but not in fact. With a view
to check this, Jackson issued a circular, called
Specie Circular, authorizing all receivers of public
money to refuse any thing but gold or silver in pay
ment of duties, or for lands. Instantly speculation
was. checked, but every speculator became and was
the inveterate enemy of Jackson and of his party.

On the 4th of March, 1837, the charter of the
National Bank expired, but the State of Pennsyl
vania had, in the mean time, re-chartered it as a
State bank, and under its new organization it had
still increased its discounts. In May, 1837, the ex
plosion came. The United States banks and State
banks throughout the whole country suspended, be
ginning in New York and Pennsylvania, and fol
lowing in every city and town, as the news reached


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Online LibraryStephen Arnold DouglasA brief treatise upon constitutional and party questions and the history of political parties, as I received it orally from the late Senator Stephen A. Douglas → online text (page 1 of 11)