As Rep. Alexander Stephens appeared to be wrapping up his August 7, 1848 speech explaining why he had opposed the Clayton Compromise bill, a fellow southerner – Rep. Frederick Perry Stanton, Democrat of Tennessee – interrupted him with a question. Stanton had voted against Stephens's motion to table the bill, and clearly believed that the Constitution carried slavery with it into the territories. Does “the Constitution of the United States,” Rep. Stanton asked, “not recognize slavery”? In effect, Stanton was demanding to know whether Stephens was renouncing the Calhounian position that the territories were the common property of all the states, privileging slaveholders to take their constitutionally recognized property there if they chose.
Little Aleck held his ground and pulled no punches. Yes, the Constitution recognized and guaranteed slavery – in the Fugitive Slave Clause for example – but the establishment of slavery depended on local law. Where local law authorized slavery, the Constitution recognized it. Where local law barred the institution, however, the Constitution did not overrule:
Yes, sir, the Constitution recognizes slavery, but only where it is not prohibited by the laws of the State, or place, or for the purpose of protecting it. The Constitution recognizes slavery in Tennessee and Georgia, and in all the States where slavery exists by law; but it does not recognize it in New York or Ohio, or in any State, except so far as it provides for the recapture of runaway slaves. The Constitution recognizes and guaranties slavery wherever it exists by the local law, but it establishes it nowhere where it is prohibited by law.
The Compromise bill, Stephens maintained, was worse than the Wilmot Proviso, which at least had the advantage of discriminating openly. If, as Rep. Stanton suggested, the Constitution itself carried slavery into the territories, then the Compromise gave the South no rights it did not already have. If, on the other hand, Stephens was correct, the Compromise bill would have barred the South from the territories forever:
The rights of the South are not only endangered, but totally abandoned in this compromise. Its passage would have been worse for the South than the Wilmot proviso in express terms; for, if the principles upon which its southern friends advocate it be true – that is, if by the Constitution the southern slaveholder has a right to carry and hold his slaves in these Territories, notwithstanding the existing municipal law of Mexico by which slavery is abolished there, then, of course, the same right would exist, even if the Wilmot proviso were passed; and the proviso, if passed, being in contravention of this constitutional right, of course the Supreme Court would be bound to decide it null and void. So that the compromise secures no rights to the South which they would not have even under the Wilmot proviso itself.
But, on the other hand, if the Supreme Court should, under the compromise bill, decide against the slaveholder, on the ground that the existing laws of Mexico, at the time of the conquest, were in force there until altered by some competent authority, then, sir, we should be bound by it forever; for we could not come and ask Congress to alter the law against the compromise, even although the court might say that Congress had the power either directly to alter it, or to allow the Territorial Legislature to do it; for we all understand that a compromise is a final settlement, and all parties are bound in honor to abide by it.
Based upon his analysis, Stephens argued that it was he, not his southern critics, who was the true defender of southern rights:
Then, sir, what are we of the South to gain by this compromise? Nothing but what we would have, even with the Wilmot proviso - the poor privilege of carrying our slaves into a country where the first thing to be encountered is the certain prospect of an expensive lawsuit which may cost more than any slave is worth; and, in my opinion, with the absolute certainty of ultimate defeat in the end, and with no law in the mean time to protect our rights of property in any way whatever! This, sir, is the substance of the compromise, even in the most favorable view it can be presented! And this is the security for the South which I had the temerity to reject!
Would that the people of that section may ever have men upon this floor of such temerity! I did reject it; and I shall continue to reject all such favors. If I can get no better compromise, I shall certainly never take any at all. As long as I have a seat here, I shall maintain the just and equal rights of my section upon this as well as upon all other questions. I ask nothing more, and I shall take nothing less. All I demand is common right and common justice; these I will have in clear and express terms, or I will have nothing.
I speak to the North, irrespective of parties. I recognize no party association or affiliation upon this subject. If the two parties at the North combine, and make a sectional issue, and by their numerical strength vote down the South, and deny us those equal rights to which I think we are in justice entitled, it will be for the people of the South then to adopt such a course as they deem proper.
After expressing these Calhounian sentiments, Stephens backed off a bit. He did not object to compromise, he emphasized, provided it was express and just:
I have no objection to compromising the question, but I have only two plans of compromise: one is, a fair division of the territory by clear and distinct lines, by which every one may know exactly to what extent his right will be protected. I care not much whether it be by an extension of the Missouri line, or whether it be by adopting as a line one side of the mountain ranges, giving the South all on this side and the North all on the other. I am, however, rather in favor of the latter; but shall insist upon some fair and just division.
Stephens' other compromise suggestion, intended no doubt to provoke Stanton and his Democratic colleagues, harked back to the Whig "no territory" position held during the Mexican War:
That is one plan of compromise I shall favor, and if I cannot get that, I have but one other to offer, and that is, to reject the territory altogether. Let us keep our money which is to be paid for it, and let Mexico keep her provinces and her people.