A Report of the Debates and Proceedings in the Secret Sessions of the Conference Part 70

Mr. SEWARD:--The honorable Senator may very naturally and very properly take the ground that he would not vote, and that Congress ought not to vote, for submitting this proposition to the people, for the reason a.s.signed in the paper before us. I have not any disposition to quarrel with him about it. I might take the same view, and say that I would not submit to the people a proposition which was futile, which was frivolous. That is not what I was speaking to. What I was speaking to was, the character of this proposition; and this is a proposition just to this effect, logically and technically expressed: that whereas these commissioners appointed by the States have met, consulted, considered, and adopted that resolution, therefore, for that reason, independent of every thing else, Congress submits it to the States.

Mr. PUGH:--I want to make an appeal to the friends of some proposition of peace. This is the last day of the session but one, and we have not made the progress of one line. We have gone into an eternal discussion about questions of order, and that, too, in defiance of the rule of the Senate. I insist that the question shall be decided without further debate.

The PRESIDING OFFICER (Mr. FITCH):--It is not for the Chair to decide any question of propriety, except as an individual Senator. As Presiding Officer, he does not deem the question of order, made by the Senator from Vermont, to be well taken. The joint resolution differs in no respect from other resolutions, and is open to amendment, and is before the Senate, as in Committee of the Whole, for that purpose. The question is on agreeing to the amendment which has been offered by the Senator from Virginia.

Mr. HUNTER:--Mr. President, I have offered this amendment, as the first of a series which I shall offer, for the purpose of carrying out the will of my State, as it has been expressed through its Legislature; and I might say there are other Senators similarly situated, for there are other States which have declared a disposition to settle upon the basis of what are called the CRITTENDEN resolutions. That is the first reason which prompts me; and to me it is imperative, because the Legislature of the State which I have the honor in part to represent, has declared that this is the basis upon which it would settle, and intimated that it would not take less than they propose by way of security for the South. I have also another reason. I have examined this proposition of the Peace Conference--

Mr. WADE:--Will the Senator let us hear it read? We do not understand what his proposition is.

Mr. HUNTER:--My proposition is the first article from the CRITTENDEN amendments, in regard to the territorial adjustment.

Mr. WADE:--We understand that.

Mr. HUNTER:--After as careful an examination as I have been able to give this proposition from the Peace Conference since it was printed, that is to say, within the last day or two, I have come to the conclusion that it would not only make a great many more difficulties than it would remove, if it should be adopted as an amendment to the Const.i.tution, but that it would place the South--the slaveholding States--in a far worse position than they now occupy under the present Const.i.tution, with the Dred Scott decision as its exposition.

Mr. CLARK:--Will the Senator from Virginia allow me to make a suggestion?

Mr. HUNTER:--Certainly.

Mr. CLARK:--I understand him to say he proposes to offer the several propositions of the CRITTENDEN amendment one after the other.

Mr. HUNTER:--Yes, sir.

Mr. CLARK:--Then I suggest, as that is the intention of the Senator, that unanimous consent be given to move them as one amendment, so that we may have them all up for discussion, if any one chooses to discuss them, at the same time.

Mr. HUNTER:--I have no objection to that, if it is the general wish. I was saying, Mr. President, when I was interrupted, that after as careful an examination as I was able to give this peace proposition, since it was printed, I came to the conclusion that it would put the southern States in a far worse position than they now occupy under the present Const.i.tution, and with the Dred Scott decision. Under that Const.i.tution, and with the Dred Scott decision, they had a right, as the court has decided, to carry their slaves into any Territory of the United States. That is a right which has been adjudicated to them by a solemn decision of the Supreme Court; and it is to be remembered that this right has not only been accorded to them by the decision of the court, but by the action of the several branches of the Federal Government. That is their present state of things under the present Const.i.tution of the United States with regard to the territorial question. In what position, then, does this proposed territorial adjustment place them? Why, sir, it excludes them; it puts the WILMOT proviso on all territory north of 36 30'; and south of 36 30' it gives them the privilege of another lawsuit, in order to try their right and t.i.tle to enter the territory with their slaves. What are the words of this proposed amendment of the Const.i.tution?

"In all the present territory south of that line, the _status_ of persons hold to involuntary service or labor, as it now exists, shall not be changed; nor shall any law be pa.s.sed by Congress or the Territorial Legislature to hinder or prevent the taking of such persons from any of the States of this Union to said territory, nor to impair the rights arising from said relation; but the same shall be subject to judicial cognizance in the Federal courts, according to the course of the common law."

"In all the present territory south of that line, the _status_ of persons held to involuntary servitude or labor, as it now exists, shall not be changed." What is the meaning of that word "_status_"?

What is the _status_? The word _status_ may be applied to different things; there may be a local _status_ or a political _status_. In some countries a slave may hold property, and, in a certain form, sue; in others, he cannot. Or it may be the social and legal relation, that of the slave to his master, which const.i.tutes the _status_ that is referred to; and I presume it is that which it is declared shall not be changed. But, sir, shall not be changed by whom? By Congress? It does not say so. By the Territorial Legislature? It does not say so in terms. Does it mean that it shall not be changed by Congress or by the government of the Territory? Does it mean that it shall not be changed at all by anybody? Does it mean the master shall not emanc.i.p.ate him if he chooses? Is it an absolute prohibition of any change of the _status_ of the slave, of any sort or description?

These are the terms which we are obliged to resort to in order to escape from the manly declaration of the CRITTENDEN resolution, that south of that line slavery shall be recognized and protected. It was eminently proper, as we excluded them north of it, that our inst.i.tutions should be recognized and protected south of that line.

That, sir, was plain English; that everybody could understand; but here we are interpolating law Latin into the Const.i.tution; this word "_status_" is introduced; and who is to determine what the _status_ was? I thought it had been considered a march forward, a step of progress, an evidence of improvement in English legislation, when it abandoned Norman French and law Latin, and resorted to the mother tongue; and especially it should be so, when we are making const.i.tutions for American people of English descent, and who speak the English tongue. A const.i.tution is for the millions, and the millions should be able to understand it.

But, Mr. President, let us proceed a little further. This whole matter is to be subject to judicial cognizance in the Federal courts, according to the course of common law. That embraces the right of the master to his slave as a matter of cognizance under the common law before the courts; because what do they mean by the _status_ of all persons held to involuntary servitude or labor? They mean rightfully held. They do not mean if a man is kidnapped and held illegally to involuntary service or labor that he is always to be so held. It means that the _status_ of persons who are rightfully and legally held shall not be changed; and who is to determine that? The courts are to determine it according to the common law. That is to be determined by judges who are to be appointed from a party, and by a party who believe that there cannot be property in man; by a party who believe that, in the Somerset case, Lord MANSFIELD has laid down the common law properly; by a party who will probably believe that the decision of the English courts, in regard to the slave ANDERSON, that it was no murder for a slave when escaping to kill his master, was a correct exposition of the common law.

How, then, do we stand? Why, sir, in relation to our right to slaves, we have to try that right before judges who are thus appointed, and appointed from a party who we know entertain these opinions. Why, sir, you might poll that party through the whole United States, and I would venture any thing upon the a.s.sertion that you cannot get one in a hundred thousand who would not deny that there could be property in man, especially under the common law. We thus lose the advantage of the Dred Scott decision. According to the Dred Scott decision, we can carry them into the territory of the United States and hold them, and it is decided that there is property in slaves--decided under the Const.i.tution. The court maintain that the Const.i.tution recognizes it.

It is upon const.i.tutional ground that we have made our claims, and so far, it is upon this that we have fought and won the battle, not upon common law; and now we are to abandon the advantages that we have got from that ground of t.i.tle under the Dred Scott decision, and go into court and try a case that has been already decided in our favor; and under the common law, try it before judges who are to be selected by a party entertaining such opinions as I have just described; and I am sorry to say, without appeal to the Supreme Court; because, in the territorial bills which have been lately pa.s.sed, that right has been taken from us. My friend from North Carolina will be kind enough to read an article in the Chicago platform, showing what is held on that subject by those who wield the power of this Government.

Mr. CLINGMAN read, as follows:

Eighth. "That the normal condition of all the territory of the United States is that of freedom; that as our republican fathers, when they had abolished slavery in all our national territory, ordained that 'no person should be deprived of life, liberty, or property, without due process of law,' it becomes our duty, by legislation, whenever such legislation is necessary, to maintain this provision of the Const.i.tution against all attempts to violate it; and we deny the authority of Congress, of a Territorial Legislature, or of any individuals, to give legal existence to slavery in any Territory of the United States."

Mr. HUNTER:--Thus much, Mr. President, in regard to the _status_; and it is to be observed that the same word is used in reference to persons who are now held to involuntary servitude in the Territories and to those whom we are to have the right to take into the Territories from the States recognizing slavery. So that we submit this question of our right to slaves, when it reaches the Territories, to be tried under the common law, by courts appointed by the party entertaining the opinions I have described, and that without appeal.

This is in regard to the Territories which we now own. What is the settlement provided for in regard to territory hereafter to be acquired? Here it is, in the third section:

SECTION 3. Neither the Const.i.tution, nor any amendment thereof, shall be construed to give Congress power to regulate, abolish, or control, within any State, the relation established or recognized by the laws thereof touching persons held to labor or involuntary service therein, nor to interfere with or abolish involuntary service in the District of Columbia without the consent of Maryland, and without the consent of the owners, or making the owners who do not consent just compensation; nor the power to interfere with or prohibit Representatives and others from bringing with them, to the District of Columbia, retaining and taking away, persons so held to labor or service; nor the power to interfere with or abolish involuntary service in places under the exclusive jurisdiction of the United States within those States and Territories where the same is established or recognized.

That is, they shall not prohibit it as to future acquired territory, where it is established or recognized. Will not the inference be claimed from such an expression, that where it is not established and not recognized, they may prohibit it? Will it not be said that the expression of one exception to the power of Congress to prohibit slavery in the Territories excludes the idea of an exception to that power when slavery is not recognized in the Territories?

Mr. COLLAMER:--If the gentleman will indulge me a moment, I desire to say that is a section declaring that Congress shall not abolish slavery in the dock-yards, &c., in the States where it is recognized.

There is nothing in it about future acquired territory.

Mr. HUNTER:--This third section applies not only to present but to future acquired territory. It is not confined, like the first section, to the territory at present acquired. It is not confined to dock-yards and a.r.s.enals in the Territories and States. If the Senator will examine it, he will find that it is applied to all places where the United States have exclusive jurisdiction. "Exclusive jurisdiction" is the word. Will it not be claimed that they have exclusive jurisdiction in the Territories of the United States? Will not those who have the power to construe, and carry out their construction, so construe it?

Will they not say it is a prohibition to Congress to prohibit slavery where it is recognized in the Territories or States, but not a denial of the right to prohibit slavery in Territories where it is not recognized by law, although that Territory may be vacant and uninhabited?

Mr. COLLAMER:--That clause of the section is, that Congress shall not have power--

"To interfere with or abolish involuntary service in places under the exclusive jurisdiction of the United States within those States and Territories where the same is established or recognized."

That, so far as I have read, is confined only to where they have local jurisdiction in the States holding slaves.

Mr. HUNTER:--I thought so at first myself; but the Senator will find, on a further examination, I think, that he is mistaken. They shall not prohibit it wherever they have exclusive jurisdiction in places where slavery "is established or recognized." It is not confined to dock-yards, forts, and a.r.s.enals. Why should it be in the Territories?

They have exclusive jurisdiction over the whole. There is reason for confining it to dock-yards in the States; but there is no reason for confining it to dock-yards, &c., in the Territories. But that is not the construction which will be given; the construction given to it will be, that they shall not prohibit it where they have exclusive jurisdiction, if it is recognized in such places; but if it be not recognized in such places, where they have exclusive jurisdiction, I say the inference will be drawn, plausibly, if not justly, that they shall have power to prohibit; and I say if this be so, then it is a power (so far as Mexican territories are concerned, if there should be any acquisition there) by which the South will be forever estopped; because there the Mexicans have abolished slavery, and there, under this clause giving in that territory exclusive jurisdiction, the party now controlling the Government would claim the right to prohibit it.

And what a difference between our position then and our position now under the decision of the Supreme Court! Under the decision of that court, all the people of all the States have a right to go into the common territory with their inst.i.tutions. It belongs to all in common, and Congress cannot prohibit them from taking their property there.

I say that those who have the power to carry out any construction they choose to give, would be interested in putting upon it the construction which I fear; and it would be difficult to raise an argument which they would deem conclusive against it. But take it the other way; suppose that the Senator from Vermont is right in his first supposition, that it was only meant to be applied to forts, a.r.s.enals, and dock-yards, then I ask what settlement does this proposition give us in regard to future acquired territories; what earthly settlement is it? We have all the old difficulties to encounter that we have to meet now, every one of them. We not only have all the old difficulties to encounter, but the slaveholder would have an additional obstacle which this first clause would put in his way. It requires that the right to slaves in the present territory shall be tried by the common law, and it might be said in court that the inferences drawn heretofore from those provisions of the Const.i.tution recognizing slavery were to be overruled by the fact that the people in their latest action--by way of const.i.tutional amendment--had introduced another rule in order to determine the _status_ of those held to involuntary service or labor, and the consequence of that would be that the South never could acquire another foot of territory; that is, the few southern States who are left in the Union.

I am told that here is a provision that you cannot acquire territory except by the a.s.sent of a majority of the Senators from both sections.

Does any man believe that the North, with its eighteen, soon to be twenty, or thirty, non-slaveholding States, would allow a majority of six, or seven, or eight slave States, that are now attached to them, to prevent them from acquiring any territory hereafter? Would they agree to such an amendment, in the first instance; and if they did, how long before they would change this restriction in the Const.i.tution? Indeed, it is hardly to be supposed that they will agree to it in the first instance, so far as it regards the acquisition of territory; but of what avail would it be to the South? There is but one conceivable acquisition--I speak of possible things, and I hope gentlemen will not understand me as coveting my neighbor's goods, or desiring to lay violent hands on the property of any other States or nations--but, if things should so happen that we could rightfully acquire Cuba, under my view of the probable construction to be given to this clause, and because slavery there is recognized, Congress might be prevented from prohibiting it; but, everywhere else, the South would be shut out and excluded.

Then, sir, what would be its position? It would be prevented from acquiring any territory under this Government as an outlet for its slaves; and the only chance of securing that necessity of its condition would be to quit this Union and join the Southern Confederacy, which can acquire territory. It would be an inducement to disunion so strong as would almost force them to it.

Let us go a little further. Here is another clause holding out the same temptation:

"The foreign slave-trade is hereby forever prohibited, and it shall be the _duty_ of Congress to pa.s.s laws to prevent the importation of slaves, coolies, or persons held to service or labor, into the United States and the Territories from places beyond the limits thereof."

This is to be the duty of Congress. As it now stands, it is in the power of Congress. When it was merely given as a power to Congress, was there a failure to execute that power? Do we not know that every State in the present Confederation has desired to suppress the African slave-trade? Some do it from sentiment and principle; some from interest; but there is a controlling motive with each and all of them.

It is safe enough to leave it where it stood, giving Congress the power merely. Here you make it their duty. Suppose this case: the States that have left us have set up another Government, another Confederation; under this clause you forbid us to buy their slaves, to interchange and trade in slaves with them: what will be the consequence? They will exclude us from selling our slaves in their territory, and where then do we stand? If you should think it prudent, if you should think it politic, you would have no means, under this proposed amendment, of allowing that to be done between these two coterminous countries. Though it would be to the advantage of both Confederacies that there should be this interchange, you preclude Congress from allowing it; and then where would that place the border slave States? They would not be able to sell their slaves in the States further South; and if they carried them there, they would have to emigrate with them. You would thus prevent Congress from adopting a regulation which would make it possible for them to remain in this Union with safety, with advantage, to themselves. Why was this put in?

Why not have left it where it stood, giving Congress the power, when we all know that there is no State in the present Confederation that would not exercise that power for the purpose of suppressing the slave-trade from Africa? This probably would const.i.tute the only exception. Why shut ourselves out from allowing the exception?

But, Mr. President, my desire is to be brief; I do not want to consume the time of the Senate; I am merely endeavoring to state the points of objection as briefly as I can. Here is, at the close of it, another provision which, it seems to me, contains the seeds of civil war; and that is this: "Congress shall provide by law for securing to the citizens of each State the privileges and immunities of citizens in the several States;" that is to say, Congress shall have power to pa.s.s laws to force the States to receive those persons whom they have excluded from police considerations--considerations of domestic safety. Yes, sir, to force the States to receive persons who would be dangerous to their peace; to force upon them, if you will, abolition lecturers; to force upon them persons whom they regard as the most dangerous emissaries that could be sent among them; to enable Congress to obtrude, in fact, into all the business of the States. That was not intended when the Const.i.tution was framed, and never ought to have been. The present provision in regard to the rights of citizens in the several States, I regard as in the nature of an inter-treaty stipulation. It is a duty imposed on each State, for the violation of which there is no remedy; no remedy, unless the State aggrieved may resort sometimes to retaliation.

There are various things of that sort in the Const.i.tution. Duties imposed upon the States, but without a remedy for the failure to execute them. No State shall keep a standing army; but suppose it does: what are you to do? Congress cannot remedy it; and it would not be right to give Congress the power to remedy it. You have to trust something to the sense of right and duty of the States themselves; and so it should be in regard to this matter of citizens. Suppose one State should say that the citizens of another should not sue in its courts; how is Congress to enforce their right? Is Congress to say they shall be allowed to sue, and that the Sheriffs and officers of the State shall execute the process? Is it proposed to allow Congress, by law, to interpose in all these delicate matters? Is it not far better to leave it to the sense of justice of the States--to their sense of duty and of honor? Have we not got along very well while we left it there? If there be any instances in which there have been exceptions, they are instances in which persons have been excluded on account of police considerations, deemed to be dangerous to the safety of the people who excluded them. Is it proposed so to amend the Const.i.tution as to take from the people of the States this right of self-defence?

If we once introduced this as an amendment to the Const.i.tution, what would become of the feeble southern States, six or seven (for Delaware can hardly be considered as a slave State), that would be left?

Arkansas may conclude to secede when she shall determine finally upon her position in the Union. What would become of us in the hands of this powerful majority, who would pa.s.s what laws they pleased in regard to the introduction of their citizens among us, and the rights of those citizens to do as they pleased after they got there? Is it not obvious that these various changes would lead to endless discontents, to irreparable breaches between these States? Would you not certainly drive out the Border States? They would say, "If we go south, we ally ourselves to a h.o.m.ogeneous people; we shall have none of these difficulties; we have no reason to fear their citizens; we can grant all these privileges without the least difficulty or danger; we can send our slaves south from a country where they are not profitable, to one where they are; but if we stay here, we are forbidden to do any of these things; if we stay here, we are prevented from ever obtaining any outlet for our slave property." Will you not offer them the highest inducements, nay, will you not make it almost necessary for them to leave you, if you should adopt such a proposition as this?

Nor is that all, Mr. President. Our present Const.i.tution--for I am comparing our position under it with that in which this would place us--in most of its difficult provisions has been expounded--expounded by the action of the State Governments, by the action of all the departments of the Federal Government. We have had legal interpretations in the decisions of the State and Federal courts. We have come almost to a point--indeed, I, who believe that the Dred Scott decision is law, think we have come to a point--where we have a legal exposition on the whole of these matters. Are we to be turned aside from that, to wander into a new sea of doubt and difficulty and ambiguity? No candid man can take this up and say it is not full of double constructions, full of ambiguities, giving ground for new quarrels between the sections, to new constructions of courts, to new lawsuits.

Mr. COLLAMER:--And to be perpetual.

Mr. HUNTER:--Yes, sir; and to be made perpetual. We cannot change them afterwards, if we want to do it. I can conceive nothing that would endanger what is left of this Union so much as the adoption of this proposition, although it has been produced by persons so eminent and so respectable as those who composed the Peace Congress.

I know that this measure does emanate from a body eminently patriotic and wise, ent.i.tled to the public deference and affection; and for their work I feel all possible respect. Against that work I will p.r.o.nounce nothing except what the necessities of the occasion may require. But when the peace, the safety, the rights of the State which I seek to represent--when the peace of the whole country, as it seems to me, would be so seriously imperilled as it would be if this were adopted, I feel bound by a sense of what I owe to those who sent me here, bound by a sense of what I owe to those who have some respect for my opinions, to express them here on this occasion, and to give briefly the points and the heads upon which I differ from the conclusions of that Congress. Indeed, sir, before taking my seat, I may suggest a doubt whether I am in truth acting against any thing which they have really done. I was informed by a member of that Congress that they never did take a vote upon this proposed article, as a whole.

Mr. DOOLITTLE:--If the Senator will allow me, I beg leave to state that I was informed of the same fact by a distinguished member of the Convention; and I was further informed that the person who claims to be the secretary of the Convention was never elected as such. And there is another fact stated in the preamble that I know is not correctly stated: that the State of Wisconsin was in that Convention, or took any part in it. How many more mistakes there are in the preamble, I am unable to say.