A Report of the Debates and Proceedings in the Secret Sessions of the Conference Part 83

SEC. VII. Congress shall provide by law, that the United States shall pay to the owner the full value of his fugitive from labor in all cases where the marshal, or other officer, whose duty it was to arrest such fugitive, was prevented from so doing by violence or intimidation from mobs or riotous a.s.semblies, or when after arrest such fugitive was rescued by like violence or intimidation, and the owner thereby deprived of the same; and the acceptance of such payment shall preclude the owner from further claim to such fugitive. Congress shall provide by law for securing to citizens of each State the privileges and immunities of citizens in the several States.

YEAS.--Delaware, Illinois, Indiana, Kentucky, Maryland, New Jersey, New Hamps.h.i.+re, Ohio, Pennsylvania, Rhode Island, Tennessee, and Virginia--12.

NAYS.--Connecticut, Iowa, Maine, North Carolina, Missouri, and Vermont--7.

DIVIDED.--New York.

NOT VOTING.--Ma.s.sachusetts.

When the question was first taken on the first section, it was lost by a vote of eleven States against it to eight in its favor, a majority of your Commissioners casting the vote of New York against it. A motion was immediately made to reconsider, which was advocated by Mr.

Granger, one of the Commissioners from New York, and was carried by a vote of fourteen States for, to five against it--a majority of the Commissioners from New York again casting its vote in the negative, and the Convention adjourned. On the next day it again came up on its final pa.s.sage, and was then carried by a vote of nine States for, to eight against it--the vote of New York not being given. Why it was not given is left by the Commissioners to be stated by Mr. Field, on his own responsibility. (_See note_, p. 596.)

The vote of New York was not given upon any of the sections except the fifth, for the reason already stated; but upon that section we all voted Aye, as all her Commissioners then present were in its favor.

After the several votes had been taken, it was objected that the whole article should be put to a vote upon the question of its final adoption before it could be regarded as properly pa.s.sed, but the President of the Convention decided that this was not necessary, and no such vote was taken. At the close of the discussion on this subject your Commissioners were prepared to cast the vote against the entire article, if any question had been taken upon it as a whole, as a majority of your Commissioners think it should have been.

Soon after the adoption of these proposed amendments to the Const.i.tution, and after voting down and laying on the table various propositions made by a minority in the interest of freedom and the free States, the Convention adjourned--having adopted an address to Congress requesting that body to submit the amendment, to Conventions of the several States, for ratification, according to the Const.i.tution of the United States; and they were accordingly communicated to Congress on the same day. In the Senate, they were referred to a committee, and were recommended for adoption by a majority of that committee; but Messrs. Seward and Trumbull, a minority of the committee, reported against the amendments, and in favor of a National Convention; thus following out and approving the proposition which had been made in the Convention by your Commissioners, and the entire minority of that party, nearly three weeks before, and for which the majority which controlled it, if it had chosen to do so, could at any time have obtained an unanimous vote. The amendment of the Convention, however, failed to secure the approval of either branch of Congress.

The labors of your Commissioners having thus terminated, it is due to those whom they represented, and to themselves, that the majority should state briefly the reasons why the proposed amendments to the Const.i.tution did not meet their approbation.

_First._--In their judgment, no amendment of that sacred instrument in the interest, and for the purpose of the extension and perpetuation of the slave power--an interest which has wielded the whole political power of the United States during almost the entire existence of the Government--was either expedient or necessary. They preferred it should remain and continue just as it came from the hands of our revolutionary fathers; a Const.i.tution establis.h.i.+ng freedom and not slavery.

_Second._--The Convention would scarcely listen to, much less adopt, any amendment in the interest of freedom or of free labor, or of the rights of citizens of the free States; the only one of that character--that in relation to securing to the citizens of each State the privileges and immunities of citizens of the several States--having been voted down as a direct proposition when offered by Mr. Wilmot, and only adopted in an indirect way at the end of the section requiring payment to be made by Congress for rescued slaves.

In like manner the absolute right of secession in every State as inherent under the Const.i.tution of the United States was claimed to exist by members of the Convention from the slave States, accompanied by a denial of any right in the General Government to coerce obedience to it, or to enforce the laws for the collection of revenue. And although all the delegates from the slave States did not take this ground, yet in several instances a majority of the delegates from several of them did so, and the States themselves generally voted against all propositions to the contrary. The article proposed by your Commissioners denying the right of nullification and secession was defeated in accordance with these views; so that in effect slave States, and such of the free States as voted with them, would not consent so to amend the Const.i.tution as to deny the right of nullification and secession, even if all the guarantees demanded by the slave interest were accorded to it. In addition, many of the delegates from the slave States declared that it was the fixed determination of those States to stand by the States that had seceded from the Union, and to aid them in resisting it, even if such guarantees were given; and that they would resist any attempts to coerce them, or to enforce the revenue, or any other laws within their limits, without their consent. In other words, they claimed a right to remain in the Union under the Const.i.tution, with its new guarantees of slavery, and yet to obstruct the operations of the Government, to prevent the execution of the laws, and to aid those who were in open rebellion against, and had made war upon it. Under these circ.u.mstances your Commissioners did not deem it consistent with justice, or the respect due to their own State, to give their a.s.sent to any of the proposed amendments, except that prohibiting the slave-trade--and even that, in their opinion, was unnecessary, as no enlightened legislative body would dare to propose to reestablish that infamous traffic.

_Third._--By the first section of the proposed amendments, slavery is _const.i.tutionally_ established in all of the territory south of the line of 36 30', and all control over it by Congress or the territorial legislatures is absolutely taken away during its territorial condition. In effect, there is to be no law for slavery, its permanency and existence being provided for, except the will of the master and the present odious slave code of New Mexico. These are fastened upon every inch of the soil of that immense region, beyond even the power of the people to remove them, however much they may desire to do so, prior to the formation of a State government. Slavery must therefore be the normal condition of the territory, while the State is in the process of formation and organization; and the inevitable result must be, that free labor and free inst.i.tutions will be excluded, and no free State formed within its limits. As the territory was free from the blight of slavery when acquired, your Commissioners could not a.s.sent to its being changed into slave soil by an amendment to the Const.i.tution of the United States.

_Fourth._--The second section of the proposed amendments gives to the slave States an absolute negative upon the acquisition of free territory in every possible mode by which it can be acquired; and in giving reciprocally the same right to free States as to acquiring slave territory, also fetters the operations of the General Government both in peace and war, depriving it to some extent of the exercise of perfect sovereignty, and at the same time sanctioning, and perpetuating in the organic law, an odious discrimination in favor of an inst.i.tution peculiar to the slave States, and at variance with the humane principles of the age. The free States do not need any such veto power in their favor, and the slave States would not demand it except to maintain and preserve for slavery a balance of power hitherto claimed, and to some extent exercised by them, for which they secure by this amendment a const.i.tutional perpetuation. No well-founded objection seems to exist in regard to the acquisition of free territory, unless it be that it is obtained in order to convert it into slave soil; and your Commissioners could not consent to give to a single interest, that of slavery, a negative upon such acquisitions. They have always regarded slavery as a local inst.i.tution, depending solely upon the laws of the States in which it was permitted for its existence; and they did not deem it expedient or just to recognize it as, or elevate it to, the rank of a positive governmental power, by clothing it with the right to interrupt one of the ordinary and most essential functions of the Government. Slavery, except as a limited basis of representation, has now no political power or authority under the Const.i.tution; the wise and good men who framed that instrument cautiously withheld it in all other respects; and your Commissioners find in the history of the aggressions of the slave interest, only additional reasons for confining it within its original limits.

_Fifth._--To so much of the third article as declares that the Const.i.tution nor any amendment of it, shall be so construed as to give Congress the power to regulate, abolish, or control slavery within any State, there was no objection, as it has never been seriously claimed that any such power was given; but this provision is connected with so many objectionable, not to say odious ones, that your Commissioners felt themselves bound to vote against it. These surrender all the power of Congress over the District of Columbia, and over other places within its exclusive jurisdiction, in respect of slavery and its ultimate extinction, however much the people of the United States in the progress of civilization and humanity may desire it; and by the sixth section this provision is made unalterable without the consent of all the States. The influences produced by the existence of slavery at the National Capital, upon public men and public measures, are well known; and while they may be tolerated, as they have been, without any desire to exercise the power of eradicating the cause of the evil, still a sound policy requires that the power should not be abandoned.

Connected with this surrender of a well-defined and necessary power, are other provisions in regard to the transit of slaves through the free States; in effect, permitting the carrying on of the internal slave-trade through these States, unless they pa.s.s laws forbidding it.

This trade through the free States is not made dependent upon the consent of the States, but is made lawful without dissent; and the result is, that if this amendment shall be adopted, every free State will find it necessary to legislate for its exclusion, or to permit and regulate the transit by its own laws. These laws would be deemed odious by the slave States, and would produce dissatisfaction and irritation. Besides, in most of the free States, the normal legal condition of every person is that of freedom; this const.i.tutional provision would at once change the local law of the State, and operate as a positive recognition of slavery in the absence of any new enactment. Thus, every free State would find itself compelled to adopt a slave code, more or less extensive in its character, regulating or excluding the inter-state slave-trade. Taking this in connection with the fourth section, authorizing the States to legislate upon the subject of fugitive slaves, and by their judicial and ministerial officers to enforce their delivery, contrary to the decision of the Supreme Court of the United States, which declares all such interference on the part of the States unconst.i.tutional, it is apparent that the legislatures of all the free States would be beset by hordes of persons in the interest of the slave power for the pa.s.sage of laws protecting slavery within their limits. No means, however impure, would be omitted to obtain them; and it is easy to see that a slave code upon the subject of transit of fugitives, more or less stringent in its character, would soon find its way into every statute book. When the States now free abolished slavery within their own limits, they intended to get rid of the evil entirely, not only in practice but as a necessity of legislation; these provisions compel a return to it, and involve the adoption of new laws for its regulation or exclusion.

_Seventh._ [Transcriber's Note: should be "Sixth"]--The sixth section makes most of the amendments which give a const.i.tutional protection to slavery, unalterable without the consent of all the States. It also includes the second section of the fourth article, which provides that "representatives and direct taxes shall be apportioned among the several States according to their respective members," including three-fifths of all slaves, &c.; and that portion of the fourth article which requires the delivering up of fugitive slaves. Thus, a preference is given to the slave interest over every other; these may all be affected by a const.i.tutional amendment, ratified or adopted by three-fourths of the States; but the slave clauses are to remain, except by universal consent, fixed and immovable. No such protection is given to freedom; none to the property of free men, unless it be what is called property in slaves; none to the freedom of the press; none to the religion of the citizen, or to the rights of conscience.

These rights, more sacred than any other, are deemed of less importance, and are secured by less guarantees than the right to hold a fellow man in bondage and to traffic in his flesh. Moreover, the three-fifth representation of slaves, and only the same rate of direct taxation, are perpetual by the same rigid provision. This not only gives to the slave States a representation of three-fifths of their slave property, but it secures to them an exemption from taxation on the same property to the extent of two-fifths. But no property whatever, in the free States const.i.tutes a basis of representation, and all of it is liable to, and may be taxed. Unequal and unjust as was this discrimination in favor of the slave States, still as it formed a part of the original Const.i.tution, it should be maintained; but when it is sought to extend it to new States, and to make it unchangeable without the consent of all the States, the attempt should be resisted by every freeman. There are other property interests more important than that of slavery, but none of them have been so arrogant as to claim such exclusive privileges and perpetuation.

_Finally._--Other objections of a grave character might be stated, but it is not deemed necessary. The great purpose of the Convention was to amend the Const.i.tution of the United States, so as to recognize and protect slaves as property. As a direct proposition this was negatived, but the same end was sought to be attained by indirect means, and its friends exulted in having accomplished it. Such is the obvious effect of these amendments. If adopted, slaves must everywhere in the Union be regarded as property, and ent.i.tled to the same legal protection as other property. The necessary result will be, that all State laws forbidding the bringing of slaves within their limits, will be void, the sovereignty of the States in that respect will be destroyed, and the National Const.i.tution will recognize and protect property in man.

We do not believe that the people of the State of New York will, under any pressure of circ.u.mstances, however grave, recognize a claim so repugnant to humanity, so hostile to freedom.

We commend to your honorable body the careful consideration of these proposed const.i.tutional amendments. We believe that they will, if adopted, engraft upon our Const.i.tution the odious doctrine of property in man; that they will extend slavery over a vast domain once free; that they will change the whole spirit and character of our organic law, making that to protect and foster slavery which was intended to establish freedom; making that irrevocable and perpetual which the framers of the instrument intended should be temporary.

DAVID DUDLEY FIELD, WM. CURTIS NOYES, JOHN A. KING, JAMES S. WADSWORTH, A.B. JAMES, JAMES C. SMITH.

NOTE OF MR. FIELD.

The following statement shows why the vote of New York was not given upon the first question taken in the Peace Convention, on the twenty-seventh of February. The Journal represents the vote as divided. _It was not divided._ The vote was ordered to be cast, _and should have been cast_ in the negative.

On Tuesday, the day preceding, a message came to me from the clerk of the Supreme Court of the United States, that the Court was waiting for me in a case which had stood upon the docket since December, 1859, and was now for the first time reached in its order. The case was of great importance, for upon its result depended the closing or reopening of a litigation which I had conducted for nineteen years, which had embraced in its different forms more than eighty suits, and in the course of which the Courts of the State and of the United States had come into direct conflict. All the tribunals of the State of New York, where the question had been raised, had decided against my clients.

The Supreme Court of the United States, by a majority of two, had once decided in their favor.

The present case was to determine whether the Court would adhere to its former decision. The stake of my clients was therefore immense, and I was their only counsel.

The case being called after my arrival in Court, the Chief Justice observed that, as it was too late to begin that day, the argument would proceed first the next morning, at eleven o'clock, unless the Attorney-General should claim precedence in another case. Then, thinking that the Convention would close its business during the day, I hastened back, and the question being soon taken, I cast the vote of the State against the proposition before the Convention, and it was rejected by 11 to 8.

A reconsideration was moved and carried, and an adjournment taken to half-past seven in the evening. At that hour I returned to the Convention, but to my disappointment, and in spite of my efforts, it adjourned to the next morning at ten o'clock, a majority of my a.s.sociates voting for the adjournment.

The next morning I endeavored to procure a meeting of the delegation before ten o'clock, that I might obtain a formal instruction to the Chairman in my absence to cast a vote of the State against the proposed amendments. Not being able, however, to obtain the earlier attendance of all the members, I waited till they appeared in the hall of the Convention, and there, shortly before eleven o'clock, I called them together, and, all being present, a resolution, in contemplation of my absence, was moved and carried, that "the Chairman declare that New York voted No on each section." Thereupon requesting Mr. King to act as temporary Chairman in my absence, and when New York was called to cast the vote in the negative, pursuant to the resolution, I left the hall and drove to the Capitol as rapidly as possible, that I might be present at the opening of the Court.

Was it reasonable, nay, was it possible, that I should do otherwise?

It is known to be a rule of the Supreme Court not to postpone an argument for other engagements of counsel. If neither counsel is present, the case goes to the foot of the docket, to be reached again only after two or three years; if one of the counsel only appears, he makes an oral argument, and a printed brief is submitted on the other side. In my view, it would have been trifling with the rights of my clients either to submit their case on a printed brief or to postpone it for two years. I had no one to send to the Court in my place. To despatch a letter with an excuse was a liberty I did not feel justified in taking, and if taken, it might fail of its object, as the Court, when informed of the circ.u.mstances, must have believed that no member of the delegation would take advantage of my absence if he could, and that he could not if he would, since the vote had been already determined in a meeting of the delegation, and that determination could not be reconsidered or changed without the desertion to the minority of one of the majority.

But whatever might be the opinion of others, my duty appeared to myself extremely plain. There was nothing to be done in the Convention but the merely ministerial duty of declaring what had already been determined, which duty could certainly be performed by another as well as myself, while, on the other hand, no one but myself could act in Court for my clients. It is true that some of my a.s.sociates expressed to me their apprehension that the minority might appeal to the Convention, and that the Convention might arbitrarily overrule the delegation; but I answered them as I repeat now, that neither the minority of the delegation nor the Convention itself had any right to interpose. We were not asking a favor, but exercising a right. Whether a person not present could vote was not the question. Persons did not vote except on unimportant questions and by general consent. States voted; the vote of each State was delivered by its Chairman, who collected the voices of his delegation and announced the result. There was nothing in the reason of the thing, nothing in any rule or usage of the Convention, which required the voices of the delegation to be collected at the instant of announcing the result. They might be collected one minute beforehand, or, as in the present instance, ten minutes, or twice ten minutes. All that could be required was, that each member should give his own judgment upon the particular proposition, and the sum of these judgments it was the sole province of the Chairman to make known. There could be no occasion for their standing by his side while he performed this duty unless he needed their support or they feared his weakness.

I have said that there was no rule of the Convention which ordered the matter otherwise; on the contrary, the rule as to the mode of voting--the 18th--was as follows:

"18. MODE OF VOTING: All votes shall be taken by States, and each State to give one vote. The yeas and nays of the members shall not be taken, or published--only the decision by States."

On the twenty-first of February, Mr. Dent, of Maryland, moved the adoption of the following rule:

"When the vote on any question is taken by States, any Commissioner dissenting from the vote of his State may have his dissent entered on the journal."

Mr. Chase, of Ohio, offered the following as a subst.i.tute for Mr.

Dent's rule.

"The yeas and nays of the Commissioners of each State, upon any question, shall be entered upon the Journal, when it is desired by any Commissioner; and the vote of each State shall be determined by the majority of Commissioners present from each State."

Mr. Chase's subst.i.tute was rejected, and Mr. Dent's rule adopted.

The usage of the Convention may be understood by a single example. The Maine delegation consisted of her two Senators and six members of the House of Representatives. One member only attended for the greater part of the Convention, and cast the vote of the State. Indeed it was a frequent practice for members to absent themselves and leave their a.s.sociates to act for them.

The State of New York had, moreover, decided for herself in what manner her Commissioners should speak for her, by declaring in the joint resolution of the Senate and a.s.sembly that they should cast their "votes to be determined by a majority of their number," not the majority of those who should happen to be present at a particular instant on the floor of the Convention, but a majority of the whole number. Suppose, upon a question being put, the delegation had met for consultation, and by a formal resolution determined that the vote of the State be No; then, instructing their Chairman to cast the vote accordingly, had separated, and all but the Chairman retired from the hall, could he thereupon have changed the vote to Aye, because he disagreed with the majority and alone remained on the floor? Or could the Convention have refused this vote of the State? And if not, how is that question different from the one here?

It was, therefore, I must think with good reason, a.s.sumed by me when I left the hall, that if the question should be put in my absence, which by the way I considered uncertain, as the debate then going on might last for hours, and I hoped still to find some means of deferring my argument to the next day, I might certainly depend on the vote of New York being declared again as it had been declared before, never doubting for a moment the ability and the will of my a.s.sociates to defend against all opposition the rights of the State, their own rights, and mine.

On my arrival at the Court I did not succeed in my desire to defer my argument to the next day; but had I done so, it would have made no difference, as the vote in the Convention must have been called before I reached the Capitol.

What occurred in my absence I can only know from report. Five different statements are given: one by Mr. King in a published letter, another by the secretary of the delegation in the minutes kept by him, the third by the chairman of the Ma.s.sachusetts delegation, who had the best opportunity to observe what was pa.s.sing, the fourth by the secretary in a correspondence with me, and the fifth in the published Journal of the Convention.

Mr. King's statement of what occurred in my absence is as follows:

"The vote on the amendment soon followed, and before New York was called I asked my colleagues what vote should be given, and the reply was that in the absence of Mr. Field the vote was divided. Nevertheless, I stated the case to the Convention, and asked permission to cast the vote as before.

This was objected to by one of the Commissioners of the minority, and permission having been refused by the Convention, by direction of my colleagues when the State was called I answered that the vote was divided."

The other statements are subjoined, and numbered, 1, 2, 3, 4, and 5.

From a comparison of these statements it appears.