Part 38

"The second paragraph of the second section of fourth article of the Constitution shall be so construed that no State shall have the power to consider and determine what is treason, felony, or crime, in another State; but that a person charged in any State with treason, felony, or crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

I do not think discussion necessary upon such an amendment as this. It is well known to the Conference that great difficulties have been found to exist in carrying into effect this provision of the Constitution. So far as the slave States are concerned, it is a perfect nullity. Unless it is amended it may as well be stricken from the instrument. I believe the tenor of the decisions at the North has been to permit the executive upon whom the requisition is made, to determine whether the offence charged is a crime under the law of the State to which the person charged has fled. If it is a crime, the fugitive is delivered up. If not a crime in that sense, he is discharged. The decisions of the courts have been to the same effect; whenever the fugitive has been brought upon _habeas corpus_, the decision has been the same. It is obvious that under this construction of the Constitution no fugitive will be hereafter returned for an offence in which the question of slavery is involved. This is only one of the many evasions of the Constitution which have been practised in the free States. I deem the amendment very important.

Mr. BRONSON:--The gentleman from Kentucky is entirely mistaken in his statement of the decisions of the northern courts or northern governors. The decisions are uniform so far as I know, that where the offence charged is either a crime at common law, or under the statutes of the State from which the fugitive has fled, he has been delivered up.

Mr. CLAY:--Did not the Executive of New York refuse to deliver up a fugitive on the demand of the Governor of Virginia?

Mr. BRONSON:--In that case I think there was no evidence that the offence charged was a crime under the statutes of Virginia, and it certainly was not at common law.

The vote was taken upon Mr. CLAY'S amendment, and resulted as follows:

AYES.--Kentucky, Missouri, North Carolina, Tennessee, and Virginia--5.

NOES.--Connecticut, Delaware, Illinois, Indiana, Iowa, Maine, Massachusetts, Maryland, New Jersey, New York, New Hampshire, Ohio, Pennsylvania, Rhode Island, Vermont, and Kansas--16.

And the amendment was rejected.

And on motion, at two o'clock A.M., the Conference adjourned.

EIGHTEENTH DAY.

WASHINGTON, TUESDAY, _February 26th, 1861._

The Conference, pursuant to adjournment, was called to order at eleven o'clock.

Prayer was offered by Rev. Dr. GURLEY.

The PRESIDENT informed the Conference that in consequence of the length of the Journal of yesterday, the Secretary had not been able to write it out, and that it would be necessary to omit the reading thereof this morning.

Mr. McCURDY:--There was a vote taken in the confusion near the close of the session last evening, in which Connecticut, according to the minutes of the Secretary, appears to have voted in the negative. It was upon the amendment of Mr. ORTH, declaring that the slave should be free whenever his master had accepted payment for him. On that amendment the vote of Connecticut was Yea. As the vote is recorded Nay by mistake, I move to reconsider the vote by which the amendment was rejected.

Mr. BRONSON:--The motion to reconsider is not necessary. Connecticut can record her vote as she wishes to have it stand. It will not change the result.

The PRESIDENT:--I think the motion is in order, if made by Connecticut.

Mr. BATTELL:--I will move to reconsider. I voted with the majority.

Mr. MOREHEAD, of North Carolina:--No individual delegate can make such a motion. States vote here, not individuals. I submit that the motion is out of order, unless made by a majority of the delegation.

Mr. BALDWIN:--The question is not complicated at all; neither is the motion out of order. A majority of the delegation from Connecticut cast the vote of that State in favor of Mr. ORTH'S amendment. By mistake that vote was recorded against the amendment. The same majority whose vote is made to do them injustice by a mistake for which its members are not responsible, now moves to reconsider the vote.

The question was then taken upon Mr. McCURDY'S motion, and resulted as follows:

AYES.--Connecticut, Illinois, Indiana, Iowa, Maine, Massachusetts, New York, New Hampshire, Ohio, Vermont and Kansas--11.

NOES.--Delaware, Kentucky, Maryland, Missouri, New Jersey, North Carolina, Pennsylvania, Rhode Island, Tennessee, and Virginia--10.

And the motion prevailed, and the vote was reconsidered.

The PRESIDENT:--The question now recurs upon the amendment offered by Mr. ORTH. On this amendment the vote will be taken by States.

Mr. WHITE:--I consider this amendment as entirely unnecessary. The result which it seeks to attain is only the announcement of a well-understood provision of the common law. By the common law, if an action is brought for a trespass, and judgment recovered for that trespass, and the damages under that judgment paid, the property which is the subject of the action, and which may have originally been wrongfully taken, becomes transferred; the damages take the place of the property, the defendant has paid for his wrongful act, or, in other words, has paid for the property. The same principle applies to the case of the fugitive slave who is rescued from the custody of the law, when his owner has consented to accept payment for him. The legal right of the owner in the slave is satisfied by such payment; the money takes the place of the slave. But if this were not so, we ought not to encumber the Constitution with such provisions. Congress will undoubtedly make the proper provision both for the protection of the slave and his master. Congress will not permit payment to be made for a slave, and then suffer him to go back to bondage. This would be both unlawful and unjust. I can see no necessity for adopting the amendment.

Mr. ORTH:--I understand there is some difference of opinion between members of the Conference as to the effect of the phraseology of my amendment. I will change that phraseology, and make the amendment read as follows:

"And such fugitive, after the master has been paid therefor, shall be discharged from such service."

Mr. MOREHEAD, of Kentucky:--I am opposed to this amendment upon every ground. I would rather see some direct scheme of emancipation adopted and inserted in the Constitution. Adopt this amendment, and the result is inevitable. It would amount to emancipation upon the largest possible scale. Our slaves would escape, you would rescue and pay for them, and that would be the end of them. Why not leave it to Congress to pass the necessary laws upon this subject? The adoption of this amendment would destroy all hope that our labors would be acceptable to the South. I say again, we had better establish emancipation at once.

Mr. DENT:--If this amendment is to be adopted, I hope we shall at the same time reconsider the vote by which we rejected the amendment of the gentleman from North Carolina, requiring the payment by the county, city, or town wherein the slave is rescued from the custody of the law. This provision would make the General Government pay for the crimes of a few citizens in one section. In that case the General Government ought to own the negro. It has paid for him, and the property in him ought to be transferred.

Mr. WILMOT:--There is nothing in this. We do not wish to have the Government own the negro. It is bad enough to have individuals own slaves. We do not propose to turn the Government into an extensive slave owner.

But let me ask the gentleman seriously, who is to own the negro, in such a case, after he has been paid for? Certainly not the former owner, because his right is gone. This amendment only states a conclusion of law; the right of the owner being gone, the negro is free.

Mr. CHASE:--I think a single word will settle this. By the Constitution as it now stands, the escaped fugitive is not discharged from service or labor. The original section, as proposed, requires that the slave should be paid for, when he is rescued. Now, he might be rescued three or four times. Shall he be paid for as often? Do gentlemen claim that his owner shall receive compensation more than once? I cannot see why gentlemen interested in slavery should object to this amendment.

Mr. RIVES:--I think if gentlemen would look at this proposition seriously, there would be no difference of opinion among us. Such a proposition would foist into the Constitution a most injurious, pernicious, and troublesome doctrine. By the most ultra abolitionists of the free States the power of emancipating our slaves has been disclaimed. From the organization of the Government, no such right has been claimed by any respectable party or body of men. The question arose in the first Congress, I think, upon the petition of the Quakers of Pennsylvania. It was decided almost unanimously against the power, even when exercised by Congress. But there is no need of multiplying or citing precedents. From that time to this, no political party has claimed the power of emancipation. Such is the universal doctrine now.

The right to abolish slavery in the District of Columbia is now claimed by some. I think that is the doctrine of Mr. CHASE. But upon what argument is it founded? Simply this: That the States, by the act of cession, have surrendered this power to Congress. This is the only argument I have ever heard in favor of the right, even in the District.

But this amendment proposes a most comprehensive scheme of emancipation. It accomplishes emancipation in every one of the slave States. It amounts to forcible emancipation upon the principle of compensation.

The point has been well stated by gentlemen who have preceded me. Place this in the Constitution, and there is an end of returning fugitives. The very courts will act upon it. They will say that if any one will come forward and pay the value of a slave when arrested, all the requirements of the Constitution are satisfied, and he shall go free.

What is the object of our Conference? Why are we here? We are here to bury out of sight all the causes of our difference and trouble. And yet you propose to insert a new principle into our fundamental law, which, however you may look upon it, will be regarded at the South as totally inconsistent with our independence. Our people will not consent to it.

There is another view which I would suggest. This is eminently a matter of legislative regulation. If the slave is paid for, Congress will at once recognize the impropriety and injustice of permitting the owner to receive payment for, and also receive his slave. Congress may say with great propriety that the owner shall give a bond to return the money upon the restoration of his slave. I hope no principle will be implanted in the Constitution which will be more troublesome--more productive of difficulties than any which has heretofore been made the subject of discussion.

Mr. EWING:--If we do any thing of this kind, perhaps we had better say that if the owner accepts compensation for his slave, he shall execute a deed of manumission. This will make it a matter of consent on the part of the owner. Put the amendment in that form and I will vote for it.

Mr. COALTER:--This amendment would offer a most powerful inducement to our slaves to run away. It would be dangerous in the extreme. When a fugitive has been paid for, and thus emancipated, he can come back and settle by the side of his master. What effect would that have upon the rest of his slaves? Would they not attempt the same thing? It may be said that the States can pass laws which will prevent their return. But this power will not be exercised. I know many free negroes in the slave States who are respectable persons, who own property, and have their social and domestic ties. These examples are bad. A fugitive who has been set free is not a safe man to return and settle as a free negro among those who were his co-slaves.

Mr. BROCKENBROUGH:--By this amendment you are inaugurating a system of covert emancipation to which the South can never submit. We protest against its adoption. The argument upon which you seek to sustain it is a false one. How can the owner receive the full value of his rescued slave when he himself, as a citizen and tax-payer, pays a part of the price?

Mr. MOREHEAD, of North Carolina:--I move to amend this amendment by adding thereto these words:

"And the negro when thus emancipated shall not be permitted to leave the State in which the emancipation takes place."

We know from past experience what the abolitionists of the free States would do under such a provision as this in the Constitution. There will be an underground railroad line along every principal route of travel. There will be depots all along these lines. Canoes will be furnished to ferry negroes over the Potomac and Ohio. JOHN BROWN & CO. will stand ready to kill the master the very moment he crosses the line in pursuit of his slave. What officer at the North will dare to arrest the slave when JOHN BROWN pikes are stacked up in every little village? If arrested, there will be organizations formed to rescue him, and you may as well let the "nigger" go free at once. You are opening up the greatest scheme of emancipation ever devised.

Mr. BACKUS:--I move to amend the amendment proposed by Mr. ORTH by the substitution of the following:

"And the acceptance of such payment shall preclude the owner from further claim to said fugitive."

It is claimed that this is a scheme of emancipation. It is nothing of the sort. It is not intended that the owner shall be obliged to accept compensation for his slave. That is left optional with him. He may take it or not as he likes. The effect of accepting compensation would be just the same as if he sold his slave to the North. The gentleman from Virginia raises a curious objection; that the owner does not receive a full compensation because he pays a portion of it himself. Well, I suppose the owner would pay the one hundred and thirty-millionth part of the price! Does not the same objection lay against the payment of any tax whatever? It is asked, Does this payment transfer the legal title to the slave? Well, it probably goes to the party who pays for it. If the payment is made in a free State, where slavery is not tolerated, the title would not pass at all. I submit to our friends from the South, whether they wish to have the Government become a slave-trader, to set it up as a huckster of slaves in the shambles. My amendment imposes the responsibility upon Congress. I have no doubt Congress will legislate properly upon the subject.

Now let me say one word to gentlemen, friends of the South, in all kindness. I have appreciated your position, and it has influenced my action. I have not refused to give you any reasonable guarantees, and I shall not refuse them. But I submit to you, whether it is in good taste for you to declare that, if we do not yield all these little points to you, the Government is to be broken up; that that is the only alternative?

Mr. GUTHRIE:--I hope this amendment will be adopted. As a Southern man, I declare that it is acceptable to me. Let us adopt it, and end the matter. [Cries of "Agreed."]

Mr. JOHNSON, of Missouri:--I have a very serious objection to putting any bid in the Constitution to induce slaves to run away. I firmly believe that if this amendment should ever become a part of the Constitution, it would lead to the ultimate extinction of slavery. The State of Missouri is surrounded on three sides by free States. When one of our slaves escapes and crosses the border, he finds himself at once among a people, some of whom will vindicate his freedom with their lives. I am willing to leave this whole subject to Congress. Congress will not permit the owner to get his money, and also retain his slave. In the name of God I ask that no such provision may be put into the Constitution!

Mr. MOREHEAD:--I will agree to this. The difference between the two is as wide as the poles.

The vote was then taken upon the amendment as amended, and resulted as follows:

AYES.--Connecticut, Delaware, Illinois, Iowa, Kentucky, Maine, Massachusetts, Maryland, New Jersey, New York, North Carolina, New Hampshire, Ohio, Pennsylvania, Rhode Island, Tennessee, and Vermont--17.

NOES.--Indiana, Missouri, and Virginia--3.

So the amendment was agreed to.

Messrs. CLAY, of Kentucky, DENT and ROMAN, of Maryland, STEPHENS and TOTTEN, of Tennessee, dissented from the votes of their respective States.

Mr. BRONSON:--It is evident under the rules, as they now stand, that this debate is not to close within a month. I move to amend the rules as follows:

"Before reaching the final question on the plan to be submitted to Congress, no member shall be allowed to speak more than three minutes on any proposition."

Mr. SEDDON:--I rise to a question of order. I submit that the motion of the gentleman from New York is not in order.

Mr. GUTHRIE:--I move to lay the amendment on the table.

The motion of Mr. GUTHRIE prevailed without a division.

Mr. FIELD:--I move to add an additional section to the report, as follows:

SECTION 8. The Union of the States under the Constitution is indissoluble, and no State can secede from the Union, or nullify an act of Congress, or absolve its citizens from their paramount obligation of obedience to the Constitution and laws of the United States.

In offering this amendment as an additional section, I propose very briefly to state the reasons for its adoption. I shall not anticipate any of the objections that may be urged against it, for, as I understand the rule, I shall have the right to speak in reply. I will only state one or two arguments in favor of the article.

We have been discussing the means of removing the symptoms of the disease called secession. This amendment attacks the disease itself. The doctrines of CALHOUN, originated and advocated by him, have now been taken up by his followers, who are striking at the very foundation of our Government. The doctrine of the North is, that no State can secede from the Union. This amendment asserts that doctrine. Before we begin to amend, we ought to know whether we have any Constitution to amend. The people of my section wish to know whether we can compel obedience of a State, if every man in it undertakes to refuse obedience. They believe that power to exist in the Constitution now. If there is any doubt about it, they wish that power distinctly asserted.

Mr. EWING:--I move to lay the amendment on the table at present, without affecting the section of the report under consideration.

Mr. FIELD:--This motion is debatable.

Mr. FRELINGHUYSEN:--I submit that the motion of the gentleman from New York is not an amendment; that it is an addition, and may be laid on the table without affecting the remainder of the report.

Mr. BRONSON:--We have now gone through with the propositions, and are ready to take a final vote upon them. Mr. FIELD'S amendment is properly an addition, and relates entirely to other subjects. Laying that on the table does not carry the whole subject there.

The motion of Mr. EWING prevailed by the following vote: Ayes, 11; Noes, 10.[6]

[Footnote 6: I relied upon the Journal for the individual list of the votes. In this respect the Journal is defective, and does not give the names of the States voting. My minutes show that the vote was taken by States with the foregoing result.]

Messrs. MEREDITH, WILMOT, and CHASE dissented from the votes of their respective States.

Mr. FIELD:--I now offer it as an amendment to the 7th section.

Mr. BRONSON:--I rise to a point of order. My colleague has proposed this amendment as an additional section, and it has been laid upon the table. He now proposes to put the same thing in another place. That is certainly not in order.

Mr. FIELD:--I now offer it distinctly as an amendment to the 7th section, to avoid the quibbling by which a direct vote was avoided before. It may as well be understood that other than slave States have certain rights upon this floor, and that those rights will be asserted. I wish gentlemen to understand that I shall resist, as well as I may, every attempt to avoid or dodge this question.

The PRESIDENT:--In the opinion of the Chair it is not in order.

Mr. FIELD:--Then I offer one-half the amendment as follows: "The Union of the States, under the Constitution, is indissoluble."

Mr. WICKLIFFE:--Is it necessary to put this into the Constitution? Does not the gentleman think the Constitution prohibits secession now? If so, let him offer a resolution to that effect, and I will vote for it.

Mr. DENT:--I rise to a point of order. The amendment is not germane to the section.

The PRESIDENT:--That is entirely a matter of opinion. The Chair cannot rule out an amendment on that ground.

Mr. FIELD:--If gentlemen will give us a square vote on my proposition, I will not debate it.

Mr. GUTHRIE:--I believe every word that is stated in that proposition. It is all in the Constitution now; but the South thinks differently, and this is one of the great obstructions in our path. There is not a man here who does not believe that this provision is already in the Constitution. I hope, therefore, that we shall vote at once, and vote it down.

Mr. EWING:--The amendment proposed, implies the existence of the right of secession, under the present Constitution. I do not believe in that, and shall therefore vote against it.

Mr. FIELD:--I desire to obtain a clear vote upon this question, and not have it pass off upon any technical points. I will withdraw my amendment, and now move to amend the 7th section by striking out the whole of it, and inserting in its place the following:

"No State shall withdraw from the Union without the consent of all the States, given in a Convention of the States, convened in pursuance of an act passed by two-thirds of each House of Congress."

Mr. GOODRICH:--I do not quite like the language of the amendment, for it might seem to give the implication of a right to secede. I move the following as a substitute:

"And no State can secede from the Union, or nullify an act of Congress, or absolve its citizens from their paramount obligations of obedience to the Constitution and laws of the United States."

Mr. MOREHEAD, of North Carolina:--There is no objection on my part against the gentleman from New York taking any course he pleases, and as much time as he likes; but I should regret extremely to have this amendment adopted, and to have the Constitution made practically to assert a right of secession. I have denied that right always in my State, in public and in private. I am aware that on this point I differ from the general sentiment of the South, and I hold there is no right of secession, and on the part of the General Government no right of coercion. I claim that a State has no right to secede, because that right is not found in the Constitution, and the theory of the Constitution is against it.

The PRESIDENT:--I think the amendment of Mr. GOODRICH is not in order.

Mr. FIELD:--As suggested by a friend, I will modify my motion, and state it in this way, which certainly will avoid all these objections:

"It is declared to be the true intent and meaning of the present Constitution, that the Union of the States under it is indissoluble."