Part 51

That is the recital of the resolution of the Legislature of Virginia: "to afford to the people of the slaveholding States adequate guarantees for the security of their rights;" and there was a further provision, that, if those States should meet and agree upon any form of adjustment, it should be submitted to Congress. A number of the States--some twenty or twenty-one, it seems--some by their Legislatures, some by their Executives--met the invitation of Virginia, and deputed their commissioners to the conference in Washington, to see if they could agree upon a mode of adjustment. We have the report of that Conference before us now, presented through a committee of this body; and they propose an additional article to the Constitution. Mr. President, the honorable Senator from Kentucky, who has pronounced so deserved a eulogium upon that body, does not exceed me in the respect which I bear to it. If there be one more than another Senator upon whom it would devolve to treat the work of that Convention with peculiar respect, it would devolve upon me and my colleague, because they met at the invitation of my State. I yield to none in the respect which I bear to those gentlemen or to the purity of their motives in the results which they have attained in that Conference; but, sir, I am bound by my obligations to the Constitution, by my honor as a man, by my faith to my own State, to understand what they have done, and to exhibit it either in recommendation or disapproval, as my judgment may dictate. _Nullius addictus jurare in verba magistri._

I admit no authority to bind my judgment as a representative of one of the States of the Union. I yield my respect to what they have done; but I will scan it, and if, in my honest, unbiased judgment, I cannot recommend it as an amendment to the Constitution, I am bound to withhold that recommendation, and to give the reasons for it.

As I have said, sir, the State of Virginia, finding that Congress was at a loss for a mode of adjustment, invited the States to send commissioners here for this purpose:

"To agree upon something which would afford to the people of the slaveholding States adequate guarantees for the security of their rights."

Virginia knew that, under the Constitution as it was interpreted under the constituted authorities of the country as they have been elected, there was no security for their rights; and it was in the hope of obtaining such a security--Congress failing to agree upon it--that, at her invitation, these gentlemen from the different States met here in conference. I am to look, therefore, to their work, and to see if it affords that security for their rights; and if I am satisfied in my own judgment, as I honestly am--and the reasons for which I am now to announce to the world--that it not only affords no security for the rights of the South, but takes away what little they have, I should be a traitor if I would recommend it as an amendment to the Constitution of the United States.

Now, sir, let us look at it. It is presented as an entire article, to be the thirteenth article, if adopted, of the Constitution. The first section of it relates to the Territories--the great and difficult point of division between the two sections. If that could be overcome--if these rights that are spoken of in the resolutions of Virginia in the Territories could be guaranteed by adequate securities to the slaveholding States--I believe the rest of the path would be smooth. It embraces almost the whole controversy. What securities are provided in the Territories to the slaveholding States by this first section of the thirteenth article? It proposes to divide the present Territories--for it is confined to them--by an east and west line, a parallel of latitude. North of that line, there is a clear cut entirely, unsusceptible of misinterpretation. None can doubt what the condition of servitude is north of that line. It is a clear cut; it is prohibited, and prohibited forever. No interpretation can mistake it; no casuist can doubt upon it; it is a work well done. North of that line involuntary servitude, except for crime, is prohibited. How is it south? My honorable colleague, I think, has well said that, south of that line, for our rights, at best we are remitted to a lawsuit. I will read the language:

"Nor shall any law be passed by Congress or the Territorial Legislature to hinder or prevent the taking of such persons--"

That is, persons held to service--

"from any of the States of this Union to said Territories, nor to impair the rights arising from said relation."

Neither Congress nor the Territorial Legislature has power to interfere with the rights arising from the relation of master and servant, or master and slave. That is the meaning; that is clear. What next?

"But the same--"

The rights resulting from the relation of master and slave--

"shall be subject to judicial cognizance in the Federal courts, according to the course of the common law."

There is the security for the rights of the South. South of that line they are remitted to the courts under the common law. Now, sir, let us examine that. By this section, if it is adopted as an article of the Constitution, the common law, _eo nomine_, is made a part of the Constitution, so far as it affects the relations of master and slave. Now, what is the common law? Who is there upon this floor that will tell me what common law is meant by this section? With all my respect for the thorough knowledge and the legal acquirements of the honorable Senator from Kentucky, I know he cannot tell me what common law is meant by that first section. We know, as jurists, what is meant by the term common law, for it is a technical term. The common law is the law of England, the unwritten law of England, the _lex non scripta_. That is the common law in its legal acceptation. Is it, then, the law of England that is made a part of the Constitution, and to which the master is remitted for the security of his rights between him and his servant? Will any gentleman tell me that it is the common law of England that is to be made a part of the Constitution to which we are to be remitted? If it is the common law of England, is it the common law of England as it stands at this day, on the first of March, 1861?

Mr. CRITTENDEN:--If my friend will allow me, I take it that that term applies only to the remedies known to the common law. The laws of the Territories are to be enforced, and the remedies under them are to be administered according to common law. The master is to have his rights according to the law of the Territory, and to secure those rights according to the common law.

Mr. MASON:--The language of the section is, that neither Congress nor the Territorial Legislature shall interfere to impair the rights arising from this relation of master and slave; "but the same"--that is, this relation between master and slave--"shall be subject to judicial cognizance in the Federal courts, according to the course of the common law."

Now, the honorable Senator says that means only the remedy of the common law; that you are to take the law of the Territory, whatever it may be, and administer that, by confining it to the remedies known to the common law. I deny the interpretation. The Senator may be right, or I may be right. I say the text does not warrant the interpretation. The text refers to the rights in the relation of master and slave, and says they (those rights) shall be the subject of judicial cognizance, according to the course of common law. Now, I ask, what is the common law that is thus made a part of the Constitution for the subject to which it refers? Is it the law of England? There is no common law, that I am aware of, known to jurists as the law of England. There is no law in the State of Virginia, and, I presume, none in the State of Kentucky, known as common law. The State of Virginia, when it became independent as a colony of Great Britain, adopted and made its own that which before had been the common law of England, and therefore the common law of the colony. The State of Virginia (and I instance that only because I am familiar with it), when it became independent, adopted as its law the common law of England, as that common law stood at the commencement of the fourth year of James I.; and thereby, by statute, made that which had been the common law, the law of Virginia. Now, it is the law of Virginia, not because it is the common law, but because statutes made it the law of Virginia. But is the common law of Virginia, if you will call it by that name, the common law of Kentucky; or is the common law of Kentucky the common law of Missouri; or is the law of those three States, or any other State, now the common law of England? I demand to know, therefore, when we make the common law a part of the Constitution, if this enactment should prevail, what is meant by the common law? To that vague, grand residuum of judicial legislation we are to be remitted for our rights between master and slave, if this is enacted.

Now, sir, suppose it were so: my colleague has well said (and I will not repeat it after him, for I should only weaken it), that there is not one judicial interpreter or expounder of the common law, in any one of the free States, in reference to the relation of master and slave, that does not deny that the master has any property in his slave, at this day and this hour. Why, sir, what is the pending controversy between the State of Ohio, one of the free States, and the State of Kentucky, one of the slave States--a controversy depending here recently in the Supreme Court? The Governor of Kentucky demanded, under the Constitution, the rendition of a fugitive from justice, who had abducted a slave from Kentucky, and carried him into Ohio. The Governor of Ohio refused the demand, upon the ground that there could be no stealing of a man; that there could be no property in man; and that the slave, being a man, was not a subject of theft, of larceny; and he refused, and refuses up to this day, under the common law, to recognize the existence of property in man.

Now, take the common law of England at this day: here, within the last three or four weeks, the Queen's Bench, in England, has declared as the common law, that if a slave murders his master, or murders the agent of his master, in the attempt to recapture him, he is justified. That is the common law to which we are to be remitted for the rights resulting from the relations of master and slave. Sir, I have looked back a little to see what the common law was in England in this famous Somerset case, I find this in the argument of the counsel there, expounding the common law, which was afterwards sustained by Lord MANSFIELD in his decision:

"But it has been said by great authorities, though slavery, in its full extent, be incompatible with the natural rights of mankind, and the principles of good government, yet a moderate servitude may be tolerated, nay, sometimes must be maintained."

And again:

"There is now, at last, an attempt, and the first yet known, to introduce it [slavery] into England. Long and uninterrupted usage, from the origin of the common law, stands to oppose its revival."

And again:

"A new species has never arisen till now; for had it, remedies and powers there, would have been at law; therefore, the most violent presumption against it, is the silence of the laws, were there nothing more. It is very doubtful whether the laws of England will permit a man to bind himself by contract to serve for life; certainly will not suffer him to invest another man with despotism, nor prevent his own right to dispose of property."

And again:

"There are very few instances, few, indeed, of decisions as to slaves in this country. Two in Charles II., where it was adjudged trover would lie. Chamberlayne and Perrin, William III., trover brought for taking a negro slave; adjudged it would not lie. 4th Ann., action of trover; judgment by default. On arrest of judgment, resolved that trover would not lie. Such the determinations in all but two cases; and those the earliest, and disallowed by the subsequent decisions. Lord HOLT: 'As soon as a slave enters England he becomes free.'"

In the opinion of the court, of Lord MANSFIELD, as to these principles of common law, that very distinguished and able judge, who made the law, as I understand, for the occasion, but certainly ruled it as the common law, says this:

"The state of slavery is of such a nature that it is incapable of being introduced for any reasons, moral or political; but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It's so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England."

I need not go back to authority. We have it abundantly in our own country, in all the free States, so far as I know, without exception. They deny what the amendment of my honorable friend from Kentucky affirms. They deny that there is property in a slave. The amendment of the Senator affirms there is property in a slave. This section is silent, ominously silent, portentously and potentially silent. It is not only silent, Mr. President, but when it refers you to that code of law which is to protect the right of the master to the slave, it refers you to the common law, and the common law to be expounded by the Federal courts, and the common law, which is judicially and historically known to the whole country, to be expounded in all the free States as one that denies that very property which we say must be secured. That is our position under this section. Sir, the State of Virginia has said that we must have adequate guarantees; and I am asked here to vote away what little guarantees we have. I am asked, almost in the high ethics or morals of revealed religion, when my adversary takes away my cloak, that I shall give him my coat also. I am required to do that by this section. We believe that our rights are secured under the present Constitution; we know that they have been withheld by the political party which has now come into power; we believe that they are insecure unless there are further and adequate guarantees; but, so far from their being proposed by the section before us, in my judgment, what little we have is taken away. Sir, I cannot vote for these propositions. I regret it. I was prepared, whether it had the approval of my judgment or not, to follow the instructions of my State, and to vote for the amendment offered by the honorable Senator from Kentucky after it had been modified, as was required by the resolutions of my State.

The amendment of the Senator from Kentucky was so modified, I do not know whether at the instance of Virginia or not; but it was modified by a vote of this Senate, so as to embrace what was required in the resolutions of Virginia. I am not at liberty to recommend, or, in the language of the Constitution, to propose to the States this section of the thirteenth article; because it not only withholds, but denies by withholding, any security, far less that security which the State of Virginia requires.

There are further provisions in this proposition that are objectionable, one of which was pointed out by my colleague: that which calls upon Congress to legislate on that clause of the Constitution which secures to the citizens of one State all the privileges and immunities of citizens of the several States. I need not say that any legislation on that subject by Congress would be any thing but the messenger of peace to which the honorable Senator from Kentucky looks. Why, sir, it has been found indispensable in slaveholding States, as a part of their police regulations, to punish all persons who were either of the State or otherwise, who tamper with the slaves, who have intercourse with them that is forbidden by law, far more those who preach to them sedition, or insurrection, or revolt; and yet, if we were to be controlled within the body of the State by Federal relations in our interior police, we should be completely at the mercy of the free States.

Mr. President, I should have been certainly gratified, if my honored State of Virginia had been successful in the mediation which she invited of all the States, with a view to agree upon an adjustment which would guaranty the rights of the South. I deeply deplore, and I doubt not my State will deplore, that that mediation has not been effected. So far from impugning any motives or purpose of that honorable and distinguished body, I doubt not that, in the short time that was allowed to them, they got together the best mode of adjustment which would satisfy their judgment, but which I am sure will not satisfy the judgment of the Southern States, but would place them in still greater peril, if they were to admit that to become a part of the Constitution. I did not intend to do more than state my objections to it as briefly as I could. I have done so temperately and without heat, I regret that I cannot, as one Senator, propose this as an amendment to the Constitution.

Mr. CRITTENDEN:--I wish only to reply for a single moment to the material objection urged by the Senator from Virginia. The portion of the article to which the Senator from Virginia objects, declares that the _status_ of persons bound to service and labor shall remain unchanged; that neither Congress nor the Territorial Legislature shall pass any law affecting the relation, or the rights growing out of the relation between master and servant--I do not pretend to recite the exact words; but that is the exact idea--well knowing that, according to the laws of the Territory, the _status_ of slavery was fully established, and all the rights of the master in and to his servant established, as they exist in the State of Missouri, or the State of Virginia, by positive law of the Territory. It is therefore equivalent to saying that that law shall stand, when it says that the _status_ shall continue unchanged. It then goes on to say (which I admit was altogether unnecessary) that the remedy for the violation of the rights of the master, whatever they might be, shall be had in the Federal courts, and according to the course of the common law. Now, sir, what right does this take away from any slaveholder? That law which secured and gave him a right, is declared to be unchangeable. That law acknowledges his property in any sense in which you please to take it, or in any sense in which it is applicable. It acknowledges it, and gives legal remedies for the violation of it; and in addition to all that, and, as I admit, by a sort of pleonasm of expression, it says that he shall have his remedy in the Federal court, according to the course of the common law.

Mr. MASON:--Will the Senator allow me a moment?

Mr. CRITTENDEN:--Certainly.

Mr. MASON:--With the permission of the Senator I will put this proposition to him: He says that the meaning of the language, "according to the course of the common law," is confined to the remedy. Now, admitting that to be the case, for the sake of the argument, suppose, in one of these Territories, a slave is purloined, seduced, got away; the slave of A gets into the possession of B, and he is there at work for him upon his farm, or in his house, and A brings an action of trover to recover him; that is an action known to the common law; and the decision of the Federal court is, that trover lies only to recover property, and a slave is not property: what is the remedy? That is the decision in England; and I presume it would be the decision in the free States, if the suit were brought.

Mr. CRITTENDEN:--It was to avoid going into definitions of that sort that this language was employed in the amendments of the Convention. They saw and had before them the law of New Mexico, which did acknowledge the existence of this right as fully as it is acknowledged by the law of Virginia. However it may be disputed here, however legal opinions may differ about it, the law of New Mexico established property in slaves; and there the law stands; and the Convention now comes and says that _status_ shall remain unchanged.

Mr. BRAGG:--Oh, no.

Mr. CRITTENDEN:--That is the resolution.

Mr. BRAGG:--Will the honorable Senator allow me a word, for I am very anxious to understand it?

Mr. CRITTENDEN:--Certainly.

Mr. BRAGG:--The Senator says it provides that that law, the law of New Mexico, whatever it may be, shall remain unchanged, if I understand him, and that that fixes the _status_ of slavery in the Territory. I call the attention of the Senator to the language. I think that only fixes the _status_ of persons now in the Territory, and not those to be carried there hereafter--not the _status_ of slavery, but the _status_ of persons who are there now, held to service or labor, and not the _status_ of those who are to be carried there in future. That is provided for in the language which it follows in another part.

Mr. CRITTENDEN:--Here it is, sir:

"In all the present territory south of that line"--

Which I have explained, and which gentlemen admit to be embraced in the Territory of New Mexico--

"the _status_ of persons held to involuntary service or labor, as it now exists."

It is not as to such slaves as are now there, but such slavery as now exists.

Mr. BRAGG:--If it said that, I admit that it would cover the _status_ of slavery.

Mr. CRITTENDEN:--It does say that. It seems to me that is the only construction that can be given to the language. It could not be intended to confine it to the twenty-six slaves that are now held there, especially when they provided, in a subsequent article, that it shall be lawful for any one to carry slaves there.

Mr. BRAGG:--Will the honorable Senator again allow me to interrupt him?

Mr. CRITTENDEN:--Certainly.

Mr. BRAGG:--I have not the slightest doubt that a great many who voted for the proposition consider it as the Senator does. I have equally as little doubt that others intended it to mean precisely what I have stated. I cannot see, for my life, while they were framing a constitutional provision, why they did not place this matter beyond any sort of doubt. If they intended to recognize slavery, they could have said so in one word. If they intended not to recognize it, they could have said it in another word. If they intended to mystify and leave in doubt, then they have been very successful in accomplishing their purpose.