Part 52

Mr. CRITTENDEN:--"In all the present territory south of that line, the _status_ of persons held to involuntary service or labor, as it now exists;" not as they now exist; not in respect to those that are there now; but part of the same sort of slavery which now exists, shall continue to exist unchanged until the Territory becomes a State; and in the mean time persons shall be admitted to go into that Territory and carry their slaves with them. Now, I submit it to my honorable friend if it is not entirely improbable that any such construction as he suggests can prevail before any court that seeks to attain the real intention of the parties who made this proposition? It is such slavery as now exists. Persons held to that service--you may carry as many there as you please. Put them both together, and they would read so; and they being in the same instrument, can there be a doubt that ought to alarm us here, that the construction will be given to it which I place upon it, that it was intended not to be confined merely to persons now there and held to servitude, but as well to those who might be carried there hereafter? This is all I will say in reference to that; and I submit it to the candor and the judgment of my honorable friend from North Carolina, in which I have entire confidence, whatever result he may come to, that if we put the two propositions together, all doubt would seem to be removed.

Now, sir, my friend from Virginia will argue this question as if the question of slavery was to be decided according to the course of the common law, and then refers us to the express declarations and decisions as though the common law decided that slavery could not exist. What sort of construction would that make of this provision? Here they have provided that the law establishing slavery shall exist, that the property of the master in him shall be recognized as it is there established by law; and then the gentleman supposes that to be exactly contradictory, to refer to the common law as furnishing the rule of decision, which common law says there can be no property, as he interprets it, in man, and that when trover was brought for a slave--

Mr. MASON:--Not as I interpret it, but as interpreted in England.

Mr. CRITTENDEN:--I know that. He says it may be so interpreted; that when trover was brought for a slave in England, the judges decided there was no property in man. Could the same judges, sitting in a court in New Mexico, have given that decision when the law there established such property? In such a case, their decision must be different. They are referring, according to him, to two contradictory rules: one establishing slavery and acknowledging property in the master, and the other the common law denouncing and deciding against the right of property in man. This could not have been their intention, nor can this be the construction. We cannot consider these gentlemen to have changed their opinion from one sentence to another, to have left an incongruity and a contradiction expressed upon the face of the same section.

Nor, sir, do they refer--and that is my answer to my friend from Virginia--to the common law as furnishing the rule of decision at all. The proceedings shall be according to the course of the common law; that is all. If any violation is done to the rights of the master, he may sue; and, for his greater security, he may sue in the Federal courts; and, for greater security still, the law shall be administered according to the course of the common law. The common law is referred to as determining the mode of trial. We say according to the course of the civil law, and we say according to the course of the common law. What do we mean? We mean this marked and characteristic and essential difference: the course of the civil law is for the judge, without the intervention of a jury, to decide facts as well as the law. The common law takes away from the judge the power of deciding the facts, and demands a trial by jury. What this convention mean, therefore, by this provision is, that trial shall be by jury, according to the course of the common law. That is the explanation of the difficulty, and thus all doubt is removed. By these plain provisions--plain in themselves, and made plainer still by being taken with the context--they say you shall have your rule of right, according to the law of the Territory, which is in your favor as to the right to hold persons as property; that law shall be your security; you shall have a remedy for any violation of that right in the Federal courts, and you shall have that remedy, not according to the course of the civil law, in which the judge is to decide, who might be against you, but in which a jury shall be called to decide the fact according to the course of the common law. That is the whole of it.

Mr. MASON:--Mr. President--

Mr. POLK:--If the Senator will allow me, before the Senator from Kentucky sits down, I will ask him if the Mexican law establishes slavery, or if it does any thing more than to protect the right of the master to his slave? If that is the only establishment of it, then it is established by implication merely.

Mr. CRITTENDEN:--I really do not know whether the gentleman would consider it as establishing or merely protecting. I do not know that there is a law in any State of the Union that _eo nomine_ establishes slavery; I do not know.

Mr. POLK:--The object of the inquiry was this: it has been contended heretofore that, by the law of Mexico, there could be no slavery there; and then there is another law of New Mexico professing to protect the right of property. I have never seen that New Mexican law.

Mr. CRITTENDEN:--I believe I have answered the gentleman as far as my information extends. I have examined that law. It is as strong in favor of the master as the laws of Kentucky or Missouri. I believe it is the law of Mississippi transcribed literally, _verbatim_. That is my understanding. The law is as complete on the subject as the law of any State that I know of.

Mr. MASON:--Mr. President, if the Senator from Kentucky is right, and, in the interpretation of this section, the courts are necessarily to consider the expression, "according to the course of the common law," to which slaveholders are referred for the enforcing of the relation of master and slave, as referring only to common law remedies, then I am at no loss to conceive, after our experience of judicial interpretation against slavery, by what sort of artificial and sophistic reasoning those judges of the Federal courts may feel themselves bound to withhold the remedy. Why, sir, are we to shut our ears and our eyes against experience passing before us every day? What is the present Constitution? The second section of the fourth article is in these words:

"A person charged in any State with treason, felony, or other 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."

That is the text of the Constitution. What is the interpretation in the free States? In the State of Kentucky an African is property, under their laws and usages, and has been so for two hundred years; for it was so when it was a part of Virginia; and did it ever enter into the mind of man to conceive that this plain text of the Constitution would be resisted, upon the ground that property in man was not acknowledged? And yet it is done. If I am not mistaken, the honorable Senator from New York [Mr. SEWARD], not now in his seat, when Governor of New York, made that very question with the Governor of Virginia; and seeing this, are we to be willingly blind to this as the actual, judicial, and executive interpretation in every thing that affects the question of slavery as it stands in that section, and that, too, while we are seeking equality? Sir, it never entered into the mind of man, at the time this Constitution was formed, to credit that the time could ever come in the relations of these States when a man who fled from the State of Kentucky because he had stolen a negro into the State of Ohio, was screened from the operation of the Constitution, because in Ohio they do not deem a negro to be the subject of property; and yet that is the fact, the very issue now depending between those States; and we are asked to be blind, willingly blind, to all that experience at the very time we are attempting to secure a guarantee for violated rights!

Now, I said, Mr. President, that, if I were to tax my ingenuity, I might find a mode, even if the honorable Senator is right in ascribing to this clause of the section the necessary interpretation that it refers to remedies only. The Senator says the previous part of the section establishes the relation, as he construes it, not directly like the resolution of the honorable Senator which we offer here as an amendment, which establishes directly that there is property in slaves. This does not; but designedly avoids it; not from any improper motive--I do not ascribe that--but it is not only silent, but it avoids the very question. I suppose the honorable Senator is right in saying this language, judicial cognizance, according to the course of the common law, refers only to the remedy. Now, I tax my ingenuity to know how a court, in one of the free States, always leaning, of course, against slavery, would reason out that proposition, whether the remedy could be applied. Suppose an action of trover is brought. The inquiry would be, what is the remedy? We are told this is the remedy for which you are to apply to the law. A remedy is nothing in the world but a redress for wrong. Before you can apply the remedy, therefore, you must ascertain whether a wrong has been committed for which the remedy is adequate. Well, it comes from one side: the wrong was in taking the negro from the possession of the owner, against the local law of the Territory. The answer would be, "that may be true as far as the local law of the Territory is concerned; but here the Constitution adopts the common law as part of its text, and points the judges to the common law, and it applies the remedy." Now, the remedy is redress of the wrong, and we are bound to see that the wrong is one to which the remedy is applicable. The remedy is to recover property in the possession of one who is not entitled to it, and the common law, which applies that remedy to that wrong, says there is no wrong inflicted by taking the negro from the possession of his owner. It comes to that. It is suggested to me by the honorable Senator from Vermont [Mr. COLLAMER], that the common law, as a remedy, is one applicable to a common-law wrong. I do not say that the reasoning is just; I do not say that it is juridical; but I say, in our experience, we should be willingly blind if we take that for a security which will only be a snare.

Mr. PUGH:--Mr. President, it is very well known to the Senate that I prefer the proposition of the Senator from Kentucky, as a matter of individual choice, to the proposition which is proposed by the Peace Conference. Nevertheless, that Conference having been authorized, if not by Congress, at all events, so far as my State is concerned, by the act of her Legislature; and an overwhelming majority of the commissioners having agreed to this proposition as it stands, I shall hesitate very much in departing from it, whatever might be my individual opinion; but certainly if I thought the two Senators from Virginia had given it a correct interpretation, I should not agree to it. Now, as to this clause, it, in my judgment, had better have been omitted:

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

I suggest that the common law is referred to as fixing a right simply. The course of the common law is a phrase defined for more than two hundred years, in Latin, in English, and in Norman French. It means the formula of proceeding. I understood the Senator from Virginia [Mr. MASON] to say that it had been decided in several of the courts that an action of trover could not be brought for a negro slave in England. I think I am familiar with the case. It is reported in Salkeld's Reports, Lord Raymond's Reports, and in the Modern Reports--the same case reported three times; but the same court which decided that trover would not lie, because trover included the idea of property in the man himself, in the same opinion said that trespass on the case would lie for the loss of the service; so that it was all a question of pleading, and no question of right at all. It is within my recollection--and I believe the case was brought to the Supreme Court on a writ of error, and can be found in Howard's Reports--that a citizen of Kentucky declared in trespass on the case for taking away his slaves, and added two counts in trover. What is trover but an action of trespass on the case? Nothing more; and it never was any thing more. The measure of damages is the same in both actions--the value of the service of the servant; and yet that controversy on mere pleading--which, in nine-tenths of the States of this Union, has ceased to be of any value, because they have a code of procedure, is made a terrific objection here.

Now, sir, I have never read the code of New Mexico, and I do not propose to read it; but it is perfectly understood that that Territorial Legislature, pursuing the privilege, if you call it privilege, conferred by the compromise measures of 1850, has established the relation of master and slave, or master and servant, as perfectly as it is established in any of the fifteen so-called slaveholding States. I do not admire this word "_status_" which we find in the report of the Peace Conference; but as to the meaning of that word, I cannot be in any doubt. It does not refer to any persons in particular; it refers to a legal relation of servitude as between master and servant, and it provides that that relation, or condition, or _status_, shall not be changed; that for all wrongs or controversies arising out of that there shall be a remedy through the Federal judiciary.

I can see why the commission made this distinction. There have been many who have insisted that the Congress of the United States should pass laws for the protection of the right of the master to the services of his slave in a Territory; but it has always been my opinion, that the worst thing the slaveholding States ever could have would be to have that; for there would be a perpetual controversy here from session to session, and from day to day, whether the law went far enough in giving protection or went too far; and they would be remitting their right to the adjudication of the Senators and Representatives from the non-slaveholding States. Others have insisted, as the propositions of my honorable friend from Kentucky provided, that the relation should be protected by the legislation of the territorial authority. I would rather it were so, individually, if they chose to establish it. The peace commission do not want that. They evidently do not want to quarrel with the Territorial Legislatures about the measure of legislation; but they declare the right, and then say that this right shall be enforced in the Federal judiciary according to the course of remedies and forms of the common law. I do not see how there can be a doubt; and yet, as I have said, it seems to me that a great deal of it is unnecessary verbiage. I do not mean to debate that; I am not one of the peace commissioners; I am not to select my words to express the idea; but I am here; and my State with other States, having appointed commissioners in view of a crisis like this, as they esteem it, and as I esteem it, and they having agreed upon a great variety of propositions, some of which commend themselves to my judgment and some do not; but taking it altogether as one proposition, I am satisfied that I must either vote for all of it, or let all of it fall. I would rather vote for the proposition of my honorable friend from Kentucky. I said that sixty days ago; and I have said it in season and out of season. I have expressed my views frequently. I think the proposition of the commissioners would be better expressed, though it would come to the same thing, in these words: "in all the territory south of that line, it is hereby declared that no law or regulation shall ever be made or have any effect denying or impairing the right of the inhabitants to the service or labor of such persons as were held in that condition in any State of the Union; and thence taken into the said Territory." That would have expressed my idea more clearly, yet I am satisfied with this; it amounts to that. Whether the word "_status_" be good Latin or good English, the meaning is very clear.

I believe I admonished the Senate two hours ago that time was very precious; and I shall not detain them myself.

Mr. BAKER:--Mr. President, I mean to vote for the passage of these proposed amendments, just as they are, without any change; and I propose to give very briefly a few of the reasons which govern my judgment in that act. I will do it as pointedly as I can, and I will certainly do it very briefly.

In the first place, I feel that I am but submitting to the people of the whole country, amendments which they, and they only, can incorporate in the present Constitution; and I do not believe that, in any state of the case, I can do very wrong in doing that; but when I consider the immediate condition of the country, I feel that I am doing very right. Twenty States assemble in what is called the Peace Convention. They recommend to us, in times of great trial and difficulty, the passage of these resolutions. They are eminent men; they are able men; they are--very many of them, at least--great men; they have been selected by the States which they respectively represent, because of their purity of character and ability. The country is in great trouble. Six States have seceded; and I am told by very many men in whom I have great confidence, that their States are to-day trembling in the balance. I believe it. I am told--and upon that subject I have not yet made up my mind--that the adoption of these measures by the people will heal the differences with the Border States. I do not believe that I can do wrong, therefore, in giving the people of the whole Union a chance to determine these questions.

In the beginning, I voted against the propositions of the distinguished Senator from Kentucky. Even then I did not perceive any great harm in submitting any propositions to the people of the United States which circumstances might appear to render necessary for any good purpose. I refused to vote for them, for two reasons: first, I believed something better might be attained; and second, I did not believe that the people of the States would agree to them. I do not believe that now, and for one simple reason: I think I may consider myself in some respect a representative of the opinion as well as the power of my own people. I am a Republican, a zealous and determined one. I have all my life been of the opinion that Congress ought not to protect slavery, and to extend the dominion of this Government for that purpose or with that possibility. A great many in the North, who are not Republicans, but are what we call DOUGLAS men, have shown, at the last election, under something of trial and sacrifice, that they too, do not believe that the Constitution does or ought to extend slavery. I am not disposed to give up that opinion; I do not believe they are. I was not disposed to give up when six States were in the Union who are now out, as they say; and I am not disposed to give it up yet. Independently of pride of opinion, I do not believe that kind of sacrifice would accomplish any good result.

These are the reasons in brief which induced me to vote with regret against the propositions of the distinguished Senator from Kentucky in the earlier portion of this session. But now, we are within two days of adjournment. Propositions essentially variant in their character to those are submitted here; and I am asked: "Will you, in your representative capacity, submit these to your people for their decision, either to accept or reject?" Now, why not? I need not dwell upon the fact that, while we are a representative, we are at the same time a democratic Government. I will not shut my eyes to the fact that twenty States appeal to us; I will not shut my eyes to the fact that there is imminent danger of permanent dissolution; I will not shut my eyes to the fact that, though the Republican party is in a constitutional majority, it is not yet, and it never has been, in an actual majority; and I do not believe that it is possible for one-third of the people to coerce the opinion of two-thirds.

Mr. WILKINSON:--I wish to ask the gentleman a question.

Mr. BAKER:--Do, sir.

Mr. WILKINSON:--I understand him as saying that the whole of the twenty States which were assembled in this Peace Convention agreed to this proposition.

Mr. BAKER:--My distinguished friend was writing, instead of listening, when he understood that. I did not mean to say that, and I did not.

Mr. WILKINSON:--I understood the Senator to say that twenty States appealed to us.

Mr. BAKER:--Yes, sir; just as I say that the Government appeals to another Government, I do not say every individual in it; just as I say that Congress appeals to another Government, not every individual member of Congress; but I do say, in the words of the proposition before us, that "they," the Peace Convention, composed of the States recited, "have approved what is herewith submitted, and respectfully request that your honorable body will submit it to conventions in the States, as article thirteen of the amendments to the Constitution of the United States." That is all I said, or, at least, it is all I meant to say.