Part 16

"Among the measures supported by him, were the tax bills of the extra session at which he first entered Congress. He originated the law to indemnify individuals for property lost in the public service. A resolution instructing the proper committee to inquire into the expediency of giving pensions to the widows of the officers and soldiers who had fallen in their country's service, was introduced by him; and the measure was afterward sanctioned by Congressional enactment. By an able speech he defended the war measures of the administration; and by the diligent discharge of his duties in respect to the general welfare of the country, and the interests of his people and district, he continued to rise in public estimation. In 1814, he was re-elected to Congress by the unanimous vote of his district, receiving not only every vote cast in the district for representative, but every voter that attended the polls voted for him--a circumstance that has rarely occurred in the political history of any man. His position as a member of the committee of foreign relations and of the public lands, indicates the estimation in which he was held, and his familiarity with the important questions of foreign and domestic policy which were in agitation during the eventful period of his membership."

In 1815, he was urgently solicited to become a candidate for the U.S. Senate, but he declined. He was then but thirty years of age. In 1816, he was unanimously elected judge of the Supreme Court of the state of Ohio and he resigned his seat in Congress. While in Congress he voted for a bill giving to each member a salary of $1,500 a year instead of the per diem allowance.

Judge McLean presided on the bench in Ohio for six years, during which time he won for himself an enviable judicial reputation. In 1822, he was appointed commissioner of the general Land Office by President Monroe; and in 1823, he entered the cabinet as Postmaster General. As Postmaster General he secured a fine reputation, improving its finances and in every possible way improving the postal facilities of the country. By an almost unanimous vote of Congress his salary was increased from $4,000 to $6,000.

"The distribution of the public patronage of his department exhibited in another respect his qualities as an executive officer, and manifested the rule of action that has always marked his character. The principle upon which executive patronage should be distributed, has been one of the most important questions in this government, and has presented the widest variation between the profession and practice of individuals and parties. In the administration of the post-office department by Judge McLean, an example was presented in strict consistence with sound principles of republican government, and just party organization. During the whole time that the affairs of the department were administered by the judge, he had necessarily a difficult part to act. The country was divided into two great parties, animated by the most determined spirit of rivalry, and each bent on advancing itself to the lead of public affairs. A question was now started, whether it was proper to make political opinions the test of qualification for office. Such a principle had been occasionally acted upon during the preceding periods of our history; but so rarely, as to constitute the exception, rather than the rule. It had never become the settled and systematic course of conduct of any public officer. Doubtless every one is bound to concede something to the temper and opinions of the party to which he belongs, otherwise party would be an association without any connecting bond of alliance.

"But no man is permitted to infringe any one of the great rules of morality and justice, for the sake of subserving the interests of his party. It cannot be too often repeated, nor too strongly impressed upon the public men of America, that nothing is easier than to reconcile these two apparently conflicting views. The meaning of party, is an association of men for the purpose of advancing the public interests. Men thrown together indiscriminately, without any common bond of alliance, would be able to achieve nothing great and valuable; while united together, to lend each other mutual support and assistance, they are able to surmount the greatest obstacles, and to accomplish the most important ends. This is the true notion of party. It imports combined action; but does not imply any departure from the great principles of truth and honesty. So long as the structure of the human mind is so varied in different individuals, there will always be a wide scope for diversity of opinion as to public measures; but no foundation is yet laid in the human mind for any material difference of opinion, as to what constitutes the great rule of justice.

"The course which was pursued by Judge McLean was marked by the greatest wisdom and moderation. Believing that every public officer holds his office in trust for the people, he determined to be influenced by no other principle in the discharge of his public duties, than a faithful performance of the trust committed to him. No individual was removed from office by him, on account of his political opinions. In making appointments where the claims and qualifications of persons were equal, and at the same time one was known to be friendly to the administration, he felt himself bound to appoint the one who was his friend. But when persons were recommended to office, it was not the practice to name, as a recommendation, that they had been or were warm supporters of the dominant power. In all such cases, the man who was believed to be the best qualified was selected by the department."

In 1829, General Jackson appointed Mr. McLean to the bench of the Supreme Court of the United States, he having previously declined the War and Navy Departments, although the two men differed somewhat in their ideas of public policy. In January, 1830, he took his seat upon the bench, and since that time the only indications of Judge McLean's opinions on the political issues of modern times which the public could notice, have been afforded by his published decisions involving the question of slavery. Some years since, the private friends of Judge McLean were aware that he sympathized very deeply with the Anti-Slavery reformers of the West and North, and that he did not approve of the political principles of the Democratic party, as laid down in their regular platforms, on this subject. He may be safely set down as a conservative opponent of negro slavery, and its extension into the territories of the republic. In the last Presidential election he voted for John C. Fremont, which would seem to settle the question as to his political affinities. He is a Republican.

From Judge McLean's opinion, delivered in the Dred Scott case, we gather his views upon some of the more prominent political issues of the day:

"As to the locality of slavery. The civil law throughout the continent of Europe, it is believed, without an exception, is, that slavery can exist only within the territory where it is established; and that, if a slave escapes, or is carried beyond such territory, his master cannot reclaim him, unless by virtue of some express stipulation.

"There is no nation in Europe which considers itself bound to return to his master a fugitive slave, under the civil law or the law of nations. On the contrary, the slave is held to be free where there is no treaty obligation, or compact in some other form, to return him to his master. The Roman law did not allow freedom to be sold. An ambassador or any other public functionary could not take a slave to France, Spain, or any other country in Europe, without emancipating him. A number of slaves escaped from a Florida plantation, and were received on board of ship by Admiral Cochrane; by the King's Bench, they were held to be free.

In the great and leading case of Prigg _v._ the State of Pennsylvania, this court says that, by the general law of nations, no nation is bound to recognize the state of slavery, as found within its territorial dominions, where it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is organized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's case, which was decided before the American Revolution.

"There was some contrariety of opinion among the judges on certain points ruled in Prigg's case, but there was none in regard to the great principle, that slavery is limited to the range of the laws under which it is sanctioned.

"No case in England appears to have been more thoroughly examined than that of Somerset. The judgment pronounced by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advisement from term to term, and a due sense of its importance was felt and expressed by the Bench.

"In giving the opinion of the court, Lord Mansfield said:

"'The state of slavery is of such a nature that it is incapable of being introduced on 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, are erased from the memory; it is of a nature that nothing can be suffered to support it but positive law.'"

In relation to the connection between the Federal Government and slavery, Judge McLean remarks:

"The only connection which the Federal Government holds with slaves in a State, arises from that provision in the Constitution which declares that 'No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.'

"This being a fundamental law of the Federal Government, it rests mainly for its execution, as has been held, on the judicial power of the Union; and so far as the rendition of fugitives from labor has become a subject of judicial action, the federal obligation has been faithfully discharged.

"In the formation of the Federal Constitution, care was taken to confer no power on the Federal Government to interfere with this institution in the States. In the provisions respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution.

"We need not refer to the mercenary spirit which introduced the infamous traffic in slaves, to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.

"I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period, into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.

"Many of the States, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests.

"But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right."

In reference to the power of Congress to prohibit slavery in the territories, we quote the subjoined paragraphs from Judge McLean's opinion:

"On the 13th of July, the ordinance of 1787 was passed, 'for the government of the United States territory northwest of the river Ohio,' with but one dissenting vote. This instrument provided there should be organized in the territory not less than three nor more than five States, designating their boundaries. It was passed while the federal convention was in session, about two months before the Constitution was adopted by the convention. The members of the convention must therefore have been well acquainted with the provisions of the ordinance. It provided for a temporary government, as initiatory to the formation of State governments. Slavery was prohibited in the territory.

"Can any one suppose that the eminent men of the federal convention could have overlooked or neglected a matter so vitally important to the country, in the organization of temporary governments for the vast territory northwest of the river Ohio? In the 3d section of the 4th article of the Constitution, they did make provision for the admission of new States, the sale of the public lands, and the temporary government of the territory. Without a temporary government, new States could not have been formed, nor could the public lands have been sold.

"If the 3d section were before us now for consideration for the first time, under the facts stated, I could not hesitate to say there was adequate legislative power given in it. The power to make all needful rules and regulations is a power to legislate. This no one will controvert, as Congress cannot make 'rules and regulations,' except by legislation. But it is argued that the word territory is used as synonymous with the word land; and that the rules and regulations of Congress are limited to the disposition of lands and other property belonging to the United States. That this is not the true construction of the section appears from the fact that in the first line of the section 'the power to dispose of the public lands' is given expressly, and, in addition, to make all needful rules and regulations. The power to dispose of is complete in itself and requires nothing more. It authorizes Congress to use the proper means within its discretion, and any further provision for this purpose would be a useless verbiage. As a composition the Constitution is remarkably free from such a charge.

"The prohibition of slavery north of 36 deg. 30', and of the State of Missouri, contained in the act admitting that State into the Union, was passed by a vote of 134, in the House of Representatives, to 42. Before Mr. Monroe signed the act, it was submitted by him to his Cabinet, and they held the restriction of slavery in a territory to be within the constitutional powers of Congress. It would be singular, if, in 1804, Congress had the power to prohibit the introduction of slaves in Orleans territory from any other part of the Union, under the penalty of freedom to the slave, if the same power embodied in the Missouri Compromise could not be exercised in 1820.

"But this law of Congress, which prohibits slavery north of Missouri and of 36 deg. 30', is declared to have been null and void by my brethren. And this opinion is founded mainly, as I understand, on the distinction drawn between the ordinance of 1787 and the Missouri Compromise line. In what does the distinction consist? The ordinance, it is said, was a compact entered into by the confederated States before the adoption of the Constitution; and that in the cession of territory, authority was given to establish a territorial government.

"It is clear that the ordinance did not go into operation by virtue of the authority of the confederation, but by reason of its modification and adoption by Congress under the Constitution. It seems to be supposed, in the opinion of the court, that the articles of cession placed it on a different footing from territories subsequently acquired. I am unable to perceive the force of this distinction. That the ordinance was intended for the government of the northwestern territory, and was limited to such territory, is admitted. It was extended to southern territories, with modifications by acts of Congress, and to some northern territories. But the ordinance was made valid by the act of Congress, and without such act could have been of no force. It rested for its validity on the act of Congress, the same, in my opinion, as the Missouri Compromise line.

"If Congress may establish a territorial government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. This being the case, I do not see on what ground the act is held to be void. It did not purport to forfeit property, or take it for public purposes. It only prohibited slavery; in doing which, it followed the ordinance of 1787."

In 1840, Judge McLean lost his wife, and in 1843, married his present wife, Mrs. Sara Bella Gerrard of Cincinnati. In his personal appearance, Judge McLean is imposing, for he is tall and well proportioned, and his face is one of the finest among the list of American jurists. As a judge, he is above reproach; and as a Christian--he is a member of a Christian church--he has won the esteem of all who know him in that relation.

HENRY A. WISE.

Governor Wise is certainly one of the ablest of the southern democrats. He may lack judgment and that balance of character which is necessary in the truly great man; but he is a decided genius. Whatever he has attempted he has accomplished, thus far, from his wonderful energy and activity. Whether he has reached that bound in his political triumphs beyond which he cannot pass, remains to be seen. We will very briefly glance at his past history and his present views upon the great political issues of the country.

Henry A. Wise was born in Drummond Town, Accomack County, Virginia, December 3, 1806. He was a precocious lad, for he graduated at Washington College, Pa., when he was but nineteen years old. He then studied law, and was admitted to the bar of Winchester, Va., in 1828. With a western fever in his bones, and desirous of a new field in a new country, he emigrated to Nashville, Tennessee, where he practised law for two years. He soon grew homesick for old Virginia, and returned to Accomack County. The district showed its estimation of the young man by returning him to Congress in 1833. He continued to represent it in the House of Representatives for ten years. In 1843, he resigned his place and took the mission to Brazil. He remained there for a Presidential term. In 1848, he was a Presidential elector in Virginia; in 1850, was a member of the Reform Convention which adopted the present constitution of the State. In 1852, he was again a Presidential elector, and in 1855 was nominated by his party as their candidate for Governor. This caucus will always be remembered and will give him unfading political laurels. The contest was probably one of the most exciting, close, and bitter, which ever took place, even in Virginia. The Know Nothings, or Americans, were then in the height of power and were sanguine of success. Mr. Wise took the stump with the prophets against him, and in fact with a general impression abroad that he would be defeated. He carried on the year's canvass as no other man beside Henry A. Wise could have done it. He bearded Americanism in its den--forced it upon its own territory--and triumphed in the popular vote by thousands. However rash and extravagant his speeches were, he had that overwhelming enthusiasm and vigor, which carried down all opposition, and placed him in the Governor's chair.

As a politician, Governor Wise has always been true to the Virginian school. Rigidly in favor of State rights, and as rigidly opposed to protective tariffs--in short, bitterly anti-Whig in all his opinions. On the slavery question, from the outset, he has been ultra pro-slavery, though he was opposed to the Lecompton policy of Mr. Buchanan's administration. He has favored internal improvements in Virginia, and has in this respect differed from Mr. Hunter. This is the bright feature in Governor Wise's political character. He never was an old fogy, but is brimful of originality and reform. To see what is Governor Wise's position on many of the issues of the day, we will quote a few passages from his letter of January 3, 1859, to Hon. David Hubbard: