The PRESIDING OFFICER:--The Chair understands that a proviso was

offered to the matter that the Senator from New York proposes to

strike out. The vote will first be taken on the proviso offered by the

Senator from Wisconsin [Mr. DOOLITTLE], to insert at the end of

section one of article thirteen:

_Provided, however_ (and this section shall take effect upon

the express condition), That no State, nor any part thereof,

heretofore admitted, or hereafter to be admitted into the

Union, shall have power to withdraw from the jurisdiction of

the United States; and that this Constitution, and all laws

passed in pursuance thereof, shall be the supreme law of the

land, any thing contained in any constitution, act, or

ordinance of any State Legislature or Convention to the

contrary notwithstanding.

Mr. HUNTER:--I believe that the amendment of the Senator from

Wisconsin is not pending.

The PRESIDING OFFICER:--The Senator from Wisconsin proposes that as a

proviso to the matter which the Senator from New York moves to strike

out; and the question must first be taken on that.

Mr. HUNTER:--I did not know that that was before the Senate.

Mr. BIGLER:--He only gave notice of it.

Mr. HUNTER:--I thought the Senator from Wisconsin only gave notice

that he would offer it.

The PRESIDING OFFICER:--The Chair may have misunderstood the Senator's

motion at the time. He called for the printing of it; but if that is

the understanding of the Senate--

Mr. SEWARD:--What does the record say?

The PRESIDING OFFICER:--The Chair understands that the record presents

it as "intended to be offered."

Mr. SEWARD:--Then the question is on the substitute. I ask that the

question be taken.

Mr. HUNTER:--I have an amendment to submit. I propose to amend the

first section of the proposition before us, by inserting in lieu of it

the first article of what are called the CRITTENDEN resolutions. I

move to strike out the first article of the peace propositions, and to

insert:

That in all the territory of the United States now held, or

hereafter acquired, situate north of latitude 36° 30´,

slavery or involuntary servitude, except as a punishment for

crime, is prohibited while such territory shall remain under

territorial government. In all the territory south of said

line of latitude, slavery of the African race is hereby

recognized as existing, and shall not be interfered with by

Congress; but shall be protected as property by all the

departments of the territorial government during its

continuance; and when any Territory, north or south of said

line, within such boundaries as Congress may prescribe,

shall contain the population requisite for a member of

Congress, according to the then Federal ratio of

representation of the people of the United States, it shall,

if its form of government be republican, be admitted into

the Union on an equal footing with the original States, with

or without slavery, as the constitution of such new State

may provide.

Mr. COLLAMER:--I rise to a question of order. It will be observed that

this paper is before us under a recital that, whereas these

propositions of amendment have been presented by the Commissioners, as

they are called, from the several States--naming them--who have asked

Congress to submit them, therefore we propose to submit them to the

States. The whole proceeding is based and predicated on this recital.

I say that it cannot be amended. If it were amended, it would cease to

be the application of that body which the recital States. I therefore

object to any amendments, except a substitute; perhaps a substitute

may be offered striking out the recital and all; but an amendment to

it is out of order, in my view.

Mr. HUNTER:--In regard to the question of order, I understand that the

recital is the recital of the committee, and that the question before

us is on these propositions for amending the Constitution of the

United States, which are to be treated as a bill. If so, each section

is subject to amendment as a bill would be subject to amendment. It

was my purpose to offer the entire series of what are called the

CRITTENDEN resolutions, as an amendment to these, and I still intend

to offer them, section by section; but I was prevented from offering

them in that form, because the Senator from New York got the floor

first, and offered his proposition as a substitute. I therefore could

not raise the question which I desired to raise, except by offering

the amendments, section by section, in order to perfect the original

proposition. I submit that it is in order.

Mr. COLLAMER:--I submit, still, my question of order, suggesting to

gentlemen that if we make any amendment, we must strike out the

recital.

Mr. BIGLER:--I do not see that any ordinary question of order can be

raised in this case; but I do think there is a consideration much more

grave, and that is the question whether we will treat the series of

resolutions presented here by this Peace Congress as a proposition

which we ought either to accept or reject. I was one of those in the

select committee who took that position. It was manifestly intended

that we should accept the entire programme, or reject it. Therefore I

was unwilling; and we decided to consider no question of amendment--

Mr. HUNTER:--That is not a question of order, but of propriety. It

would be an argument against any amendment.

Mr. BIGLER:--I have said it was no ordinary question of rules; but

that there was a far graver question of propriety. I agree with the

Senator in that view; and I rose for the purpose of alluding to the

view taken of this subject by the select committee. The Senator from

New York desired the leave of the committee to report his proposition

as a substitute; but the majority of the committee held that the

resolutions had not been committed to us for the purpose of

considering them and changing them, or substituting something else,

but simply to attach to them the formal resolution to present them as

amendments to the Constitution for the ratification of the States. For

that reason we proposed no amendment; and the Senator from New York

yesterday offered his substitute on his own responsibility, because,

as I understood him, of the view taken by the committee. Now, sir, I

still entertain the view that, while the Senate have a clear right

unquestionably to change these resolutions, and to change the

resolution of submission to make it conform to any thing we may do, we

ought to consider these resolutions sent here by this Peace Conference

as a whole, and accept them or reject them; but there can be no

question of ordinary rule raised as to the right to offer an

amendment; there is a greater, a graver question of propriety as to

how they shall be treated.

Mr. SEWARD:--It is not merely a question of form or order, but the

proposition of the Senator from Virginia would change the whole

character of the transaction. This joint resolution is one single,

complete proposition. It is one act. It begins with a declaration by

Congress, that "whereas Commissioners, appointed on the invitation of

the State of Virginia," have performed a certain duty confided to

them, "and communicated to Congress the result of their deliberations,

with a request and recommendation on the part and in the name of said

States"--of Maine, New Hampshire, Vermont, Massachusetts, Rhode

Island, and the rest of the States represented in the Convention--"the

following"--nothing different, nothing originating in Congress,

nothing originating anywhere else, but--"the following be proposed to

the several States as amendments to the Constitution of the United

States, according to the fifth article of said instrument." Now, if we

should adopt this whole transaction, we should simply do this: we

should submit these amendments to the people of the United States for

their acceptance, for the reason that the Peace Convention, as it is

called, has considered upon the subject, and thought it grave enough

to solicit us to invest it with the legislative or congressional

sanction, and so submit it to the Legislatures and conventions of the

States; but whenever you have made a single alteration in it, such as

is proposed now by the Senator from Virginia, it is not, then, the

proposition of the States "of Maine, New Hampshire, Vermont,

Massachusetts," or any other States; but it is a recommendation of the

Congress of the United States. The whole character is changed. The

Convention is swept out of existence in the history of Congress. The

resolutions then adopted become the deliberate conviction of the

majority of the Congress of the United States, who substitute their

own judgment, and their own wisdom, and their own will, for the

wishes, the opinions, respectfully submitted to them by the

representatives of those States, and take the responsibility of saying

that this is what the Peace Convention should have submitted, instead

of the proposition which they have sent here.

Mr. HUNTER:--I wish to make a suggestion in regard to the real

position of this question, as it now appears before us. The arguments

that have been urged by the Senator from Pennsylvania and the Senator

from New York might very well be brought up against the propriety of

adopting the amendment; but, so far as the question itself stands, it

is only brought before us by a report of our committee. The Peace

Conference had no power to present questions or make communications to

us; but they having made a communication, and we, having respect for

that body, agreed to take it up, and we referred their proposition to

a committee. The only authority which we have now for considering it

in the Senate, is on the recommendation of our committee. This

proposition stands here as a recommendation of that committee to alter

the Constitution, as proposed by this Conference. It being their

recommendation in regard to the alteration of the Constitution, under

our rules it stands like a bill; and I have a right to move to amend

it, section by section; and in doing so, I should be pursuing the

method taken by the Peace Conference, as I understand, for I am told

they never took a vote on it as a whole, but voted on it proposition

by proposition; and in fact, the majority who passed the propositions

were composed of different States, and they never did take a vote on

the articles as a whole.

Now, I am proposing to amend this as it comes up, proposition by

proposition; and if it would be in order for me to make such a motion,

supposing that this proposition had originated with a committee of

this body, who had made a report proposing such amendments to the

Constitution, I should have a right to make it now, for it is only in

that way that it appears legally before us. I say, then, so far as the

question of order is concerned, it seems to me that I have clearly a

right to do it. I would be willing, in order to get rid of the

question of order, to move to strike out the preamble too; but in my

opinion it stands before us as a bill would stand. I may amend the

particular sections. I am not proposing by this amendment to perfect

the whole proposition, but a part of it; and if I should succeed in

that, I can then go back, and move to amend the preamble.

So far as the question of order is concerned, I cannot see how it is

that I am out of order. There may be a question of propriety. Those

who believe that this proposition is one that ought to be accepted as

a whole, and ought to be accepted because it comes from this body,

eminently respectable, as we all acknowledge it to be, may say that we

ought not to amend it; not that we have not the power, but that we

ought not to amend it. Those of us, however, who think as I do, that

it is a proposition not to be accepted; that it is a proposition

highly dangerous, and one which will give rise to great difficulties,

on the other hand, may think it eminently proper to amend it. I,

thinking in that way, avail myself of what I suppose my parliamentary

right, to offer an amendment; and it is upon that question of

parliamentary right alone, as I understand, that the Chair is to

determine.

Mr. TRUMBULL:--Mr. President, it seems to me very clear that, as a

question of order, this proposition does not stand in any respect

different from any other. Suppose an individual Senator had thought

proper to propose amendments to the Constitution; that they had been

referred to a committee; and the committee had approved them: what

would it have done? Precisely what this committee has done. It would

have reported back the proposition, with a resolution in conformity

with that clause of the Constitution which points out the mode of its

amendment. The fact that this proposition was adopted by gentlemen

from various States does not alter it at all. It comes here as a mere

petition. However respectable and dignified the Convention may have

been which arrived at these conclusions; however much weight their

conclusions may be entitled to in the country, they come here simply

as petitioners--in that light, and none other--asking Congress to

submit certain resolutions to the States of the Union to be adopted or

not as portions of the fundamental law, and, unquestionably, any

Senator has a right to propose an amendment in the same way as if they

were introduced by an individual Senator. Can it be possible that if I

draw up a series of propositions as amendments to the Constitution of

the United States, and a select committee thinks proper to recommend

them to this body, the hands of the body are tied up, and it must take

them, word for word, and letter for letter, as I have drawn them? The

question is, whether it is proper to do this; whether the respect due

the Peace Convention should not deter gentlemen from offering

amendments, is a question we are not discussing. The point is one of

order; and as a question of order, I was astonished when the Senator

from Pennsylvania first suggested it.

Mr. BIGLER:--I suggested no question of order.

Mr. TRUMBULL:--I did understand the Senator from Pennsylvania to say,

that that was the view he took in committee in response to what was

said by the Senator from Vermont, and it was to that I alluded when I

said I was astonished at the ground he took, that the committee could

not amend these propositions, or that any other person could not move

to amend them.

Mr. BIGLER:--The Senator from Vermont made a distinct point of order;

but I did not sustain the Senator's views on the point of order. On

the other hand, so far from that, I stated distinctly, that there

could be no ordinary question of order under the rule; but a question

of propriety, a question as to the consideration that was to be

attached to this proposition of the Peace Convention; that the select

committee, or a majority, at least, were under the impression that it

was expected we would treat it as a whole, and accept it or reject it.

That is what I said. I have no doubt whatever of the right of a

Senator on this floor to move to amend this resolution. But, sir, I

cannot agree with the Senator from Illinois by any means, that this

proposition should be treated as the mere report of a committee or the

proposition of an individual Senator. Who supposes that twenty States

would have sent commissioners here to consider this great question and

suggest to Congress--

Mr. TRUMBULL:--The Senator from Pennsylvania, I see, is

misunderstanding me. I said, as a question of order, it was to be

treated the same as if offered by an individual Senator; that however

much respect we might have for it, as coming from the source it did,

yet, as a question of order, there was no difference in the rules.

Mr. BIGLER:--I did not understand the Senator as placing entire stress

on the question of order. I have been endeavoring to take this

question away from the rules, to set it above the rules, and I say

that we ought to consider it without reference to the rules. If it be

that this programme is not acceptable to the Senate, let it be

rejected. What I supposed was intended from the beginning was, that

whatever they sent here was to be considered as an entirety--accepted

or rejected. I was about to remark, who supposes that twenty States

would have sent commissioners to prepare a programme of peace for the

consideration of Congress, if they had supposed that immediately the

peculiar views of each member of Congress would be set up in

opposition to them?

Mr. President, a single remark in relation to what fell from the

Senator from New York, and I shall have done. The Senator from New

York alludes to the terms of the preamble, that, for the reason that

these commissioners agreed, therefore these propositions are submitted

as amendments to the Constitution. I do not wish to be understood as

regarding it in that light. I do not think it is the right of Congress

to submit propositions of amendment of the Constitution because they

come from any source. The spirit of the Constitution is, that Congress

will submit amendments to the Constitution; because Congress approves

those amendments, and it would be a reason why I should vote for or

against them, whether I approved them or not. If, as a whole, I could

vote for them, I would vote for them; if, as a whole, I could not, I

would vote against them. That does not affect the question whether,

under all the circumstances, and solemn surroundings, the labor which

has been bestowed, and the character of the men that have presented

this paper, we should consider it as an entirety, or attempt to cut it

up by piecemeal, by which neither they, nor the public, will ever

ascertain what the judgment of Congress was on the results of their

labor. That is what I say.

Mr. SEWARD:--The honorable Senator may very naturally and very

properly take the ground that he would not vote, and that Congress

ought not to vote, for submitting this proposition to the people, for

the reason assigned in the paper before us. I have not any disposition

to quarrel with him about it. I might take the same view, and say

that I would not submit to the people a proposition which was futile,

which was frivolous. That is not what I was speaking to. What I was

speaking to was, the character of this proposition; and this is a

proposition just to this effect, logically and technically expressed:

that whereas these commissioners appointed by the States have met,

consulted, considered, and adopted that resolution, therefore, for

that reason, independent of every thing else, Congress submits it to

the States.

Mr. PUGH:--I want to make an appeal to the friends of some proposition

of peace. This is the last day of the session but one, and we have not

made the progress of one line. We have gone into an eternal discussion

about questions of order, and that, too, in defiance of the rule of

the Senate. I insist that the question shall be decided without

further debate.

The PRESIDING OFFICER (Mr. FITCH):--It is not for the Chair to decide

any question of propriety, except as an individual Senator. As

Presiding Officer, he does not deem the question of order, made by the

Senator from Vermont, to be well taken. The joint resolution differs

in no respect from other resolutions, and is open to amendment, and is

before the Senate, as in Committee of the Whole, for that purpose. The

question is on agreeing to the amendment which has been offered by the

Senator from Virginia.

Mr. HUNTER:--Mr. President, I have offered this amendment, as the

first of a series which I shall offer, for the purpose of carrying out

the will of my State, as it has been expressed through its

Legislature; and I might say there are other Senators similarly

situated, for there are other States which have declared a disposition

to settle upon the basis of what are called the CRITTENDEN

resolutions. That is the first reason which prompts me; and to me it

is imperative, because the Legislature of the State which I have the

honor in part to represent, has declared that this is the basis upon

which it would settle, and intimated that it would not take less than

they propose by way of security for the South. I have also another

reason. I have examined this proposition of the Peace Conference--

Mr. WADE:--Will the Senator let us hear it read? We do not understand

what his proposition is.

Mr. HUNTER:--My proposition is the first article from the CRITTENDEN

amendments, in regard to the territorial adjustment.

Mr. WADE:--We understand that.

Mr. HUNTER:--After as careful an examination as I have been able to

give this proposition from the Peace Conference since it was printed,

that is to say, within the last day or two, I have come to the

conclusion that it would not only make a great many more difficulties

than it would remove, if it should be adopted as an amendment to the

Constitution, but that it would place the South--the slaveholding

States--in a far worse position than they now occupy under the present

Constitution, with the Dred Scott decision as its exposition.

Mr. CLARK:--Will the Senator from Virginia allow me to make a

suggestion?

Mr. HUNTER:--Certainly.

Mr. CLARK:--I understand him to say he proposes to offer the several

propositions of the CRITTENDEN amendment one after the other.

Mr. HUNTER:--Yes, sir.

Mr. CLARK:--Then I suggest, as that is the intention of the Senator,

that unanimous consent be given to move them as one amendment, so that

we may have them all up for discussion, if any one chooses to discuss

them, at the same time.

Mr. HUNTER:--I have no objection to that, if it is the general wish. I

was saying, Mr. President, when I was interrupted, that after as

careful an examination as I was able to give this peace proposition,

since it was printed, I came to the conclusion that it would put the

southern States in a far worse position than they now occupy under the

present Constitution, and with the Dred Scott decision. Under that

Constitution, and with the Dred Scott decision, they had a right, as

the court has decided, to carry their slaves into any Territory of the

United States. That is a right which has been adjudicated to them by a

solemn decision of the Supreme Court; and it is to be remembered that

this right has not only been accorded to them by the decision of the

court, but by the action of the several branches of the Federal

Government. That is their present state of things under the present

Constitution of the United States with regard to the territorial

question. In what position, then, does this proposed territorial

adjustment place them? Why, sir, it excludes them; it puts the WILMOT

proviso on all territory north of 36° 30´; and south of 36° 30´ it

gives them the privilege of another lawsuit, in order to try their

right and title to enter the territory with their slaves. What are the

words of this proposed amendment of the Constitution?

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

_status_ of persons hold to involuntary service or labor, as

it now exists, shall not be changed; nor shall any law be

passed by Congress or the Territorial Legislature to hinder

or prevent the taking of such persons from any of the States

of this Union to said territory, nor to impair the rights

arising from said relation; but the same shall be subject

to judicial cognizance in the Federal courts, according to

the course of the common law."

"In all the present territory south of that line, the _status_ of

persons held to involuntary servitude or labor, as it now exists,

shall not be changed." What is the meaning of that word "_status_"?

What is the _status_? The word _status_ may be applied to different

things; there may be a local _status_ or a political _status_. In some

countries a slave may hold property, and, in a certain form, sue; in

others, he cannot. Or it may be the social and legal relation, that of

the slave to his master, which constitutes the _status_ that is

referred to; and I presume it is that which it is declared shall not

be changed. But, sir, shall not be changed by whom? By Congress? It

does not say so. By the Territorial Legislature? It does not say so in

terms. Does it mean that it shall not be changed by Congress or by the

government of the Territory? Does it mean that it shall not be changed

at all by anybody? Does it mean the master shall not emancipate him if

he chooses? Is it an absolute prohibition of any change of the

_status_ of the slave, of any sort or description?

These are the terms which we are obliged to resort to in order to

escape from the manly declaration of the CRITTENDEN resolution, that

south of that line slavery shall be recognized and protected. It was

eminently proper, as we excluded them north of it, that our

institutions should be recognized and protected south of that line.

That, sir, was plain English; that everybody could understand; but

here we are interpolating law Latin into the Constitution; this word

"_status_" is introduced; and who is to determine what the _status_

was? I thought it had been considered a march forward, a step of

progress, an evidence of improvement in English legislation, when it

abandoned Norman French and law Latin, and resorted to the mother

tongue; and especially it should be so, when we are making

constitutions for American people of English descent, and who speak

the English tongue. A constitution is for the millions, and the

millions should be able to understand it.

But, Mr. President, let us proceed a little further. This whole matter

is to be subject to judicial cognizance in the Federal courts,

according to the course of common law. That embraces the right of the

master to his slave as a matter of cognizance under the common law

before the courts; because what do they mean by the _status_ of all

persons held to involuntary servitude or labor? They mean rightfully

held. They do not mean if a man is kidnapped and held illegally to

involuntary service or labor that he is always to be so held. It means

that the _status_ of persons who are rightfully and legally held shall

not be changed; and who is to determine that? The courts are to

determine it according to the common law. That is to be determined by

judges who are to be appointed from a party, and by a party who

believe that there cannot be property in man; by a party who believe

that, in the Somerset case, Lord MANSFIELD has laid down the common

law properly; by a party who will probably believe that the decision

of the English courts, in regard to the slave ANDERSON, that it was no

murder for a slave when escaping to kill his master, was a correct

exposition of the common law.

How, then, do we stand? Why, sir, in relation to our right to slaves,

we have to try that right before judges who are thus appointed, and

appointed from a party who we know entertain these opinions. Why, sir,

you might poll that party through the whole United States, and I would

venture any thing upon the assertion that you cannot get one in a

hundred thousand who would not deny that there could be property in

man, especially under the common law. We thus lose the advantage of

the Dred Scott decision. According to the Dred Scott decision, we can

carry them into the territory of the United States and hold them, and

it is decided that there is property in slaves--decided under the

Constitution. The court maintain that the Constitution recognizes it.

It is upon constitutional ground that we have made our claims, and so

far, it is upon this that we have fought and won the battle, not upon

common law; and now we are to abandon the advantages that we have got

from that ground of title under the Dred Scott decision, and go into

court and try a case that has been already decided in our favor; and

under the common law, try it before judges who are to be selected by a

party entertaining such opinions as I have just described; and I am

sorry to say, without appeal to the Supreme Court; because, in the

territorial bills which have been lately passed, that right has been

taken from us. My friend from North Carolina will be kind enough to

read an article in the Chicago platform, showing what is held on that

subject by those who wield the power of this Government.

Mr. CLINGMAN read, as follows:

Eighth. "That the normal condition of all the territory of

the United States is that of freedom; that as our republican

fathers, when they had abolished slavery in all our national

territory, ordained that 'no person should be deprived of

life, liberty, or property, without due process of law,' it

becomes our duty, by legislation, whenever such legislation

is necessary, to maintain this provision of the Constitution

against all attempts to violate it; and we deny the

authority of Congress, of a Territorial Legislature, or of

any individuals, to give legal existence to slavery in any

Territory of the United States."

Mr. HUNTER:--Thus much, Mr. President, in regard to the _status_; and

it is to be observed that the same word is used in reference to

persons who are now held to involuntary servitude in the Territories

and to those whom we are to have the right to take into the

Territories from the States recognizing slavery. So that we submit

this question of our right to slaves, when it reaches the Territories,

to be tried under the common law, by courts appointed by the party

entertaining the opinions I have described, and that without appeal.

This is in regard to the Territories which we now own. What is the

settlement provided for in regard to territory hereafter to be

acquired? Here it is, in the third section:

SECTION 3. Neither the Constitution, nor any amendment

thereof, shall be construed to give Congress power to

regulate, abolish, or control, within any State, the

relation established or recognized by the laws thereof

touching persons held to labor or involuntary service

therein, nor to interfere with or abolish involuntary

service in the District of Columbia without the consent of

Maryland, and without the consent of the owners, or making

the owners who do not consent just compensation; nor the

power to interfere with or prohibit Representatives and

others from bringing with them, to the District of Columbia,

retaining and taking away, persons so held to labor or

service; nor the power to interfere with or abolish

involuntary service in places under the exclusive

jurisdiction of the United States within those States and

Territories where the same is established or recognized.

That is, they shall not prohibit it as to future acquired territory,

where it is established or recognized. Will not the inference be

claimed from such an expression, that where it is not established and

not recognized, they may prohibit it? Will it not be said that the

expression of one exception to the power of Congress to prohibit

slavery in the Territories excludes the idea of an exception to that

power when slavery is not recognized in the Territories?

Mr. COLLAMER:--If the gentleman will indulge me a moment, I desire to

say that is a section declaring that Congress shall not abolish

slavery in the dock-yards, &c., in the States where it is recognized.

There is nothing in it about future acquired territory.

Mr. HUNTER:--This third section applies not only to present but to

future acquired territory. It is not confined, like the first section,

to the territory at present acquired. It is not confined to dock-yards

and arsenals in the Territories and States. If the Senator will

examine it, he will find that it is applied to all places where the

United States have exclusive jurisdiction. "Exclusive jurisdiction" is

the word. Will it not be claimed that they have exclusive jurisdiction

in the Territories of the United States? Will not those who have the

power to construe, and carry out their construction, so construe it?

Will they not say it is a prohibition to Congress to prohibit slavery

where it is recognized in the Territories or States, but not a denial

of the right to prohibit slavery in Territories where it is not

recognized by law, although that Territory may be vacant and

uninhabited?

Mr. COLLAMER:--That clause of the section is, that Congress shall not

have power--

"To interfere with or abolish involuntary service in places

under the exclusive jurisdiction of the United States within

those States and Territories where the same is established

or recognized."

That, so far as I have read, is confined only to where they have local

jurisdiction in the States holding slaves.

Mr. HUNTER:--I thought so at first myself; but the Senator will find,

on a further examination, I think, that he is mistaken. They shall not

prohibit it wherever they have exclusive jurisdiction in places where

slavery "is established or recognized." It is not confined to

dock-yards, forts, and arsenals. Why should it be in the Territories?

They have exclusive jurisdiction over the whole. There is reason for

confining it to dock-yards in the States; but there is no reason for

confining it to dock-yards, &c., in the Territories. But that is not

the construction which will be given; the construction given to it

will be, that they shall not prohibit it where they have exclusive

jurisdiction, if it is recognized in such places; but if it be not

recognized in such places, where they have exclusive jurisdiction, I

say the inference will be drawn, plausibly, if not justly, that they

shall have power to prohibit; and I say if this be so, then it is a

power (so far as Mexican territories are concerned, if there should be

any acquisition there) by which the South will be forever estopped;

because there the Mexicans have abolished slavery, and there, under

this clause giving in that territory exclusive jurisdiction, the party

now controlling the Government would claim the right to prohibit it.

And what a difference between our position then and our position now

under the decision of the Supreme Court! Under the decision of that

court, all the people of all the States have a right to go into the

common territory with their institutions. It belongs to all in common,

and Congress cannot prohibit them from taking their property there.

I say that those who have the power to carry out any construction they

choose to give, would be interested in putting upon it the

construction which I fear; and it would be difficult to raise an

argument which they would deem conclusive against it. But take it the

other way; suppose that the Senator from Vermont is right in his first

supposition, that it was only meant to be applied to forts, arsenals,

and dock-yards, then I ask what settlement does this proposition give

us in regard to future acquired territories; what earthly settlement

is it? We have all the old difficulties to encounter that we have to

meet now, every one of them. We not only have all the old difficulties

to encounter, but the slaveholder would have an additional obstacle

which this first clause would put in his way. It requires that the

right to slaves in the present territory shall be tried by the common

law, and it might be said in court that the inferences drawn

heretofore from those provisions of the Constitution recognizing

slavery were to be overruled by the fact that the people in their

latest action--by way of constitutional amendment--had introduced

another rule in order to determine the _status_ of those held to

involuntary service or labor, and the consequence of that would be

that the South never could acquire another foot of territory; that is,

the few southern States who are left in the Union.

I am told that here is a provision that you cannot acquire territory

except by the assent of a majority of the Senators from both sections.

Does any man believe that the North, with its eighteen, soon to be

twenty, or thirty, non-slaveholding States, would allow a majority of

six, or seven, or eight slave States, that are now attached to them,

to prevent them from acquiring any territory hereafter? Would they

agree to such an amendment, in the first instance; and if they did,

how long before they would change this restriction in the

Constitution? Indeed, it is hardly to be supposed that they will agree

to it in the first instance, so far as it regards the acquisition of

territory; but of what avail would it be to the South? There is but

one conceivable acquisition--I speak of possible things, and I hope

gentlemen will not understand me as coveting my neighbor's goods, or

desiring to lay violent hands on the property of any other States or

nations--but, if things should so happen that we could rightfully

acquire Cuba, under my view of the probable construction to be given

to this clause, and because slavery there is recognized, Congress

might be prevented from prohibiting it; but, everywhere else, the

South would be shut out and excluded.

Then, sir, what would be its position? It would be prevented from

acquiring any territory under this Government as an outlet for its

slaves; and the only chance of securing that necessity of its

condition would be to quit this Union and join the Southern

Confederacy, which can acquire territory. It would be an inducement to

disunion so strong as would almost force them to it.

Let us go a little further. Here is another clause holding out the

same temptation:

"The foreign slave-trade is hereby forever prohibited, and

it shall be the _duty_ of Congress to pass laws to prevent

the importation of slaves, coolies, or persons held to

service or labor, into the United States and the Territories

from places beyond the limits thereof."

This is to be the duty of Congress. As it now stands, it is in the

power of Congress. When it was merely given as a power to Congress,

was there a failure to execute that power? Do we not know that every

State in the present Confederation has desired to suppress the African

slave-trade? Some do it from sentiment and principle; some from

interest; but there is a controlling motive with each and all of them.

It is safe enough to leave it where it stood, giving Congress the

power merely. Here you make it their duty. Suppose this case: the

States that have left us have set up another Government, another

Confederation; under this clause you forbid us to buy their slaves, to

interchange and trade in slaves with them: what will be the

consequence? They will exclude us from selling our slaves in their

territory, and where then do we stand? If you should think it prudent,

if you should think it politic, you would have no means, under this

proposed amendment, of allowing that to be done between these two

coterminous countries. Though it would be to the advantage of both

Confederacies that there should be this interchange, you preclude

Congress from allowing it; and then where would that place the border

slave States? They would not be able to sell their slaves in the

States further South; and if they carried them there, they would have

to emigrate with them. You would thus prevent Congress from adopting a

regulation which would make it possible for them to remain in this

Union with safety, with advantage, to themselves. Why was this put in?

Why not have left it where it stood, giving Congress the power, when

we all know that there is no State in the present Confederation that

would not exercise that power for the purpose of suppressing the

slave-trade from Africa? This probably would constitute the only

exception. Why shut ourselves out from allowing the exception?

But, Mr. President, my desire is to be brief; I do not want to consume

the time of the Senate; I am merely endeavoring to state the points of

objection as briefly as I can. Here is, at the close of it, another

provision which, it seems to me, contains the seeds of civil war; and

that is this: "Congress shall provide by law for securing to the

citizens of each State the privileges and immunities of citizens in

the several States;" that is to say, Congress shall have power to pass

laws to force the States to receive those persons whom they have

excluded from police considerations--considerations of domestic

safety. Yes, sir, to force the States to receive persons who would be

dangerous to their peace; to force upon them, if you will, abolition

lecturers; to force upon them persons whom they regard as the most

dangerous emissaries that could be sent among them; to enable Congress

to obtrude, in fact, into all the business of the States. That was not

intended when the Constitution was framed, and never ought to have

been. The present provision in regard to the rights of citizens in the

several States, I regard as in the nature of an inter-treaty

stipulation. It is a duty imposed on each State, for the violation of

which there is no remedy; no remedy, unless the State aggrieved may

resort sometimes to retaliation.

There are various things of that sort in the Constitution. Duties

imposed upon the States, but without a remedy for the failure to

execute them. No State shall keep a standing army; but suppose it

does: what are you to do? Congress cannot remedy it; and it would not

be right to give Congress the power to remedy it. You have to trust

something to the sense of right and duty of the States themselves; and

so it should be in regard to this matter of citizens. Suppose one

State should say that the citizens of another should not sue in its

courts; how is Congress to enforce their right? Is Congress to say

they shall be allowed to sue, and that the Sheriffs and officers of

the State shall execute the process? Is it proposed to allow Congress,

by law, to interpose in all these delicate matters? Is it not far

better to leave it to the sense of justice of the States--to their

sense of duty and of honor? Have we not got along very well while we

left it there? If there be any instances in which there have been

exceptions, they are instances in which persons have been excluded on

account of police considerations, deemed to be dangerous to the safety

of the people who excluded them. Is it proposed so to amend the

Constitution as to take from the people of the States this right of

self-defence?

If we once introduced this as an amendment to the Constitution, what

would become of the feeble southern States, six or seven (for Delaware

can hardly be considered as a slave State), that would be left?

Arkansas may conclude to secede when she shall determine finally upon

her position in the Union. What would become of us in the hands of

this powerful majority, who would pass what laws they pleased in

regard to the introduction of their citizens among us, and the rights

of those citizens to do as they pleased after they got there? Is it

not obvious that these various changes would lead to endless

discontents, to irreparable breaches between these States? Would you

not certainly drive out the Border States? They would say, "If we go

south, we ally ourselves to a homogeneous people; we shall have none

of these difficulties; we have no reason to fear their citizens; we

can grant all these privileges without the least difficulty or

danger; we can send our slaves south from a country where they are not

profitable, to one where they are; but if we stay here, we are

forbidden to do any of these things; if we stay here, we are prevented

from ever obtaining any outlet for our slave property." Will you not

offer them the highest inducements, nay, will you not make it almost

necessary for them to leave you, if you should adopt such a

proposition as this?

Nor is that all, Mr. President. Our present Constitution--for I am

comparing our position under it with that in which this would place

us--in most of its difficult provisions has been expounded--expounded

by the action of the State Governments, by the action of all the

departments of the Federal Government. We have had legal

interpretations in the decisions of the State and Federal courts. We

have come almost to a point--indeed, I, who believe that the Dred

Scott decision is law, think we have come to a point--where we have a

legal exposition on the whole of these matters. Are we to be turned

aside from that, to wander into a new sea of doubt and difficulty and

ambiguity? No candid man can take this up and say it is not full of

double constructions, full of ambiguities, giving ground for new

quarrels between the sections, to new constructions of courts, to new

lawsuits.

Mr. COLLAMER:--And to be perpetual.

Mr. HUNTER:--Yes, sir; and to be made perpetual. We cannot change them

afterwards, if we want to do it. I can conceive nothing that would

endanger what is left of this Union so much as the adoption of this

proposition, although it has been produced by persons so eminent and

so respectable as those who composed the Peace Congress.

I know that this measure does emanate from a body eminently patriotic

and wise, entitled to the public deference and affection; and for

their work I feel all possible respect. Against that work I will

pronounce nothing except what the necessities of the occasion may

require. But when the peace, the safety, the rights of the State which

I seek to represent--when the peace of the whole country, as it seems

to me, would be so seriously imperilled as it would be if this were

adopted, I feel bound by a sense of what I owe to those who sent me

here, bound by a sense of what I owe to those who have some respect

for my opinions, to express them here on this occasion, and to give

briefly the points and the heads upon which I differ from the

conclusions of that Congress. Indeed, sir, before taking my seat, I

may suggest a doubt whether I am in truth acting against any thing

which they have really done. I was informed by a member of that

Congress that they never did take a vote upon this proposed article,

as a whole.

Mr. DOOLITTLE:--If the Senator will allow me, I beg leave to state

that I was informed of the same fact by a distinguished member of the

Convention; and I was further informed that the person who claims to

be the secretary of the Convention was never elected as such. And

there is another fact stated in the preamble that I know is not

correctly stated: that the State of Wisconsin was in that Convention,

or took any part in it. How many more mistakes there are in the

preamble, I am unable to say.

Mr. HUNTER:--I believe it is certain that they never did take a vote

on this article as a whole, but upon its separate sections. I think it

equally probable that it could not have passed as a whole. That

opinion was expressed to me by a member. As it did pass, I think there

were three or four States not voting; and the States not voting were

supposed to be against it. Under such circumstances, I do not know

that this is to be taken as an expression of the will of that

Congress. Further: I will say, in regard to myself, that a majority of

the members from my own State voted against it, and were very decided

in their opposition to it. They believed it was not such a proposition

as the South could safely accept; and that majority, I believe, have

returned home to express that opinion to the State Convention, and to

give their reasons for it. Under all these circumstances, I have

thought that I ought to present, as a counter proposition (believing

that the people whom I represent cannot and ought not to accept

these), resolutions upon which they have said they were willing to

settle this controversy. I believe the State of Kentucky has declared

the same thing. I understand the State of California has done

likewise. I believe, though I may be mistaken, that Tennessee has said

the same. The State of North Carolina has made the same declaration

unanimously. To the last, I believe I may add Missouri.

Now, I am making a proposition to amend, by inserting the resolutions

of the honorable Senator from Kentucky; upon which so many of the

border slaveholding States have said they would settle the difference.

Why not send them out to the States and the people? We know that some

of them would settle on that. Why should we send out such a

proposition as this, which there is every reason to believe they will

not accept, and which will have the effect of dividing the

conservative men of the North? Those northern men who are willing to

settle on some proposition that would give satisfaction to the Border

States, would just as soon vote for the CRITTENDEN resolutions as for

these, and some probably would prefer to do so. They will waste all

their strength, and efforts, and energies, in going for a proposition

which the South in the end will not accept, or at least which I do not

believe they will accept, as there is every reason to suppose they

will not accept it. Then, when we know there are propositions upon

which so many of the Border States have said they would be willing to

settle existing difficulties, why not submit them? I think, under such

circumstances, notwithstanding the respect which I feel for the

members composing the Peace Congress, my duty to my own State, whose

Legislature has spoken in regard to it, and my sympathy with so many

of the Southern States who have declared the same opinion, should

induce me to present the proposition which they desire instead of one

to which none of them have as yet given their adhesion, and to which I

have no idea they will ever agree.

Mr. CRITTENDEN:--I suppose, Mr. President, not only out of deference

to the Presiding Officer of this body, but because it seems to me to

be entirely reasonable, that the decision of the Chair on the question

of order which was made as to the admissibility of these amendments,

was correct. The question which these amendments present, I think, is

a question of consistency or inconsistency with the proceeding in

which we are engaged, with the resolutions offered by the Peace

Conference; and each member, in deciding ultimately upon the question

for or against the proposed amendment, will consider that question of

consistency or inconsistency, and regulate his vote accordingly. It is

not, perhaps, strictly a question of order, to be decided on the

consistency or inconsistency of amendments. So I take it. I am willing

it should be decided by this body. Now, what is it? The proposed

amendment contravenes the whole nature of the transaction, and changes

its character. The representatives of twenty-one or twenty-two

States--we will not make any question about Kansas; whether it be in

or not, is not material--the representatives and delegates of over

twenty States of the Union have recommended to us the adoption of

certain amendments to the Constitution, which they say will arrest the

troubles of the country and adjust those great differences which now

so much threaten us; and they ask Congress to propose these amendments

to the several States, according to the fifth article of the

Constitution, for their adoption. These amendments have been submitted

to us, and the question is, whether we will submit them to the States

or not? That I take to be the specific and solitary question. This

imposes no obligation on us to sanction these constitutional

amendments by proposing them to the people. We can do as we please

upon that point; but what is the question and the only question? It is

not whether we ourselves will propose amendments to the Constitution,

but whether we will propose to the people the amendments which this

Convention has proposed to us. Now, that whole character is effaced,

and a new character is given to the transaction, if any one of the

amendments proposed by Senators be adopted.

Suppose these same States, by their Legislatures, had respectively

recommended to us these particular and specific constitutional

amendments, asking us to propose them according to the Constitution:

would it have been proper for us then to undertake to amend their

resolutions? It would be a different transaction altogether. In the

one instance, out of respect to the States, we are proposing their

resolutions; in the other case, we are proposing our own to the

States. Now, the question here is, whether the resolutions have come

to us with a sufficient sanction to constitute in our minds a reason

for referring to the States the amendments which the States themselves

have asked. That is all. It seems to my mind to be a clear question.

They have asked us, they have requested us, to submit their

resolutions, and not any others, to the States; and the question is,

will we comply with their request, not whether we will fabricate

amendments of our own and refer them to the people. They have asked of

us to submit their proposals; and the question is, whether we will do

it.

This amendment implies, in the first instance, that we will not do

that, because the moment we adopt the amendment of the Senator from

Virginia, that moment we say in effect, "We will not propose your

recommendations to the people; while proposing our own, which we will

substitute for yours." That is passing by this Convention altogether;

it is negativing the States represented in it.

If gentlemen take this view it will be a sufficient reason, I trust,

in itself, for voting against the proposed amendment. These

propositions which the Convention has recommended may be such as we

may refuse; it is in our power to refuse; but the question is, whether

a recommendation, coming so sanctioned to us, is not, in itself, a

sufficient reason why Congress, if disposed to satisfy the people,

shall do the small act of presenting this to the people themselves,

for their adoption. We may reject it, if we please. The people, when

it is sent to them, will, of course, have the power to reject or adopt

it. The only question now is, whether we will give the States an

opportunity of saying whether this proposition is satisfactory or not.

Sir, I do not wish to occupy time; but I cannot perceive the justice

of the criticisms made upon these resolutions of the Convention. They

seem to me to be perspicuous and intelligible in every part and in

every sentence. I do not see where the difficulty is to arise.

Gentlemen need not tell us here, in respect to these resolutions,

that a member of the Convention told them thus and so. No matter what

a member of the Convention told this one or that one about the votes

that were given, it is certified to us, in a formal manner, by the

President of the Convention--himself a Virginian, and once a President

of the United States--that this is the result of the proceedings of

the Convention.

Mr. HUNTER:--If the Senator will allow me, I will state to him how

that occurred. It was decided, as it will be seen when we get the

Journal, that, according to some rules of the old Convention, they

should not vote upon a proposition as a whole, but upon each

particular provision. That was the rule of the Convention; and

therefore he certified it as the Convention had instructed. The vote

was taken only section by section, and the vote was never taken on it

as a whole. There is no inconsistency between what I have said, and

the certificate of the President of the Convention, because, according

to the rules adopted by them, he had to certify it if it was adopted

by sections, though it was not voted upon as a whole.

Mr. CRITTENDEN:--I suppose this remark is intended to annul the

Convention, and discredit all their proceedings, though the Senate

have received the letter of the President and Secretary as authentic

evidence that this does contain the result of the deliberations and

the proceedings of the body. I take it so, whatever a discontented

member here and there may have said to the contrary notwithstanding.

He may have said it all truly, for aught I know, but we must regard

this as the authentic act of the Convention; otherwise it was nothing;

and it is certified to us by the proper authority as its act, by the

President of the Convention, with the request that we shall adopt it.

It must have had, in some form or shape, the sanction of a majority of

the Convention, or it could not have been so certified to us. How they

voted, whether upon parts or the whole, they gave such votes as, they

thought were necessary to ascertain the meaning of the body, and the

expression of their will and opinion upon the subject. This is what

they have done.

I do not stop to inquire whether I like these resolutions better than

I do those proposed by myself, or the amendments now offered by the

Senator from Virginia. We are near the close of our session. I have

looked upon the proceedings of this great and eminent body of men as

the best evidence of public opinion outside of this body, and of the

wish and will of the States they represent. I am for peace. I am for

compromise. I have not an opinion on the subject of what would be best

that I would not be perfectly willing to sacrifice to obtain any

reasonable measure of pacification that would satisfy the majority. I

want to save the country and adjust our present difficulties.

[Applause in the galleries.]

The PRESIDING OFFICER (Mr. BRIGHT in the chair) called to order.

Mr. CRITTENDEN:--That is what I want to do. That is the object I am

aiming at. I attach no particular importance--I feel, at least, no

selfish attachment--to any opinions I may have proclaimed on the

subject heretofore. I proclaimed those opinions because I thought them

right; but I am ready to sacrifice them, any and every one of them, to

any more satisfactory proposition that can be offered. I look upon the

resolutions proposed by this Convention as furnishing us, if not the

last, the best hope of an adjustment; the best hope for the safety of

the people and the preservation of the Government. I will not stop to

cavil about the construction of these words; but I see none of the

difficulties that suggest themselves to the mind of my friend from

Virginia. Look at that third section, which has been the subject of

his particular criticism. Every part and portion of it is a negation

of power to Congress, and nothing else; and yet he has argued as if it

gave Congress power; as if it conferred more power upon Congress. It

leaves to the States all the rights they now have; all the remedies

which they now have; and consists merely in a negation of power to

Congress. How can that take away the rights of the people? How can

that make our condition worse? I cannot possibly see. It is nothing

but a negative from beginning to end, and therefore it cannot take

away any thing from the people. It may take from Congress, but cannot

take away from the States, or the people, any thing. It is a negative

in its form and in its language, from beginning to end, that Congress

shall have no power to do this, that, or the other. If they have that

power under the present Constitution, it is taken away. That is all.

It takes away no power from the States. It takes away no rights from

individuals. Its simple office is the negation of power to Congress.

That is all there is in it; and how, under that, can the gentleman

find constructions which are to increase our difficulties and diminish

our rights? He says the language will need construction. So does all

language need construction. I do not see that this is particularly so.

Now, sir, the Senator offers my own proposition as an amendment to

this. I shall vote against my own proposition here; I shall vote for

this. [Applause in the galleries.]

Mr. MASON:--I shall be constrained to require that the galleries be

cleared, if there be any further demonstrations in that quarter.

Mr. BAKER:--I hope the galleries will not be cleared. The admiration

of a noble sentiment is never out of place.

The PRESIDING OFFICER:--There is no motion to clear the galleries.

Mr. CRITTENDEN:--I shall vote for the amendments proposed by the

Convention, and there I shall stand. That is the weapon offered now,

and placed in my hand, by which, as I suppose, the Union of these

States may be preserved; and I will not, out of any selfish preference

for my own original opinions on this subject, sacrifice one idea or

one particle of that hope. I go for the country; not for this

resolution or that resolution, but any resolution, any proposition,

that will pacify the country. Therefore, I vote against my own, to

give place to a proposition which comes from an authority much higher

than mine--from one hundred and thirty of the most eminent men of this

country, out of which number a Senate might be selected that might

well compare in point of talent and intellect and ability even with

this honorable body. They have recommended this on arduous, laborious

consultation with one another; through many difficulties, through many

diversities of opinion, they have at last arrived at these

conclusions, and sent them to us. Shall any Senator stand upon the

little consideration, "this changes my resolution," and shall he

compare that little atom of his production with the great end and

object proposed to be attained for a whole nation? No, sir; not a

moment. I believe our best hope of preservation is in adopting the

resolutions proposed by this Convention, and I adhere to them against

all amendments.

Mr. President, the only material or substantial change in respect to

the first section of this proposed amendment from my first proposition

is, that it omits all reference to territory hereafter acquired,

limiting our consideration and our settlement to territory which we

now have. When I first offered my resolutions, I explained somewhat in

reference to that particular provision which related to future

territory. I said that I wanted no more territory. Our great trouble

now is from the magnitude of the territory which we have already

acquired. New Mexico is one of our acquisitions, and what a subject of

dispute it has been! I want no more acquisitions. My country is big

enough, and great enough. I say that further acquisitions are

dangerous. We have found them to be so. Our experience and our reason,

then, unite in teaching us "to beware of that sin, ambition." National

aggrandizement! I want no more. I proposed that, however, as the idea

then was, that we wanted a settlement that was to last forever; to be

eternal; to embrace the present and to embrace the future, with all

its acquisitions, all its changes. Reflection since, and the

arguments of others, I will say, have changed my opinion on that

point. If they had not changed it, however, I should be ready here to

sacrifice it and give it up, if thereby I could obtain the assent of

any respectable portion of my countrymen to the propositions for

peace. If we can settle in respect to what we have, in GOD'S name let

us do it; and if we are to have future acquisitions, let us leave the

troubles they may bring upon us to a future day. We have enough for

to-day. I do not object, therefore, to the first section of the

proposition of the Convention, that it is confined to the territory

which we now have. The adjustment which they have made varies but

little in substance in regard to the territorial question, and the

question of slavery as connected with it, from my original

proposition. South of the line which we propose to establish, 36° 30´,

you have no foot of territory left, but what is embraced in the

Territory of New Mexico. In New Mexico, by law of the Territory--a

constitutional law, a valid law of the Territory--slavery exists as

fully and completely as the law can establish it, or has established

it.

Now, this proposition is, that the _status_ of things shall continue

as it is until that Territory becomes a State; and when it becomes a

State, let it dispose of the question of slavery as it chooses. There

is no ambiguity about this. In substance, though in a different form

of words, the same is expressed in my proposition. The proposition of

the Convention is the same in substance, only omitting the words--a

very proper and a very timely omission--supposed to be offensive in

certain parts of the country, and substituting others that are equally

well understood in all parts of the country, and which were less

offensive to some.

Sir, now is the time for mediation; now is the time for pacification;

now is the time to omit every word that can give offence or add to the

irritation under which the country is. I desire, by the most moderate

terms, by the most unoffending language, to reach some mode of

adjustment that can give satisfaction to the whole country and reunite

us all.

My friend from Virginia seems to apprehend that under these amendments

we shall be worse off in respect to territory hereafter acquired. That

is supposed to be sufficiently provided for and secured in the

provision, that no future acquisition shall be made, by purchase or by

treaty, except that treaty or that purchase be ratified by a majority

of the Senators from the slaveholding States, as well as a majority of

Senators from the non-slaveholding States. Does not this give the

South a safe assurance, an assurance to be relied upon? My friend from

Virginia says, however, do we believe the North, with its superior

number, would submit to this provision of the Constitution? Why, sir,

the Convention have had the caution to make this provision, if I

understand them, irrepealable by any future amendment of the

Constitution. There it stands, then, in the most solemn form that men

can enter into any compact, in the most formal language by any terms

that Government can establish, that all are bound by that provision of

the Constitution which requires a majority from each section. When the

gentleman asks whether we can believe for a moment that this law will

be acquiesced in and adhered to, I say we must to some extent have

confidence in one another, or all human society must lose its basis,

not merely of government, but its foundation, and all society would be

torn up at once by the roots. That confidence is the root of society;

it is the root of all the associations of men in public or private

life; it is the root and foundation of all government. What more can

you have, what better security can you have than written, solemn terms

upon any subject which is to regulate government? There is nothing

more solemn among men, unless you would require angels to come down

and make responses for them. Here you have the very highest security

that can be given; and when any gentleman shall say these are not to

be relied upon, he says there is no Government that stands upon any

foundation that can be relied upon. Such an assertion strikes not at

this provision; it strikes at the root of all government. What further

security can be had? If our brethren of the other section were willing

to give the highest possible security they could, what can they give

more? Nothing. This argument, then, can avail nothing.

Mr. President, I have gone perhaps a little further than I ought to

have done. It is not now necessary that I should enter into a

vindication of every provision of these amendments offered by the

Convention. It is sufficient to speak to the amendment which the

gentleman has offered. Excluding territory hereafter to be acquired, I

think, in substance, we ought to be satisfied with that; I believe

that will make peace; I believe that will give substantial security to

our rights, and to the rights which the Southern States claim. With

that I am satisfied. It is enough for the dreadful occasion. It is the

dreadful occasion that I want to get rid of. Rid me of this, rid the

nation of this, and I am willing to take my chance for the future and

meet the perils of every day that may come. Now is the appointed time

upon which our destiny depends. Now is the emergency and exigency upon

us. Let us provide for them. Save ourselves now, and trust to

posterity and that Providence which has so long and so benignly guided

this nation, to keep us from the further difficulties which in our

national career may be in our way.

I prefer the propositions which the Convention have made to my own

propositions, because I have no hope for my propositions. They have

not been so fortunate as to receive the favor of my colleagues of the

Senate from the North, the men whose sanction of them was necessary to

give them effect. I transfer all my hopes of peace to these

propositions and terms proposed by the Convention representing

twenty-odd of the States of this Union--a large majority of all the

States. I will not go into particulars about it; but since gentlemen

have made some allusion to the out-of-door rumors and reports and

sayings in respect to this Convention, I believe that perhaps a

majority of those who voted for these amendments were men representing

non-slaveholding States. I do not know the fact, and I will not state

it, but I am under that impression now, and that impression encourages

my hopes that the Senate, rather than see the country fall into ruin,

fall into dismemberment, limb from limb, and blood flowing at the

plucking out of every limb, will supply the remedy which is proposed.

It seems to me proper and just. But little is asked, and great is the

reward, and mighty are the consequences that are to flow from it.

Sir, I have occupied more of the time of the Senate on this particular

question than I ought to have done.

Mr. MASON:--Mr. President, there is a very grave duty devolving upon

the Senate on the proposition which is now before us. We are called

upon, pursuant to the Constitution, to propose amendments to the

Constitution. The fifth article of the Constitution says this:

"The Congress, whenever two-thirds of both Houses shall deem

it necessary, shall propose amendments to this

Constitution."

Now, sir, I cannot agree, for one, to propose an amendment to this

Constitution unless it has the sanction and the approbation of my

judgment; and I suppose no other Senator will. I am bound, therefore,

by every obligation of faith and honor to my State, when a proposition

is submitted to the Senate as one that should be proposed to the

States as an amendment to the Constitution, to examine it and

understand it, and see it in all its bearings and effects, as far as

my intellect will enable me, and to propose it or to withhold it by my

vote, as I shall be guided by my judgment. I can see no other position

of a Senator.

Now, sir, what are the facts? The country was convulsed by the success

in the late presidential election of one of the political parties of

the country. The tremor was evinced at once in all the Southern

States, in a belief that their existence and their safety was

imperilled by that election. Congress met. As was proper and

necessary, the very first act in each House was to appoint a committee

to take the condition of the country into consideration, and see if,

by any mode of amendment to the Constitution, those perils could be

avoided. A committee was raised in the collateral branch. A committee

was raised in this Senate, I think upon the motion of the honorable

Senator from Kentucky, actuated as he always is by principles of the

highest patriotism. Those committees met. They remained in anxious

deliberation for weeks. What was the result? They were unable to

agree. I think the committee came before the Senate and admitted the

fact. They could agree upon no form of amendment which they believed

would remedy the evils and avert the perils under which the country

suffered.

In that state of things, the Legislature of Virginia--my own honored

State--having been called into special session on the 19th of January,

passed a series of resolutions, one of which recites this:

"That on behalf of the Commonwealth of Virginia, an

invitation is hereby extended to all such States, whether

slaveholding or non-slaveholding, as are willing to unite

with Virginia in an earnest effort to adjust the present

unhappy controversies in the spirit in which the

Constitution was originally formed, and consistently with

its principles, so as to afford to the people of the

slaveholding States adequate guarantees for the security of

their rights."

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.

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.