ordinary anxiety. Having been accustomed from my very boyhood to regard
him as the almost infallible expounder of constitutional law, it is
impossible to describe the struggle, the revulsion of mind, with which
I have passed from an instructed and joyous acquiescence in his former
opinions to unhesitating dissent from his present ones.
I must premise that I cannot see any necessary or beneficial connection
between the subject of new Texan states and the admission of California
and the government of the territories. The former refers to some
indefinite future, when, from its fruitful womb of slavery, Texas
shall seek to cast forth an untimely birth. In this excited state of
the country, at this critical juncture of our affairs, when there is
sober talk of massacring a majority of the House of Representatives on
their own floor, and a senator, instead of merely threatening to hang
a brother senator on the highest tree, provided he could catch him in
his own state, now draws a revolver of six barrels on another brother
senator, on the floor of the Senate, in mid-session; at such a time,
I say, when, however few Abels there may be at work in the political
field, there are Cains more than enough, would it not have been well
to have acted upon the precept, “Sufficient unto the day is the evil
thereof”?
As the basis of his argument, Mr. Webster quotes the following
resolution for the admission of Texas, passed March 1, 1845:--
“New states of convenient size, not exceeding four in number, in
addition to said State of Texas, and having sufficient population,
may hereafter, by the consent of the said state, be formed out of the
territory thereof, which shall be entitled to admission under the
provisions of the federal constitution. And such states as may be
formed out of that portion of said territory lying south of 36° 30´
north latitude, commonly known as the Missouri compromise line, shall
be admitted into the Union with or without slavery, as the people of
each state asking admission may desire; and in such state or states
as shall be formed out of said territory north of said Missouri
compromise line, slavery or involuntary servitude, (except for crime,)
shall be prohibited.”
Note here, first, that only “_four_” states are to be admitted in
“addition to said state of Texas;” and second, that “such state or
_states_,” (in the plural,) as shall be formed from territory north
of 36° 30´, _shall be free_. If _two_, or only _one_ free state is to
exist on the _north_ side of the line, then how many will be left for
the _south_ side? I should expose myself to ridicule were I to set it
down arithmetically, _four_ minus _one_, equal to _three_. Yet Mr.
Webster says, “The guaranty is, that new states shall be made out of
it, [the Texan territory,] and that such states as are formed out of
that portion of Texas lying south of 36° 30´, may come in as slave
states, to _the number of_ FOUR, in addition to the state then in
existence, and admitted at that time by these resolutions.” (p. 29.)
Here Mr. Webster gives outright to the south and to slavery, one more
state than was contracted for,--assuming the contract to be valid.
He makes a donation, a gratuity, of an entire slave state, larger
than many a European principality. He transfers a whole state, with
all its beating hearts, present and future; with all its infinite
susceptibilities of weal and woe, from the side of freedom to that of
slavery, in the ledger book of humanity. What a bridal gift for the
harlot of bondage!
Was not the bargain hard enough, according to its terms? Must we
fulfil it, and go beyond it? Is a slave state, which dooms our brethren
of the human race, perhaps interminably, to the vassal’s fate, so
insignificant a trifle, that it may be flung in, as small change on the
settlement of an account? Has the south been so generous a copartner as
to deserve this distinguished token of our gratitude?
Why, by parity of reasoning, could he not have claimed all the four
states, “in addition to said state of Texas,” as free states? The
resolutions divide the territory into two parts, one north and one
south of the line of 36° 30´. Could not Mr. Webster have claimed the
four states for freedom, with as sound logic and with far better
humanity than he surrendered them all to slavery? When Texas and the
south have got their slave states “_to the number of four_” into
the Union, whence are we to obtain our one or more free states? The
contract will have been executed, and the consent of Texas for another
state will be withheld.
Notwithstanding all this, Mr. Webster affirms the right of slavery
to four more states, in the following words: “I know no form of
legislation which can strengthen this. I know no mode of recognition
that can add a tittle of weight to it.” Catching the tone of his
asseveration, I respond that I know no form of statement, nor process
of reasoning, which can make it more clear, that this is an absolute
and wanton surrender of the rights of the north and the rights of
humanity.
But I hold the Texan resolutions to have been utterly void; and proceed
to give the reasons for my opinion.
I begin by quoting Mr. Webster against himself. In an address to
the people of the United States, emanating from the Massachusetts
Anti-Texas state convention, held January 29th, 1845, the subjoined
passage, which is understood, or rather, I may say, is now well known,
to have been dictated by Mr. Webster himself, may be found:--
“But we desire not to be misunderstood. According to our convictions,
there is no power in any branch of the government, or all its
branches, to annex foreign territory to this Union. We have made the
foregoing remarks only to show, that, if any fair construction could
show such a power to exist any where, or to be exercised in any form,
yet the manner of its exercise now proposed is _destitute of all
decent semblance of constitutional propriety_.”
Thus cancelling the authority of Mr. Webster in 1850 by the authority
of Mr. Webster in 1845, I proceed with the argument.
Though the annexation of Texas was in pursuance of a void stipulation,
yet it is a clear principle of law, that when a contract void between
the parties, has been _executed_ by them, it cannot then be annulled.
If executed, it becomes valid, not by virtue of the contract but by
virtue of the execution. I bow to this legal principle, and would
fulfil it. But any independent stipulation which remains unexecuted,
remains invalid. Such is that part of the annexation resolutions
which provides for the admission of a brood of Texan states. The
resolutions themselves say, in express terms, that the new states are
to be admitted “under the provisions of the federal constitution;”
and the federal constitution says, “New states may be admitted _by
the Congress_ into this Union.” By what Congress? Plainly, by the
Congress in session at the time when application for admission is
made; and by no other. The fourth Texan state may not be ready for
admission for fifty years to come; and could the Congress of 1845 bind
the Congress of 1900? The Congress of 1900, and all future Congresses,
will derive their authority from the constitution of the United States,
and not from any preceding Congress. Put the case in a negative
form. Could the Congress of 1845 bind all future Congresses _not_
to admit new states, and thus, _pro tanto_, annul the constitution?
Positive or negative, the result is the same. No previous Congress,
on such a subject, can enlarge or limit the power of a subsequent
one. Whenever, therefore, the question of a new Texan state comes up
for consideration, the Congress _then in being_ must decide it on its
own merits, untrammelled by any thing their predecessors have done;
and, especially, free from a law which, while similar in spirit, is a
thousand times more odious in principle than statutes of mortmain.
Admitting that a future Congress, on such a subject, might be bound
by a _treaty_, I answer that there was no treaty; while the fact that
a treaty clause was introduced into the resolutions, in the Senate,
for the sake of obtaining certain votes that would never otherwise
have been given in their favor, and under an express pledge from the
Executive that the method by treaty should be adopted, which pledge was
forthwith iniquitously broken by the President, leaves no element of
baseness and fraud by which this proceeding was not contaminated. In
the name of the constitution, then, and of justice, let every honest
man denounce those resolutions as void alike in the forum of law and
in the forum of conscience; and, admitting Texas herself to be in
the Union, yet, when application is made for any new state from that
territory, let the question be decided upon the merits it may then
possess.
And was not Mr. Webster of the same opinion, when, in Faneuil Hall, in
November, 1845, after the resolutions of annexation had passed, he made
the following emphatic, but unprophetic, declaration:--
“It is thought, it is an idea I do not say how well founded, that
there may yet be a hope for resistance to the consummation of the act
of annexation. I can only say for one, that _if it should fall to my
lot to have a vote on such a question_, AND I VOTE FOR THE ADMISSION
INTO THIS UNION OF ANY STATE WITH A CONSTITUTION WHICH PROHIBITS EVEN
THE LEGISLATURE FROM EVER SEEING THE BONDMEN FREE, I SHALL NEVER SHOW
MY HEAD AGAIN, DEPEND UPON IT, IN FANEUIL HALL.”
There is another objection to any future claim of Texas to be divided
into states, which grows out of her own neglect to fulfil the terms
and spirit of the agreement. In the “territory north of the Missouri
compromise line, slavery or involuntary servitude, (except for crime,)
shall be prohibited.” So reads the bond. But if Texas suffer slavery
to be extended over that part of her territory, then, when it becomes
populous enough for admission, and is overspread with slavery, a new
state may present a free constitution, be admitted by Congress, and
before the slaves have time to escape, or to carry the question of
freedom before the judicial tribunals, _presto!_ this free constitution
will be changed into a slave constitution, under the alleged right of a
state to decide upon its own domestic institutions; and thus the word
of promise, which was kept to the ear, will be broken to the hope. If
Texas meant to abide by the resolutions of annexation, and to claim
any thing under them, it was her clear and imperative duty forthwith
to pass a law, securing freedom to every inhabitant north of the
compromise line. In this way only can the resolutions be executed in
their true spirit. That territory is now in the condition of an egg. It
is undergoing incubation. From it a state is hereafter to be hatched;
but before promising to accept the chick, it would be agreeable to know
whether a viper had impregnated the egg.
There is a still further objection, of whose soundness I have no
doubt; but should I be in error in regard to it, the mistake will
not invalidate any other argument. The parties to that agreement
stipulated on the ground of mutuality, without which all contracts
are void. Some states were to be admitted to strengthen the hands of
slavery, and some of freedom. A line of demarcation was drawn. Now, on
investigation, I believe it will most conclusively appear that there
is not an inch of Texan territory north of the stipulated line. It all
belongs to New Mexico, as much as Nantucket or Berkshire belongs to
Massachusetts. It was a mistake on the part of the contracting parties;
if, on the part of Texas, it was not something worse than a mistake.
The mutuality, then, fails. The contract is _nudum pactum_. Texas can
give nothing for what she was to receive; and is, therefore, entitled
to receive nothing but what she has got.
In regard to “the business of seeing that fugitives are delivered up,”
Mr. Webster says, “My friend at the head of the judiciary committee,
[Mr. BUTLER, of South Carolina,] has a bill on the subject now before
the Senate, with some amendments to it, which I propose to support,
with all its provisions, to the fullest extent.”
Here is Mr. Butler’s bill, with Mr. Mason’s amendments:--
A BILL
_To provide for the more effectual execution of the 3d clause of
the 2d section of the 4th article of the Constitution of the United
States._
_Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled_, That when a person
held to service or labor in any state or territory of the United
States, under the laws of such state or territory, shall escape into
any other of the said states or territories, the person to whom such
service or labor may be due, his or her agent or attorney, is hereby
empowered to seize or arrest such fugitive from service or labor, and
take him or her before any judge of the circuit or district courts
of the United States, or before any commissioner, or clerk of such
courts, or marshal thereof, or any postmaster of the United States,
or collector of the customs of the United States, residing or being
within such state wherein such seizure or arrest shall be made, and
upon proof to the satisfaction of such judge, commissioner, clerk,
marshal, postmaster, or collector, as the case may be, either by oral
testimony or affidavit taken before and certified by any person
authorized to administer an oath under the laws of the United States,
or of any state, that the person so seized or arrested, under the laws
of the state or territory from which he or she fled, owes service or
labor to the person claiming him or her, it shall be the duty of such
judge, commissioner, clerk, marshal, postmaster, or collector, to give
a certificate thereof to such claimant, his or her agent or attorney,
which certificate shall be a sufficient warrant for taking and
removing such fugitive from service or labor to the state or territory
from which he or she fled.
SEC. 2. _And be it further enacted_, That when a person held to
service or labor, as mentioned in the first section of this act,
shall escape from such service or labor, as therein mentioned, the
person to whom such service or labor may be due, his or her agent or
attorney, may apply to any one of the officers of the United States
named in said section, other than a marshal of the United States, for
a warrant to seize and arrest such fugitive, and upon affidavit being
made before such officer, (each of whom for the purposes of this act
is hereby authorized to administer an oath or affirmation,) by such
claimant, his or her agent, that such person does, under the laws of
the state or territory from which he or she fled, owe service or labor
to such claimant, it shall be, and is hereby made, the duty of such
officer, to and before whom such application and affidavit is made, to
issue his warrant to any marshal of any of the courts of the United
States to seize and arrest such alleged fugitive, and to bring him or
her forthwith, or on a day to be named in such warrant, before the
officer issuing such warrant, or either of the officers mentioned in
said first section, except the marshal to whom the said warrant is
directed, which said warrant or authority the said marshal is hereby
authorized and directed in all things to obey.
SECT. 3. _And be it further enacted_, That upon affidavit made as
aforesaid by the claimant of such fugitive, his agent or attorney,
after such certificate has been issued, that he has reason to
apprehend that such fugitive will be rescued by force from his or
their possession, before he can be taken beyond the limits of the
state in which the arrest is made, it shall be the duty of the officer
making the arrest to retain such fugitive in his custody, and to
remove him to the state whence he fled, and there to deliver him to
said claimant, his agent or attorney. And to this end, the officer
aforesaid is hereby authorized and required to employ so many persons
as he may deem necessary to overcome such force, and to retain them in
his service so long as circumstances may require. The said officer and
his assistants, while so employed, to receive the same compensation
and to be allowed the same expenses as are now allowed by law for
transportation of criminals, to be certified by the judge of the
district within which the arrest is made, and paid out of the treasury
of the United States: _Provided_, That, before such charges are
incurred, the claimant, his agent or attorney, shall secure to said
officer payment of the same, and in case no actual force be opposed,
then they shall be paid by such claimant, his agent or attorney.
SEC. 4. _And be it further enacted_, When a warrant shall have been
issued by any of the officers under the second section of this act,
and there shall be no marshal or deputy marshal within ten miles of
the place where such warrant is issued, it shall be the duty of the
officer issuing the same, at the request of the claimant, his agent
or attorney, to appoint some fit and discreet person, who shall be
willing to act as marshal, for the purpose of executing said warrant;
and such person so appointed shall, to the extent of executing said
warrant, and detaining and transporting the fugitive named therein,
have all the power and authority, and be, with his assistants,
entitled to the same compensation and expenses provided in this act in
cases where the services are performed by the marshals of the courts.
SEC. 5. _And be it further enacted_, That any person who shall
knowingly and willingly obstruct or hinder such claimant, his agent
or attorney, or any person or persons assisting him, her, or them,
in so serving or arresting such fugitive from service or labor, or
shall rescue such fugitive from such claimant, his agent or attorney,
when so arrested, pursuant to the authority herein given or declared,
or shall aid, abet, or assist such person so owing service or labor
to escape from such claimant, his agent or attorney, or shall harbor
or conceal such person, after notice that he or she was a fugitive
from labor, as aforesaid, shall, for either of the said offences,
forfeit and pay the sum of one thousand dollars, which penalty may be
recovered by and for the benefit of such claimant, by action of debt
in any court proper to try the same, saving, moreover, to the person
claiming such labor or service, his right of action for, or on account
of, the said injuries, or either of them.
SEC. 6. _And be it further enacted_, That when said person is seized
or arrested, under and by virtue of the said warrant, by such marshal,
and is brought before either of the officers aforesaid, other than the
said marshal, it shall be the duty of such officer to proceed in the
case of such person, in the same way as he is directed and authorized
to do when such person is seized and arrested by the person claiming
him, or by his or her agent or attorney, and is brought before such
officer under the provisions of the first section of this act.
AMENDMENTS
Intended to be proposed by Mr. Mason to the bill (Senate, 23) to
provide for the more effectual execution of the third clause of the
second section of the fourth article of the Constitution of the United
States.
At the end of section 5, add:
And any person or persons offending against the provisions of this
section, to be moreover deemed guilty of a misdemeanor, or of
obstructing the due execution of the laws of the United States, and
upon conviction thereof shall be fined in the sum of one thousand
dollars, one half whereof shall be to the use of the informer; and
shall also be imprisoned for the term of twelve months.
At the end of section 6, add:
And in no trial or hearing under this act shall the testimony of such
fugitive be admitted in evidence.
It will be observed that the first section of the bill, after
constituting the judges of the courts, the seventeen thousand
postmasters, the collectors, &c., tribunals, _without appeal_, for the
delivery of any body, who is sworn by any body, any where, to be a
fugitive slave, refers to the before-mentioned officers in the words
“residing or _being_ within such state where such seizure or arrest
is made.” That is, the judge, postmaster, collector, &c., need not be
an inhabitant of the state, or hold his office in the state where the
seizure is made; but it is sufficient if he is such officer any where
within the United States. Mr. Butler or Mr. Mason, therefore, may send
the postmaster of his own city or village into Massachusetts, with an
agent or attorney, who brings his affidavit from South Carolina or
Virginia, in his pocket; the agent or attorney may arrest any body, at
any time, carry him before his accomplice, go through with the judicial
forms, and hurry him to the south; the officer, after his judicial
functions are discharged, turning bailiff, protecting the prey and
speeding the flight!
Still further; this bill derides the trial by jury, secured by the
constitution. A man may not lose a horse without a right to this
trial; but he may his freedom. Mr. Webster spoke for the south and
for slavery; not for the north and for freedom, when he abandoned
this right. Such an abandonment, it would be impossible to believe
of one who has earned such fame as defender of the constitution; it
would be more reasonable to suppose the existence of some strange
misapprehension, had not Mr. Webster, with that precision and strength
which are so peculiarly his own, declared his determination to support
this hideous bill, “with all its provisions to the fullest extent,”
when, at the same moment, another bill, of which he took no notice,
was pending before the Senate, introduced by Mr. Seward, of New York,
securing the invaluable privilege of a jury trial.
I disdain to avail myself, in a sober argument, of the popular
sensitiveness on this subject; and I acknowledge my obligations to the
constitution while it is suffered to last. But still I say, that the
man who can read this bill without having his blood boil in his veins,
has a power of refrigeration that would cool the tropics.
I cannot doubt that Mr. Webster will yet see the necessity of
reconsidering his position on this whole question.
Mr. Webster says, “It is my firm opinion, this day, that within the
last twenty years as much money has been collected and paid to the
abolition societies, abolition presses, and abolition lecturers, as
would purchase the freedom of every slave, man, woman, and child, in
the State of Maryland, and send them all to Liberia.”
The total number of slaves in Maryland, according to the last census,
amounted to 89,405. At $250 apiece,--which is but about half the value
commonly assigned to southern slaves by southern men,--this would be
$22,373,750. Allowing $30 each for transportation to Liberia, without
any provision for them after their arrival there, the whole sum would
be $25,058,600,--in round numbers, twenty-five millions of dollars!
more than a million and a quarter in each year, and about thirty-five
hundred dollars per day. I had not supposed the abolitionists had such
resources at their command!
I have dwelt thus long upon Mr. Webster’s speech, because in connection
with his two votes in favor of Mr. Foote’s committee of compromise,
which votes, had they been the other way, would have utterly defeated
the committee, it is considered to have done more to jeopard the great
cause of freedom in the territories, than any other event of this
disastrous session. I have spoken of Mr. Webster by name, and, I trust,
in none but respectful terms. I might have introduced other names, or
examined his positions without mentioning him. I have taken what seemed
to me the more manly course; and if these views should ever by chance
fall under his eye, I believe he has magnanimity enough to respect me
the more for the frankness I have used. If I am wrong, I will not add
to an error of judgment the meanness of a clandestine attack. If I am
right, no one can complain; for we must all bow before the majesty of
truth.