I approach Mr. Webster’s treatment of the Texas question with no

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.

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